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[2016] ZAWCHC 126
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King Country Investment (Pty) Ltd v Cape Town Ziplines (Pty) Ltd and Others (6661/16) [2016] ZAWCHC 126 (23 September 2016)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6661/16
DATE:
23 SEPTEMBER 2016
In
the matter between
KING
COUNTRY INVESTMENT (PTY)
LTD
.......................................................
APPLICANT
And
CAPE
TOWN ZIPLINES (PTY)
LTD
...........................................................
1st
RESPONDENT
DOUBLE
FLASH INVESTMENTS (PTY)
LTD
........................................
2nd
RESPONDENT
SOUTHERN
TIP TRADE (PTY)
LTD
..........................................................
3rd
RESPONDENT
CONSTANTIA
RIDGE ESTATES (PTY)
LTD
.............................................
4th
RESPONDENT
SILVERMIST
MOUNTAIN LODGE BODY CORPORATE
......................
5th
RESPONDENT
CITY
OF CAPE
TOWN
..................................................................................
6th
RESPONDENT
Coram:
ROGERS J
Heard:
20 SEPTEMBER 2016
Delivered:
23 SEPTEMBER 2016
JUDGMENT
ROGERS
J:
Introduction
[1]
The applicant seeks a
final interdict preventing the first to fourth respondents from
conducting or permitting to be conducted a
zipline business which is
said to violate the relevant properties’ zoning and to
constitute an unlawful noise nuisance and
unlawful invasion of
privacy. The fact that the business currently violates the relevant
properties’ zoning is not in dispute.
The main issue is whether
the court in its discretion should refuse or suspend the operation of
an interdict.
[2]
The applicant was
represented by Mr Gess and the second to fourth respondents by Mr
Rosenberg. For convenience I shall refer to
the parties represented
by Mr Rosenberg as the respondents.
[3]
The applicant is the
owner of a unit in a sectional title scheme called Silvermist
Mountain Lodge situated just below Constantia
Nek on the Hout Bay
side. The applicant’s unit is called Mbali Lodge. The
applicant’s sole member is Ms Lorna King.
She and her family
reside in the United Kingdom though she is originally from South
Africa. They bought the unit as a tranquil
holiday destination which
they could use for a few weeks each year. The applicant also lets out
Mbali Lodge to paying guests.
[4]
The sectional title
scheme is located on Remainder Erf 1788 (for convenience I shall
refer to it as Erf 1788). It is 18 ha in extent.
On plans relating to
the proposed development of Erf 1788 the land is divided into four
sectors marked A, B, C and D. Sectors A,
B and C are earmarked for
residential units. The applicant’s unit is in sector C. Sector
D is earmarked for mixed-use facilities
which currently include
wine-tasting, conference and function venues, a manor house offering
accommodation suites and two restaurants.
A site development plan
(‘SDP’) for sector D envisages other facilities which
have not yet been built, including a
wellness centre/spa, a
bistro/breakfast facility, camping facilities and a seasonal tented
camp.
[5]
Except for the
individually owned units (including the units in sector D), the land
comprising Erf 1788 is common property of which
the registered owner
is the fifth respondent, the scheme’s body corporate. The
fourth respondent (‘CRE’) was
the scheme developer. Its
rights included a real right of extension as contemplated in
s 25
of the
Sectional Titles Act 95 of 1986
. This right of extension
relates to sector D. During 1999 CRE ceded the right of extension to
the third respondent (‘STT’).
CRE still owns units in
sector D.
[6]
Immediately above Erf
1788 is Erf 1783 which is about 25,5 ha in extent. The second
respondent (‘DFI’) is the registered
owner of Erf 1783.
[7]
Erf 1788 and Erf 1783
fall within the area of the sixth respondent (‘the City’).
[8]
The first respondent
(‘CTZ’) is the company which conducts the zipline
business. It has not given notice of opposition
though its director
has furnished the respondents with a confirmatory affidavit. A
zipline is an elevated cable along which a suspended
harness can run.
At the one end is a launching platform, at the other end a landing
platform. CTZ’s operation, which started
in November 2014,
comprises seven ziplines. Visitors travel successively on all seven
ziplines. The experience lasts one and a
half to two hours. The
business is conducted seven days a week, with the first group
starting at 09h00 and the last group ending
at about 18h00.
[9]
As currently
configured, ziplines 2,3 and 6 are located entirely on Erf 1783.
Ziplines 1,4,5 and 7 each start on Erf 1783 and end
in sector D of
Erf 1788. Zipline 7 is the one closest to sector C, and in that
sector the applicant’s unit is closest to
the zipline –
about 231 m away.
The
relevant zoning
[10]
The relevant parts of
the two properties are zoned Agricultural. The applicant alleges, and
the respondents accept, that the zipline
business does not fall
within the primary uses permitted by this zoning.
[11]
One of the consent uses
for Agricultural zoning is ‘Tourist Facilities’, defined
in the Development Management Scheme
(‘DMS’),
constituting Schedule 3 to the City’s Municipal Planning By-Law
of 2015, as meaning
‘
amenities
for tourists or visitors such as lecture rooms, restaurants, gift
shops, rest rooms and recreational facilities, but does
not include a
hotel or tourist accommodation’.
