Philip & Dorita Van Schanke v The Executive Committee of Whale Rock Gardens Homeowners' Association and Michael Marriott

The applicants, Philip and Dorita Van Schanke, are owners of Erf 9291 in the Whale Rock Gardens scheme in Plettenberg Bay and members of the Whale Rock Gardens Homeowners' Association (WRGHOA). The first respondent is the executive committee of the HOA, and the second respondent, Michael Marriott, owns the neighbouring Erf 10783. The dispute concerned shrubs and bushes, including Bitou bush and/or Cape Honeysuckle, planted on common property between the applicants' and second respondent's properties, allegedly by the second respondent to create privacy. The applicants contended that this planting, together with sprinklers installed there, obstructed the walkway and access to the common-property swimming pool area and caused water to spray onto their windows. They also complained that the adjacent green belt and walkway on common property were overgrown and inadequately maintained. The HOA acknowledged that, historically, owners had been allowed or encouraged informally to plant vegetation on common areas, although this was not strictly in accordance with the scheme rules, and that a decision had been taken about two years earlier to remove all Bitou bush. During an inspection in loco, the applicants indicated that they would accept removal of the existing Bitou bush and replacement with Cape Honeysuckle placed closer to the second respondent's boundary so as to create more space on the walkway; the parties appeared broadly amenable to that proposal, subject to committee approval.

• Whether the second respondent's planting of shrubs/bushes on common property and installation of sprinklers constituted a nuisance under section 39(2)(a) of the CSOS Act.
• Whether articles or vegetation placed on common or private areas had been placed illegally so as to justify a removal order under section 39(2)(d).
• Whether the HOA had failed to apply or regularise its governance documentation so as to justify relief under section 39(3)(a), (b) or (c).
• Whether the HOA should be ordered under section 39(6)(c) to carry out specified works on common areas for the use, convenience or safety of owners or occupiers.
• Whether the second respondent should be compelled under section 39(6)(g) to accept obligations regarding a defined part of common area.
• Whether, despite refusal of the substantive relief sought, the adjudicator could make an ancillary order under section 54(3) of the CSOS Act.

The applicants' application for relief under section 39(2)(a) and (d), section 39(3)(a), (b) and (c), and section 39(6)(c) and (g) of the CSOS Act was refused. The first respondent was ordered, in terms of section 54(3), to convene a trustee meeting on or before 31 October 2023 to discuss the removal of the shrubs/Bitou bushes between the applicants' and second respondent's properties and their replacement with Cape Honeysuckle within a reasonable time period. No order as to costs was made.

A CSOS adjudicator may not grant substantive relief unless the evidence sufficiently establishes entitlement to one of the remedies authorised by section 39 of the CSOS Act. In disputes concerning alleged nuisance within a community scheme, the test is whether there is an objectively unreasonable and material interference with another owner's rights, judged by balancing the relevant interests and circumstances. Where that threshold is not met, the application for substantive relief must fail, but the adjudicator may still issue appropriate ancillary directions under section 54(3) to facilitate resolution of the dispute.

The adjudicator made broader observations that the HOA had not always been administered strictly in accordance with its rules in the past; that the 2022 constitution was still awaiting municipal approval due to proposed changes by two body corporates; that owners had historically been encouraged to plant vegetation on common areas to create a green belt; and that the green belt and walkways were visibly overgrown and in need of maintenance. The discussion of nuisance doctrine, including the citations to various neighbour-law cases and the quotation from JRL Milton, was largely explanatory of the applicable principles beyond what was strictly necessary for the narrow order ultimately made.

The decision is significant in the community schemes context because it illustrates the limited statutory jurisdiction of CSOS adjudicators: they may grant only the forms of relief authorised by section 39, although ancillary directions may still be made under section 54(3). It also shows how common-law nuisance principles are applied in HOA disputes involving planting and use of common property, and confirms the contractual nature of estate governance rules in homeowners' associations. The case is a useful example of CSOS preferring a practical management solution over intrusive final relief where the evidence does not sufficiently establish entitlement to the substantive orders sought.