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Clark v Faraday and Another

8 April 2004

Division: Cape of Good Hope Provincial Division
Case No: 8532/03
Judgment date: 12 December 2003
Coram: Van Der Westhuizen, AJ

Summary
The applicant sought an urgent interdict to prevent his neighbour from building a home on his vacant erf on the grounds that it would "substantially impair and obstruct the view from [his] property and cause irreparable harm." He also contended that the building would be so objectionable that it would substantially derogate from the value of his property to such a degree that in terms of s 7 of the National Building Regulations and Building Standards Act, No 103 of 1977 ("the Act"), the local authority should have refused approval of the building plans.

It was common cause that the views from the applicant's property contributed to its value and that after completion the first respondent's new dwelling would impair these views and "derogate from the value". First respondent stated that his new house would more than comply with the building regulations applicable to the area. And that, "were applicant to succeed in this matter, it would mean as a matter of logic that since his house was built earlier in time than the dwelling on the property in front of him, he could enforce more stringent requirements than those pertaining to the are in question, thereby obtaining for himself greater rights than he in fact has."

He submitted further that "... the approach of Applicant and the estate agents whose opinions have been presented to this Honourable Court are fallacious since they fail to take account of the obvious - namely, that Applicant's view was only temporarily unimpeded and the potential always existed that it would be impaired by the dwelling that would one day be built on First Respondent's property."

In his analysis of Paola v Jeeva, Van Der Westhuizen AJ pointed out that it was the failure to appoint a building officer in terms of the Act which was the necessary prerequisite to the exercise of the statutory power to approve building plans. This was not the case here. Applicant failed to show that the building was not constructed in accordance with the Building Regulations and Building Standards Act and other applicable law - Sections 4, 6(1) and 7(1) of the Act - and respondents' arguments were upheld.

The court lastly reiterated the principle that, "an owner (or occupier) of land who uses his property in an ordinary and natural manner is not guilty of committing an injuria (or nuisance), even if by doing so he causes damage to the property of others". So, no injuria = no prima facie right for an interdict.

Full judgement

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