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[2015] ZAWCHC 188
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Tavakoli and Others v Phase III Development Company (Pty) Ltd and Another (22026/2015) [2015] ZAWCHC 188 (11 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 22026/2015
In
the matter between
ALLEN
TARGHI TAVAKOLI
FIRST
APPLICANT
DLX
PROPERTY (PTY) LTD
SECOND
APPLICANT
JENNIFER
LYNN HARIS
THIRD
APPLICANT
RICHARD
NEIL HARRIS
FOURTH
APPLICANT
and
PHASE
III DEVELOPMENT COMPANY (PTY) LTD
FIRST
RESPONDENT
THE
CITY OF CAPE TOWN
SECOND
RESPONDENT
Coram
:
ROGERS J
Heard:
1 DECEMBER 2015
Delivered:
11 DECEMBER 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
This is an urgent
application for an interim interdict pending the determination of an
application to review and set aside the approval
of building plans.
The applicants are neighbours of the property to which the building
plans relate. The first respondent (‘PDC’)
is the owner
and developer of the property. The second respondent (‘the
City’) is the municipality which approved the
plans.
[2]
The case came before me
on 1 December 2015. Mr Baguley appeared for the applicants and Mr
Dickerson SC leading Ms Reynolds for PDC.
The City abides. Urgency is
not in issue.
[3]
The property, Erf 118
Fresnaye, is situated on the corner of Kloof Street (which runs
east/west along the property’s southern
boundary) and Kings
Road (a one-way street running south to north along the property’s
western boundary). PDC has demolished
the previous structure on the
property and is in the course of erecting a building which on
completion will contain six units.
[4]
On 28 April 2015 Nuku
AJ granted an interim interdict pending a review of the approval of
an earlier set of plans. When the applicants
learnt in September 2015
that revised plans had been submitted, they lodged comments through
their attorneys. The new plans were
approved on 2 October 2015. PDC
resumed building operations at the end of October 2015. The present
application followed on 16
November 2015.
[5]
The grounds on which
the applicants say the latest approval is unlawful and susceptible to
review relate to the entrance to the
underground parking. According
to the plans as approved, the entrance will be off Kings Road at a
point about two-thirds along
the property’s western boundary
(measured from the Kloof Street corner).
The By-Law
and DMS
[6]
Although neither side
mentioned the National Building Regulations and Building Standards
Act 103 of 1977 (‘the NBR Act’),
it can be assumed that
the review is directed at an approval of building plans granted
pursuant to s 7 of the said Act. In
terms of s 7(1) the
City could not approve PDC’s application for the approval of
the plans unless the City was satisfied
that the plans complied with
the Act ‘and any other applicable law’.
[7]
The applicants allege
that the plans failed to comply with the City’s Municipal
Planning By-law of 2015 (‘the By-Law’)
and the
Development Management Scheme (‘DMS’) constituting
Schedule 3 to the By-Law. The property is zoned General
Residential 4
(‘GR4’). Item 40(c) of the DMS provides that the
following use restrictions apply inter alia to properties
so zoned:
‘
(c) Notwithstanding
the primary and consent uses specified in paragraphs (a) and (b), if
the only vehicle access to the property
is from an adjacent road
reserve that is less than 9 m wide, no building is permitted
other than a dwelling house or second
dwelling.’
[8]
The building which PDC
is erecting involves use for group housing. The approval of the plans
would thus be unlawful if item 40(c)
is of application.
[9]
The term ‘road
reserve’ is defined in s 1 of the By-Law as meaning (my
emphasis)
‘
a
designated area of land that contains or is
able
to contain
a
public
street
or
public
road
,
including the road and associated verge, which land may or may not be
defined by cadastral boundaries.’
[10]
The terms ‘public
street’ and ‘public road’ are defined thus in s 1
of the By-Law and again in item
1 of the DMS:
‘
public
street’ – ‘any land indicated on an approved
general plan, diagram or map as having been set aside as a
public
right of way, whether for vehicles or pedestrians or public or urban
squares, of which ownership is registered in favour
of or vests in
the City in terms of this By-Law or any other law;’
‘
public
road’ – ‘any highway, thoroughfare, lane, footpath,
sidewalk, alley, passage, bridge or any other place
of a similar
nature or any portion thereof serving as a public right of way,
whether for vehicles or pedestrians, established or
proclaimed in
terms of the former Municipal Ordinance, 1974 (Ordinance 20 of 1974)
or any equivalent current municipal by-law and/or
national
legislation and includes a public street’.
[11]
Item 41(e), which deals
with building lines, provides that no building shall be erected so
that any point on the building ‘is
nearer to a
street
boundary
or a
common boundary’ than the distances specified in the table
forming part of the item. The relevant distance applicable
to the
property in relation to Kings Road is 4,5 m.
[12]
The term ‘street
boundary’ is defined in the DMS as meaning
‘
the
boundary between a land unit and an abutting public street or private
road; provided that the boundary of a pedestrian way or
service lane
that cannot or will never be used by motor vehicles, shall be deemed
to be a common boundary for the purpose of determining
building
lines, street centreline setbacks and site access requirements’.
The
servitude
[13]
Subject to the
implications of the servitude mentioned below, the part of Kings Road
which lies adjacent to the property is between
7 m and 7,8 m
wide (this includes the pavements). The applicants objected to the
current plans inter alia on this basis,
ie that the development
contravened item 40(c).
[14]
In an attempt to meet
the objection, PDC on 1 October 2015 executed a notarial deed of
servitude by which it granted the City a
servitude right of way over
an area depicted in an attached diagram. The servitude has been
registered in the deeds office. The
servitude is declared to give the
City
‘
the
right to the unlimited exclusive use of the servitude area for public
road purposes or any matter related thereto’.
[15]
The servitude
runs along the property’s western boundary with Kings Road from
the vehicular entrance southward to the corner
of Kloof Street (a
length of about 22/23 m). If its width (which varies from 1,52 m
to 2,26 m) is to be included
in the ‘road reserve’,
the said road reserve would (over that stretch of Kings Road) comply
with the 9 m width
specified in item 40(c). The boundary wall of
the property will lie on the eastern side of the servitude, ie there
will be no physical
barrier between the eastern edge of Kings Road
and the servitude strip. What the City will actually do with the
servitude strip
is unclear. PDC says the City could make it part of
the road surface or a pavement or street parking.
