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[2017] ZAWCHC 13
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Lemke NO and Another v Knysna Municipality and Another (21732/14) [2017] ZAWCHC 13 (8 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number:
21732/14
In the matter
between:
GRANT
G LEMKE
N.O.
First
Applicant
RYAN D
LOTTER
Second Applicant
and
KNYSNA
MUNICIPALITY
First
Respondent
LEISURE ISLE
RESIDENCE
CC
Second
Respondent
Delivered:
08
February 2017
JUDGMENT
BOQWANA,
J
Introduction
[1]
This is an
application for the review and setting aside of the decisions by the
first respondent (‘the Municipality’)
to grant approval
for the subdivision of erf 7476, Knysna into two portions, namely,
Portion A (476 m²) and Remainder erf
7476 (726 m²), in
terms of s 24 of the Land Use Planning Ordinance, No. 15 of 1985
(‘LUPO’); and a departure to
allow a building line of
1,57m in lieu of 2m between a portion of the existing dwelling house
and the proposed new subdivision
boundary on the proposed remainder
erf 7476, Knysna, in terms of s 15 (1) (a) (ii) of LUPO as indicated
on the plans of subdivision
number KE7476H and KE7476j drawn by Mark
de Bruyn dated June 2013 and May 2014 on 31 July 2014 respectively.
An issue has been
raised regarding the incorrect citation of the
applicable provisions of LUPO which I return to later in the
judgment.
[2]
The applicants
also seek the Court to substitute the decisions by dismissing the
second respondent’s application to the Municipality,
in the
event that it decides to review and set aside such decisions, on the
basis that the Municipality’s officials could
not be trusted to
make objective decisions as they had conducted themselves
fraudulently in the process of approving the second
respondent’s
application; and that all the necessary information has been placed
before this Court putting it in as good
a position as the
Municipality.
[3]
An interdict to
restrain the second respondent from taking any further steps in
executing the first respondent’s approval
is no longer being
pursued.
[4]
The application
before me is only opposed by the Municipality. At the start of the
hearing of this matter, I enquired about the
position of the second
respondent to these proceedings, having not been satisfied by service
on it. I adjourned the proceedings
to allow the applicants to
ascertain from the second respondent whether it had received the
application and what its attitude was
in relation to these
proceedings. After the adjournment, Counsel for the applicants, Mr
Bruwer, presented me with a letter apparently
from the second
respondent’s attorneys indicating that the second respondent
would not be opposing the application provided
that the cost order
sought against it was abandoned. Mr Bruwer indicated that the
applicants would not persist with a cost order
against the second
respondent.
Factual
background
[5]
The applicants are
neighbours of the owners of the property known as erf 7476, which is
the subject of these proceedings. The first
applicant is a trustee
for the time being of the Richmond Trust with the Master’s Ref
No. IT366/2008, Cape Town (‘the
trust’) which is the
registered owner of erf 1853, Leisure Isle, Knysna. Mr Grant George
Lemke (‘Mr Lemke’) who
is the deponent to the applicants’
founding and supplementary affidavits resides at the same address. He
is married to Mrs
Claire Ruth Lemke (‘Mrs Lemke’) who is
also one of his fellow trustees. The second applicant (‘Mr
Lotter’)
is the registered owner of erf 1852 situated at 14
Founders Road, Leisure Isle, Knysna. The second respondent is the
owner of erf
7476. Mr Thom van Gool (‘Mr Van Gool’) is
the main interest holder in the second respondent.
[6]
Erven 1852 and
1853 are contiguous to erf 7476. Erf 7476 was previously two
erven 1854 and 1855 which were consolidated
to form erf 7476 in July
1990. The trust purchased 1853 on 18 August 2008. The Lemkes and the
Van Gools have been neighbours since
then. The two families
have been friendly with each other over the years and usually enjoyed
visits and drinks together.
The Van Gools have a permanent residence
somewhere in Gauteng and would usually visit Knysna over the December
period for about
three weeks.
Applicants’
case
[7]
Mr Lemke alleges
that in July 2013 and whilst the Van Gools were in Knysna, they
mentioned to Mrs Lemke that they wanted to subdivide
their property.
Mrs Lemke indicated that they [the Lemkes] would be interested in
buying the property if so subdivided, as they
did not want anyone to
erect a structure on the northern boundary of their property, as this
would adversely affect the use and
enjoyment of their property.
[8]
Mr Lemke further
alleges that during October 2013, he received a telephone call from
Mr Van Gool who informed him that Mr Mark de
Bruyn (who is a
professional land surveyor) was going to send them an email and that
it would assist the Van Gools greatly if the
Lemkes could sign the
forms that de Bruyn was going to send to them. Mr Lemke further
states that he received the email from Mr
de Bruyn a few days later
on 3 October 2013, attaching the following documents: a motivation
report for the proposed subdivision
of erf 7476 and relaxation of
internal building line dated June 2013; a blank form titled ‘
Comments
to application
’
and a letter written by Mr Van Gool to Mr and Mrs Lemke.
[9]
The letter stated
that Mr Van Gool had reached the age of retirement and needed to
arrange his finances so as to prevent becoming
a burden to his family
in future; that he needed a garage to accommodate his vehicle and
items like a small boat, bicycles, lawnmower
as well as garden tools.
Mr Van Gool further stated that he needed to sell the remaining
portion of the subdivided stand
to finance his aforesaid plans; that
the stand 7476 was previously two smaller stands, namely, erven 1854
and 1855 and that the
original house was built over the boundary of
these two stands without those ever having been consolidated; that
when he bought
the house in November 1989 he was advised by his
conveyancing attorneys to consolidate the two stands which he did
soon afterwards
and because the house was now partially built on both
stands it was impossible to subdivide the property into the original
two
stands without demolishing a large part of his house; and that he
employed a land surveyor to measure up the property and suggest
a
subdivision, taking into account the space needed to build a garage
which left a portion after subdivision of about 476 m²
for him
to sell. He then referred to other stands in the area which were less
than 500 m² in size and included the Plan for
subdivision with
his letter.
