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[2016] ZAWCHC 153
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Babaletakis and Another v Minister of Local Government, Environmental Affairs and Development Planning (Western Cape) and Others (6481/2015) [2016] ZAWCHC 153; [2017] 1 All SA 447 (WCC) (2 November 2016)
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Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No: 6481/2015
Before: The Hon. Mr Justice Binns-Ward
Dates of hearing: 18 October 2016
Date of judgment: 2 November 2016
In
the matter between:
MARIA
BABALETAKIS
First
Applicant
STAND
1146 PARKMORE
CC
Second
Applicant
and
THE
MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT
PLANNING (WESTERN
CAPE)
First
Respondent
THE
CITY OF CAPE
TOWN
Second
Respondent
PLANNING
AND GENERAL APPEALS COMMITTEE
OF
THE CITY OF CAPE
TOWN
Third
Respondent
JUDD
HARVEY
SMITH
Fourth
Respondent
THE
PROVINCE OF THE WESTERN
CAPE
Fifth
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
The applicants have applied for the review
and setting aside of the decision by the MEC for Local Government,
Environmental Affairs
and Development Planning (Western Cape) to
reject their jointly submitted appeal in terms of s 44(1)(a) of
the Land Use Planning
Ordinance (‘LUPO’)
[1]
against the decision by the Planning and General Appeals Committee of
the City of Cape Town to uphold the application by the fourth
respondent (‘the respondent’) for certain departures from
the Cape Town zoning scheme regulations, as well as against
the
consent granted to him by the City to deviate from the restrictions
applicable to development along a scenic drive. They
have also
applied for an order in terms whereof the court would substitute for
the decision made by the MEC one upholding the appeal,
thereby
effectively refusing the fourth respondent’s planning
application. The MEC abides the decision of the court,
but the
application is opposed by the City and the respondent.
[2]
[2]
The applicants are the registered owners,
respectively, of Erven ..5 and ..4, Bantry Bay, Cape Town. The
respondent is the
registered owner of Erven ..3 and ..6.
[3]
The permissions that the applicants seek to impugn concern the
development of the respondent’s property.
[3]
All of the aforementioned properties are
situated on Victoria Road, Bantry Bay. The applicants’
properties are situated
on the landward (eastern) side of the road
and that of the respondent on the opposite (western) side of the
road, closer to the
seafront. The respondent’s property
is at the intersection of Seacliff Road
[4]
with Victoria Road. Seacliff Road runs steeply down towards the
sea from Victoria Road, where it merges with Beach Road,
which, as
its name suggests, runs along the seafront. There are a number
of developed erven between the respondent’s
property and the
seafront. A 13-storey block of flats stands on one of them.
[4]
The area in question is residential in
character. The existing development in the vicinity of the
protagonists’ properties
consists of a mix of single and
general residential buildings, as well as a hotel. The planning
officials have characterised
that part of Bantry Bay as being densely
developed; an observation borne out in the numerous photographs in
the papers. The
photographs also give an indication of the
evolving character of the area. The buildings are an assortment
of old and new
and vary greatly in size and architectural style.
[5]
The subject erven are zoned for general
residential purposes. An old house, built in 1894, used to
stand on the respondent’s
property. The respondent
applied for and was granted permission to alter the existing house by
reconfiguring its interior
layout and adding a storey. In the
course of the execution of the work, however, it was discovered that
the fabric of the
building was fragile and that the outer walls would
be unable to support the additional load; indeed, one of them was on
the point
of collapse. The respondent proceeded to demolish the
old house and erect a new structure in its place. He did so
without
first obtaining the demolition permit required in terms of
the National Heritage Act or the required building and planning
permission.
It is alleged that he continued with the work
notwithstanding the service upon him by the municipality of cease
work orders after
the City’s building inspector had discovered
that the work deviated materially from that which had been
authorised.
The resulting structure, which is designed to
provide for a double dwelling, including accommodation for domestic
staff, was at
an advanced stage of completion when building work was
eventually halted after an interim prohibitory interdict was obtained
pending
the determination of this review application.
[6]
The structure is non-compliant with various
restrictions on the development of the property that applied in terms
of the zoning
scheme regulations and the City’s Scenic Drive
Regulations. It was in order to regularise the development that
the
respondent made application to the City in terms of s 15 of
LUPO - which resorts in chapter II of the Ordinance - for a number
of
departures from the scheme regulations and for the necessary consent
in terms of the Scenic Drive Regulations. His application
was
turned down by the local sub-council, but that rebuff was reversed by
the municipal council’s Planning and General Appeals
Committee. It was from the latter’s decision that the
applicants appealed to the MEC against the grant of the departures
application.
[7]
It bears mention that the respondent’s
planning application was modified from the form in which it
originally had been submitted.
This occurred after an official
in the City’s department of planning and building development
management conveyed to the
respondent’s town planning
consultant that the department was ‘
concerned
with the impact of the proposal on the character of the area and
specifically the Victoria Road streetscape / presentation.
The
required departures (i.e. height and setbacks) contribute to the
overpowering impact of the building on the street and
area. It
is strongly recommended that this aspect be considered
’.
The passage in the copy of that communication in the administrative
record bears a handwritten endorsement by an
unidentified person,
which, in legible part, reads ‘
(Suggestion
not accepted … by applicant)
’.
The respondent did, however, commission a land surveyor and a new
architect to vet and revise the proposed development.
