Property Rezoning Objection - When is it an abuse of right? | Legal Articles

 

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Property Rezoning Objection - When is it an abuse of right?

Property rezoning objection

There is a property rezoning objection provision in section 33 of the Town Planning and Townships Ordinance 15 of 1986 which affords an individual the right to lodge an objection or make a written representation to the Director regarding an interim scheme. 

Property Rezoning Objection Litigation

This will have to be done within 28 days from when the notice was published. Should the property rezoning objection be made with the intent to cause harm financially to the other party this could be considered an abuse of right to object. 

However certain requirements need to be met before a damages claim for an abuse of right to object can be made. 

In this article we will consider what these requirements are. 

In the case of Koukoudis (Appellant) v Abrina (Respondent), the Respondent felt that the Appellant had abused a right to object to a development in terms of the Town-planning and Townships Ordinance 1986 and that this objection was made with the intent to delay the development and cause financial harm. 

But, to prove that it was an abuse of right to object the subjective and objective tests had be met. 

The purpose of the subjective test was to determine if the intention of the objector was to cause harm

For the objective test, it had to be determined If the objection being made served no interest to the objector of the rezoning. 

The Respondent owned a property and wanted to rezone it from agricultural into a township. This was because the respondent intended on developing the property into a shopping centre. 

After the Respondent applied for the rezoning of the property, the Appellant lodged an objection. 

Apparently, the reason why the Appellant objected to this rezoning was because he felt that the Respondent failed to address a number of issues including environment impact assessments, traffic issues and statutory requirements of the National Environmental Affairs Act to name a few. 

As it stood, the relationship between both parties was strained at best due to litigious actions resulting from a previous commercial lease dispute. 

The reason for the property rezoning objection

Eventually, the real reason for the objection to the rezoning came out. 

The Appellant was trying to prevent a shopping centre from being established in close proximity to a shopping mall which was owned by a group of companies of the Appellant. 

Thus, the Appellant really was just trying to protect his commercial interests.  

Upon further consideration of the evidence presented the court ascertained that the Appellant had merely exercised his statutory rights by objecting. 

And since the intent to cause harm and unnecessary delays could not be proven, the subjective and objective tests could not be met. 

Because the Respondent was unable to prove that these requirements were present, the Appellant could be viewed as merely trying to protect his commercial interests. 

And so, the abuse of right was not constituted. The claim was therefore dismissed.

The Supreme Court of Appeal stated that, according to the opinion held by the courts, no right is absolute or is able to be exercised for the purpose of causing harm without repercussions to the party abusing the right. 

In order to establish that it was, in fact, an abuse of right, the conduct needs to be one of wrongfulness. 

And if the subjective and objective requirements are met, then the party which objected to a rezoning for no reason whatsoever could be liable for damages as a result.

Van Deventer & Van Deventer Incorporated - Property lawyers Johannesburg

Contact us for legal advice on property rezoning

 

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