Hansa N.O and Others v Ethekwini Municipality and Others (D5113/24) [2025] ZAKZDHC 33 (23 May 2025)

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FLYNOTES: MUNICIPALITY – Building plans – Height and aesthetics – Wrong assessment of lower level as basement – Municipality acted unlawfully in approving building plans – Functionally a three-level development and not two storeys with basement – Double storey building to be replaced by much larger building with three levels of effectively double volume levels – No assessment of whether proposed design would be unsightly or objectionable – Approval of building plans set aside – National Building Regulations and Building Standards Act 103 of 1977.

 

IN THE HIGH COURT OF
SOUTH AFRICA

KWAZULU-NATAL
LOCAL DIVISION, DURBAN

 

CASE
NO: D5113/2024

 

In
the matter between:

 

FIONA HANSA
N.O                                                  

First Applicant

 

SAMEERA
AHMED HANSA N.O                             

Second Applicant

 

AHMED
MAHOMED HANSA N.O                           

Third Applicant

 

SAYED
AHMED EBRAHIM FAKROODEEN N.O     Fourth Applicant

 

and

 

ETHEKWINI
MUNICIPALITY                                   

First Respondent

 

MOHAMED IQBAL MALEK
N.O                             

Second Respondent

 

MASEEHA NOOR MAHOMED
N.O                        

Third Respondent

 

MUHAMMAD NOOR MAHOMED
N.O                    

Fourth Respondent

 

NAEEMA NOOR MAHOMED
N.O                          

Fifth Respondent

 

RICHARD BRUCE DONACHIE
N.O                       

Sixth Respondent

  

ORDER

 

1. 
The decision of the first respondent to approve the building plans
submitted on behalf of the second to sixth respondents
in respect of
the erection of buildings currently in the process of construction on
the immovable property known as Remainder of
Erf 6[…] Durban,
Registration Division FU, Province of KwaZulu Natal and having the
street address of 1[…] M[…] Road, Morningside, Durban is
reviewed and set aside.

 

2. 
It is declared that the building under construction on the immovable
property is in contravention of the first respondent’s

applicable town planning controls and is unlawful in that:

 

i) 
The building consists
of three storeys, none of which comprises a “basement”
and accordingly does not comply with the
requirement that the
building consist of a maximum of two storeys; and

 

ii) 
Each of the three
storeys exceeds the maximum permitted storey height of 4.5 metres.

 

3. 
The respondents are ordered, jointly and severally, the one paying
the other to be absolved to pay the costs of the application
until 20
May 2024, such costs to include the costs consequent upon the
employment of two counsel, counsel’s fees to be taxed
on Scale
C.

 

4. 
The first respondent is ordered to pay the costs of the application
from 21 May 2024 onwards, such costs to include the
costs consequent
upon the employment of two counsel, counsel’s fees to be taxed
on Scale C.

 

JUDGMENT

 

SHAPIRO AJ

 

OVERVIEW

 

[1] 
The applicants are the trustees for the time being of the 648
Musgrave Trust, which owns an immovable property situated
at 2[…]
I[…] Road, Morningside, Durban[1]
(“the I[…] property”). The second to sixth respondents
are the trustees for the time being of the MLM Family Trust,
which is
building a dwelling on a property which it owns at 1[…] M[…]
Road, Morningside, Durban[2]
(“the M[…] property”).

 

[2]  The applicants
seek orders declaring that the decision of the first respondent (“the
Municipality”) to approve
building plans submitted on behalf of
the second to sixth respondents to build a dwelling on the M[…]
property be reviewed and
set aside, and declaring that the building
under construction at the M[…] property contravenes the
Municipality’s town
planning controls and is unlawful.

 

[3]  The application
is opposed by the Municipality. The second to sixth respondents have
not actively opposed the application,
despite delivering a Notice of
Opposition on 20 May 2024.

 

THE FACTS OF THE
CASE

 

The relative
position of the I[…] and M[…] properties

[4]  I[…] Road and
M[…] Road run more or less parallel to each other in Morningside,
Durban. I[…] Road is to the east
of M[…] Road, closer to the
ocean and lower than M[…] Road.

 

[5]  The land
between M[…] and I[…] Roads slopes relatively steeply down
towards the ocean. M[…] Road is higher and the
land steps down at
the point of a 3 metre-plus retaining wall which forms the boundary
between the two properties. The I[…] property
is nevertheless
higher than M[…] Road.

 

[6] 
Until 2022, the erstwhile (and now demolished) double storey dwelling
that was built on the M[…] property was of reasonable
height and
was set back some distance from the common boundary. The applicants’
property effectively had complete privacy
from the old M[…]
property and even if people approached the common boundary wall,
their view of the entertainment area, front
lawn and swimming pool of
the I[…] property was shielded by the single-storey dwelling[3].

 

The demolition of
the old dwelling, the commencement of the construction of the M[…]
property in April 2022 and subsequent events

 

[7]  In about April
2022, the third applicant noticed extensive building works commencing
at the M[…] property, starting
with the demolition of the existing
dwelling.