[8]
The land survey revealed that the lowest
floor of the structure actually qualified as a ‘basement’
within the meaning
of the zoning scheme regulations. That,
together with an amendment of the building plan to remove a bathroom
between two
other levels of the structure, meant that what had
originally qualified as a five storey building requiring departures
from the
height restrictions, now fell to be treated for zoning
purposes as a three storey building. The result was that the
respondent
no longer required any departures from the height
restriction, notwithstanding that the physical height of the intended
structure
remained unaffected. Minor modifications to the plans
effected by the new architect also meant that fewer building line
departures
were required. The main input of the architect was
to seek to improve the aesthetic effect of the building. In the
latter regard he seems to have succeeded in winning over - at least
provisionally - the local ratepayers’ association, which
had
also objected to the application.
[9]
The covering letter, dated 29 June 2012,
from the town planning consultant under which the respondent’s
modified application
was submitted to the City, recorded that the
concerns raised by the objectors had been taken into account.
It stated ‘
One of the main
concerns with the existing incomplete building is that of aesthetics
(and in particular the lack thereof) and in
this regard the main
brief to the newly appointed architect was to address the scale,
overall form and mass of the building and
to ensure that the external
façades are re-designed to ensure a building which is
aesthetically pleasing and of an outstanding
standard to complement
the surrounding built environment
’.
[10]
The applicants’ counsel argued that
it was evident from the concerns expressed in the objections to the
application and the
aforementioned letter by a city official, as well
as the acknowledgment quoted from the respondent’s town
planner’s
letter, that it was ‘common cause’, as he
put it, that the respondent’s application presented issues
concerning
the mass, form and scale of the building that required to
be addressed in the decision-making. Certainly, the applicants’
stated objections go to the way in which they maintain the structure
looms intrusively over the street and the adverse effect of
its bulk
on the amount of natural light previously enjoyed by street facing
façade of the first applicant’s residence.
The
applicants’ counsel submitted that the decisions granting the
planning approval sought by the respondent were unsupportable
because
the reduction in the number of departures sought left essentially
unaffected the characteristics of the structure about
which the
city’s official had expressed concerns early in the application
process, and which the respondent professed to
have addressed.
[11]
The review has been brought in terms of s 6
of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’);
in particular s 6(2)(h) and (e)(iii).
[5]
Section 6(2)(h) pertains to the court’s power to judicially
review an administrative action if ‘
the
exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised the power or performed the function
’
and s 6(2)(e)(iii) goes to its review power if the
administrative action in issue was taken ‘
because
irrelevant considerations were taken into account or relevant
considerations were not considered
’.
[12]
I should say at once that inasmuch as the
applicant’s counsel appeared to submit that the administrator
had to concern himself
with whether the application adequately
addressed the expressed concerns about the mass, scale and form of
the structure, any such
submission would be unsustainable. As
the application was directed at the regularisation of an existing
structure and the
approvals are expressly linked to the plans
submitted in support of the application, the mass, scale and form of
the building were
undoubtedly relevant considerations. But the
statutory question that the administrator was required to answer was
whether
it was ‘desirable’, within the meaning of s 36
of LUPO, to grant the departures that had been applied for.
The
aforementioned considerations fell to be weighed integrally in the
context of answering that question.
[13]
Section
36 of LUPO provides:
36 Basis of refusal of applications and particulars
applicable at granting thereof
(1) Any application under Chapter II or III shall be
refused solely on the basis of a lack of desirability of the
contemplated utilisation
of land concerned including the guideline
proposals included in a relevant structure plan insofar as it relates
to desirability,
or on the basis of its effect on existing rights
concerned (except any alleged right to protection against trade
competition).
(2) Where an application under Chapter II or III is not
refused by virtue of the matters referred to in subsection (1) of
this section,
regard shall be had, in considering relevant
particulars, to only the safety and welfare of the members of the
community concerned,
the preservation of the natural and developed
environment concerned or the effect of the application on existing
rights concerned
(with the exception of any alleged right to
protection against trade competition).
[14]
The
proper construction of s 36 has given difficulty, and the
jurisprudence on the subject is not harmonious.
[6]
But I consider, with respect, that Rogers J fathomed the import
of the provision correctly in
Booth
supra,
[7]
at para 45-48, where he held:
[45] Section 36 as a whole, which applies to
applications for departures and rezoning (under Ch II) and
applications for subdivision
(under Ch III), is not easy to construe.
Among the aspects creating ambiguity are the phrase ‘shall be
refused solely on
the basis of’ in s 36(1) and the phrase ‘in
considering the relevant particulars’ in s 36(2). One might
read
s 36(1) as compelling the decision-maker to refuse the
application if there is a lack of desirability or an adverse effect
on existing
rights, with s 36(2) setting out the further bases on
which a discretionary assessment of the refusal or grant of the
application
must be adjudicated. On this reading, s 36(1) sets out
mandatory grounds of refusal while s 36(2) sets out discretionary
grounds
if the application does not fail at the first hurdle. There
are several difficulties with this interpretation. Firstly, such a
view would surely require the grounds in s 36(1) and s 36(2) to
be different (since otherwise there would always be a refusal
under s
36(1)) yet there is an almost complete overlap between the grounds
specified in s 36(1) and s 36(2): the safety and welfare
of the
community and the preservation of the natural and developed
environment (the factors mentioned in s 36(2)) are surely at
the
heart of a desirability assessment (the criterion mentioned in
s 36(1)); while effect on existing rights features in both
subsections. Second, the criteria of desirability and effect on
existing rights are too general and varying in their intensity
to
serve as a sensible basis for mandatory refusal. Third, a reading of
s 36(1) as laying down mandatory grounds of refusal is
incompatible
with the Afrikaans text, which states that applications under Chs II
and III ‘mag slegs op grond van . . . .’
