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[2016] ZAWCHC 157
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Tavakoli and Another v Bantry Hills (Pty) Ltd and Another (17991/2016) [2016] ZAWCHC 157 (3 November 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: 17991/2016
In the
matter between:
ALLEN
TARGHI
TAVAKOLI
First
Applicant
DLX
PROPERTY (PTY)
LTD
Second
Applicant
and
BANTRY
HILLS (PTY)
LTD
First
Respondent
THE
CITY OF CAPE
TOWN
Second
Respondent
JUDGMENT DELIVERED ON 3 NOVEMBER 2016
GAMBLE,
J:
INTRODUCTION
[1]
On Friday, 21 October 2016 the applicants approached this court as a
matter of urgency for interim relief in the form of a temporary
interdict halting certain building works pending a review of the
relevant building plans to be heard on the semi-urgent roll. The
application is of a kind which this court regularly hears - often on
Fridays - involving uncompleted construction work along, inter
alia,
the Atlantic Seaboard, from Sea Point through Bantry Bay and Clifton
to Camps Bay.
[1]
The applicable priciples are accordingly well
established and I shall refer thereto only to the extent strictly
necessary later.
Although urgency was disputed on the papers as being
self-created, this was not seriously challenged in argument and the
parties
now appear to be
ad idem
in that regard.
[2] In
this instance the first respondent, Bantry Hills (Pty) Ltd (“Bantry
Hills”) commenced construction of a large
block of luxury
apartments in Sea Point during May 2016. It did so, it says, in terms
of a set of plans eventually approved by
the second respondent, the
City of Cape Town, in July 2016. The first and second applicants are
residents of Sea Point and immediate
neighbours of each other. Their
homes are in the immediate vicinity of Bantry Hills but they are not
neighbours to the development.
[3] The
first applicant began asking questions about the development in about
June 2016 and initially appears to have encountered
some difficulty
in acquiring a set of plans. He was eventually helped out by the
architects appointed by Bantry Hills as also the
City which gave him
access to electronic copies thereof late in July 2016.The first
applicant says that he then consulted a firm
of land surveyors and
took legal advice during August 2016. During September 2016 he was
informed that the plans did not comply
with the relevant zoning
provisions applicable to the development in question and he gave his
attorneys instructions to launch
urgent proceedings to review the
City’s approval of the plans. He also instructed his attorneys
to take the necessary steps
to bring the development to a halt
pending the hearing of the review application, the latter application
to be heard as soon as
possible on the semi-urgent roll.
[4]
Pursuant to those instructions the present application was launched
on 10 October 2016. In the circumstances, Bantry Hills was
effectively given nine working days to deal with the application for
interim relief and they were able to prepare an adequate set
of
papers in opposition thereto. At the hearing the applicants were
represented by Mr A.M. Smalberger SC and Bantry Hills by Mr
I Jamie
SC (assisted by Mr R.D.E.Gordon). The court is indebted to counsel
for the useful submissions made in their heads of argument
which have
facilitated the preparation of this judgement.
[5] A
couple of days after the hearing the court requested counsel for
Bantry Hills to furnish a further short affidavit dealing
with
certain aspects of the building works which the court considered
necessary for a just decision in the matter. The applicants
were
afforded an opportunity to file a brief response thereto. In the
result, a further affidavit was filed by Bantry Hills on
Thursday 27
October 2016, to which the first respondent replied on Friday 28
October 2016. The parties also provided the court
with an agreed
draft order referring the review for hearing on the semi-urgent roll
on Monday, 20 February 2017, directing the
City to make available its
record of proceedings and fixing a timetable for the further exchange
of affidavits and heads of argument.
THE
LAYOUT OF THE PROPERTY IN RELATION TO THE NEIGHBOURHOOD
[6]
The Bantry Hills development is located on Erf …5 Sea Point
West, a property which acquired notoriety as the subject
of an
extensive land claim by families who had been forcibly removed from
the area by the apartheid government under the Group
Areas Act. In
2001 the property was awarded to the Tramway Trust by the City as
part of a land distribution claim, and in April
2014 it was sold for
R51m to the current developers who proudly proclaim the benefits of
the deal, alleging in their promotional
material that each
beneficiary family evidently received more than R2m from the proceeds
of the sale
[2]
.
The development, said to measure some 14 000 sq metres, is
further described in the developer’s media release (Annexure
ATT 11) as “
a R750 million
ultra-luxury development, which will be unlike any other property in
Cape Town’
and which will consist
of “
60 uniquely designed
apartments already being sold to international buyers, with an
average value of R12 million. ”
It
will evidently consist of four curved blocks each 11 floors high
surrounding a green space, with any number of luxury facilities,
including a heated swimming pool and a spa, available to the
residents.
[7] The
Tramway Trust probably acquired its name from the fact that part of
Erf …5 abuts Tramway Road which is located at
the so-called
“lower (or western) end” of Sea Point. The urban
geography of the Atlantic Seaboard in that area is such
that there
are initially four main arterial routes running roughly east to west
(i.e. from the direction of the City and Green
Point towards Bantry
Bay and beyond) which convey the bulk of vehicular traffic in either
direction. These routes (traversing from
north to south) are Beach
Road, which, as the name suggests, hugs the Atlantic coastline, Main
Road (which traverses the central
business districts of Green Point,
Three Anchor Bay and Sea Point), High Level Road (which traverses the
residential areas of Green
Point, Three Anchor Bay, Sea Point and
Fresnaye) and Ocean View Drive (which hugs the contours of Signal
Hill and Lion’s
Head, also passing through those residential
areas.)