It is common cause that the zipline operation falls
within this definition. In order to legitimise the operation the
relevant property
owners will need to obtain permission from the City
following a process in which interested parties are permitted to
lodge objections.
Pre-litigation
history
[12]
The applicant bought
its unit in April 2009 and took transfer in June 2011. As noted, the
zipline operation began in November 2014.
[13]
On 20 January 2015 the
applicant’s erstwhile attorneys wrote a letter to the entity
which was then understood to be conducting
the enterprise,
complaining about noise and invasion of privacy and requiring an
undertaking that the three ziplines closest to
the applicant’s
property would be removed. The letter appears to have been prompted
by complaints from the person to whom
the applicant had let Mbali
Lodge. This letter, and a follow-up letter by the applicant’s
current attorneys, Springer-Nel,
dated 26 January 2015, elicited no
response.
[14]
During February 2015
the applicant obtained information from the City regarding the zoning
of Erf 1788.
[15]
In the latter part of
February 2015 an acoustic engineer engaged by the applicant, Mr
McKenzie Hoy, performed acoustic tests. He
issued a report dated 4
March 2015 in which he concluded that the zipline operation
contravened the Western Cape Noise Control
Regulations (‘the
Noise Regulations’). At that time the closest zipline was about
100 - 150 m from the applicant’s
property.
[16]
On 13 March 2015
Springer-Nel wrote a letter to STT repeating the complaint about
noise and attaching Mr Hoy’s report. They
recorded that
according to information supplied by the City the City had conducted
its own tests and issued a noise compliance
notice. Springer-Nel also
stated that the zipline operation was contrary to the zoning
regulations. STT was required to cease all
zipline activity by 18
March 2015.
[17]
On 16 March 2015 the
respondents’ attorneys (‘STBB’) responded,
recording that the second, third and fourth respondents
all had an
interest in the matter. They said that the respondents were in the
process of obtaining their own acoustic engineering
report. They
tendered an undertaking to remove and relocate any ziplines found by
the respondents’ expert to exceed permissible
noise levels.
STBB said that their clients denied that the zipline operation was
contrary to the zoning regulations.
[18]
On 25 March 2015 STBB
wrote to Springer-Nel stating that the respondents’ acoustic
engineer had found that ziplines 6 and
7 ‘marginally exceeds’
the noise levels prescribed in the Noise Regulations. These were the
closest lines to the applicant’s
property. The respondents
undertook to stop using those lines by 30 March 2015 and to have them
removed by not later than 10 April
2015.
[19]
Springer-Nel requested
a copy of the respondents’ acoustic report. On 2 April 2015
STBB informed Springer-Nel that they did
not have their clients’
authority to release the report.
[20]
By early April 2015
only five ziplines were in operation. At that time the line
designated line 5 was the closest operational line
to the applicant’s
property. The respondents have subsequently reconfigured the zipline
course. There are now seven lines
again, but the old zipline 5, now
re-numbered 7, is still the line closest to the applicant’s
property.
[21]
On 7 April 2015 Mr Hoy
conducted further acoustic tests. He found that the operation still
contravened the Noise Regulations.
[22]
The applicant allowed
the matter to drift for some months. There is not much explanation
for this though the zipline business is
less busy during the winter
months and the applicant’s property may not have been much in
use.
[23]
Ms King says that in
late February 2016 she received a complaint from a visitor who
objected to the noise and who said that he would
never have booked
the house had he known about the ziplines. Ms King alleges that other
foreign guests have made complaints and
that she herself has
experienced the noise and breach of privacy.
The
litigation history
[24]
The applicant launched
the present proceedings on 21 April 2016. The respondents filed their
notice of opposition on 23 May 2016.
The answering papers were filed
on 12 July 2016.
[25]
In the answering papers
the respondents said that in June 2016 STT and DFI had made
application to the City for the necessary consent
use (‘the
planning application’). The answering papers included a short
affidavit from a town planner, Mr Roos, expressing
the opinion that
the planning application enjoyed good prospects of being favourably
considered by the City and that one might
expect it to be determined
within about six months.
[26]
The respondents
attached the planning application to their papers. It appears
therefrom that the decisions requested from the City
comprise in
respect of each of Erf 1788 and Erf 1783: (i) permanent
departures to permit zipline apparatus (platforms) closer
than 30 m
from the common boundary lines (see item 109(b) of the DMS);
(ii) Tourist Facility consent use. The respondents
accept in
their opposing papers that these approvals are required to ‘fully
regularise’ the zipline operation.
[27]
The respondents
included in their answering papers an affidavit from their acoustic
engineer, Mr Wade, attached to which was his
report of 27 March 2015
(the one which the respondents had hitherto declined to make
available) and a further report dated 6 July
2016. In the latter
report Mr Wade commented on Mr Hoy’s second report and
concluded that the reconfigured zipline operation
did not violate the
Noise Regulations.
