About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 102
|
|
Gerstle and Others v City of Cape Town and Others (A484/2015) [2016] ZAWCHC 102; [2016] 4 All SA 533 (WCC); 2017 (1) SA 11 (WCC) (15 August 2016)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Reportable
CASE NO: A484/2015
In
the matter between:
JUNE ELAINE GERSTLE
First
Appellant
SANDRO BERNARDI
Second
Appellant
LOUIS MATHYS BURGER
Third
Appellant
TRACY LEE BROWN
Fourth
Appellant
ELLEN ELIZABETH VAN DER MERWE
Fifth
Appellant
MALCOLM EDGAR BROOKS
Sixth
Appellant
ADRIANA LUCIA VAN DYK
Seventh
Appellant
BRUCE ANDREW JAMES
Eighth
Appellant
JOHANN JURGENS SCHOEMAN
Ninth
Appellant
JENNIFER ANN SCHOEMAN
Tenth
Appellant
MOFASI
PROP DEVELOPERS CC
Eleventh
Appellant
and
THE CITY OF CAPE TOWN
First
Respondent
GAVIN MICHAEL BROWN
Second
Respondent
BETTY
GENOFEVA BROWN
Third Respondent
JUDGMENT:
15 August 2016
DAVIS
J
Introduction
[1]
This
appeal is against the order of Engers AJ of 20 February 2015 in which
the learned judge dismissed an application for the review
and setting
aside of two building plan approvals granted by the first
respondent. Both review applications were consolidated
and
heard together resulting in the judgment to which I have made
reference.
[2]
The
properties which are the subject of this litigation formed part of
the Mill Row Housing Development (‘Mill Row’),
a group
housing development situated in area known as Sunset Beach.
Mill Row consist of seventeen properties, eight of which
are in
the back row (comprising of seven double storeys and one double
storey with a basement) and eight of which are in the front
row and,
at present, constitute a single storey residential dwellings.
[3]
The
effect of a decision taken by first respondent in terms of s 7 of the
National Building Regulations and Building Standards Act
103 of 1977
(NBR Act) was to grant approval for two second storey to be
constructed on two of the single storey properties located
in the
front row of Mill Row. It is this decision which was the
subject of the application dismissed by Engers AJ and
now, with the
leave of the court
a
quo
,
the subject of this appeal.
The
background to this litigation
[4]
In
June 2011 second and third respondents as well as the trustees of the
Welkom Property Development Trust (respondents in Case
No: 15074/2013
(‘the Trust’) purchased existing front row dwellings in
Mill Row. In June 2011 the second and
third respondents
submitted plans to first respondent in order to convert their front
row dwellings to a double storey dwelling.
These plans
were approved by first respondent, which approval permitted both
second and third the respondents to convert their
front row single
storey dwelling into a double storey. The Trust submitted
a similar plan which was also approved by
first respondent. It was
against these applications that the appellants, who are registered
owners of dwellings in Mill Row applied
to the court
a
quo
for the setting aside of first respondent’s decision to approve
these building plans.
[5]
The
application before the court
a
quo
was based on a series of submissions of appellants to the effect that
the planning approval should have been refused because the
application did not comply with the relevant legislation and, in
particular, with s 7 (1)(b)(i)(aa) of the NBR Act, in that first
respondent could not have satisfied itself that the building to which
the application in question relates:
‘
(aa)
is to be erected in such manner or will be of such nature or
appearance that-
(aaa)
the area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb)
it will probably or in fact be unsightly or objectionable;
(ccc)
it will probably or in fact derogate from the value of adjoining or
neighbouring properties.
’
[6]
Appellants
further submitted that the owners of the units in the back row of
Mill Row had a legitimate expectation that the owners
in the front
row would not be entitled to build a second storey.