[10]
Subsequent to the
receipt of this email, Mr de Bruyn telephoned Mr Lemke and asked him
to sign the letter and put in a good word
for the Van Gools with the
neighbours. Mr Lemke advised Mr de Bruyn that if Mr Van Gool needed
money, the Lemkes would be prepared
to purchase the subdivided stand
at a fair market related price and consolidate it to the trust’s
stand, erf 1853. He further
informed Mr de Bruyn that he wanted to
preserve the value of their property (i.e. erf 1853), and not
have problems of individuals
building a massive dwelling on the
subdivided stand which would affect their property negatively. Mr Van
Gool advised that he wished
to proceed with the subdivision and
reiterated his request for the Lemkes’ assistance with the
neighbours.
[11]
On 18 October 2013
both Mr Lemke and Mr Lotter received a registered letter from the
Municipality together with some annexures.
In the letter, the
Municipality requested comments on the application for the proposed
subdivision and building line relaxation
on erf 7476, such comments
to reach them before Monday, 2 December 2013. The second page of the
letter that Mr de Bruyns had sent
to the Lemkes was attached but the
first page was missing. Mr Lemke believes that this was a deliberate
omission by Mr de Bruyn.
His concern is that the missing page had
indicated that the subdivision of erf 7476 had already been granted.
[12]
Mr Lemke also
finds it somewhat disturbing that the Municipality’s letter to
the proposal was reflected on the page which
appeared to be the
official motivation from the Municipality’s planning department
as to why the subdivision should be granted.
This, according to him,
was done before the surrounding neighbours had had the opportunity to
object to the application for the
subdivision and the relaxation of
the building line.
[13]
Mr Lemke also
received a free weekly publication distributed in the municipal area
of Knysna giving notice in terms of s 24 of LUPO
of an application
for subdivision of erf 7476 and the relaxation of the building line.
[14]
On 20 November
2013, the second applicant, Mr Lotter objected to the proposed
subdivision and building line relaxation through a
letter written by
his attorneys. On 28 November 2013, Mr Lemke wrote a letter on behalf
of the trustees of the trust also objecting
to the subdivision and
building line relaxation. He did not hear anything from the
Municipality until he received a registered
letter dated 18 August
2014 which informed him of the Municipality’s decision to
approve the second respondent’s application
and that he had no
right of appeal. After receiving the Municipality’s letter, he
discussed the matter with his fellow trustees
and they decided to
take the matter further. He also discussed the approvals with the
other neighbours who had objected to the
second respondent’s
application, including Mr Lotter, who was particularly of the view
that the matter should be taken further
as his property would be
adversely affected by the approvals.
[15]
Mr Lemke alleges
that Mr de Bruyn did not provide him with a full application which he
purportedly sent to the Municipality. The
motivation report indicated
that nine annexures were attached to the report but Mr de Bruyn only
provided him with four annexures.
It appears that the second
respondent made an application for a subdivision and removal of the
title deed building lines but this
page was neither forwarded to the
trust by Mr de Bruyn nor formed part of the notice from the
Municipality. The application was
also for a relaxation of the
building line along the common boundary line between portion A and
the remainder erf 7476 to 1m, ‘to
allow for an acceptable erf
size for portion A’.
[16]
According to Mr
Lemke what was also confusing about the second respondent’s
application was that Mr de Bruyn stated that the
application in terms
of the Removal of Restrictions Act 84 of 1967 (‘RORA’)
was being submitted simultaneously with
its application for
subdivision and relaxation but that application was never forwarded
to the trust. Mr Lemke was advised by his
legal representatives that
an application in terms of RORA should be addressed to the Premier of
the Province and not the Municipality,
although it needed to be
served on the Municipality.
[17]
Mr Lemke also
alleges that there are other confusing statements which create an
impression that the application to which the trust
was requested to
comment on was not a subdivision application but an application to a
‘previous condition’ by the Municipality,
which allowed
the existing building to remain on portion A, but no new building was
permitted on Portion A. According to Mr Lemke,
if that had been the
case, it would mean that the 18 October 2013 notice was on the face
of it a sham as the subdivision and the
building line relaxation had
already been granted, which according to him, would explain part of
the report by the Municipality’s
official motivating the
previous approval. If the situation was as incorrectly described,
then it is inconsistent with Mr de Bruyn’s
motivation report.
The inconsistency, according to Mr Lemke, could only suggest that a
subdivision had been granted prior to the
trust being informed by Mr
de Bruyn and the Municipality.
[18]
In a nutshell, the
objections of the trust to the application for the subdivision and
the relaxation of the building line were primarily
two-fold. First,
the trust alleged that the new erf to be created was significantly
smaller than the erf size prior to consolidation
which offends para
3.2.4 of the Knysna Zoning Scheme Regulations (‘the Scheme
Regulations’). Secondly, para 3.2.2 of
the Scheme Regulations
provided that no building or portion thereof, except boundary walls
and fences, shall be erected on a site
closer than 4.5m from the
street boundary or less than 2 m from the lateral and rear boundaries
of the site.
[19]
The objections
further pointed out, that immediate neighbours would be negatively
impacted as the proposed portion A, consisted
of an awkward narrow
strip of land which would physically border five erven and narrow
dimensions. The Leisure Isle had a village
atmosphere and ambience
and that the proposed relaxation of the building line to 1 m and
squeezing a dwelling on an awkward portion
of land would be
inconsistent with this and would be more in line with a townhouse
complex development. According to the trust,
it was difficult to
conceive where visitors to portion A would park. The trust also
pointed out inconsistent statements in Mr de
Bruyns’ report as
part of its objections. In his objections, Mr Lotter pointed out,
inter alia
,
that the new size portion A would be less than 500m² which would
allow the building coverage of the erf to result in a 238m²
size
house (whereas the previous erf size which was more than 500 m²,
would have allowed a coverage of a 193 m² sized
house).
