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Refusal to approve building plans on aesthetic grounds by Joshua Rutgers

A local authority may refuse to approve building plans on certain aesthetic grounds, in terms of section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act 103 of 1977 (“the Act”), if the local authority is satisfied that the nature or appearance of the planned building is such that:

“(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb) it will probably or in fact be unsightly or objectionable;

(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties …”

In Walele v City of Cape Town [2008] ZACC 11 the Constitutional Court held that the local authority must be “positively satisfied” that one or more of the disqualifying factors apply. If derogation from the value of adjoining or neighbouring properties is in issue (section 7(1)(b)(ii)(aa)(ccc)), the courts apply the “legitimate expectations” test to determine whether approval of a building plan application under the Act should be refused.

Generally, in administrative law, courts give effect to a “legitimate expectation” in situations where a person has no legal right to a certain benefit, but in the circumstances has a legitimate expectation to obtain the benefit.

According to the judgment of Constitutional Court in Camps Bay Ratepayers and Residents Association v Harrison 2011 (2) BCLR 121 (CC) the building in question must be so unattractive or intrusive that approval of the plans would be contrary to the legitimate expectations of the parties to the hypothetical sale of a neighbouring property. In Trustees of the Simcha Trust v Da Cruz and Others; City of Cape Town v Da Cruz and Others [2018] ZACC 8 (“Simcha Trust”), the court stated (par 3) that, in terms of the legitimate expectations test, “[a] decision maker must be positively satisfied that a hypothetical purchaser of a neighbouring property would not harbour any legitimate expectations that the proposed development application would be denied because it is so unattractive or intrusive”. In other words, the court will give effect to the legitimate expectation of the hypothetical purchaser of a neighbouring property that the approval of a building plan application will be refused because of how unattractive or intrusive the planned building is.

Until recently the legitimate expectations test was only applied when dealing with derogation in value as disqualifying factor. In Simcha Trust the Constitutional Court considered whether the legitimate expectations test could also be applied to the other disqualifying factors set out in section 7(1)(b)(ii)(aa) of the Act. In this regard the Constitutional Court considered the purpose of the Act. With reference to Odendaal v Eastern Metropolitan Local Council 1999 CLR 77 (W) the court stated that the purpose of the Act is to ensure that urban areas are developed in a safe, efficient and harmonious way and local authorities must therefore exercise the powers granted to them accordingly.

In Simcha Trust the Constitutional Court decided that extending the application of the legitimate expectations test to all of the disqualifying factors would accurately reflect the powers and duties of local authorities under the Act and the Constitution. The court (in par 33) set out the practical considerations to be taken into account when applying the legitimate expectations test in this regard: the local authority must “consider whether the proposed building will probably, or in fact, be so disfiguring of the area, objectionable or unsightly, that it would exceed the legitimate expectations of a hypothetical owner of a neighbouring property”. In other words, the local authority would have to consider whether the structure proposed by the building plans is so unattractive or disfiguring that the owner or purchaser of a neighbouring property could legitimately expect those plans to be rejected.

A local authority may refuse to approve building plans on the aesthetic grounds listed in section 7(1)(b)(ii)(aa) of the Act. To avoid, at least in theory, that local authorities adopt a purely subjective approach in this regard, the courts apply the legitimate expectations test, from the perspective of the owner or purchaser of a neighbouring property.