Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (7031/17) [2018] ZAWCHC 101; [2018] 4 All SA 93 (WCC) (17 August 2018)

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[2018] ZAWCHC 101
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Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (7031/17) [2018] ZAWCHC 101; [2018] 4 All SA 93 (WCC) (17 August 2018)

Republic
of South Africa
[Reportable]
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No:  7031/17
In
the matter between:
Bo-Kaap
Civic and Ratepayers
Association
First
Applicant
35
On Rose Body
Corporate
Second
Applicant
Fabio
Todescheni
Third
Applicant
Heritage
Western
Cape
Fourth
Applicant
and
City
of Cape
Town
First
Respondent
The
Municipal Planning Tribunal, City
Of
Cape
Town
Second
Respondent
Mayor
of Cape
Town
Third
Respondent
Buitengracht
Properties (Pty)
Ltd
Fourth
Respondent
Judgment: Delivered 17
August 2018
LE
GRANGE, J
:
Introducton:
[1]
The
Bo-Kaap is situated on the slopes of Signal Hill above the city
centre of Cape Town. It has a rich and diverse history. The
area is
known for its brightly coloured homes and cobble stoned streets.
Bo-Kaap, including Riebeeck and Heritage Square, are all
provincially
declared heritage sites in terms of the National Heritage Resources
Act
[1]
(“the Heritage
Act”).
[2]
Gentrification in all its form has become
a chilling reality for the ordinary resident of Bo-Kaap.
Understandably, the resistance
to the gentrification of Bo-Kaap
having regard to its historical significance can never be
understated.  At the heart of this
matter is the planning
approvals that were granted by the Second Respondent (“the
MPT”) and thereafter confirmed on
appeal by the Third
Respondent (“the Mayor”) pursuant to an application by
the Fourth Respondent (“the Developer”),
for the proposed
redevelopment of a section of a city block, into a multi storey, 60
metre mixed use building in close proximity
to the Bo-Kaap, Riebeeck
and Heritage Square.
[3]
The First to Third Applicants seek the
reviewing and setting aside of the planning approvals that were
granted in terms of the City
of Cape Town Municipal Planning By-Law
2015 (“the MPBL”). The Fourth Applicant (“HWC”)
had intervened and
joined the other three Applicants in seeking the
review of the approvals granted. The HWC also seeks a declaratory
order that the
development may not take place without a necessary
permit granted in terms of section 27(18) of the Heritage Act.
All four
Applicants, for ease of reference, will be referred to as
the Applicants unless otherwise indicated.
[4]
This matter raises a number of questions
regarding the exercise of planning powers, the interpretation and
application of various
provisions of the MPBL. The declaratory order
sought by the HWC, on the other hand, raises the issue whether
section 27(18) of
the Heritage Act requires a permit for the
development of a place that is itself not a heritage site, as in this
case.
Counsel
:
[5]
Mr. P Farlam, SC assisted by Ms K Pillay,
SC appeared for the First to Third Applicants. Mr. G M Budlender, SC
assisted by Ms T
Sarkas appeared for the Fourth Applicant. Messrs. L
A Rose-Innes, SC assisted by H J De Waal, SC and Ms N Mayosi appeared
for the
First to Third Respondents. Messrs S P Rosenberg, SC assisted
by D W Baguley appeared for the Fourth Respondent. All filed
extensive
heads of argument which greatly assisted in preparing the
judgment.
Background:
[6]
The important factual matrix underpinning
this matter can be summarised as follows:  The Fourth Respondent
(“the Developer”),
owns Erven 144698 and 8210 Cape Town.
These are adjacent properties and bounded by Buitengracht, Rose, Long
and Shortmarket Streets.
These properties are however part of the
Central Business District (“CBD”) and do not squarely
fall within the traditional
Bo-Kaap area. The dividing street between
Bo-Kaap and the Developer’s property is Rose Street.
[7]
The First
Applicant is an association of persons residing in Bo-Kaap. The
Second Applicant is the Body Corporate of
35
on Rose
. Their
building is directly adjacent to the proposed development on Rose
Street, on the northern side. This building will in all
probability
be directly affected by the development, including among others, its
views and possibly property values
. Petra
Wiese (“Wiese”)
owns several properties in the CBD and also owns a penthouse property
in
35 on Rose,
whose
views would probably be affected if the development proceed.  Wiese
has also indemnified the First Applicant against
any costs order
associated with these proceedings.
