The Problem Building By-Law (herein after referred to as ‘the By-Law’) is the very first By-Law in the Nelson Mandela Bay Metropolitan Municipality for 2020. The By-Law was published in the Government Gazette on 27 January 2020 and came into operation on that same day.
The aim of the By-Law is to enable authorised officials to identify, control and manage dilapidated and problem buildings and land in the Metro. Authorised officials include persons appointed to implement and enforce the By-Law by the Municipal Manager.
Authorised officials will have the authority to enter and inspect buildings or land with a view to determine whether the building or land complies with the requirements of the By-Law, determine whether the building or land is a ‘problem building’ and serve the owner with a compliance notice in terms of the By-Law.
The By-Law prohibits the following conduct:
Abandoning a building;
Failing to maintain a building in accordance with the health, fire-safety and town planning scheme or other by-law;
Failure to maintain lifts that have been previously installed in the building;
Allowing conditions which result in the building being unhealthy, unsanitary, unsightly or objectionable, as determined by the authorised official of having overloaded or illegally connected electricity or water supply, having no electricity or water supply, illegally connected or blocked sewer drains, or is a place where refuse, waste material, rubble, scrap or any similar materials are accumulated or dumped (unless the storage is done so lawfully).
Illegally occupying a building;
Failing to comply with a notice provided to the owner by the authorised official;
Allowing the building to be a threat or danger to the safety or the occupiers, registered owners or the public in general; and
Allowing a building to be in a state of partial completion, to become abandoned or structurally unsound.
Once the authorised official has assessed the building or land, the official will then provide the owner with a notice. This notice will state that the official is considering declaring the building or land to be a ‘problem building’. The official will state the reasons for the consideration in the notice. The official will then engage with the owner and occupiers. Should the engagement not yield a solution, the owners will have 10 business days in which to submit written representations as to why the building should not be declared a ‘problem building’. These representations will then be considered by a committee (the authorised official is not part of this committee).
Should the committee take a decision that the building is in fact a ‘problem building’; they will proceed to have a notice informing the owner of their decision served on the owner. In this notice the authorised official can be required to clean, repair, renovate, repaint, alter, close, demolish or secure a problem building. If the building was declared a problem due to unfinished construction or alterations, the authorised official can require that the construction be completed or that the building be enclosed with a fence or barricade. The authorised official can also instruct an architect to advise on the required steps to be taken. The architect’s fees will be at the expense of the home or land owner.
Should the owner fail to comply with the notice in the required time, the local authority may take the necessary steps at the expense of the owner.
Alternatively, the local authority may take the owner to court for contravening the By-Law.
Owners may apply to be exempt from any provision of the By-Law. These applications have to be made in writing to the local authority. There are three possible outcomes to an exemption application:
the exemption can be granted with conditions and for a specific period,
the local authority can alter any existing exemption or
cancel any exemption or the exemption can be refused.
When considering the exemption, the local authority can obtain input and comments from owners or occupants of the surrounding premises.
Such a By-Law is not uncommon in South Africa; Cape Town has had a similar By-Law in operation since 2010.