[28]
The applicant filed its
replying papers on 5 September 2016. The replying papers included
evidence that on 5 August 2016 City officials
had conducted an
inspection and tests, concluding that the noise from the zipline
operation violated the Noise Regulations. The
City informed
Springer-Nel that the City was preparing a noise summons. The
applicant also furnished an affidavit from Mr Hoy commenting
on and
criticising Mr Wade’s reports. There were also affidavits from
several other owners supporting Ms King’s complaints.
[29]
In regard to the
planning application, the replying papers alleged that according to a
City official, Ms Walker, the planning application
was defective and
correspondence in that regard had been addressed to the respondents.
Ms King said that the planning application
had not yet even reached
the advertisement stage.
[30]
Shortly before the
hearing the respondents filed several supplementary affidavits. STBB
had written to the City on 9 September 2016
disputing the latter’s
noise conclusions. On 14 September 2016 the relevant official, Ms
Petersen, replied to say that the
City had re-evaluated the issue and
concluded that there was no violation of the Noise Regulations and
that the noise summons would
be withdrawn. In regard to the planning
application, there was a further affidavit from Mr Roos in which he
acknowledged that his
original six-month estimate would not be
achieved because the City had delayed until 15 August 2016 before
calling for additional
information (the By-Law specifies 14 days in
which this should be done).
[31]
Mr Roos did not attach
the City’s letter of 15 August 2016. At the hearing I received
without objection an affidavit from
the applicant’s attorney
attaching a copy of the letter which the applicant had obtained
pursuant to the provisions of rule
35(12).
[32]
These were the
circumstances in which the matter served before me on 20 September
2016.
The issues
[33]
It is well established
that a person in the applicant’s position has locus standi to
apply for an interdict to prohibit conduct
in violation of applicable
zoning regulations. Mr Rosenberg did not argue the contrary. It is
also common cause that CTZ’s
zipline operation is occurring in
contravention of the current zoning and that the respondents are
permitting this to occur.
[34]
In the answering papers
the respondents’ case, on the zoning issue, was in essence that
the court should exercise its discretion
to refuse an interdict or
should exercise its discretion to suspend the operation of any
interdict issued.
[35]
Mr Rosenberg advanced a
contention not pertinently made in the opposing papers, namely that
the complaint procedure established
by s 125 of the By-Law and
the administrative and civil procedures available to the City
pursuant to a complaint constituted
a satisfactory alternative
remedy. I did not understand him to go so far as to say submit that
s 125 by necessary implication
excluded a private right of
recourse to the courts or that the failure to exhaust that procedure
was an absolute bar to the present
proceedings. His argument was that
the applicant’s failure to avail itself of this procedure was a
matter which should weigh
with me in deciding whether to exercise my
discretion to refuse the interdict or to suspend its operation.
[36]
In regard to the
alleged noise and privacy violations, I asked Mr Gess whether it
would be necessary for me to grant interdicts
based on noise and
privacy if I were in his favour that an interdict on the zoning issue
should be granted without suspension.
He agreed that this would not
be necessary. I think the concession is fairly made. The applicant
and other affected parties will
be entitled to object to the planning
application. Noise and privacy issues will feature in any objections
lodged. The City will
need to assess the validity of these
objections. The planning application might be refused, in which case
cadit quaestio
.
The
planning application might be granted on conditions which
satisfactorily address the objections. If the planning application
were granted unconditionally, a court considering interdicts claimed
on the grounds of noise and privacy would need to assess whether
affected owners are required to tolerate the intrusions given that
they are caused by an activity permitted by planning approvals.
[37]
It is thus unnecessary
to decide whether and to what extent the applicant has established a
violation of the Noise Regulations and
precisely what the applicant
would need to prove in order to make such a violation actionable at
its instance (cf
Laskey
& Another v
Showzone
CC & Others
2007
(2) SA 48
(C)).
The
remaining relevance of the noise complaint
[38]
However the question of
noise has some bearing on the discretion which the respondents ask me
to exercise by refusing or suspending
an interdict. One of their
contentions is that there is no or minimal prejudice to the
applicant.
[39]
The zipline operation
produces noise in two forms: the mechanical operation of the supplies
(a whining/whistling sound) and the
shouting and shrieking of the
users.
[40]
The noise from the
users no doubt varies considerably. The zipline experience is by its
nature meant to be thrilling and exhilarating.
Expressions used in
advertising material include ‘not for the fainthearted’,
‘blood pumping’, an experience
aimed at getting ‘the
vocal cords loose’. It is described as being great for year-end
functions, bachelor parties and
other celebrations. It is entirely
natural that visitors will whoop with delight, shriek in actual or
feigned terror and shout
to their friends.
[41]
There is a dispute as
to whether the zipline operation constitutes a ‘disturbing
noise’ as defined in the Noise Regulations.
