It's My View

Private Property South Africa
Lea Jacobs

What happens when you buy your dream home, situated on a top golfing estate in the rolling hills of KwaZulu-Natal, only to discover that someone is building an enormous warehouse right next door? Well, in the case of Mount Edgecombe, you go to court in an effort to get the project stopped.

We won't go into all the legalities here, but it does appear from court documents that the industrial-type development had started before all the relevant planning permission had been approved. While the developers of the industrial park maintain that the impact of the warehouse has been greatly exaggerated and that it is barely visible from most of the houses, the homeowners’ association maintains that it will have a detrimental effect on property prices in the area.

In the meantime, work on the 15 metre high warehouse has been halted and the homeowners’ association and the developers hope to settle out of court.

While there is little doubt that a lack of sea view is in question here, it is quite surprising just how hot under the collar people become if the owner of an adjacent property decides to build in such a way that their view is compromised. Numerous court cases have addressed the problem. While the facts of the cases may vary, two issues appear to be prevalent - either the view is affected or the new build is regarded as an eyesore by those presently living in the area.

Views, particularly when they overlook vacant neighbouring properties, should as a rule be regarded as being on loan. Essentially, the courts have in the past found that the rights of an owner to extended views cannot supercede those of a property owner who wants to build a home in line with the restrictions on that property.

In many built-up areas, there is no expectation of having or acquiring a magnificent view at the time of purchasing a property. However, the emotional bond formed with a view underlies the expectation that the dream will remain intact. Mount Edgecombe is a case in point. Homeowners who have chosen to live in this exclusive, up-market development bring certain expectations to the table. They have deliberately distanced themselves from the industrial world and have paid a premium for that privilege. To now have an unsightly industrial development foist upon them is a violation of the 'legitimate question mark' expectation that their paradise would not be violated by something so vulgar.

The question is whether this mindset is justified and coincides with the ongoing spatial planning goals of the authorities. What of the rights of the industrial property owner? The entire exercise is a balancing of rights. Could the blame be laid at the door of the authorities for being insensitive to the potentially devastating effect on the value of high-end properties or perhaps for even deliberately trying to take the wealthy down a peg or two?

Emotional issues aside, this could be a case of local authorities shooting themselves in the foot by unwittingly devaluing expensive properties by giving them unsightly neighbours, thus eroding its own rates base.

In every dispute of this nature, the court walks the unfortunate tightrope of balancing the legitimate versus the unrealistic. How reasonable is it to expect that a luxury development won't be subjected to an industrial neighbour? An underlying question which often remains unasked is what spatial planners are intending by facilitating discordant neighbours?

In the Mount Edgecombe case, is it absolutely necessary to have an industrial development on the doorstep of a country club/golf estate? Is there such a dire shortage of industrial land in the area that it had to be built there, or could there be something more sinister afoot? Or perhaps it merely boils down to lack of planning rather than a deliberate zoning issue.

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