With the economy as it has been for the past few years, many more people have started working for themselves and running their businesses from home.
However, very few people are aware that legal zoning requirements may not allow them to do this without permission, says Michael Olden of Olden & Associates Urban and Regional Planners.
“If you run your business from home – that is, from a property zoned for single residential purposes – and you employ people who work on the property, more often than not you need to obtain permission from your local authority,” he says.
“However, it depends where your property is located and which zoning scheme is applicable. At present, Cape Town has 27 different zoning schemes. Some of these are applicable in one area only, and some cover a number of different areas. The Divisional Council Zoning Scheme, for example, is applied in Constantia, Hout Bay, and Belhar whereas Fish Hoek, Simon’s Town and Pinelands have their own zoning schemes. When it comes to businesses or occupations operating from home, a zoning scheme offers a set of rules that must be adhered to in order to legally control such use on the property.”
Despite the 27 zoning schemes currently in use, Olden says there are some criteria common to most of these that enable property owners who want to work from home to determine whether or not additional zoning rights should be applied for. Consider the following, for example:
The location of your property determines which zoning scheme and development controls are applicable. Some zoning schemes require that consent be obtained from your local authority to set up a business at home, whereas some automatically allow you to do so.
The nature and scale of the business and its impact on and desirability for the abutting neighbours must be taken into account. The activities carried out on the site should not constitute a source of disturbance or nuisance to occupants of other dwelling units.
The number of employees is usually limited to no more than two.
The availability and number of on-site parking bays can also be an issue. Council usually prefers that sufficient on-site parking bays are provided and that vehicles can exit in forward gear.
Council may limit the business’s “footprint” or floor area, and usually requires that the primary use of the property remains residential. A common split is 70 percent residential and 30 percent business.
No goods for sale are allowed to be publicly displayed, except for an advertising sign, which will be limited in size usually to no more than 0.2 m2.
The impact on neighbours must be taken into account. Council may impose additional conditions to control and limit the use to prevent it having a negative impact on the abutting properties.
No dwellings may be used for noxious trade.
The above conditions are not an exhaustive list of the conditions applicable to home businesses, and are merely indicative of the type of conditions imposed by the City of Cape Town, says Olden.
The applicable zoning scheme will also specify the type of business that may be operated as of right within an area. For example, Section 22 of the City of Cape Town zoning scheme regulations (applicable to Wynberg, Rondebosch, Newlands, Claremont, Kenilworth, Woodstock and Camps Bay/Atlantic Seaboard areas), gives permission as of right for part of a dwelling or an outbuilding to be used by a resident for the following:
The conduct of a profession, an art or the trade of tailor, dressmaker, knitter, home-baker or confectioner, typist, computer operator, photographer, manicurist, chiropractor, chiropodist, masseur, hairdresser or barber, beautician, shoemaker, bookbinder, photocopier, signwriter, upholsterer, curtain maker, duplicator, engraver, etcher, leatherworker, milliner, silkscreener, cane worker and potter.
Any other business activities in these areas require consent from the City of Cape Town. This consent is likely to be granted only if the proposed use is desirable and does not have a negative impact on the abutting land owners.
Zoning schemes for other areas, such as Pinelands, Fish Hoek, Constantia, Hout Bay, Milnerton and Parow, have different rules and regulations. For instance, in the Pinelands area, a home business is allowed as of right but the number of employees is limited to five, including the operator of the business. The City of Cape Town, however, limits the number of employees to two and that the operator of the business must live on the property. However, the old divisional council scheme, applicable to Constantia, Hout Bay and Belhar, does not make provision to work from home so land owners have to apply for temporary departures from the zoning scheme, which allows the use only on a temporary basis (usually not longer than five years).
If a property owner can’t comply with the criteria applicable for a home industry (that is, the scale of business is too large), an application for a temporary departure could also be advised. This involves a statutory process whereby the application is advertised to the neighbours and undergoes a technical evaluation by the City of Cape Town. However, the use must be genuinely temporary and is not valid for a period of longer than five years once approval has been obtained. Alternatively, an application to rezone the property to an appropriate business zoning may be advised.
It should be noted that Cape Town’s existing 27 zoning schemes are being amalgamated to form one umbrella zoning scheme. The new scheme has not yet been approved and according to the officials of the City of Cape Town, is likely to be approved only towards the end of 2011 or in 2012. Nevertheless, it should be noted that the draft rules and regulations of the proposed new scheme are very similar to those described above. Once the new scheme has been promulgated, one set of rules will apply to all properties in the City of Cape Town, and any deviations or departures from these regulations will result in owners having to make statutory land use applications to the City of Cape Town.
Olden & Associates is experienced in making land use applications to the City of Cape Town and obtaining rights for land owners to operate their businesses from home. Visit www.oldenplanners.co.za.
