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[2017] ZAWCHC 46
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22 Rawson Street Body Corporate and Another v Knysna Municipality (22136/2015) [2017] ZAWCHC 46 (5 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
22136 /2015
In
the matter between:
22
RAWSON STREET BODY
CORPORATE
First
Applicant
MICHAEL JOSEPH
HUDSPITH
Second
Applicant
v
KNYSNA
MUNICIPALITY
First
Respondent
KNYSNA MUSLIM
COUNCIL
N.P.C
Second
Respondent
Coram:
Dlodlo
J
Date of Hearing:
08
March 2017
Date of Judgment:
05
April 2017
JUDGMENT
DLODLO,
J
[1]
The applicants challenge the lawfulness of decisions of the Council
of the first respondent (‘the municipality’),
in which it
granted planning approvals (‘the approvals’) to the
second respondent (‘the KMC’) which allow
for the future
development of an Islamic Centre (including a mosque) on a property
situated at 18 Rawson Street, Knysna (‘the
Property’).
The approvals were granted in terms of the old Land Use Planning
Ordinance 15 of 1985 (‘LUPO’), and
included the rezoning
of the Property and several (mostly minor) departures from the
ordinary requirements of the Knysna Zoning
Scheme Regulations (‘the
Zoning Regulations’). LUPO has since been repealed by the
Western Cape Land Use Planning Act
3 of 2014, which commenced
operation in the area of the municipality with effect from 1 June
2016 (in terms of proclamation 14
in Provincial Gazette 7622 of 1
June 2016). In accordance with ordinary principles, any application
process which commenced under
LUPO must continue under its
provisions, regardless of the changed statutory provision. See
Sigcau
v President of the Republic of South Africa
2013 (9) BCLR 1091
(CC) at para 20.
[2]
In order to develop the proposed Islamic Centre, the KMC will still
have to comply with various conditions attached to the approvals
(including conditions relating to the provision of parking, the
limitation of the ‘
design envelope’
of the
building, and agreed measures to avoid any suggestion of noise
disturbances); and obtain further approvals. Notably, the
KMC would
have to obtain approval for building plans in terms of the National
Building Regulations and Building Standards Act 103
of 1977.
[3]
The applicants are a body corporate of a residential development on a
neighbouring property (‘the Body Corporate’),
and a
non-resident owner of an apartment in that very development. The
second applicant notes that he lives in Candeboo Road, Old
Place,
Knysna. That as I gather, is several kilometres away on the
other side of Knysna and the N2 freeway. An approach adopted
by the
applicants in an effort to justify their opposition and/or objection
to the approvals is somewhat questionable. Their arguments
range from
the implied assertion that the Centre ought to be somewhere else to
the culturally insulated stance that the ‘
eastern
architecture’
is somehow ‘
out of character’
with the area. They assert that some close residents may not have
received registered letters at the outset even though they still
managed to submit objections. However, the main thrust of the
applicants’ objections relates to traffic and parking issues
in
Rawson Road described as a narrow residential road and a major
thoroughfare through Knysna’s central business district
(“the
CBD’). The municipality contends that it fully considered these
concerns and it addressed them in conditions
which it attached to the
approvals. The conditions imposed will have to be met if the proposed
Islamic Centre is to be developed
and that will neutralise complaints
raised by the applicants.
[4]
Strangely, the applicants have not sought to impugn the conditions
imposed by the municipality in granting the approvals complained
of.
The applicants present no argument at all that any one or more
of such conditions should have been perhaps more stringent.
One
cannot resist the impression that the applicants’ objections
are designed to prevent the development envisaged. They
perhaps
consider this proposed development as undesirable. It remains of
importance to bear in mind that the Council of the Municipality
as
the constitutionally empowered guardian of the harmonious development
of Knysna, made a determination that the development is
‘
desirable’
in terms of S 36 of LUPO. We bear in mind that the fact that the
applicants or even this Court may believe that a different decision
and/or a different approach would have been better, is not a valid
basis for interfering with the municipality’s decision.
See
Albutt v Centre for the Study of Violence and Reconciliation and
Others
2010 (3) SA 293
(CC) at para 51 where the Constitutional
Court observed as follows:
‘
[51] The Executive has a
wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may
not interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objective sought
to be achieved. What must be stressed is
that the purpose of the
enquiry is to determine not whether there are other means that could
have been used, but whether the means
selected are rationally related
to the objective sought to be achieved. And if, objectively speaking,
they are not, they fall short
of the standard demanded by the
Constitution. This is true of the exercise of the power to pardon
under S 84 (2) (j).’
[5]
The applicants seemingly adopt a position that anyone who disagree
with them and any decision which deviates from their suggestions,
must have been activated by sinister motives. I am concerned that the
applicants have also put forth speculative and unsubstantiated
allegations of bias and malice against the municipal officials.
Perhaps it is apposite to refer in this regard to
Turnbull-Jackson
v Hibiscus Coast Municipality and Others
2014 (6) SA 592
(CC) at para 32 and 35 where the Constitutional Court
noted
inter
alia
as follows:
‘…
.I am moved to
caution against wanton, gratuitous allegations of bias-actual or
perceived-against public officials. Allegations
of bias, the
antithesis of fairness, are serious. If made with a sufficient degree
of regularity, they have the potential to be
deterious to the
confidence reposed by the public in administrators……….These
are serious allegations especially
the one of corruption. Yes, if
public officials are corrupt, they must be exposed for what they are:
an unwelcome, cancerous scourge
in the public administration. But
accusations of corruption against the innocent may visit them with
the most debilitating public
approbrium. Gratuitous claims of bias
like the present are deserving of the strongest possible censure.’
It
is concerning that the applicants are apparently re-charactering
these allegations and the responses to them as indications of
a range
of factual disputes requiring investigation by means of
cross-examination. What is put forth now is an application for
referral of the matter to oral evidence. This application first
surfaced rather belatedly and somewhat improperly in the applicants’
heads of argument. I shall deal with this application too.
BACKGROUND
FACTS
[6]
The Muslim community in Knysna has for many years been housed in what
is described as wholly inadequate premises in Hornlee
on the outskirt
of Knysna. I am told that during peak seasons the Knysna Muslim
Council (‘KMC’) has had to rent containers
for use by the
Muslim families in the town. Accordingly, the KMC acquired the
Property measuring 1277m² which is located at
18 Rawson Street,
within Knysna’s CBD. The Property is vacant and it contains no
dwelling or structure.
[7]
The KMC desires to construct an Islamic Centre, including a mosque,
on the Property intended to serve both the local congregation
and
visiting congregants. In order to develop the proposed Islamic
Centre, the KMC had to obtain the rezoning of the Property from
‘
single residential’
to ‘
institutional’
and had to obtain authorisation to depart from various restrictions
that attach to the site. In terms of the Knysna Zoning Regulations,
an ‘
institutional’
zoning allows the primary uses
of an ‘
institutional building’
or a ‘
place
of public worship.’
The latter phrase is defined to mean ‘
a
church, synagogue, mosque, temple, chapel or other place for
practising religion and includes any building in connection
therewith…’
[8]
On 15 September 2014, the KMC, through VPM Planning (‘VPM’)
applied to the municipality for the requisite planning
approvals. The
municipality received the application the following day. In addition
to the rezoning of the Property the application
sought departures in
relation to: lateral and rear building lines; parking requirements;
building coverage; and height restrictions.