[8]
As these roads move westward they gradually begin to converge into
each other. Beach Road and Main Road converge at a traffic
circle
just beyond the latter’s intersection with Tramway Road and
become Victoria Road which proceeds through Bantry Bay
and Clifton
towards Camps Bay. High Level Road and Ocean View Drive peter out in
the avenues of Fresnaye and traffic travelling
westwards along those
roads is effectively diverted to a lower arterial route known as
Kloof Road, which follows the countour of
the mountain above Victoria
Road and carries traffic through Bantry Bay and Clifton to Camps Bay,
where it converges with Victoria
Road. The purpose of this
description of the road network in the general vicinity of Bantry
Hills is to draw attention to the fact
that four main arterial routes
carrying traffic to the area progressively converge into two routes
and then into a single road
as they move westward.
[3]
[9]
Erf ..25 is located mid way between Main and Kloof Roads. From the
photographs placed before the court in the supplementary
affidavit of
the developer one can see that the property is hemmed in by a number
of adjoining properties (including private dwellings,
apartment
blocks and a school) to the west, east and north, and abuts 2 one-way
streets. The court was informed by counsel that
the property measures
some 7500 sq meters, giving it an enormous foot print in comparison
to the size of residential erven (other
than apartment blocks) along
the Atlantic seaboard which probably vary between 500 and 700 sq
meters.
[4]
[10]
According to the maps and plans placed before the court, access to
the property from Main Road is obtained by turning into
Tramway Road
which is a one-way street travelling in a southerly direction (or
upwards from Main Road towards Kloof Road and the
slopes of Lion’s
Head beyond). As Tramway Road approaches the property it turns
sharply to the right (the west) where, a
little further on, it runs
into Kings Road. Kings Road links Kloof Road with Main Road and is a
one-way street running in a northerly
direction down towards Main
Road. Queens Road is located one street further to the west and runs
parallel to Kings Road. Queens
Road carries traffic in a one-way
direction to the south, from Victoria Road up to Kloof Road.
[11]
Vehicles wishing to enter Bantry Hills from Kloof Road will be
required to turn into Kings Road, travel a short distance down
towards Main Road and then turn sharp right into Ilford Street, which
is itself a short one-way street in the shape of a right-angle
which
turns to the right and carries traffic back up towards Kloof Road.
Part of the property abuts Ilford Street and the plans
envisage
vehicle access
[5]
to the property into Ilford Street. Alternatively,
vehicles could travel all the way down Kings Road, turn right into
Main Road
(if permitted to do so) and immediately right again into
Tramway Road so as to access the property through a second entrance
that
is reflected on the plans. In summary then, the plans envisage
two access points to the property: on the southern side of the bend
in Tramway Road and on the northern side of the bend in Ilford
Street.
[12]
The applicants’ adjoining properties
[6]
are situated on the southern (or mountain) side of
Kloof Road and are located more or less between its intersections
with Kings
Road and Ilford Street.
[7]
The court was informed by counsel that these
properties are approximately 80m (as the proverbial crow flies) from
the access point
to Erf …5 in Ilford Street and that they will
have direct line of sight to the Bantry Hills complex.
THE
RIGHT ASSERTED BY THE APPLICANTS : NON-COMPLIANCE WITH THE APPLICABLE
PLANNING BY-LAW
[13]
It is common cause that Erf …5 is zoned “GR4” in
terms of the City’s Municipal Planning By-law of
2015 (“the
By-law)
[8]
.
GR4 is part of the so-called “General Residential Subzonings”
traversed in items 40 – 45 of the By-law. Those
items are
introduced with the following preamble –
“
The GR zonings promote higher-density
residential development, including blocks of flats. Different
development rules apply to different
subzonings, particularly with
regard to height and floor space, in order to accommodate variations
of built form. GR2 accommodates
flats of relatively low height and
floor space, GR3 and GR4 for cater for flats of medium height and
floorspace, while GR5 and
GR6 accommodate high-rise flats. The
dominant use is intended to be residential, but limited mixed-use
development is possible.”
[14]
Item 40 of the By-law deals with the permissible use of a property
located in a GR4 subzoning –
“
40.
Use
of the Property
The following use restrictions apply to property in these
subzonings
:
(a)
Primary
uses subject to paragraph (c) are dwelling house, second dwelling,
group housing, boarding house, guest house, flats, private
road and
open space.
(b)
Consent
uses subject to paragraph (c) are utility service, place of
instruction, place of worship, institution, hospital, place
of
assembly, home occupation, shops, hotels, conference facility and
rooftop base telecommunications station.
(c)
Notwithstanding
the primary and consent uses specified in paragraphs (a) and (b), if
the only vehicle access to the property is
from an adjacent road
reserve that is less than 9m wide, no building is permitted other
than a dwelling house or second dwelling.”
[15]
The applicants rely on the provisions of item 40 (c) for the alleged
non-compliance on the part of Bantry Hills with the By-law.
