ROOM WITH A VIEW

You’ve just built your home on a hill overlooking a valley that has a stream running through it. You have a beautiful view of the valley and the stream in particular from the patio of your house. Paradise on earth.

One day while relaxing on your patio you see evidence of building construction work lower down the hill. You investigate more closely and conclude that when the structure in question has been completed, it will obstruct the view you have come to love and enjoy.

Can you do anything to protect your view?

Our law as it currently stands does not provide an automatic entitlement to that view

The only way in which you could protect your view is to show that the proposed development contravenes either an existing servitude, a restrictive condition of title or the provisions of a town planning scheme.

However should this lifeline not be available to you, the proposed development could be attacked on the grounds that the local authority’s approval was defective.

The National Building Regulations and Building Standards Act, 1977 is the applicable law in these circumstances.

The Act provides  inter alia for:

1. The prior approval by the relevant local authority of the erection of any permanent structure.
2. The appointment of a building control officer to process the application for approval.
3. The approval of the proposed structure if it complies with any applicable legislation.
4. The refusal of the application if the local authority is satisfied that the new structure will disfigure the area in which it is to be built, it will be unsightly or objectionable or its erection will detract from the value of adjoining or neighbouring properties or that it will be dangerous. (section 7 (1)(b))
5. The lapsing of the approval if building work has not been started within 12 months.

However, the implementation of section 7 is not without its problems, especially in the context of a landowner’s purported right to a view.

The courts have in a number of judgements pronounced on issues in this regard which include:

1. What is market value?
2. How does the view enjoyed by an owner impact on his property’s market value?
3. Should a local authority take a third party’s loss of view into account in applying section 7(1)(b)?
4. When will a view enhance a property’s value?

Reference to the undermentioned judgements will show that our law is not entirely settled on this subject: 

• Paola vs Jeeva NO 2004(1) SA 396 (SCA)

• Clark vs Faraday 2004(4) 564(C).

• True Motives 84 Pty Ltd vs Madhi 2009 (4) SA 153 (SCA)

• Muller NO vs City of Cape Town 2006(5) SA 415 (C)

• Waterhouse Properties CC vs Hyperception Properties 572 CC(2198/04)(2004)ZAFSC 97

• Camps Bay Residents and Rate Payers Association vs Augoustides 2009 (6) 190 (WCC)

• Searle vs Mossel Bay Municipality(1237/09) (2009)ZAWCHC 10 

• Walele vs City of Cape Town 2008 (6 )SA 129(CC)

If you were to acquire a property with a great view and the theoretical possibility exists that your view may be lost due to a neighbour’s development, your best course of action would be to first check if any servitudes or restrictive conditions of title exist that could be relied on to protect your view should it become necessary.