Enslin N.O. and Others v Municipal Manager: Nelson Mandela Bay Municipality and Others (2431/2013) [2014] ZAECPEHC 83 (4 December 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

Case no. 2431/2013

Date heard: 20/11/14

Date delivered: 4/12/14

Not reportable

In the matter between:

Huisbrecht Johanna Enslin NO......................................................................................First Applicant

Jan Frederick Enslin NO.............................................................................................Second Applicant

Royden B Whitfield NO.................................................................................................Third Applicant

and

Municipal Manager: Nelson Mandela Bay Municipality..........................................First Respondent

Nelson Mandela Bay Municipality..........................................................................Second Respondent

Rosanne Ayliff Burmeister..........................................................................................Third Respondent

Registrar of Deeds.....................................................................................................Fourth Respondent

Review of approval of building plans – method of measurement of side building line – side building line measured from base of building, not eaves of building, to boundary of property – side building line requirement not contravened – method of measuring fire safety distance – measured from building to boundary without reference to distance of neighbouring property from boundary – fire safety distance not contravened – whether potential or actual danger to life or property – applicant’s case speculative – reasonable decision-maker could reasonably be satisfied that no such danger exists – application dismissed with costs.

JUDGMENT

PLASKET J

[1] The applicants are the trustees of the Enslin Family Trust, the owner of erf 737 Mill Park. Port Elizabeth. The third respondent is the owner of erven 733 and 735, now consolidated as erf 1371 Mill Park. This erf adjoins the trust’s property. The applicants have applied to review and set aside the approval of building plans by the second respondent, the Nelson Mandela Bay Municipality (the municipality), that relate to construction that has now been completed on the third respondent’s property.

[2] The applicants allege that the building constructed on the third respondent’s property is built beyond the side building line – in other words too close to the boundary with the trust’s property – and that the fire safety distance is shorter than is prescribed. The essence of the trust’s case, as I understand it, is that the municipality, in approving the plans, committed an error of law (and other reviewable irregularities) by misinterpreting the legislation that provides for side building lines and the calculation of fire safety distances. In addition, it is alleged by the applicants that the municipality could not properly have been satisfied that the construction that was the subject of the plans was not probably or in fact dangerous to life or property.

[3] The trust has applied, in terms of s 9(1) of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA), for condonation, if necessary, for its delay in bringing these proceedings. Section 7(1) of the PAJA provides that applications to review administrative

action ‘must be instituted without unreasonable delay and not later than 180 days after the date’ on which any internal

remedy has been exhausted or, as in this case where no internal remedy exists, ‘on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons’. Section 9(1) allows for the extension of this period either by agreement between the parties or by the court on application. In the latter event s 9(2) provides that condonation may be granted ‘where the interests of justice so require’.

[4] The plans were approved on 13 July 2012 and construction commenced. The plans were amended, to allow for the moving of a braai area to a location further away from the trust’s property, and the amended plans were approved on 16 November 2012. The construction was completed in May 2013.

[5] The first applicant had tried for some time to obtain the approved plans. She finally obtained a partial copy from the third

respondent’s attorney in April 2013. The application was launched in August 2013, within 180 days of the first applicant

obtaining the partial copy of the plans. There is thus no need for any delay to be condoned.

[6] I now turn to the merits.

The side building line

[7] Section 4 of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) prohibits the erection of buildings ‘in respect of which plans and specifications are to be drawn and submitted in terms of this Act’ without the prior approval of the local authority concerned. The National Building Regulations made in terms of the Act set out details relating to plans. They define a building line as ‘a line prescribed in any town planning scheme or any other law designating the boundaries of the area of the site outside of which the erection above ground of any building is prohibited’. The Port Elizabeth Zoning Scheme Regulations (the Zoning Scheme Regulations) set the side building line at 1.5 metres for a building like the one in issue here. (Subject to certain conditions, the municipality may consent to a shorter distance than 1,5 metres.)

[8] It is common cause that the distance from the base of the third respondent’s building to the boundary of her property is more than 1.5 metres. It is also common cause that the distance from the eaves of her building to the boundary is less than 1.5 metres.

[9] The issue that I am required to decide is whether, in order to determine compliance with the side building line requirement, one measures from the base of the building to the boundary of the property or from the eaves of the building to the boundary of the property. This involves an interpretation of the applicable legislation. That legislation is the Zoning Scheme Regulations, as they are the ‘applicable law’ in terms of s 7 of the Building Act.

[10] A building – the structure that may not be erected over a building line – is defined in the Zoning Scheme Regulations,

‘without in any way limiting the ordinary meaning of the word’ as:

‘(1) any structure, whether of a permanent or temporary nature, erected or used for the housing or accommodation of human beings or animals, or for the storage, manufacture or sale of goods and materials, or for the destruction or treatment of refuse or other waste material;

(2) a wall, swimming pool, swimming bath, reservoir, water tower, bridge, summerhouse, hothouse and any structure appurtenant thereto.’

