Can You Use Land Use Laws to Close Down a Neighbour’s Business?

“A bad neighbour is as great a calamity as a good one is a great advantage”. (Hesiod, poet of Ancient Greece)

Your neighbour’s business is driving you to distraction. Perhaps it’s loud all-night music, or an invasion of your hard-earned privacy, or illegal parking in your driveway, but regardless of what the nuisance factor is, it really is untenable. You’ve tried everything you can think of to sort it out amicably – polite requests, offers of mediation, compromise proposals. Nothing has worked, and the nightmare continues.

So, it’s off to court you go. Legal action is never first prize when it comes to long-term relationships with neighbours, but if they leave you with no other alternative, take heart from two recent High Court cases. In both, businesses being operated by neighbours in contravention of land use laws were penalised for doing so.

Noisy nightclubs shut down … with some harsh words for the landlord

• A university residence was subjected to noise from nearby nightclubs, with students complaining that loud music prevented them from sleeping and studying until the early hours of the morning.
  
  
• The establishments were on property zoned “Use 6: Business 1" which allowed for the use of the premises as a "Place of Refreshment", such as a café or bar. But these particular businesses fell into the municipality’s definition of “nightclub”, which put them into the “Place of Amusement” category - for which they were not zoned.
  
  
• They argued that their “tavern” liquor licences obliged them to provide entertainment and therefore allowed them a secondary use of the premises as a “Place of Amusement”. The Court disagreed: “the terms of the liquor licence can never override the provisions of the Town Planning Scheme”.
  
  
• The premises were accordingly being used outside of their land use rights and were prohibited from continuing to do so, i.e. the nightclubs must close down. If they convert to just being “pubs” they are prohibited from making any noise in excess of the noise levels permitted by the land use rights of the premises.
  
  
• Finally, the Court had a harsh word or two for the landlord of the premises in question, which had, it said, remained “supine” rather than enforcing a clause in the lease prohibiting the tenants from creating any nuisance to neighbours. The landlord was accordingly ordered to take “all reasonable measures” to stop its tenants from making a noise nuisance, plus it must pay a share of the costs. That’s a clear warning to all landlords that they risk liability for their tenants’ wrongdoing.

Approvals for a seaside guest house set aside

• The owner of a seaside property realised that not only were her neighbours running a seven-room guest house without municipal permission, but that they planned to go double story with it. “There”, she thought, “goes my privacy”.
  
  
• She also feared the negative impact of a guest house on the general character of the area, on traffic volumes and on stormwater management, particularly in light of the guest house’s plan to increase its size to eight suites with parking for sixteen cars.
  
  
• The guest house owners had applied to the local authority for a permanent departure from the zoning scheme conditions (their house being zoned “single residential”) and for the removal of restrictive conditions attached to the title deed. The municipality refused to remove the title deed restrictions but granted a conditional approval for the operation of a guest house.
  
  
• The homeowner was having none of that and took the matter to the High Court, which found that the local town planning scheme in force at the time (before a new scheme was adopted) did not empower the municipality to grant approval for building or running a guest house on the property. The Court set aside the municipal approvals.
  
  
• Both the development and the operation of a guest house on the neighbour’s property were thus declared unlawful. The neighbour, if it still wants to operate the guest house, must now make new applications to the municipality under the “new” town planning scheme for the area. That’s Round 1 to the homeowner, and an expensive lesson for the neighbour.

Before you buy a property…

Whether you plan to run a business from the property you are about to buy or are worried that one of your new neighbours might do so in the future, check what zoning and land use restrictions apply to your respective properties before you put pen to paper!