[7]
Engers
AJ found that first respondent had assessed the proposed plans in a
careful fashion in relation to their consistency with
the
architecture of Mill Row and found further these that plans were
compliant with the zoning scheme in terms of s 7 (1) (a) of
the NBR
Act. Engers AJ noted that there were no restrictive title deed
conditions, registered servitudal rights or a home
owners association
with a constitution which regulated height nor a sile development
plan (SDP). Accordingly, any intention
which might have been
professed by the developer and architect to retain the first row of
Mill Row as a single storey structure
could not be converted into a
right in favour of the background houses over those in the first row,
in the absence of a registration
of rights through any of these
specified avenues.
[8]
The
appellants also relied on s 11 of the Land Use and Planning Ordinance
15 of 1985 (‘LUPO’) and the zoning scheme
which was
promulgated on the basis of LUPO. In terms of this zoning
scheme, Mill Row is classified as a Group Housing
Scheme which is
defined as:
‘
A
group of separate and/or linked and/or individual dwelling units on
smaller than conventional erven and which is planned, designed
and
built as a harmonious architectural entity with a medium density
character in which the structures vary between single and
double
storeys.
’
[9]
Engers
AJ found that this definition of a group housing scheme could not be
elevated to a status that constituted a prohibition
against the front
row houses being built into double storey houses.
Finally, the learned judge also found that appellants
did not have a
substantive legitimate expectation that the front row houses would
not become double storey houses.
Appellant’s
case on appeal
[10]
Mr
Oosthuizen, who appeared together with Mr Torrington on behalf of the
appellants, referred to paragraph 235.2 of the answering
affidavit deposed to by Mr Lourens, the building control officer of
first respondent, on behalf of first respondent where he stated:
‘
If
the proposed alteration/development negatively affected the
“harmonious architectural entity” for purposes of the
definition of “group housing” development in the zoning
scheme, that would require a departure from the zoning scheme
and
comment from neighbours would have to be solicited.
’
[11]
In Mr
Oosthuizen’s view, this paragraph from Mr Lourens’
affidavit defined the key dispute between the parties; that
is that
proposed alterations, in the view of appellants, negatively affected
the harmonious architectural entity as contained within
the
definition of group housing scheme. For this reason, that which
had been approved by first respondent was contrary to
the applicable
law. Further, Mr Oosthuizen persisted with appellants’
contention that first respondent had failed
to comply properly with
its obligations under s 7 of NBR as well as with the further argument
that the appellants enjoyed a legitimate
expectation that a second
storey would not be built in the front row houses of Mill Row.
In order to evaluate these
submissions, it is necessary to refer to
the applicable legal framework.
The
relevant law
[12]
Section
4 of the NBR Act provides that:
‘
No
person shall without the prior approval in writing of the local
authority in question, erect any building in respect of which
plans
and specification are to be drawn and submitted in terms of this
Act
.’
Section
6 (1) of the NBR Act expands on the process which is set down for the
approval of building plans and provides:
‘
A
building control officer shall-
(a)
make
recommendations to the local authority in question, regarding any
plans, specifications, documents and information submitted
to such
local authority in accordance with s 4(3).
’
The
approval of applications must take place in terms of s 7 of the Act,
a part of which has been set out above, but which in full
provides
thus:
‘
1)
If a local authority, having considered a recommendation referred to
in section 6 (1)
(a)-
(a)
is
satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof;
(b)
(i)
is not so satisfied; or
(ii)
is satisfied that the building to which the application in question
relates-
(aa)
is to be erected in such manner or will be of such nature or
appearance that-
(aaa)
the area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb)
it will probably or in fact be unsightly or objectionable;
(ccc)
it will probably or in fact derogate from the value of adjoining or
neighbouring properties;
(bb)
will probably or in fact be dangerous to life or property, such local
authority shall refuse
to grant its approval in respect thereof and
give written reasons for such refusal.’
