obscuring someone else’s view

Can one legally erect a building that obscures someone else’s view to such an extent that it diminishes their property value?

This question was decided in Paola v Jeeva N O & Others Case No. 475/2002 in the Supreme Court of Appeal.  The appellant in this matter was the owner of property in Umgeni Heights in Durban.  The first and the second respondents were Trustees of a Trust which had sought and obtained the approval of building plans submitted in respect of alterations and additions to be carried out on their property situated in front of the appellant’s property.  The third respondent was the North and South Central Local Council who had approved the proposed alterations.

The appellant’s house had been constructed at a time when the existing house on the Trust’s property had already been built.  The appellant’s house was specifically designed and positioned taking into account the existing development on the Trust’s property and as a result, had what was described as an “unsurpassed view” covering extensive areas of Durban.  The building alterations that the Trust sought to have done to its property would substantially impair and obstruct the appellant’s view from his house.  Affidavits had been filed by an Estate Agent & Valuator who expressed the view that the market value of the appellant’s property would be significantly diminished by the proposed developments on the Trust’s property.

The appellant’s attack on the Council’s approval of the building plans was based primarily on the fact that the proposed development would derogate from the value of his property, and that the approval of the plans had been made in breach of certain statutory requirements.

Subsequent to judgement having been given against the appellant in the High Court, the appellant discovered that the relevant Town Council had not appointed a “Building Control Officer” as was required by Section 5.1 of the National Building Regulations and Building Standards Act 103 of 1977 which (paraphrased) provided as follows:

“A Local Authority shall appoint a person as Building Control Officer in order to exercise and perform the powers, duties or activities granted or assigned by or under this Act…A Building Control Officer shall make recommendations to the Local Authority in question regarding any plans, specifications, documents and information submitted to such Local Authority…

If a Local Authority having considered a recommendation referred to …  is satisfied that the application in question complies with the requirements of this Act and any other applicable law it shall grant its approval in respect thereof … if the Local Authority is satisfied that the building is to be erected in such a manner that it would probably or in fact derogate from the value of adjoining or neighbouring properties, such Local Authority shall refuse to grant its approval.

A crucial point on the table for the Court to consider was whether or not the Council’s failure to appoint a Building Control Officer had resulted in the Council’s approval being capable of being set aside.  The appellant’s contention was that the appointment of a Building Control Officer and the recommendation by him to the Local Authority were necessary preconditions for the exercise by the Local Authority of its powers to approve or reject building plans.

The Trust’s response to this was that the relevant provisions of the Act had been substantially complied with as the plans were approved on the basis of recommendations made by people who had qualifications and experience required of a Building Control Officer.

The Council considered that the failure to appoint a Building Control Officer was a mere irregularity “of no real consequence” and that the Council had had available to it expert advice when it made its decisions.

The Court however disagreed with the respondents and considered that the Council’s decision to approve the plans without considering the recommendation from a duly appointed Building Control Officer was invalid and that the decision by the Council to approve the plans must be set aside.

The Court then considered the question of a “derogation from value”.  Here the Court turned to the question of whether the construction of something that obscures a view from adjacent property can be considered to impair the value of the property in the legal sense.

The appellant argued that the word “value” in the provision of the Act bears its ordinary meaning of “market value”, and that the market value of his property would be derogated by the obstruction of the view.

The respondents however, submitted that the appellant did not have the “servitude of prospect” over the adjacent property.  It was also argued by the Council that the derogation of value contemplated should be the diminution of value of the neighbouring properties as a group.

The Court considered that it was not possible to interpret the Act so as to give the word “value” a meaning other than its ordinary meaning namely its market value.   The Court stated quite categorically that “Once it is clear, as it is on the facts presently before us, that the execution of the plans will significantly diminish the value of an adjoining property that on its plain meaning the section prevents the approval of the plans.”

The Court upheld the appeal with costs and set aside the Council’s approval of the Trust’s plans.

Provided by Tiefenthaler Construction Law Consultants (KwaZulu-Natal)