By Michael Dafel on 27 January 2014

This matter arises out of a decision of the Hibiscus Coast Municipality to approve building plans submitted by Pearl Star Investments who seeks to develop their property for commercial gain.  Adjacent to the developer’s property is Mr Turnbull-Jackson’s property.  Mr Turnbull-Jackson is aggrieved by the approval of the building plans as he alleges that the building will cut off his ocean view causing his property value to decrease.

Mr Turnbull-Jackson sought to have the approved building plans set aside in the Pietermaritzburg High Court on various grounds.  The application was unsuccessful, and the Supreme Court of Appeal refused leave to appeal.

In the Constitutional Court, Mr Turnbull-Jackson forwards five grounds for setting aside the building plans.

First, the final approver of the building plans at the Municipality had to recuse himself from the decision as he was biased. Mr Turnbull-Jackson contends that the approver’s decision was ‘not logically connected to the documents’ submitted for review and the only conclusion that can be drawn was that the approver was not impartial.  In support of this argument, it is alleged that some sort of cover-up story was created by the Municipality to hide the fact that it was the approver who made the decision.  Citing the legal test for bias, namely that the person apprehending the bias and the apprehension itself must be reasonable, the Municipality argues that this claim must fail.  The facts do not support a suspicion of bias, and the sources relied upon by Mr Turnbull-Jackson are ‘bizarre’.

Second, the approver was not entitled to refer to external sources of information in making his decision to approve the plans.  This contention relates primarily to the fact that the approver had authorized plans on the same property two years earlier.  Mr Turnbull-Jackson is aggrieved that information obtained during that process was considered in the application of the new building plans.  The Municipality argues that it is inevitable that an administrative decision-maker will take into account a variety of information in making a decision, and this information is not limited to the documents submitted.  In any event, the law requires administrators to take in account all information that is material to a decision.

Third, the law is not clear, due to conflicting SCA and Constitutional Court decisions, on who must prove a disqualifying factor in terms of section 7(1)(b)(ii) of the Building Standards Act.  A disqualifying factor is a characteristic that automatically prevents the approval of the building plans.  The High Court in this matter found that it is the objector who must prove the disqualifying feature.  Mr Turnbull-Jackson submits that if this is the case, then he should have been entitled to make representations during the decision making process.  The Municipality acknowledges a potential conflict in legal opinion on this issue, but argue that it makes no difference in this case as the more preferential standard to Mr Turnbull-Jackson, namely that the Municipality must be positively satisfied, was met in this case.

Fourth, the Building Control Officer’s (BCO) recommendation, which serves as the approver’s ‘primary source of information’, were in this matter faulty as it contained incorrect and contradictory information.  The Municipality argues that the recommendation in this case complies with the law and that it furthermore reveals that all relevant information was considered by the BCO.

Last, the approver’s decision to accept the plans usurped the power of the High Court.  Mr Turnbull-Jackson and the property developer entered into an agreement in which the developer undertook not to submit plans to the Municipality until the High Court had determined certain issues relating another proposed building.  The Municipality was not part of that agreement, and the Municipality therefore argues that it is not precluded from reviewing building plans submitted.  Moreover, a municipality may not ‘contract out’ of its statutory obligations.

The property developer also contests these allegations on similar grounds.  On the last ground, the property developer submits that this issue had been rendered moot as fresh proceedings were instituted.

It bears mentioning that there are seemingly significant disputes of fact between the parties which could possibly impact the outcome of this case.   The Constitutional Court has therefore ordered the parties to indicate where the factual contestations lie.