ConCourt to rule on building plans

Johannesburg - The Constitutional Court will deliver judgment on Thursday on an application that building plans approved by Hibiscus Coast Municipality be set aside.

Trevor Turnbull-Jackson applied for leave to appeal against a judgment and order of the High Court in Pietermaritzburg, which had dismissed his complaint against the permission granted for a block of flats next to his property.

Pearl Star Investments, which owns the property in Margate, KwaZulu-Natal, submitted building plans for the apartment block in 2003.

It was previously reported that the proposed block of flats would detract from Turnbull-Jackson's sea views, privacy and property value.

The municipality approved the plans and Pearl Star began construction.

Turnbull-Jackson appealed against the approval, but building work stopped only after he was granted an interdict.

In 2005, revised plans were submitted and approved and he again successfully appealed.

A third version of the plans was approved in 2007, and this time Turnbull-Jackson's appeal was unsuccessful. He then approached the High Court seeking a review and for the plans' approval to be set aside.

In the High Court, he questioned the building control officer's impartiality and argued that various provisions of the National Building Regulations and Building Standards Act (BSA) were not followed.

He also submitted that he had been deprived of the chance to make representations before the plans were approved. Turnbull-Jackson argued it was unclear which party needed to prove the presence or absence of disqualifying factors in terms of the BSA.

The High Court dismissed all of the grounds, holding that the onus to prove the presence of disqualifying factors fell on the objector.

The Supreme Court of Appeal denied Turnbull-Jackson leave to appeal.

In February he took the matter to the Constitutional Court.

In addition to the grounds he argued in the High Court, he holds that external sources of information should not be referred to in deciding whether plans should be approved.

The Hibiscus Coast Municipality contends that it is inevitable that the decision-maker would take into account various factors, not limited to submitted documents.

It acknowledges potential uncertainty regarding the onus for proving disqualifying factors, but argues that this makes no difference.