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Can You Close Down a Neighbour's Business Who Is Not Using The Property According To Land Use Laws?


Can You Close Down a Neighbour's Business Who Is Not Using The Property According To Land Use Laws?

"A bad neighbour is as great a calamity as a good one is a great advantage". (Hesiod, poet of Ancient Greece)

When your neighbour's business becomes unbearable due to constant noise, privacy breaches, or brazenly occupying your driveway, it can push anyone to the brink. No matter the nuisance, if friendly requests, mediation offers, and compromises yield no fruit, the nightmare persists, leaving you with only one option: court.

Legal action might not be ideal for fostering good neighbourly relations, but when forced into a corner, consider drawing inspiration from three recent High Court rulings. In each case, businesses operating illegally on nearby properties faced the consequences of flouting land-use laws.

1.           Running an office in a suburban area.

A construction company's new administrative office in a quiet suburban area ignited a fiery legal dispute. The office, operational from 8 am to 4.30 pm with four staff and occasional visitors, drew strong objections from three residents. They applied for a High Court interdict, arguing that their "keen expectation" of residing in a peaceful, amenity-filled residential area with a distinct character had been shattered by the business's presence. This sentiment, undoubtedly, resonated with many other homeowners in the vicinity.

Crucially, the property's title deed held a restrictive clause: "this erf shall be used for residential purposes only and no trade or business or industry whatsoever shall be conducted thereon." This, the Court declared, rendered the business's operation illegal. Case closed.

However, the property owner and the business mounted a series of defenses against the interdict, all of which were dismissed by the Court:

  •             Suburban Shifts: The argument that the suburb's character was already changing with other businesses, including a shopping mall, was deemed irrelevant. The zoning restriction remained the defining factor.
  •             Rezoning Application: The ongoing application for rezoning and title deed amendment, initiated over a year ago with no objections and even some neighbourly support, held no sway in the face of the existing restriction.
  •             Council Actions: The fact that the local council was already collecting business and commercial property rates from the construction company was irrelevant to the zoning violation.
  •             Nuisance Factor: The claim of causing no disturbance to anyone was inconsequential as it didn't address the zoning breach.
  •             Neighbourly Infractions: Arguments about other property owners potentially flouting zoning regulations were dismissed. The Court emphasized that zoning plans serve the interests of the entire community, not just select residents. All three complainants resided within the affected zone and therefore possessed "protectable interest," granting them the right to enforce the zoning regulations.

2.           Seaside Guest House Approvals Set Aside & Expansion Stopped In Tracks.

A seaside property owner's peaceful life was disrupted when she discovered not only that her neighbors were running a seven-room guest house without municipal permission, but also that they planned to double its size. "Goodbye, privacy," she thought.

Beyond her personal concerns, she worried about the potential consequences for the entire area. Increased traffic, strained stormwater management, and the overall change in character caused by a doubled-sized guest house with eight suites and sixteen parking spaces were major red flags.

The guest house owners, emboldened by their success, applied to the local authority for a permanent departure from zoning regulations (their house being officially zoned "single residential") and removal of restrictive title deed conditions. While the municipality denied removing the title deed restrictions, they surprisingly granted a conditional approval for the guest house's operation.

Undeterred, the homeowner challenged the decision in the High Court. The verdict? The court found that the local town planning scheme at the time of approval (before a newer scheme was adopted) did not grant the municipality authority to approve the construction or operation of a guest house on the property. As a result, the court dismissed the municipal approvals.

In one legal swoop, both the construction and operation of the expanded guest house were declared illegal. The owner, if they still harbor guest house dreams, is forced to start from scratch and submit new applications under the updated town planning scheme. Round 1 goes to the vigilant homeowner, while the neighbors were left with an expensive lesson in overconfidence and the importance of following regulations.

3.           Noisy Nightclubs Silenced And Closed Down, Landlord Scolded By Court.

A university residence was subjected to noise from nearby nightclubs, with students complaining that loud music prevented them from sleeping and studying until the early hours of the morning.

The offending establishments were on property zoned "Use 6: Business 1″ which allowed for the use of the premises as a "Place of Refreshment", such as a café or bar. But these particular businesses fell into the municipality's definition of "nightclub", which put them into the "Place of Amusement" category - for which their zone offered no permission.

Citing their tavern liquor licenses and its mandate for entertainment, the club owners argued for a dual purpose under the zoning scheme. However, the court dismissed their claim: "The provisions of the Town Planning Scheme reign supreme over any terms stipulated in a liquor license."

With their zoning infringement firmly established, the court ordered the immediate closure of the nightclubs. Should they choose to remain open as simple pubs, the volume knob must be turned down significantly, adhering to the stricter noise regulations for their designated zone.

The court's message was not solely aimed at the nightclub owners. Its sharpest rebuke landed on the shoulders of the property's landlord. Instead of enforcing a lease clause prohibiting tenant-induced nuisances, the landlord had, in the court's words, displayed a "supine" attitude. Consequently, the landlord was ordered to take "all reasonable measures" to curb the noise nuisance and, adding insult to injury, share a portion of the legal costs. This is a clear message to landlords: you are not immune to the consequences of your tenants' actions. Ignoring lease clauses prohibiting nuisances can land you in hot water, both financially and legally.

Before you buy a property...

Whether you plan to run a business from the property you are about to buy or are worried that one of your new neighbours might do so in the future, check what zoning and land use restrictions apply to your respective properties before you put pen to paper!

Owners - must you always rezone?

Have your attorney check what title deed restrictions your property is subject to, what your current zoning is and what it allows and doesn't allow. Your local town planning scheme may perhaps let you run a small scale "home enterprise" or "micro business" either without any municipal consent (there will be conditions attached) or with a municipal permit.

Or you may need to formally apply for rezoning and removal of title deed restrictions. Every local authority will have its own rules on this, and the important thing is to comply with them or risk unhappy neighbours applying to close you down.

Author Jooste Heswich Attorneys / Lawdotnews / Miltons Matsemela Attorneys
Published 15 Jan 2024 / Views -
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