They
contend that at the points of access to the property in Ilford Street
and Tramway Road, the “
adjacent
road reserve”
is less than 9m
wide. In support of this allegation they rely on a report by Tritan
Survey (Pty) Ltd dated 12 September 2016.
[9]
The report is authored by a certain Mr Paul
Higgins (whose exact association with Tritan is not specified) and
contains annotated
photographs with data and measurements compiled by
Messers Mark Shreiber, a Professional Land Surveyor, and Clayton
Mitchell a
Professional Land Surveyor in Training, both of whom are
said to be in the employ of Tritan. The methodology employed by the
land
surveyors is set out in detail in the report and is not
disputed.
[16]
Figures 7 and 8 in the Tritan report are entitled “
City
Council Ortho
Photos with SG GIS Cadstral Data”.
They reflect aerial photographs (ostensibly provided by the City) of
Ilford Street and Tramway Road respectively at the points
of access
referred to above, with the measured width of the road reserve
overlaid on each. In the founding affidavit the first
applicant says
that he has examined the approved plans which confirm that these two
points are the envisaged access points to the
development. He goes on
to assert that the width of the Ilford Street road reserve at that
point of access to the property is less
than 9 metres: according to
figure 7 it varies between 7,85m and 7,98m as the road bends to the
right. During argument Mr Jamie
conceded that the first applicant was
correct in relation to the width of the road reserve in Ilford
Street.
[17] In
relation to Tramway Road, the first applicant says the following in
the founding affidavit:
“
27.3 [The Tritan report
indicates that]...(t)he width of the (sic) Tramway Road (including
the road reserve) is less
than 9 metres (figure 8)….”
[18] In
the answering affidavit Mr Quinton Rossi, a director of Bantry Hills,
deals with this allegation as follows:
“
35.
AD
PARAGRAPH 27.2 & 27.3 THEREOF
As is apparent from a plan annexed hereto and to marked “
BH
7
” which has been drawn up by Andries Samuel (Bantry Hills’
architect) and whose confirmatory affidavit is filed herewith,
where
access to the property is adjacent to Tramway Road, the road reserve
is not less than 9m as is apparently contended for by
the applicants.
The road reserve is in fact, 10,070m wide as demonstrated.
Accordingly and on this basis too, item 40 (c) of the
DMS would not
apply so as to prevent the development.”
[19] In
the replying affidavit, the first applicant responds as follows:
“
AD PARAGRAPH 35
43. The content of this paragraph is noted. I
point out, however, that the measurement of Annexure “BH7”
refers to a
portion of the (sic) Tramway Road and not the portion
adjacent
to
the property which leads to Kings Road. The road reserve of the
portion
adjacent
to
Tramway Road is less than 9m and this is not disputed. (Emphasis
added)
44. Moreover, the evidence presented relating to the width of
Tramway Road by the applicants (Record page 47) is to be preferred,
being a report conducted by land surveyors. Had the first respondent
wished to challenge the findings of the applicants’
land
surveyors I would have expected it to have filed a report from a land
surveyor.”
[20]
The operative adjective in item 40(c) for present purposes is
“
adjacent”
which is
defined
in the Oxford Advanced Online Dictionary as –
“
1. nearest in space or position;
immediately adjoining without intervening space; 2. having a common
boundary or edge; abutting;touching.”
[21]
If regard be had to Annexure BH7, it will be observed that the
architect has reflected the width of the road reserve as 10,07m
at a
point in Tramway Road which lies some distance to the north of the
contemplated access point to the development (i.e down
towards Main
Road). However, that point in the street is not “
adjacent
”
to Erf …5, but seemingly to Erf ..4 (or
possibly Erf …1) – that much appears from the “
Surveys
(sic) General Office Noting Sheets”
filed
at p8 of the Tritan report.
[10]
The point of measurement is confirmed in a Google
Earth photograph attached to the answering affidavit (Annexure BH 7)
on which
the alleged extent of the road reserve has been superimposed
with a red arrow. In that photograph one can see a building on the
left which resembles a municipal store of some sort, possibly an
electricity substation, which appears to be situated on either
of
erven ..4 and/or …1, as per the said “Noting Sheets”.
[22]
The only aspect of Erf …5 which is adjacent to Tramway Road
and has a “
common boundary”
with it lies on the southern boundary of the road
along the section running east to west and which leads to Kings
Road
[11]
.
On the Google Earth photograph the fence located on that boundary
consisting of pallisade fencing and a double gate is clearly
visible.
It is common cause that the width of the road reserve in Tramway Road
along this boundary is less than 9m.
[23] In
argument Mr Smalberger SC pointed out that the only evidence put up
by the developer was that of an architect whose evidence
stood in
stark contrast to that of the land surveyors, who were better
qualified than an architect to perform the exercise in question.
There is much to be said for that argument, but in light of my
finding that the architect’s measurement was not made at a
point adjacent to Erf ..25 as required for the application of item
40(c), it is not necessary to comment further on that argument
at
this stage. It can be dealt with, if necessary, when final relief is
sought.
[24]
There was a further dispute between the parties as regards the import
of the phrase “
the only vehicle access”
as it
appears in item 40(c)
.