 

[8]  Gradually, the
third applicant became concerned that a three-storey building was
being built on the property. A representative
of the MLM Family
Trust, Abdul Noor Mohamed, declined to provide the third applicant
with the approved building plans – and
requests to the
Municipality were equally unsuccessful in this regard.

 

[9]  On 15 April
2023, the third applicant complained to the Municipality in writing
that “a 3 storey building is being
erected on the site”
and enquired “on what basis approval [was] given for a 3 storey
house to be built to tower over
mine… [which]… looks
directly over my pool…”. He did not receive a positive
response to his complaint,
save to be told on 15 May 2023 that the
plans had been approved during June 2022 but that there were
“deviations on the Lower
Ground Floor” and that a
Contravention Notice had been issued.

 

[10]  The exchange
of further correspondence with the Municipality did not advance
matters, and the response ultimately received
was that the zoning of
the property permitted two storeys to be built plus a basement and
that the plans did not require the consent
of neighbours.

 

[11]  The third
applicant arranged for photographs of the M[…] property to be taken
in his presence – some of which
will appear further on in this
judgment.

 

[12]  Further, and
in anticipation of further proceedings, the applicants retained the
services of Mohamed Shoib Sayed, a professional
architectural
technologist, and Lawrence Heinrich Ausmeier, a professional land
surveyor with 45 years of experience. Both Mr Sayed
and Mr Ausmeier
deposed to detailed affidavits in this application.

 

[13]  The M[…]
property is built on three levels, and each level is no less than 4.5
metres high. The dwelling extends over
more than 1200 square metres.

 

[14]  Although
construction of the M[…] property has not been completed, the third
applicant has alleged that the M[…] property:

 

a) 
towers over the I[…] property such that the
living, entertainment and pool areas are visible to anyone who
occupies the M[…] property;

 

b) 
casts a “monstrous” shadow over the
I[…] property from shortly after midday (when previously light
would reach the
property until close to sunset);

 

c) 
is an
eyesore, is visible from the roadside of the I[…] property on
I[…] Road notwithstanding the difference in elevation of
the
properties and deviates from the overall aesthetic / appearance of
the neighbourhood and homes in proximity to it[4].

 

[15]  The applicants
also alleged that the construction has led to a significant reduction
in the value of their property,
from R10.5 million in 2021 to R6.5
million in 2023.

 

[16]  The applicants
relied on valuations provided to them by Barrett Pearson, a full
status property practitioner who has
been in practice since 2008. 
Mr Pearson also deposed to a detailed affidavit in this application.

 

The findings of Mr
Sayed and Mr Ausmeier

Mr Sayed

 

[17]  Mr Sayed was
retained to establish the mean natural ground level, without any
additional earthworks, as it existed prior
to the conception of the
M[…] property.

 

[18]  Mr Sayed was
provided with copies of the approved “as built”
architectural drawings for the erstwhile property,
photographs
obtained from estate agencies and computer screen images from “Google
Maps” which included both satellite
derived aerial images and
images taken from a vehicle roof mounted 360° camera from M[…]
Road at various dates over several
years. He also conducted personal
inspections, viewing the M[…] property from the I[…] property and
from M[…] Road.

 

[19]  Mr Sayed
explained in detail how he was able to determine the natural ground
level surrounding the demolished dwelling
and the process that he
followed in doing so.

 

[20]  According to
Mr Sayed’s investigations, the natural ground level surrounding
the demolished dwelling was 91.65
metres above mean sea level. On the
southwestern side of the property, closest to M[…] Road, there was
a slope downwards from
94.85 to 91.65 metres. This related to a
driveway which existed on the southern boundary leading to the main
entrance of the demolished
dwelling and the small section of raised
natural ground level was restricted to that edge of the property. The
M[…] property
under construction extends partially into that space,
but the encroachment is described as “limited”.

 

[21]  Mr Sayed also
had sight of the approved building plans for the M[…] property. Mr
Sayed expressed the view that there
was no clear indication of the
pre-existing natural ground level on the plans nor was there any
express statement that the lowest
level constituted a “basement”
with reference to the extent to which it was located more than 50%
below the pre-existing
natural ground level. To Mr Sayed, the
approved plans did not provide any basis upon which it could be
determined that the depicted
three-storey building was capable of
valid approval.

 

Mr Ausmeier

 

[22] 
Mr Ausmeier was retained by the applicants to survey the M[…]
property to determine the levels of various points on
the property as
well as the location and gross coverage of the structures on the
property. In doing so, Mr Ausmeier utilised drawings
produced by Mr
Sayed and surveyed the property himself. His surveys were based on
Town Survey Mark[5] 395N1 with a
check onto TSM 352N1 and the connection onto the Town Survey Marks
was done using a Global Positioning System which
is accurate to 2 to
3 centimetres horizontally and 3 to 4 centimetres vertically. All
measurements onto the building were made
using a Trimble M3 Total
Station[6], which is accurate to
2 millimetres both horizontally and vertically.

