Room with a view?

Residents often react very aggressively when their views are in danger of being affected by a neighbour, building a dwelling or enlarging a structure. Various cases have reached the courts, particularly in the more affluent suburbs along the coast. But is it justified or constitutional to prevent your neighbour exercising his lawful rights, just based on a view?

Pensioner Gerda Harrison bought a cottage in Camps Bay in 2004, with the aim to demolish the structure and develop a comfortable house, which she planned to sell to supplement her pension. She received building plan approvals from the Municipality and started construction. Shortly afterwards, she started receiving complaints and objections, based on claims that the structure would obstruct the views of the neighbours and therefore potentially devalue their properties. Mrs Harrison’s plans were in line with the property’s zoning and height restrictions and therefore she was well within her rights to construct such a dwelling.

After various court cases, the Supreme Court of Appeal found in favour of the objectors and Mrs Harrison was instructed to cease construction work. Property24 reports that in November 2010 the Constitutional Court found that the Supreme Court of Appeal’s decision was wrong and therefore overturned the ruling. Acting Judge Fritz Brand dismissed the claims of the objectors by declaring that no owner is entitled to a view, particularly if it denies an owner the reasonable utilisation of his/her property and provided it is developed within the requirements of the law. The objectors were refused leave to appeal and were furthermore ordered to pay the costs of Mrs Harrison, who then could proceed with building her house.

This ruling by the Constitutional Court hopefully now brings to an end a series of cases where land owners hold neighbours at ransom, by denying a neighbour the very right which they want the court to uphold for themselves. Land owners often forget that a town planning scheme not only protects their interests against misuse, but also provides the neighbour with guidelines as to what is permissible, even if you feel aggrieved. Mostly it is the result of an owner purchasing a property with a glorious view, but neglecting to review the town planning scheme to ascertain what will be allowed on the neighbouring property. His property had no increased value due to the view, but a temporary “bonus view”. The construction of the new house then did not devalue the first property, but merely confirmed the real value.

A town planning scheme is a public document and anybody is entitled to inspect the requirements and provisions, ensuring what may affect your investment, before you commit yourself. Caveat emptor or "Let the buyer beware" is the principle and a lack of knowledge of the law is no excuse. When in doubt, consult a town planner.