Gregory Joseph Paola v Jaivadan Jeeva N.O and Others

The appellant owned two adjacent erven in McMahon Avenue, Umgeni Heights, Durban, with an exceptional view. The first and second respondents were trustees of a trust owning neighboring property at Queen's View Place, situated lower and to the south. The trustees sought approval for alterations and additions to their property, which the third respondent (North and South Central Local Council) approved. The proposed development would substantially impair the appellant's view and diminish the market value of his property. The proposed building would be located only nine meters from the appellant's living room and approximately three meters from the northern boundary of the trust property (instead of the required five meters of rear space). Evidence from an estate agent and valuer, which was unrebutted, confirmed significant diminution in the appellant's property value. The appellant's house had been designed and positioned twenty years earlier to maximize the outlook, taking into account the existing development on the trust property at that time.

• Whether the local authority's approval of building plans was invalid due to failure to appoint a building control officer as required by section 5(1) of the National Building Regulations and Building Standards Act 103 of 1977
• Whether the local authority was precluded from approving plans under section 7(1)(b)(ii)(aa)(ccc) of the Act where the proposed building would derogate from the value of an adjoining property
• Whether the plans complied with Town Planning Regulation 19(1) requiring five meters of rear space between a dwelling house and the rear boundary
• The meaning of 'adjoining or neighbouring properties' in section 7(1)(b)(ii)(aa)(ccc) - whether plural means all properties or includes singular
• The meaning of 'value' in section 7(1)(b)(ii)(aa)(ccc) and whether loss of view can constitute derogation from value
• The identification of 'rear boundary' and 'rear space' under the Town Planning Regulations

The appeal was upheld with costs, including out-of-pocket expenses of two counsel. The court a quo's order was set aside and replaced with an order: (a) setting aside the third respondent's decision to approve the amended building plans; and (b) ordering the respondents to pay the costs of the application jointly and severally, one paying the others to be absolved.

The binding legal principles established are: (1) The appointment of a building control officer under section 5(1) of the National Building Regulations and Building Standards Act 103 of 1977 and consideration of that officer's recommendation under sections 6 and 7 constitute jurisdictional facts that are necessary pre-conditions to the valid exercise of power by a local authority to approve building plans. In the absence of these jurisdictional facts, there is no valid approval. (2) Under section 7(1)(b)(ii)(aa)(ccc) of the Act, the word 'value' bears its ordinary meaning of market value, and 'adjoining or neighbouring properties' (being plural) includes the singular by operation of section 6 of the Interpretation Act 23 of 1957. A local authority must refuse to approve plans where the proposed building will derogate from the value of an adjoining property, including derogation caused by impairment of views. (3) Under Town Planning Regulation 19(1), the rear boundary of a property is determined objectively and cannot be altered by the design or orientation of buildings to be constructed on the property. The 'external rear wall' means the wall closest to the rear boundary.

The Court made several non-binding observations: (1) The Court noted it was not necessary at this stage to consider whether an insignificant diminution in value (not so slight as to invoke the de minimis principle) would constitute 'derogation' for purposes of the section. (2) The Court emphasized that the appellant was not contending he had a right to a view being infringed, but rather a statutory right not to have plans approved in circumstances where statute prohibited approval. (3) The Court observed that all parties requested that if the appeal succeeded on the jurisdictional fact point, the Court should also state its views on the other points as they were fully argued and would likely remain in dispute (since a building control officer had been appointed and development was still desired). The Court agreed to state its views but declined to embody them in declaratory relief in the order. (4) The Court rejected without detailed analysis the alternative argument that the trust property constituted a corner stand with two street frontages and side space but no rear space, describing this contention as 'manifestly without substance.'

This case is significant for establishing important principles in South African administrative and planning law: (1) It affirms that statutory requirements for the appointment of officials and procedural steps constitute jurisdictional facts that are essential pre-requisites to the valid exercise of administrative power; (2) It confirms that absence of jurisdictional facts cannot be cured by lack of prejudice or substantial compliance arguments; (3) It establishes that under section 7(1)(b)(ii)(aa)(ccc) of the National Building Regulations and Building Standards Act, derogation from the market value of even a single adjoining property (including diminution caused by loss of view) can preclude approval of building plans; (4) It provides guidance on interpreting building regulations regarding rear space and rear boundaries, holding that these are objective determinations not dependent on building design. The case represents an important limitation on local authority discretion in approving building plans and protects property owners from developments that would significantly diminish their property values.