Building Plans - When The Screws Come Loose

According to Madelein Williams of STBB (Smith Tabatha Buchanan Boys Attorneys) the following themes need to be discussed when dealing with any building plan issue:

• The relationship between a property’s zoning, its title deed conditions and the effect thereof on building plan approval. 

• A brief overview of certain provisions of the National Building Regulations and Building Standards Act and penalties for buildings erected without prior approval; distinguish between buildings that are non-compliant with building regulations and for which no prior approval was obtained, as opposed to buildings that are aligned with building regulations but prior approval as has not been obtained.   

• You wil also need to look at exceptions – i.e. where plan approval is not required, and will specifically comment on the position with small structures (‘minor building works’ as defined in the Act) - such as Wendy houses, pergolas and carports. 

• What is the position in sale agreements? Is a clause dealing with building plan approval necessary?  Does the voetstoots clause not cover this?  What is the effect of the CPA in the context, if any?  

• Recent and interesting cases relating to building plans. 

INTRODUCTION

• All building plans must be approved by the local authority in order for the building to be “legal.” 

• If you proceed without approval, then penalties are payable.  The regulations have a list of various transgressions and the penalties payable in respect of each.  It deals with many scenarios – i.e. building without approved plans, building in contravention of a notice, failure to supervised and /or control plumbing work, failure to safeguard demolition work, failure to control dust and noise, and so forth. 

• Before approving building plans, the municipality considers various factors including practical aspects relating to allowed coverage and building lines, as well as general development considerations such as environmental impact and environmental health consequences of the development. 

• The municipality must, after receiving the report of the municipality’s building control officer, in terms of section 7 of the National Building Regulations and Building Standards Act, consider the following: 

“1) If a local authority, having considered a recommendation referred to in section 6 (1) (a)- 

(a) 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; 

(b)          (i) is not so satisfied; or 

(ii) is satisfied that the building to which the application in question relates- 

(aa) is to be erected in such manner or will be of such nature or appearance 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; 

(bb) will probably or in fact be dangerous to life or property, such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal.” 

• In the matter of True Motives v Mahdi (2009), the SCA held that the above section must be interpreted to mean that a local authority must refuse approval of plans where the plans do not comply with the Act and  

any other applicable law, and also when it is satisfied that the erection of a building, in consequence of its approval of a plan, will derogate from the value of a neighbouring property/area will be disfigured/it will be unsightly or objectionable.  Thus, the test imposed by section 7(1)(a) requires the local authority to be positively satisfied that the parameters of the test laid down are met. 

• Municipal approval is very important, because: 

(i) Recent law reports are filled with instances where both neighbours and a municipality have been successful in obtaining orders for demolition of illegally erected buildings/alterations – i.e. any building alteration that have been erected without having the plans formally approved by the local authority/municipality beforehand.  It appears that Courts will readily order demolition where the building contravenes general building standards or zoning regulations and no plan approval was obtained; where the building complies with building standards but no approval was obtained, the courts may lean towards a milder penalty such as a fine.) 

(ii) (ii) A property with building works that were erected without approval is considered a property with a defect. (More on this later on in the talk.) 

• The requirement to obtain approval is therefore not something that prospective sellers or buyers can afford to ignore! 

WHAT IS THE RELATIONSHIP BETWEEN BUILDING PLAN APPROVAL AND ZONING? 

Building Plans

• Building plans are plans showing the size, height and location of the building on an erf, as well as the details of walls, windows and so forth. 

• The municipality checks the plans to ensure that the contemplated building works comply with minimum construction standards and specifications in order to ensure a safe and healthy built environment for all.   

• These standards and specifications are generally laid down in the National Building Regulations and Building Standards Act, 103 of 1977 (‘the Building Act’). 

  

Zoning

• Zoning is something quite different. Zoning has to do with the regulation of areas in a municipality for certain development – it prescribes the type of building that may be erected in given zoning areas.   

• For example, in zoning area A, only single storey residential homes may be erected and may not exceed 60% of the area of the erf; whilst in zone B, only commercial type buildings may be erected and may be double storey and expand over 80% of the area of the erf.   