[46] The section as a whole thus makes more sense if s
36(1) is read as providing that the only grounds on which an
application
may be refused (though refusal is not mandatory in these
circumstances) are lack of desirability and effect of existing
rights,
with s 36(2) then meaning that if the application is not
refused (but instead granted), the terms of approval (for example,
the
extent and duration of a permitted departure or the conditions
imposed under s 42 in respect of a departure or rezoning or the
detailed content of a subdivision decision) must take into account
only the matters specified in s 36(2) (which are in essence,
once
again, matters going to desirability and effect on existing rights).
It must be conceded that s 36(2) does not expressly state
that it is
dealing with the case where an application is approved, and the
phrase ‘in considering the relevant particulars’
is
hardly the most natural way to refer to the conditions or terms of an
approval. Nevertheless, the overlap between the criteria
in s 36(1)
and s 36(2) and the other matters I have mentioned make it
difficult to avoid the conclusion that, in context s
36(2) is dealing
with the case where the decision-maker has decided not to refuse the
application but to grant it.
[47] Be that as it may, and whatever s 36(2) may mean, I
do not think the purpose of s 36(1) is to compel a refusal of the
application
if certain prescribed circumstances exist. The function
of s 36(1), in my view, is to make lack of desirability and effect on
existing
rights the only bases on which a decision-maker may refuse
an application. He is not compelled to refuse an application merely
because there is some element of undesirability or some adverse
effect on existing rights - whether, with reference to these
criteria,
the application should be refused or granted is a matter
for the decision-maker's judgment and discretion. But what he may not
do is refuse the application with reference to any other criteria.
[48] Since the purpose of s 36(1) is
to identify the relevant criteria which the decision-maker may take
into account in deciding
whether to refuse an application, the
decision-maker acts lawfully provided his decision to refuse or allow
the application is
based on desirability and effect on existing
rights. I respectfully doubt whether the abstract noun ‘desirability’
and the phrase ‘lack of desirability’ are apt concepts to
which to apply an onus or a distinction between a positive
or
negative test. If the decision-maker finds that a rezoning would
bring about certain identifiable disadvantages, he could naturally
find a lack of desirability. But the same is true if he finds that,
while there are no identifiable disadvantages, there are also
no
identifiable advantages; in that situation the element of
desirability (positive advantage) is lacking — a ‘lack
of
desirability’. I think this latter form of ‘lack of
desirability’ is what the learned judge had in mind
in
Hayes
.
[
[8]
]
I would, though, with respect differ from him to the extent that his
judgment implies that the decision-maker cannot grant an
application
unless the applicant establishes a positive advantage. He
may
refuse it on that basis but whether a lack of desirability in this
form (absence of positive advantage) should lead to refusal
is a
matter for the decision-maker's judgment and discretion on the facts
of the particular case.
(In
addition to the considerations mentioned by the learned judge, the
heading to the section - to which regard may properly be
had as an
aid to construction when the body of the provision is ambiguous
[9]
– also supports his interpretation.)
[15]
It is clear then that the decision whether
or not to grant applications in terms of chapters II of LUPO for
departures from the
land use provisions of a zoning scheme entailed
the exercise of a discretion by the decision-maker. That it
fell to be exercised
with reference to the criterion of
‘desirability’ – something about which individuals
may reasonably hold quite
disparate and opposing views –
highlights the broad nature of the discretion. The ‘existing
rights’ referred
to in s 36, being the other criterion to
be taken into account in the decision-making exercise, were the
rights of other persons
to require the local authority to enforce the
restrictions applicable to the development of land units in terms of
the zoning scheme.
The very nature of the exercise involved
when the decision concerned an application for a departure from those
restrictions demonstrates
that the ‘existing rights’ were
not to be regarded as absolute. In point of fact they were
nothing more than
a factor which the decision-maker was bound to take
into consideration and weigh in the balance. Thus, as Rogers J
noted
in
Booth
supra, at para 47, ‘
He is not
compelled to refuse an application merely because there is some
element of undesirability or some adverse effect on existing
rights
’
.
[16]
The MEC had before him when he made the
impugned decision all the documentation that had been before the
City’s decision-making
bodies for the purposes of their
determinations mentioned above and also the minutes of their
proceedings. That documentation
included the reports to the
municipal decision-makers by the City’s officials in which the
approval of the planning application
had been comprehensively
motivated. He also had a report from the Head of the
Directorate: Land Use Planning, Region 2, of
the Province, which in
essence relayed the content of a report prepared earlier by the Chief
Town and Regional Planner in the Province’s
Land Use Management
Directorate for the purpose of assisting the MEC to decide the
appeal.
[17]
The provincial Chief Town Planner’s
report to the MEC accurately summarised the process that had preceded
the appeal and set
out the reasons given by the sub-council for
having refused the planning application, as well as those of the
planning appeals
committee for having reached the opposite result.
It also fairly and accurately summarised the import of the grounds
upon
which the appeal was advanced and cogently reasoned why the
appeal should be refused. Photographs of the area were attached
to the report.
[18]
The MEC adopted the recommendations of his
departmental advisors when he made the impugned decision.
[19]
In his argument in support of the review
great emphasis was placed by the applicants’ counsel on the
fact that notwithstanding
the reduction in what he termed ‘
the
basket of departures
’ sought in
the originally submitted planning application, ‘
a
building of the same size and envelope as that which had been
unanimously rejected
[by the
sub-council]
was approved
’.
