Neighbour law: The local authority’s role in limiting nuisance on neighbouring properties

19 June 2019 , Dave Pennington 1827

Neighbour law relates to the balancing of interests. On the one hand, the owner of immovable property exercises his rights, entitlements and interest in respect to his property. On the other, there is a degree of tolerance other parties (generally neighbours) should adhere to when the owner exercises his right over his property. A right of ownership in immovable property is succinctly described by a common law Latin phrase Cuius est solum, eius est usque ad coelum et ad inferos, which loosely translates to mean that the right of ownership in immovable property extends to below the ground to hell and above the earth to heaven. The cardinal principle of neighbour law is based on the premise that a piece of land must be used in such a way that another person is not prejudiced by its use. Where the use of land continuously prejudices the neighbouring property owner, this can be regarded as a nuisance. Prejudice may be caused by a property owner constructing a building which interferes with the neighbouring property. By so doing, the property owner wrongfully violates the duty which is imposed by law towards his neighbours. The local authority has the prerogative to consider the impact of erecting a building in relation to neighbouring properties when approving building plans and in this regard, there should be no disqualifying factors present. These disqualifying factors are set out in section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act (“the Act”) and state that such local authority shall refuse to grant its approval, and give written reasons for such refusal, should it be satisfied that the building to which the application in question relates is to be erected in such manner or will be of such nature or appearance that (1) the area in which it is to be erected will probably or in fact be disfigured thereby, (2) it will probably or in fact be unsightly or objectionable or (3) it will probably or in fact derogate from the value of adjoining or neighbouring properties. In addition to the aforementioned, section 10 of the Act provides that if any building or earthwork in the opinion of the local authority in question is being or is to be erected in such manner that it will probably or in fact be a nuisance to the occupiers of adjoining or neighbouring properties such local authority may prohibit the person erecting such building except on such conditions as such local authority may determine from time to time. To determine if interference exceeds the levels of tolerance expected of neighbours, and is consequently unreasonable, it requires an assessment of the gravity of the harm suffered. The factors considered pertinent to this enquiry include: (a) the measure or extent of the interference;(b) the suitability of the plaintiff ’s use;(c) the duration of the interference;(d) the time the interference took place;(e) the sensitivity of the plaintiff to the harm; and(f) the possibility of avoiding or mitigating the harm. In the most recent Constitutional Court case, Simcha Trust v DA Cruz and Others and City of Cape Town v DA Cruz and Others, the Constitutional Court had to consider on appeal a narrow point of law, namely the proper interpretation of disqualifying factors mentioned hereinbefore and whether the legitimate expectations test applies to all of the disqualifying factors and not just the derogation of the value of adjoining or neighbouring properties. In this regard the local authority approved the construction of four stories on a building owned by Simcha Trust, which would effectively protrude on the balconies on three stories of a neighbouring property. When the matter initially was heard by the High Court, the decision of the local authority to approve the building plans was set aside. An appeal was ultimately brought to the Constitutional Court. The Constitutional Court held that the legitimate expectations test is an objective test, based on the relevant facts available to the local authority and when applied to each of the disqualifying factors in section 7(1)(b)(ii)(aa) of the Act is an accurate translation of the duties of local authorities under the Act and the Constitution of the Republic of South Africa, 1996. The legitimate expectations test would accordingly require the decision maker to consider the impact of the proposed development on neighbouring properties from the perspective of a hypothetical neighbour. Similarly so, as mentioned above, our common law places a duty on a property owner to act reasonably in the exercise of its rights of ownership. It is crucial that the property owner not only takes regard to the possible adverse consequences the exercise of this right may have on the neighbouring property but also the property owner must take reasonable precautions to prevent harm.

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