[11] There is no indication in the Zoning Scheme Regulations or, indeed, in the Act as to how the distance from the boundary line to the building is to be measured for purposes of determining compliance with the side building line requirement. Guidance is, however, to be found in a similar matter, Makana Municipality & others v Ruck.[1] The side building line in that case – the Makana Zoning Scheme Regulations being of application – was determined with

reference to the height of a building and the question that the full bench of this court was required to answer on appeal was whether the height of the roof was included in the measurement of the building’s height.[2]

[12] Van Zyl J stated that the process of interpreting legislation is ‘not limited to a purely literal interpretation’ but also involves a consideration of ‘the language used, contextual considerations such as the purpose of an enactment, and a consideration of the Act as a whole’.[3] Then, turning to how the word ‘building’ in the Zoning Scheme Regulations was to be interpreted, he held:[4]

‘I agree with counsel for the appellants that to confine the task of interpreting the phrase “half the height of the building” in regulation 3.4.2 to a simple determination of the ordinary meaning of the word “building” therein, and with reference to what is defined in the Act or the Regulations as forming part of a building for purposes of the Act, is on the facts of the present matter an unduly narrow approach to adopt. The word “building” in the disputed phrase must be read in the context in which it is used in regulation 3.4.2 and the purpose which it serves therein. It is used in the context of serving a particular purpose, namely the determination of height as a yardstick to measure the distance

between the building line and the boundary of a land unit. It accordingly has a specific application. By contrast, on a reading of the definition part of the Act and the Regulations relating to the word “building”, it has a more general application. Its primary purpose is to regulate which structures and constituent parts thereof fall to be regulated by the provisions of the Act and any regulations to be issued in terms thereof. In other words, it is not primarily intended to be used in a technical sense, that is as a standard to determine or establish compliance with specifications or restrictions as laid down in the regulations and directives as contemplated in section 17 of the Act.’

[13] The word ‘building’ had to be understood, he said, in its context. That context was the imposition of restrictions on the use of land by landowners.[5] It also had to be interpreted consistently with its purpose. The purpose of a side building line is to establish ‘a degree of privacy between two neighbouring erven’.[6] Van Zyl J concluded that it is not ‘the roof of a residential property that creates a concern in this regard, but rather the habitable part thereof . . .’.[7]

[14] Even though Makana Municipality & others v Ruck concerned the method of determining the side building line, the approach that is set out is of application to this matter. As the purpose of a side building line is to allow for a measure of privacy between neighbouring erven, the roof plays no part and it is only the habitable part of the building that is relevant for determining whether the side building line has been transgressed. In other words, in order to determine whether a building is compliant with the side building line requirement, a measurement must be taken from the base of the building to the boundary of the property. If this distance is less than 1.5 metres, a transgression has occurred; if it is greater than 1.5 metres, no transgression has occurred.

[15] As stated earlier, it is common cause that if the correct method is to measure from the base of the building to the boundary line, the third respondent’s structure is compliant with the side building line requirement of 1.5 metres. The first attack on the decision to approve the building plans fails.

The fire safety distance

[16] It was argued by Mr Huisamen that the building plans are vitiated by a second error of law in that they authorised the construction of a building that contravened the fire safety distance prescribed by Part T1 of the National Building Regulations read with the South African National Standard (SANS) 10400-T:2011 of March 2011.[8]

[17] The fire safety distance is calculated by way of a formula based on the area of the building’s windows and other openings that face the boundary. It is common cause that the fire safety distance of the third respondent’s building, if calculated on its own, is one metre and that it, having been built in compliance with the side building line of 1.5 metres, is sited beyond the fire safety distance measured from the boundary to the base of the building at its closest point to the boundary. It is also common cause that the fire safety distance of the trust’s building, again if calculated on its own, is 2.4 metres but it is situated about 1.5 metres from the boundary wall and so contravenes the prescribed fire safety distance. (This is as a result of the construction of a second storey many years ago.)

[18] It is argued by Mr Huisamen, who appeared for the trust, that the fact that the trust’s building is too close to the boundary had to be taken into account by the municipality when considering the approval of the third respondent’s building plans and that the situation had to be remedied by insisting that the third respondent’s building had to be constructed still further from the boundary. In other words, he argued, the fire safety distance was the aggregate of the fire safety distances that applied to each property. Mr Euijen, who appeared for the municipality, and Mr Ford, who appeared for the third respondent, argued that this was not the correct interpretation of s 3.73 of SANS 10400-T: 2011, which defines the term ‘safety distance’.

[19] That definition is this:

‘distance provided between any building and the lateral boundary of the site or, where there are two buildings on the same site, the distance provided between each such building and a notional boundary line between them so that spread of fire from one building to another due to the effect of radiant heat will be minimised.’

[20] Mr Huisamen’s argument is that because of the proximity of the trust’s and the third respondent’s buildings to each other, one has to determine the fire safety distance with reference to both buildings and determine the required distance of each to a notional boundary line. On this interpretation the buildings will be 0.91 metres too close to each other. Put differently, the municipality should not have approved the third respondent’s building plans unless they were amended to site her building at least this distance further from the boundary to make up for the fact that the trust’s building is too close to the boundary.