The expression
‘disturbing noise’ has a technical definition which
excludes the unamplified human voice. One is thus
concerned only with
the mechanical noise. The part of the definition that Mr Hoy regards
as applicable is para (c), which states
that a noise is a ‘disturbing
noise’ if the ‘residual noise level’ is lower than
the applicable ‘rating
level’ and the noise during the
complained of activity exceeds the residual noise level by 3 dBA. Mr
Wade, by contrast, emphasises
reg 10(1)(b) which provides that when a
person lodges a noise complaint the designated official must ‘apply
the rating level
except where the residual noise level differs by
more than 10 dBA from the rating level’. On the face of it
there is a conflict
between para (c) of the definition and para
10(1)(b).
[42]
It is common cause that
the applicable day-time rating level is 50 dBA. There is a dispute as
to the ‘residual noise level’
and the actual noise level
when zipline 7 (as currently configured) is in operation. This
depends on measurements taken in a particular
way. Mr Hoy measured
the residual noise at 40 dBA and 37 dBA for purposes of his first and
second reports respectively. The City’s
measurement was 40,6
dBA. Mr Wade’s measurement was 47 dBA. As to the actual noise
level, Mr Hoy’s measurements ranged
from 45,7 – 47,8 dBA.
The City measured 48,3 dBA. Mr Wade measured 47 dBA. If Mr Hoy and
the City’s measurements are
right, zipline 7 would a
‘disturbing noise’ in terms of para (c) of the definition
because the residual noise level
is lower than the rating level and
the noise when the zipline is in operation exceeds the residual noise
level by more than 3 dBA.
However if reg 10(1)(b) is the touchstone,
Mr Hoy’s first residual noise measurement and the City’s
residual noise
measurement do not exceed the rating level by more
than 10 dBA and the actual noise when the zipline is in operation
does not exceed
the rating level. And if Mr Wade’s readings are
correct, the actual noise level when zipline 7 is in operation does
not really
differ from the residual noise level, which is consistent
with his assertion that it is ‘barely audible’.
[43]
I do not intend to
determine the proper interpretation of the Noise Regulations and
whether there is a ‘noise disturbance’
as defined.
However I do not accept Mr Rosenberg’s submission that on the
Plascon-Evans
rule
I am bound to find that the operation of zipline 7 is ‘barely
audible’. All that Mr Wade can say is that on the
day he did
his test (he only visited the site once) the residual noise level was
47 dBA and that the noise created by the current
zipline 7 (the old
zipline 5) did not increase the noise level materially, the sound
being ‘barely audible’. This does
not mean that Mr Hoy’s
residual noise levels were not accurately measured on the several
occasions that he attended at the
site. It appears from Mr Wade’s
own reports that wind and other circumstance may affect residual
noise levels. In his first
report Mr Wade said that there was
noticeable wind noise during his survey. There is no reason to doubt
that on days with less
wind the residual noise could be at the
significantly lower levels measured by Mr Hoy and the City.
[44]
Similar observations
may be made about the actual noise level of the zipline operation.
When Mr Wade measured the noise there were
only two persons using the
ziplines, both employees of CTZ, one male, one female. Both employees
completed a single line before
proceeding to the next line. Mr Hoy,
in reply to Mr Wade’s affidavit and reports, says that when he
did his tests the ziplines
were running at full capacity. There would
be eight zipliners at any one time, all the lines being in
simultaneous operation. This
amplifies noise levels. The weight of
the user also affects noise levels. These facts are not in dispute.
[45]
I am thus satisfied
that on the evidence there are occasions when the residual noise is
materially lower than Mr Wade’s measurement
(I use residual
noise level in a non-technical sense). On those occasions the noise
from the operation of the ziplines, at least
when zipline 7 is in
use, would be distinctly audible. In his second report Mr Wade said
that 10 dBA was a significant difference
in residual noise levels –
subjectively a 10 dBA increase would sound ‘twice as loud’.
It stands to reason that
on those occasions where the residual noise
level is in the vicinity of 40 dBA (and sometimes even less), actual
noise levels of
45,2 – 47,8 would be distinctly audible.
[46]
Quite apart from the
mechanical noise, there is the added intrusion of shouting and
shrieking by users.
[47]
I may add that it is
hardly plausible that the applicant would have incurred the expense
of bringing these proceedings if the noise
was generally ‘barely
audible’. It has not been suggested that Ms King has any motive
apart from the annoyance caused
by the zipline operation.
[48]
Ms King is not alone in
saying that the zipline operation creates audible and annoying noise.
In the answering affidavit the respondents’
deponent said that
Ms King had been rigid and uncompromising, and that the City and all
other parties potentially affected appear
to have been satisfied with
the compromise of removing two of the ziplines. The respondents
included affidavits from certain residents
who said that they can
barely hear the sound from the zipline operation. One of these
persons was a Mr Otto who rented Mbali Lodge
itself.
[49]
In reply the applicant
has furnished affidavits from various owners who say that the noise
from the ziplines and the shrieks from
the users are clearly audible
and that they will be lodging objections to the planning application.
Ms King and these owners also
say that the residents who have filed
affidavits for the respondents are not owners but persons who lease
units from CRE.
[50]
Mr Rosenberg submitted
that the affidavits from other owners should be struck out as
constituting new matter in reply. I disagree.
