In Da Cruz and Another v City of Cape Town and Another 2017 (4) SA 107 (WCC), the High Court dealt with a challenge to the decision taken by the Municipality to approve building plans.

The body corporate and the owner of a unit in a 17-storey building, called Four Seasons, applied for the judicial review and setting aside of a decision taken by the Municipality to approve building plans. These were for the remodelling and upward extension of a building known as the Oracle.

The plans provided for the construction of additional levels to the Oracle, which would be built flush with the common boundary of the two buildings. The levels would lie right up against the balconies of the apartments of the Table Bay-facing side of the Four Seasons, on the 8^th floor, presenting the residents with a towering brick-wall and effectively converting their balconies into small courtyards. The higher levels would lie about three metres from the windows of the apartments on the 9^th and 10^th storeys.

It was argued that the Municipality had failed to address the requirements of section 7(1)(b)(ii) of the National Building Regulations and Building Standards Act 103 of 1977. These require a local authority to refuse to approve building plans where the construction will lead to the disfigurement of the area, will be unsightly or objectionable, and will derogate from the value of the neighbouring properties.

The High Court held that a local authority must consider not only the technical restrictions and regulatory prescriptions of the proposed construction, but also the contextual effect. This meant that a local authority had to take into account the effect of the development on the existing and foreseeably future development of neighbouring properties.

The approval of building plans entailed a two-part enquiry: (1.) the local authority had to be satisfied that the proposed construction was compliant with the zoning scheme, the National Building Regulations, and any other applicable law; and (2.) the local authority then had to determine whether any of the disqualifying factors under section 7(1)(b)(ii) existed.

It could not be said that development that was permitted under the zoning scheme created an absolute right. It could also not be said that neighbours simply had to tolerate a building erected within the parameters of the zoning scheme, irrespective of the adverse effect on adjacent properties.

In the circumstances, the High Court held that the Municipality had failed to interpret and apply section 7(1)(b)(ii) correctly. The application was granted against the Municipality, with costs.