 

[23]  Mr Ausmeier
determined the following:

 

a) 
the ground level of the new building is located at
90.97 metres above mean sea level;

 

b) 
the storey height of the ground floor of the
building is 4.510 metres (90.97 to 95.48 metres);

 

c) 
the storey height of the first floor (from first
floor to second floor) is 4.64 metres (95.48 to 100.12 metres); and

 

d) 
the storey height of the second floor (from the
level of the second floor to the ceiling, being the underside of the
concrete slab)
is 4.820 metres (100.12 to 104.94 metres).

 

[24]  It is apposite
to set out the Municipality’s responses in its answering
affidavit to the findings of both Mr Sayed
and Mr Ausmeier:

‘9. 
The affidavits by the people referred to as experts do not take the
case of the applicants any further. They are mere observations
made
from photos alleged to have been taken using, inter alia, a drone and
they do not reflect the true state of the structure
in question.
There is no scientific method outlined regarding the manner in which
their conclusions except studying of photos and
making general
observations.

 

Ad para 65 to 75

 

59.  In these
paragraphs the applicants record what they were told by their
“experts” which I have no knowledge
of and the applicants
to the proof thereof.

 

60.  By their own
admission, neither the applicants nor their “experts”
have ever gained access to the building
in question. They simply rely
on the photos they took using a drone.

 

61.  Therefore, the
correctness of their measurements cannot be as accurate as they
purport.

 

62.  The definition
of basement has been given above and the fact that the structure in
question complies with the definition
makes it a double-storey not
three-storey structure

 

Ad para 80

 

67.  I deny the
allegations contained in these paragraphs. As mentioned, the
calculations which the applicants rely on are
not borne out of an
actual site inspection of the structure in question. These are just
estimates derived from the photos taken
by, amongst others, a drone
as they allege.’

 

[25]  The
Municipality did not deal with the allegations contained in the
affidavits of Mr Sayed or Mr Ausmeier at all.

 

[26]  A plain
reading of those affidavits reveals that neither Mr Sayed nor Mr
Ausmeier contented themselves just with relying
on photographs taken
using a drone. Further, access to the building itself did not disable
either gentleman from taking measurements
at points around the
property – or from considering the contents of previous plans.

 

[27]  Both Mr Sayed
and Mr Ausmeier explained the method that they adopted, and Mr
Ausmeier described the equipment that he
used.

 

[28] 
If the Municipality wished to dispute the contents of the affidavits
and factual findings which both Mr Sayed and Mr
Ausmeier made, it was
obliged to address these facts seriously and unambiguously. In
circumstances where both Mr Mohanlal[7]
and Mr Dlamini[8] of the
Municipality effectively claimed specialist knowledge and experience
to which deference was due, and the facts if they differed
from the
applicants’ experts were within their knowledge, a bare denial
of the allegations was entirely insufficient and
did not raise a
dispute of fact[9].

 

[29]  I therefore
accept the findings and calculations of both Mr Sayed and Mr
Ausmeier.

 

THE APPLICABLE
STATUTORY SCHEME

 

[30] 
Both the National Building Regulations and Building Standards Act[10]
and the Municipality’s Municipal Land Use Scheme: Central
Sub-Scheme apply in this matter.

 

[31]  I set out the
relevant extracts of the Act below:

 

4  Approval by
local authorities of applications in respect of erection of buildings

(1) 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.

6  Functions of
building control officers

(1) A building control
officer shall-

(a)   make
recommendations to the local authority in question, regarding any
plans, specifications, documents and information submitted
to such
local authority in accordance with section 4 (3);

(b)   ensure
that any instruction given in terms of this Act by the local
authority in question be carried out;

(c)   inspect
the erection of a building, and any activities or matters connected
therewith, in respect of which approval referred to
in section 4 (1)
was granted;

(d)   report
to the local authority in question, regarding non-compliance with any
condition on which approval referred to in section
4 (1) was granted.

 

7  Approval by
local authorities in respect of erection of buildings

(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.

 

[32]  It is
undisputed that the M[…] property is zoned “Special
Residential: 1200”.

 

[33]  According to
the Development Facilitation Tables contained in section 7 of the
Sub-Scheme, the property is permitted
to have a maximum of two
storeys (excluding a basement).

 

[34]  A basement is
defined in the Sub-Scheme to be:

‘the
lowest part of any building which part is constructed with more than
50% of its volume below ground level. Ground level shall
mean natural
ground level, without any additional earthworks, as it existed prior
to the conception of the building or development
in question.’

 

[35]  A storey
means:

‘that
part of the building which is situated between two floors, or if
there is no floor above it, the underside of the ceiling.
Such storey
shall not exceed 4,5 m for residential purposes. Save that:

ii) 
In the event of a storey being higher than the height as indicated
above, it shall be counted as two storeys;

iii) 
the prescribed height storey, as indicated above, may be relaxed,
provided that the total combined Height and number
of all stories
prescribed in the Development Facilitation Table is NOT exceeded…

v) 
a basement shall not count as a storey.’

 

[36]  “Ground
Floor” is defined to mean:

‘the
storey of a building or portion of a building on or nearest the mean
finished ground level immediately surrounding the building,
providing
it is not a basement.’

 

[37]  So, the
Municipality was:

 

a) 
entitled to approve an application if it complied
with the requirements of the Act and the Sub-Scheme; and

 

b) 
obliged to refuse the application if it was not
satisfied that the application complied with the statutory scheme or
if it was satisfied
that that the building fell afoul of any of the
factors contemplated in section 7(1)(b) of the Act.

