Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another

The first respondent (Harrison), a property developer, owned Erf 590 in Camps Bay. The municipality (second respondent) approved her building plans in January 2005 under Plan No. 480217. The second appellant (PS Booksellers), owner of a neighbouring property, objected to the construction, alleging contraventions of zoning scheme and restrictive title deed conditions regarding building set-back and height requirements. After various objections and revisions, the municipality approved a revised plan (Plan No. 485042) in September 2005. The appellants obtained an interdict in 2006 and succeeded in having the September 2005 plan set aside through a section 62 appeal under the Municipal Systems Act. Harrison then submitted another revised plan (Plan 506011), which was approved in September 2007. The appellants applied to review and set aside this approval, alleging contraventions of title deed conditions, zoning scheme height restrictions, and procedural unfairness. The High Court dismissed the review application.

• Whether the municipality's approval of the building plan complied with section 7 of the National Building Regulations and Building Standards Act 103 of 1977
• Whether the decision-maker gave due consideration to the appellants' objections as required by administrative law principles
• Whether the building plan contravened restrictive title deed conditions regarding building set-backs
• Whether the building plan contravened section 98 of the Zoning Scheme Regulations regarding the 10 metre height restriction
• Whether the building plan contravened section 47 of the Zoning Scheme Regulations regarding building lines
• Whether the approval of a 'rider plan' was lawful under the Building Standards Act
• Whether the appellants' delay in raising certain challenges should preclude relief

The appeal was dismissed with costs, including the costs of two counsel.

The binding principles established are: (1) A decision-maker in approving building plans under section 7 of the National Building Regulations and Building Standards Act may lawfully rely on the expertise and advice of officials (particularly the building control officer's recommendation) provided the decision-maker is fully apprised of interested parties' representations and does not abdicate responsibility for making the ultimate decision. (2) The Building Standards Act and Regulations implicitly authorise local authorities to approve amendments or alterations to previously approved building plans ('rider plans'), notwithstanding the absence of express reference to such plans in the Act. (3) A court has discretion to refuse to set aside an invalid administrative act where there has been unreasonable delay in bringing the challenge, particularly where: (a) the delay is inordinate and unexplained; (b) the infraction is minimal; (c) the respondent has acted in reliance on the approval; (d) substantial prejudice would result from setting aside the act; and (e) the applicant's conduct demonstrates lack of genuine concern about the specific illegality. (4) In motion proceedings, a party cannot rely on passages in annexed documents to establish grounds of review where the conclusions sought to be drawn have not been canvassed in the affidavits; new grounds cannot be raised for the first time on appeal. (5) What constitutes fair administrative procedure depends on the circumstances of each case, assessed under section 3 of PAJA.

The Court made several non-binding observations: (1) The appellants' conduct throughout the litigation showed intractability while Harrison attempted to address their concerns. (2) Had the appellants genuinely been concerned about the building line encroachment, there was no acceptable explanation for why their array of experts failed to detect it at the outset. (3) The infraction of the building line was so minimal that it went unnoticed even by experts until litigation was well advanced. (4) There was not the slightest prospect that the building line infraction would impact meaningfully on the aesthetics or future development of Camps Bay. (5) The Court expressed the view that the purpose of title deed set-back restrictions was to prevent building too close to street lines, which had not occurred in this case where the wall merely benefited the municipality on municipal land. (6) The Court noted that determining whether the actual building constructed (as opposed to the approved plan) complied with height restrictions might prove 'unwinnable' for the appellants on available evidence, though this fell outside the scope of the review proceedings.

This case is significant for several reasons: (1) It clarifies the procedural requirements under the National Building Regulations and Building Standards Act 103 of 1977, particularly regarding the role of building control officers and decision-makers in considering objections to building plans. (2) It confirms that 'rider plans' (amendments to previously approved plans) are lawful under the Building Standards Act regime, even though not expressly mentioned in the Act. (3) It demonstrates the court's discretion to refuse to set aside administrative action even where there is an illegality, where the applicant has delayed unreasonably in bringing the challenge and other equitable considerations favour the respondent. (4) It applies and develops the principles from Oudekraal Estates regarding when courts should exercise discretion to refuse to set aside invalid administrative acts, balancing legality against certainty, reliance, and prejudice. (5) It illustrates that new grounds of review cannot be raised for the first time on appeal where they were not properly pleaded in founding papers, even if mentioned in annexures. (6) It provides guidance on interpretation of zoning scheme regulations and restrictive title deed conditions in the context of building development.