The
subdivision
[16]
PDC’s deponent
attached to his answering affidavit a letter from the City to PDC
dated 9 September 2015. The letter refers
to an attached servitude
plan, being the plan subsequently incorporated into the notarially
executed servitude. The letter reads
in relevant part:
‘
I
wish to confirm that the above proposed subdivision, as illustrated
on attached servitude plan… is exempted in terms of
section
67(3) of the [By-Law] for the following reasons:
·
land
required for public road purposes or any matter related thereto;
·
registration
of a servitude or lease areas.’
[17]
Subdivisions are dealt
with in ss 52-60 of the By-Law. Section 52(1) states that no
land may be ‘subdivided’ without
the City’s
approval granted in terms of the By-Law unless the subdivision is
exempt in terms of s 67.
[18]
The term ‘subdivision’
is defined in s 1 of the By-Law as meaning, in relation to land,
‘
the
division of a land unit into more land units and includes any
physical activity on the land to prepare the land for subdivision
but
does not include the surveying of land for the preparation of a
subdivision plan and “subdivide” has the same meaning’.
[19]
Section 1 defines the
term ‘land unit’ as including ‘a portion of land to
which a registered servitude right or
registered lease relates’.
It thus seems that the registration of a servitude is an act of
subdivision. It is used in this
sense in s 67(1)(g).
[20]
Section 67(1) sets out
various forms of subdivision which do not require approval in terms
of the By-Law. Section 67(3) provides
that the City may, on
application, exempt a subdivision from the need for approval
‘
if
exceptional circumstances exist and if the exemption does not
adversely affect the rights or legitimate expectations of any
person’.
[21]
The City’s letter
reflects an understanding that the proposed servitude was a
subdivision of PDC’s property. As indicated,
I think this is
correct. A subdivision as contemplated in the By-Law does not
necessarily result in an alteration of the cadastral
boundaries of
the subdivided property.
[22]
In their replying
papers the applicants alleged that the City’s granting of PDC’s
exemption application in terms of
item 67(3) was, like the approval
of the building plans, unlawful and liable to be set aside on review.
The main
grounds of proposed review
[23]
The applicants contend
that the execution and registration of the servitude have not in law
had the result of increasing the width
of the relevant road reserve
or at least not in a way that overcomes item 40(c). This contention
is advanced on several different
grounds, namely (i) that there
can only be a public road or public street on land owned by the City,
a servitude being insufficient,
with the result that the servitude
area is not as matters now stand able to contain a public road or
public street; (ii) alternatively,
that because the servitude
area is still zoned GR4 it is not currently able to be used for road
purposes (this point was only raised
in the replying affidavit);
(iii) that item 40(c) requires a road reserve width of 9 m
for the entire length of the adjacent
boundary and not merely (as
here) the half from the access point to the corner of Kloof Street.
[24]
The applicants contend,
further, that the supposed solution of a servitude constitutes
an evasion of item 40(c) because it
will not in fact lead to a wider
road.
[25]
The applicants also
contend that, if Kings Road’s width were to be increased
to 9 m, the building on the property
would contravene the 4,5 m
building line specified in item 41(e). In the applicant’s heads
of argument this contention
was advanced with reference to the
supposed subdivision, the submission being that a subdivision would
shift the street boundary
eastwards. The contention may also be
relevant, so it seems to me, to the complaint of evasion, in the
sense that PDC and the City
could arguably not have intended that the
servitude would ever actually be used as a public road or public
street, since to do
so would cause the building to contravene the
4,5 m building line in circumstances where no departure has been
sought or approved.
Deciding
law points at interim stage
[26]
The issues in the
present case are primarily legal. Different views have been expressed
as whether the concept of a prima facie
right is apposite in this
setting (see the discussion in Herbstein & Van Winsen
The
Civil Practice of the High Court of South Africa
5
th
Ed at 1462-1463;
LAWSA
2
nd
Ed Vol 11 para 404 footnote 3). I was referred to the judgment of
Blignault J in
Ward
v Cape Peninsular Ice Skating Club
1998
(2) SA 487
(C) where the learned judge distinguished between
‘difficult questions of law’, which are not appropriate
for final
decision in an application for an interim interdict, and
simpler questions of law, which could be decided at the interim stage
(at 497E-498H).
[27]
On my understanding of
the (broadly) two lines of authority, the question is whether,
despite the interim form of the proceedings,
the court should finally
decide a law point and thus dispose of the case, the judge’s
decision being res judicata. One view
is that the court is bound
finally to decide any question of law which would dispose of the
case. The other view is that the court
should do so only if the issue
is not a difficult question of law. This approach, which was espoused
in
Ward
,
appears to have commended itself to Malan J in
Johannesburg
Municipal Pension Fund & Others v City of Johannesburg &
Others
2005 (6) SA
673
(W) paras 8-9.
[28]
In
Geyser
v Nedbank Ltd & Others: In re Nedbank Ltd v Geyser
2006 (5) SA 355
(W) Van Oosten J seems to have deprecated the
expression by a judge, at the interim stage, of a ‘half-hearted’
assessment
of a law point (para 8-9). If by this he meant that a
judge at the interim stage should either finally decide a law point
or say
nothing about its merits, I cannot agree. The apparent
strengths and weaknesses of the competing arguments must surely be
relevant
in assessing the inter-related aspects of a prima facie
right, balance of convenience and discretion (see
Beecham
Group Ltd v B-M Group (Pty) Ltd
1977
(1) SA 50
(T) at 55F-G). Furthermore, if justice is to be seen to be
done, the judge needs to demonstrate to the litigants that he or she
has understood and engaged with the main arguments.
[29]
Neither side has
invited me finally to decide any questions of law. At least some of
them are difficult. There is no direct authority
on any of them. They
must all be finally decided in the review proceedings. I shall,
however, provide an assessment of the competing
merits on each point.