[20]
According to Mr
Lemke, the Municipality indicated in their letter that they approved
the subdivision in terms of s 24 of LUPO and
granted the application
for a departure to allow a building line in terms of s 15 (1) (a)
(ii) of LUPO which were not empowering
provisions.
[21]
Lastly, the
Municipality was silent on Mr de Bruyn’s statement that the
subdivision and removal of the building lines had
been granted
previously which Mr Lemke also views with suspicion.
Municipality’s
case
[22]
Mr Grant Easton
who is the Municipal Manager of the Municipality deposed to the
answering affidavit supported by the affidavit of
Mr Michael
Maughan-Brown, the Director: Town Planning and Development as well as
the confirmatory affidavit of Mr Seretse Mthembu,
a Town Planner at
the Municipality.
[23]
Mr Easton outlined
the decision- making process in matters like these as follows: The
town planning applications are submitted to
the Director: Town
Planning and Development, who in turn would refer the application to
the Manager: Town Planning and Development,
who in turn would task
one of his town planners to do the ground work relating to such
application. The latter would compile a
report with regard to the
application together with a recommendation and which he/she would
submit to the manager and the director
of the department who will vet
same. The report would then be submitted to the Town Planning and
Development Committee (‘the
TPD Committee’) which has
been appointed in terms of s 80 of the Local Government: Municipal
Structures Act No. 117 of 1998
(‘the MSA’) to assist the
Executive Mayor in matters dealing with town planning. The TPD
Committee, after considering
the report would then make
recommendations to the Mayoral Committee, which would in turn make
recommendations to the Council of
the Municipality (‘the
Council’), which would in a general meeting decide on the
application. Each member of the Council
is served with a hard copy of
the application together with relevant documents pertaining to the
application. Political parties
represented on the Council would
caucus on the application and recommendation before the meeting and
take a decision on how to
vote on the issue. The outcome of the
application is determined by the majority vote in the Council
meeting.
[24]
Mr Easton alleges
that the Municipality took a commercial decision to make an offer to
the applicants so as to avoid unnecessary
costs being incurred and in
remedying any defect that might have occurred as outlined by Mr
Maughan-Brown in his affidavit. A letter
marked with prejudice is
attached to the answering affidavit wherein the Municipality, through
its attorneys, offered to agree
to an order that the decision to
grant the approval be set aside and referred back to the Council with
costs on a party and party
scale. This offer was apparently rejected
by the applicants. The Municipality, according to Mr Easton elected
to oppose the matter
because of what it viewed as scurrilous attacks
contained in particularly the applicants’ supplementary
affidavit. As a result,
thereof, it seeks a cost order on a scale as
between attorney and own client.
[25]
The Municipality’s
case, in a nutshell is, that whilst it is admitted that Mr Mthembu
erred in not realising that the departure
application submitted on
behalf of the second respondent did not specifically state that a
departure was also sought from the land
use restriction contained in
Regulation 3.2.4, this error was not material by reason of the fact
that the object of s 15 (2) of
LUPO, namely public participation, had
been achieved in this regard as is evidenced by the very vociferous
objections submitted
by the objectors including the applicants.
[26]
Secondly,
according to the Municipality, Regulation 3.2.4 does not contain an
absolute prohibition against subdivision, which would
result in a
size smaller than prior to consolidation. A departure therefrom is
authorised in terms of s 15 (1) (b) of LUPO.
[27]
Thirdly, although
Mr Mthembu did not specifically mention Regulation 3.2.4 in the
recommendation, the notice of the application
by the second
respondent gave the sizes of the two affected erven post subdivision;
the notice was not only published in the local
newspaper but was
addressed to the applicants as well as other potentially affected
adjoining land owners; Mr Mthembu pertinently
drew attention to the
fact that the subdivision will result in Portion A being smaller than
the original size of erf 1854; the
actual application of the second
respondent, the motivation in the objections thereto would have been
submitted to the TPD Committee
for consideration; everybody concerned
with the subdivision application was accordingly aware of the fact
that Portion A will as
a result of the subdivision be smaller in size
than the original erf and that the application was affected by
Regulation 3.2.4.
In addition to that, it is clear from the objection
received that the majority of the objectors were fully aware of the
effect
of the subdivision and hence, their objections based on a
reference to this Regulation. The mere fact that no specific mention
was made of this Regulation by Mr Mthembu did not mislead anybody nor
was it a misrepresentation let alone a fraudulent act perpetrated
by
him on anybody.
[28]
Fourthly, in the
absence, of any mention of non-compliance with any statutory
requirement, it should be accepted that Mr Mthembu
was satisfied that
the statutory requirements had been met. In the result both Mr
Maughan-Brown and the TPD Committee on which
he sat as the
responsible director, dealt with the subdivision application as
including a departure relating to the smaller erf
size of Portion A
and which the TPD Committee approved as being desirable. According to
Mr Maughan-Brown, it was considered by
the TPD Committee that far
from the subdivision allowing for only a small dwelling to be erected
on Portion A, the subdivision
will in fact allow for a larger
dwelling to be erected due to the coverage being permitted pursuant
to the provisions of Regulation
3.2.2 which would now be 50% instead
of 35%. This would have applied to the original erf 1654. This was
hence enhancing rather
than detracting from the value of surrounding
properties.
[29]
According to Mr
Maughan-Brown, the oversight by Mr Mthembu did not materially affect
the recommendation of the TPD Committee to
the Mayoral Committee, by
reason of the fact that had the TPD Committee been aware of the
fact that the notice of the application
did not include a specific
departure in this regard, it would simply have requested the second
respondent to re-advertise the application
to ensure strict
compliance with s 15 (1) (a) (i), which would have resulted in
exactly the same recommendations being made by
the TPD Committee to
the Mayoral Committee and therefore resulting in the same decision as
had been made by the Municipality. Despite
the notice of the
application not specifically containing a reference to a further
departure, the application was not fatal as
the object of s 15 (1)
(b) namely, public participation, was achieved. Therefore, to elevate
Mr Mthembu’s oversight to fraud
is not only untenable but also
malicious and defamatory.