The first applicant argued that if any
one of the access points was adjacent to a road reserve less than 9m
wide that was sufficient
to restrict the use of the property to a
dwelling house or second dwelling. Bantry Hills on the other hand
argued that if one access
point was adjacent to a road reserve which
was more than 9 m in width, while another fell short of the
measurement, this
was sufficient to save the day.
[25]
The “
dual access”
issue was dealt with extensively
by Rogers J in para’s 32 – 41 of his judgment in the
Phase III
case and I associate myself with my
Colleague’s comments in that regard. Like Rogers J, I express
reluctance to determine
legal issues at this stage: that is
pre-eminently the function of the court hearing the review where far
more detail is likely
to be available for consideration, and where
there will be time for more comprehensive argument.
[26]
While it is arguable, as contended by the first applicant in the
founding affidavit and by Mr Smalberger SC in argument, that
the
applicants may have established a clear right to relief, I am
disinclined to go that far at this stage. To be sure, the applicants
have adduced compelling evidence from professional people duly
qualified to express expert opinion on the question of the
measurement
of land that at both proposed access points the adjacent
road reserve is less than 9m wide. As against that there is evidence
of
a measurement taken at a point in Tramway Road which appears to be
irrelevant for the application of item 40(c).
[27]
Prest
,
in his seminal work on interdicts
[12]
,
observes that courts have sometimes confused the level of proof
required to establish a right for purposes of obtaining a temporary
interdict. In the case of a clear right, it is axiomatic that this
must be established on a balance of probabilities. But what
is the
position where the applicant cannot, at the interim stage, reach that
threshold?
Prest
with
particular reliance on
Webster v
Mitchell
[13]
suggests the following solution at 55-6:
“
The proper manner of approach is to take
the facts set up by the applicant, together with any facts set out by
the respondent which
the applicant cannot dispute, and to consider
whether, having regard to the inherent probabilities, the applicant
should on those
facts obtain final relief at the trial. The facts set
up in contradiction by the respondent should then be considered. If
serious
doubt is thrown on the case of the applicant he could not
succeed in obtaining temporary relief, for his right,
prima
facie
established, may only be
open to ‘some doubt’ ”.
Applying
that approach, I am more than satisfied that the applicants have
established
a right which should afford them final relief on review.
LOCUS
STANDI
[28] In
argument Mr Jamie SC challenged the applicants’
locus
standi
. In the first place he suggested that the lack of physical
proximity of their properties to the development deprived them of the
requisite interest to enforce the provisions of the City’s
Development Management Scheme (“the DMS”), which forms
part of the By-law. Had they been immediate neighbours to the
development, said counsel, there could have been no objection. The
submission was based on the cases referred to in footnote 1 above,
all of which demonstrated a close degree of proximity to the
offending property.
[29] In
para 21 of the founding affidavit, the first applicant asserts
locus
standi
as follows:
“
The applicants have standing to bring
this application because they are entitled to enforce the DMS against
Bantry Hills and because
their constitutional rights to just
administrative action have been infringed by the purported approval
by the City of the (sic)
Bantry Hills’s (sic) unlawful plans.”
There
is a bald denial of this allegation by Bantry Hills and a reliance on
argument to be advanced at court, in the answering affidavit.
[30] In
relation to the
locus
point, Mr Smalberger SC noted that the
applicants had voiced their concerns about the proposed development
as early as 23 May 2016
when their attorney delivered a request to
Bantry Hills for access to the plans, citing his clients’
interest in the development
as follows:
“
3.1 the properties which they own are in
close proximity to the aforesaid development,
3.2 the proposed development would dramatically increase the
traffic congestion in the area,
3.3 the proposed building may potentially decrease the value of
our client’s (sic) properties…”
[31]
From the outset, therefore, there could have been little doubt on the
part of the developers (and the City for that matter)
that the
applicants’ cause for complaint as a consequence of the alleged
unlawful approval of the plans was directed primarily
at increased
traffic flow in the neighbourhood. In addition, the first applicant
recorded in the founding affidavit that upon initial
inspection of
the plans he observed that there was only one access point onto the
property from Ilford Street.
[32] In
introducing the Tritan Report into the founding affidavit, the first
applicant makes the following comments –
“
27.1 [The report indicates]
(t)hat there will be significant loss of the views currently enjoyed
from my property and
the properties belonging to the second
applicant…
27.2 That the width of the (sic) Ilford Road
(sic) (including the road reserve) is less than 9 metres (figure 7).
It is important to note that Ilford Road (sic) is a one-way street
with traffic flowing into it from Kings Road, rounding the corner
and
exiting into Kloof Road.
27.3 that the width of the (sic) Tramway road
(including the road reserve) is less than 9 metres (figure 8), except
for a portion of the road leading up from Main Road. It is important
to note that Tramway Road is a one-way street with traffic
flowing
into it from Main Road, rounding the corner and exiting into Kings
Road.”
[33] In
paragraph 36 of the founding affidavit the first applicant
contextualises his understanding of the By-law as follows:
“
36. I respectfully submit that the
purpose of item 40(c) is to ensure that only one or two dwelling
units are allowed on properties
which abut narrow roads to avoid the
problem of too many cars entering and leaving the property into a
dangerously narrow road.
Tramway and Ilford Roads are very narrow
roads and this is why they are one way roads.”