The nature
of the prima facie right
[30]
Both sides accepted
that the applicants’ prima facie right was based on the
proposed review, even though the approval of the
plans will stand
until set aside. The prospects of success in the review proceedings
represent the measure of the strength or otherwise
of the alleged
right that the applicants must prima facie establish in order to
obtain interim relief (
Searle
v Mossel Bay Municipality & Others
[2009]
ZAWCHC 9
paras 6-7 and authorities there cited;
Camps
Bay Residents & Ratepayers Association & Others v
Augoustides
& Others
2009
(6) 190 (WCC) para 10).
[31]
PDC’s counsel
submitted in their heads that the prospects of success in the review
required one to consider not only the merits
of the grounds of review
but whether the review court would exercise its discretion to set
aside the approval of the plans. I accept
this proposition but PDC
did not in its answering papers allege facts to support a conclusion
that the review court would not grant
the normal remedy of setting
aside the administrative action. Mr Dickerson did not press the point
in oral argument.
The
two-street access argument
[32]
The first point
advanced on behalf of PDC in opposition to the application is that
Kings Road does not provide the ‘only vehicle
access to the
property’ within the meaning of item 40(c). Kloof Street, which
is wider than 9 m, runs adjacent to the
property’s
southern boundary. Both Kings Road and Kloof Street, so the argument
goes, allow vehicles to access the property,
ie to get to its
boundary. Mr Dickerson submitted that item 40(c) is not concerned
with the peculiarities of a particular building
plan but with the
property’s physical characteristics. One must be able to
determine the permissible uses of a property before
submitting plans.
It is thus irrelevant, for purposes of item 40(c), that PDC chose to
make Kings Road the only entrance for vehicular
ingress to the
property. (For convenience, I shall refer to this as the two-street
access argument.)
[33]
Mr Dickerson added that
the non-applicability of item 40(c) would not mean that the City
could not refuse to approve plans if it
thought the vehicle access
onto the property was undesirable from a safety or traffic-flow
perspective. However, unless item 40(c)
applies, there would be no
absolute bar to the approval of such plans.
[34]
The provisions of the
DMS relating to each zoning follow a standard pattern: ‘use
restrictions’ for the zoning are stated
first, followed by
‘development rules’ and ending with ‘conditions’
applicable to certain types of use.
Item 40 sets out the ‘use
restrictions’ for zonings GR2 to GR6.
[35]
The use restrictions in
general partake of the character for which Mr Dickerson argues,
namely restrictions which are not a function
of specific plans
proposed by the owner. I accept also, as a matter of language, that a
road could be regarded as giving vehicular
access to a property even
though there is no vehicular ingress onto the property from that
road. For example, one could say that
a particular road provides
vehicle access to a property even though the property has no garage
or off-street parking.
[36]
Legislation must be
interpreted purposively. The precise purpose of the restriction in
item 40(c) is open to debate. One view, which
might support Mr
Dickerson’s argument, is that the lawmaker’s concern was
with parking congestion in adjacent roads.
A group housing
development would attract more visitors than a property containing
only one or two dwellings. Another view, which
would militate against
Mr Dickerson’s argument, is that the lawmaker was concerned
with the frequent ingress and egress off
narrow roads to and from the
property. There would be more frequent vehicular ingress and egress
where the property is developed
for multiple dwelling units than
where it is used for only one or two dwellings. What might favour
this latter view of the purpose
is that Chapter 15 of the DMS
contains detailed provisions for off-street parking, including
parking for visitors. Parking congestion
on the road is thus not
likely to have been the lawmaker’s concern.
[37]
The more natural
reading of the phrase ‘vehicle access to the property’ is
access which allows a vehicle to get onto
the property. Important in
this regard is the phrase ‘
from
an adjacent road reserve’ (my emphasis). The access
contemplated in item 40(c) is not access by way of a road to the
property
but access from a road reserve to a property. This implies
movement from the road to the property.
[38]
There are some
indications in the other provisions of the DMS that the word ‘access’
is used in this sense. Item 41(f)
says that ‘parking and
access’ must be provided on a land unit in accordance with
Chapter 15. Parking and access in
this sense are not pre-existing
features of the area (such as surrounding roads) but facilities
created by the owner. In terms
of Chapter 15 (items 137-145) an owner
is required to provide off-street parking in accordance with the
table specified in item
138. Where land is used for ‘group
dwelling’ purposes, for example, there must be 1,75 bays per
dwelling plus 0,25
bays per dwelling unit for visitors. Item 140 is
headed ‘site access and exits’. Item 140(1) sets out the
‘access
requirements’ that apply, including that
‘vehicular ingress or egress’ must not be closer than 10
m from an intersection.
The City may restrict or prohibit ‘access’
if a pedestrian or traffic hazard is created or likely to be created.
Item
140(2) sets out further requirements in respect of ‘vehicle
entrances and exit ways to and from the property’. Ordinarily
only one ‘carriageway crossing’ is permitted ‘per
site per public street or road abutting the site’. (The
term
‘carriageway crossing’ is defined in item 1 as meaning
‘an entrance or exit way, or a combined entrance
and exit way,
from a land unit to an abutting road’.) In these provisions
access appears to be equated with ingress/egress
and entrances/exit
ways.
[1]
[39]
If Mr Dickerson’s
argument were rejected, one would have to find that item 40(c) is a
use restriction which flows from the
particulars of the plans
submitted by the owner rather than from the objective characteristics
of the property. I do not regard
this as a strong objection. Item
40(c) is on any reckoning a unique type of use restriction. I have
not found any analogous use
restrictions (as distinct from
development rules and conditions) in the rest of the DMS. Item 40(c)
must be interpreted on its
own terms. I have no particular difficulty
in viewing it as a use restriction flowing from the particular access
proposed by the
owner as part of his plans.
[40]
Accordingly, and while
PDC’s two-street access contention is arguable, my assessment
is that the applicants have distinctly
the better side of the
argument.
