Neighbours behaving badly: Illegal buildings and demolition orders
Category Advice
"The approval of building plans is not a mere formality in town planning and compliance with building standards promote public safety ... The courts should not permit landowners to erect illegal structures on their land and then present the authorities with a fait accompli created by their illegal actions" (Extracts from judgment below)
What do you do if your neighbour starts building next door without municipal plans? A recent High Court decision confirms your right to apply for demolition.
The pensioner who built an apartment block illegally
- A property owner decided to build a multi-story block of eight apartments on his land. According to media reports he is a pensioner who spent his R900,000 pension payout on the project and planned to live off the resultant rentals of some R40,000 p.m.
- The building, which he had told his neighbours was just going to be a garden cottage, was illegal on four counts -
- No building plans were approved by the local Council,
- The structure encroached on building line restrictions imposed in the Town Planning Scheme,
- The structure did not comply with the zoning of the property,
- A restrictive condition in the title deed was contravened in that the title deed permitted only one dwelling on the property and the owner was erecting a second.
- The owner failed to comply with two "stop building" orders from the Council. Then he undertook to cease the works but instead accelerated them.
- Two of his neighbours urgently applied to the High Court to interdict further building, and the Court ordered the owner to demolish the building.
- The owner appealed this order to a "full bench" of the High Court asking for the demolition order to be postponed whilst his application to the Council for rezoning and removal of the restrictive conditions was finalised.
- Although the Council had approved the rezoning of the property it had specifically noted that it did not condone the partly constructed building, which was illegal because no building plans had been approved and the building encroached on the building lines.
- The neighbours, held the Court, had standing to apply for a demolition order, in that although their land had not been encroached upon, their rights had.
- In deciding to exercise its discretion in favour of demolition, the Court noted that the neighbours had taken steps to protect their rights immediately it became apparent that the owner was not constructing a garden cottage but an apartment block. They reported the illegal structure to the Council, and it weighed heavily with the Court that the owner carried on building even when he knew it was an illegal structure.
- The owner must demolish the building.
Bottom line - if your neighbour starts building illegally, take immediate action!
Author: Louw & Heyl Attorneys