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YOUR RIGHT TO A VIEW: FACT OR FALLACY?

Just think, you buy your dream home with the perfect sea view and six months later, your neighbour erects a double story home, blocking your view Is this unlawful or just his right?

Much confusion surrounds the issue of whether a property owner has an inherent "right to a view", after two courts ruled differently on the subject in the last year.

The issue made headlines in 2003 when a certain Mr Paola approached the Durban High Court to prevent his neighbours from erecting a construction that would substantially impair his view of the harbour entrance and the sea. According to the defence attorneys (Smith Tabata), the neighbours had obtained approval from the local authority to build their house, but Paola argued that its presence would diminish the value of his property. The Durban High Court found otherwise and dismissed his case.

Mr Paola then appealed to the Supreme Court, which decided that the local authority's failure to appoint a building control officer invalidated its decision to approve the building plans, and said there was no need to make a finding on other legal points. However, at the insistence of the other parties, the court expressed its opinion as to whether the loss of a view and its effect on a property's market value was something to be considered by a local authority. In Mr Paola's case, it was agreed by the parties that the proposed construction would diminish the market value of his property. Thus, the Supreme Court of Appeal observed that the loss of a view was a factor that should have been taken into consideration by the local authority in deciding whether or not to approve the building plans.

Following this judgment, the observations of the Supreme Court of Appeal were interpreted in the case of Clark vs. Farraday 2004.

Arguing before the Cape High Court, Clark, who owns a home in a private security estate in the Hout Bay area, said that the proposed construction on a vacant plot below his property would have a significant impact on his views over the Hout Bay valley, harbour and beach. Also concerned that the value of his property would be affected, he applied for an urgent interdict.

While the court confirmed that a view contributed to a property's value and that the respondent's new building, once completed, would partially obstruct some of Clark's views, the respondent argued that his dwelling complied with all regulatory requirements, and that when Clark had bought his property, he should have realised that a house could be built on the adjoining site.

When the court analysed the Paola v Jeeva judgment, it concluded that the local authority was obliged to grant approval of building plans if it was satisfied that they complied with the requirements of the National Building Regulations and Building Standards Act and other applicable laws. "The value attached to (another) property cannot be derogated from where the "offending structure" is constructed in accordance with the provisions of the Act and applicable law, particularly where the possibility of same should have been foreseen by the landowner."

"The court further reiterated the well established principle that an owner of land using his property in an ordinary and natural manner is not guilty of committing any injuria, even if, in so doing, he causes damage to the property of others. Accordingly, the respondent in this case did no more than he was lawfully entitled to do in accordance with the provisions of the Act, and it could not be shown that approval of the plans was invalid.

In all probability the last word on this area of law has not yet been spoken, and more cases are likely to be heard by the courts before the consequences of a loss of view become settled in law." Although the above report does not give a finite answer, should you be buying vacant land or a home, research and understand all your options and the restrictions that may be attached to your proposed purchase.