[13]
The
reference to “other applicable law” in s 7 (1)(a) of the
NBR Act must be read to include the provisions of sections
8 to 10 of
LUPO, which provide for the approval of zoning schemes in respect of
land as well as s 11 which provides that the purpose
of the zoning
schemes is to determine use rights and to provide for control over
use rights and other utilization of land in the
area of jurisdiction
of the local authority.
[14]
The
relevant zoning scheme regulations, insofar as the present dispute is
concerned, are to be found in the Township Ordinance 33
of 1930 (as
amended). On 23 March 1979, this zoning scheme was amended to
provide for the concept of group housing and the
Group Housing zone.
Insofar as the present dispute is concerned, the definition of group
housing is of particular importance.
It is defined as:
‘
a
group of separate and/or linked and/or attached individual
dwelling units on smaller than conventional urban, and which
is
planned, designed and built as a harmonious architectural entity
which a medium density character in which the structures vary
between
single and double storeys.’
Interpretation
of the legislative framework
[15]
So
much for the legislative framework. The further question now
arises as to the interpretation of this framework. There
has
been a significant dispute in judgments as to the correct
interpretation, in particular of s 7(1) of the NBR Act. See
the
approach adopted by the Constitutional Court in
Walele
v City of Cape Town and others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) and the different approach adopted in
True
Motives 84 (Pty) Ltd v Mahdi and another
2009 (4) SA 153
(SCA). Mercifully, insofar as the present
dispute is concerned, this controversy was resolved by the
Constitutional Court
in
Turnbull-Jackson
v Hibiscus Coast Municipality
2014 (6) SA 592
(CC) and there is thus no need to do more than follow
the approach set out by Madlanga J in the majority judgment in the
Hibiscus
case.
[16]
The
key principles which govern the process of approving building plans
was set out by Madlanga J as follows:
‘
First,
the decision-maker must consider the building control officer’s
recommendation made in terms of s 6. Secondly,
if she is
satisfied that the application for approval complies with the
requirements of the Building Standards Act and other applicable
law,
she must grant the approval. Section 7(1)(b) provides
that if the decision maker is not satisfied that the application
complies with the necessary requirements, she shall refuse to grant
approval. If the decision-maker is satisfied that the
disqualifying factors will in fact or probably be triggered, she
‘shall refuse to grant [her] approval in respect thereof
and
give written reasons for such refusal.
’
Para 75
[17]
These
principles are given further content in the following passage of the
judgment:
‘
the
building control officer will make a recommendation to the local
authority in terms of s 6(1) of the Building Standard Act.
The
decision-maker, who-needless to say-must not simply rubber-stamp the
building control officer’s recommendation, must
either approve
or reject the plans. On any interpretation, the level of
scrutiny by the decision-maker will depend on the
facts of each
case. A proposed development may-depending on, for example, the
bulk, height, general aesthetic character and
other
characteristics–compare so favourable with existing
developments as to warrant approval of its plans without much
effort. Even in that instance, there must still be a
proper application of the mind to the issues at hand. At
the
other extreme, a proposed development may be so out of character in
relation what exists in the area that the level of scrutiny
may have
to be heightened.
’
Para
81
The
application of this law to the present dispute
[18]
Mr
Oosthuizen submitted that the approach adopted by the Constitutional
Court in
Hibiscus
supra
was
required to be read together with the approach that a court should
adopt in order to evaluate a decision made by the relevant
authority
which was set out by O’Regan J in
Bato
Star Fishing (Pty) v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
CC at para 48:
‘
In
treating the decisions of administrative agencies with the
appropriate respect, a Court is recognising the proper role of the
Executive within the Constitution. In doing so a Court should
be careful not to attribute to itself superior wisdom in relation
to
matters entrusted to other branches of government. A Court
should thus give due weight to findings of fact and policy
decision
made by those with special expertise and experience in the field.
The extent to which a Court should give weight
to these
considerations will depend upon the character of the decision itself,
as well as on the identity of the decision-maker.