In addition, the
application sought ‘
Council’s permission to create a
public parking area on a Portion of the Remainder of Erf 211.’
This refers to a portion of municipal land close to the Property,
which is currently used as an informal parking area. On 18 September
2014, the application was advertised in Action Ads, a local newspaper
with very wide circulation. On 19 September 2014, it was
advertised
in the Provincial Gazette. The advertisement indicated that written
objections had to be lodged with the municipality
by 20 October 2014.
On 23 September 2014, the municipality notified the owners of 107
properties surrounding the Property of the
application via registered
post (‘the postal notices’). The 107 properties were
reportedly within a 300 metre radius
of the property.
[9]
On 1 October 2014, the former Municipal Manager circulated the KMC’s
application to the Knysna Ratepayers’ Association
and South
African National Parks requesting their comment. During the course of
October various departments and directorates within
the municipality
also considered the KMC’s application. The KMC’s
application elicited great interest, and the municipality
received
hundreds of comments, some supportive and others not. The
municipality claims 350 letters of support (on behalf of more
than
440 people) and 160 objections (on behalf of more than 1500 people)
were received. It is common cause that the applicants
count
differently. Among these comments were two sets of detailed
objections submitted on behalf of the Body Corporate: one set
drafted
by an attorney, and the other by Andre Vercueil of Andre Vercueil
Consulting Architects CC (‘AVA’). A further
objection was
submitted by Phillip Caveney, a member of the Body Corporate.
[10]
The comments and objections were forwarded to VPM, which was tasked
with responding thereto on behalf of the KMC. The Architectural
Review Sub-Committee (‘the ARSC’) (a body constituted by
the municipality to make recommendations in relation to certain
planning applications) met on 24 October 2014 and considered, among
other things, the KMC’s application. It recommended that
‘
revised plans…be submitted’
, given
concerns about ‘
the coverage, mass, bulk and …scale
of the proposed mosque’
. The ARSC recorded the following as
its concerns:
‘
The committee was
concerned about the coverage, mass, bulk and the scale of the
proposed mosque. It was noted that the size of the
site is small for
the proposed mosque. It was also noted that there was no precedent
nor contextual case studies, on how the mosque
is (sic) been brought
to town. Urban infill in a small town.’
[11]
When the ARSC met on 24 October 2014, its members included Mr Caveney
and Mr Vercueil. Neither indicated that they had been
involved in
submitting objections to the KMC’s application. When this
conflict of interest became evident, a reconstituted
ad hoc ARSC was
convened (including four local architects in private practice). On 11
March 2015 the KMC and a representative of
VPM addressed the ARSC,
and addressed certain concerns raised by the ARSC. The ARSC then
resolved to support the application, with
‘
no objection to
the application for departure from the building lines, nor to the
height, nor to the design concept.’
One member of the ARSC
‘
noted a design preference for the height of the dome to be
reduced’
and various members ‘
noted concern about
parking and traffic issues but did not take any position on these
since they all fall outside the purview of
the [ARSC]’
.
[12]
On 30 March 2015, VPM submitted a response to the views expressed by
members of the public and members of the municipality.
It dealt with
the objections raised by municipal employees, letters of support from
members of the public, and formal objections.
In response, VPM made
various alterations to the proposed Islamic Centre, including
eliminating the broadcast of the call to prayer
through an external
loudspeaker, reducing the building coverage, reducing the height of
the dome and the dome spires and increasing
the distance between the
Centre’s rear wall Property’s boundary. The response also
addressed a number of the other
concerns raised during the
public-participation process.
[13]
The municipality’s Director of Planning and Development, Mike
Maughan-Brown, then prepared a report which collated and
summarised
the KMC’s application, responses thereto from members of the
public and municipal officials, including the ARSC’s
11 March
determinations, and VPM’s response (‘the Director’s
report’). The Report supported the KMC’s
application. It
endorsed the rezoning and departure authorisations but subject to 18
conditions that were aimed at addressing the
concerns raised by
members of the public and municipal officials. On 18 May 2015, the
Planning, Development and Infrastructure
Committee (‘the
Planning Committee’) considered the KMC’s application.
The Planning Committee is a committee
of local councillors
constituted in terms of S 80 of the Municipal Structures Act 117 of
1998 to assist the Executive Mayor in
the discharge of her functions.
At this meeting, the Planning Committee largely accepted the
Director’s report (with minor
alterations) and recommended that
the KMC’s application be approved. One of the alteration was
that the prohibition on amplified
broadcasting should refer to ‘
call
to prayers’
rather than merely ‘
prayers’
,
as had appeared in the Director’s report. At this meeting, each
councillor was provided with a copy of the KMC’s application;
copies of the published advertisements; copies of the notices sent to
surrounding property owners; a list of documented objections
to the
application, including a summary of each objection; comments from
municipal officials; the minutes of the ARSC’s meeting
of 11
March 2015; VPM’s response; the Director’s report; and a
record of the Council’s previous land-use decisions
in relation
to the Property.
[14]
Because the KMC’s application elicited so many responses, each
comment and objection from every member of the public
was not
provided to each individual councillor. However, a copy of every
comment (positive and negative) was made available for
reference by
members of the Planning Committee. On 21 May 2015, the Executive
Mayor and the Mayoral Committee considered the KMC’s
application, the Director’s report, the Planning Committee’s
recommendation and the documents referred to earlier above.
The
Executive Mayor largely accepted the Planning Committee’s
recommendation and made the same recommendation to the municipality’s
municipal Council (‘the Council’), with one minor
alteration. The prohibition on amplified broadcasting was again
amended to refer to ‘
prayer’
rather than ‘
call
to prayers’
.
[15]
On 29 May 2015, the Council made the impugned decisions. At the time,
each councillor was in possession of, or had access to,
the KMC’s
application, the Director’s report, the recommendations of the
Planning Committee and the Executive Mayor,
together with the
supporting documentation described above. Like with the Planning
Committee, each document and objection from
every member of the
public was not provided to each individual Councillor. However, these
were available to the Council during
its meeting, and any Councillor
would have been able to consider them. The Council’s decision
largely reflected the Director’s
report and the recommendations
of the Planning Committee and the Executive Mayor. It approved the
rezoning and departure authorisations
but the approval remained
subject to the eighteen (18) conditions first suggested by the
Director. It is of significance that I
immediately deal with the
dispute of facts raised by the applicants and the referral of this
matter to oral evidence. That I do
infra
.
THE
FACTUAL DISPUTES AND THE REFERRAL TO ORAL EVIDENCE
[16]
The applicants contend that this matter raises factual disputes of
such magnitude that this Court should refer it for oral
evidence. The
above assertion strangely first appear in the applicants’ heads
of argument. It must be mentioned that an application
to refer
disputes of fact to oral evidence should be made
in limine
. In
De Reszke v Marais
2006 (1) SA 401
CPD this Court held that
‘
the general rule of practice remains that an application to
refer for oral evidence should be made prior to argument on the
merits’.
It is pointed out that the Court in
De Reszke
refused a referral request because it was only made from the Bar. In
Law Society, Northern Provinces v Mogami
2010 (1) SA 186
(SCA)
at 195 A-D the Supreme Court of Appeal guidingly made the following
observation:
‘
[23]……The
appellant submitted that in these circumstances we should refer those
disputed facts for oral evidence.