• In other words, the building regulations prescribe the rules that all building work must comply with; the zoning regulations indicate the use to which buildings may be put in a specific area, as well as ancillary rights, such as roof height, street boundary, maximum floor space, and the like. 

TITLE DEED CONDITIONS AND HOW TO WORK AROUND THEM 

• Residential property title deeds often contain restrictive conditions.  In the context of this talk, the most important of these are restrictions regarding the size, number and placement of dwellings and other buildings that may be erected on the property. 

  

• These restrictive conditions limit an owner’s use and enjoyment of their own property in the sense that they often indicate a limitation or prohibition on some action by the property owner. 

• Some common restrictive conditions include the following: 

1. No building or other structure may be erected within the servitude area. 

2. No large-rooted trees may be planted within the servitude area. 

3. The erf is subject to servitude for transformer purposes. 

4. The erf is subject to servitude for municipal purposes.

 • It is fortunately possible, in terms of LUPA (the Western Cape Land Use Planning Act) to apply to the local authority for removal of the restrictive title deed condition.  

Briefly, the process works as follows: 

(i) Complete and submit an application form, together with supporting documents (such as the title deed, site plan, etc.) and pay the application fee of R 2300). 

(ii) Within 14 – 30 days, the municipality will revert to advise whether or not the application is complete and/or whether any additional information is required. 

(iii) If additional information is requested, the municipality must confirm, within 21 days after receipt of the additional information, whether the application is then in order. 

(iv) Thereafter, the municipality requires the applicant to advertise the application for removal of title deed conditions in a local newspaper (this costs approximately R6840 – e.g. Eikestadnuus) and proof hereof must be furnished to the municipality within 21 days. 

(v) The municipality will also advise the applicant which owners/bodies/persons are interested parties who must receive a letter by registered mail setting out the details of the application for removal of title deed restrictions.  It costs approximately R16 per registered letter, and there can be 100 or more such parties! 

(vi) It will also be necessary to erect a notice board on the property with details of the application displayed thereon. 

(vii) Within 30 days after all these notifications, the applicant must provide proof to the municipality of compliance with the notification requirements. 

(viii) Then, within 14 days, the applicants must be furnished with details of comments received from interested parties to the proposed removal of conditions and the applicant must then respond thereto within 30 days. 

(ix) Thereafter the municipality will refer the matter to the relevant official for decision-making and the latter has to provide the approval/rejection within 60 days. 

(x) Appeal to the Tribunal is possible, where required. 

WHAT DOES THE BUILDING ACT SAY? AN OVERVIEW 

Test that the municipality applies:

• We have referred to section 7 of the National Building Regulations and Building Standards Act.  The municipality must approve plans if they comply with the requirements of this Act and any other applicable law; or must refuse to approve plans if (i) the laws are not complied with or (ii) when it is satisfied that the erection of a building, in consequence of its approval of a plan, will derogate from the value of a neighbouring property/area will be disfigured/it will be unsightly or objectionable.  

The kinds of building activities that require building plans to be submitted for approval? 

• A building plan application must be submitted for any structure, whether this is of a temporary or permanent nature and irrespective of the materials used to build it.  This includes alterations or extensions to existing structures.  Building approval must therefore be obtained for: 

• construction of new buildings 

• alterations, extensions or conversions of existing buildings 

• change in use of existing buildings 

• demolition of existing buildings or structures 

(Partial) Exemptions 

• The only exceptions are so-called “minor buildings” – which generally are buildings smaller than 5m2, which would include most Wendy houses, as well as a pergola, wire fence or open-side fabric-covered shelter for a car, boat or caravan. (See complete list in regulations, page 7).  

• But remember that for these “minor buildings”, application must still be made to the municipality and the municipality must issue a written exemption.  (See Section 13 of Act, attached page 7 and 8) and any such exemption lapses after 6 months if the erection of the building has not commenced.  A municipal building control officer may however extend such period at the written request of the owner of such building if the building control officer is satisfied that there are sound reasons therefore. 

Penalties 

• Remember the penalties that are payable if the process is not followed! 

Who may prepare building plans? 

• In terms of the Architectural Profession Act (Act 44 of 2000), architects, technologists and draughts persons who are registered with the South African Council for the Architectural Profession may prepare building plans.  

