Jack and Others v Saldanha Bay Municipality and Others

The applicants and the second respondent lease sites in the Leentjiesklip caravan park on land owned by the Saldanha Bay Municipality. The applicants challenged the Municipality's approvals (in 2019, 2020, and 2022) of building plans for the second respondent's (Jacobs') house on his leased stand. The approvals included the construction of a concrete cellar. The applicants alleged that the approvals were unlawful because they violated a municipal resolution prohibiting permanent structures, did not comply with the National Building Regulations and Building Standards Act, and were granted without the written consent of immediate neighbours as required by the standard lease agreement. The Municipality abided the application. Jacobs opposed it, also challenging the first applicant's standing.

• Whether the first applicant has standing to challenge the building plan approvals given that he is not an immediate neighbour of the second respondent.
• Whether the building plan approvals should be reviewed and set aside on the basis that the immediate neighbours' written consent was not obtained as required by the lease agreement.
• Whether the Municipality failed to consider the municipal resolution prohibiting permanent structures when approving the building plans, including a concrete cellar.
• Whether the Municipality contravened section 7(1)(b)(ii)(aa)(ccc) of the National Building Regulations and Building Standards Act by not satisfying itself that the structure would not derogate from the value of adjoining properties.
• Whether the court should order the demolition of the cellar constructed on the second respondent's stand.

The court granted condonation for the late filing of the answering affidavit, reviewed and set aside the Municipality's building plan approval decisions of 26 September 2019, 7 October 2020, and 18 August 2022. The Municipality was ordered to reconsider the second respondent's May 2022 application or any amended application. The second respondent was ordered to pay the applicants' costs on Scale A.

The written consent of immediate neighbours, as required by a standard lease agreement concluded under section 8 of a municipal by-law, constitutes a jurisdictional prerequisite that the Municipality must consider before approving building plans, and failure to do so constitutes a failure to take relevant considerations into account under section 6(2)(e)(iii) of PAJA. Additionally, a municipal resolution must be paid due heed by a municipality, and failure to consider whether a proposed structure complies with such a resolution renders the approval reviewable under PAJA.

The court observed that 'prima facie it is difficult to conceive of a concrete structure as a temporary edifice' and that the construction of a concrete cellar would appear to be at odds with the 'Use' clause in the lease agreement, though the court did not make a firm finding on this point due to factual disputes and the Municipality's failure to provide input.

The case clarifies that constitutional standing provisions under section 38 of the Constitution apply to reviews of administrative action, displacing more restrictive common-law standing rules. It also establishes that conditions in a standard lease agreement, concluded under a municipal by-law, can constitute mandatory and material conditions that the municipality must consider when approving building plans, and failure to do so renders the approval reviewable under PAJA. The judgment further confirms that a demolition order is not automatically just and equitable merely because an underlying approval is set aside, particularly when the matter is remitted for reconsideration.