A decision
that requires an equilibrium to be struck between a range of
competing interest or considerations and which is to be
taken by a
person or institution with specific expertise in that area must be
shown respect by the Courts. Often a power
will identify a goal
to be achieved, but will not dictate which route should be followed
to achieve that goal. In such circumstances
a Court should pay
due respect to the route selected by the decision-maker.
This does not mean, however, that where
the decision is one which
will not reasonably result in the achievement of the goal, or which
is not reasonably supported on the
facts or not reasonable in the
light of the reasons given for it, a Court may not review that
decision. A Court should
not rubber-stamp an unreasonable
decision simply because of the complexity of the decision or the
identity of the decision-maker.’
[19]
In
applying this test to the facts of this case, Mr Oosthuizen submitted
that the core argument of the appellant was that a reasonable
decision maker would not have agreed to approve the construction of a
two storey building in the front row of Mill Row, because
such a
construction would destroy “the harmonious entity” as
defined within the concept of a group housing scheme.
[20]
In
support of this submission, Mr Oosthuizen referred to a report which
had been produced by Ms Liezel Kruger-Fountain, an employee
within
first respondent’s Spatial Planning and Urban Design
Department, which report was incorporated by Mr Smit, an employee
in
the Land Use Management Section of first respondent, in his report
which was produced for the benefit of the Local Authorities
Spatial
Planning Environment and Land Use Management Committee (SPELUM) and
in which the following was stated:
‘
In
the current built context, with the front row not yet taking up their
rights to extend their height, the proposal seemed out
of context due
to its height related to the other properties only, but in the light
of a future row that can all go up in height,
this urban context will
change and therefore, the application was approached in terms of the
long term rights and the design merit.
From the information
provided the following elements were addressed within the context of
the overall setting:
·
The
extension of the building was proposed within the built footprint of
the building, thereby not creating a larger external area;
·
The
existing roof gradient, type and material were incorporated and
repeated;
·
A
harmonious external colour scheme was proposed that did not suggest
any strange colours in contrast to the existing context; and
·
The
fenestration seems to talk to the existing fenestration rhythms.’
[21]
According
to Mr Oosthuizen, this report did not take sufficient account of the
impact of the height of the proposed additions to
the front row and
its effect on the “harmonious architectural entity”.
[22]
In
order to give content to the concept of “harmonious
architectural entity” within the context of the present
dispute,
Mr Oosthuizen referred to an affidavit deposed to by Mr
Desmond Winterbach, one of the developers of Mill Row, who stated
that
the intention of the initial developers was to create “an
architecturally uniform and cohesive development in terms of Group
Housing requirements. Mr Winterbach also said:
‘
As
developers, we gave careful consideration to the architectural style
of the Development which became known as Mill Row (an abbreviation
of
Millionaire’s Row). In this regard
1.
The
top of the roof pitch of each of the single storey units in the front
row together form a harmonious horizontal plane which
runs from North
to South.
2.
The
back row of houses in the development were constructed to overlook
the houses in the front row to ensure that the harmonious
architecture would also function to ensure an equal share of the sea
view for all units.
3.
Although
we were aware of the height provisions relevant to the development,
we purposely elected not to erect double storey dwellings
in the
front row, as this would have restricted or even totally destroyed
the unobstructed views enjoyed by the owners of the back
row
dwellings.
[23]
For
further support for the submission as to the underlying idea of a
harmonious architectural entity, being the entire construction
of
Mill Row, Mr Oosthuizen also referred to an affidavit of Mr Reginald
Whittaker, who was the designer, creator and architect
of the
development. He stated in his affidavit that ‘
in
designing the Mill Row development NRB and given its unique position,
two sacrosanct fundamentals were applied for each and every
building
in the Development, namely that each building was to have a
view of the sea-shore on the one hand and a view of
Table Mountain on
the other
’
.