We cannot comply with this request.
An application for the hearing of oral evidence must, as a rule, be
made in limine and not
once it becomes clear that the applicant is
failing to convince the Court on the papers or an appeal. The
circumstances must be
exceptional before a Court will permit an
applicant to apply in the alternative for the matter to be referred
to evidence should
the main argument fail. (De Reszke v Marais and
Others
2006 (1) SA 401
(C)
[2005] 4 ALL SA 440)
at paras 32-33). In a
case such as this a law society might be able to apply in part A of
its application for an order ordering
the respondent to appear before
its council for an oral enquiry’.
It is thus clear from the aforegoing that the Supreme Court of Appeal
has confirmed the general rule set out by this Court in
De
Reszke
.
The fact of the matter is that the applicants have not brought an
application to refer anything at all to oral evidence, or done
so
before the hearing on the merits. They have requested a referral in
their heads of argument. That it is not acceptable to proceed
on that
path and in the manner adopted by the applicants is abundantly clear
from the authorities I have referred to
supra
.
[17]
Mr Duminy contended that even if the applicants had made out a proper
application at the proper time, the factual disputes
relied upon by
them are entirely artificial in that,
inter alia,
(a) much of
what is claimed to be disputes of fact are actually disputes of law.
‘
They are not about what happened as a fact, but about what
they believe ought to have happened; not about who took action as a
fact,
but whether the person was empowered to do so. These are
disputes of law, not factual questions that can be decided by
evidence’.
(b) The applicants make much of the proper
interpretation of an e-mail sent by a municipal official, Mr Maree;
or a Director’s
report. Perhaps I need to emphasise that it is
hard to comprehend how an interpretation of objectively established
correspondence
would raise a factual dispute. Vague and
unsubstantiated allegations of factual disputes are and remain
insufficient to merit referral
to oral evidence. This is particularly
so when allegations are made that public officials acted in bad
faith. In
King William’s Town TLC v Border Alliance Taxi
Association
2002 (4) SA 152
ECD at 156E-157A, the court made the
following observation of importance:
‘
Another argument with
which I propose dealing (sic) at this stage is the suggestion that
the application should be referred to oral
evidence to enable the
respondent to explore allegations that members of the TLC have acted
from corrupt or improper motives and
have taken the decision to close
the Catheart Street taxi rank in bad faith. A reference to oral
evidence or to trial is a proper
course if there is evidence of
corruption or bad faith. The respondent suggests that individual
councillors may have some interest
in the commercial development for
which the Catheart Street taxi rank has for many years been
earmarked, but it alleges no factual
foundation for this suggestion.
Vague and unsubstantiated allegations like these are insufficient to
create the kind of dispute
of fact which should be referred for oral
evidence (
Room Hire
Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 163-5;
Da
Mata v Otto NO
1972
(3) SA 858
(A) at 882 D-H). If the respondent genuinely intends to
raise a serious matter such as corruption as an issue it must bring
proceedings
founded on fact, not rumour, innuendo or inference based
only on speculation. Otherwise, the door is open to all litigants to
frustrate
legal action brought against them on notice of motion
merely by alleging a rumour of impropriety. The suggestion of
possible dishonesty
cannot be addressed in this application because I
cannot regard it as a genuine dispute of fact’.
In
order to merit a referral to oral evidence, the applicants are
obligated to clearly describe the issues that qualify to be so
referred. This is of course lacking in this case. It is trite that a
real, genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party purporting to raise the dispute has in his affidavit
seriously
and unambiguously addressed the fact said to be disputed.
[18]
In the final analysis, this Court in discharging its duty is duty
bound to make a robust, common-sense approach to a dispute
on motion
because otherwise its functioning can be hamstrung and circumvented
by the most simple and blatant stratagem. It is important
to mention
that the Court must not hesitate to decide an issue of fact on
affidavit merely because it may be difficult to do so.
Courts are
under a serious duty to dispense justice. Justice can be defeated or
become seriously impeded and delayed by an over-fastidious
approach
to a dispute raised in affidavits. See in this regard
Soffiantini
v Mould
1956 (4) SA 150
(E) at 154G-H. Needless to mention the
obvious contained in an adage ‘
justice delayed is justice
refused’
. The above robust approach should be employed to
disputes of fact and the application proceedings should be decided on
the papers
only where this can be done satisfactorily. The Supreme
Court of Appeal has (guidingly) dealt with the situation under
discussion
in
Minister of Land Affairs and Agriculture v D&F
Wevell Trust
2008 (2) SA 184
(SCA) at 205 A-C where the following
observation appears:
‘
It would be essential in
the situation postulated for the deponent to the respondent’s
answering affidavit to set out the
import of the evidence which the
respondent proposes to elicit (by way of cross-examination of the
applicants’ deponents
or other persons he proposes to subpoena)
and explain why the evidence is not available. Most importantly, and
this requirement
deserves particular emphasis, the deponent would
have to satisfy the Court that there are reasonable grounds for
believing that
the defence would be established. Such cases will be
rare, and a court should be astute to prevent an abuse of its process
by an
unscrupulous litigant intent only on delay or a litigant intent
only on a fishing expedition to ascertain whether there might be
a
defence without there being any credible reason to believe that there
is one. But there will be cases where such a course is
necessary to
prevent an injustice being done to the respondent.’
I
am concerned that the common course facts serving as background
factual matrix in both founding and answering papers seem to testify
that the impugned decisions were apparently lawful and procedurally
fair. This is an aspect I examine
infra
.
PROCEDURAL
FAIRNESS UNDER LUPO
[19]
One needs to first deal with duties borne by the municipality both in
terms of LUPO and in terms of the Promotion of Administrative
Justice
Act 3 of 2000 (‘PAJA’). It remains common cause that SS
15 and 17 of LUPO impose procedural-fairness obligations
on the
municipality. S 15 of LUPO applies to applications for departures
from the applicable land-use restrictions in the Zoning
Regulations,
such as those sought by the KMC. S 15 of LUPO provides as follows, in
the relevant part:
‘
(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) ...
(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 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’.
Thus
the process provided for is:
(a)
If
a departure application may adversely affect a third party, it must
be advised. Any objections received must be sent to the applicant
for
comment. (b) If a third party has an interest in the application,
relevant comment must be obtained from that person. (c) The
application and all relevant documents, including objections,
responses and comments (or at least accurate summaries thereof),
must
be submitted to the Municipal Council for decision.
[20]
S 17 of LUPO reads, in relevant part, as follows:
‘
(1)
An owner of land may apply in writing to the town clerk or secretary
concerned, as the case may be, for a rezoning of the land
under
section 16.
(2) The said town clerk or
secretary shall –
(a) cause such application
to be advertised;
(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 16(1) –
(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’.
This
Section deals with applications for rezoning at the instance of a
private land-owner and it requires a substantially similar
process
(save for the compulsory advertisement of such applications). LUPO
goes so far as to prescribe the contents of advertisements,
and how
and where they must be published. LUPO
requires
that a municipality must –
‘
serve a notice on every
owner of land who in the opinion of the … town clerk or
secretary has an interest in the matter and
whose address he knows or
can obtain and, if the … said town clerk or secretary …
so decides, to publish in the Provincial
Gazette and in the press a
notice—
(a) specifying the place where
and the hours during which particulars of the matter will be
available for inspection, and
(b) stating that
objections may be lodged with a person specified in the notice before
a date likewise specified, being not less
than 21 days after the date
on which the notice is so served or is so published’.
