Neighbours appeal against CoW decision

Approval ‘against good morals’

20 February 2020 | Infrastructure

Yolanda Nel – Neighbours of a proposed three storey dwelling in Xena Street, Windhoek, have appealed against the City of Windhoek after the municipal council approved the relaxation of the 5 and 7 meter building line as well as building consent.
A letter was also sent to the minister of regional and local government, housing and rural development earlier this week on behalf of one of the neighbours whose property is directly adjacent to the erf under discussion.
“The owner of erf 2120 was granted permission to erect a three storey house on the property. Furthermore, council on 30 January 2020 resolved to relax the lateral 5 and 7 metre building line. Both these decisions were taken despite both neighbours objections,” the letter reads.
According to the Windhoek Town Planning Scheme, no building or structure or any portion thereof shall be erect closer than three metres to any lateral or rear boundary common to an adjoining erf, except with council consent.
The lawyer, acting on behalf of the complainant, submitted that the reason for the above building line restrictions are to avoid neighbouring properties from encroaching on on each other and the restrictions thereby ensure the protection of the right of privacy. “The erf (in question) is 1 722,18m² in extent. It is our submission that given the size of the erf, the owner should and could have designed his house in a manner that would not have encroached the 5 and 7 metre building line on both sides of the lateral boundary,” the letter reads.
Windhoek Express reported earlier that the owners of the property intend to demolish the existing building and construct a new building. The erf’s typography slopes from east to the west, resulting in a steep slope from the street level.
The letter to the minister indicated that it is a far-fetched statement that due to the topography of the erf, the owner has no choice but to increase the height of the building to three storeys.
“The owner could have built the house on the lower part of the erf and would easily have been able to fit the size of the house on the lower part of the property. We again submit that the owner chose to build a three storey house on the upper part of the property so as to ensure that he has a view from his house. However, by doing so he is robbing our clients of their view,” it read.
Council did however point out that a view is not a right and not protected in any municipal by-law and cannot be enforced.
The neighbour agrees with this statement but points out, through the letter, that while an owner does have a right to property, this right includes protection from conduct by neighbouring property owners whose conduct could diminish another owner’s property rights. “Included in such a right is the value of the property. Where the actions of a neighbour infringes or causes the value of a property to be decreased, such actions are contra bores mores (against good morals) and the aggrieved owner will have a right to claim for damages caused by a property owner.”
The neighbours’ main reason for purchasing their property was for the view for which they paid more than they would have had there been no view. “If the proposed new building is built, our clients’ property value would decrease substantially,” the letter continued, adding that council’s decision to approve the building plans directly affects not only the neighbours right to privacy but also affects the market value of his property.
“As there is absolutely no public interest argument behind this decision, we submit that council acted unreasonably without taking all the facts into account.”
The neighbour has a stamped document that the minister’s office received the letter, but has yet to receive a stamped letter from City of Windhoek.

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