FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ : 170

PARTIES: HIGH DUNE (PTY) LTD

AND

NDLAMBE MUNICIPALITY

MATTHEW ROBERT MICHAEL LESTER

JUNE LESTER

INVESTEC BANK LTD

• Registrar: CA 1811/06

• Magistrate:

• High Court: EASTERN CAPE DIVISION

DATE HEARD: 24/05/07

DATE DELIVERED: 29/06/07

JUDGE(S): Jones J.

LEGAL REPRESENTATIVES –

Appearances:

• for the Applicant(s): ADV: B. Wood & ADV: Paterson

• for the Respondent(s): ADV: S.F. Burger SC & ADV: P.T. Rood

Instructing attorneys:

• Applicant(s): NEVILLE BORMAN & BOTHA

• Respondent(s): WHEELDON RUSHMERE & COLE

NETTLETONS

CASE INFORMATION -

• Nature of proceedings : REVIEW OF PROCEEDINGS

Not reportable

In the High Court of South Africa

(Eastern Cape Division)

(Grahamstown High Court) Case No 1811/2006

Delivered:

In the matter between

HIGH DUNE HOUSE (PTY) LTD Applicant

and

NDLAMBE MUNICIPALITY 1^ST Respondent

MATHEW ROBERT MICHAEL LESTER 2^ND Respondent

JUNE LESTER 3^RD Respondent

INVESTEC BANK LTD 4^TH Respondent

SUMMARY: Application by the owner of adjoining property for the review of an administrative decision of the local authority to approve the building plans of his neighbour – review succeeding, with the consequence of the existence of a house within the local authority’s area for which there were no approved plans – this brings into play the duties of the local authority prescribed by the Building Regulations Act – counter-application by house owner to prevent the local authority in due course from requiring demolition of the house, coupled with an offer to compensate the applicant was held premature and inappropriate in the circumstances because it would pre-empt or confine the further administrative steps which may have to be taken by the local authority.

JUDGMENT

JONES J:

[1] This is an application in terms of s 6 of the Promotion of Administrative Justice Act No 3 of 2000 to review the decision of a local authority (the 1^st respondent) approving certain building plans in respect of a house built by the 2^nd respondent on erf 20 Kenton-on-Sea, and for certain alternative relief in the event of the application for the main relief failing. The applicant is the owner of the house on an adjoining erf, erf 18, whose sea view has been impaired by the 2^nd respondent’s house and who considers that the plans were improperly approved. The 2^nd respondent opposed the application. The 1^st respondent has abided the decision of the court. The other two respondents, cited because of their interest as mortgagees of the 2^nd respondent’s property, did not join in the proceedings and no relief was sought against them.

[2] On the morning of the application the 2^nd respondent withdrew his opposition to the review application. The result was that the applicant became entitled to an order reviewing and setting aside the decision of the local authority to approve the plans, and substituting that decision with a declaration that the plans be not approved. I shall make such an order in due course. It has two important consequences. First, it will result in the existence of a house on erf 20, in the local authority’s area of jurisdiction, for which there are no approved building plans. In these circumstances, the National Building Regulations and Building Standards Act No 103 of 1977 and the regulations thereunder impose duties on the local authority to take appropriate steps to ensure that the position is regularized. Second, it opens the door to the 2^nd respondent’s counter-application in terms of section 8 of the Promotion of Administrative Justice Act. Section 8(1)(d) permits the court hearing an application under section 6 to make an order that is just and equitable, including an order declaring the rights of the parties in respect of any matter to which the administrative action relates. Section 8(1)(c)(ii)(bb) permits a court which sets aside an administrative decision, in exceptional circumstances, to order a party to the review proceedings to pay compensation. Relying on these two subsections, the 2^nd respondent brought a counter-application for a declaratory order that the main residence on erf 20 is not required to be demolished or partially demolished, and an order requiring the 2^nd respondent to pay R600 000-00 (or, as offered during argument, an alternative appropriate amount) as compensation to the applicant. The 2^nd respondent based the counter-application on allegations already contained in the main application. The applicant opposed, also primarily on allegations already made. The issues raised in the counter-application are now the only issues before me. In dealing with them I shall refer to the parties as in the main action.