This argument was developed on the basis of the contention that I
have already rejected; viz. that the relevant enquiry
was into
whether the scale, form and mass of the structure as originally
represented had been adequately ameliorated in the modified
application. It is of no moment that the decision-makers
involved in the various stages of the determinative process arrived
at mutually conflicting conclusions. Such an outcome is an
inherent and unexceptionable possibility in any situation in which
the decision to be made expresses a value judgment by the
decision-maker, and in which the appeals provided for in the
statutory
scheme allow for the exercise by the respective appellate
tribunals of their own discretion as if they had been decision-makers
at first instance.
[20]
Turning to examine the ground of review
based on s 6(2)(h) of PAJA. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), at para 44-45, the import of the statutory provision and
the manner in which courts should approach review challenges
brought
in terms of it were explained as follows:
[44] … Section 6(2)
(h)
should then be
understood to require a simple test, namely that an administrative
decision will be reviewable if … it is
one that a reasonable
decision-maker could not reach.
[45] What will constitute a reasonable decision will
depend on the circumstances of each case, much as what will
constitute a fair
procedure will depend on the circumstances of each
case. Factors relevant to determining whether a decision is
reasonable or not
will include the nature of the decision, the
identity and expertise of the decision-maker, the range of factors
relevant to the
decision, the reasons given for the decision, the
nature of the competing interests involved and the impact of the
decision on
the lives and well-being of those affected. Although the
review functions of the Court now have a substantive as well as a
procedural
ingredient, the distinction between appeals and reviews
continues to be significant. The Court should take care not to usurp
the
functions of administrative agencies. Its task is to ensure that
the decisions taken by administrative agencies fall within the
bounds
of reasonableness as required by the Constitution. (Footnotes
omitted.)
[21]
The Court added (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 decisions
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 interests 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.
[22]
As counsel for the City pointed out, the
departures granted fell into four categories.
[23]
The first category concerned the departure
granted in terms of reg. 93 of the zoning scheme regulations to
permit the growing
of trees projecting above the nearest point of the
footway on Victoria Road. That departure was not subject to
appeal in
terms of LUPO, and therefore does not fall within the ambit
of the matters considered by the MEC on appeal. It is any event
not material to the applicants’ complaint.
[24]
The second category concerned five
departures from reg. 47 of the scheme regulations (street
setbacks); viz (i) to permit
the building at ground and first
storeys to be set back 1,295m and 1,34m instead of 3m from Victoria
Road, (ii) to permit
the building to be set back 1,34m instead
of 3m from Victoria Road at basement and second storey levels,
(iii) to permit the
building to be set back at 2,04 and 2,485m
instead of 4,5m from the Victoria and Seacliff Roads splay at the
ground and first storey
levels, (iv) to permit the building to be set
back from the splay at 2,485m instead of 4,5m at the splay at the
second storey level
and (v) to permit the building to be set
back at 2,99m instead of 4,5m from Seacliff Road at its ground, first
and second
storey levels.
[25]
The third category concerned three
departures from reg. 54 of the scheme regulations (common
boundary setbacks); viz. (i) to
permit the building at first and
second storey levels and the bulkhead at roof level with overlooking
features to be set back at
2,95m and 3,235m from the northern common
boundary instead of 6m, (ii) to permit the first and second
storeys with overlooking
features to be set back from the western
boundary at 1,82m and 2,1m instead of 2,5m and (iii) to permit
the bulkhead at roof
level with overlooking features to be set back
at 1,82m from the western boundary instead of 2,5m.
[26]
The fourth category concerned a departure
from reg. 93 to permit the building to project above the nearest
point of the footway
of Victoria Road. The departure was
required on account of the road being a ‘scenic drive’.
[27]
The extent of the effect of the street
setback departures from Victoria Road appears more extreme in the
abstract than it is in
reality. This is because the
measurements from the eastern edges of the building are taken to the
site boundary of the respondent’s
property with Erf …9
(the expropriated road-widening reserve), rather than to the actual
pavement of Victoria Road.
As mentioned, Erf ..9 formerly
comprised part of the property now owned by the respondent, and is
leased by the City to him.
For practical purposes Erf ..9 will
comprise the greater part of the forecourt and off-street parking
area for the proposed structure.
It is not amenable to
development on its own and it is not going to be used by the City for
street-widening. The same observation
can be made, albeit to a
lesser extent, about the setbacks from the splay at the
Seacliff \ Victoria Roads intersection.
The line of
the site boundary between that part of the respondent’s
property that is Erf ..3 and Erf ..9 indicates that the
extent of the
expropriated land must have been determined with the intention of
providing for an accentuation of the width of the
splay as part of
the road-widening scheme.
[28]
The western and northern common boundary
setback departures have no or very little bearing on the applicants’
complaints.
The complaints relate in essence to the distance
between the eastern side of the new structure and Victoria Road and
its height.
As already noted, if Erf ..9 were treated as part
of the respondent’s property, which it effectively is, the
setback
departures from Victoria Road would not be required.
When account is taken of the street facing area between the
respondent’s
property and Victoria Road, the impact of the
setbacks on what might have been constructed within the restrictions
imposed by the
scheme regulations had the expropriation for
street-widening not happened is insignificant. It bears mention
in this regard
that the structure that the respondent is in the
course of completing is in all material respects superimposed on the
footprint
of the house that previously stood on the spot.
[29]
The height of the structure, which
undeniably gives it a far more imposing effect on the streetscape
than the house that it replaces,
falls within the parameters
permitted in terms of the scheme regulations. The applicants
have therefore sought to invoke
the scenic drive provisions to
contend for a height limitation. The reported object of the
scenic drive provisions is to
protect views of the surrounding
scenery (in the context of the subject area, those would be sea and
mountain views) for users
of the road. The object is not to
provide height restrictions for the benefit of owners of property
adjoining the road.