[8]
The Third
Applicant also owns a property in the Bo-Kaap which stands to be
affected by the proposed development. One of the Third
Applicant’s
properties in the CBD is situated in the Bo-Kaap and his views of the
city would in all likelihood be affected
if the development should go
ahead.
[9]
The Developer’s proposed building
front will be onto Buitengracht Street which is a major Provincial
Main Road (PMR) within
the CBD. It carries large volumes of traffic
with limited pedestrian activity. The majority of the property is
zoned Mixed Use
Subzone 3 (“MU3”), which allows amongst
its primary uses, the development of business premises, flats and
multiple
parking garages. In order to build its development, the
Developer applied for the following approvals from the City:
(i)
a
consolidation of erven 144698 and 8210 (in terms of section 50 of the
MPBL);
[2]
(ii)
permission
to develop within the central city Heritage Protection Overlay Zone
(“HPOZ”) in terms of item 162 of the
City’s
Development Management Scheme - Schedule 3 to the MPBL. (“DMS”);
[3]
(iii)
permission
to locate parking bays closer than 10 metres to the street boundary
(in terms of item 64(e)(ii) of the DMS);
[4]
(iv)
permission
to build at 0 metres from a designated metropolitan road (in terms of
item 121(2) of the DMS).
[5]
[10]
An application was also made by the
Developer for departures from the DMS to allow portions of the
building above 38 metres to be
closer to the street boundary than
permitted. In a later redesign of the proposed development, the
departures apparently were obviated
which included a reduction of the
building.
[11]
In
terms of the MPBL, section 99 sets out the criteria for deciding
these applications
[6]
and
section 99(3) sets out the criteria by which the applications should
be adjudged to be desirable or undesirable. These criteria
include
(a) economic impact, (b) social impact and (c) scale of capital
investment. On 6 July 2016, section 99(3) was amended and
criteria
(a) and (b) were grouped together as ‘socio-economic impact’
and criterion (c) was deleted.
[7]
[12]
The
Developer’s team on 21 May 2015 had a pre-submission meeting
with the City to discuss the Developer’s intentions
broadly.
[8]
One of the issues raised in the meeting was the need to move the bulk
of the building away from the Bo-Kaap.
[13]
On 24 August 2015, a second meeting was
held with the City. From the minutes of the meeting it is evident
that there was discussion
about the impact on views from Bo-Kaap,
urban design indicators being used to inform the shape and massing of
the building, the
different street edges and their activation and
Riebeeck Square.
[14]
The Developer’s applications were
submitted on 28 October 2015 to the City. The application was
accompanied by an Urban Design
Report prepared by Blue Green Planning
and Design, a report by Fabian Architects and a Traffic Impact Study
by Kantey and Templer.
[15]
The Developer’s land use application
was circulated within the City for comment. Mr Heydenrych of the
City’s Land Use
Management Department (“LUM”) was
dealing with the application.
[16]
On 7 December 2015, the City’s
Energy, Environmental & Spatial Planning Directorate, commented
positively on the proposal
and made the following remarks:
‘
In our opinion,
due consideration has been given to the context that the site is
located within which is demonstrated through the
urban design report
attached to the application.’
‘
Support was
given for a building that utilise allowable building height but with
massing sensitive to the Bo-Kaap and Riebeeck Square
context. The
utilisation of basement parking also minimises the impact in street
activity which was a key design requirement.’
‘
We thank the
developer and design/planning team for a clear and participated
process with our and other line department and well-motivated

application clearly unpacking the key design principles and
responses. This made the process of assessment a pleasure.’
[17]
On 9 December 2015, the City’s
Transport Directorate submitted its comment to Heydenrych. That
comment was supportive of the
Developer’s proposal subject to
certain conditions being imposed.
[18]
On 14 December 2015 the City’s
Environmental and Heritage Management Branch (‘EHM branch’)
submitted a comment
to Heydenrych. The EHM branch made only three
suggestions, namely that:
i.
the Buitengracht street edge of the building
required a larger set-back and canopy at street level and one storey;
ii.
direct access should be provided to the building
at various points along the active edge;
iii.
the Rose Street interface should be two storeys
with set-backs for subsequent storeys as indicated in the urban
design report.