To ‘publish in the
press’, in turn, means to:
‘
publish the notice in
accordance with the provisions of section 90 of the Republic of South
Africa Constitution Act, 1983 (Act 110
of 1983), in such newspaper or
newspapers as the director or town clerk or secretary who shall or
may so publish, may from time
to time determine’.
S
90 of the now-repealed 1983 Constitution merely required that
land-use notices should be in both English and Afrikaans.
Understandably
those were the only official languages of the time.
The Knysna Zoning Regulations dictates (as it were) how notice must
be served
on interested parties. It permits service by registered
mail. Regulation 4.14 of the Zoning Regulations stipulates (entitled
‘Service
of Documents’) that ‘
[t]he
provisions of Section 211 of the Municipal Ordinance, 1974 (Ordinance
20 of 1974) shall mutatis mutandis apply to this zoning
scheme’.
S
211 of the (long-since-repealed) 1974 Ordinance provided that a
notice shall ‘
be
deemed to have been effectively and sufficiently served’
when it has,
inter
alia
,
been dispatched by registered mail to the recipient’s last
known address.
[21]
In short, in order to comply with its procedural-fairness
requirements in SS 15 and 17 of LUPO, the municipality-
(a)
had to formulate a notice indicating where and when the KMC’s
application could be inspected, and to whom and by when
objections
had to be lodged; (b) had to serve that notice on interested persons
whose address it could obtain (delivery by registered
mail being
sufficient); (c) was permitted, but not required, to publish the
notice, in both English and Afrikaans, in the Provincial
Gazette and
in one or more newspaper; (d) had to forward any objections to the
KMC and permit it to respond; and (e) had to forward
the application
and all relevant documents, including objections, responses and
comments (or at least accurate summaries thereof)
to the Council for
a decision.
[22]
According to the common cause facts the municipality did all I have
enumerated above. The notices were published and served
on interested
persons, and they contained the required detail of the nature and the
purpose of the KMC’s application, and
indicated where the
application could be inspected. The number of responses received,
both supportive and otherwise are a testament
to the reasonableness
of the opportunity provided to make representations. Importantly, the
municipality in turn forwarded objections
to the KMC and gave it an
opportunity to respond. All relevant documentation was then forwarded
to the Council for a decision.
In my view, the municipality indeed
fully complied with the procedural-fairness obligations imposed by
the legislation called LUPO.
PROCEDURAL
FAIRNESS UNDER PAJA
[23]
Indeed the decisions constitute administrative action and are subject
to PAJA’s procedural-fairness requirements. The
respondents
accepted that the Council’s impugned decisions fall squarely
within the definitional ambit of administrative
action. However, the
series of recommendations made by officials to other officials, the
Director’s recommendation to the
Planning Committee, and the
Planning Committee’s recommendation to the Council, are not
‘
administrative’
in nature. This is so because
such recommendations had no capacity to affect rights, and did not
impact directly and immediately
on the applicants. See
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) at para 23 where the Supreme Court
of Appeal made the following observation:
‘
[23] ……For
administrative action to be characterised by its effect in particular
cases (either beneficial or adverse)
seems to me to be paradoxical
and also finds no support from the construction that has until now
been placed on S 33 of the Constitution.
…The qualification,
particularly when seen in conjunction with the requirement that it
must have a ‘direct and external
legal effect’, was
probably intended rather to convey that administrative action is
action that has the capacity to affect
legal rights, the two
qualifications in tandem serving to emphasise that administrative
action impacts directly and immediately
on individuals.’
In
this case the process followed by the municipality complied with both
the requirements of S 3 of PAJA (dealing with the requirements
for
administrative action which ‘
materially
and adversely affects the rights or legitimate expectations of any
person’)
,
and S 4 of PAJA (dealing with the requirements for administrative
action ‘
that
materially and adversely affect the rights of the public’).
[24]
Section 3 (2) (a) of PAJA records the principle that is
well-established at common law, namely that fairness ‘
depends
on the circumstances of each case’
. S 3 (2) (b) of PAJA
provides that in order to give effect to this right, an administrator
must generally provide any person affected
by an administrative act-
(a) adequate notice of the nature and purpose of the proposed
administrative action, (b) a reasonable
opportunity to make
representations; (c) a clear statement of the administrative action.
This pertains to notice after the administrative
action has been
taken. See Hoexter
Administrative Law in South Africa
2ed
(Juta, Cape Town 2012) at 376 and the authorities referred to. It is
not my understanding of the founding papers that applicants
complain
that they were left unaware of the Council’s decisions; (d)
adequate notice of any right of review or internal appeal,
where
applicable. This of course did not apply in this case because no such
right of appeal existed. In
Minister of Local Government,
Environmental Affairs and Development Planning, Western Cape v The
Habitat Council
;
Minister of Local Government, Environmental
Affairs and Development Planning, Western Cape v City of Cape Town
2014 (4) SA 437
(CC), the Constitutional Court declared S 44 of LUPO,
which did offer an internal appeal, unconstitutional; and (d)
adequate notice
of the right to request reasons. There is no
complaint in this regard.
[25]
It is of significance to mention that apart from the fact that each
applicable requirement in S 3 (2) (b) of PAJA was clearly
complied
with, the procedure followed and described above was substantially
fair. Notably in
Joseph v City of Johannesburg
2010 (4) SA 55
(CC) at paras 57-59, the Constitutional Court held that an
administrator can comply with S 3 (2) (b) even if each listed
requirement
is not met, provided that the procedure followed is
substantially fair. As pointed out earlier in this judgment, at the
end of
this process, the Council approved the application but the
approval is subject to 18 conditions meant to assuage the concerns of
objectors. That this is a substantial fair process is in my view
beyond question.
[26]
S 4 (1) of PAJA provides that in cases of administrative action
affecting the public, an administrator has greater latitude.
He or
she may choose to follow a fair procedure provided in another law;
follow a fair procedure which achieves the purpose of
S 3 of PAJA;
hold an ‘
inquiry’
; or follow a ‘
notice
and comment’
procedure. S 4 (1) reads as follows:
‘
In cases where an
administrative action materially and adversely affects the rights of
the public, an administrator, in order
to give effect to the
right to procedurally fair administrative action, must decide whether
–
(a) to hold a public inquiry in
terms of subsection (2);
(b) to follow a notice and
comment procedure in terms of subsection (3);
(c) to follow the procedures in
both subsections (2) and (3);
(d) where the
administrator is empowered by any empowering provision to follow a
procedure which is fair but different, to
follow that procedure; or
(e)
to follow another appropriate procedure which gives effect to
section 3.’
The
administrator’s choice in this regard is not open to review
under PAJA. The requirements for a ‘notice and comment’
process are dealt with in Regulations under PAJA, published in GNR
1022 in Government Gazette 23674 of 31 July 2008 (as amended).
I
mention that in this case all these requirements were met.