Since the respondents
chose to describe Ms King as a lone voice, I think the applicant was
entitled to refute this by way of affidavits
from other owners. In
any event, the planning application was only submitted after the
present proceedings were instituted and
thus could only be dealt with
in reply. Since the planning application was relied on by the
respondents as a circumstance in favour
of refusing or suspending the
operation of an interdict, the applicant was entitled to provide
evidence that it would not be the
only person objecting to the
application and that approval could not be safely assumed. If other
owners had filed affidavits simply
saying that they would be
objecting to the planning application, Mr Rosenberg would no doubt
have argued that such statements carried
little weight because the
owners had not explained why they would be objecting. In my view the
applicant was entitled to provide
evidence that other owners were
going to object on the basis that they find the noise of the zipline
operation disturbing.
[51]
The fact that Ms King
and other owners find the noise annoying does not mean that it is a
‘disturbing noise’ as defined
or even that it is a ‘noise
nuisance’ within the meaning of the Noise Regulations (the
latter term is defined as meaning
a sound which impairs or may impair
the convenience or peace of a reasonable person – that could
include the unamplified
human voice). Conceivably the City may find
that Ms King and the other owners are unduly sensitive and are
demanding too much peace
and tranquillity. But that the zipline
operation is often distinctly audible and annoying to some people,
even if not to others,
seems to me to be plain.
[52]
As to invasion of
privacy, Ms King says that zipliners using line 7 can see into Mbali
Lodge’s pool area. Zipliners sometimes
wave at people in the
pool area. The respondents’ deponent says that a zipliner would
need to ‘crane over his or her
left shoulder or pick it out in
the distance’. Without a site inspection I am not able to form
any clear view on this question
and I thus do not attach weight to
this particular complaint insofar as it bears on the exercise of my
discretion.
Requirements
for an interdict
[53]
It is uncontentious
that the first two requirements for a final interdict, namely a clear
right and injury actually committed or
reasonably apprehended, are
satisfied in the present case. The applicant, as the owner of a unit
on Erf 1788, has the right to
insist on compliance with the zoning
regulations applicable to Erf 1788 and Erf 1783. Injury exists in the
form of the admitted
continuing non-compliance with the zoning
regulations.
[54]
As to whether there is
another adequate remedy (cf
LAWSA
2
nd
Ed Vol 11 para 399), I do not think that ss 125 - 132 of the
By-Law qualify as such. Planning legislation usually gives
municipalities
the right to take action against infringing owners, to
issue desist notices and the like. Members of the public have always
been
free to bring alleged infringements to the attention of
municipalities. I do not think that this has ever been regarded as
constituting
an adequate alternative remedy. The powers that a
municipality has once an infringement has come to its attention are
remedies
available to the municipality, not members of the public.
One may take judicial notice of the fact that municipalities’
resources
are stretched to the limit by the many demands on their
time and resources. Without making any comment on the current
administration
of the City, I do not think it can be said that
municipalities have a consistent record of prompt and strong action
against infringers.
[55]
If a member of the
public brings an alleged infringement to the municipality’s
attention and the municipality declines to
issue a desist notice, the
‘remedy’ would manifestly not be one resulting in similar
protection to an interdict. If
the municipality issued a desist
notice with which the infringer complied, the result would be
practically the same, from the infringer’s
perspective, as an
interdict. The infringer in such circumstances would not be worse off
because the applicant turned to the courts
rather than the
municipality, except perhaps in regard to costs.
[56]
In the present case the
City has been aware of complaints regarding the zipline operation
since at least March 2015. The present
application was served on it
during April 2016. The planning application, from which the current
unlawfulness of the operation
appears, was lodged with the City in
early June 2016. The City has not as a fact taken action against the
respondents in terms
of the By-Law and has not voiced any objection
to the applicant’s having sought relief from the court.
Discretion
[57]
I need not decide
whether the court has a discretionary power to refuse to grant an
interdict where the usual requirements have
been established (as to
which see
United
Technical Equipment Co (Pty) Ltd v Johannesburg City Council
1987
(4) SA 343
(T)). If a case for suspension has not been made out, this
would apply a fortiori to outright refusal.
[58]
As to whether the court
has a discretionary power to suspend the operation of an interdict,
particularly where the infringement
constitutes a criminal offence
(which would be the case here in terms of s 133(1)(a) of the
By-Law), differing opinions have
been expressed. I adhere to the
views I expressed in
Intercape
Ferreira Mainliner (Pty) Ltd & Others v Minister of Home Affairs
& Others
2010
(5) SA 367
(WCC) para 184 and
Booth
& Others NNO v Minister of Local Government, Environmental
Affairs and Development Planning & Another
2013
(4) SA 509
(WCC) para 65, namely that such a discretion exists but
that a court would ordinarily be reluctant to allow the perpetuation
of
unlawful behaviour (see also
Laskey
supra paras 40-46
and
410 Voortrekker
Road Property Holdings CC v Minister of Home Affairs & Others
2010 (8) BCLR 785
(WCC) paras 43-59 and 78-81). In
United
Technical Equipment
Harms
J said that if such a discretion existed it was for the infringer to
prove facts justifying the suspension (347H-I). I agree.