[19]
The Developer’s application was
advertised and a total of 1017 objections were received, including
636 online objections.
The online objections resulted from a website
created by the First Applicant.
[20]
On 10 February 2016, the Third Applicant
submitted his objection to the Developer’s application in
which, among other things,
it was suggested that a Heritage Statement
be obtained and that HWC should become involved. The Second
Applicant, through its professional
town planner, Willem Bührmann,
also submitted an objection to the proposal. The City’s EHM
branch submitted a second
comment to Heydenrych suggesting that:
i.
the massing of the proposed building is such that
the greater bulk and sheerness of the design imposes onto Riebeeck
Square which
serves to further ‘contain’ the square’s
breathing space boxing it in, which is counterproductive to the
historic
nature of the space; and
ii.
the historic connection between the Bo-Kaap and
town is being eroded by larger newer buildings along the linear
barrier between
Buitengracht and Rose Street and the proposal
compounds the separation.
[21]
The comment also acknowledged that the
massing of the building away from the Bo-Kaap showed a sensitivity to
the site’s relationship
with Bo-Kaap and was not opposed to the
idea of adding built form to the site, but ultimately suggested that
the Developer seek
to lessen the impact of the building on the
surrounding heritage resources by reducing the height of the
building. The EMH branch
further suggested that HWC should also
become involve and that some form of heritage impact assessment
including a visual impact
assessment be undertaken by the Developer.
[22]
If one has regard to the objections, the
bulk of the criticisms against the proposed development can largely
be summarised as follows:
the development proposal does not comply
with the City’s policies; property values would be negatively
affected; Balconies
and windows will overlook properties; the visual
and historic connection between the Bo-Kaap and the City will be
blocked; the
development is too high with too many dwelling units;
the area’s historic significance would be undermined; social
cohesion
would be undermined; and traffic congestion in the
surrounding streets would be increased.
[23]
In view of the criticisms, comments of the
City’s EHM branch and that of the Third Applicant, the
Developer appointed a heritage
consultant, Mr Aikman, to do
compile a heritage statement, requested Fabian architects to compile
photomontages dealing with
the impact of the building. The HWC was
also contacted and according to the Developer it delivered all of the
relevant documentation
to HWC.
[24]
The Developer’s heritage consultant,
Aikman, having measured the proposed development against thirteen
heritage-related design
indicators, recommended that the development
be supported.
[25]
The City’s EHM branch submitted a
third comment on 29 April 2016 in which, while acknowledging the
‘substantial’
heritage statement, expressed the view that
the proposed building was still too high.
[26]
On 11 May 2016, HWC commented on the
Developer’s applications and took the position that:
i.
the development does not trigger section 38(1) of
the National Heritage Resources Act;
ii.
the development does not require a permit in
terms of section 27(18) of the National Heritage Resources Act;
iii.
it recognises the design principles set out in
Aikman’s statement but (a) does not consider the stepped
massing from Rose
Street to Buitengracht Street adequate to mitigate
the heritage impact of the building (b) disputes the datum lines used
and (c)
does not agree that the Netcare building justifies the
development on the grounds of ‘counterbalancing’.
[27]
On 8 April 2016, the Developer responded
to the comments and objections received by the EHM branch, HWC and
objectors which included:
i.
rebuttals to the objections raised;
ii.
a
response from Kantey & Templer relating to traffic concerns
raised;
iii.
a shadow study showing the effects of the
building on sunlight;
iv.
revised plans showing changes to the building
which the design team had brought about in response to the comments
and objections;
v.
revised photomontages of the revised building to
illustrate the visual impact of the building; and
vi.
the Aikman Heritage Statement.
[28]
In view of the objections, the Developer
thereafter made certain changes to the proposed building. According
to the Developer, in
dealing with the EHM branch’s comments,
the following changes were brought about:
i.
the Buitengracht street edge was given a larger
set-back and canopy on street level and the next storey up;
ii.
direct access to the building was provided at
various points along an active edge;
iii.
the Rose Street building interface was reduced
from 5 storeys to 3.  EHM had suggested going to 2 storeys, but
according to
the Developer the existing building on Erf 8210 abutting
Rose Street is currently 3 storeys high.