[41]
To this I may add the
following. There is nothing in the papers to suggest that PDC and the
City, when the plans were under consideration,
understood item 40(c)
to have the meaning for which PDC now argues. On the contrary, the
servitude process was followed precisely
because item 40(c) was seen
as creating an obstacle to the approval of the plans. Accordingly,
the City cannot be said to have
approved the plans in the exercise of
the discretion which Mr Dickerson now argues it had. The City thought
that item 40(c) applied
and apparently concluded that the problem had
been overcome by means of the servitude.
The
ownership point
[42]
On the assumption that
item 40(c) is applicable, the applicants contend that the registered
servitude has not had the effect in
law of widening the ‘road
reserve’ to 9 m. In order to constitute part of a ‘road
reserve’, there
must be a designated area of land which
actually contains ‘or is able to contain’ a ‘public
street or public
road’. Both sides, as I understood counsel,
accept that the land does not yet have to be a public street or
public road in
order to be part of the road reserve. I also
understood both sides to accept that land cannot be said to be able
to contain a public
street or public road merely by virtue of the
fact that it would be possible, as a matter of engineering, to
construct a street
or road on it. The land must be such that the City
has the right to develop it as a public street or public road.
[43]
Mr Baguley for the
applicants argued that the servitude area does not have this quality
because the City would have to own the land
before it could develop
it as a public street or public road. In support of that contention
he referred me to the Roads Ordinance
19 of 1976 and argued that it
was necessarily implicit from s 3 (the declaration of roads) and
s 27 (expropriation of
property for road purposes) that a road
could only be created on land owned by the road authority. To this
might be added a reference
to s 22 of the Roads Ordinance which
provides that the ownership of all public roads and public paths
shall vest in the road
authority concerned.
[44]
However, and as Mr
Dickerson pointed out, the definition of ‘public road’ in
the By-Law refers not to the Roads Ordinance
19 of 1976 but to the
Municipal Ordinance 20 of 1974. I was not fully addressed on the
possible applicability of the Roads Ordinance.
It is probable that
Fresnaye is located within an ‘inner municipal area’ for
purposes of the Roads Ordinance. The only
type of road which can be
proclaimed under the Roads Ordinance in an inner municipal area is a
main road (s 3(1)(c)(ii) read
with s 4(b)). No one suggests that
Kings Road is, or is intended to become, a main road. The Roads
Ordinance thus does not determine
the question whether land could
become part of the road reserve of Kings Road by way of servitude.
[45]
The definition of
‘public road’ in the By-Law refers to a public right of
way, whether for vehicles or pedestrians,
established or proclaimed
in terms of the Municipal Ordinance or any equivalent current
municipal by-law and/or national legislation.
Many of the provisions
of the Municipal Ordinance have been repealed. These
include
s
129 (the power
of a council inter alia to construct and alter streets) and s 136
(the power of a council, after compliance
with certain procedures, to
declare any street or portion thereof as a public street). I was not
referred to the legislation under
which municipalities in general or
the City in particular now has the power to declare and construct
public streets.
[46]
Section 122 of the
Municipal Ordinance, which is still in force, reads as follows:
‘
(1) The
ownership of all immovable property to which the inhabitants of a
municipal area have or may acquire a common right
and of all public
places and public streets and the land comprised in such places and
streets shall vest in the municipality; provided
that the ownership
of the land comprised in a public street referred to in paragraph
(a) of the definition of “public
street” in section
2 shall not vest and shall not be deemed to have vested in the
municipality where the owner of such land
and the council by written
agreement approved by the Administrator expressly agree and declare
that such vesting shall not take
place or shall be deemed not to have
taken place.
(2) The Registrar of Deeds
shall, whenever he is notified by the Administrator of the existence
of an agreement contemplated
by the proviso to subsection (1), record
in his registers the fact that such agreement exists and make a
suitable endorsement against
the title deeds of the land concerned.’
[47]
The term ‘public
street’ is defined in s 2 of the Municipal Ordinance
(another provision still in force) as meaning
‘
(a) any
street which has at any time been –
(i) dedicated to the
public;
(ii) used without
interruption by the public for a period of at least thirty years;
(iii) declared or rendered
such by a council or other competent authority, or
(iv) constructed by a local
authority, and
(b) any land, with or
without buildings or structures thereon, which is shown as a street
on –
(i) any plan of subdivision
or diagram approved by a Council or other competent authority and
acted upon, or
(ii) any general plan as
defined in section 49 of the Land Survey Act, 1927 (Act 9 of 1927),
registered or filed in a deeds
registry or the Surveyor-General’s
office,
unless such land is on such plan
or diagram described as a private street.’
[48]
Section 2 contains a
definition of ‘owner’. Its provisions are somewhat
convoluted. For purposes of Chapter IX (in which
s 122 falls),
the definition does not appear to extend the ordinary meaning of
ownership to include the beneficiary of a servitude.
[49]
As I have said, counsel
did not refer me to the legislation under which the City currently
has the power to declare public streets
though I assume the power
still exists. Be that as it may, s 122 specifically authorises
an arrangement between the owner
of land and a municipality in terms
whereof land constituting a public street of the kind contemplated in
para (a) of the definition
of ‘public street’ will not
vest in the municipality. One such arrangement would be a servitude,
which by definition
reserves bare dominium in the grantor. The
servitude would enable the City, without acquiring ownership, to
declare the servitude
area a public street as contemplated in para
(a)(iii) of the definition.
[50]
Mr Dickerson went
further and argued that, by virtue of the provisions of s 122(1),
the City was by operation of law already
the owner (in the full
sense) of the servitude area. He made this submission on the basis
that full ownership of public streets
vests in the municipality
unless there is a written agreement to the contrary between the owner
and the municipality. There was
no such agreement in this case
because the servitude was a unilateral act by PDC.
[51]
It is true that the
servitude was executed only by PDC. However, the servitude records
that its execution was a condition for the
approval of PDC’s
development. The City’s letter of 9 September 2015 and its
subsequent approval of the plans necessarily
imply acceptance of the
benefit of the servitude. The nature of a servitude is such that bare
dominium vests in the grantor. By
accepting the servitude, the City
must have accepted that PDC would retain ownership.