 

[38]  Therefore, if
the Municipality approved an application either that did not comply
with the statutory scheme or if it
failed properly to apply the
provisions of section 7(1)(b) of the Act, such a decision would be
unlawful and liable to be set aside
on review.

 

THE APPLICANTS’
COMPLAINTS

 

[39]  I turn to deal
with the gravamen of the applicants’ challenges to the
Municipality’s decision and to the
lawfulness of the ongoing
construction of the M[…] property.

 

[40]  The applicants
complain that the Municipality’s decision to approve the plans
was unlawful and contrary to the
provisions of both section 7(1)(a)
and (b) of the Act and that the continued construction of the M[…]
property is unlawful because:

 

a) 
the building consists of three storeys, none of
which comprises a “basement” and does not comply with the
requirement
that the building consist of a maximum of two storeys;

 

b) 
each of the three storeys exceeds the maximum
permitted height of 4.5 metres;

 

c) 
the building is an eyesore, disfigures or detracts
from the surrounding area and derogates from the value of adjoining
properties.

 

THE SECTION 7(1)(a)
ATTACK – APPROVAL OF THE PLANS WAS UNLAWFUL

 

Was the lowest
level of the proposed building a basement?

 

[41]  The definition
of a “basement” has been set out above.

 

[42]  The definition
in the Sub-Scheme is carefully drawn, and it makes clear that the
determination of “ground level”
is not related to the
level of the road from which persons could gain access to the
property or even to the highest point of that
property, if the
property slopes. If the level was to be determined simply with
reference to the highest and lowest points of the
site and a
determination of whether a part of the building was constructed with
more than 50% of its volume below the highest point
on a property,
the definition would not have included the words from “without
any additional earthworks” to the end
of the sentence. Those
concluding words have meaning.

 

[43]  Applying the
definition of a “basement” in its express terms, it
requires an assessment of what existed at
a site previously.

 

[44]  In this
matter, “ground level” must then mean the level of the
ground as it was when the previous dwelling
existed. The level of the
platform on which the now-demolished dwelling was constructed was
“ground level”. In the
absence of a basement, it had to
be. If a basement was to be constructed on the new dwelling, it had
to have more than 50% of its
volume below the level at which the
demolished house was constructed, or more than 50% below the existing
ground level that sloped
upwards towards the highest point of the
property.

 

[45] 
If the “basement” proceeded upwards from platform level,
and not downwards, it could not be a basement. Even
if part of it did
proceed downwards or part of the existing slope was excavated to
permit construction of the building, that level
could not be
categorized as a basement unless more than 50% of its volume was
below the platform or the existing ground level[11].

 

[46] 
The plans that were submitted to the Municipality on behalf of the
second to sixth respondents[12]
contemplated three levels to the construction, labelled as “Lower
Ground Floor”, “Ground Floor” and “First
Floor”.

 

[47] 
The plan in respect of the “Lower Ground” floor described
inter alia a large entertainment area around an indoor and
outdoor pool. The elevation diagrams (and specifically the Southwest
Elevation
Fire Plan diagram) depict the proposed dwelling being
constructed on level ground towards where the entertainment area of
the property
was to be constructed. The outdoor pool was to be
constructed at a slightly lower level than the entertainment area and
indoor
pool, as evidenced by four steps leading from the
entertainment area down to the level of the outdoor pool.

 

[48] 
The “Lower Ground Floor Plan” submitted to the municipality
did not disclose how much of the “Lower Ground”
level was
to be constructed on the existing platform and how much of that level
would require excavation from the sloping, natural
ground level as it
rose to the highest point of the property.

 

[49] 
In the Municipality’s answering affidavit, Mr Mohanall alleged
that “In terms of the building plans, the
basement is depicted
to be in compliance with the Act” and that the “structure
remains a double-storey house as submitted
in the plans”.

 

[50] 
The confirmatory affidavits of Mr Dlamini[13]
and Ms Norton[14] do not take
the matter any further. They simply confirm the allegations in the
answering affidavit as those allegations relate
to their involvement
in the process of approving the plans.

 

[51] 
I do not agree that the building plans depict a structure that would
be “in compliance with the Act”[15].

 

[52] 
The Southwest Elevation plan reflects a diagonal line marked
“NGL”[16] which
bisects the lowest level of the proposed building from the underside
of the slab above at one end to the finished floor level
of the slab
at the other end.

 

[53] 
The Municipality appears to have accepted that the natural ground
level at site was at the slope depicted in the plan.
This, in the
face of an existing dwelling quite patently built on a level platform
and not on a slope and a level that was going
to contain a swimming
pool, which necessarily required a level surface. Further
information, consideration and assessment was obviously
required.

 

[54] 
The designed finished floor level of the lower level was reflected as
being 91.10 metres above mean sea level. In circumstances
where
natural ground level was no higher than approximately 91.65 metres
above mean sea level[17], the
lowest level was therefore at best only 0.55 metres below natural
ground level[18].