[34] In
the replying affidavit the first applicant takes up this point again
–
“
20. I respectfully submit that the
provision of item 40 (c) in the DMS was enacted not only to deal with
possible congestion, but
also for other reasons. I verily believe
that the provision was also enacted to ensure that the (sic) large
buildings (such as
the building which the First Respondent intends to
erect) are not built on properties surrounded by narrow roads. I
respectfully
submit that the reason for this would be to prevent a
situation where large buildings are constructed along narrow roads
causing
a narrow corridor and an overshadowing of other properties
which can only be built in accordance with the use restrictions. I
furthermore
submit that the other considerations would be privacy of
neighbouring properties and the negative effect on the streetscape.”
[35]
The test for the standing of the applicants to review a set of
building plans in a matter such as this was dealt with
comprehensively
by the Supreme Court of Appeal in
JDJ
Properties
,
[14]
where Plaskett AJA described the approach thus:
“
[27] Whether a litigant’s interest
is sufficient to clothe him or her with standing involves a
consideration of the facts,
the statutory scheme involved (in public
law disputes, a statutory power is almost inevitably involved) and
its purpose: the issue
must, in other words, be determined in the
light of the
factual
and
legal
context
.”
(Emphasis
added)
The
mandated approach requires the court therefore to consider the
purpose
of the statutory enactment and the extent to which an applicant is
benefited
or affected thereby. In
JDJ Properties
, the Supreme
Court of Appeal
referred
with approval to
BEF
in relation to standing.
[36] In
BEF
,
Grosskopf J was asked to review a decision
of the City to approve plans for the construction of a boundary wall
which impacted on
the public’s use of communal steps between
two streets, fortuitously just a couple of blocks away from the
applicants’
properties. The judgment traverses a number of
issues not relevant to the present matter but the
dictum
in
relation to standing is directly in point and merits repetition here.
[37]
In dealing with the law the learned judge first referred (at 400 G)
to the
dictum
of
Stratford JA in the
Roodepoort-Maraisburg
matter
[15]
-
“
Where it appears either from a reading
of the enactment itself or from that plus a regard to surrounding
circumstances that the
Legislature has prohibited the doing of an act
in the interest of any person or class of persons, the intervention
of the Court
can be sought by any such person to enforce the
prohibition without proof of special damage.”
His
Lordship went on to point out that –
“
(t)o apply this test one must examine
whether the [town planning] scheme was introduced for the benefit of
the general public or
of persons falling within a particular class
(of which the applicant is a member) or both. In terms of s35 (1) of
the Townships
Ordinance, every town planning scheme shall have for
its general-purpose a co-coordinated and harmonious development of
the area
of the local authority to which it relates in such a way as
most effectively tend to promote health, safety, order, amenity,
convenience
and general welfare as well as the efficiency and economy
in the process of such development. Subsection (2) provides that due
consideration should be given in the preparation of a scheme to
matters referred to in the Second Schedule to the Ordinance….
The purposes to be pursued in the preparation of the scheme
suggests to me that the scheme is intended to operate, not in the
general
public interest, but in the interest of the inhabitants of
the area covered by the scheme, or at any rate those inhabitants who
would be affected by a particular provision. And by ‘affected’
I do not mean mean damnified in a financial sense. ‘Health,
safety, order, amenity, convenience and general welfare’ are
not usually measurable in financial terms. Buildings which do
not
comply with the scheme may have no financial effect on neighbouring
properties, or may even enhance their value, but may nevertheless
detract from the amenity of the neighbourhood and, if allowed to
proliferate, may change the whole character of the area. This
is, of
course, a purely subjective judgement, but in my view this is the
type of value which the ordinance, and schemes created
thereunder,
are designed to promote and protect. In my view a person is entitled
to take up the attitude that he lives in a particular
area in which
the scheme provides certain amenities which he would like to see
maintained. I also consider that he may take appropriate
legal steps
to ensure that nobody diminishes the amenities unlawfully. I would
not like to assert dogmatically that such a remedy
would be available
to all persons living in the area covered by a scheme as large as
that of Cape Town. In the present case, however,
the applicant is an
immediate neighbour to the property on which the non-conforming
garage was built.”
[38] In
light of the fact that the applicant in
BEF
was an
immediate neighbour to the offending property, it is apparent that
the judgment is essentially an
obiter dictum
on the degree of
proximity that an objector who is not an immediate neighbor to the
development must establish before standing can
be found to exist. I
agree with Mr Smalberger SC’s suggestion that a resident, for
instance, of the southern suburbs of the
Peninsula (such as
Rondebosch, Wynberg or Lavender Hill) would not easily establish a
basis for intervention in regard to a development
on the Atlantic
Seaboard – the proximity simply being too remote to complain of
being affected thereby. But the judgment
in
BEF
does
contain reference to useful criteria which may be considered by a
court called upon to determine
locus standi
in circumstances
where the applicant is not an immediate neighbor to the development
.
[39]
In my considered view, there can be little doubt that a resident in
the neighbourhood who is not an immediate neighbour to
the property
but whose use and enjoyment of the surrounding road network might
well be impacted upon by a building which is likely
to bring a
significant amount of additional traffic into the neighbourhood would
have the requisite
locus standi
to
attack the City’s approval of the plans
[16]
.
