There are two new legal decisions which will break new ground and create a new legal landscape in the building sector.

The first one is a Constitutional Court decision:
TRUSTEES OF THE SINCHA TRUST V DA CRUZ AND OTHERS; CITY OF CAPE TOWN V DA CRUZ AND OTHERS [2018] ZACC8
In terms of section 7(1)b(ii)(aa) of the National Building Regulations and Building Standards Act 103 of 1977 a local authority must refuse to approve an application if the local authority – 
“ is satisfied that the building to which the application relates –
(aa) is to be erected in such a manner or will be of such a nature and appearance that –
(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;
(bbb) it will probably or in fact be unsightly or objectionable;
(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties”. (‘the Act”)
A decision maker (usually the Building Control Officer) at the Municipality will usually be asked to decide based on the aforesaid factors, which are often referred to as “disqualifying factors”.
The Municipality approved a development application to build balconies up to the boundary it shared with the property. A 17 storey building was erected with balconies abutting the boundary of the property. The zoning regulations for the area permitted owners to build up to the boundaries of their respective properties. 
The neighbour submitted a development application and sought to build and additional four stories to the structure on the property which consisted of four stories at the time. All stories were to be constructed to the boundary of the property. If implemented the top three stories of the new building would touch the existing balconies on the eighth, ninth and tenth floors of the neighbouring building. The Municipality approved the plans. An interdict was filed and granted. The approval was set aside by agreement between the parties. New plans were submitted, and all parties were given an opportunity to comment. The plans were approved again after a more rigorous process was followed.
An application was filed to review the decision to approve the plans. Binns-Ward J set aside the approval of the plans. An appeal was filed to the Full Court which dismissed the Appeal and a petition for special leave to the Supreme Court of Appeal was unsuccessful. Application for leave to appeal was then filed with the Constitutional Court.
The court pointed out that it was necessary to conduct an objective factual inquiry into the legitimate expectations of a neighbouring party (the “legitimate expectations test”). The Court held that the legitimate expectations applied to all the disqualifying factors and not only to the one relating to ‘derogation of value’.
The Court reminded us that the purpose of the Act is to ensure harmonious, safe and efficient development of urban areas. Local authorities are the caretakers of the community interest in relation to building applications. This impels them to consider the impact of a building proposal on the surrounding area and particularly the neighbours from the perspective of a hypothetical neighbour.
The Court held that the test does not impose an additional duty or administrative burden on the Municipality to consult with the public beyond the requirements of the law.
DIAS V PETROPULOS AND ANOTHER 2018 (6) SA 149 (WCC)
Bozalek J held that a landowner had a right of lateral support to land in its natural state and this right extended to support of the buildings on the land, save where such land had been unreasonably loaded so a to place a disproportionate or unreasonable burden on the neighbouring land.

REFERENCES:

The National Building Regulations and Building Standards Act 103 Of 1977
Trustees of the Sincha Trust V Da Cruz and Others; City Of Cape Town V Da Cruz and Others [2018] Zacc8
Dias V Petropulos and Another 2018 (6) SA 149 (WCC)
De Rebus – January- February 2019.