Do you always need to inform a neighbour of proposed building works? 

• No (although it is considered good practice), unless the application also includes departure from the zoning scheme regulations (such as building line relaxation, increased bulk/coverage/height etc.) or similar proposals, in which case formal consultation is required. 

For how long is an approved building plan valid? 

• A building plan is valid for 12 months from the date of approval.  One can apply in writing to your local district planning office for an extension before the expiry date.  

What are the consequences of building without approved plans?

• A building inspector may serve an order to stop any illegal building work immediately, which if ignored may lead to a fine or even further prosecution.  Ultimately a court can order that the illegally erected building or structures be demolished. 

• See also cases referred to at the end hereof.  

What is the position in property sale agreements? 

• Sale agreements do not always include a provision requiring a seller to provide proof to a purchaser that there are approved plans in existence for the buildings on the land. (It is also not a validity requirement for registration of the change in ownership.)  

• Approved plans are nonetheless a prerequisite for legally building on a property and the absence of such approval triggers certain penalties, the most severe being an order to demolish the illegally erected building.   

•     Our Courts have also stated that the absence of approved plans constitutes a defect in the property. A voetstoots clause, which is included in most agreements, protects an honest seller from comebacks by a buyer regarding visible and invisible defects in the property.  With regard to invisible (latent) defects, a seller is required to disclose the existence of such defects that he knows of, to the purchaser.  If he fraudulently fails to do so (i.e. knowing that latent defects exist), he may be held liable for damages suffered by the purchaser as a result of the defect.   

•     Therefore, as the absence of approved building plans constitute a defect in property, a seller will not be liable for damages (demolition, fines) that the buyer may suffer if the seller did not know of the defect or did not fraudulently conceal this fact.  This does provide protection to a buyer where the seller acted dishonestly - but practice has shown that it is difficult for a buyer to prove that the seller knew there was a latent defect and fraudulently concealed this from him.   

• If there was no dishonesty, the purchaser may have no recourse.  The basic premise of our law is still BUYER BEWARE, meaning that the buyer must inspect the property before agreeing to buy it, to ascertain whatever defects there may be.  He is also required to ascertain from the municipality whether there are plans in existence for all the building work on the property. 

•     To improve a purchaser’s protection, a property sale agreement should ideally include a provision requiring submission of the existing plans to the purchaser before transfer takes place.  Liability for the costs relating thereto can be negotiated between the seller and purchaser.  

The effect of the Consumer Protection Act: 

• Does the Consumer Protection Act play a role in this scenario?  To a certain extent, yes.  Whilst the Act does not apply to typical (private) sale agreements and the relationship between the seller and buyer in these transactions, it will generally apply to the marketing services performed by the estate agent involved in the transaction.  

• This entails that there must be responsible marketing, honest dealings and no misleading representations.  This is similar to the requirement under the Estate Agents’ Code of Conduct where, in section 4.1.1 of the Code, it is specifically mentioned that an agent must disclose to a buyer “all facts concerning such property as are, or should reasonably in the circumstances be, within his personal knowledge and which are or could be material to a prospective purchaser.”  

 • Estate agents are clearly obliged to market their seller’s property responsibly and with care and it is therefore recommended that agents’ include a clause in their agreement dealing with the existence of approved plans for all the buildings on the property.  Although there is differing legal opinion as to whether there is a legal duty on an estate agent (in terms of the Consumer Protection Act or otherwise) to disclose to a purchaser that approved plans are in existence (or not), it is certainly advisable to make provision for this in the sale agreement.  

Recent court cases:

Case law relevant to this discussion: 

Haviside v Heydricks 

Van Rensburg v Naidoo (DEMOLITION ORDERS ARE VERY REAL) 

Berg River Municipality v Zelpy (PERILOUS TO BUILD WITHOUT PLAN APPROVAL) 

Dyecomber v East Coast Papers (ANOTHER DEMOLITION ORDER) 

Disclaimer: CCH accepts no responsibility for errors or omissions in this article.  This does not constitute legal advice. Please consult an attorney should you require legal assistance.

09 Apr 2018
Author Madelein Williams (STBB)