Hope NO and Another v Buchanan (CA 83/2012) [2013] ZAECGHC 78 (2 August 2013)

Hope NO and Another v Buchanan (CA 83/2012) [2013] ZAECGHC 78 (2 August 2013)

The court held that, regardless of whether the height of the building was measured from the foundation or the natural ground level, the appellant’s building exceeded the 4 metre height restriction imposed by the registered servitude. The only issue before the court was whether there had been a contravention of the servitude, which was established by the evidence. The appellant’s attempt to amend the order was rejected as the measurement method was not a live issue between the parties and the substantive order for compliance was correct. The appeal was dismissed with costs.

Citation
[2013] ZAECGHC 78
Parties
Appellant: Eugene Llewellyn Hope N.O; Appellant: Claude Stanley Barnes N.O; Appellant: Eugene Hope Family Trust IT 2667/1997; Respondent: Marsha Manne Buchanan
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
2 August 2013
Case Number
CA 83/2012
Procedural Posture
Civil Appeal / Appeal From Order of Tshiki J in the High Court
Outcome
Appeal dismissed with costs.
Judges
Nepgen, Sandi, Lowe
Legal Topics
Servitude Enforcement, Building Regulations, Height Restriction, Measurement of Building Height
Land and Property Civil Procedure Servitude Enforcement Building Regulations Height Restriction Measurement of Building Height

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Eugene Llewellyn Hope N.O

Appellant

Claude Stanley Barnes N.O

Appellant

Eugene Hope Family Trust IT 2667/1997

Appellant

Marsha Manne Buchanan

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Tshiki J in the High Court

Legal Issues

  1. 1 Whether the appellant contravened the terms of the registered servitude by exceeding the 4 metre building height restriction.
  2. 2 Whether the measurement of building height should be taken from the foundation or the natural ground level.
  3. 3 Whether the order of Tshiki J should be replaced or amended based on the measurement method.

Ratio Decidendi

The court held that, regardless of whether the height of the building was measured from the foundation or the natural ground level, the appellant’s building exceeded the 4 metre height restriction imposed by the registered servitude. The only issue before the court was whether there had been a contravention of the servitude, which was established by the evidence. The appellant’s attempt to amend the order was rejected as the measurement method was not a live issue between the parties and the substantive order for compliance was correct. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.