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Amidst South Africa’s energy crisis, many complexes are turning to generators to keep the lights on. This can have a detrimental effect on both the mental and physical health of residents who may be in close proximity to them.
According to legal expert Venashrie Mannar from Webber Wentzel, residents have certain rights and avenues they can explore if they feel aggrieved by the noise of a generator in their complex or any other impacts that may be related.
Broadly, this is what residents should do:
- The first port of call is to ensure that the generators were installed or brought in with the necessary permissions, and within the limits of the country’s sectional title laws.
- If issues with noise and air pollution are involved, complaints should be directed to the body corporate for attention.
- If the body corporate does not address the issue, the matter can be escalated to the municipality, which should measure the air and noise pollution against the limits in the local by-laws.
- If the complaint is upheld, and levels are in violation of the by-laws, the body corporate will be sent an infringement notice, to which it will have to respond.
- If all else is above board, however, and residents still believe there is a nuisance, the matter should be taken to the Community Schemes Ombud Service (CSOS) for mediation.
Noise and air complaints
Specifics on acceptable noise levels are typically outlined in the by-laws of any given municipality in the country.
In the event that a resident wants to address the noise or fumes related to a generator, they should submit a complaint about the noise and possible health consequences to the body corporate or building owner, Mannar said.
If the complaint is not recognised by the body corporate, the complainant can get the noise and air pollution measured by lodging a complaint with their local municipality – like the City of Johannesburg’s Environmental Health Department, for example.
Mannar said that Schedule 5 of the Constitution grants the individual provinces exclusive responsibility to administer noise control regulations. Thus, noise control is a provincial function.
However, other laws are also pertinent to such situations:
- Section 24 of the Constitution provides that “Everyone has the right to an environment that is not harmful to their health or well-being”
- The Environment Conservation Act, 1989 (“the Conservation Act”) gives effect to the Constitution by empowering the Minister of Environmental Affairs to establish noise control regulations in terms of section 25 of the Conservation Act.
A province’s noise control regulations should be in accordance with the Conservation Act.
The respective authority will then send an Environmental Health Practitioner to the property to test the noise levels and the amount of fumes.
If the test results show that the noise and fumes from the generator violate the By-Laws, the city will then issue an infringement notice to the body corporate or building owner, and it will have seven days to respond.
The proper way to install generators
Although the energy crisis is challenging for residents, it also places pressure on landlords who want to ensure that their tenants have electricity.
Mannar said that owners and body corporates need to follow a framework that ensures that setting up generators are within the bounds of the applicable laws.
Individual generators
- The Sectional Titles Schemes Management Act, together with the prescribed management rule (PMR) and prescribed conduct rules (PCR) provide certain considerations before the body corporate should consider the installation of individual generators and/or solar panels for each unit in the scheme.
- Section 13(e) of the STSM Act states that an owner must not use his or her section or exclusive use area or permit it to be used in a manner or for a purpose that may cause a nuisance to any occupier of a section.
- PMR 30(b) places a positive duty on the body corporate to take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not use a section or exclusive use area to cause a nuisance in breach of section 13(1)(e) of the Act.
- PCR 7(1) states that the owner or occupier of a section must not create noise likely to interfere with the peaceful enjoyment of another section or another person’s peaceful enjoyment of the common property.
“Where individual generators can be installed, my recommendation is that the body corporate make a conduct rule that deals with the installation of generators for each section,” Mannar said.
“In this way, a special resolution is obtained, and 75% (reckoned in both number and value) of the owners ‘buy into’ the installation of the generators.”
Central generators
When installing a generator on the common property for the use of all residents within the scheme, various provisions of the Sectional Titles Act, the Sectional Titles Schemes Management Act and the Regulations to the STSMA need to be taken into account.
- PMR 29 of the STSMA deals with improvements or alterations to the common property and, accordingly, the installation of a generator on the common property could be considered to be an improvement or alteration to the common property.
- It is, thus, the responsibility of the members of the body corporate to determine if the improvement or alteration (in this case the generator) to the common property is “not reasonably necessary or luxurious” or “a reasonably necessary or non-luxurious” improvement or alteration to the common property.
- According to PMR 29(2), if an improvement or alteration is a reasonably necessary or non-luxurious alteration, or improvements to the common property, a special resolution of the members needs to be obtained prior to proceeding with the reasonably necessary improvement or alteration to the common property.
- If the instillation of a generator is deemed by a particular scheme to be a reasonably necessary or non-luxurious improvement to the common property, a special resolution of the members will need to be obtained prior to the generator being installed and, in terms of PMR 29(2), the Trustees would be required to notify the owners of:
- the need for the generator.
- the cost of same; and
- how the generator will be funded.
- If the Trustees do not receive a request for a meeting to discuss the installation of the generator within 30 days, they may proceed with the installation of the generator on the common property.
- In event that the Trustees, during the notice period (30 days), receive a request for a general meeting to discuss the proposal from any member, the proposal must not be implemented (i.e. the generator must not be installed ), and a general meeting must be held to discuss the generator with all members.
- If a general meeting is held, as referred to above, a special resolution will need to be adopted by the members at the meeting prior to the generator being installed.
That said, to prove that a nuisance exists, a reasonable person must find that the noise is intolerable or seriously affecting their enjoyment of the property.
“This test ensures that a resident who is overly sensitive to any noise is not permitted to prejudice the rights of all others in the scheme by having it removed as a result of their over-sensitivity.
“This can be referred to CSOS for determination.”
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