As a landlord, are you allowed to lease to tenant of sectional title unit in residential area, if you know tenant will carry out a business at the premises ie consulting type businsess. Are there any implications for type of lease ie does it differ from ordinary residential lease, or what clauses should be inserted?What permissions need to be obtained and from whom? Thanks
Hi Kim,
Thanks for your email. There 2 issues. 1) if the conduct rules do not allow to operate a business and 2) the zoning scheme does not allow it (i.e. zoned residential). Business is business. It does not matter if you produce things there or you consult. There are also commercial sectional title schemes, so their sole purpose is for business, i.e. office parks, factory units, etc.
You as the owner are responsible and liable for your tenants conduct including your enquiry. The body corporate and the municipality may have legal recourse against you as the owner and you may end up with damages and high legal fees to pay. Therefore, I suggest not to lease the property under these conditions. The risk is not worth it.
In terms of the lease, there are major differences. A commercial lease does not have to comply with the Rental Housing Act as a residential lease would have to, so there are major changes and you need to careful.
If you wish to continue pursuing this avenue, you would have to obtain approval from the body corporate and from the local municipality.
The tenant can also hold you liable for damages, if you did not close this or if you unable to obtain those approvals.
This is quite risky.
Michael
Hi Micheal, thanks for that. Owner ensures that will be only 5 employees working there, comjputer consulting business. Will be no clients who will require parking, as is online bus. Premises will be partially used for residential as his partner will be staying there. IF trustees agree in writing do I still need council approval? If so how or who at council needs to be contacted and can business owner himself get this approval?
Hi Kim,
You need the consent of the body corporate nonetheless. Remember, they can revoke your consent at any time.
I would put in the lease that it is the tenants responsibility to register his business and ensure compliance.
Hope this helps.
Michael
Good day,I am not sure who can help me with this situation. We moved into a new home at the beginning of the year. After a month we discovered that the house next door was been used for a nursery school and swimming school. This part is not what is bothering me, but the fact that almost every morning on the way to drop my kids at school or in the afternoons right up until evening we have to wind our way around all the cars parked outside in the street and up our road. They only have a sort driveway and there is not enough parking available for parents to drop their kids off in the morning, for them to fetch their kids in the afternoon and then those that stay the whole afternoon while their kids are at swimming lessons. There have been a few times when there are near misses in the road of residents trying to enter or leave their homes. I do not know if they have business rights to operate this business and do not know who I can contact to find out. I was also under the impression that if a business is operated from a residential home then sufficient parking needs to be allocated for clients. I hope someone can lead me on the right path to investigate this issue.
Hi Michelle,
Thanks for your email. It depends on the set up and the conduct rules (and the zoning) of your scheme. If your home is situated within a sectional title scheme or home owners association, the conduct rules apply and your trustees have to enforce them. If they don’t you can register a dispute and if necessary refer the dispute to arbitration. This costs time and money.
If you have your own freestanding home without any scheme, then you need to go your municipality and call the traffic police everytime the cars park on the pavement of the road. You can consider civil litigation, but again it will cost time and money.
Hope this helps.
Michael
Hi, wonder if you can help. With regards to having a business from home. My neighbor up the road has some sort of construction business which he runs from his house in Mondeor Johannesburg. Every morning his staff about 10 congregate at his premises before loading a 5 ton truck which parks on the front pavement. This is not an industrial zone. I have contacted the area counselor who has actually driven past at night and verified the vehicle parked on the pavement. Is there no law that prevents such things as parking big trucks on residential property and having staff operating from a quite peaceful neighbor. Our street this last festive season had at least 4 breakings and attempted ones. Please help. Thank you Mark
Dear Mark,
Thanks for your email. It depends on the zoning scheme and the zoning on his property. If it is a HOA or body corporate it may have rules in place to prevent this. If it is not a HOA or body corporate, you need to complain to the municipality and let them take action and enforce their local municipal by-law.
Hope this helps.
Michael
Hi there
I would like to know if anyone can help me with my question please.
My parents live in the Southern Suburbs, and they would like to open a house shop from their home. Is there any process that they will have to go through such as applying to the council and such? There will be no changes to the premises.
Many thanks
Hi, my husband and I live in a ST complex comprising of two units (ours and one other) in Morningside/Puntans Hill Durban. There have unfortunately never been any Body Corporate rules in place as each owner has been respectful of the other. However, a recent change of ownership of the other unit and a rather acrimonius relationship prompts me to seek your advice.
Although both my husband and I have other employment, we have a sports timing business. I am essentially the only employee and carry on admin work for the business in the evenings. Our sports timing equipment (which is 6 timing mats, 6/8 timing boxes and some timing chips is housed in our garage. As we time races through SA, a courier company collects and returns our timing equipment at arranged times probably once a month or once every six week or so. Should we go about applying for a licence to run this business from home, and if so, how do we do that?
Really appreciate your advice.
Hi,
I would like to enquire about a small medicentre in a residential area. According to regulations, to compliance requires part of the residential property to be occupied as a residence. The medicentre has already been in existence for a number of years but now regulations specify that part of the centre needs to be converted into a residential home. What percentage of the premises or what size must the residence be, in relation to the entire premises.
Thank you – any advice would be appreciated.