[59]
The main factors
invoked by the respondents are the following:
·
The violation of
the zoning regulations was unwitting.
·
Expenditure has
been incurred in establishing the zipline operation and needs to
recouped from the ongoing business operation.
·
CTZ has eight
permanent employees and employs further temporary staff during busy
periods. The employees are mainly from informal
settlements in Hout
Bay.
·
Sector D has
always been earmarked for mixed-use facilities. The zipline operation
is a low-impact tourist/adventure activity in
keeping with the area.
·
The respondents
reconfigured the zipline operation in March/April 2015 to meet the
applicant’s legitimate noise complaints.
By persisting with her
complaints Ms King, unlike other potentially affected parties, has
been rigid and uncompromising.
·
No violation of
the Noise Regulations or common law nuisance has been established.
Even if there were some annoyance, Ms King and
her family use the
property relatively infrequently and for short periods.
·
A regularising
planning application had been filed and enjoys good prospects of
success.
[60]
As to the contention
that the zoning violation has come about unwittingly, the respondents
were alerted to the problem in March
2015. They have continued with
the unlawful operation since then, only lodging the necessary
planning application in June 2016
in the face of legal proceedings.
[61]
STT and CRE appear to
be property developers with valuable holdings and rights in respect
of Erf 1788. I was informed from the bar
that DFI, which owns Erf
1783, is an associated company. The preparatory work for the zipline
operation took about four months
in the latter part of 2014. The
zipline operation is an unusual one. There is nothing similar in the
Cape Peninsular. It was intended
to attract many visitors. I think
the respondents could reasonably have been expected to investigate
whether the infrastructure
and activity were lawfully permitted by
the current zoning. The respondents’ deponent says that it did
not initially occur
to them that any additional planning approvals
were required. If that is true, there appears at very least to have
been a negligent
failure to ascertain the correct position.
[62]
The respondents say
that CTZ incurred substantial expense in establishing the zipline
operation. CTZ had to obtain development finance
which it is
servicing and repaying from the zipline operation. I observe that
although CTZ’s director, Mr Lerm, has made
a confirmatory
affidavit, CTZ is not opposing the application. The prejudice
mentioned by the respondents is not theirs but CTZ’s.
In any
event, the respondents have provided no information whatsoever as to
the extent of the expenditure or the identity of the
lender, the
terms of the loan and the amount currently outstanding. They do not
say how much of the expenditure has been recouped
over the last 22
months. They do not allege that CTZ would fold if the zipline
operation were interdicted until the planning application
was finally
determined, something which they predict will not take too long.
[63]
It will obviously be
unfortunate if the eight permanent employees lose their jobs. This is
a circumstance which will often be present
when property is
unlawfully used for commercial purposes. If the respondents are right
that the planning application will be determined
within the next few
months, the period of unemployment will be relatively short. CTZ
might even decide to retain the employees
rather than going through a
retrenchment process only to re-employ them in the near future.
[64]
In regard to the actual
and intended character of sector D, I accept that purchasers such as
the applicant acknowledged in their
deeds of sale and by way of the
conduct rules of the body corporate that sector D was a mixed-use
area offering conference facilities,
restaurants, entertainment
facilities and other facilities that were not features of a purely
residential nature. The right of
extension which purchasers
acknowledged was described with reference to an annexure to the deeds
of sale. The annexure is missing
from the applicant’s deed of
sale but it is probably the s 25 plan (“LK19” to the
founding affidavit) or
the SDP (the current iteration of which forms
part of the planning application). Nothing in the nature of the
zipline operation
is mentioned in these plans or in the conduct
rules. The zipline operation has a unique character. The respondents
do not say that
a zipline operation was actually envisaged when the
s 25 plan or SDP were prepared or when the applicant bought its
unit.
[65]
In regard to the
allegation that Ms King has been rigid and uncompromising, there is
evidence that her views are shared by several
other owners. I have
discussed the question of noise without reaching a definite opinion
on whether there is any violation of the
Noise Regulations. All the
same, I am satisfied that the noise complaints are real for those who
are complaining, even if other
residents are more tolerant and
relaxed.
[66]
It is true that Ms King
and her family generally spend only about three weeks per year at
Mbali Lodge. However they bought the property
as a holiday retreat
for themselves and to rent out to guests. A holiday retreat ceases to
be a pleasurable experience if it is
marred by annoying noise. This
would be so not only for Ms King’s family but for paying guests
who, like her, are seeking
tranquillity and are sensitive to noise.
[67]
As to the planning
application, the respondents should have sought the necessary
approvals much earlier than they did. Mr Roos initially
predicted
that the planning application would be disposed of within six months.
By the time he filed his supplementary affidavit
there had already
been a slippage of about two months in the timetable. The respondents
have not yet replied to the City’s
letter of 15 August 2016. If
they were to do so within the next few days and the City were
satisfied with the reply, the next step
would be for the City to
advertise the application. If there is no further deviation from Mr
Roos’ timeline, finalisation
would take at least six months
from the current date.