It is therefore doubtful to say the least
whether the applicants could competently call in aid the scenic drive
provisions for
the purpose of their objections. It is also
doubtful that the height of the proposed structure affects their
existing rights.
In any event, the photographs of the area
included in the papers bear out the reports by the City’s
officials that the section
of Victoria Drive alongside which the
protagonists’ properties are situated does not in fact enjoy
the characteristics of
a scenic drive. That this stretch of
road was characterised as a ‘scenic drive’ by the City’s
zoning scheme
regulations actually made a mockery of the concept.
It offers little opportunity to the road users to enjoy vistas of
mountain
and sea.
[30]
I accept though that, in considering
whether to uphold the departures granted by the City in respect of
the street-facing building
line setbacks, the decision-makers would
have to take into account the effect of the height of the proposed
structure. That
would be an obvious consideration in any
evaluation of the impact of the departures. In the current
matter, by reason of
the advanced state of completion of the
structure when the application was considered, the decision-makers
had the advantage of
real evidence. When regard is had to the
photographic evidence it is apparent that the structure’s
impact on the streetscape
is not starkly incommensurate with that of
a number of other buildings in the vicinity. It does look
unsightly, but that
has much to do with its unfinished state.
The uncontroverted evidence before the decision-makers is that the
aesthetic appearance
of the structure in its completed state will be
significantly improved as a result of the modifications to the
building plan by
the new architect.
[31]
While I can readily understand why the
applicants should have preferred the less intrusive nature of the
previous building on the
respondent’s property and have some
sympathy with their dislike of its replacement, the situation of
their properties in
a highly sought after area on Cape Town’s
Atlantic coastline means that they have no alternative but to accept
that it is
subject to exceptional development pressure. More
pertinently, I am unable to hold that the decisions to grant the
respondent’s
application for the departures he required were
decisions that a reasonable decision-maker could not have made.
That finding
applies equally to the decision made by the MEC on
appeal and to the consents granted by the City’s planning
appeals committee
that were not appealable. In the result the
application for judicial review in terms of s 6(2)(h) will be
dismissed.
[32]
The review in terms of s 6(2)(e)(iii)
was argued on the grounds that the decision-maker had failed to
appreciate that ‘the
core to which the enquiry had
crystallised’ was ‘whether there had been a reduction in
scale, form and mass from that
which was unanimously unacceptable to
achieve something which was acceptable’.
[10]
It was contended on that premise that the decision-maker failed to
take into account a relevant consideration. It follows
from
what has been said earlier in this judgment that there is no merit in
the point.
[33]
It was also argued that the decision-maker
took into account an irrelevant consideration by ‘considering
each departure/consent
separately and on a piecemeal basis without
considering, and therefore losing sight of the common cause
requirement that scale,
form and mass and their overall effect on the
streetscape had to be reduced, taking into account that a departure
application is
always linked to a specific intended building project
and individual departures are not granted in the abstract’.
[11]
This argument has also already effectively been disposed of adversely
to the applicants. I should indicate, however,
that there is no
merit in the allegation that a piecemeal approach was adopted by the
decision-makers. The reports before
the decision-makers reflect
that detailed consideration was given in the advice upon which the
functionaries acted to all aspects
of the proposed development,
including its ‘aesthetic and built’ form. It is
plain that regard was had to what
the contextual impact of the
structure would be in its finished form.
[34]
The second ground of review also fails.
Costs
[35]
The prayer for costs in terms of the
applicants’ notice of motion was framed in the customary manner
in applications of this
sort. Costs were sought only against
the respondent, and against the MEC and the City, jointly and
severally with the respondent,
only should they, or either of them,
oppose the application.
[36]
The MEC abided the judgment of the court on
condition that the applicants did not persist with their allegations
of procedural irregularity.
The allegations of procedural
irregularity related to the alleged failure by the City to have given
notice to the objectors of
the modifications to the application.
They were demonstrably without substance, and not persisted with.
The City, however,
entered the fray to defend the decision. It
sought the dismissal of the application with costs and briefed
counsel to appear
at the hearing. The answering papers of the
City (cited as second respondent) and the respondent covered
essentially the
same ground and so did the heads of argument filed by
their respective counsel. After a helpful and able argument by
the
City’s counsel, senior counsel for the respondent was left
with nothing much to add, either on the merits of the review, or
the
applicants’ prayer that should the review be upheld the court
should substitute its own decision in the place of that
of the
planning authorities. I cannot think that the City’s
counsel would have had anything material to add if the
respondent’s
counsel had argued first and he had had to follow. The fact
that the City took the respondent’s
part in the application
materially increased the applicants’ potential exposure in
respect of the costs of the proceedings.
[37]
I raised my reservations about the fairness
of visiting the unsuccessful applicants with these additional costs
in the circumstances.
[12]
It was not evident that the case raised any issues in respect of
which the City could be said to have a plausible institutional
interest. It seemed to me that it would be of no moment to the
City whether the respondent were permitted to regularise his
offending structure or required to alter his development plans to
meet his neighbours’ objections. The issues involved
were
of no identifiable interest to the broader community of Cape Town and
did not raise questions of general importance affecting
the City’s
administration.
[13]
[38]
The essentially interested protagonists
were the respondent, as the developer, who sought departures from the
zoning scheme, and
the applicants, as owners of neighbouring
properties, who were objecting to some of the deviations from the
scheme being permitted.
The role of the decision-maker in such
a situation, whether it be the local authority at first instance, or
as was the case in
terms of s 44 of LUPO, the provincial
authority on appeal, is to weigh the contesting arguments and
professional opinions
and in the light of them and the objective
facts make a reasonable decision. It is obviously expected of
it in fulfilling
its statutory function to act objectively and
impartially. The exercise entailed administrative
decision-making of the sort
that in yesteryear’s administrative
law parlance was called ‘quasi-judicial’. The fact
that the label has
fallen out of fashion is not material.