This is the logical implication of the
obiter
dictum
in
BEF.
[40]
The location of the applicants’ homes, in the immediate
vicinity of the public roads which are designed to afford access
to
the development (Kings Road and Ilford Street), will potentially
expose them to increased traffic flow, literally on their doorsteps.
But it does not end there. Should the applicants wish to travel down
to Main Road they might ordinarily use Kings Road. That street
will
now be required to carry increased traffic, firstly, in respect of
vehicles accessing the complex via the Ilford Street entrance,
and
secondly, further down Kings Road beyond the intersection with
Tramway Road, where additional traffic exiting the complex via
that
entrance will enter Kings Road. And then there is the potential
problem occasioned by visitors to the complex who cannot find
parking
on the property. They will in all probability have to park in the
narrow side streets which one sees on the photographs,
thereby
causing further inconvenience to members of the immediate
neighbourhood.
[41]
Traffic flow in Cape Town in general has become very problematic in
the last number of years. One regularly sees articles in
the media
bemoaning the logistical delays which motorists face on a daily
basis, with some reports suggesting that the Mother City’s
traffic congestion is the worst in the country.
[17]
But, one does not even need to resort to media
reports to establish this – a trip to the office, the airport,
the doctor or
the supermarket by car will suffice. Given that the
applicants reside on a busy arterial route carrying traffic of all
shapes and
sizes to and from Camps Bay and beyond, their apprehension
regarding the possibility that the Bantry Hills development will
“
dramatically increase the traffic
congestion in the area”
is a
genuine concern fairly held.
[42]
In
PS Booksellers
[18]
Meer J acknowledged, with reference to,
inter
alia,
BEF
‘
the
recognised standing of residents and property owners, in a community
or township, to enforce the provisions of the zoning schemes.”
Relying on the
dictum
of Plasket AJ in
Greyvenouw
[19]
Her Ladyship embraced the constitutionally
mandated development of the common law in recognizing the standing of
community-based
bodies such as ratepayers’ associations to
apply for the enforcement of zoning schemes in their areas of
interest, or operation.
[43]
Meer J also referred to cases such as
Bedfordview
Town Council
and
Teazers
[20]
,
both of which are judgments following
BEF
and in which support is to be found for the
proposition that town planning schemes are intended to serve the
interests of the inhabitants
of the area covered by such scheme.
[44] In
the present case the court is dealing with a By-law recently
published which is intended to address the competing interests
of
landowners in,
inter alia,
a GR4 subzoning area. To the extent
that the By-law is expressly designed to accommodate the potential
for increased densification
of properties in the area of application,
it must follow that the right to challenge such an increase where it
is likely to detrimentally
affect the enjoyment of, for example, the
public thoroughfares in such area by virtue of an increase intraffic
volumes occasioned
by such densification, should be recognised. In
the circustances I am satisfied that the applicants have established
the requisite
locus standi
for the interim relief which they
now seek.
IRREPARABLE
HARM
[45]
The applicants contend that the irreparable harm that they will
suffer if no interdict is granted lies in the fact that the
project
will continue towards completion and that the prospects of the review
court ordering the demolition of the structure in
the event of that
court upholding their claims will be sorely restricted. In reply
thereto Bantry Hills gave a solemn undertaking
in the answering
affidavit, which was repeated by Mr Jamie SC in argument, that it
would not rely on this factor in resisting a
claim by the applicants
for demolition.
[46] A
similar undertaking was offered in
the Phase III
matter,
but that notwithstanding, Rogers J granted the interdict sought. He
remarked as follows in this regard:
“
[82] If the review were sound on its
merits, [Phase III’s] statement in the present proceedings that
it will not rely on further
building work as a factor weighing
against demolition would certainly militate against the exercise in
its favour of a discretion
against setting aside the approval of the
plans. It can nevertheless be anticipated that a review court would
be reluctant to make
an order which would have as a necessary
consequence that a completed multi-story building has to be
demolished. This might operate
either at the stage of the review
presently proposed or at the stage of a later review of any decision
taken in an attempt to remedy
the current problems. And on the
assumption that [Phase III] would not be entitled to repudiate its
deponent’s undertaking
(he is its managing director), there
might be others (the City, future owners of units) who would be
entitled to urge the court
not to make any decision which would
result in demolition (cf
PS
Booksellers Pty Ltd and Another v Harris and
others
2008 (3) SA 633
(C) para 106)
[47] In
Searle
, Binns-Ward AJ added for consideration –
“
[11] … The incentive the
completed state of the building might afford for functionaries to go
out of their way to determine
regularisation applications favourably
and thereby permit a result that would not have been permitted if the
factor of a fait accompli
had not been present. This potential could
in a given case necessitate the applicant’s involvement in a
succession of further
review applications in order to obtain
effective redress.”
[48]
Finally, one need only have regard to the extraordinary ends to which
the landowner in
Lester
[21]
went over many years in attempting to avoid an
order to demolish his luxury seaside house built in contravention of
building plans
in order to appreciate the risks inherent in accepting
such an undertaking as constituting the panacea to the potential harm
to
which the applicants may be exposed.
[49]
Having regard to the considerations advanced in these cases, I am not
persuaded that the irreparable harm which the applicants
are likely
to endure can effectively be avoided by these undertakings, however
bona fide
those undertakings might be. I shall revert further
address this aspect when I deal with the balance of convenience
hereafter.