Mr Whittaker emphasised the importance of the element of light and
view and the sense of space for all dwellings in Mill
Row, whether
they were situated in the front or back row. This was to be
done by ensuring that the back row houses overlooked
the front row
and by orientating all the houses to face an identical westerly
direction and further by utilising westward facing
windows on both
single and double storey houses to allow maximum light penetration.
[24]
In Mr
Whittaker’s view first respondent’s decision to permit
double storey dwellings in the front row would have an
effect that
owners in the back row would be ‘completely hemmed in’ by
the houses in front of them and they would lose
their entire view as
well as access to sunlight, resulting in house damp, moisture and
mildew.
Harmonious
architectural entity
[25]
These
submissions require a clear meaning to be given to the phrase
‘harmonious architectural entity’. A number
of
witnesses, who testified by way of affidavit provided differing
definitions of this phrase. On behalf of the appellant,
Mr
David Bettesworth, a town planner stated:
‘
The
term “harmonious architectural entity” contained it the
aforesaid definition does not only require that the buildings
in the
development, must all have the same colour scheme finishes. The
term also means that the buildings together must form
a three
dimensional perspective, incorporating size, massing, height,
building volumes, proximity, placement and proportion in
relation to
each other. It is only when the buildings all have the same
design, shape, angles and features that they together
create a
harmonious architectural entity.’
Mr
Smit, on behalf of the first respondent, defined ‘harmonious
architectural entity’ as follows:
‘
This
relates to the architecture of the buildings within the development
in relation to each other. This is not primarily
determined by
whether a building is one storey or not.
Furthermore
this definition also refers to “in which the structures may
vary between single and double storey”.
The
proposal to alter an existing single storey dwelling to a double
storey in the “front row” must therefore be assessed
on
its merits
It
is the relationships between the proposed addition and the existing
dwellings in the development which must be assessed; this
term does
not require the buildings in the development to be identical.
’
Mr
Lourens defined the term as follows:
‘
This
term concerns the detailed “elements” contained within a
building’ i.e. an architectural theme- it does not
mean that
the buildings have to be uniformly or identically constructed.
Were that the case, the City could not approve the
diverse range of
houses within group housing developments which fall within its
jurisdiction, and in which, while there is architectural
harmony,
there is not architectural uniformity in relation to the size of the
buildings in question
.’
[26]
These
attempts at defining the term confirmed the difficulty with which the
court
a
quo
was confronted. In my view, the court
a
quo
was correct that the ordinary meaning of the phrase was that ‘
all
the structures within a group housing development, taken together,
must form an orderly or pleasing style of building’
.
Further, the court correctly noted that ‘
what
constitutes a harmonious architectural entity is a difficult question
to answer
’
and
‘
this
appears to me to call for a fair amount of subjectivity
’
.
[27]
Significantly
Mr Fabio Todeschini an architect, who deposed to an affidavit on
behalf of the appellant, stated the following in
his report:
‘
I
first viewed the group housing development from a position well to
the west, with a prospect similar to that offered by figure
2.
From that viewpoint, it initially did not seem to me that the case
was strong in the ‘harmonious architectural
entity’
sense, given that high rise and other quite cacophonous developments
immediately surrounding the group housing scheme
appear to impinge on
it, and, moreover, given that the dwelling grouping is, frankly, not
that distinguished in architectural terms.
However, when a
little later I viewed and experienced the scheme as illustrated in
figures 5 to 9, it became clear to me that the
scheme was, and is,
representative of a coherent, if relatively modest attempt to create
‘an harmonious architectural entity’,
albeit that the
scheme is small and that the architectural coherence is primarily
experienced from the inside-out, rather than
from the outside–in.’
[28]
In
short, appellant’s own expert indicated that it was only once
he looked from the inside of the building towards the outside
that he
found it possible to divine some incongruence with the concept of
“harmonious architectural entity”.