[68]
There is evidence that
the planning application will be opposed by a number of owners. Mr
Roos’ timetable makes allowance
for the assessment of
objections. Whether the City and Tribunal would adhere to the
prescribed periods in the case of a hotly contested
application
cannot be stated with confidence.
[69]
Apart from the merits
of owners’ objections, the City’s letter of 15 August
2016 foreshadows certain matters which may
delay the planning
application:
·
The City has
queried STT’s right to make the application in respect of Erf
1788. The planning application must be made by
the ‘owner’
as defined in the By-Law. For present purposes that would be the
registered or beneficial owner of the
property. The body corporate is
the registered owner of the relevant part of Erf 1788. If the body
corporate were required to make
the application, it is far from clear
that it would do so. Mr Rosenberg argued, with reference to several
provisions in the deed
of sale, that purchasers had granted various
authorities in favour of the party holding the right of extension
(currently STT)
and that in practice the body corporate bears no
expenditure and has no rights in relation to sector D. Mr Gess
submitted that
STT could not be regarded as the owner of the common
property in sector D. I do not wish to prejudge the question save to
say that
the answer does not seem to be straightforward.
·
The City has
stated that a letter is required from the Department of Environmental
Affairs and Development Planning stating that
no environmental
authorisation is required. The environmental consultant’s
letter supplied by the respondents is regarded
by the City as
insufficient. I should add that the consultant’s letter
[1]
is not unequivocal in stating that environmental approval is not
needed though he makes the case for that conclusion.
·
The City
requires comment from the Department of Transport and Public Works.
[70]
It thus seems to me
that the finalisation of the planning application may well take
longer than six months, excluding any appeals
or reviews which may
follow.
[71]
Since the relevant
bodies within the City must still assess the merits of the planning
application, it would be inappropriate for
me to express any firm
views thereon. This is not, however, a case like
CD
of Birnam (Suburban) (Pty) Ltd & Others v Falcon Investments Ltd
1973 (3) SA 838
(W)
where the history of the matter indicated that the planning
application enjoyed a strong probability of success. In
Huisamen
& Others v Port Elizabeth Municipality
1998
(1) SA 477
(E) Leach J, writing for a full bench, said that the view
expressed by the appellants to the effect that their planning
application
had reasonable prospects of success was ‘a far cry
from the almost inevitable success which was anticipated by Margo J’
in
CD Birnam
9485I-J). In
United
Technical Equipment
the
trial judge was willing to assume that the appellant’s prospect
of success in the planning application was evenly balanced.
This
circumstance, in conjunction with others, was found insufficient to
justify a suspension of the interdict.
[72]
In cases such as
Voortrekker Road
,
Intercape Ferreira
and
Booth
,
where modest suspensions were granted, the overriding considerations
were the interests of third parties (refugees in the first
two cases,
clients of the law firm in the third case). A case akin to
Booth
is
Buffalo
City Metropolitan Council v
Jikwana
[2014] ZAECELLC 8 where a one-month
suspension was allowed. My research of the cases indicates that
generally the courts are unsympathetic
to infringing owners.
[73]
Mr Rosenberg’s
submission that the respondents’ prejudice significantly
outweighs that of the applicant effectively
reduces the test for a
final interdict to a balance of convenience, which is contrary to
authority. And in cases such as the present
there is more at stake
than the prejudice of the warring parties. An interdict upholds the
principle of legality. To refuse an
interdict or materially suspend
its operation tends to dilute the rule of law (see
Lester
v Ndlambe Municipality
2015
(6) SA 383
(SCA) paras 23-24; see also
Peri-Urban
Areas Health Board v Sandhurst Gardens (Pty) Ltd
1965
(1) SA 683
(T);
United
Technical Equipment
at
348I-J).
[74]
Towards the end of his
argument Mr Rosenberg said that the respondents were willing to
tender an undertaking to cease the zipline
operation for all periods
during which Ms King was in occupation. I do not think that I should
be swayed by this belated offer.
The precise terms of the undertaking
are unclear. Would Ms King personally need to be in occupation or
would occupation by her
family suffice? How much notice would the
applicant need to give the respondents of intended occupation,
bearing in mind that customers
of the zipline business can make
advance bookings? Is the tender authorised by CTZ? What Mr Rosenberg
did make clear is that the
tender did not apply to the applicant’s
paying guests. That is a significant part of the applicant’s
dissatisfaction
with the zipline operation.
Conclusion
[75]
I have thus concluded
that the interdict should not be suspended. The furthest I am
prepared to go, though this was not raised in
argument, is to defer
the coming into force of the interdict for a few days so that groups
who have already booked trips and whom
the respondents may not be
able to notify timeously are not disappointed by arriving at
Silvermist only to find that the operation
has been closed.
[76]
Both sides delivered
striking-out of applications at the commencement of the hearing. Para
(f) of the respondents’ striking-out
application related to the
affidavits of the owners filed by the applicant in reply. I have
explained why I regard those affidavits
as permissible.