 

[55] 
If the stated height of the level was 4.66 metres[19],
this meant that 4.11 metres of the level was above natural ground
level. There is no logical way that more than 50% of the volume
of
the level could then have been below natural ground level.

 

[56] 
If there was, and the Municipality determined it to be so, no
explanation for this conclusion has been provided and the
Record does
not disclose how such a conclusion could have been reached.

 

[57] 
There is a second way in which the enquiry could have been
undertaken.

 

[58] 
Both the Southwest Elevation Fire Plan[20]
and the Southwest Elevation plan prepared by Mr Sayed and which
superimposed the demolished building on the outline of the new

structure make clear that any part of the “Lower Ground”
level that may have required excavation towards the M[…] Road
side
of the property prior to construction was not near 50% of the total
volume of the level. It certainly did not constitute more
than 50%,
which is what the definition required.

 

[59] 
For convenience, Mr Sayed’s and the submitted elevation plans
are reproduced below in order:

 

[60] 
The applicants estimated that, at most, 12% of the “Lower
Ground” level was below natural ground level[21].

 

[61] 
Even if the percentage is higher than 12%, logic combined with a
rational assessment of the plans and the existing level
of the ground
demonstrate that the lowest level was not more than 50% below natural
ground level.

 

[62] 
If the Municipality did undertake this assessment, it has not alleged
anything about the process it followed, and none
of the documents
contained in the Record do so either. To the contrary, Mr Mohanlal
referred only to the Southwest Elevation plan
depicted above as if it
was dispositive. He did not explain how or why he formed that view,
or how he could have done so in the
absence of a physical inspection
of the site and report by the appropriate official at the
Municipality. He lacked vital information
like the natural ground
level around the property and the proposed level of the lower ground
level at all points of that level.

 

[63] 
It seems to me that the Municipality applied the wrong standard when
assessing whether the lowest level of the proposed
dwelling
constituted a basement[22].
The Municipality did not utilise the existing ground level as it was
prior to demolition of the erstwhile dwelling to determine
whether
the lower level complied with the definition of a basement and
instead mechanically considered the drop between the higher
levels of
the property and the lower levels as they approached the applicants’
property – simply by considering a diagonal
line on a plan
without context and divorced from the reality of the situation.

 

[64] 
This much was confirmed in argument by Mr Mshengu, who appeared on
behalf of the Municipality.

 

[65] 
The plans functionally contemplated a three-level development, rising
from ground level, and this is exactly what was
built. Two of the
photographs of the new dwelling put up by the applicants make this
clear:

 

[66] 
Two of the levels of the dwelling extend above the roof level of the
applicant’s’ one-storey dwelling:

 

[67] 
If two storeys can be seen above the level of a one-storey dwelling –
then almost by definition, the new dwelling
is not two storeys high
with a (majority subterranean) basement.

 

[68] 
In my view, the lowest level of the second to sixth respondents’
dwelling was not a basement as defined and could not
have been
determined to be so on a proper and rational evaluation of the
demolition and building plans and the physical status
quo, together
with a proper consideration of what constitutes a basement.

 

[69] 
It follows that the Municipality acted unlawfully and contrary to the
scheme and the Act in approving the building plans
for the new
dwelling, which constituted a three-storey development (at best, for
the second to sixth respondents) and not a two-storey
development
with a basement.

 

[70] 
The Municipality’s decision to approve the building plans must
therefore be reviewed and set aside on this basis.

 

THE
SECTION 7(1)(b) ATTACK – THE MUNICIPALITY DID NOT SATISFY
ITSELF THAT THE M[…] PROPERTY WOULD BE ERECTED IN A MANNER
THAT
WOULD NOT DISFGURE THE AREA, BE UNSIGHTLY OR OBJECTIONABLE OR
DEROGATE FROM THE VALUE OF ADJOINING PROPERTIES

 

[71] 
The correct approach to the interpretation of section 7(1)(b) was set
out in Walele
v City of Cape Town and Others[23]
.
Given the similarities between the facts of that case and this
application, I have summarised the reasoning of the majority of
the
Court at some length:

 

a) 
Decision-makers must
be satisfied that none of the disqualifying factors outlined in
section 7(1)(b)(ii) will be triggered by the
erection of the building
in question. This is crucial because any approval of plans that
facilitate the erection of a building
which devalues neighbouring
properties is liable to be set aside on review. Approval can be
invalidated on this ground regardless
of whether the decision-maker
was initially satisfied that none of the disqualifying factors would
be triggered. To avoid this
consequence, the decision-maker must be
satisfied that none of the invalidating factors exist before granting
approval. This interpretation
aligns with the obligation to promote
the spirit, purport, and objects of the Bill of Rights, balancing the
landowner’s right of
ownership with the rights of neighbouring
property owners.

 

b) 
The local authority,
acting on behalf of neighbouring property owners, must ensure that
disqualifying factors are absent before
approving plans that
otherwise comply with all applicable laws. The City (in that case)
failed to provide adequate documentation
to support the
decision-maker’s satisfaction regarding the absence of disqualifying
factors. Recommendations from the Building
Control Officer must
contain sufficient detail to inform the decision-maker’s opinion on
disqualifying factors. The decision-maker
must independently assess
the recommendation and cannot merely accept it without verification
of the underlying factors.