[30]
Mr Maughan-Brown
further alleges that Mr Mthembu applied his mind to both s 36 (1) and
36 (2) of LUPO in recommending the approval
of the subdivision. He is
of the view that Mr Mthembu was justified in finding that there was
no evidence adduced by any of the
objectors upon which he could find
that the subdivision would have a negative impact on the surrounding
properties or the rights
of beneficial enjoyment of their properties
by neighbouring owners.
Discussion
Should
the application be dismissed for failure to specify the applicable
provisions of PAJA?
[31]
Before dealing
with the merits of the matter an issue was raised by Mr van der Berg
on behalf of the Municipality, that the grounds
for review upon which
the applicants relied, were not properly set out in their papers.
According to him, whilst there were some
vague references to PAJA
from the applicants’ papers, it was not clear on which grounds
of PAJA they relied as required by
law. The applicants cannot, in his
view, expect the Court to trawl through the application looking for
the review grounds and/or
the law relied on. Therefore, if the
application is not clear on this aspect, it fell short of the
requirements of Rule 53 and
should be dismissed. In his view,
dismissing it would also send a strong message to other litigants
that, applications that do
not clearly articulate grounds for review
and law the application is based on, would not be tolerated. Mr van
der Berg referred
to
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at paras 21 and 27 to advance this point. He
argued that the applicants set out an omnibus of conceivable grounds
without
stating the grounds and law on which they rely. In his heads
of argument, he listed what he termed as discernible grounds that he
could extract from the applicants’ papers, in an attempt to
give some structure to their application and those are that:
the decision [by the Municipality] was not authorised by the
empowering provision (s 6 (2) (a) (i) of PAJA); it was materially
influenced by an error of law (s 6 (2) (d)); it contravened a law (s
6 (2) (f) (i); it is not rationally connected to the purpose
for
which it was taken ( s 6 (2) (f) (ii)(aa)) and that it was not a
decision which could reasonably be taken ( s 6 (2) (h)).
[32]
Whilst I agree
with Mr van der Berg that the basis of the cause of action should be
particularly focused and set out in precise
terms by the applicants,
Bato Star
does not propose an outright dismissal of a case where provisions of
a statute on which a litigant relies have not been mentioned.
It
rather suggests the following at para 27:
‘…Where a litigant relies upon a statutory provision, it
is not necessary to specify it, but it must be clear from
the facts
alleged by the litigant that the section is relevant and operative. I
am prepared to assume, in favour of the applicant,
for the purposes
of this case, that its failure to identify with any precision the
provisions of PAJA upon which it relied is not
fatal to its cause of
action. However, it must be emphasised that it is desirable for
litigants who seek to review administrative
action to identify
clearly both the facts upon which they base their cause of action,
and the legal basis of their cause of action.’
[33]
Thus, if the facts
alleged by the applicants bear out a cause of action, showing that
the provisions of PAJA are relevant and operative;
the applicants may
escape a dismissal of their case, on the basis that they failed to
refer to particular sections of that relevant
Act. While that is so,
I must agree with Mr van der Berg that the applicants’
allegations as to which provisions are applicable
is somewhat
convoluted and makes it hard to discern exactly which provisions of
PAJA are particularly on point in this case. The
applicants have
listed possible grounds instead of pointing to exactly which ones are
applicable having regard to the facts of
this case.
[34]
Nevertheless,
whilst the applicants have not desirably set out the review grounds
as precisely as they should, I am disinclined
to dismiss their
application on that basis. I am prepared to assume in their favour
that, the facts as they appear on the papers
do bear a cause of
action although they have not been matched with some level of
precision with the applicable provisions of PAJA.
Merits
[35]
Turning to the
merits of the case. It is convenient to first set out what is
contained in the contentious Regulations. Regulation
3.2.4 provides,
inter alia
,
as follows:
‘
3.2.4 Density Control
Subdivisions in Old Place and Leisure Island are permitted on
condition that the new erf size shall not be smaller than the sizes
of the erven prior to consolidation, provided further that the new
erven to be created shall be consistent with the ruling erf
sizes in
the environment.’
[36]
The relevant part
of Regulation 3.2.2 states:
‘
3.2.2
Land use
Restrictions
Building lines
·
no building or any portion thereof, except boundary walls and
fences, shall be erected on a site closer than 4,5 m from the street
boundary or less than 2,0 m from the lateral and rear boundaries of
the site.
·
Further, a building line of 5.0 m shall apply with regard to
lagoon boundary as well to the registered site boundary adjacent to
the lagoon. Notwithstanding these building lines Council, may without
advertisement approve the erection of an outbuilding or second
dwelling unit which exceeds a side and/or rear building line, subject
to:
a)
compliance with the street building line;
b)
such building not exceeding a height of 5m above the natural ground
level directly below a given point or portion of the building;
c)
no doors or windows being permitted in any wall of such building
which fronts onto the side and/or rear boundary concerned; and
d)
the provision of an access way, other than through a building
and at least 1 m wide, from a street to every vacant portion of the
land unit concerned, other than a court-yard.’
[37]
Regulation 3.2.4
plainly allows subdivision of erven based on essentially two
conditions, being that the new erf size must not be
smaller than the
erf sizes that were in place prior to the consolidation of the erven
and that the new erven is consistent with
the ruling erf sizes in the
environment.
[38]
The Municipality’s
approval was stated to be in terms of s 24 of LUPO. Perhaps it is
convenient to dispose of this issue first
before dealing with other
contentions issues raised by the applicants relating to the
Regulations.
[39]
It is correct that
s 24 of LUPO is not a provision that empowers the granting or refusal
of subdivision applications, s 25 instead
is the empowering
provision. Section 24 deals with applications for subdivision. For
completeness the relevant sections read as
follows:
‘
24 Applications for
subdivisions
(1) An owner of land may apply in writing for granting of a
subdivision under section 25 to the town clerk or secretary
concerned,
as the case may be.