BALANCE
OF CONVENIENCE
[50] In
urging the court to refuse interim relief, Bantry Hills pointed to
the costs which it
has
incurred thus far. In addition to the purchase of the property (R51m)
it says that
its
building costs, professional fees and “general costs”
amount to R 56,8m. It goes on
to say
that in the event that the project is delayed for a period of six
months the
following
further and irrecoverable costs will be incurred :
·
Contractors’ standing time – R13,3m;
·
Escalation of building costs – R5,9m; and
·
Finance
charges – R6,9m.
In
addition, the developer says it is unable to calculate the loss of
profit which it may suffer as a consequence of delay, particularly
with regard to the cancellation of pre-sales and agents’
commissions payable in relation thereto.
[51]
In argument Mr Jamie SC pointed out that there had been no tender by
the applicants to make good any losses on the part of
Bantry Hills in
the event of the review not succeeding. A tender of such damages
might have alleviated the inconvenience to the
developer in the event
of a temporary order being granted but the review ultimately
failing
[22]
and is certainly a factor that might have swung
the balance of convenience firmly in favour of the applicants. In
light of the anticipated
extent of those damages, however, I do not
think that the applicants can be criticized for failing to do so.
[52]
The judgment of Plewman JA in
Hix
Networking
[23]
serves to remind courts that the decision as to
whether ultimately grant interim relief or not involves the exercise
of a wide discretion.
In
Augoustides
[24]
Dlodlo J, summarized the approach in matters such
as this (including various of the authorities referred to in footnote
1 above)
as follows –
“
The stronger the prospects of success in
the review proceedings (i.e. the prima facie right) the greater the
subordination of prejudice
occasioned by a cessation of the building
work. Otherwise stated, the principle of legality tends to operate
decisively in this
context.
As Conradie J noted in
Beck’s
case
[25]
supra, if applicants are likely to be proved
right in the review proceedings, ‘it is desirable that the
building operations
should be stopped now, that is to say, sooner
rather than later.’ “
[53] In
light of my findings earlier in regard to the extent of the road
reserve in Ilford Street and Tramway road, I am of the
view that this
is a matter in which the applicants’ prospects of success on
review are strong. And, issues of legality tend
to prevail in such
circumstances.
[54] In
the supplementary affidavit filed on Thursday, 27 October 2016,
Bantry Hills stated that there would be no building on the
site
during the customary builders’ holidays at the end of the year.
In addition, it was stated that by the time the review
matter was to
be heard in February 2017, little of the building works (if any)
would have projected above ground level. As the
photographs which
accompanied that affidavit reveal, extensive excavations have already
taken place on the site. A large crane
has been installed and the
construction works involve foundations, retaining walls, lift shaft
walls, lateral support to adjacent
properties and pile caps. A
sectional diagram was also attached to that affidavit which
demonstrates that by that stage very little
of the building work, if
any, would have proceeded beyond the natural ground level of the
site.
[55]
An undertaking
[26]
was furnished in that affidavit by Ms Liat Mazor,
also a director of Bantry Hills, in the following terms-
“
[6] …I am authorised to state
that Bantry Hills undertakes that the extent of the building works,
in the period up until
20 February 2017, will not rise above the
ground floor slab in respect of blocks 1, 2, 3 and 5 of the
development and that it will
not rise above the first level slab in
respect of block 4 of the development…As is apparent from [the
enclosed section diagram]..
the ground floor slab in respect of
Blocks 1, 2, 3 and 5, and up to the first floor level in respect of
Block 4 will not protrude
above the sites (sic) pre-existing natural
ground level…..
[8] If necessary, I am also authorised to extend the undertaking
referred to in paragraph 6 above for the period after 20 February
2017 and until the above Honourable Court delivers judgement in the
review application.”
[56] In
the follow-up affidavit filed in reply to that of Ms Mazor, the first
applicant says:
“
[9] The undertaking, regrettably, is not
acceptable to the Applicants. This is so because it is claimed that
the building works
will have progressed significantly by 20 February
2017. Differently put, this is not a case where if the review
application is
ultimately successful and building works are stopped
that it will be necessary merely to fill in a hole in the ground. A
demolition
order will be required in regard to (sic) ground floor
slab and the first floor slab (mentioned in regard to Block 4).
”
[57] In
my considered view the undertaking now furnished by Bantry Hills goes
a long way to addressing the irreparable harm discussed
in paragraphs
45 to 48 above. I would think that a reviewing court might be more
persuaded to direct a developer to remove a relatively
limited
portion of slab and otherwise fill in what remains of a hole in the
ground, than to direct the demolition of a building
several stories
high. Accordingly, the incorporation of the first respondent’s
latest undertaking in an order of court will
afford sufficient
protection of the applicants’ rights in this matter.
[58] Mr
Smalberger SC indicated that the applicants did not press for a costs
order at this stage and in the latest affidavit the
first applicant
repeats that acquiescence. In my view this is a reasonable and
conciliatory approach.
ORDER
OF COURT
:
1.
The review
application is set down for hearing on Monday, 20 February 2017 and
Tuesday, 21 February 2017 on the semi-urgent roll.
2.
