GRAHAM NORRIS

Property Editor

A RECENT case in the Cape High Court has provided greater clarity on the "right-to-a-view" issue, which created an uproar in the property industry following the Paola vs Jeeva judgment on September 26 last year. The judgment stated that plans may not be passed if the local authority is of the opinion that the additions or developments "will probably or in fact derogate from the value of adjoining or neighbouring properties". It introduced, among other things, "view" as a de facto restriction of any additions to, or developments on, a property, along with the restrictions contained in propertiesa title deeds as well as in an area's planning and zoning regulations.

Seeff National Committee Chairman Ian Slot said: "At the time of this judgment Seeff raised questions as to what the 'value' of adjoining properties that may not be derogated from meant. "I stated then that it surely could only be the value that a reasonable purchaser would pay, assuming that the neighbour exercised his or her full rights to build in full compliance with all the required regulations, and not the value that someone would pay if no one is allowed to build in front of them." The Paola vs Jeeva judgment was silent on the subject, but a recent case (December 12 2003) in the Cape High Court dealing with the issue of a "right to a view"a in the matter of Clark v Faraday and Another has confirmed Slot's interpretation. In the case of Clark v Faraday the applicant owns a home in a private security estate in the Hout Bay area, with magnificent views over the Hout Bay valley, harbour and beach.

The respondent took transfer of a vacant erf situated lower down the slope from the applicant's property, had building plans approved, and started construction. During construction the applicant realised that the new building would have a significant impact on his views, and applied to court for an urgent interdict on the basis that the new building would substantially impair and obstruct the view from his property. He was also concerned that the value of his property would be affected.

The court confirmed that the view from a property contributed to its value and that the respondent's new building, once completed, would block out some of the applicant's existing views. The respondent argued that its dwelling complied with all regulatory requirements, and that when the applicant purchased his property he should have realised or did in fact realise that a dwelling could be constructed on the adjoining vacant erf. On analysing the previous Paola v Jeeva judgment, the court concluded that the local authority is obliged to grant approval of building plans if satisfied that they comply with the requirements of the National Building Regulations and Building Standards Act and other applicable law. The value attached to (another) property cannot be derogated from, where the "offending structure" is constructed in accordance with the provisions of the Building Regulations and Building Standards Act and applicable law, particularly where the possibility of same should have been foreseen by the landowner.

The court further reiterated the well established principle that an owner of land using his property in an ordinary and natural manner is not guilty of committing any injuria, even if in so doing he causes damage to the property of others. Accordingly, the respondent in this case did no more than lawfully entitled to do in accordance with the provisions of the Building Regulations and Building Standards Act, and it could not be shown that approval of the plans was invalid.

"This judgment still means that people wishing to apply for a departure from the regulations, where that departure will have a detrimental effect on a neighbour's property by blocking or restricting a view or in some other way, are unlikely to have them approved. "This is a much healthier situation than what was previously an effective blanket ban on development - which some people interpreted the Paola v Jeeva judgment to have meant."