(2) The said town clerk or secretary shall-
(a)
cause the said application to be
advertised
if in his opinion
any person may be adversely affected thereby;
(b)
where objections against the said application are received, submit
them to the said owner for his comment;
(c)
obtain the relevant comment of any person who in his opinion has an
interest in the application;
(d)
where his council may act under section 25 (1) –
(i)
submit the application and all relevant
documents to his council, and
(ii)
notify the owner and the Surveyor-General
concerned of his council’s decision and where applicable
furnish them with a copy
of any conditions imposed by that council,
and
(e)
where the Administrator may act under section 25 (1), obtain
the relevant comment of the council of the said town clerk
or
secretary and furnish the director with a copy thereof and with any
documents required by the director.
(3) Failing observance of the provisions of
subsection (2) within a period prescribed by regulation, action shall
be taken in accordance
with the regulations.
(4) The director shall, in relation to an
application in respect of which the Administrator may act under
section 25 (1)—
(
a
)
obtain such comment and information as in his opinion are still
required, and
(
b
)
notify the applicant, the local authority concerned and the
Surveyor-General concerned of the Administrator’s decision
thereanent and where applicable furnish them with a copy of any
conditions imposed by the Administrator.
25. Granting or refusal of application
(1)
Either the Administrator or, if
authorised thereto by scheme regulations, a council may
grant or refuse an application
for the subdivision of land
.
(2) In granting an application under
subsection (1) either the Administrator or the council
concerned, as the case may
be, shall indicate relevant zonings in
relation to the subdivision concerned for the purpose of the
application of section 22 (2).’
(Underlined
for emphasis)
[40]
Reference to s 24
as the empowering provision was evidently incorrect. The Municipality
also made reference to an incorrect provision
in relation to its
approval of the of the building line departure application. Whereas
an application was brought in terms of s
15 (1) (a) (i) by the second
respondent, Mr Mthembu recommended approval of the departure
application in terms of s 15 (1) (a)
(ii) of LUPO.
[41]
Section 15 of LUPO
states the following:
‘
15 Applications for departure
(1) (a)
An owner of land may apply in writing to the town clerk or
secretary concerned, as the case may be
–
(i)
for an alteration of the land use restrictions applicable to a
particular zone in terms of the scheme regulations concerned,
or
(ii)
to utilise land on a temporary basis for a purpose for which no
provision has been made in the said regulations in respect of a
particular zone
.
(b)
Either the Administrator or, if authorised thereto by scheme
regulations, a council may grant or refuse an application referred to
in paragraph
(a)
(c) Either the Administrator or the council concerned, as the case
may be, may, when granting an application for a departure in
terms of
paragraph (b) of subsection for the purposes of paragraph (a) (i) of
this subsection, determine that a building on the
land concerned
shall, for the purposes of the Sectional Titles Act, 1971 (Ac 66 of
1971), and until such building is demolished
or destroyed, be deemed
to comply with the provisions of the zoning scheme concerned.
(2)
The said town clerk or secretary shall –
(a) cause the said application to be advertised if in his opinion any
person may be adversely affected thereby;
(b) where objections against the said applications are received,
submit them to the said owner for his comment;
(c) obtain the relevant comment of any person who in his opinion has
an interest in the application;
(d) where his council may act under subsection (1) (b) –
(i)
submit the application and all relevant documents to his council, and
(ii)
notify the owner of the council’s decision and where applicable
furnish him with a copy of any conditions imposed by
the council, and
(e) where the Administrator may act under subsection (1) (b), obtain
the relevant comment of the council of the said town clerk
or
secretary and furnish the director with a copy thereof and with any
documents required by the director.
(3)
Failing
observance of the provisions of subsection (2) within a period
prescribed by regulation, action shall be taken in accordance
with
the regulations.
(4) The director shall, in relation to an
application in respect of which the Administrator may act under
subsection (1) (
b
)—
(
a
) obtain such comment and information
as in his opinion are still required, and
(
b
) notify the applicant and the local
authority concerned of the Administrator’s decision thereanent
and where applicable furnish
them with a copy of any conditions
imposed by the Administrator.
(5) A departure in respect of which
the application has been granted under this section, shall lapse if
and in so far
as it is not exercised within two years or within such
further period as either the Administrator or, if authorised thereto
by
the scheme regulations concerned, the council concerned may on the
application of the owner concerned determine, after the date
on which
the application was granted.
(6) Where a departure has lapsed wholly or
partly in terms of subsection (5), the council concerned may amend
the register
and zoning map concerned accordingly.’
(Underlined
for emphasis)
[42]
Once again, as can
be seen from the provisions of s 15 above, s 15 (1) (a) (ii) deals
with applications by owners of land to utilise
land on the temporary
basis for a purpose for which no provision has been made in the
Regulations in respect of a particular zone.
It is clear that that
provision is not an empowering provision to grant or refuse an
application for departure. The provision authorising
such approval is
s 15(1) (b).
[43]
These incorrect
references, both in relation to the subdivision and building line
departure, were carried through to the TPD Committee
which adopted
them as its recommendations to the Mayoral Committee which in turn
submitted them to the Council. The exact wording
as formulated by Mr
Mthembu was retained throughout the stages of consideration of the
application until it was adopted by Council
as its resolution and
communicated to the relevant parties.
[44]
The Municipality
seems to acknowledge that reference to s 15 (1) (a) (ii) as authority
for the approval was incorrect as the authority
to grant a departure
application emanates from s 15 (1) (b). Whilst that is so, it is not
explained how these errors came about.
[45]
Be that as it may,
it has been held that ‘
the
fact that a decision-maker mentions the wrong provision does not
invalidate the legislative or administrative act
.’
(See
Howick District
Landowners Association v Umngeni Municipality and Others
2007 (1) SA 206
(SCA) at para 19 and at paras 20, 21 and 32.
