{"id":824,"date":"2020-03-03T13:37:39","date_gmt":"2020-03-03T11:37:39","guid":{"rendered":"https:\/\/www.matthewsenslin.com\/?p=824"},"modified":"2021-07-28T13:15:32","modified_gmt":"2021-07-28T11:15:32","slug":"running-a-business-in-a-residential-area-check-your-zoning-first","status":"publish","type":"post","link":"https:\/\/www.matthewsenslin.com\/running-a-business-in-a-residential-area-check-your-zoning-first\/","title":{"rendered":"Running a Business in a Residential Area \u2013 Check Your Zoning First!"},"content":{"rendered":"<blockquote><p>\u201c It is unquestionable that an owner of land us not permitted to perform activities which contravene the restrictive title conditions or the zoning restrictions\u201d (extract from judgement below)<\/p><\/blockquote>\n<p>You decide to open a home business, or perhaps you are about to buy a house in order to run a business from it. You apply for rezoning but the council is taking forever to decide (although it has happily started charging you rates and taxes on the business tariff), your immediate neighbours are supportive, you won\u2019t cause any nuisance, you know of many other businesses operating undisturbed \u201cunder the radar\u201d, and anyway the suburb\u2019s residential character has been eroding for years. Surely you are safe to just go ahead and open your business?<\/p>\n<p>On the other side of the coin, perhaps you bought your dream home in a leafy suburb, secure in the knowledge that its residential character is protected by strong and effective zoning laws. Then businesses start moving in \u2013 what can you do about it?<\/p>\n<p>A recent High Court decision addressed both questions directly\u2026<\/p>\n<h2>A suburban office and the interdict application<\/h2>\n<ul>\n<li>A construction company 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).<\/li>\n<li>Three complainants in the suburb, objecting strongly to this move, applied to the High Court for an interdict against the running of any business on the property. They had, they said \u201cacquired 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\u201d \u2013 sentiments which will no doubt resonate with many other home-buyers.<\/li>\n<li>Critically, one of the restrictive conditions in the offending property\u2019s title deeds read \u201cthis erf shall be used for residential purposes only and no trade or business or industry whatsoever shall be conduced thereon\u201d. That, said the Court, rendered the property\u2019s usage illegal. Full stop.<\/li>\n<\/ul>\n<h2>All the defeated defences<\/h2>\n<p>The property owner and the business (let\u2019s refer to them together as \u201cthe business\u201d for simplicity) raised a series of defences to the interdict application, all of then rejected by the Court on essentially the same ground that \u201c<strong>the use or continuation to use the property for any business or trade other than for residential purposes constitutes an illegal act<\/strong>\u201d \u2013<\/p>\n<ul>\n<li>The suburb\u2019s character had been changing over the years with businesses moving in, including a large shopping mall. Not relevant.<\/li>\n<li>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. Not relevant.<\/li>\n<li>Although the rezoning application had yet to be granted or declined, council was already collecting rates and taxes payable by business and commercial properties. Not relevant.<\/li>\n<li>The office cased no nuisance to anyone in the area. Not relevant.<\/li>\n<li>Other property owners in the area were also in contravention of the law. Not relevant.<\/li>\n<\/ul>\n<h2>Who can object and who can\u2019t?<\/h2>\n<p>The business also argued that only property owners living \u201cin close proximity\u201d to the office had any right to object. That, it said, excluded not only the complainant who was not an owner (she lived with her parents) but all three of the complainants because they all lived about a kilometer away from the office.<\/p>\n<p>No problem, said the Court, \u201cthe essence of town planning schemed is conceived in the interest of the community to which it applies\u201d and the complainants lived \u201con an area affected by an applicable zoning scheme\u201d. All the complainants had \u201cprotectable interests\u201d and therefore locus standi (in plain English, the \u201cright to bring a legal action\u201d) and were entitled to enforce their rights under the planning scheme.<\/p>\n<h2>The interdict and the request to suspend it<\/h2>\n<p>\u201cOnce it is accepted\u201d, quoted the Court from an earlier judgement \u201cthat the nature of the right in question is a public right, then it must follow \u2026 that <strong>for continuing infringements of that right the only effective remedy is an interdict<\/strong>, all the more so were such infringements amount to an offence.\u201d Final interdict granted with costs.<\/p>\n<p>Finally, the Court rejected a requested buy the business to suspend the application of the interdict. The business had been continuing to act I an unlawful manner for at least fifteen months, it was \u201chell-bent to do so without the necessary relaxation of the restrictive conditions\u201d and to suspend the interdict would be to support or give approval \u201cto an ongoing illegality which is also a criminal offence \u2026 tantamount to the subversion of the doctrine of legality and undermining of the \u201crule of law\u201d. The business \u201cmust be brought into line immediately when such matters are brought to the attention of the court.\u201d Interdict effective immediately.<\/p>\n<h2>Owners \u2013 must you always rezone?<\/h2>\n<p>Have your attorney check what title deed restrictions your property is subject to, what your current zoning is and what it allows and doesn\u2019t allow. Your local town planning scheme may perhaps let you run a small scale \u201chome enterprise\u201d or \u201cmicro business\u201d 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. <strong>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<\/strong>.<\/p>\n<p>[This article was originally published in the LawDotNews March 2020 newsletter. To view the full March 2020 newsletter please go to this <a href=\"https:\/\/www.dotnews.co.za\/Code\/online.aspx?qry=ZSpQuU5At1JrluIQsNfWTc2Jhw3dco00qmDitmB91yRO\/JtRSVwr\/oxBATn\/zkYGWTBa7aDJBInOxjxCfxHcjTys1w1FipMOs\/st1ynw1W1o4KhNFki95FfLZIjJngB8A61DJOPP2l2S\/ciKcUZA12r8atHLf8SXPzq1rw08qUrtL4KHSkmvJBAEb8h84jlkWMI6zzcv77QOVTEN3pHKfkSIp339grDvZSTvivWXuN5UbyJkJu9tMpEvtEyrQ5VI\" target=\"_blank\" rel=\"noopener\">link<\/a>.]<\/p>\n","protected":false},"excerpt":{"rendered":"<p>\u201c It is unquestionable that an owner of land us not permitted to perform activities which contravene the restrictive title conditions or the zoning restrictions\u201d (extract from judgement below) You decide to open a home business, or perhaps you are about to buy a house in order to run a business from it. You apply &hellip;<\/p>\n<p class=\"read-more\"> <a class=\"\" href=\"https:\/\/www.matthewsenslin.com\/running-a-business-in-a-residential-area-check-your-zoning-first\/\"> <span class=\"screen-reader-text\">Running a Business in a Residential Area \u2013 Check Your Zoning First!<\/span> Read More<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""}},"footnotes":""},"categories":[6],"tags":[100,98,101,102,99],"_links":{"self":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/posts\/824"}],"collection":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/comments?post=824"}],"version-history":[{"count":0,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/posts\/824\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/media?parent=824"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/categories?post=824"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/tags?post=824"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}