If the business is, say, that of an
accountant, and makes little or no noise, you may choose to turn a blind eye.
But what if the business causes a noise nuisance (or you simply object to a
neighbour running a business in your suburb)?
In
McKay and Others v Ursiweb
(Proprietary) Ltd and Others (3510/2019) [2019] ZAFSHC 232 the court had
to decide if a construction company, that opened an administrative office in a
suburban area, manned from 8 am to 4.30 pm on weekdays by a staff of four (with
the occasional visitor) was entitled to do so.
Neighbours applied to court for an interdict against the running of any
business on the property. They had, they said, “acquired their properties with
a keen expectation of residing in a residential suburb with amenities that are
consistent with a residential suburb and with a residential character”.
Part of their argument in support of the interdict was that one of the
restrictive conditions in the offending property’s title deeds read “this
erf shall be used for residential purposes only and no trade or business or
industry whatsoever shall be conducted thereon”.
The business owners tried to argue, unsuccessfully, that the interdict should
fail because the suburb’s character had been changing over the years with
businesses moving in, including a large shopping mall; that the business had
applied to the local council for re-zoning and removal of the title deed
restriction over a year before, no objections had been received and it had in
fact been supported by at least one neighbour; that although the rezoning
application had yet to be granted or declined, council was already collecting
rates and taxes payable by business and commercial properties, and that the
office caused no nuisance to anyone in the area.
The Court found that “the essence of town planning schemes is conceived
in the interest of the community to which it applies” and the complainants
lived “in an area affected by an applicable zoning scheme”. Further, that the
applicants had “protectable interests” and were entitled to enforce their
rights under the planning scheme.
The court granted the interdict with costs.
What are your rights and obligations, if you want
to start a business in a residential area?
Have a town planner
check what title deed restrictions and zoning rights apply to your property (or
to a property you want to buy to run a business from).
It is possible that your
local town planning scheme may allow a small-scale “home enterprise” or “micro business”
either without municipal consent or with a municipal permit. Or you may need to
formally apply for rezoning for business use. Even if the local authority grants
consent use if a restrictive condition remains in place on the title deed, preventing
such use, running a business from the property will still be unlawful until
such condition has been amended or lifted.