Regulation
3.2.4 and subdivision
[46]
Returning to the
alleged contravention of Regulation 3.2.4. It is not in dispute that
the present erf 7476 had previously comprised
two erven, namely 1854
and 1855 which were 649 m² and 553 m² respectively in
sizes. The proposed subdivision which was
approved by the
Municipality would result in Portion A being 476 m² and the
Remainder of erf 7476 being 746 m².
[47]
It is not disputed
by the Municipality that Portion A of 476 m² would be smaller
than the previous erf size that was in place
prior to the
consolidation of the erven. It is not controversial that such size
conflicts with the first condition of Regulation
3.2.4, which I have
referred to above. I say so because the Municipality has neither
denied the assertion made by the applicants
that a subdivision of an
erf at Leisure Isle could only happen in regard to a previously
consolidated erf and only if the new erf
sizes are not smaller than
the sizes prior to the consolidation nor has it not put up a
different interpretation of this first
part of the Regulation insofar
as relates to the sizes of the new erven
vis
a
vis
those in place prior
to consolidation, unlike Mr de Bruyn who has done so in one of his
correspondences, which I shall return to
in a moment. The
Municipality rather asserts that the Regulation contains no absolute
prohibition against subdivision that would
result in a smaller size
erf being created, than the size prior to consolidation. In that
regard, it submits that a departure therefrom
is authorised in terms
of s 15 (1) (b) of LUPO.
[48]
Mr de Bruyn, in
his letter dated 12 March, (presumably 2014), addressed to the
Municipal Manager states his understanding
of the first part of
Regulation 3.2.4 to be that ‘
the
total erf sizes
shall remain in line with the
total
prior to consolidation
.
This is how this rule has been applied since it was made and there
are numerous examples of it being applied as such
.
If this application
has been incorrectly applied then a departure can merely be granted
on approval, to allow for this
’
(Underlined for emphasis)
[49]
Elsewhere he
states that, the first part of Regulation 3.2.4 was interpreted to
mean ‘
that with
a subdivision the overall number of units should not increase…
’
[50]
Mr de Bruyn in the
same letter also acknowledges that the second part of the Regulation
must be satisfied but alleges that the latest
trends in density
controls in terms of national and provincial initiatives must be
considered. He further states that there are
approximately 35 erven
on Leisure Island that are less than 500 m² in size and 5 of
those are in the immediate vicinity of
erf 7476. He also mentions
that the proposal is in line with the ambience and atmosphere of the
Leisure Island. These allegations
are contested by the
applicants and I do not intend to dwell much on them.
[51]
The point I am
trying to make is that the Municipality has not offered an
interpretation different from that of the applicants as
to what the
first part of Regulation 3.2.4 entails.
[52]
The contention
that Regulation 3.2.4 is not absolute in the sense that it can be
departed from by means of an approval in s 15 (1)
(b) of LUPO is
correct. The question however is whether there was approval of an
application in terms of the relevant s 15 (1)
(b) in this case.
[53]
On proper reading
s 15 (1) (b) states that, ‘…
a
council may grant or refuse
an
application referred to in paragraph (a
)
’. It is common
cause in this case that there was no application by the second
respondent accompanying its application for
approval of subdivision
in terms of s 24. In fact Mr de Bruyns’ letter of 12 March to
the Municipal Manager, referred to
above, makes this quite clear. His
interpretation of the first part of Regulation 3.2.4 implies that he
saw no need to apply for
departure as he did not regard the
application for subdivision as being inconsistent with Regulation
3.2.4.
[54]
Mr Maughan-Brown
alleges that Mr Mthembu acknowledged that he erred in not realising
that the notice of the application which was
published and circulated
did not specifically provide for a departure from the land use
restriction contained in Regulation 3.2.4
of the Scheme Regulations.
He refers to this as a mere oversight. The acknowledgment of an
error, in my view, constitutes recognition
that an application for a
departure was a requirement. I must at this point mention that I find
it strange that there was an oversight
because Mr de Bruyn’s
letter as to what application was sought was quite clear. An
impression could not have been created
that he also sought departure
from the restriction contained in Regulation 3.2.4. To the contrary
Mr de Bruyn moved from a premise
that there was no infringement of
Regulation 3.2.4, in response to the comments by the objectors and
devoted most of the letter
addressing the second requirement of the
Regulation, which is the consistency of the new erven with the ruling
erven. He also focused
on the aspects of the impact of the
subdivision to the surroundings area and properties on Leisure
Island.
[55]
Mr Maughan-Brown
submits that Mr Mthembu’s error was not material by reason of
the fact that the object of s 15 (2) of LUPO,
namely public
participation, had been achieved in this regard as is evidenced by
the very vociferous objections including those
of the applicants.
[56]
Mr Maughan-Brown
also suggests that Mr Mthembu’s oversight did not affect the
recommendation of the TPD Committee in that
had they been aware that
there was no application for departure in the notice of application,
they would have simply requested
the second respondent to
re-advertise the application to ensure strict compliance with s 15
(1) (a) (i), which would have resulted
in the same recommendation and
the same decision by Council. Furthermore there is no evidence that
objections would have been any
different to those already submitted.
[57]
It has been held
that ‘
a mere
error of law is not sufficient for an administrative act to be set
aside. Section 6(2) (d) of [PAJA] permits administrative
action
to be reviewed and set aside only where it is “materially
influenced by an error of law”
.
An
error of law is not material if it does not affect the outcome of the
decision.
This
occurs if, on the facts, the decision-maker would have reached the
same decision, despite the error of law
.”
(
See
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
2010 (6) SA 182
(CC)
at para 91). In
Liberty
Life Association of Africa Ltd v Kachelhoffer NO and Others
2005 (3) SA 69
(C), at para 48, Van Reenen J also observed that ‘
an
error of law is not material or relevant if the decision is
justifiable on the facts despite such error
.’
[58]
Mr Maughan-Brown
alleges that TPD Committee dealt with the subdivision application as
if it contained the departure application.