[29]
According to the Developer the changes
were also aimed at allowing various parts of the building above 38
metres to be closer to
the street boundary than permitted as of right
resulting in the building being set back more above that level.
[30]
The Developer further indicated that
before making its application to the City, it appreciated the
importance of, in particular,
the Bo-Kaap and decided not to take up
its base zoning rights fully, allowing it to move the mass of the
building away from the
Bo-Kaap. According to the Developer instead of
proposing a building with a floor area of 30 523m² it designed a
building with
a floor area 27 000m² (3523m² less than its
base rights). Furthermore, it was suggested by the Developer that a
further
reduction of 520m² in floor space resulted when the
building was re-designed in light of the objections and comments to a
final floor space of 26 480m².
[31]
In May 2016, Heydenrych drafted a report
to the Municipal Planning Tribunal (‘MPT’). The report,
amongst others noted
that the application was not subject to the
Provincial or National Heritage Resource Acts but that comments had
been received from
HWC. The report further noted that the following
policies applied: The Cape Town Spatial Development Framework; the
Table Bay District
Plan; the Cape Town Densification Policy; the
Urban Design Policy and the Tall Building Policy.
[32]
In the report, Heydenrych also summarised
the changes brought about to the building as a result of the comments
and objections and
stated that: ‘the building was reduced in
size and set back further from street boundaries, mainly in order to
remove any
building line departures after the 14
th
storey, which were advertised; more articulation was done on all
sides of the property; balconies were introduced in certain areas,

expanded or reduced in other areas; unit sizes were adjusted, in most
cases they were reduced; the business floor area was reduced
by
approximately 300m²; canopies were added along Rose Street; a
pedestrian entrance was added to Shortmarket Street near
the corner
with Rose Street; a reduction in the number of parking bays from 324
to 310; more articulation and façade changes
were done to Rose
Street.
[33]
In the report the Developer’s
motivation, the comments and objections received as well as the
Developer’s answers to
the comments and objections were
summarised. The Developer’s proposal was then assessed. The
statutory context, the development
rules and the title deed condition
relating to the Rose Street edge of Erf 144698 was also considered.
Heydenrych then set out
a number of provisions of the planning
policies and frameworks applicable to the application and in respect
of which he concluded
that the Developer’s proposal was
consistent with the TBDP; complied with the principles of the Urban
Design Policy; complied
with the principles of the Tall Building
Policy; and was appropriate from a densification point of view.
[34]
Regarding heritage, Heydenrych identified
the Bo-Kaap, Riebeeck Square, Heritage Square and Erven 1299 and 1300
(these two erven
do not belong to the Developer) as significant.
Heydenrych referred to the Aikman Heritage Statement and then
undertook a
heritage assessment which can be summarised as follows:
‘the main objection from a heritage point of view was the
height,
massing and position of the building; the objectors wished to
limit the height of the building to create a ‘bridge’

between the City and Bo-Kaap, not a ‘barrier’; even if
height and massing of the building was similar to that of surrounding

buildings, the building would ‘still constitute a barrier
‘between the Bo-Kaap and the CBD
;
the
objectors were ignoring the changing and developing nature of the CBD
and attempting to impose unsubstantiated limits over one
property in
favour of another; the proposal had not maximised its development
rights and provided an effective transition between
the City and
Bo-Kaap while being mindful of the heritage resources in the area.’
[35]
Regarding the title deed condition in
respect of a portion of Erf 144698 on the Rose Street side,
Heydenrych suggested that a condition
be imposed to allow for a
further consideration of this frontage. The condition obliges the
Developer to obtain approval from the
City, prior to building plan
approval, for details of the design along all frontages.
[36]
In respect of the traffic impact,
Heydenrych summarised the findings set out in the Kantey &
Templer traffic impact assessment.
In respect of parking, reference
was made to the fact that 310 parking bays would be provided for the
residential and business
components of the building. The parking bays
on the ground (first) and second storey would also be underground and
will have no
impact on the amenities of the streets in any way.