[3] It is tempting to accept the 2^nd respondent’s argument. It postulated that the circumstances were exceptional, that the relief in the counter-application was just and equitable, and that that relief was the best available solution. It would put an end to the litigation, which both parties wanted. This is the third application for the review of the improper approval by the 1^st respondent of various editions of the plans. The applicant was also obliged to bring an application to interdict further building operations pending the first review application. In the meantime the 2^nd respondent’s house has been built, and has been occupied since 2004. Continued litigation is obviously undesirable. The 2^nd respondent argued further that any harm caused to the applicant can be addressed by compensation which is readily quantifiable, and that this was a more desirable option than demolition or partial demolition because

1. the costs of demolition, the wasted expense resulting from demolition, and the costs of erecting a new residence far outweigh the amount of fair compensation;

2. the cost of the above to the 2^nd respondent is out of proportion both to the reduction in the value of the applicant’s property, and to the extent of any amenity loss caused by obstructing the applicant’s view;

3. there is a risk that demolition will destabilize the dune upon which 2^nd respondent’s house is built, with possible adverse consequences to adjoining houses;

4. the 2^nd respondent has at all times acted in the reasonable and bona fide belief that the plans had been properly approved, and that his house was built in accordance with the plans. His case is that he has in the main been the victim of mistakes by the professional persons who advised him and built his house, and mistakes by the local authority in the process of approving the plans.

[4] There are counter arguments. The applicant did not deny that the best possible outcome of the litigation from its point of view is the demolition of the 2^nd respondent’s house, but its counsel contended that that was not a material consideration. What is material, it was submitted, is that the offer of ‘constitutional damages’ is entirely inappropriate because the provisions of section 8(1)(c)(ii)(bb) were not intended to apply in circumstances such as this, and because the 2^nd respondent has confused ‘constitutional damages’ with delictual damages based on wrongful conduct. It is furthermore not proper to address the consequences of administrative injustice by forcing compensation upon an ‘injured’ party (i.e. a party who is the victim of unjust administrative action) which he has not asked for and which he does not want. According to the applicant, the 2^nd respondent’s arguments of justice, equity, and proportionality were based primarily on the interests of the 2^nd respondent, and did not address the injustice of the administrative decision, or the interests of the applicant, or the interests of the local authority and other residents in requiring compliance with the building laws and regulations in force in the area. The applicant also did not accept the argument about the possible instability of the dune because it was contrary to the 2^nd respondent’s own expert evidence on the point, which was that the house can indeed be demolished or reduced in size although this will be a costly process and will have to be done with considerable care. The applicant also argued that the 2^nd respondent’s plea ad misericordiam, founded on the 2^nd respondent being the victim of negligent advice and workmanship, were irrelevant to the present issues, and counsel pointed out that the 2^nd respondent was at all times aware that the construction of this house in this position would block out a major portion of the applicant’s view.

[5] I believe, however, that it is unnecessary, and indeed undesirable at this point in the proceedings, for me to consider the arguments on the availability of ‘constitutional damages or compensation’ in circumstances such as this, to consider the cases on demolition, or to pronounce on any of the issues referred to above, because there is an obstacle in principle to granting the relief sought by the 2^nd respondent, and if I should purport to deal with any of the related issues, this may pre-empt them being aired more appropriately in other contexts. It is wrong in principle, and also premature, for this court to make a declaratory order which would directly impinge upon or confine the discretion of the local authority in carrying out any of the duties imposed on it by law. The local authority is faced with a house which has been built without approved plans, and a battery of objections has been raised to its construction and to the existing unauthorized plans. One of the objections is a material deviation from the existing plans in respect of height. Another is that the house encroaches over the building line. Then there are allegations that it is built contrary to the restrictive conditions in the title deeds. There are pending applications for the removal of these restrictions, and for a subdivision of erf 20, which are designed to overcome some of the objections made by the applicant, but they may not be granted and, even if they are, they may not achieve their objective. As things are, the 2^nd respondent is in contravention of section 4 of the National Building Regulations and Building Standards Act, and regulation A25 requires the local authority to take positive action to address the irregularity. I should do nothing at this stage which interferes with how it should do so. I cannot pre-judge the issue by assuming that it might order demolition, and then prevent it from doing so. Indeed, demolition is one of the options for which provision is made in section 21 of the Act. It may be that as things turn out it will not be possible for the 2^nd respondent to comply with a regulation A25(10) notice calling upon him to obtain the necessary approval of the local authority because he is not able to produce plans for the house as it stands which are capable of approval. In these circumstances, demolition or partial demolition may be the only practical solution. I do not believe that it is proper for me to pre-empt it. The local authority should have at its disposal all possible options for solving what is likely to continue to be a difficult problem. In my opinion, the counter-application cannot succeed at this stage. An application to court to determine the question of demolition or partial demolition is inappropriate and premature until the local authority has dealt with the matter, all the alternatives have been presented and considered, and demolition or partial demolition is indeed an issue.

[6] In the result there will be the following order:

1. The decision of the 1^st respondent on 14 or 17 February 2006 to approve the 2^nd respondent’s building plans marked 2002/11/300A is reviewed and set aside.

2. The decision referred to in 1.1 above is replaced with a declaration that the aforesaid plans be not approved.

3. The 2^nd respondent is ordered to pay the costs of the review application, which shall include the costs of two counsel.

2. The counter-application is dismissed with costs, which shall include the costs of two counsel.

RJW JONES

Judge of the High Court

26 June 2007