Buying in Cape Town? Beware new municipal planning by-laws

You’re a property veteran, you’ve renovated and you’re sure you know everything about getting quick and seamless planning approval. Right?

“Well, think again if you’re buying property to renovate or rebuild in the Mother City, where the latest revision of the Municipal Planning By-law has as many permutations as a Rubik’s Cube, and signing an offer to purchase can be a very costly mistake if you haven’t done your homework,” says Lew Geffen, Chairman of Lew Geffen Sotheby’s International Realty.

“Owning property in Cape Town is a dream for many, but if you’re not well versed in the city’s stringent planning and zoning by-laws for the particular suburb or sub-suburb in which you intend to buy, it can all go horribly wrong.”

The by-laws become even more complex in areas where there are overlay zonings, like declared heritage protection areas, scenic drives or certain historic special controls. Examples of suburbs that fall within these categories are Llandudno, Constantia, Clifton, Strand, Gordon’s Bay, Harfield Village, St James, Boyes Drive and parts of the CBD.

Geffen says heritage plays a significant role in determining how a property can be altered, and as a rule of thumb, all structures older than 60 years are protected in terms of the National Heritage Resources Act.

“Be sure to ask your realtor about the age of the property, as well as its fixtures and fittings. This is particularly advisable in older suburbs such as Wynberg and Harfield Village where heritage regulations are stringent,” says Geffen.

A building plan that affects heritage aspects would have to be submitted to Heritage Western Cape first, and only after its decision has been handed to the City can the rest of the planning processes proceed.

Geffen says there are several suburbs where buyers should exercise additional caution.

“Along Victoria Road in Clifton, no building on the mountainside may extend more than 13 metres above street level, and Camps Bay, Bakoven and Llandudno are also subject to height restrictions of two or three storeys, depending on location,” he says.

“The bungalow areas of Bakoven, Clifton and Glen Beach, meanwhile, have a raft of additional aesthetic regulations governing fencing, lighting, solar water heaters and satellite dishes.”

Geffen says the Municipal Planning By-law also has subdivision regulations which apply to areas such as Constantia, Tokai, Hout Bay and Noordhoek, based on property size, while in Muizenberg a second dwelling is more likely to get planning permission.

Despite the flat economy impacting South Africa’s housing market, Cape Town’s stand-out double-digit property price inflation is still largely driven by semigration, but since average property prices in the city are generally much higher than the rest of the country, most home buyers are looking for affordable options,” says Geffen.

“For people looking to buy in the best location with the intention of knocking down an existing building or renovating an older property, it can be an absolute minefield if they’re uninformed.”

The City of Cape Town’s Development Management Scheme (DMS) forms part of its 2015 Municipal Planning By-law, and is a legal tool used to determine the use of rights of a property by giving it a particular zoning category. It also lays down development parameters and restrictions for each type or property.

Geffen says no matter how well versed you may think you are in town planning and property development, unless you intend to move into a house as is, it would be smart to appoint and thoroughly brief a qualified town planner who has previously engaged with the City of Cape Town before making an offer to purchase.

Specialist conveyancing attorney, Elana Hopkins of Dykes Van Heerden, agrees, and says  buyers should request a building plan prior to making an offer to purchase a property and, if possible, consult an architect or town planner about what they intend to do. They’ll be able to advise whether the desired alterations are permissible and will also liaise with the relevant City departments if necessary.

“Should you find yourself in a position where you are jostling with other prospective buyers for a sought-after property and time is of the essence, it’s a good idea to add a due diligence clause to the purchase offer regarding the viability of the property for the purpose for which it is being bought,” says Hopkins.

“In fairness and consideration to all parties, this should not exceed the bond approval period.”

She says the absence of a suspensive or resolutive condition would put the purchaser in breach of contract, and liable for damages as well as agent’s commission should he or she want to withdraw from the sale if the property is not deemed suitable after the agreement has already been entered into.

The City of Cape Town strongly advises that prospective buyers take the time to visit a local planning office if they are in any doubt about building or development applications.

“Residents should always verify the zoning of a particular property, what uses are permitted, and what rights they would need to apply for to enhance its rights,” says Priya Reddy, Spokesperson for the City of Cape Town.

A property’s current zoning can be verified online through the city’s online zoning viewer by inputting an erf number or street address.

Hopkins says keen buyers should not start renovating too soon, and definitely not before registration of transfer, which can be scuppered by a number of situations, such as a seller’s insolvency or the attachment of the property.

“In the event of the transfer not proceeding, the purchaser would then face an almost insurmountable task of attempting to recoup damages,” she says.

Reddy advises buyers to take note of potential title-deed restrictions such as municipal servitudes, which can be done by requesting a Conveyancer’s Certificate from your conveyancer. 

“There are often conditions in the small print attached to a title deed that need to be researched by a conveyancer, and looking at the title deed alone is therefore not sufficient in most instances,” says Hopkins.

Reddy says the planning regime has changed substantially over the past few years. Therefore, always first visit your local district planning office and consult with an experienced town planner or architect to reduce the chances of receiving incorrect facts.

“Always be absolutely sure that you are armed with all the information regarding the property you wish to purchase,” says Geffen.

“Work closely with your realtor and your attorney to find out what, if any, restrictions there are on a property from the get-go, so you understand exactly what you can and can’t do before you sign on the dotted line. And if your conveyancer advises it, rather spend a bit of money ahead of time consulting a town planner or architect than risk losing a bundle down the line.”