[37]
The nil metre set-back approval in respect
of Buitengracht Street, the provincial main road, was also dealt with
by Heydenrych and
it was found to be desirable. In respect of urban
design, it mentioned the stepping back of the building above the
third storey
on the Rose Street frontage and Heydenrych described it
as an attempt to recognise the significance of the Bo-Kaap within the
parameters
of primary development rights. Heydenrych also referred,
in this context that the Rose Street frontage was revised down from 5
storeys to 3 and the fact that the frontage matches, by way of a
modern interpretation, the articulation and vernacular of the
Bo-Kaap.
[38]
In respect of the glazing of the proposed
shop frontages along Rose Street, Heydenrych suggested that needed to
be reduced or narrowed
and reconsidered on the grounds that it did
not tie in with the historical vernacular of the area and that it
could be addressed
through the conditions of approval.
[39]
Regarding Riebeeck Square, it was
Heydenrych’s opinion that the massing on the Buitengracht
frontage provided good articulation
and that the outward facing
residential units provided a good interface and presence on the
square. In his view the building would
help to frame and upgrade the
perimeter of the square which may help to upgrade the square itself.
[40]
In this regard Riebeeck
Square opens up directly onto the wide Buitengracht Street. According
to the City, Riebeeck Square is of
historical interest being one of
the squares around which Cape Town developed and where farmers
originally outspanned their wagons
and off-loaded their products. The
City indicated that Riebeeck Square has sadly deteriorated over the
last 50 years and is it
of great importance that developments which
will breathe life into this square be supported as it is currently
utilized as a car
parking area.
[41]
The appropriateness of the proposal was
also considered by Heydenrych with reference to s 99 of the MPBL.
In the assessment
it was found that the proposal:
i.
would have a positive impact in terms of
providing employment opportunities and will provide a large economic
injection into the
area;
ii.
it would increase the amount of social
interaction around the property and would improve access to
accommodation in the CBD to more
levels of society because of the
range of apartment sizes;
iii.
it would provide significant capital investment
within the CBD and City;
iv.
the proposed building is compatible with the
surrounding areas;
v.
although it would result in additional load onto
the engineering services, the expansion of services at the
developer’s cost
would be possible and the City’s service
branches did not object to the proposal;
vi.
it would increase the safety, health and
well-being of the surrounding community because of the creation of
active edges;
vii.
it would act as a break on the perceived
‘gentrification’ of Bo-Kaap;
viii.
it has taken care with regard to the surrounding
heritage elements and its impact mitigated by the set-backs applied
to the building;
ix.
it would have no impact in the biophysical
environment; and
x.
it
would not have a dramatically negative traffic impact and ample
parking is provided.
[42]
With reference to the consolidation
application, Heydenrych separately considered the impact of the
proposal and found that it would
be less than if the properties were
developed separately within their permissible development rules.
[43]
According to Heydenrych the consolidation
of the two erven would have a positive influence on Rose Street and
the surrounding area
and that views will not be particularly
affected. He also considered that there would be no or insignificant
wind and shadowing
impacts contrary to the suggestions of some of the
objectors. Further, the issues of noise and dust put up by the
objections were
to be addressed by means of a Construction Phase Plan
to be made a condition of approval.
[44]
For all of the reasons mentioned,
Heydenrych considered the Developer’s application appropriate
and recommended the approval
of the Developer’s planning
applications, subject to the conditions reflected in annexure “A”
of his report.
[45]
The Third Applicant, on 6 June 2016
prepared a further objection on behalf of some the local property
owners and other interested
and affected parties which was present at
the hearing of the Municipal Planning Tribunal on 7 June 2016.
MPT
Decision:
[46]
The MPT hearing took place on 7 June 2016.
It needs to be mentioned that the establishment of the MPT is
governed by section 115
of the MBPL.  The five members of the
MPT who considered the applications comprised of three external
members. It is evident
on the papers filed of record that all five
members are highly skilled and qualified with vast knowledge and
experience in planning
matters. Before the hearing each member of the
MPT inspected the site individually.
[47]
All the relevant parties at the hearing
were given an opportunity to address the MPT, including the
Applicants. It is evident on
the papers filed of record that the MPT
sought clarification where necessary during the oral presentation.
