Getting a demolition order when your neighbour builds without plans

In a nutshell, you can obtain a demolition order (as decided by a recent High Court decision) if your neighbour has started (or finished) building without the necessary municipal approvals. It is important to act without delay though.

Briefly, the High Court case involved a long-running (16-year) property encroachment dispute between a church Mission and neighbouring owners who expanded their house in 2004 by building a brick garage. They thought that they had built on their own land since they built a wall in 1998 along what they genuinely, but mistakenly, thought was the correct boundary between the properties.

The garage was built without municipal plans or approval and inadvertently on Mission land. In 2012, the Mission requested this owner along with another neighbour in the same position, to demolish. The other neighbour complied, but this neighbour refused. In 2014, the Mission laid criminal charges against them for failing to comply with the National Building Regulations and Building Standards Act, but the charges, for purely technical reasons, failed to stick.

In 2016, the Mission turned to the local municipality which issued a formal Notice requiring the garage to be demolished. Again, the owners simply refused to either receive the Notice or to remove the encroaching garage.

In 2017, the Mission approached the High Court for a demolition order. The couple responded by asking the Court to rather order the Mission to transfer the relevant piece of land to them against payment of reasonable compensation.

A court can in terms of common law, allow payment or compensation as an alternative where the cost of removal would be disproportionate to the benefit derived. In this respect, however, the owners' conduct and "obstructive behaviour" played an important role in the Court decision, and while acutely aware of the financial implications, inconvenience and disruption that a demolition would cause, upholding the doctrine of legality, a fundamental component of the rule of law, must inevitably trump personal considerations, the Court said. Allowing the owners to keep the structures would perpetuate the illegality and they were ordered to demolish their illegal garage within 90 days.

Although this case dealt with encroachment on another's land, the courts have applied the same principles to neighbour dispute cases such as sea view obstructions, failure to observe building lines and the like. It is therefore highly recommended that you do not start building without the necessary municipal plan approvals and permissions in place.

The Mission's long history of actively objecting was a vital decider in this case. If you are unhappy with a neighbour's building works and these contravene the laws or affect enjoyment of your property, you should act immediately. Delaying can put you at a disadvantage.

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