In a recent judgment Justice Ashley Binns-Ward set aside City approval of a building plan application for the development of the Oracle building at 41 Buitenkant Street. The judge ordered that the City reconsider the application ruling that this must be done by an official other than the one that processed the original application.
The judge also ordered that the costs of the applicants, Mr Ribeira da Cruz and the Body Corporate of the Four Seasons, should be paid by the City of Cape Town and the Trustees of the Simcha Trust, responsible for developing the Oracle.
At the heart of the case was the contention by the owners and trustees of the Four Seasons, a 17-storey mixed-use building completed in 2007, that the development of the Oracle, which involved building flush up against some of the Four Seasons’ balconies, could not reasonably have been foreseen by people buying units in the Four Seasons and whose property values would be materially affected.
The judge agreed finding that, “in discharging the function of building plan approval a local authority is required to act as a moderator in respect of the potentially conflicting rights and obligations of neighbouring property owners.”
“The notion that a property owner may develop its property to the maximum extent permitted by a zoning scheme regardless of the nature of the adverse effect on the utility of its neighbour's property runs counter to the precepts of the common law” in addition to being inconsistent with section 7(1) of the National Building Regulations and Building Standards Act, says the judgment.
The judge said that “reasonableness” must be the moderating principle in the regulation of “neighbour relations” when there would be an impact on a neighbouring property. He went on to argue that the City official’s response to objections to the development “displayed a fundamentally misguided belief” that the law allowed “an uncoordinated and potentially disharmonious approach by local authorities to the consideration of building plan applications” and that this ran “directly counter to the contextual approach” demanded by the Building Standards Act.
As a result of the judgment, the City has to reconsider the building plan application by the developers of the Oracle. This does not require the recirculation of the development application to the various City departments for comment. But the judgment urges a speedy new determination of the application. This will be a relief to the residents of the Four Seasons who had not been given notice of the building plan application when building work started in 2012. They were granted an interdict halting further building in December 2012.
In the rapidly changing and growing inner city of Cape Town the interests of a range of stakeholders is often an issue when new developments are proposed. This judgment provides important insights and guidelines regarding the process the municipality must follow in order to achieve an outcome that is administratively just.