[52]
Furthermore, s 122(1)
only applies to land which is in fact a public street. The granting
of the servitude does not itself
make the servitude area a public
street. The servitude area would only become part of a public street
if the City made such declaration
under a power equivalent to the
repealed s 136 of the Municipal Ordinance.
[53]
Section 122(1) requires
the approval of the ‘administrator’ (now to be read as a
reference to the Premier
[2]
)
in order for there to be an arrangement by which ownership does not
vest in the municipality. Whether this requirement remains
valid in
the light of the Constitution’s distribution of powers among
the various spheres of government was not discussed
in argument.
[3]
(The further requirement for an endorsement by the Registrar of Deeds
is simply a matter of record-keeping.) If the arrangement
by which
PDC retains ownership of the servitude area is one which requires the
approval of the Premier before the area can be made
part of a public
street, it is arguable that the servitude area does not yet
constitute land which is able to contain a public
street, since the
City and PDC will need an external approval (that of the MEC) before
the area can actually become a public street.
[54]
Thus far I have been
addressing the question whether the servitude area is, in the absence
of ownership thereof by the City, ‘able
to contain’ a
‘public road’ (it is the definition of ‘public
road’ in the By-Law that takes one to
the Municipal Ordinance,
though confusingly the Municipal Ordinance uses the expression
‘public street’ rather than
‘public road’).
Land might also be included in the ‘road reserve’ if it
is able to contain a ‘public
street’ as defined in the
By-Law. The definition of ‘public street’ appears to
require ownership by the City.
[55]
These are murky waters
and extend to issues which were not touched on in argument. While the
applicants may have an arguable case
on the ownership point, I am
left with considerable uncertainty about the strength of their case,
since it is not clear to me that
land on which a ‘public road’
(as distinct from a ‘public street’) is located has to be
owned by the City.
The
rezoning point
[56]
Mr Baguley submitted
that because the servitude area was zoned GR4 it could not, without a
rezoning, be used as a public street.
The servitude area was thus
not, he argued, able at the present time to contain a public street
or public road. The zoning that
would be required would be Transport
Zoning 2 (see item 20 of the DMS read with items 87-92). As
previously mentioned, this point
was not taken on the papers but Mr
Baguley said it was a purely legal issue.
[57]
Mr Dickerson submitted
that the answer to this argument was to be found in item 16(3) of the
DMS which reads as follows:
‘
Any
public road and public street and any portion of land proclaimed or
reserved under any law as public road or public street or
the
widening or improvement of any such existing public road or street or
specified on a General Plan of a registered township
as a public road
or public street, shall be deemed to be zoned as Transport Zoning 2:
Public Street and Public Parking.’
[58]
This item may well have
the effect that, provided the City follows the required procedures
for declaring a public street (formerly
s 136 of the Municipal
Ordinance), the land so proclaimed will automatically be rezoned as
Transport Zoning 2. Quite what
those procedures now are is not a
matter on which I was addressed.
[59]
Accordingly, and at
least in the absence of fuller argument, I cannot conclude that this
argument by the applicants is particularly
strong.
The
whole-boundary point
[60]
The applicants contend
that, even if a servitude could notionally solve the problem of the
road reserve’s width for purposes
of item 40(c), the servitude
in the present case did not do so because it only extends over about
half the length of the property’s
boundary with Kings Street.
The ‘adjacent road reserve’ contemplated in item 40(c) is
the full length of the adjacent
road reserve.
[61]
Mr Dickerson argued
that, because Kings Road is a one-way street running northwards, it
sufficed for the road reserve to be widened
to 9 m from the
northern edge of the vehicle entrance down to Kloof Street. Since
vehicles could only approach the entrance
from the Kloof Street end
of Kings Road, there would be no point in widening the road reserve
on the part of Kings Road to the
north of the entrance. It was only
the part of Kings Road running from Kloof Street to the entrance that
was a road reserve giving
access to the property.
[62]
I have a ready
explained my reasons for favouring the view that ‘access’
in item 40(c) means the vehicular entrance
to the property. It is
that entrance, and not the 22/23 meters of Kings Road running from
the corner of Kloof Street to the entrance
point, that constitutes
the ‘access’ contemplated in item 40(c). Mr Dickerson
accepted in argument that it would not
be sufficient, for purposes of
item 40(c), for the road reserve to be widened to 9 m only for the
couple of metres constituting
the width of the vehicular entrance to
the property. The road reserve contemplated in item 40(c) is the road
reserve ‘adjacent’
to the ‘property’. On the
face of it, this means the whole of the property which is adjacent to
the road reserve.
[63]
Mr Dickerson’s
submission thus appears to me to involve reading words into item
40(c). In
Rennie NO
v Gordon & Another NNO
1988
(1) SA 1
(A) Corbett JA, with reference to a plethora of earlier
cases, said that our courts have consistently adopted the view that
words
cannot be read into a statute by implication ‘unless the
implication is a necessary one in the sense that without it effect
cannot given to the statute as it stands’ (22E-H). This view
has been repeated in subsequent decisions of the Supreme Court
of
Appeal (see, for example,
American
Natural Soda Ash Corporation & Another v Competition Commission
of South Africa
[2005]
3 All SA 1
(SCA) para 27).
[4]
[64]
I doubt whether it is
necessary to imply into item 40(c) a qualification that, in the case
of a one-way street, the road reserve
need only be 9 m wide for
so much of the length of the property as is adjacent to the entrance
and adjacent to the part of
the road running towards the entrance.
Apart from other considerations, a one-way traffic flow is not
necessarily a permanent feature
of a road. Item 40(c) is not
unworkable as it stands. If the road reserve is narrower than 9 m the
owner (if he cannot get a departure)
must either limit his use to
single dwelling/two dwellings or set his building further back so as
enable the road reserve to be
widened.
[65]
Accordingly, I think
the applicants’ argument on this issue is distinctly preferable
to DPC’s.
The evasion
and building line points
[66]
I intend to take
together the grounds of review based on evasion of the DMS and
potential violation of the 4,5 m building line.