[27]
Thus the municipality complied with the specific procedural-fairness
obligations imposed by LUPO and PAJA. I agree with Mr
Duminy that to
the extent that the municipality might not have done so, at the very
least it substantially complied with LUPO and
PAJA. In
Liebenberg
NO v Bergrivier Municipality
2013 (5) SA 246
(CC) at para 26 and
paras 22-26 the Constitutional Court more broadly held that:
‘
a
failure by a municipality to comply with relevant statutory
provisions does not necessarily lead to the actions under scrutiny
being rendered invalid. The question is whether there has been
substantial compliance, taking into account the relevant statutory
provisions in particular and the legislative scheme as a whole’.
[28]
This followed the approach in
African Christian Democratic Party v
Electoral Commission and Others
[2006] ZACC 1
;
2006 (3) SA 305
(CC), recently
confirmed in
Allpay Consolidated Investment Holdings (Pty) Ltd and
Others v Chief Executive Officer, South African Social Security
Agency, and
Others
2014 (1) SA 604
(CC), in which the
Constitutional Court indicated that in cases of strict non-compliance
with statutory provisions, courts were
required to adopt a
common-sense approach, taking into account the legislative intention
as a whole. SS 15 and 17 of LUPO have
the clear purpose of ensuring
worthwhile public participation which, in turn, ‘
signals
respect for the dignity and worth of the participants [and improves]
the quality and rationality of administrative decision-making.’
See Hoexster at page 363.
[29]
Clearly, the municipality’s process did achieve this purpose.
Indeed in the face of the overwhelming response received
from members
of the community, it would be beyond my comprehension if the
applicants were to suggest that the process hindered
meaningful
community participation. The process respected the dignity and worth
of Knysna’s Muslim community.
(
REMARKS
ON APPLICANTS’ REMAINING PROCEDURAL-FAIRNESS ARGUMENTS).
POSTAL
NOTICE NOT RECEIVED
[30]
The applicants complain bitterly that they did not receive the postal
notices sent to them by the municipality. With
this complaint
they imply that it renders the impugned decisions procedurally
unfair. They do not dispute that (a) the postal notices
were sent by
registered post to the 107 property owners within a 300 metre radius
of the Property; (b) that the KMC’s application
was advertised;
(c) or that the KMC’s application was widely publicised, given
that hundreds of responses were lodged. It
is also true that the
applicants do not dispute that they knew, as a fact, about the KMC’s
application and that they had
sufficient opportunity to lodge two
professionally-prepared objections, by advertised deadline.
[31]
In truth even if it is assumed that the applicants and other property
owners in Rawson Street did not receive their postal
notice, that
would not render the impugned decisions procedurally unfair because
of what follows hereinafter:
(a)
Neither LUPO, nor PAJA, requires that every recipient of a postal
notice of a proposed rezoning and departure decision
receive that
notice. LUPO merely requires that notices be sent by registered post.
(b) The common law presumption of regularity
and the statutory
presumption created by S 7 of the Interpretation Act 33 of 1957, take
care of the rest. (c) This totally nullifies
complaints by recipients
who do not collect notices sent to them. (d)
In
Hout Bay & Llandudno Environment Conservation Group v Minister of
Local Government, Environmental Affairs & Development
Planning,
Western Cape
[2012] ZACHC 22, this court dealt with a notice which was technically
deficient (in that it failed to state that a departure application
had been sought in relation to a particular parcel of land). The
Court held that the defect in the notice was:
‘
a technical, formal
defect and not a substantial or substantive defect. … The
[applicant’s] complaint is not that it
was prejudiced. The
[applicant] does not also dispute that its members were aware of the
exact nature of the approvals being sought
and commented in respect
thereof. Advertising is not an abstract, procedural requirement. Its
purpose is to alert interested and
affected parties to the proposed
application. The harm caused by the failure to advertise is that
interested and affected parties
do not find out about the proposed
application and therefore lose the opportunity to object to or
comment on it. The fact of the
matter is that interested and affected
parties (including the Applicant) were not prejudiced by the failure
to advertise or by
what was contained or omitted from the
advertisements. Interested and affected parties, including members of
the Applicant, had
ample opportunity to – and did in fact –
consider the development parameters (including the [relevant
departure application])
contained in the application.’
(e)
The
court’s approach accords with the principle established in
Jockey
Club of South Africa v Feldman
1942 AD 340
at 359, that in the absence of demonstrable prejudice, a
challenge to the fairness of proceedings must fail. (f) The same
approach
must apply in this case. The fact of the matter is that the
applicants do not claim that they are prejudiced by the
municipality’s
failure to place notice of the KMC’s
application in their hands. They can never make that claim because
they knew about the
application and they lodged detailed objections
right on time.
[32]
Mr Bruwer placed reliance on
Camps Bay Ratepayers and Residents
Association v Minister of Planning, Culture and Administration,
Western Cape
2001 (4) SA 294
(CPD). His reliance on the above
authority is of course misplaced. In
Camps Bay Ratepayers
this
court (per Griesel J) was interpreting the removal of Restrictions
Act 84 of 1967 (now repealed) which (unlike LUPO and PAJA)
explicitly
required personal service on interested parties. My brother, Griesel
J did not even decide the issue of whether personal
service was
actually required under RORA – he instead decided the matter on
the basis that notifications were not sent to
all interested parties.
Furthermore, in
Camps Bay Ratepayers
case, the court was
dealing with the removal of property rights (in the form of
reciprocal praedial servitudes) enjoyed by neighbouring
property
owners. Clearly this is not analogous to the present case.
OBJECTIONS
NOT CONSIDERED BY COUNCIL
[33]
Another complaint by the applicants is that the Council did not
properly consider the objections to the KMC’s application
when
it made the decisions under attack on 29 May 2015. They complain that
–
(a)
each councillor was not in possession of each objection at the
Council meeting, which the applicants suggest violated SS 15
(2) and
17 (2) of LUPO; (b) it was insufficient for the Council to be served
with a summary of the objections; and (c) this renders
the decision
procedurally unfair and possibly unlawful. In dealing with the above
assertion I perhaps must mention that a full
set of all the
supporting and objecting responses was available for use by
councillors. Every councillor could therefore have considered
a
specific response if he or she felt the need to do so. The Council
(as a body) was thus appraised of each response to the KMC’s
application. I remain not persuaded either that this raises factual
disputes as suggested on behalf of the applicants.
[34]
I reiterate that SS 15 (2) and 17 (2) of LUPO do not require that
each councillor must be served with each objection to an
application.
These provisions merely require that a municipal council must
consider ‘
the application and all relevant documents’
.
When the Council made the impugned decisions, it had before it all
the relevant information which I have enumerated earlier in
this
judgment. There is absolutely no dispute that the schedule of
supporting and objecting comments placed before each councillor
was
complete. In the result there can be no suggestion that the Council
was misled, or that any objections were somewhat obscured
from the
Council members.
[35]
The applicants rely on
Camps Bay Ratepayers
supra
and Hayes
v Minister of Housing, Planning and Administration, Western Cape
1999 (4) SA 1229
(C) (Hayes I) and
Hayes v Minister of Finance and
Development Planning, Western Cape
2003 (4) SA 598
(CPD) (Hayes
II), to suggest that as a matter of principle, it was inadequate for
the Council to rely on summaries of public comments
when making the
impugned decisions. The applicants appear to suggest that each member
of the Council must always consider each
public response to a
proposed decision before making that decision. This argument is not
only misplaced but it is also unfortunate.