The second respondent
is directed to file the record of proceedings by Wednesday, 9
November 2016.
3.
The applicant shall
supplement the founding papers in the review application by Monday,
21 November 2016.
4.
The first respondent
and the second respondent shall file their answering affidavit in the
review application by Thursday, 15 December
2016.
5.
The applicants shall
file their replying affidavit in the review application by Monday, 23
January 2017.
6.
The applicants shall
file their heads of argument on Monday, 6 February 2017.
7.
The first and second
respondents shall file their heads of argument on Monday, 13 February
2017.
8.
The undertakings
furnished by Ms Liat Mazor on behalf of the first respondent in
para’s 6 and 8 of the affidavit dated 26
October 2016
, are made an order of this Court.
9.
All costs relating to
this application shall stand over for determination by the Court
hearing the review application.
__________________
GAMBLE, J
[1]
See, for example,
BEF (Pty) Ltd v Cape
Town Municipality and Others
1983(2) SA 387(C);
Camps Bay
Ratepayers and Residents Association and Othersv Minister of
Planning, Western Cape and Others
2001(4) SA 294 (C);
PS
Booksellers (Pty) Ltd v Harris and Others
2008(3) SA 633 (C);
Camps Bay Residents and Ratepayers Association and Others v
Augoustides and Others
2009(6) SA 190 (WCC);
Searle v Mossel
Bay Municipality and Others
[2009] ZAWCHC 9
(12 February
2009);
Camps Bay Residents’ and ratepayers’
Association and Others v Hartley and Others
[2010} ZAWCHC 198
(2
September 2010);
Tavakoli and Others v Phase III Development
Company (Pty) Ltd and Another
[2015] ZAWCHC 188
(11 December
2015)
[2]
www.sapropertynews.com/bantry-bay-land-claim-to-become-biggest-atlantic-seaboard-residential-development/
.See
also annexure ATT 11 to the founding affidavit and generally
www.bantryhills.com
[3]
In other litigation involving the applicant referred to in footnote
1 above (“
the Phase III
matter”),
Rogers J also gives a description of the road network in the
neighbourhood.
[4]
From the photographs one can see, for example, that on its western
boundary the property abuts at least 5 residential erven.
[5]
The term is used loosely and is intended to include egress from the
property.
[6]
Given their location, and judging from certain of the photographs
before court, it is fair to assume that they are fairly comfortable
private residences.
[7]
These roads terminate at their intersection with Kloof Road.
[8]
As promulgated in Provincial Notice 206 and published in the
Provincial Gazette Extraordinary No 7414 of 29 June 2015.
[9]
While the report is entitled “
Line of Sight Survey. 69
Kloof Road, Fresnaye”
, its relevance in these papers is
only in relation to the width of Tramway Road and Ilford Street.
[10]
On the photographs attached to the supplementary affidavit there is
a large building (possibly a warehouse or storage facility)
with a
red tiled roof on the erf to the east of the road and a similar
large building (possibly a school) directly opposite that
property
in Tramway Road to the west.
[11]
That boundary is depicted as Points A, B and C on the Surveyor
General’s diagram incorporated in Annexure ATT 10 to the
founding affidavit. On the latest photographs it is located where a
gravel ramp into the development has been constructed.
[12]
CB Prest, The Law and Practice of Interdicts
at 52
et seq
[13]
Webster v Mitchell
1948(1) SA 1186 (W)
[14]
JDJ Properties CC v Umngeni Local Municipality and Another
2013(2) SA 395 (SCA) at 406 - 410
[15]
Roodepoort-Maraisburg Town Council v Eastern Properties (Pty)
Ltd
1933 AD 87
at 96
[16]
In argument Mr Jamie SC cautioned that the court had no traffic
impact assessment report before it to assess the anticipated
traffic
flow occasioned by the development and assured the court that there
is such a document prepared by Bantry Hills’
consultants.
While the court does not know what provision has been made in such
assessment for additional vehicles entering the
area, having been
told in the promotional material that 60 units are to be built on
the property, it seems fait to assume that
there will be increased
traffic to the extent of at least one vehicle per unit.
[17]
Independent Online news report of 18 August 2016 located at
www.iol.co.za/motoring/industry-news/cape-town-has-sas-worst-traffic-says-tomtom-2058579
[18]
At 638 [19]
[19]
Nelson Mandela Metropolitan Municipality and Others v Greyvenouw
CC and Others
2004(2) SA 81 (SE) at 103 C-F
[20]
Bedfordview Town Council and Another v Mansyn Seven (Pty) Ltd and
Others
1989(4) SA 599 (W);
Pick ‘n Pay Stores Ltd
and Others v Teazers Comedy and Revue CC and Others
2000(3)
SA 645 (W)
[21]
Lester v Ndlambe Municipality and Another
2015(6) SA 283
(SCA). The original order for demolition in this case referred to in
para 10 of
Searle
as a likely event, was granted in June
2007.
[22]
Hix Networking Technologies v System Publishers (Pty) Ltd and
Another
1997(1) SA 391 (A) at 403F
[23]
At 401G
[24]
At 197E
[25]
Beck and Others v Premier of the Western Cape
(Unreported
CPD Case No 12596/06, 11 October 1996)
[26]
Offered without prejudice to the right to claim damages.