Appropriate Internal Appeal Mechanisms for Approval of Building Plans: Exploring the Gaps Left by the Constitutional Court

Keywords: South African municipalities, building regulations, exclusive executive powers, building plans, review of municipal decisions

Abstract

This article explores the gaps left by the Constitutional Court's jurisprudence in relation to what the appropriate internal appeal mechanism should be at the level of municipalities for the approval of building plans. This follows the unanimous judgment of the Constitutional Court in City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC) in which the Court found section 9 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act), subjecting municipal building decisions to appeal by a "Review Board" appointed by the Minister of Trade and Industry, to be inconsistent with the original constitutional powers of municipalities over planning and building regulations. We argue that although the ground for holding section 9 of the NBR Act unconstitutional is already deeply entrenched in the Court's planning jurisprudence, the judgment has left a whopping gap on where prospective/future appeals can be lodged and the nature of such an appeal mechanism, where municipal officials disapprove building plans in terms of section 7 of the NBR Act. It is submitted that the invalidation of section 9 by the Court has completely left it up to each individual municipality to decide on whether and how an internal appeal for the approval of building plans is to be pursued. After exploring the options available in terms of other local government legislation, we argue that the most appropriate way to close the gap left by the Court is for Parliament to enact an amendment to the NBR Act providing for an internal appeal mechanism that allows for a measure of coherence and uniformity across municipalities, and yet respects the autonomy of local government.

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Author Biography

Oliver Fuo, Faculty of Law at the North-West University

Dr. Oliver Fuo is Associate Professor in the Faculty of Law, North-West University, Potchefstroom Campus. His areas of expertise include: Local Government Law; Socio-Economic Rights Law; and Constitutional Environmental Law. He has published several peer reviewed papers on issues that cut accross his areas of specialisation in DHET accredited journals and has presented several papers in national and international conferences.

References

Bibliography

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Case law

City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2008 4 SA 572 (W)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 2 SA 554 (SCA)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 6 SA 182 (CC)

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JDJ Properties CC v Umngeni Local Municipality 2013 2 SA 395 (SCA)

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Cape Land Use and Planning Ordinance 15 of 1985

Constitution of the Republic of South Africa, 1996

Development Facilitation Act 67 of 1995

Free State Townships Ordinance 9 of 1969

Local Government: Municipal Structures Act 117 of 1998

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GN 2074 in GG 9927 of 13 September 1985 (Review Board Regulations)

GN R2378 in GG 12780 of 12 October 1990 (National Building Regulations)

GN R239 in GG 38594 of 23 March 2015 (SPLUMA Regulations)

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City of Johannesburg Date Unknown City of Johannesburg Cellular Mast Policy http://www.joburgtourism.com/files/useruploads/user_anon/files/

apps_cellmast.pdf accessed 15 July 2018

National Regulator for Compulsory Specifications 2019 National Building Regulations https://www.nrcs.org.za/content_main.asp?menuID=12 accessed 5 February 2020

National Regulator for Compulsory Specifications 2019 National Building Regulations – Review Board Decisions https://www.nrcs.org.za/

content.asp?subID=4151#1 accessed 5 February 2020

Published
2020-09-16
How to Cite
Raboshakga , N., & Fuo, O. (2020). Appropriate Internal Appeal Mechanisms for Approval of Building Plans: Exploring the Gaps Left by the Constitutional Court. Potchefstroom Electronic Law Journal, 23, 1-32. https://doi.org/10.17159/1727-3781/2020/v23i0a7938
Section
Articles