 

c) 
The City asserted
that the decision-maker was satisfied before approving the plans that
none of the disqualifying factors would
be triggered. However, this
contention was not supported by the objective facts provided by the
City itself. The documents placed
before the decision-maker did not
reasonably satisfy the requirement that none of the disqualifying
factors would be triggered.
The decision-maker’s satisfaction had to
be based on reasonable grounds, and the mere statement by the City to
the effect that
the decision-maker was satisfied was insufficient.

 

d) 
The determination of
whether the decision-maker was satisfied that the disqualifying
factors would not be triggered entailed a factual
inquiry. The fact
that the Building Control Officer had considered those factors was
irrelevant unless it was established that
this fact was communicated
to the decision-maker. The word ‘recommendation’ did not objectively
indicate what was considered by
the Building Control Officer before
reaching the decision to recommend approval of the plans. The
decision-maker was not entitled
to assume, from the use of this word
alone, that the Building Control Officer had considered the issue of
the disqualifying factors.

 

e) 
The purpose of the
recommendation was to furnish the decision-maker with a basis for
their opinion. The decision-maker was obliged
to assess and be
satisfied of these issues independently. They were not expected to
accept the proposal of the Building Control
Officer without further
verification. The recommendation had to provide sufficient
information for the decision-maker to be satisfied
that none of the
disqualifying factors would be triggered. The facts of the case
demonstrated that the Building Control Officer
had information
concerning the issues which the decision-maker was required to
consider, but this information was not placed before
the
decision-maker. The recommendation is the proper means by which
information on disqualifying factors can be placed before the

decision-maker. The endorsement and signature of the Building Control
Officer did not constitute a recommendation as envisaged
in sections
6 and 7 of the Building Standards Act.

 

f) 
Although the Building
Standards Act did not strictly require this, it was expressed as
being helpful if the Building Control Officer
invited representations
from owners of neighbouring properties about the impact the proposed
building might have on their properties.
This approach would help in
dealing with issues relating to disqualifying factors and
significantly reduce the chances of approval
of plans in cases where
some disqualifying factors existed but were not discovered by the
local authority. The existence of such
factors, if proved,
constituted a valid ground for setting aside the approval after it
had been acted upon, at high cost to all
parties concerned.

 

[72] 
In Turnbull-Jackson[24],
the
Constitutional Court endorsed the reasoning in Walele.
In Simcha
Trust[25],
writing for a unanimous court, Theron J held that Walele
required
“that a local authority must be positively satisfied that there
are no disqualifying factors present” and that
the correct
formulation of the reasons to be given by the local authority was not
that the relevant officials “could find
no reason” to be
satisfied that the building would not disfigure the area or that the
official was “not satisfied”
that the area would be
disfigured. The correct formulation was that the relevant official
was “satisfied that the area will
not
be
disfigured”.

 

[73] 
The process followed by the Municipality is described in the
following terms in the answering affidavit:

‘24. 
After being captured and allocated a plan number, the application was
assigned to [Mr Dlamini].

 

25. 
After due consideration, Mr Dlamini determined that circulation to
external commenting departments and/or persons was
not necessary.

 

26. 
The application was considered by Mr Dlamini in terms of section 6 of
the Act and recommended to me for approval on the
8 June 2022.

 

27. 
After verifying the recommendation and considering the application in
terms of section 7 of the Act, I was satisfied that:
the application
complies with all the legal requirement and that one of the
disqualifying factors will be triggered by the erection
of the
building concerned.’

 

[74] 
This is the sum total of the Municipality’s explanation of the
process followed by both Mr Dlamini and Mr Mohanlall.

 

[75] 
The Record does not contain any reports, either to or from Mr
Dlamini, and the only relevant documents produced by the
Municipality
are the following two forms:

 

[76] 
The recommendation and approval appear, almost literally, to be a
“tick-box” exercise. Certainly, both are
bereft of any
reasoning, assessment or observation.

 

[77] 
There is no information of how Mr Mohanlall satisfied himself that
the disqualifying factors in section 7(1)(b) were
not present or how
he considered Mr Dlamini’s “recommendation” when it
did not actually recommend anything or
explain why the two tick-boxes
that were selected were chosen.

 

[78] 
As in Walele, the plans and limited reports before the
Municipality:

‘could
not reasonably have satisfied the decision-maker that none of the
disqualifying factors would be triggered. None of these
documents
refers to those factors. If indeed the decision-maker was so
satisfied on the basis of these three documents, his satisfaction
was
not based on reasonable grounds. The documents fall far short as a
basis for forming a rational opinion…
The
decision-maker must show that the subjective opinion it relied on for
exercising power was based on reasonable grounds. In this
case, it
cannot be said that the information, which the City admitted had been
placed before the decision-maker, constituted reasonable
grounds for
the latter to be satisfied.’[26]

 

[79] 
This is not to say that municipal officials will always have to carry
out site inspections before being “satisfied”
or that the
submission of plans without more will always fall foul of section
7(1)(b). Each case will turn on its own facts and
what is reasonable
in one application will not necessarily be reasonable in another.