[67]
Mr Dickerson, in the
course of his submissions regarding the Municipal Ordinance,
submitted that the servitude area was now owned
by the City and was
already a ‘public street’ pursuant to s 122(1) of
the Ordinance. If that submission were correct,
PDC would in my view
face great difficulty in warding off the review. Item 41(c) provides
that the 4,5 m building line must
be measured from the ‘street
boundary’. If the servitude area is part of the Kings Road
public street, the building
line would have to be measured from the
eastern border of the servitude area. The uncontested evidence of the
applicants’
town planner, Mr Saunders, is that the current
building would materially encroach upon the 4,5 m building line
measured from the
eastern boundary of the servitude.
[5]
[68]
PDC did not, in its
initial answering papers, deal with Mr Saunders’ evidence.
Although on my reading of the founding papers
the point about the
building line was clearly taken, Mr Dickerson said in argument that
his client had not so understood the application.
I thus allowed PDC
an opportunity to file supplementary affidavits regarding the
building line. Those affidavits did not dispute
Mr Saunders’
evidence but rather asserted that the cadastral boundaries of Kings
Road and Erf 118 remained unaltered, that
there had been no
subdivision, that PDC was still the owner of the servitude area and
that the 4,5 m building line should
be measured from the
pre-existing eastern boundary of Kings Road.
[69]
The assertion that PDC
is still the owner of the servitude area is at odds with Mr
Dickerson’s submission based on s 122
of the Municipal
Ordinance. It so happens, however, that PDC’s assertion strikes
me as correct, for reasons I have explained
in dealing with the
Municipal Ordinance. And I also think that the servitude is not yet a
‘public street’ because it
has not been so declared by
the City, even though it arguably could be so declared by virtue of
the servitude. On this basis the
servitude area could arguably form
part of the ‘road reserve’ without in fact yet being part
of the Kings Road public
street. If this is right, the proposed
development could currently be regarded as complying with item 40(c)
without contravening
item 41(e)(i).
[70]
However, this apparent
compliance exists only because the definition of ‘road
reserve’, which is relevant to item 40(c),
includes an area
which for convenience I shall call a potential street (because the
land is able to be used as a public street),
whereas the ‘street
boundary’, which is relevant to item 41(e)(i), refers to the
boundary of an actual street. I have
some difficulty, however, in
seeing how this apparent compliance could satisfy a rational
decision-maker. The purpose of item 40(c)
is not merely to have a
road reserve on paper but to have a road reserve which could in truth
result in a public street (inclusive
of its associated verge) having
a width of 9 m. In the present case, the conversion of the
potential street into an actual
street would immediately bring the
development into conflict with item 41(e)(i). The ostensible
compliance with item 41(e)(i) would
exist only for so long as the
City has no intention of using the apparent rights which the
servitude confers on it.
[71]
It thus seems to me
that in the review proceedings PDC and the City will find themselves
on the horns of a dilemma. If they contend
that the servitude area
now forms part of the Kings Road public street, PDC’s approved
plans are in violation of item 41(1)(e).
If they contend that the
servitude area does not currently form part of the Kings Road public
street, the City would need to explain
how it could rationally have
regarded the servitude as an acceptable basis for approving the
plans, given that any exercise by
it of its supposed rights under the
servitude would result in a violation of the building line.
[72]
Item 6 of the DMS
stipulates, perhaps unnecessarily, that the City may refuse any
application in terms of the By-Law if it considers
such application
‘to constitute or facilitate an evasion of the intent of this
development management scheme or any of its
provisions’. In the
present case it seems to me that the applicants have strong grounds
for contending in the review that
the supposed servitude is an
evasion of the intent of the DMS and that neither PDC nor the City
had any real intention that the
servitude should ever be acted upon
by declaring the servitude area a public street. Item 6 would be
directly implicated in relation
to the proposed review of the
exemption granted in terms of item 67(3), because such exemption
required an application in terms
of the By-Law. The same
considerations would, however, also taint the approval of the
building plans in terms of the NBR Act.
[73]
For present purposes it
seems to me not to matter much how one categorises the ground of
review. One could say that the servitude
is a sham and that the
servitude area thus does not form part of the ‘road reserve’.
One could say that to have regard
to the servitude, given that it
cannot not be acted upon without violating item 41(e)(i), was to take
into account an irrelevant
consideration. Or one could simply say
that to approve the plans on the basis of an ostensible
reconciliation of items 40(c) and
41(1)(e), when the purpose of the
one provision could never be realised without frustrating the purpose
of the other, was irrational.
[74]
I should add, for the
sake of completeness, that the words ‘and associated verge’
in the By-Law’s definition of
‘road reserve’ do not
in my view mean that the associated verge can exist as something
apart from the public street
or public road which the area of land is
able to contain. The definition merely recognises that a public
street or public road
is not limited to the surface on which vehicles
can travel but may include pavements and other types of verges not
intended for
vehicular traffic. Unless the City decides to
incorporate the servitude area into Kings Road by making it part of
the public road,
the servitude area would not be part of Kings Road’s
‘associated verge’.
[6]
And if the servitude area were made part of the public road, it would
shift the 4,5 m building line eastwards.
[75]
Accordingly, on the
evasion/building line point the applicants seem to me to have a
strong case.
Irreparable
harm, balance of convenience and discretion
[76]
Drawing the threads
together, I consider that the applicants have a reasonably strong
case for resisting DPC’s attempt to
take itself outside of item
40(c) by way of the two-street access argument. As to the applicants’
proposed grounds of review,
the ownership point and the rezoning
point are arguable but of doubtful merit whereas the whole-boundary
point and the evasion/building
line point are strong. The applicants
would only need to come home on one of their grounds in order to
succeed in the review.
[77]
The applicants thus
have a strong prima facie right. I therefore turn to the other
requirements for an interim interdict, namely
a reasonable
apprehension of irreparable harm and balance of convenience and the
related aspect of the court’s discretion.
[78]
The applicants alleged
that they faced irreparable harm of two kinds: (i) If an interim
interdict were refused but the review
ultimately succeeded, the
completed state of the building would disincline a court to order
demolition, thus rendering the purported
vindication of their rights
nugatory. (ii) Following a successful review, the avoidance of
demolition of a completed building
would exercise unhealthy influence
on the minds of the City’s officials in relation to possible
remedial action to save the
structure, such as the granting of a
departure from item 40(c).