Notwithstanding that a fair amount of subjectivity is involved in the
determination of the meaning of the concept, all of the other
definitions were premised on an examination from the ‘outside
looking in’. In short, it appeared that Mr Todeschini’s
report reflected the difficulty of supporting an argument that the
increase from one to two storeys would be at war with the harmonious
architectural entity, when the effect viewed from outside of the
complex. Mr Todeschini’s report represents a clear
concession that, viewed externally, Mill Row did not comprise an
harmonious architectural entity and that, at best, for appellant,
when viewed from inside, it was a ‘modest attempt’ at
creating such an entity.
[29]
Furthermore,
as Mr Rosenberg, who appeared together with Ms O’Sullivan on
behalf of first respondent, observed, while the
appellants sought to
rely on ‘two sacrosanct’ principles which they contended
informed the basis of the development
namely access to light and view
as well to the beach, the developers had not imposed any legal
limitations on the future development
of the property in relation to
the height of the first row houses. Had the developers
wished to restrict the building
which could be undertaken in respect
of the front row in order to protect the light and the views of the
back row, there were a
number of legal options open to them,
including the imposition of a servitude, restrictions on the title
deeds, a specific sight
development plan (of which there was none)
which could have imposed a land use condition in terms of s 42 of
LUPO, or the developers
could have registered a home owners
association. Whatever intentions the developer might have
professed these were never
translated into legal obligations.
[30]
The
history of the zoning of the property is also relevant. On
07 October 1982, the then Administrator of the Cape Province
authorised the amendment of first respondent’s town planning
scheme from ‘
Special
Business to General Residential subzone… subject to height
restriction of three storeys’
.
There was a subsequent subdivision of the erven which created the use
of the erven which exists today, the approval
of which was granted on
18 October 1984 in terms of s 9 of the then Townships Ordinance 33 of
1934. The consequence
of this is set out in the report to
SPELUM of November 2012 as follows:
‘
Neither
of the approvals (to amend the front row houses) required submission
of a site development plan to control the architectural
detail of the
development or limit any parameters thereof, nor was there any
requirement to implement a design manual or design
guidelines or
architectural guidelines to control the architectural elements of the
development. There was also no
requirement to form a Home
Owners Association to control the aesthetics of the development.
As such, there was therefore
no further restriction other than the
three storey height and architectural detail limitation on the
development including the
front row of the development.’
[31]
This
background supports the submissions made by first respondent that,
whatever the claims of the developer or the designer might
have been
ex
post
facto, no legal limitations had been imposed by the developer
pursuant to the idea of a Group Housing Scheme.
[32]
When
this factual context is taken into account, it appears that
appellants’ case was correctly characterised as an attempt
to
utilise the concept of an ‘harmonious architectural entity’
to be extended so as to create rights to a view, to
privacy and to
light, notwithstanding that none of these claims were specifically
provided for in any of the applicable legal mechanisms
which were
available to the developers and to which reference has already been
made.
The
applicability of the Hibiscus approach
[33]
The
difficulty confronting appellants is further compounded when recourse
is had to the approach to s 7 of the NBR Act as set out
in the
Hibiscus
case. In the first place, the decision maker, being first
respondent, must consider the recommendations of the building control
officer. Mr Lourens deposed to a detailed affidavit in which he
substantiated why he made a positive recommendation in terms
of s 6
(1)(a) of NBR Act in respect of the building plans to first
respondent, which had delegated the decision to Mr Peter Henshal
Howard, who approved the plan on behalf of first respondent in terms
of s 7 (1) of the NBR, in the light, inter alia, of the lengthy
report of Mr Lourens.
[34]
Mr
Lourens confirmed that he had carefully examined the various reports,
comments with respect to the proposed development and,
further he had
studied the architectural elements and style as presented in the
submitted building plans. After visiting the site
on more than one
occasion, together ‘with my studying of numerous photos taken
at Mill row and having considered the contents
of the report …
I am satisfied that the proposal would not detract from the existing
architecture of the development’.