 

[80] 
What is required however is not only that the relevant officials
actively engage with and apply their minds to the section
7(1)(b)
requirements, but that they engage in a demonstrable, sustainable and
rational process whilst coming to their subjective
opinion. Put
differently, the relevant officials must not only apply their minds
appropriately but must be seen to have done so.

 

[81]  On the
information that was before the Municipality, a traditional, double
storey dwelling of 394 square metres that
had fitted in with the
aesthetic of the neighbourhood was going to be replaced by a
significantly larger dwelling of more than
1200 square metres of a
different and more modern design.

 

[82]  The minimum
height of each of the three levels of the proposed dwelling was 4.5
metres, which meant that every level
was effectively double volume.

 

[83]  There was no
attempt to evaluate whether the proposed design of the extremely
large dwelling would disfigure the area
– something that a visit to
the area would have resolved, one way or another. Similarly, there
was no assessment of whether the
proposed design (especially given
its significant size and height) would be unsightly or objectionable.

 

[84]  There was
neither appreciation nor consideration by the municipality of the
effect of such a large structure on the neighbouring
properties or
how it would impact their rights.

 

[85]  The applicants
delivered an affidavit by Mr Pearson, who not only set out his
experience but also explained why, in his
opinion, the building
derogated quite significantly from the value of the I[…] property.

 

[86]  The
municipality dismissed the affidavit as irrelevant, and did not
engage with the allegations notwithstanding the provisions
of section
7(1)(b)(ii)(aa)(cc) of the Act. In the absence of countervailing
evidence, there is no reason to reject Mr Pearson’s
opinions,
and I am satisfied that the M[…] property will probably reduce the
value of the I[…] property.

 

[87] 
Mr Mshengu relied on the judgement in Camps
Bay^[27]
to
argue that a hypothetical buyer would expect that an existing
building on a property could be replaced by a new building that
was
more intrusive. Therefore, he argued that the realisation of a risk
already discounted would generally not have an influence
on the
market price and the fact of such construction would not then on its
own derogate from the value of the subject property.

 

[88]  Whilst this
may be so, the argument ignores the qualification contained in
paragraph [40] of that judgment, to the effect
that:

‘Derogation
from market value…only commences: (a) when the negative
influence of the new building on the subject property
contravenes the
restrictions imposed by law; or (b) because the new building, though
in accordance with legally imposed restrictions,
is, for example, so
unattractive or intrusive that it exceeds the legitimate expectations
of the parties to the hypothetical sale.
In (a) the cause of the
depreciation will flow from a non-compliance with section 7(1)(a). It
is only in the event of (b) that
section 7(1)(b)(ii) comes into
play.’

 

[89]  Both
considerations apply in this case.

 

[90] 
This question was considered in Simcha
Trust[28]
as
well. In the context of a derogation of value, the Court held that a
decision maker:

‘must
be positively satisfied that a hypothetical purchaser of a
neighbouring property would not harbour legitimate expectations
that
the proposed development application would be denied because it was
so unattractive or obtrusive” and that “local

authorities…are the caretakers of the community interest in
relation to building applications [which] impels them to consider
the
impact of a building proposal on the surrounding area and
particularly the neighbours.’

 

[91]  In my view,
Municipality approached the requirements of section 7(1)(b) of the
Act as little more than a formalistic
exercise to which lip service
had to be paid.

 

[92]  There was no
discernible attempt to evaluate the requirements and no rational
basis on which either Mr Dlamini or Mr
Mohanlall could reasonably
have concluded that the disqualifying factors were not present.

 

[93]  On this basis
alone, the Municipality’s decision to approve the plans was unlawful.

 

[94]  In addition
and on the papers before me, and to which no sustainable challenge
was levelled by the Municipality, the
applicants have established
that the proposed dwelling:

 

a) 
will probably disfigure the area in which it was
to be erected;

 

b) 
is unsightly or objectionable;

 

c) 
will probably or in fact derogate from the value
of the I[…] property, which is a neighbouring property.

 

[95]  Three of the
four disqualifying factors contained in section 7(1)(b) are present
and therefore the Municipality’s
decision to approve the
application was irrational and unlawful and must be set aside on
review.

 

IS THE CONSTRUCTION
OF THE M[…] PROPERTY CONTRARY TO THE MUNICIPALITY’S TOWN
PLANNING CONTROLS AND THEREFORE UNLAWFUL?

 

Do the heights of
the building’s storeys as built comply with the Municipality’s
town planning controls?

 

[96]  The applicants
have also sought orders declaring that the building under
construction is in contravention of the controls
in the Sub-Scheme
and therefore unlawful because each of the three storeys of the
building exceeds the maximum permitted height
of 4.5 metres.

 

[97] 
The definition of a “storey” in the Sub-Scheme has been
set out above.

 

[98] 
In terms of the plans that ostensibly were considered by the
Municipality, the height of the lower ground level was 4.66
metres
(from a finished floor level above mean sea level of 91.10 metres to
a finished floor level of the floor above of 95.76
metres).