[39]
It was with those considerations in mind
that I put my reservations about the appropriateness of making the
applicants pay the City’s
costs to counsel. I had in mind
the principles discussed and applied in cases such as
MacLean
v Haasbroek
NO
1957 (1) SA 464
(A),
Hall v Military Pensions Appeal Tribunal
1963 (3) SA 407
(T) and
Du Toit v
Voorsitter, Nasionale Vervoerkommissie
1985 (3) SA 56
(SWA) at 66C-67B.
[40]
In
MacLean
,
Centlivres CJ held that in a case in which a public officer whose
decision has been made in a quasi-judicial capacity is impugned,
but
no order in costs is sought against him, there was no reason, if the
public officer opposes unsuccessfully, why he should not
be ordered
to pay the costs occasioned by his opposition, unless there are
circumstances which entitle the Court in the exercise
of its
discretion to make no order as to costs. Of particular
pertinence to the question currently under consideration, the
Chief
Justice then proceeded (at p. 469A-B) to note that as the first
respondent in the appeal had acted in a judicial or
quasi-judicial
capacity ‘
he had no personal
interest in the result and he should in the circumstances of this
case not have taken sides. He should have submitted
to the judgment
of the Court and he could, if he had wished to do so, have filed his
reasons for coming to the decision which was
the subject of the
attack
’.
[41]
In
Hall
’s
case supra, Galgut J applied the principle stated in
MacLean
and granted costs against the Military
Pensions Appeal Tribunal, which had opposed Mrs Hall’s
application in terms of
s 33(4) of the War Pensions Act 44 of
1942. The learned judge made the following relevant remarks at
410 fin –
411A:
The respondent is a quasi-judicial body. The applicant
does not attack its
bona fides
. The applicant asks for costs
only in the event of the respondent opposing the application. That
being so, it would have been sufficient
for the respondent to have
filed its reasons for the benefit of the Court or even to have
briefed counsel to assist the Court in
coming to a conclusion without
actively opposing this application. The respondent, however, decided
to come to this Court and oppose
the application.
[42]
In
Maclean
and
Hall
,
the applicants were successful parties.
Du
Toit
’s case supra affords an
example of the application of the approach in a matter in which the
application was unsuccessful.
The applicants in that matter
unsuccessfully took a road transport permit related decision of the
National Transport Commission
on judicial review. The
Commission was cited as the first respondent and the applicant’s
competitor in the transport
business, who had been awarded a permit,
as the second respondent. The argument advanced by counsel for
the unsuccessful
applicants in respect of costs was summarised by the
court at 65H-66B as follows:
Wat die koste betref het mnr
Henning
aan die hand
gedoen dat, selfs al sou die respondente slaag, die eerste respondent
nie op sy koste geregtig is nie. Die Kommissie
vervul 'n
kwasi-judisiële rol, wie se optrede op hersiening onder die
soeklig geplaas word. In hierdie opsig is daar
dus geen verskil
tussen die posisie van die Kommissie en 'n hof nie. (Vgl
Minister
of Agricultural Economics and Marketing v Virginia Cheese and Food Co
(1941) (Pty) Ltd
1961 (4) SA 415
(T) op 422F). Dit was moontlik -
so lui die betoog - dat hierdie saak na die Kommissie terugverwys
moes word. Hoe kon geregtigheid
onder daardie omstandighede geskied
as die Kommissie hom aktief met die ander party vereenselwig het? Sy
deelname, by wyse van
afsonderlike regsverteenwoordigers, hou die
gevaar in dat indien hy weereens oor dieselfde aangeleentheid moes
beslis, sy onpartydigheid
daardeur beïnvloed kan word. Die
Kommissie behoort, in die lig van die voorafgaande, die redes vir sy
besluit te verstrek
het en daarna nie verder aan die verrigtinge
deelgeneem het nie.
Alhoewel geen direkte gesag vir die stelling aangehaal
is nie, is daar wel steun vir hierdie benadering te vinde.
The court (Odes AJ, Mouton J concurring) then referred to
the
dicta
of Centlivres CJ in
MacLean
supra, at pp.
468H-469B, and proceeded as follows:
Alhoewel die Staatsamptenaar in die
MacLean
- saak
supra 'n onsuksesvolle respondent was, doen die feit dat die eerste
respondent in hierdie aansoek suksesvol was, geen afbreuk
aan die
beginsel wat deur die Appèlhof neergelê is nie.
Die vereiste dat 'n amptenaar wat judisiële of
kwasi-judisiële funksies uitoefen onpartydig moes wees, word ook
in die
saak
Odendaal v Registrar of Deeds, Natal
1939 NPD 327
weerspieël. Op 366 van die laasgenoemde saak, het Feetham RP hom
soos volg uitgelaat:
“
In the event of the Registrar
being represented in Court, we have no doubt that the attitude of his
counsel should be that of
amicus
curiae
rather than
that of a partisan. We think the same attitude should be adopted by
counsel for the Registrar in cases in which he
is the respondent.
Otherwise the Registrar would lose his semi-judicial character and
thus destroy the basis upon which his immunity
from liability for
costs is founded.”
(Kyk ook
Reeskens v Registrar of Deeds
1964 (4)
SA 369
(N) op 373; Cilliers
The Law of Costs
op 181 - 4.)