[21] Whether this argument is correct or not depends on an interpretation of s 3.73 of SANS 10400-T: 2011. In my view, it is clear from the language of the section that two situations are envisaged. In the first instance, the fire safety distance, once calculated, is simply measured from the boundary line of the property on which the building is to be constructed. That is the general rule. Where, however, ‘there are two buildings on the same site’, a different method is prescribed. In this instance, one calculates the fire safety distance in respect of each building and then measures these distances from the site of each building to a ‘notional boundary line between them’ in order to determine the safe distance between them. In other words, when two buildings are on the same site, the fire safety distance is the aggregate of each building’s individual fire safety distance.

[22] Mr Huisamen argued that the latter method had to apply in this case, where the trust’s building had been constructed too close to the boundary, in order to properly give effect to the purpose of a fire safety distance. The difficulty I have with this argument is that it flies in the face of the plain wording of s 3.73 of SANS 10400-T: 2011. Moreover, the reason for the distinction between the situation pertaining to a single building on a site and two buildings on the same site is that, in the latter instance, there will inevitably be no structure such as a wall between them to minimise the risk of the spread of fire from one building to the other. That is precisely why a notional boundary has to be determined and why both buildings have to be considered. In the first instance, however, there will inevitably be a wall that separates the building from the neighbouring building. If this case highlights a deficiency in the standard – and on this, I venture no opinion – it is for the appropriate authority to rectify that deficiency by amending the standard, rather than by me reading words that are not there into the standard. If I did so, I would stray beyond the boundaries of the judicial function and be guilty of contravening the separation of powers that is at the heart of the Constitution.

[23] It being common cause that the third respondent’s building is sited more than one metre from the boundary, this challenge to the approval of the building plans fails.

The risk of fire

[24] Section 7(1) of the Act provides:

‘If a local authority, having considered a recommendation referred to in section 6(1)(a) -

(a) is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;

(b) (i) is not so satisfied; or

(ii) is satisfied that the building to which the application in question relates-

(aa) is to be erected in such manner or will be of such nature or 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;

(bb) will probably or in fact be dangerous to life or property,

such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal:

Provided that the local authority shall grant or refuse, as the case may be, its approval in respect of any application where the architectural area of the building to which the application relates is less than 500 square metres, within a period of 30 days after receipt of the application and, where the architectural area of such building is 500 square metres or larger, within a period of 60 days after receipt of the application.’

[25] It is argued on behalf of the trust that the municipality could not properly have been satisfied that the construction of the third respondent’s building was not probably or in fact dangerous to life or property.

[26] The question that needs to be answered, when this issue is boiled down to its basics, is whether a reasonable decision-maker could, acting reasonably, have been satisfied that the third respondent’s building did not constitute a probable or actual danger to life or property.

[27] The allegation that a fire danger exists rests on the opinion of Dr Phillip de Vos, a civil engineer commissioned by the trust. He expressed the view that a fire risk existed because of the mere fact that the trust’s and the third respondent’s buildings were 82 centimetres too close to each other. This risk would be exacerbated by fire plumes being pushed off the vertical by wind. As has been pointed out by the respondents, however, he never inspected the buildings but relied on drawings, photographs and information given to him by the trust’s attorney. He also failed to take into account the fact that a double brick boundary wall acted as a firewall between the two buildings. In addition, Mr Hendrik McLeod, the Head of Fire and Safety in the municipality stated that fire plumes rarely occur in residential buildings. As against the opinion expressed by De Vos, Mr WS Kruger, an expert in fire protection and fire technology, expressed the view that, particularly because of the boundary wall, there is no real danger to life and property.

[28] The trust’s assertion that a real or potential fire threat exists is speculative. That threat has not been established. The mere fact that Kruger, who did inspect the site, has arrived at a contrary conclusion in emphatic terms means that a reasonable decision-maker could reasonably have satisfied himself or herself that there was indeed no actual or potential fire danger to life or property. As a result, the third ground of review has not been established.

The order

[29] For the reasons set out above, the application is dismissed with costs, including the costs of two counsel in the case of the third respondent.

______________________________

C Plasket

Judge of the High Court

APPEARANCES

Applicant: JD Huisamen SC instructed by Greyvensteins

First and second respondents: TMG Euijen instructed by Gray Moodliar

Third respondent: EAS Ford SC and JG Richards instructed by Friedman Scheckter

[1] ECG (undated judgment (case no. 22/11) unreported.

[2] The side building line was, according to reg 3.4.2, to be at least four metres or ‘half the height of the building, whichever is the greater . . .’.

[3] Para 16.

[4] Para 17.

[5] Para 18.

[6] Para 19.

[7] Para 21.

[8] SANS 10400-T:2011 is a standard that applies to fire protection and relates to the National Building Regulations. It is published by the South African Bureau of Standards (SABS).