MDA Law
Trustees of the Simcha Trust v Da Cruz and Others
Trustees of the Simcha Trust v Da Cruz and Others[1]
This Constitutional Court judgment concerns the interpretation of section 7(1)(b)(ii)(aa)(aaa)-(bbb) of the National Building Regulations and Building Standards Act[2] (the “Act”) and whether the legitimate expectations test applies to the disqualifying factors found in this section.
Facts
The applicant in this case (the “Trust”) owns a property in Cape Town. The first respondent is Mr Da Cruz who is the owner of the Four Seasons sectional title scheme which neighbours the Trust’s property.
In June 2014, the Trust submitted development plans to the City of Cape Town Municipality (the “Municipality”). The Trust was required to publish their plans and invite comment on the impact on the heritage of the area. The Municipality invited owners of surrounding properties (including Four Seasons) to comment. The Municipality received a number of submissions who opposed the Trust’s application. Despite this, the building control officer recommended that the plans be approved and the head of the Municipality’s Building Development Section (Mr Henshall-Howard) approved the plans on the same day.
Four Seasons instituted review proceedings in the High Court. The court set aside the decision of the Municipality on the grounds that inter alia Mr Henshall-Howard failed to consider whether the proposed development gave rise to any of the disqualifying factors in section 7(1) of the Act.
The Trust and the Municipality appealed to the full court, which dismissed the appeal. A petition was made to the Supreme Court of Appeal which was unsuccessful and thus the Trust and Municipality applied to the Constitutional Court for leave to appeal.
Law
Section 7(1)(b)(ii)(aa) of the Act states that a local authority must refuse to approve an application if the local authority:
“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”
The legitimate expectations test is the means by which a decision maker determines whether there will be a derogation in value, enough to disqualify a building application under the Act. The 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 intrusive.
Parties’ Arguments
The Municipality and Trust argued that the legitimate expectations test is suited to derogation of value rather than disfigurement of an area.
Mr Da Cruz and the Four Seasons submitted that the test is not limited to derogation of value and concerns the legitimate expectations of neighbours and the community in general.
Application
Section 7(1)(b)(ii)(aa) affords a local authority a broad discretion to consider a range of factors. This discretion is not unrestricted. The legitimate expectations test requires the decision maker to consider the impact of the proposed development on neighbouring properties from the perspective of a hypothetical neighbour. The legitimate expectations test is consistent with the objects of the Act and the constitutional requirement of just administrative action.
Conclusion
The legitimate expectations test is the appropriate means through which to establish the existence of the disqualifying factors in section 7(1)(b)(ii)(aa)(aaa)-(ccc) of the Act.
[1] (CCT125/18; CCT128/18) [2019] ZACC 8 (19 February 2019).
[2] Act 103 of 1977.
By Kelly Stannard