They debated the matter
formally at length and thereafter unanimously
decided to approve the Developer’s applications. The tribunal
also debated
the conditions of approval contained in annexure A to
Heydenrych’s report.  It was then agreed the conditions
need to
be amended in several respects to take account of the
objections raised to the application. The objectors were informed on
21 July
2016 of the MTP’s decision and were provided with the
minutes of the meeting, the reasons for the decision and the
conditions
applicable to the approvals.
[48]
Twelve appeals were lodged against the
MPT’s decision. In terms of section 114(3) of the MPBL, the
Mayor is the appeal authority.
The Developer submitted its response
to the appeal submissions.
The
Mayor’s Advisory Panel (“MAP”)
[49]
In terms of section 121 of the MPBL, the
MAP was established. It considers and makes recommendations to the
Mayor on appeals and
did so in this instance. The MAP consisted of
five of the City’s senior executives, namely Mayco members for
Finance (the
chairperson); Human Settlements; Informal Settlements,
Water, Waste Services and Energy; Transport and Urban Development;
and the
former Mayco member for Human Settlements and at the time,
the Sub-Council Manager of the City of Cape Town. The members of MAP

were provided with the record on appeal.  This included the
appeals, the Developer’s response to the appeals, the MPT

record and annexures, the minutes of the MPT meeting of 7 June 2016
and its notice of decision.  The MAP members
were also provided
with an audio recording of the 7 June 2016 MPT meeting.
[50]
On 30 November 2016, the MAP met and heard
oral representations from certain appellants who had requested an
oral hearing. The MAP
unanimously recommended to the Mayor that the
appeals should be dismissed for all of the reasons given by the MPT,
plus it added
further reasons, inter alia, that: i) the proposal
comply with the City’s planning policies, Tall building
policies, Spatial
Development Framework, Economic Growth Strategy
etc; ii) if there were errors in the notification processes extra
time was allowed
and agreed to for people to submit comments and or
objections; iii) although only a portion of the property was affected
by the
HPOZ, the department had treated the application as if the
whole property was affected by the HPOZ; iv) the panel was of the
view
that the application was desirable in terms of section (2)(d),
as contemplated in subsection (3) of section 99 of the MPBL; v) the

panel added that in relation to traffic impacts, parking access and
other transport related considerations the application was
desirable
in that it bordered on Buitengracht street which is a high order road
and is thus an ideal location for land use intensification
and
increased density; vi) in terms of transit development strategy more
residential uses have to be encourage in the City centre
to address
inefficiencies in the City; vii) the application was sensitive to the
Bo-Kaap area; viii) the massing and height of
the building’s
façade along Rose Street responds to the neighbouring
buildings’ on each side of the building.
The
Mayor’s decision on Appeal
[51]
The Mayor was provided with the same
documents and audio recording of the 7 June 2016 MPT
meeting as had been provided
to the MAP.  In addition, she was
provided with the appeals themselves, the necessary reports and the
minutes of the MAP meeting
of 30 November 2016. The Mayor
considered the documents provided.
[52]
According to the papers filed of record,
the Mayor’s consideration of the matter included discussions
with her technical advisor
as well as with the Mayor’s
principal legal advisor between 5 December 2016 and
19 January 2017. According
to section 122 of the MPBL, a
technical advisor may assist or advise the Mayor in an appeal.
In this instance, the Mayor’s
technical advisor had 36 years’
experience in private practice as a town planning consultant.
[53]
On 12 December 2016, the Mayor
conducted an inspection of the site for the proposed development and
surrounding area,
accompanied by her principal legal- and technical
advisor. The Mayor thereafter accepted the recommendations of the MAP
and dismissed
the appeals. The Mayor’s decision was
communicated to the appellants in a letter dated 25 January 2017.
The
Review:
[54]
The Applicants’ objections to the
Developer’s applications appears from the review record,
including the documents relied
on by them and their representations.
In this instance, the Applicants introduced and relied on certain
affidavits and further
documents which were not before the MPT or the
Mayor as a further basis for reviewing the approvals. In respect of
the traffic
impact assessment, the Developer made use of Kantey and
Templer traffic impact assessment (“TIA”) as part of the
application.
The Applicants answered to that in their
objections, although they did not obtain a TIA of their own at the
time.  It is evident
that the decision-makers made their
decisions on the traffic assessment information that was before them
at the time. The Applicants’
in their replying affidavits
relied on a Technical Review report. This report was compiled by
Pravanya Pillay on 15 December 2017
and it is a detailed response to
the TIA.
