IFJ Properties (Pty) Ltd v Brown and Others (70822/2012; 32592/2013) [2017] ZAGPPHC 654 (3 October 2017)

IFJ Properties (Pty) Ltd v Brown and Others (70822/2012; 32592/2013) [2017] ZAGPPHC 654 (3 October 2017)

The court found that the 2012 building plans approved by the municipality were substantially the same as those previously set aside, still reflecting a building with more than one storey in contravention of the Conditions of Establishment and the National Building Regulations. The principle of res judicata applied, binding the parties to the previous court's findings regarding the status of the building levels. The municipality was not entitled to approve plans that did not comply with the applicable legal requirements. However, due to factual disputes and the complexity of the demolition application, the court determined that it could not exercise its discretion fairly on the papers...

Citation
[2017] ZAGPPHC 654
Parties
Applicant: IFJ Properties (Pty) Ltd; Respondent: Geoffrey Allen Brown; Respondent: Yvonne Wilhelmina Brown; Respondent: Andre Radyn; Respondent: Michelle Leigh Radyn; Respondent: Vygeboom County Estates Home Owners Association; Respondent: Albert Luthuli Local Municipality; Respondent: The Appointed Building Control Officer of the Albert Luthuli Local Municipality; Respondent: The Review Board instituted in terms of Section 9 of the National Building Regulations and Building Standards Act, 103 of 1977
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 October 2017
Case Number
70822/2012; 32592/2013
Procedural Posture
Review Application / Judgment on Consolidated Review and Demolition Applications
Outcome
Review application granted; demolition application referred to trial.
Judges
C.P. Rabie
Legal Topics
Building Regulations, Conditions of Establishment, Review of Administrative Action, Demolition Orders, Res Judicata, Municipal Approvals
Administrative Law Land and Property Civil Procedure Building Regulations Conditions of Establishment Review of Administrative Action Demolition Orders Res Judicata +1 more

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Parties

IFJ Properties (Pty) Ltd

Applicant

Geoffrey Allen Brown

Respondent

Yvonne Wilhelmina Brown

Respondent

Andre Radyn

Respondent

Michelle Leigh Radyn

Respondent

Vygeboom County Estates Home Owners Association

Respondent

Albert Luthuli Local Municipality

Respondent

The Appointed Building Control Officer of the Albert Luthuli Local Municipality

Respondent

The Review Board instituted in terms of Section 9 of the National Building Regulations and Building Standards Act, 103 of 1977

Respondent

Procedural Posture

Review Application / Judgment on Consolidated Review and Demolition Applications

Legal Issues

  1. 1 Whether the approval of the 2012 building plans by the municipality contravened the Conditions of Establishment and the National Building Regulations and Building Standards Act.
  2. 2 Whether the principle of res judicata applies to the reconsideration of substantially similar building plans previously set aside by the court.
  3. 3 Whether the court should order demolition of the building exceeding one storey or refer the matter to trial due to factual disputes.

Ratio Decidendi

The court found that the 2012 building plans approved by the municipality were substantially the same as those previously set aside, still reflecting a building with more than one storey in contravention of the Conditions of Establishment and the National Building Regulations. The principle of res judicata applied, binding the parties to the previous court's findings regarding the status of the building levels. The municipality was not entitled to approve plans that did not comply with the applicable legal requirements. However, due to factual disputes and the complexity of the demolition application, the court determined that it could not exercise its discretion fairly on the papers...

Court Disposition

Review application granted; demolition application referred to trial.

Orders

  • The decision by the seventh respondent to recommend approval of building plans for the building constructed by the 1st to 4th respondents on Erf 28 is reviewed and set aside.
  • The approval by the sixth respondent on 25 February 2013 of all building plans submitted by the 1st to 4th respondents for the building on Erf 28 is reviewed and set aside.