[35]
An
examination of the lengthy answering affidavit deposed to by Mr
Lourens supports the conclusion that he had carefully considered
all
of the relevant reports and objections that had been raised with
regards to the proposed alteration to Mill Row and that he
then
substantiated the recommendation to which I have made reference.
As O’Regan J, noted in the
Bato
Star
judgment:
‘
A
decision that requires an equilibrium to be struck between a range of
competing interest or considerations and which is to be
taken by a
person or institution with specific expertise in that area must be
shown respect by the courts
.’
(para 48)
[36]
This
dictum
indicates a judicial recognition of the need for respect for
expertise in the making of policy laden or polycentric issues.
It is in these circumstances that the observation of Lon Fuller in
his classic exposition of the implications of adjudication,
“
The
forms and limits of adjudication
”
(1978) 92
Harvard
Law Review
353
at 398 is of particular relevance, that is, although concealed
polycentric elements are probably present in almost all problems
resolved by adjudication, these are significant dangers in a judicial
“over reach”. When polycentric elements
become extremely significant and prominent so that the proper limits
of adjudication have been reached, is, of course, dependent
on the
factual matrix and context of the dispute. In a case of
building approvals, the expertise of the decision maker is
an
extremely important consideration. Once a decision maker
with the necessary expertise has set out detailed, plausible
and
justifiable explanations for a decision to which he or she has
arrived, the court should be extremely cautious before
intervening.
That appellants can show the
possibility of a different approach with a consequently opposite
outcome is insufficient alone to
justify judicial intervention in
this context.
[37]
In
the present dispute, it cannot plausibly be concluded that Mr
Lourens’ explanation and the adoption of his report by first
respondent was based on anything other than a carefully considered
and justifiable set of recommendations. The fact that
appellants’ case represents an attempt to extend the concept of
‘harmonious architectural entity’ to include
rights that
could be safeguarded by clear legal means, including light, privacy
and view, is, in itself, an indication, absent
the most compelling
evidence to the contrary, that there is no reason offered by which to
interfere with the approach adopted by
the decision maker, being
first respondent.
Derogation
of value
[38]
The
concept of derogation of the value of adjoining or neighbouring
properties in terms of s 7 (1)(b) (ii) (ccc) was examined in
Camps
Bay Ratepayers and Residents Association and another v Harris and
another
2011
(4) SA 42
(CC) at para 40 where Brand AJ (as he then was) said the
following:
‘
Derogation
from market value, therefore, only commences
(a)
when
the negative influence of the new building on the subject property
contravenes the restrictions imposed by law; or
(b)
because the new building, though in accordance with legally imposed
restrictions, is, for example, so unattractive or intrusive
that it
exceeds the legitimate expectations of the parties to the
hypothetical sale. In
(a)
the cause of the depreciation will flow from a non-compliance with s
7(1)(a). It is only in the event of (b) that s 7(1)(b)(ii)
comes into play.’
[39]
In
the judgments in both
Camps
Bay Ratepayers
and
Hibiscus
supra,
the court was clear that there could not be a derogation of value
solely based upon a loss of view when the alteration complies
with
the provisions of the NBR Act as well as other relevant applicable
legislation, unless the nature or appearance of the building
are so
unattractive or intrusive that it exceeds the legitimate expectation
of parties to a hypothetical sale. Once
it is accepted
that the alterations complied with the requirements of s 7 and the
further argument that the alterations were not
in breach of the
concept of ‘harmonious architectural entity’, there is
simply no evidence provided by appellants which
would justify the
argument that there had been a derogation in value of their property
as that term is set out in the decisions
to which I have made
reference.