[55]
The Applicants’ now rely on the
Pillay report to motivate a review on the basis that the City did not
properly take account
of the impact on traffic and as a result acted
unreasonably in coming to the decisions it did.
[56]
The developer relied on the Aikman
heritage statement in support of its applications for the approvals.
In this matter, Heritage
featured largely in the comment provided by
the Applicants as well as HWC in response to the applications but
none relied on a
heritage expert to put that view before the MPT or
the Mayor.
[57]
The HWC, having intervened, briefed a
heritage practitioner, Dr Van Graan, to prepare a heritage report.
The report by Van
Graan is clearly relevant to the declaratory
relief. HWC was however of the firm view that the report bears
directly on the grounds
of review and as a result should be taken
into account in the review.  It is apparent that Van Graan’s
affidavit and
detailed report were not before the decision makers.
In the report, Van Graan, inter alia, comments on the City’s
Environmental
and Heritage Management Department (EHM) remarks and
the Aikman heritage statement.
[58]
The City objected to this in its answering
affidavit, stating that if regard is to be had to the views of Van
Graan in considering
the review, reliance must also be placed on the
affidavit of the City’s heritage expert Ashley Lillie. The
introduction by
HWC of Van Graan’s affidavit in the review
proceedings has resulted in further affidavits being filed regarding
the heritage
impact.  The developer has also filed an affidavit
by Andre Pentz, an architect, planner and heritage practitioner.
[59]
The
position regarding the main distinctions between the procedure on
appeal and review has been correctly articulated in Herbstein
&
Van Winsen,
[9]
where inter
alia the following was stated “…
[I]n
an appeal the parties are absolutely bound by the four corners of the
record, whereas in a review it is competent for the parties
to travel
outside the record, and to bring extrinsic evidence to prove the
irregularity or illegality
.’
[60]
In recent times, it is not uncommon for
experts’ reports to be filed in review matters. It is evident
that in this instance
there are competing views by the relevant
experts regarding the heritage impact and that of the TIA. In my view
the reports can
be useful and cannot simply be ignored, in deciding
whether the decision-makers took the relevant factors into account as
envisaged
under the MPBL.
[61]
However,
it needs to be stressed that “when the law entrusts a
functionary with a discretion it means just that: the law gives

recognition to the evaluation made by the functionary to whom the
discretion is entrusted, and it is not open to a court to
second-guess
his/her evaluation. The role of a court is no more than
to ensure that the decision-maker has performed the function with
which
he was entrusted. … ‘It will not prescribe the
weight that must be accorded to each consideration, for to do so
could
constitute a usurpation of the decision-maker's
discretion”.
[10]
[62]
In
this instance, the complexity of balancing heritage considerations
against other equally important competing factors and requirements,

like socio-economic considerations, cannot be ignored. It is evident
on the papers filed of record that the decision-makers relied
on
expert reports and public participation to arrive at its decisions.
Deference is therefore warranted, but that does not mean
that a court
should rubber stamp a decision which is unreasonable or irrational
simply because of its complexity. Each case must
be decided upon its
own facts.
[11]
[63]
Against this
background the impugned decisions must now be considered.
Review
Grounds:
[64]
The review
grounds raised by the First and Third Applicants in its Notice of
Motion can be categorized as follows: The first was
the MPT and Mayor
failed to have regard to the heritage impact of the development, and
in granting the subject approvals, acted
irrationally and/or
unreasonably. This review ground was further sub-divided into ten
different contentions in support of the Applicants’
view that
the City failed to properly consider all the relevant factors
pertaining to the heritage impact of the development. These

contentions were tabulated as follows:
(i)
The Developer’s
Heritage Statement
–
the
statement was apparently not submitted as part of the application and
was not furnished to the public as part of the consultation
process;
(ii)
The “latest of
the developments” approved by the City
–
it was submitted that the impugned
decisions cannot be justified on the basis of the so-called “similar
development”
argument;
(iii)
The City’s
“acute awareness” of the significance of the heritage
resources in the area
– the purported irregularity complaint of was the City’s
failure to have regard to the impact of the development on
the
heritage resources in the area and not the awareness (or not) of the
significance of the heritage resources in the area;
(iv)
The erroneous
contention that the initial comments of the EHM were accommodated in
subsequent designs
–
the
argument advanced was that both the MPT and the Mayor harboured under
a misapprehension that the Developer had complied with
the first EHM
report and thus seemingly failed to apply their minds to relevant
considerations and furthermore acted pursuant to
a material mistake
of fact;
(v)
The City sought
further comments from its EHM Department
–
it
was contented that the City disregarded the further comments from the
EHM Department.