The two
Hayes
cases
dealt with the consideration of an appeal under S 44 of LUPO, by a
Provincial Minister. In
Habitat Council
supra, the
Constitutional Court found that this appellate power was
unconstitutional. Perhaps in passing it needs to be mentioned
that in
any event, the consideration of an appeal by a single functionary,
cannot be equated to the consideration of planning approvals
by a
Council sitting (as it does) as a deliberate body in plenary session.
[36]
In the interest of completeness one needs to mention that it would
appear that the reasoning in the
Hayes
cases has probably been
overtaken by subsequent case law. I say so because in
Earthlife
Africa (Cape Town) v Director-General; Department of Environmental
Affairs and Tourism
[2005] ZAWCHC 7
;
2005 (3) SA 156
(C), this very court held
that it can be permissible for someone other than the decision-maker
to consider particular representations,
and to inform the
decision-maker of the gist of those representations:
‘
[I]n some circumstances,
it may suffice for the decision-maker to have before it and to
consider “an accurate summary of the
relevant evidence and
submissions if the summary adequately discloses the evidence and
submissions to the (decision-maker)”.’
Similarly,
in
Minister of Environmental Affairs and Tourism v Scenematic
Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA), the Supreme Court of
Appeal held that a decision-maker is entitled to rely on the advice
and summaries of others:
‘
[I]t does not follow
that a functionary such as the DDG in the present case would have to
read every word of every application and
may not rely on the
assistance of others. … If in making a decision he were simply
to rely on the advice of another without
knowing the grounds on which
that advice was given the decision would clearly not be his. But, by
the same token, merely because
he was not acquainted with every fact
on which the advice was based would not mean that he would have
failed properly to exercise
his discretion.’
[37]
Clearly the upshot of the approach suggested by the applicants is
that in every case considered by every municipal Council,
every
councillor would personally have read every public comment. This
borders on an impossible expectation. In any event this
would be an
unduly onerous requirement. For instance, in the instant case, this
would have meant that each of the Council’s
21 members would
have had to receive and consider several lever arch files of
comments. The same principle would then also apply
to a metropolitan
municipality like the City of Cape Town, which has 231 members. Of
course Mr Duminy is correct in maintaining
that this would not only
be prohibitively expensive and wasteful, but that it could bring the
business of local government to a
standstill. Municipal councils
across the country consider a vast number of departure and rezoning
applications every day. Many
of these applications (like the KMC’s
application) attract many objections and comments.
NEW
MATTER IN VPM’S RESPONSE
[38]
LUPO required that the KMC (as the applicant for planning approvals)
be given an opportunity to deal with any public comments.
The KMC’s
response was professionally prepared by VPM. The applicants complain
that VPM’s response contained ‘
new matter on material
aspects’
, which should have triggered a further round of
public consultation. The council could not (according to the
applicants) decide
the matter without hearing from them again. It
must be mentioned upfront that the process proposed by the applicants
is not contemplated
in SS 15 (2) and 17 (2) of LUPO. These provisions
sensibly do not provide for a potentially endless loop of public
comments and
responses thereto. As mentioned above, S 3 (2) (a) of
PAJA recognises that the requirements of fairness are variable.
Hayes
II
was decided on the basis of its own peculiar facts and in my
view, does not establish any principle that objectors must be
permitted
an opportunity to consider the responses submitted by an
applicant for planning approvals.
[39]
In
Doody v Secretary of State for the Home Department & Other
[1993] 3 ALL ER 92
(HL) Appeals Lord Mustill made the following
profound remark:
‘
The standards of
fairness are not immutable. They may change with the passage of time,
both in the general and in their application
to decisions of a
particular type. … The principles of fairness are not to be
applied by rote identically in every situation.
What fairness demands
is dependent on the context of the decision, and this is to be taken
into account in all its aspects.’
The
above passage has been approvingly quoted by many South African
courts. Most notably, it was quoted by the Constitutional Court
in
Minister of Health v New Clicks South Africa (Pty) Ltd
2006
(2) SA 311
(CC) at para 152; and
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004 (4)
SA 490
(CC) at para 45.
In
the context of the present matter, there can be no reasonable
suggestion that the facts triggered the need for a second round
of
public participation.
[40]
Much of what is called by the applicants ‘
new matter’
in VPM’s response was nothing other than a series of
concessions to objectors, reducing the impact and design envelope of
the building. The response eliminated the broadcast of the call to
prayer through an external loudspeaker, reduced the building
coverage, reduced the height of the dome and the dome spires and
increased the distance between the Centre’s rear wall and
the
Property’s boundary. Thus the applicants were not prejudiced by
not being given a chance to respond to what is after
all concessions
in their favour. The applicants seemingly have a particular problem
with the sections of VPM’s response that
deal with parking and
traffic. Why this qualifies to be named ‘
new matter’
necessitating the grant of a further right to make submissions, is
beyond my comprehension. What VPM does about parking is that
it
motivates for its proposed solution, namely, the use of the overflow
parking area next to the Bowls Club. This is not new nor
prejudicial
to the applicants. The use of the overflow parking area was proposed
in KMC’s initial application. This aspect
was known to the
applicants and was commented on by several objectors before the
Council made its decision. This is evident from
the fact that the
Knysna Ratepayers’ Association again addressed the
Municipality on 17 May 2015, repeating concerns
about the
availability of the Bowls Club parking area. The KMC’s initial
application contained a section entitled ‘
Traffic Impact’
.
This too is not a ‘
new matter’
. Maybe it must be
pointed out that procedural fairness does not grant the applicants
the right to resubmit their claim that a traffic
study is necessary
merely because VPM disagreed with an earlier claim that such a study
is necessary.
APPLICANTS
NOT HEARD AT THE ARSC MEETING
[41]
The applicants appear to assume that they were entitled to oral
hearing at every stage of the process. They are mistaken. It
is
well-established that that will often be met by an opportunity to
provide written submissions. See
Heatherdale Farms (Pty) Ltd and
Others v Deputy Minister of Agriculture and Another
1980 (3) SA
476
(T) at 486 D-E where Coleman J stated the following:
‘
It is clear on
authorities that a person who is entitled to the benefit of the audi
alterem partem rule need not be afforded all
the facilities which are
allowed to a litigant in a judicial trial. He need not be given an
oral hearing, or allowed representation
by an attorney or counsel; he
need not be given an opportunity to cross-examine; and he is not
entitled to discovery of documents.’
[42]
The applicants suggest some form of unfairness in that the KMC was
given the opportunity to address the ARSC but not objectors.
It must
be borne in mind that an administrative hearing is not akin to a
judicial trial. See
Heatherdale Farms
supra
. The ARSC
exists to provide expert advice on aesthetic and heritage issues. Its
function is not to gauge public sentiment regarding
an application.
Notably, in a similar view the applicants complain that the Speaker
of the Council acted improperly by not entertaining
a request from
the Ratepayers’ Association, to be heard. The Ratepayers’
Association is not before this Court. In order
to conclude on this
issue it is important to note that the applicants’ right to
procedural-fairness was fulfilled by the
opportunity to submit
written representations, which were taken into account and affected
the Council’s decision. The applicants
had no entitlement to
repeated hearings at every stage.
IS
A TRAFFIC IMPACT ASSESSMENT NECESSARY?