[77]
Para (f) also seeks to
have struck out the affidavit by the applicant’s attorney dated
2 September 2016 as constituting new
matter in reply. One of the
exhibits attached to the attorney’s affidavit is a memory stick
containing six videos taken by
Ms King on her mobile phone. I agree
that this material should have been contained in the founding papers.
Mr Rosenberg submitted
that the respondents have not had an
opportunity to investigate the reliability of the clips, particularly
the audio track. Also
attached to the attorney’s affidavit are
emails from three owners associating themselves with Ms King’s
complaints.
Although the respondents did not specifically attack this
material as being hearsay, I think it should be struck out on that
basis.
[78]
Paras (a), (b) and (e)
are directed at allegations and annexures in reply concerning the
potential danger which the ziplines pose
to helicopters engaged in
firefighting, on the basis that such allegations constitute new
matter and are partly of a hearsay nature.
These criticisms are
justified and the material should be struck out.
[79]
Paras (c) and (d)
attack, as being hearsay, certain allegations made by the applicant’s
land surveyor, Mr Abrahamse, on matters
pertaining to the planning
application and the City’s view that it is defective. The
allegations are said to be of a hearsay
nature. While that is true, I
do not think that there is any prejudice to the respondents,
particularly since the City’s
letter of 15 August 2016 has now
been placed before me.
[80]
The applicant seeks to
strike out two documents purporting to express the views of two
residents on the basis that the statements
are not under oath. The
one document, while purporting to be an affidavit signed by the
resident, has not been completed or signed
by a commissioner of
oaths. The other document is an unsigned email. The criticisms are
technically correct and the documents should
be struck out.
[81]
For the sake of
completeness I should add that the conclusions I have reached in this
judgment would not be altered if I were to
have allowed any of the
struck out material.
[82]
The striking out
applications did not occupy much time in argument and both sides have
succeeded in having some matter excised.
I thus do not intend to make
any separate order in regard to the costs of the striking-out of
applications.
[83]
Mr Gess submitted that
if I granted the interdict I should allow the qualifying costs of the
land surveyor, Mr Abrahamse, and of
Mr Hoy. Mr Abrahamse’s
affidavit was somewhat argumentative. I do not think it contained
expert opinions which were of assistance
in determining the
application. Mr Hoy’s qualifying expenses should be allowed.
Although I have not determined whether there
has been a violation of
the Noise Regulations, Mr Hoy’s evidence has had some bearing
on the discretion which the respondents
asked me to exercise in their
favour. The qualifying expenses should not, however, include the
costs associated with Mr Hoy’s
first report dated 27 March
2015. CTZ and the respondents reconfigured the ziplines pursuant to
that report. What was germane to
the litigation is the noise caused
by the reconfigured lines.
[84]
I make the following
order:
(a) In regard to the second, third and fourth
respondents’ application to strike out dated 19 September 2016,
the material
identified in paras (a), (b) and (e) thereof and the
affidavit of Mr Nel identified in para (f) thereof is struck out.
Save as
aforesaid the striking-out is application is dismissed.
(b) In regard to the applicant’s application
to strike out dated 19 September 2016, the material identified in
paras
1 and 2 thereof is struck out.
(c) It is declared that the carrying on by the
first respondent, on Erf 1783 Hout Bay and on Remainder Erf 1788 Hout
Bay (‘the
properties’), of the activity of conveying
people on aerial cables known as ziplines (‘the zipline
operation’)
contravenes the zoning restrictions currently
applicable to the properties.
(d) The first respondent is interdicted from
continuing with the zipline operation, and the second, third and
fourth respondents
are interdicted from permitting the zipline
operation to be continued, such interdict:
(i) to come into force as from Monday 3 October
2016;
(ii) to remain in force thereafter unless and until
the zoning restrictions applicable to the properties have been
altered
so as to permit the zipline operation by way of a ‘Tourist
Facilities’ consent use as contemplated in the City of Cape
Town Municipal Planning By-Law of 2015.
(e) The first to fourth respondents jointly and
severally are directed to pay the applicant’s costs, the
liability of
the first respondent however being confined to the
applicant’s costs on an unopposed basis.
(f) The said costs shall include the qualifying
expenses of Mr McKenzie Hoy, excluding however the costs associated
with the
preparation of his first report dated 27 March 2015.
(g) If the zoning restrictions applicable to the
properties are altered so as to permit the zipline operation, the
applicant
shall be entitled, on the same papers duly supplemented as
needs be, to seek a further interdict on the grounds of alleged noise
and/or invasion of privacy.
ROGERS
J
APPEARANCES
For Applicant Mr DW Gess
Instructed by: Springer-Nel Attorneys
3rd Floor, 71 Loop Street
Cape Town
For 1st Respondent Coulters van der Walt Attorneys
Unit 11, Draper Square
Draper Street
Claremont
For 2nd, 3rd & 4th Respondents Mr SP
Rosenberg SC
Instructed by: STBB Smith Tabata Buchanan Boyes
2nd Floor, Buchanan’s Chambers
Cnr Warwick Street & Pearce Road
Claremont
Claremont
[1]
Record 574-576.