In die saak nou onder bespreking, het die applikante
geen koste teen die eerste respondent geëis, tensy hy die
aansoek bestry
het nie. Die tweede respondent het 'n houding ingeneem
wat identies met die van die eerste respondent was. Die aansoek het
hoofsaaklik
oor die uitleg van sekere permitte gegaan en die eerste
respondent kon dus verwag dat sy uitleg deur die tweede respondent se
regsverteenwoordiger
volledig uiteengesit en argumenteer sou word.
Dit was, myns insiens, dus heeltemal onnodig vir die eerste
respondent om kant te
kies en opdrag aan twee advokate te gee. Daar
is geen rede na my mening waarom applikante met die eerste respondent
se koste belas
moet wees nie.
It
is plain from the reasoning in
Du Toit
that while the ordinary rule that a successful party is ordinarily
entitled to its costs
[14]
was applied in respect of the second respondent, the position of the
administrator was, for the reasons given, regarded as
distinguishable.
[43]
In my respectful view the aforegoing
approach to costs commends itself in the current case. It must
also be borne in mind
that review proceedings in terms of s 6 of
PAJA involve the assertion by the applicants of their constitutional
right to lawful,
reasonable and procedurally fair administrative
action. A recognised consideration is that the chilling
prospect of an adverse
costs order should not be allowed to become an
undue disincentive to persons seeking to assert their basic
rights.
[15]
The weight to be attached to that consideration depends, of course,
on the nature of the given case. It does not stand
as a warrant
for obviously meritless or vexatious litigation.
[44]
I do not wish what I have said to be
misunderstood to suggest that a decision-making body such as the City
should never be entitled
to its costs were it to successfully oppose
an application for review of this nature. The award of costs
entails the exercise
of judicial discretion, and the facts and
circumstances of each case must be weighed individually in the
decision. Ultimately,
the court must make an award that it
considers to be just and equitable.
[16]
[45]
The matter of
Camps Bay
Ratepayers’ and Residents’ Association v Harrison and
Another
2011 (4) SA 42
(CC), for example, affords an instance of
a local authority being awarded its costs for actively and
successfully opposing a review
application in respect of its decision
to approve building plans. It is quite clear, however, that the
City had an objectively
justifiable reason going beyond the
contesting positions of the parties involved in the neighbourhood
dispute at the core of that
matter to become actively engaged in the
case. The City was concerned to determinatively establish the
legal effect of title
deed restrictions in the context of the
assessment by local authorities of applications for building plan
approval in terms of
the Building Act.
[17]
Similar considerations having an important institutional effect would
explain the City’s active opposition to a building
plan review
in
City of Cape Town v Reader and Others
[2008] ZASCA 130
;
2009 (1) SA 555
(SCA). In that matter the operation of the internal appeal
provision afforded in terms of
s 62
of the
Local Government:
Municipal Systems Act 32 of 2000
was centrally in issue. The
City was not taking a partisan role in a dispute between neighbours
in that case; it was seeking
to obtain clarity on a matter of
considerable institutional importance.
[18]
The institutional importance of the matter for local authorities in
general was confirmed by the intervention in the matter
at its own
cost of the Ethekwini Municipality as
amicus curiae
. The
Ethekwini Municipality participated on the same basis in
True
Motives 84 (Pty) Ltd v Mahdi and Another
2009 (4) SA 153
(SCA),
which concerned the import of s 7 of the Building Act.
[19]
The correct interpretation of s 7 of the Building Act was a
matter of significant importance to municipalities.
That it
raised thorny questions with which local authorities had good reason
to wish to be actively engaged is borne out by the
sometimes stormy
jurisprudential history from
Walele
[20]
to
Turnbull- Jackson
.
[21]
An indication by the applicant for judicial review that it would seek
compensation in damages against the decision-maker
would be another
example of a situation in which the latter might be justified in
actively opposing the application and seeking
its costs for doing
so.
[22]
[46]
I also do not wish to be mistook as
advocating an approach that would relieve a public authority whose
decision is taken on review
from conscientiously complying with the
obligations imposed in terms of rule 53 to file a complete and
accurate record of the proceedings
or from assisting the court
insofar as appropriate with an explanation of the decision in issue
to the extent that is not already
documented in the record, or
briefing counsel to assist the court effectively as
amicus
curiae
.
[23]
The duties imposed in terms of the rules of court and s 165(4)
of the Constitution are quite independent of the question
whether or
not it would be appropriate in a given case for the administrator to
actively oppose the application, or seek a costs
order against the
applicant.
[47]
I would have been inclined to make no order
in respect of the City’s costs. Probably sensing some
vulnerability in the
applicants’ fallacious allegations of
procedural irregularity, their counsel, however, accepted that his
clients should pay
the City’s costs up to and including the
delivery of the City’s answering papers in the application in
the event of
the application being refused. I find no reason to
interfere with that concession.
[48]
In the result the following order is made:
1.
The
application for the judicial review and setting aside of the impugned
decisions of the first and second respondents is dismissed.
2.
The
applicants shall pay the costs of suit of the fourth respondent,
including the costs of two counsel and the fourth respondent’s
costs in the interdict application; and also the costs of the second
respondent incurred up to and including the delivery of the
second
respondent’s answering papers in the application.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s
counsel:
A. Kantor
Applicant’s attorneys:
Rubensteins Attorneys
Cape
Town
Second
Respondent’s counsel
R. Paschke
Second Respondent’s attorneys
Hayes Incorporated
Cape Town
Fourth Respondent’s counsel
S.P. Rosenberg SC
D.W. Baguley
Fourth Respondent’s attorneys
Slabbert Venter Yanoutsos
Wynberg
Norton Rose Fulbright
Cape Town
[1]
The judgment of the Constitutional
Court in
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v Habitat Council and Others
2014 (4) SA 437
(CC) that confirmed that s 44 of LUPO was
constitutionally incompatible and invalid has no bearing on the
prima facie validity
of the impugned decision. That is by
virtue of paragraph 2 of the court’s order, which excluded any
retrospective
effect of the declaratory order and expressly provided
that it did not affect appeals, such the one in issue in the current
case,
that were already pending when the judgment was delivered.
