It is a legal requirement to submit building plans prior to actually commencing with a building. This is a requirement when building, renovating or extending a residential building. Section 4(1) of the National Building Regulations and Buildings Standards Act states that: “No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act.”

In most jurisdictions, the planning conditions are the same, however special rules may apply in the following instances:

• Protected areas
• Heritage buildings
• Developments
• Body corporate.

As a general guideline, it could be said that the following building works will require building plains (not an exhaustive list):

• New homes
• Extensions to homes and alterations
• Walls removed / added
• Garages
• The use of a room is changed (eg. garage into a bedroom)

Only a SACAP (South African Council for the Architectural Profession) registered person may draw up building plans.  This is a requirement of the South African National Building Regulations and Building Standards Act (2008) which requires the person drawing up the plans to be registered according to a recognised professional act, such as Architectural Professional Act (2000), Engineering Professional Act (2000) or any other similar or relevant Act of Parliament.

The responsibility of building plan approval is with the owner. Contractors are strongly advised against proceeding with building works without a plan, given that if the works are defective or not structurally sound, there would be risk on the contractor and insurances may not cover this. There is also the risk that if a building inspector stops the works, the contractor will be financially prejudiced by virtue of keeping the site open and the funds already committed to proceeding with the works, unless they have adequate contractual measures to claim these.

As highlighted above, every owner of a home is legally obliged to ensure building plan approval where alterations and changes are made to the property so that the plans remain current. When purchasing a property, it is prudent for the purchaser to ensure the plans are current and up to date. If the plans are not up to date, the irregularities would constitute a latent defect and with the inclusion of the common voetstoets clause, the purchaser would only have recourse against the seller if the purchaser can prove that the seller was aware. The latent defects, patent defects and voetstoets clause has been covered in a previous article. In order to protect the purchaser, the recommendation is the consideration of inter alia the following inclusions to the agreement of sale:

• That the seller warrants the approved building plans and all municipal records are up to date and current.
• A condition precedent to the sale being that all approved building plans and municipal records are current and up to date.

Bilaal Dawood | Bilaal Dawood Attorneys