22 Sep 2021

Building illegally? Careful, you may just find yourself out of pocket

by Amanda Gugulethu Zwane, Senior Associate, Durban,
Practice Area(s): Local Government & Administration |

As a homeowner you are entitled to do as you please with your property, however this is only within the confines of the relevant Municipal bylaws. This article will focus on the obligations homeowners must adhere to when they choose to erect or extend their homes, and the consequences of non-compliance with the relevant legislation.

Municipalities are competent authorities as defined in Section 1 of the Spatial Planning and Land Use Management Act No 16 of 2013 (“SPLUMA”) and as such are empowered to grant or approve the right to use land for any purpose specified in their Spatial Development Framework. This means that Municipalities are responsible for ensuring that their development and town planning schemes are complied with.

In terms of section 4(1) of the National Building Regulations and Building Standards Act 103 of 1977, “No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act”. In order for you to erect any structure on your property, you will need to first obtain the written approval from your local authority for your building plans.

The duty of obtaining approval is often left with the architect. At times, assured by your appointed architect that the relevant approval has been obtained, however the ultimate responsibility to ensure that the approval has been obtained remains with you as the homeowner and not with the architect. It is therefore essential that in the exercise of erecting any structures on your property and before any building may commence that you satisfy yourself that you have indeed received such authorisation.

Homeowners who erect any structures on their properties without the relevant approval from their local authorities may be liable to payment of a fine, imprisonment, demolishment of such unauthorised structure and/or a tariff increase in their Municipal rates.

In the case of River Gate Properties (Pty) Ltd vs Asmal 97167/16, 2018, the Respondent had erected units which were meant to be used for student accommodation without the written approval of its local Municipality. The Respondent submitted to the court that they had obtained preliminary approval from the municipality to commence with the building. It was raised by the Municipality that the approval was erroneously granted by an official who did not have authority to give any preliminary approval and thus the conduct was unlawful. According to the Respondent, the Municipality was estopped from raising the invalidity of the approval. The court found that the Respondents had received contravening notices and directives from the Municipality to desist with the unlawful conduct of building without prior approval, yet the Respondents continued with their unlawful conduct.  As such, the court ordered the demolishment of all the unlawful structures. Obviously, each case is decided on its own merits, the courts will not always order the demolishment of illegal structures, but the above case is an illustration of the implications of building illegally.

Further, and in terms of the Municipal Property Rates Act, No.6 of 2004, Municipalities are given the authority to adopt their own rates policies.

Municipalities will therefore from time to time, generally after 4 years, release a general valuation roll. This means that the Municipality will ascribe a value to your property and that will form the basis of the rates payable in terms of that property. Each property is then given a property category rating, i.e., residential, commercial, vacant, unauthorised or Illegal development and abandoned Property or Building etc.  Rates are then levied by the Municipality in accordance with the different categories of properties.

Most rates policies provide that if a property has been developed without authority and is in contravention with any applicable law or regulation, then the Municipality may change its category relating to the rating of the property to be “unauthorised or Illegal development or and abandoned Property or Building” category.

Therefore, proceeding to build and or alter property without the necessary authority may alter the category rating of the property. In the case where there was a change in the category, rates levied on such property would become payable on the date on which the change of category occurred or on the date on which the supplementary valuation roll reflecting the change, was completed, whichever date is the earlier.

Should you require any assistance relating to the above or dealing with your local Municipality, please do not hesitate to contact our dedicated local government team.