[40]
Mr
Oosthuizen was constrained in oral argument to accept that the
argument with regard to derogation of value was coupled to his
earlier argument with regard to a breach of the concept of
‘harmonious architectural entity’. The remaining
evidence which, possibly could have been taken into account, was
contained in an affidavit put up as part of the appellants’
replying papers, in which a professional valuer claimed that the
building work envisaged would derogate from the market value of
the
other properties. This affidavit was struck from the
record by the court
a
quo,
which decision did not constitute part of the appeal before this
court. Hence this ‘evidence’ is
not
available to appellants on appeal
Legitimate
expectation
[41]
According
to Mr Oosthuizen, a fundamental consideration for the first
appellant, was that when she decided in 2002 to purchase a
property
in Mill Row was the question as to whether the front row units could,
at some stage, be converted from a single storey
to a double storey
unit. Her evidence in this particular regard is as
follows:
‘
I,
during negotiations before I purchased my property recalled being
advised that the height of the from row single storey houses
would
remain unchanged thereby allowing all owners of the development to
enjoy and share in unrestricted views offered from their
properties.
’
She
further states,
‘
I
conducted “a due diligence” investigation in that I
contacted the City about the possibility of the front row houses
being made double storey. I was informed at that time by an
official of the City Planning and Development Department whose
name I
cannot recall that the front row of Mill Row could not be converted
in double storeys.
’
[42]
Further
support for appellants’ argument was provided by Mr Gary
Slabbert, formerly employed by first respondent as a building
control
officer for the Milnerton-Tableview area before he left respondent’s
employ in 2005. He averred
that, during the period
of his employment, any proposed alteration to convert single units to
double units in the front row would
have fallen foul of the
harmonious architectural requirements of the development and would
never have been permitted.
He further stated that, until
the end of his employ with first respondent in 2005, any owner
or respective owner would have
been entitled to assume and would have
been informed by first respondent that the architectural harmony and
uniformity exhibited
over the previous 25 years would be
maintained.
[43]
Not
only is first appellant’s claim extremely vague given the lack
of identification of any official of first respondent who
spoke to
her but, as Mr Rosenberg correctly submitted, all that Mr Slabbert’s
evidence demonstrated was that a hypothetical
buyer would have known
it was possible that it is not prohibited to alter a front row house
to a double storey dwelling and that
approval would have to be
obtained from first respondent in order to do so. The fact
that, in his opinion, it was highly
improbable that first respondent
would grant such approval hardly took the matter any further.
It is also significant that
only first appellant was able to make any
averment with regard to such an expectation.
[44]
In
general, our courts have approached a concept of a substantive
legitimate expectation with considerable caution.
See, in
particular the judgment of O’Regan J in
Residence
of Joe Slovo Community, Western Cape v Thubelisha Homes
2010 (3) SA 454
(CC):
‘
Our
courts have expressly refrained from determining the question whether
a legitimate expectation might give rise to a substantive
benefit
although the English courts have developed a doctrine of substantive
legitimate expectation.
’
[45]
Admittedly,
English courts have recognised a doctrine of substantive and
legitimate expectation. See, for an early decision,
R
v North and East Devon Health Authority: Ex parte Coughlin (Secretary
for Health and another intervening)
[2000] 3 All ER 850
(CA). The doctrine, however, has
proved difficult to implement on a coherent basis, see
Paponette
and others v Attorney General of Trinidad and Tabago
[2011] 3 WLR 219
(PC) and
R
(Davies) v Revenue and Customs Commissioner
[2011] 1 WLR 2625
(SC).
[46]
Given
the caution that must be exercised before finding that there is a
substantive legitimate expectation enjoyed by a party, a
court must
be satisfied that the factual edifice is sufficiently sturdy to bear
the weight of this substantive expectation. This
is not the case in
the present dispute where, as I have indicated, the justification for
a substantive legitimate expectation is
both vague and not at all
specific.
[47]
For
all these reasons therefore, the appeal is dismissed with costs,
including the costs of two counsel.
____________
DAVIS J
BAARTMAN J and BOQWANA J concurred