Buys v The Executive Committee of Belvidere Manor Homeowners' Association

The applicant, Ms Tricia-Marie Buys, is the owner of unit 27 in the Belvidere Manor Homeowners' Association, a community scheme in Knysna. She sought permission to undertake building alterations to her property, namely an additional enclosed garage/carport. The trustees refused permission in April and May 2021 on the basis that the proposal would overcrowd the erf, conflict with the open design of the scheme, and potentially encroach on neighbouring property. The applicant raised the issue at the December 2021 AGM, after which it was indicated that she should apply directly to the scheme's Architectural Design Committee (ADC) in terms of the guidelines. She had only submitted rough sketch plans and did not provide formal, detailed plans with measurements and specifications, because she wanted approval in principle before incurring the expense of formal plans. The respondent maintained that a proper detailed plan was required before the proposal could be considered and escalated to the ADC and, ultimately, to the local authority. The estate architect also specified the documentation and plan details required. The applicant then applied to the Community Schemes Ombud Service for an order declaring the refusal unreasonable under section 39(4)(e) of the CSOS Act.

• Whether the adjudicator had jurisdiction under section 39(4)(e) of the CSOS Act to declare the refusal of permission for alterations void as an unreasonable resolution.
• Whether the trustees' or scheme decision refusing permission for the applicant's proposed building alterations unreasonably interfered with the rights of an individual owner.
• Whether the dispute was premature because no formal detailed building plans had yet been submitted to the Architectural Design Committee for proper evaluation.
• What relief, if any, was appropriate under section 54 of the CSOS Act in the circumstances.

The application was refused. The applicant was, however, afforded an opportunity to submit formal building plans to the Architectural Design Committee for evaluation and consideration on or before 30 September 2023 in terms of section 54(3) of the CSOS Act. No order as to costs was made.

A CSOS adjudicator will not declare a scheme decision refusing proposed building alterations void for unreasonableness under section 39(4)(e) where the owner has not yet submitted the formal, detailed plans and supporting information required for proper consideration by the competent internal body, such as an Architectural Design Committee. In such circumstances, the dispute is premature, and the adjudicator may refuse the application while granting ancillary procedural relief under section 54(3).

The adjudicator observed that the respondent's process for approval of building plans ought to be streamlined so that plans could be submitted directly to the ADC rather than first to the trustees, in order to reduce uncertainty. The adjudicator also discussed, with reference to Bushwillow Park Home Owners v Fernandes, that estate governing body decisions are subject to norms of reasonableness and that courts may intervene against capricious decisions, although that principle was not ultimately decisive because the application was premature. The remarks on costs, namely that parties generally bear their own costs in section 54 matters and that punitive cost consequences are more typical under section 53, were also non-dispositive observations.

The matter is significant for community schemes jurisprudence because it illustrates the limits of CSOS adjudicative intervention where an owner challenges a scheme's refusal relating to building alterations before the internal approval process has been properly completed. It confirms that a challenge under section 39(4)(e) based on unreasonableness requires a sufficiently developed factual basis, including submission of the formal plans and information required by the scheme's governance structures. The decision also reinforces that HOA and estate decisions are reviewable against standards of reasonableness, but that CSOS will not prematurely interfere before the competent body has had a fair opportunity to consider a compliant application.