Another warning to do your homework before you buy or develop property comes from a recent High Court decision to set aside a municipality’s approval of building plans.
From sea-view balconies to walled-in courtyards
Lessons for buyers: Legal restrictions and “legitimate expectations”
Note that this case, as the Court put it, was “not about any alleged right to a view. It arises out of allegations concerning what the applicants contend would be the unduly intrusive and objectionable character of an aspect of the building extension”.
What follows is a very simplified summary of a very complicated subject, not helped by some very divergent court decisions in the past. So take full legal advice on your particular circumstances. But work on the basis that you have no automatic entitlement to retain amenities like privacy, access to light, views and the like, so to stop your neighbour from building to your prejudice you will generally have to prove either –
What won this round for the apartment owners was the Court’s finding that the municipal officials had, through a misunderstanding of the law, “failed to consider and address the question whether a reasonable and informed purchaser… would foresee that the regulating authority, having approved balconies along the common boundary would permit the development of the adjoining erf in such a manner as to effectively destroy the utility of the balconies as such, and with the degree of overbearing intrusiveness that allowing a three storey solid wall to be built up hard against them would unavoidably occasion.”
That was a close shave for the apartment owners, so the important thing is to do your due diligence before buying a property. Factor in that your neighbour may in the future decide to take full advantage of his/her rights to develop and build, and if that happens you will find it difficult to complain. In this case for example the apartment owners “might reasonably have expected the views from those apartments to be blocked by future development… if regard were had to what was permitted in terms of the applicable zoning scheme regulations”.
A lesson for developers
Although generally it should be enough that your proposed new construction/development complies with all “legal restrictions”, there are exceptions. Make no assumptions here; they could be both mistaken and expensive.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)