The appeal in the current matter was lodged in November 2013.
LUPO has since been repealed in terms of s 77 of the Western
Cape Land Use Planning Act, 2014.
[2]
I do not understand why the
applicants joined the Planning and General Appeals Committee and the
Province as separately cited
respondents. The Committee is
nothing more than a manifestation of the City, and has no legal
personality of its own.
The Province has no interest in the
matter other than that represented by the MEC as the maker of the
impugned decision.
[3]
It was averred incorrectly (in para.
10 of the founding affidavit) that the respondent is the owner of
Erf 649, which is in fact
an adjoining section of road reserve that
is leased by the respondent from the City. The land comprising
Erf 649 had been
expropriated by the local authority more than 50
years ago for contemplated road-widening purposes. It has
since been determined
by the local authority that the contemplated
road-widening scheme is impractical and a decision has been made to
abandon the
idea.
[4]
The road name is given as
‘Seacliff
e
’
or ‘Sea Cliff’ in some of the documentation.
[5]
Certain complaints by the applicants
founded on alleged procedural irregularity were abandoned. I
have referred to the paragraphs
in s 6(2) of PAJA relied upon
by the applicants’ counsel in oral argument. The
applicants’ reliance on
s 6(2)(f) in the founding
affidavit was not persisted with in argument.
[6]
See H
ayes
and Another v Minister of Finance and Development Planning, Western
Cape, and Others
2003
(4) SA 598
(C). At 624J – 625A,
Lagoon
Bay Lifestyle Estate (Pty) Ltd v Minister of Local Government,
Environmental Affairs and Development Planning, Western
Cape and
Others
[2011] 4
All SA 270
(WCC) at paras 22 – 23 and contrast
Booth
and Others NNO v Minister of
Local
Government, Environmental Affairs and Development Planning and
Another
2013 (4)
SA 519
(WCC)
at paras.
45-48.
[7]
See note 6.
[8]
See note 6, above.
[9]
See Joubert et al. (ed.), LAWSA
Second Edition vol 25(1) at para. 363 and the authority cited there.
[10]
Paragraph 15.4 of the applicants’ heads of
argument.
[11]
Paragraph 15.5 of the applicants’ heads of
argument.
[12]
Counsel for the City was caught by surprise by the
point that I raised
mero motu
.
I therefore invited him to put in a note after the hearing.
Detailed submissions on costs running to over 20 pages
were
thereafter received by me on 31 October 2016, after counsel had
requested extra time because of his engagement in other
pressing
matters.
[13]
Cf.
Camps Bay Ratepayers’
and Residents’ Association v Harrison and Another
2011
(4) SA 42
(CC) at para 71, where the Court characterised the dispute
about the legality of the City’s approval of Harrison’s
building plans as ‘
in reality a
property dispute between two neighbours
’.
[14]
Cf.
Merber v Merber
1948 (1) SA 446
(A) from p.452.
[15]
Cf.
Biowatch Trust v
Registrar, Genetic Resources, and Others
2009 (6) SA 232 (CC).
[16]
Cf.
Chonco and Others v
President of the Republic of South Africa
[2010] ZACC 7
;
2010 (6) BCLR 511
(CC) at para. 6.
[17]
The
National
Building Regulations and Building Standards Act 103 of 1977.
[18]
In the current matter the City’s counsel
attempted to persuade me that the application bore materially on the
City’s
policy of densification. In my view the argument
was far-fetched. The proposed development would result in a
double
dwelling on the property. There was nothing in the
applicants’ objections that suggested that they were opposed
to
a double dwelling being constructed on the property.
[19]
The Ethekwini Municipality’s intervention in
True
Motives
was prompted by the invitation
extended to it to do so by the presiding judge in
Reader
,
who had then already been empanelled as part of the bench to hear
the appeal in
True Motives
a week after the appeal in
Reader
was heard. I know this because I appeared as counsel for the
City in
Reader
.
The invitation was extended during the course of argument in the
case.
[20]
Walele v City of Cape Town and
Others
2008 (6) SA
129 (CC), 2008 (11) BCLR 1067.
[21]
Turnbull-Jackson v Hibiscus Coast
Municipality and Others
2014 (6) SA 592 (CC).
[22]
The matter of
Booth
supra
(note 6) on which the City’s counsel placed reliance was
plainly a matter in which the City was entitled to its
costs.
It involved interdict proceedings in which the City, in compliance
with its statutory duty, had sought to enforce
the zoning scheme
against a non-compliant property owner. The property owner
unsuccessfully tried to avoid the effect of
its unlawful conduct by
challenging on review the planning authorities’ refusal of
their rezoning application. The
two aspects of the case were
inextricably interrelated. The matter also raised the proper
construction of s 36 of
LUPO, which, as I have noted, had been
a contentious issue, the proper determination of which was of
institutional concern to
the planning authorities.
[23]
It was the administrator’s remissness in these
respects that aroused the court’s displeasure in matters such
as
BSB International Link CC v Readam South
Africa
(Pty) Ltd
2016 (4) 83 (SCA) and
South African Football
Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons
and Another
2003 (3) SA 313
(SCA) at
para. 5-6. In the latter case it was the conduct of
Registrar of Trade Marks that was remarked on adversely.