[79]
In answer to the first
of these points, Mr Dickerson submitted that, if the building plans
were set aside and the building was not
in accordance with any other
plans which might thereafter be approved, a court would be bound to
order demolition. He referred
in that regard to
Lester
v Ndlambe Municipality & Another
2015
(6) SA 283
(SCA). DPC also undertook in its answering affidavit that
it would not, in response to any future demolition application, rely
on prejudice flowing from future building work.
[80]
Mr Baguley argued that
a distinction was drawn in
Lester
between the
position of a municipality seeking demolition in terms of s 21
read with s 4(4) of the NBR Act (where the
principle of legality
requires that an unlawful structure be demolished) and relief sought
by private parties on neighbour law
principles (where the court has a
discretion). However, I do not think the applicants in the present
case are invoking neighbour
law principles any more than the second
respondent in
Lester
(Haslam) did (see
paras 21-22). Although the applicants’ locus standi flows from
the fact that they own neighbouring properties,
their cause of action
is squarely based on non-compliance with the By-Law, non-compliance
which in turn renders the approval of
building plans unlawful in
terms of s 7 of the NBR Act.
[81]
The present type of
case is nevertheless distinguishable from
Lester
.
Lester erected, or continued to erect his house, without
approved plans. By the time demolition was ordered his attempts
to
obtain municipal approval for the house as built had failed. Here, by
contrast, PDC is erecting the building in accordance with
plans which
have as a fact been approved. On the assumption that a successful
review would retrospectively implicate s 21
of the NBR Act, that
statutory remedy would only be reached if the review court exercised
its discretion to set aside the approval
of the plans. If the court
declined to set aside the approval, the plans would stand and thus in
effect be validated (
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
2004
(6) SA 222
(SCA) para 27;
Chairperson,
Standing Committee & Others v JFE Sapela Electronics (Pty) Ltd &
Others
2008 (2) SA
638
(SCA) para 28). The completed building would not in these
circumstances be liable to demolition (see
Du
Toit v Knysna Municipality & Another
[2015]
ZAWCHC 98
para 94). This discretion was not available in
Lester
because the
municipality had not in fact approved the plans and the court’s
discretionary review jurisdiction was thus not
implicated.
[82]
If the review were
sound on its merits, PDC’s statement in the present proceedings
that it will not rely on further building
work as a factor weighing
against demolition would certainly militate against the exercise in
its favour of a discretion against
setting aside the approval of the
plans. It can nevertheless be anticipated that a review court would
be reluctant to make an order
which would have as a necessary
consequence that a completed multi-storey building has to be
demolished. This might operate either
at the stage of the review
presently proposed or at the stage of a later review of any decision
taken in an attempt to remedy the
current problems. And on the
assumption that PDC would not be entitled to repudiate its deponent’s
undertaking (he is its
managing director), there might be others (the
City, future owners of units) who would be entitled to urge the court
not to make
any decision which would result in demolition (cf
PS
Booksellers Pty Ltd & Another v Harrison & Others
2008
(3) SA 633
(C) para 106).
[83]
The other form of harm
relied on by the applicants is the one mentioned by Binns-Ward AJ (as
he then was) in
Seale
supra para 11,
namely
‘…
the incentive
the completed state of the building might afford for functionaries to
go out of their way to determine regularisation
applications
favourably and thereby permit a result that would not have been
permitted if the factor of a fait accompli had not
been present. This
potential could in a given case necessitate the applicant’s
involvement in a succession of further review
applications in order
to obtain effective redress.’
This
consideration and the proposition that prejudice to the respondents
was subordinate to the applicant’s entitlement to
enforce the
principle of legality (para 26) seem to have been regarded by
Binns-Ward AJ as decisive in a case where he assessed
the applicant’s
prima facie right as quite strong. (See also
Augoustides
supra paras 26-27).
[84]
The applicants gave, as
an example of remedial action in relation to which this incentive
might apply, a future application by PDC
for a departure from the
requirements of item 40(c). PDC did not allege in its answering
papers or argue through counsel that a
departure application could
not in principle be made. I was not addressed on the law relating to
departures. Permanent departures
were permissible in terms of s 15
of the Land Use Planning Ordinance 15 of 1985. The said Ordinance
was, in relation to the
City, repealed by the Western Cape Land Use
Planning Act 3 of 2014 with effect from 1 July 2015. The definition
of ‘departure’
in s 1 of Act 3 of 2014 as read with
s 35 thereof appears to assume that a municipality has the power
to grant permanent
departures. Section 45 of the By-Law, however,
seems only to permit temporary departures not exceeding five years.
Whether rolling
five-year departures would be permissible when in
substance a permanent exemption is intended may be open to
question.
[7]
But unless permanent departures or rolling five-year departures were
permissible, the City would not be able permanently to relax
any of
the provisions of the By-Law, including building lines. This is an
unpalatable conclusion. If this really were the effect
of the By-Law
as it now stands, it would surprise me if the City did not amend the
By-Law.
[85]
PDC did not argue that
a departure could not in principle be sought, even if by way of
rolling five-year departures. The papers
reflect that PDC has sought
other departures in respect of its plans.
[86]
If an interim interdict
is refused and the building is completed, PDC will, quite
understandably, pursue every remedy to try to
save the building from
demolition, including appeals through the courts and administrative
applications to the City. Apart from
the influence which the
completion of the building may have on City (and I would expect such
influence to grow the longer the building
stands), the applicants, if
they wish to prevail, will probably be drawn into further legal
proceedings and in the meanwhile have
to tolerate a building the
plans for which, on my provisional assessment, should not have been
approved.
[87]
A final aspect relevant
to the balance of convenience and discretion is that the applicants
have not tendered damages if the interim
interdict is granted but the
review ultimately fails. PDC alleges that, if an interim interdict
were granted but the review were
to be disposed of against the
applicants by the end of February 2016, PDC’s damages would
exceed R2 million because of additional
preliminary and general costs
and cost escalations. If the review were decided later, the damages
would increase with each passing
week.