[43]
An e-mail message of 26 February 2015 records Mr Maree’s
‘
comments around the traffic situation’
and it
concludes with the opinion that the municipality requires ‘
some
sort of study’
. There is also a letter of 13 March 2015 to
the effect that Mr Easton recorded Mr Maree’s ‘
advice’
,
and suggests that it would be ‘
careless’
not to
require a ‘
traffic study.’
The applicants rely on
the above to assert there remains a need for the traffic impact
assessment. But sight must not be lost of
the fact that the
Director’s Report which served before both the Planning
Committee and the Council noted that the Council
had to make a
decision whether a traffic study was required. Based on summary of
the contentions raised on behalf of the KMC, the
report suggests that
the traffic generated was not significant enough ‘
to require
a separate analysis.’
All these documents are of course
premised on the common-sense understanding that the municipality as
an incident of its powers
to consider any application for planning
approvals under LUPO, the municipality’s Council could, in its
discretion, require
additional information regarding the impact of
the development on traffic and parking issues.
[44]
The applicants argue that S 38 (3) (b) of the National Land Transport
Act 5 of 2009 (‘the NLTA’) imposes a mandatory
requirement for a traffic impact assessment (‘TIA’) in
all applications which involve a ‘
substantial change in land
use’.
Perhaps it would be prudent to set out the provisions
of this Section
infra
. S 38 (3) (b) reads as follows:
‘
Despite
any law to the contrary, any authority with responsibility for
approving substantial changes in land use or development
proposals
which receives an application for such change or intensification,
must:
(b) ensure that
such application is accompanied by the required traffic impact
assessment and public transport assessment, and has
sufficient
information for the authority to assess and determine the impact of
the application on transport plans and services’.
Clearly
the applicants appear to suggest that the Municipality was thus
compelled, as a matter of law, to require a TIA before it
could
exercise its powers to consider any planning approvals, and had no
discretion in this regard.
[45]
It would appear that the applicants in their interpretation of the
NLTA have omitted to appreciate the following:
(a)
Almost every rezoning application involves a ‘
substantial
change in land use’
, but that not every rezoning will
impact on traffic issues. The NLTA would make no sense if it
introduced a uniform requirement
for a TIA in all rezoning
applications, even when the traffic impacts were negligible. (b) In
terms of S 156 (1) (a) of the Constitution,
read with Schedule 4B,
the control of ‘municipal planning falls within the exclusive
purview of municipalities. Indeed, it
is well-established that this
power over municipal planning includes the power to consider and
grant the type of planning approvals
envisaged in LUPO. Attempts by
other spheres of government to usurp this role are unconstitutional.
See
Minister of Local Government, Environmental Affairs and
Development Planning, Western Cape v Habitat Council and Others
2014 (4) SA 437
(CC) at paras 12-15. Therefore, to the extent that
the NLTA sought to impose mandatory requirements dictating the manner
in which
the Municipality considered planning approvals, it would
clearly trench upon the Municipality’s powers over ‘
municipal
planning’
. It is important that the NLTA must be
interpreted such that an unconstitutional outcome is avoided. See
Director of Public Prosecutions, Transvaal v Minister of Justice
and Constitutional Development, and Others
2009 (4) SA 222
(CC)
at para 81 and the cases cited in footnote 80. (c) Notably, on its
express wording, the NLTA refers to a ‘
required [TIA]’
.
Importantly there are no indications in the Act or Regulations under
the Act, when a TIA is so required. A sensible interpretation
would
be that the NLTA requires that municipalities themselves must
determine when a TIA is required, and what it must contain,
with the
aim of ensuring that it has ‘
sufficient information…….to
assess and determine the impact of the application on transport plans
and services.’
[46]
As to the municipal discretion the applicants suggest that any
discretion which the Municipality may have enjoyed to require
a TIA,
was lawfully exercised by Mr Maree and Mr Easton in February and
March 2015 pursuant to delegated powers, and could not
be revisited
by the Council. Mr Maree’s e-mail message and Easton’s
letter do not purport to make decisions requiring
a TIA. Perhaps it
is of significance to mention that the suggestion by the applicants
that these officials enjoyed delegated powers
and were empowered to
make decisions binding on the Council, does not accord with the
provision of LUPO. In terms of S 15 (1) (b)
of LUPO, read with
‘
scheme regulations’
of 5 December 1988, the power
to grant departures was delegated to the Council. In terms of S 16
(1) of LUPO, read with the provisions
of a ‘
structure plan’
of 8 December 1988 (as amended on 8 August 2013), the power to grant
rezoning applications was also delegated to Council. The original
structure plan giving effect to S 16 (1) of LUPO limited the
circumstances in which municipal councils could approve zoning
decisions.
These limitations were removed in an amended structure
plan of 8 August 2013. The extended power of councils to grant
rezoning
applications ensured that the structure plan accorded with
the Constitutional division of functional responsibilities, which
entrusted
to municipalities alone the power to grant planning
approvals of the kind envisaged in LUPO.
[47]
The point is well made by Mr Duminy that there is no discrete power
by the Council to require a TIA. Instead, under both LUPO
and the
NLTA, the Council’s power to require a TIA is obviously an
aspect of its general power to determine whether it has
sufficient
information to grant any planning approval. There is also no power of
sub-delegation. It is neither explicitly provided
in LUPO nor
implicitly authorised. See Hoexter page 265-269.
[48]
The implication that the Council was deprived of access to relevant
information (to convince it that a TIA ought to have been
required)
and the suggestion that it was irrational or unreasonable to grant
the approvals in the absence of a TIA need to be addressed.
In the
first place, the suggestion appears to be that the Director’s
Report failed to convey to the Planning Committee and
the Council
that Mr Maree was of the firm opinion that a TIA was required. But
the Director’s Report explicitly noted that
Mr Maree had
requested a study. Maybe the applicants’ complaint should be
characterised as no more than that Mr Maree’s
comments ought to
have been given greater prominence and ought to have been accorded
more respect in the Director’s Report.
This is allied to the
suggestion made by an expert (Dr Roodt) appointed on behalf of the
applicants, that it was inappropriate
for political decision-makers
to second guess determinations made by technocrats. This loses sight
of the fact that LUPO explicitly
entrusts planning approvals to the
Council. The Council is not bound to follow any recommendation, no
matter its provenance and
pedigree.
[49]
The allegation that the Director’s Report misled the Council
regarding Mr Maree’s concerns about parking for the
proposed
development is incorrect because Mr Maree’s e-mail message had
addressed his general concerns regarding parking
issues. I find it
strange (to say the least) that the applicants suggested that the
Muslim community of Knysna (comprising 250
individuals and 50
families) was too small to justify a dedicated Mosque but when it
comes to parking the same applicants appear
to think that an
extensive and expensive TIA should be required (which will show that
over 65 parking bays should be required as
a minimum). This is the
position adopted by the applicants even though it is clear that many
of the Muslim families will walk to
the Centre or travel by public
transport. Mr Maree’s general concerns regarding parking issues
were dealt with in substance
in the Director’s Report.
[50]
Of course the fact that the land earmarked for parking is leased to
the Bowls Club is a non-issue. The Bowls Club has expressed
no
objections to this and it does not use the land in question. There is
a relevant condition accompanying the granting of approval.