 

[99] 
In argument, Mr Mshengu submitted that the appropriate way to measure
the height of the storey was from floor level to
the underside of the
ceiling slab above, and that the height of the ceiling slab should
not be taken into account.

 

[100] 
Firstly, this is not consistent with the definition of “storey”,
and, in any event, “storey” is
defined in the National
Building Regulations promulgated in terms of the Act[29]
as “that part of the building, which is situated between the top
of any floor and the top of the floor next above it”.
This
includes the height of the slab between the floors.

 

[101] 
This definition of “storey” will also be relevant below.

 

[102] 
In circumstances where the storey height of the lower ground level of
the dwelling exceeded 4.5 metres, the storey should
have been counted
as two storeys.

 

[103] 
This would have meant that the proposed dwelling was in fact four
storeys and not three storeys.

 

[104] 
Whilst the prescribed height requirement can be relaxed, this can
only be permitted if the combined height of the dwelling
does not
exceed the height or storey level prescribed in the Development
Facilitation Table.

 

[105] 
This relaxation, which was neither sought nor granted, would not have
availed the second to sixth respondents as the
total height of the
development exceeded 13.5 metres, both on the plans submitted and in
fact.

 

[106]  The
application papers also demonstrate that, as constructed, the storey
height of the second level is 4.64 metres,
and the height of the
third level is 4.82 metres.

 

[107]  The storey
height of the third level to the level above, which has been
balustraded, is 5.130 metres.

 

[108]  The
Municipality cannot rely on a deduction of the height of the
respective slabs for the reasons set out above.

 

[109]  Therefore,
each level of the building as constructed contravenes the
Municipality’s town planning controls.

 

[110]  The
Municipality has been aware of this since at least May 2024, when the
application was launched. If the measurement
of each storey was
accurate, there was prima facie unlawfulness in the
construction of the building which merited investigation.

 

[111] 
Instead of investigating these allegations either to compel the
second to sixth respondents to abide by the provisions
of the Scheme
and to cure their unlawful conduct[30],
or to demonstrate that the storey heights do not exceed the maximum
permitted heights, the Municipality has done nothing and has

permitted the conduct to continue unabated.

 

[112]  On the papers
before me, I can safely conclude that building as constructed
contravenes the Scheme and is therefore
unlawful.

 

[113]  Mr Mullins
SC, who appeared together with Ms Ploos Van Amstel for the applicants
did not persist in arguing that the
buildings on the M[…] property
exceeded the maximum permitted coverage of 40% of the site area, and
I make no findings about
this aspect of the application.

 

COSTS

 

[114]  The
applicants have been successful in respect of all the relief that
they sought.

 

[115]  There is no
reason why costs should not follow the result.

 

[116]  The second to
sixth respondents did not actively oppose the application and
therefore are only liable for the costs
of the application until the
delivery of their Notice of Opposition.

 

[117]  Given the
issues at play in the application and the importance of the matter to
the applicants, the employment of two
counsel was warranted.

 

ORDERS GRANTED

 

[118]  I grant the
following orders:

 

1. 
The decision of the
first respondent to approve the building plans submitted on behalf of
the second to sixth respondents in respect
of the erection of
buildings currently in the process of construction on the immovable
property known as Remainder of Erf 6[…] Durban, Registration
Division FU, Province of KwaZulu Natal and having the street address
of 1[…] M[…] Road, Morningside,
Durban is reviewed and set
aside.

 

2. 
It is declared that
the building under construction on the immovable property is in
contravention of the first respondent’s
applicable town
planning controls and is unlawful in that:

 

(i) 
The building consists
of three storeys, none of which comprises a “basement”
and accordingly does not comply with the
requirement that the
building consist of a maximum of two storeys; and

 

(ii) 
Each of the three
storeys exceeds the maximum permitted storey height of 4.5 metres.

 

3. 
The respondents are
ordered, jointly and severally, the one paying the other to be
absolved to pay the costs of the application
until 20 May 2024, such
costs to include the costs consequent upon the employment of two
counsel, counsel’s fees to be taxed
on Scale C.

 

4. 
The first respondent
is ordered to pay the costs of the application from 21 May 2024
onwards, such costs to include the costs consequent
upon the
employment of two counsel, counsel’s fees to be taxed on Scale
C.

 

SHAPIRO AJ

 

Appearances

 

Counsel for
Applicants:          
Mr SR Mullins SC with

                                               

Ms Z
Ploos van Amstel       

 

Instructed
by:                         

Fakroodeen & Randeree Attorneys Inc  

                                               

(Formerly
Zain Fakroodeen & Associates)

                                               

331
ST.
Thomas Road

                                               

Durban

                                               

Tel.:
031 201 8897

                                               

Email:
mr@lawfr.co.za
/

                                               

hafsah@lawfr.co.za

 

Counsel for
Respondents:       Mr K Mshengu

 

Instructed
by:                          

Nompumelelo Hadebe Inc

                                                

Suite
1202, 12^th
Floor

                                                

Metlife
Building

                                                

391
Anton Lembede Street

                                                

Durban

                                                

Email:
litigation@nhadebeattorneys.co.za 

 

Date
Judgment Reserved:       05 May 2025

 

Date
Judgment Delivered:       23 May 2025

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