[88]
In appropriate cases a
court might, in the absence of an undertaking to pay damages, regard
the balance of convenience as favouring
the respondent; or the court
might grant an interim interdict on condition that an undertaking to
pay damages (with or without
security) be furnished (see
Shoprite
Checkers Ltd v Blue Route Property Managers (Pty) Ltd & Others
1994 (2) SA 172
(C)
at 184G-H;
Cronshaw
& Another v Fidelity Guards Holdings (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(A) at 690H-691A;
Hix
Networking Technologies v System Publishers (Pty) Ltd & Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A)
at 403E-F). However, it is certainly not the law that an application
for an interim interdict will always be refused unless
such an
undertaking is furnished.
[89]
The present case is not
a commercial dispute. The applicants are not seeking to protect
business interests. If neighbours in such
circumstances were refused
interim relief unless they tendered damages, I would expect very few
neighbours to be willing to take
the risk of litigation. Even a small
risk of defeat in the review would, if it entailed a potentially
large liability for damages,
deter all but wealthiest or most
foolhardy individuals. The applicants appear to me to have quite
strong prospects in the review.
[90]
In the circumstances, I
do not think I should withhold relief because of the refusal to
tender damages. But potential harm to PDC
must be kept to a minimum
by expediting the determination of the review application. Since the
City did not participate in the
hearing before me, I cannot now set a
timetable for the furnishing of the record and the filing of further
papers. However, the
review appears to raise mainly legal points. PDC
should be in a position forthwith to furnish to the applicants the
documents it
submitted to the City in relation to the approval for
the building plans and the subdivision approval. PDC and the
applicants should
cooperate in prevailing upon the City promptly to
furnish any internal documents relevant to the decisions in issue and
to agree
to an expedited timetable. The parties and their legal teams
will if necessary have to work during recess. I see no reason why,
with sensible cooperation, the review should not be capable of being
heard by the middle of February 2016. Dates are currently
available
on the semi-urgent roll as from 9 February 2016. My order will
authorise the enrolment of the case on the semi-urgent
roll and will
grant leave to the parties to approach the court for directions if
they cannot agree on a timetable.
Conclusion
and order
[91]
DPC applied to strike
out certain matter from the replying affidavit. There was an
objection to paras 13-15 which contained what
I have called the
rezoning point. Since this was a purely legal issue I do not think
the objection is well-founded. In any event,
this proposed ground of
review is not one which has impressed me for purposes of interim
relief.
[92]
Paras 33-45 were also
said to contain new matter. These paragraphs arose from the
disclosure in the answering papers regarding the
subdivision
exemption. Since the applicants did not know about the subdivision
application or subdivision exemption until receipt
of the answering
papers, they were entitled to deal with it as they did. PDC
subsequently canvassed these matters in their supplementary
papers.
Once again, however, the subdivision issue has not featured
significantly in my assessment of the applicants’ prospects
of
success.
[93]
The remaining
objections were to matter which was allegedly argumentative or
vexatious. I doubt whether any of the matter in question
rose to the
level of vexatiousness. The inclusion of the material has not
occasioned prejudice as I have not relied on any imputations
directed
at PDC or the City in reply.
[94]
I thus do not intend to
make any order on the striking-out application. It did not take up
significant time in argument.
[95]
I make the following
order:
(a) The applicants’ non-compliance with the
time periods, forms and processes set out in the Uniform Rules of
Court is
condoned and the hearing of the Part A relief on an urgent
basis is authorized.
(b) The first respondent is interdicted from
carrying out any further building work on its property at Erf 118
Fresnaye, Cape
Town, pending the final determination of the relief
set out in Part B.
(c) The costs of the Part A application will stand
over for determination at the hearing of the Part B application.
(d) The
parties (including the second respondent) are directed to use their
best endeavours to reach agreement, by not later
than Thursday 17
December 2015, on an expedited timetable for the filing of papers
with a view to the hearing of the Part B application
on the
semi-urgent roll in the second half of February 2016.
(e) If the parties reach agreement as aforesaid,
they are authorized to cause the matter to be enrolled on the
semi-urgent
roll.
(f) If
the parties cannot reach agreement as aforesaid, any of them may, on
48 hours’ notice, approach the court (including
the duty judge
during recess) for directions in regard to the filing of further
papers and the fixing of the date on the semi-urgent
roll.
______________________
ROGERS
J
APPEARANCES
For
Applicant
Mr
DW Baguley
Instructed
by
C
& A Friedlander Inc
3
rd
Floor, 42 Keerom Street
Cape
Town
For
First Respondent
Mr
JG Dickerson SC & Ms K Reynolds
Instructed
by
KJ
Bredenkamp Attorneys
Ground
Floor, 50 Keerom Street Chambers
Cape
Town
[1]
The word ‘access’ is used in the same
sense in s 18(1) of the Roads Ordinance 19 of 1976 (C).
[2]
See item 3(2)(b)(ii) of Schedule 6 to the
Constitution, the administration of the Municipal Ordinance having
been assigned to
the Province of the Western Cape in terms of
s 235(8) of the interim Constitution Act 200 of 1993.
[3]
‘
Municipal roads’, like ‘municipal
planning’, is a local government matter (see s 156 of the
Constitution
read with Part B of Schedule 5) and may thus be
susceptible to a challenge of the kind which succeeded in
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v The Habitat Council & Others
2014
(4) SA 437
(CC) paras 11-15.
[4]
I discussed these and other cases in
Berg
River Municipality v Zelpy 2065 (Pty) Ltd
2013
(4) SA 154
(WCC) paras 27-29.
[5]
See his marked-up diagram at p 46.
[6]
Although ‘verge’ is not defined in
the By-Law, PDC’s counsel referred to the City's By-Law
relating to Streets,
Public Places and the Prevention of Noise
Nuisance, where 'verge' is defined as meaning 'that portion of a
road, street or thoroughfare,
including the sidewalk, which is not
the roadway or the shoulder'. This is, I think, the usual sense of
the word.
[7]
The exemption provisions in ss 67 and 140
would not seem to be germane.