My first difficulty with
that proposition is that there could not have been approval of an
application that was not before the
decision-makers. The application
brought and considered by the TPD Committee and eventually by the
Council in relation to the subdivision
of erf 7476, was an
application for subdivision in terms of s 24 of LUPO and not a
departure application in terms of s 15 (1) (a)
(i). It therefore
cannot be argued that the TPD Committee considered and recommended an
approval of an application for departure
that was not before it. In
other words if there was no application for departure from the land
restrictions contained in Regulation
3.2.4, how could it be said that
there was an approval exercised in terms of s 15 (1) (b)? There could
not have been approval of
an application that did not exist.
[59]
There is further
no evidence to support the contention that the TPD Committee treated
the subdivision application as if it contained
a departure
application. If that was the case the TPD Committee would have said
so in its recommendation to the Mayoral Committee
which eventually
went to the Council. Alternatively, if it sought to recommend
condonation of non-compliance with s 15 (1) (a)
(i) and 15 (2) of
LUPO it should have said so in its recommendation.
[60]
Mr Mthembu’s
error permeated through to the stage of the approval of the
recommendation by Council. At no stage was it ever
considered that
the subdivision application also included departure. There are no
facts to support such a proposition. Mr Mthembu
himself makes no
mention of approval being sought for departure on the subdivision
aspect.
[61]
The issue raised
by the applicants that Council members were not alerted to the fact
that the subdivision sought was in conflict
with Regulation 3.2.4 is
important. It is common cause that Mr Mthembu did not specifically
mention Regulation 3.2.4 in his recommendation
as the offending
provision. Under the section dealing with ‘
Zoning
Scheme Regulations
’
he merely stated that: ‘
The
application offends the zoning scheme regulations in as far as it
contravenes building lines
.’
[62]
The Municipality
dismisses this attack by stating that Mr Mthembu’s document
makes it quite clear elsewhere in the document
that the subdivision
would result in an erf size smaller than the erven prior to
consolidation. It cannot be stated with absolute
confidence, in my
view, that members of the Council knew from reading Mr Mthembu’s
recommendation and other documentation
that the difference in sizes
between the new and previous erven offended Regulation 3.2.4, without
that being specifically brought
to their attention. I say this
because the context in which the size of the newly created erven was
raised in Mr Mthembu’s
document was in relation to its
consistency with other erven sizes, its impact on the character of
the other erven in the vicinity
and the surrounding area. There was
no particular mention that the newly created erven infringed the
first part of Regulation
3.2.4 and because of that the Council
was required to invoke its powers in terms of s 15 (1) (b). That
Council exercised its powers
in terms of s 15 (1) (b) could not be
assumed to have to have existed without being backed up by evidence.
The position that Council
would have taken, having been alerted to
the inconsistency between the application for subdivision and the
first part of Regulation
3.2.4 is not known.
[63]
The second issue I
have with the Municipality’s argument is that s 15 (2)
contains, inter-alia, a pre-condition that the town
clerk or
secretary shall cause the application in terms of s 15 (1) (a) to be
advertised if in his opinion any person may be adversely
affected
thereby. I do not accept the ‘no-difference to the
outcome’ argument advanced by Mr Maughan-Brown. Firstly,
Mr
Maughan-Brown cannot speak on behalf of the entire TPD Committee on
an issue that was not determined by the TPD Committee. It
is possible
that, if the TPD Committee having picked up that the application for
subdivision offended Regulation 3.2.4 and was
not accompanied by an
application for departure in terms of s 15 (1) (a), it might have
refused to recommend the application for
subdivision, or it might
have called for an amended application from the second respondent or
it might have recommended condonation
for non-compliance with ss 15
(1) (a) (i) and 15 (2) and its subsequent approval.
[64]
Furthermore,
whether the objectors or other interested persons may have submitted
different or further objections in an attempt
to persuade the Council
not to grant the departure application is something that is unknown.
Even if the objections and the recommendations
would have been the
same, the public should have been given an opportunity to comment on
an application or notice that included
a departure from the
applicable land restrictions because such would have been premised on
different provisions of LUPO, namely,
ss 15 (1) (a) and 15 (2) and
not merely s 24.
[65]
To sum up on this
point, the TPD Committee, the Mayoral Committee and Council of the
Municipality should have been told that the
application offended
Regulation 3.2.4 of the Scheme Regulations and advised as to what was
recommended to do to deal with that
issue. It cannot be assumed that
Council members who may not be experts in town planning and
development matters would know that
a conflict existed between the
application and the Regulations simply by reading the recommendation
and the accompanying documents.
[66]
I therefore reject
the trivialisation of non-compliance with the statutory requirements
by the Municipality. Apart from that, land
owners should be
encouraged to comply with the law and the Regulations. As I have
already noted, to suggest that the subdivision
application was
treated as if it included departure, when that was not even the
intention of the owner of the land as gleaned from
Mr de Bruyns’
letter, is to imply that the departure application was not necessary
for the approval. If Mr Mthembu intended,
departure from restrictions
to be granted he should have said so. As things stand and from the
reading of his recommendation, approval
was only sought for and
granted for subdivision.
[67]
This is not to
suggest that the Municipality is not empowered by s 15 (1) (b) to
approve the subdivision notwithstanding the land
use restriction.
Such powers however must be exercised in a manner that is consistent
with the object and purport of the relevant
provisions of s 15 (1)
(a) (i) read with s 15 (2). This is to ensure that the public and
particularly those that would be affected
by the proposed application
are given a fair opportunity to comment on the correct application.
The error by the Municipality or
its non-compliance with the law, is
in my view, material enough to warrant the review and setting aside
of the subdivision approval.
In view of my findings in that regard, I
need not deal with the issues relating to the resultant extent of the
erf size in relation
to other erven in the area, the desirability of
the proposal and its impact on the surrounding properties and the
general public.
[68]
Something must be
said about the numerous errors that characterise the Municipality’s
decision. Starting with references to
incorrect statutory provisions
of LUPO to more serious errors of not picking up that there was no
departure application. It is
concerning that these errors carried on
from Mr Mthembu’s recommendations through to various Committees
up to the Council
without being picked up. This gives one an
impression that very little attention was paid in processing the
second respondent’s
application.