Thus if
it eventually transpires that the Bowls Club parking area cannot be
effectively utilised to provide the required parking
bays, then the
KMC would simply be unable to fulfil the conditions attached to the
Council’s planning approval. It is thus
not correct that the
Council acted in the absence of relevant information. I do not also
share the view that the applicants established
irrationality or
unreasonableness on the part of the municipality. In
Pharmaceutical
Manufacturers Association of SA and Another
;
in re
Ex
Parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para 90, the Constitutional Court highlighted that
the requirement of rationality posed ‘a minimum threshold
requirement’.
It is not an invitation for a court to substitute
its own views for that of a decision-maker. See
Albutt v Centre
for the Study of Violence and Reconciliation, and Others
2010 (3)
SA 293
(CC) at para 51. Instead, in
Democratic Alliance v
President of the Republic of South Africa and Others
2013 (1) SA
248
(CC), the Constitutional Court held that:
‘
rationality review is
really concerned with the evaluation of a relationship between means
and ends: the relationship, connection
or link (as it is variously
referred to) between the means employed to achieve a particular
purpose on the one hand and the purpose
or end itself. The aim of the
evaluation of the relationship is not to determine whether some means
will achieve the purpose better
than others but only whether the
means employed are rationally related to the purpose for which the
power was conferred.’
The
above clear and binding Statements of the Law should have served as a
message to the applicants that this court cannot
substitute the
Council’s decision with its own assessment that it would be
preferable if a TIA had been required. In
Bato
Star
supra
,
the Constitutional Court articulated the test that for a decision to
fall foul of the requirement of reasonableness, it would
have to be
shown that it was so unreasonable that no reasonable decision-maker
could have made it. The factors relevant to that
determination
include ‘
the
nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision on the lives and
well-being
of those affected’.
See
Bato
Star
at para 45. I understand the applicants to say in effect that the
Council ought to have approached the information provided by
the KMC
with a greater level of cynicism or distrust, or should have
subjected it to greater analysis by opposing technical
experts.
In short, the applicants are effectively contending that a different
decision ought to have been taken. That totally fails
to meet the
threshold of either rationality or reasonableness review. The
allegation of bias not only repeat the criticism of the
Director’s
Report, but an attempt is made to infer alleged shortcomings in the
Report as evidencing bias or malice. Applicants
must not be allowed
to embark on a conduct that seeks to ignore the established
two-prolonged test for drawing inferences in civil
proceedings:
namely that the inference must be consistent with all the proven
facts; and that it must be the more plausible among
several
inferences capable of being drawn. See
Govan
v Skidmore
1952 (1) SA 732
(N) at 734 C-D. This formulation has been referred to
often. See
Sasria
Ltd v Slabbert Burger Transport (Pty) Ltd
[2008] ZASCA 73
;
2008 (5) SA 270
(SCA) at para 6. Even if it were to be accepted that
the Director’s Report was flawed (it was not), the applicants
provide
no basis whatsoever that the alleged shortcomings are
indicative of malign motive.
THE
ALLEGATIONS OF MISDIRECTION
[51]
A mention must be made that in terms of S 36 of LUPO, the touchstone
for all planning approvals is based on a consideration
of
desirability. In
Hayes II
at page 624 J-625 A, this Court
noted that the ‘
test of desirability is conclusive’
.
The Court went on to say that while S 36 (1) of LUPO phrased in the
negative (i.e. that an application can only be turned down
based on a
lack of desirability), it lays down a positive, being ‘
a
positive advantage which will be served by granting the application.’
Notably, in
Booth and Others NNO v Minister of Local Government,
Environmental Affairs and Development Planning and Another
2013
(4) SA 59
(WCC), this Court qualified the test by highlighting that a
decision-maker was not compelled to refuse an application based on
any negative consequences, or because no positive consequences could
be shown. Instead the decision-maker had to exercise a discretionary
power. This finds support in the Constitutional Court’s
statement in
Lagoonbay
supra
at para 65, that a
decision-maker under LUPO has ‘
a broad discretion to
determine desirability’.
The applicants needed rather to
make out a case that the manner in which the Council exercised its
discretionary analysis of the
desirability standard, falls to be set
aside on a cognisable review ground. This, the applicants have not
done.
[52]
The applicants appear to suggest that the Council should have given
the large number of objections greater weight. I point
out that the
exercise of a discretionary power to determine ‘
desirability’
cannot be satisfied by polling the number of responses for and
against a proposed development or by comparing the proximity of
the
objectors and supporters of a development. The applicants are
understood to be suggesting that the Municipality’s Council
erred in failing to follow the dictates of various provincial policy
documents. This is premised on a misunderstanding of the legal
status
of policy documents and their permissible use. Policy documents
create no legal obligations. See in this regard
Akani Garden Route
(Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001 (4) SA 501
(SCA)
at para 7. In
Arun Property Development (Pty) Ltd v Cape Town City
2015 (2) SA 584
(CC), the Constitutional Court reaffirmed that policy
‘
serves as a guide to decision-making and may not bind the
decision-maker inflexibly’
. The Constitutional Court
guidingly observed as follows,
inter alia
:
‘
Policy is not
legislation but a general and future guideline for the exercise of
public power by executive government. Often, but
not always, its
formulation is required by legislation. The primary objects of a
policy are to achieve reasonable and consistent
decision-making; to
provide a guide and a measure of certainty to the public and to avoid
case-by-case and fresh enquiry into every
identical request or need
for the exercise of public power.’
The
point is that if the Municipality had lavishly followed policy
documents, that would have been unlawful. To criticise the
Municipality
for exercising its discretionary powers under LUPO in an
independent manner is not only unfair but it is wrong. Policies of
other
levels of government cannot legitimately dictate to
municipalities how they must exercise their powers to control
planning applications.
[53]
The founding papers make it appear that the stance adopted by the
applicants is somehow ascribed to their almost obvious opposition
to
the coming into existence of the Islamic Centre, (including the
Mosque), in this particular town. The applicants need to bear
in mind
that the advent of democracy brought along rights to every sector of
the community. These rights are enshrined in the Constitution.
The
Muslim community of Knysna feels aggrieved in that they believe that
applicants are discriminating against them on the grounds
of their
religious belief. In
S v Lawrence
;
S v Nagel
;
S v
Solberg
1997 (10) BCLR 1348
(CC) at para 92 Chaskalson P (as he
then was) observed that ‘
the essence of the concept of
freedom of religion is the right to declare religious beliefs openly
and without fear of hindrance
or reprisal, and the right to manifest
religious belief by worship and practice or by teaching and
dissemination’.
Applicants may not be seen to engage in a
stance calculated to deny the Muslim community of Knysna freedom of
religion and assemble.
ORDER
[54]
In the circumstances I make the following order:
(a) The
application
in
limine
to refer the alleged dispute of facts to oral evidence is dismissed
with costs.
(b) The
application to review and set aside the decisions made by the Council
of the Municipality of Knysna on 29 May 2015 is dismissed
with costs.
(c) The costs
awarded in (a) and (b) above shall include costs occasioned by the
employment of two counsel in respect of both the
first and the second
respondents;
(d) The applicants
shall pay the costs mentioned in (a), (b) and (c) above jointly and
severally the one paying the other to be
absolved.
____________________________
D
V DLODLO
Judge
of the High Court
APPEARANCES:
For
the Applicant:
Adv. ECD Bruwer
For
the First Respondent:
Adv. W Duminy
(SC)
Adv. D Borgström
For
the Second Respondent:
Adv. M Salie (SC)
Adv. Y Abass