Building
line point
[69]
As regards
the issue of the building line. s 15 (1) (a) (ii) does not authorise
the Council of the Municipality to grant the departure
as I have
already stated. The empowering provision is s 15 (1) (b). Whilst it
is accepted that reference to an incorrect provision
does not vitiate
the decision, the Municipality does not explain how such an error
arose. An issue was raised that to the extent
that a departure may be
granted such only relates to an outbuilding or second dwelling not
the main dwelling and that such outbuilding
or second dwelling may
not have doors or windows in any wall which fronts onto the side. The
manner in which the Municipality has
dealt with these allegations is
unsatisfactorily scant.
[70]
Be that as it may,
it seems sensible to me that in view of the building line departure
being interrelated to the subdivision that
the entire application be
sent back to the Municipality for reconsideration. This would also
take care of the allegations that
the plan KE7475j was never provided
to the objectors to enable them to comment on.
Allegations
of misconduct
[71]
Serious
allegations of collusion, fraud and dishonesty have been levelled
against members of the Municipality. These allegations
are, in my
view far-fetched and baseless as they are not supported by evidence.
[72]
Omissions and
errors by Mr Mthembu cannot be elevated to misrepresentations. There
is also no evidence to support conclusions that
the applicants seek
this Court to draw that Mr Mthembu colluded with Mr de Bruyn. Mr
Mthembu may have erred in how he formulated
his recommendations but
that does not mean that he must be found to be dishonest. If Mr
Mthembu is found to be dishonest that would
also imply that members
of the TPD Committee are also dishonest as Mr Mthembu made documents
that he based his recommendations
on available to them. He placed a
set of facts to the TPD Committee for its members to form its own
views on the application.
[73]
The fact that Mr
Mthembu omitted to take note of the fact that the second respondent
did not apply for departure and alerted the
TPD Committee thereto or
that he did not mention the applicability of Regulation 3.2.4
specifically does not make him dishonest
neither does it point to any
collusion between him and other members of the or those of the second
respondent. No facts have been
placed before this Court to support
such conclusions. Having regard to the seriousness of these
allegations, I am of the view that
the Municipality was justified in
defending this application.
[74]
As to the question
of substitution. Since I have found no fraud or dishonesty on part of
the members of the Municipality (which
was the basis for the
substitution relief, I find no exceptional circumstances warranting
substitution. I would in the circumstances
show judicial deference
and allow the Municipality to reconsider the second respondent’s
application appropriately, taking
into account issues raised in this
judgment.
Costs
[75]
That takes me to
the question of costs. Both parties sought costs against each other
on a scale as between attorney and client or
own client. For the
applicants, the reasons advanced related to the Municipality’s
alleged misconduct and that the Municipality
had opposed this
application on spurious grounds. I have already found that such
allegations have no basis.
[76]
The Municipality
on the other hand sought costs on the punitive scale on the basis
that the Court must censure the accusations of
fraud and dishonesty
which are baseless, even if it were to be unsuccessful. In the
alternative it suggested that each party should
pay its own costs
should it be unsuccessful.
[77]
It weighs heavily
on my mind that the Municipality sought to settle the matter by
offering that the decisions be set aside and the
application be
considered afresh by the Council, which offer was rejected by the
applicants. The Municipality felt obliged to oppose
the application
purely because of what it viewed as scurrilous accusations of fraud
and dishonesty made against its members. The
allegations against the
Municipality were indeed serious and warranted opposition. I am of
the view that the Municipality having
offered to agree to an order
reviewing and setting aside the decision, there was no basis for the
applicants to persist with the
application. To that end, it seems
unjust to award costs against the Municipality.
[78]
I also do not find
it appropriate to award costs against the applicants in view of my
findings on the merits which are in their
favour. It is therefore
just and appropriate for each party to pay its own costs.
[79]
In the result the
following order is made:
1.
The decision by the first
respondent to grant approval for the subdivision of erf 7476, Knysna,
into two portions, namely Portion
A (476 m²) and Remainder erf
7476 (726 m²), in terms of s 24 of the Land Use Planning
Ordinance, No. 15 of 1985 as indicated
on the plan of subdivision
number KE7476H drawn by Mark de Bruyn dated June 2013 on 31 July 2014
is reviewed as set aside.
2.
The decision by the first
respondent to grant approval in terms of s 15 (1) (a) (ii) of Land
Use Planning Ordinance, No. 15 of 1985
for a departure to allow a
building line of 1,57m in lieu of 2m between a portion of the
existing dwelling house and the proposed
new subdivision boundary on
the proposed Remainder erf 7476, Knysna, as indicated on the plan of
subdivision number KE7476j drawn
by Mark de Bruyn dated May 2014 on
31 July 2014 is reviewed and set aside.
3.
The second respondent’s
application in terms of s 24 of Land Use Planning Ordinance, No. 15
of 1985 for the sub-division of
erf 7476, Knysna, into two portions,
namely Portion A (476 m²) and Remainder erf 7476 (726 m²),
Knysna, as indicated
on the plan of subdivision No. KE7476H drawn by
Mark de Bruyn dated June 2013 and in terms of s 15 (1) (a) (ii) of
Land Use Planning
Ordinance, No. 15 of 1985 for a departure to allow
a building line of 1,57m in lieu of 2m between a portion of the
existing dwelling
house and the proposed subdivision boundary on the
proposed Remainder Erf 7476, Knysna, as indicated on the Plan of
subdivision
No. KE7476j drawn by Mark de Bruyn dated May 2014, is
remitted back to the first respondent for reconsideration.
4.
Each party is to pay its
own costs.
___________________
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For
the Applicants: Adv. E C D Bruwer
Instructed
by: De Beer Joubert Attorneys c/o Van der Spuy, Cape Town
For
the First Respondent: Adv. P P J Van der Berg
Instructed
by: Mosdell Pama & Cox Inc. c/o Sohn and Wood Attorneys, Cape
Town