(vi)
The Developer’s
alleged “significant” change of design to accommodate the
concerns of the objectors and reduce
the scale of the proposal
– the contention was the actual scale of the building was not
reduced or redesign but a different calculation methodology
as
permitted in the Zoning Scheme occurred which on a generous
interpretation of the calculations merely reduced the building by

520m(square).
(vii)
The Developer’s
so-called comprehensive response to the objections
–
it was contended that
the Developer did not address a number of fundamental issues raised
by the objectors as a result of the view
that it was purportedly
entitled to the subject approvals in light of the pre-existing base
zone of the property.
(viii)
The City’s
reasons for the impugned approvals (which included the MPT’s,
MAP’s and the Mayor’s reasons)
–
the argument advanced was that on the
facts in casu, the City’s reasons for the impugned approvals
were confusing and contradictory.
(ix)
The allegation that
the Applicants are incorrect in contending that the decisions of the
MPT and the Mayor were based on the belief
that existing development
rights trump heritage considerations and that these rights may not be
compromised even if consent was
required for activities in an HPO
Z-
the argument essentially advanced was the City failed to consider
whether the proposal was consistent with the prescripts
of item 164
of the DMS and specifically whether the alleged voluntary sacrifice
by the Developer was sufficient to meet the heritage
concerns raised
by the objectors.
(x)
The City’s
reliance on the fact that the bulk of the building was shifted away
from the Bo-Kaap to the Buitengracht Street
side of the property
-
it was contended that despite a section of the building falling
within an HPOZ, the bulk and massing was increased on the part
of the
property that is falling within an HPOZ.  It was further
contended that the design of building, more particularly its
height,
scale and massing is entirely out of keeping with the surrounding
area, and more especially the Bo-Kaap.
[65]
The second
review ground was the City should have required the Developer to
submit a Visual Impact Assessment (VIA). Thirdly, the
City failed to
have proper regard to the impact of traffic and lastly, the
Developer’s proposal did not comply with various
planning
policies.
The
Legal Framework:
[66]
In this instance an application such as
that submitted by the Developer, section 99 of the MPBL applies to
all the approvals sought
by the Developer including the consolidation
and application. There are two sets of criteria relevant to section
99. In terms of,
subsection (1) an application must be refused if the
decision maker is satisfied that the application fails to comply with
the
listed minimum threshold requirements. Amongst the threshold
criteria listed in subsection (1) is ‘
the
proposed land use must be desirable as contemplated in subsection
(3)’
.  Second, under subsection
(2), if an application is not refused under subsection (1), when
deciding whether or not to approve
the application, the decision
maker must consider all relevant considerations including, where
relevant, the considerations listed
under subsection (2).
[67]
The relevant considerations listed under
subsection (2) include the following:
“
(a) any applicable
spatial development framework;
relevant criteria
contemplated in the development management scheme;
(c) any applicable policy
approved by the City to guide decision making;
(d) the extent of
desirability of the proposed land use as contemplated in subsection
(3);
(e) impact on existing
rights (other than the right to be protected against trade
competition);
(f) in an application for
the consolidation of land unit –
(i)
the scale and design of the development;
(ii)
the impact of the building massing;
(iii)
the impact on surrounding properties;
(g) other considerations
prescribed in relevant national or provincial legislation…”
[68]
Generally, the abovementioned
considerations would apply, except for an application for
consolidation when section 99(2)(f) would
be applicable.
[69]
It
needs to be mentioned that certain provisions of section 99 were
subsequently amended with effect from 1 July 2016 and 12 May

2017.
[12]
For present
purposes section 99(3) was amendment on 1 July 2016, pursuant to a
proclamation in Provincial Gazette 7647, to
revise the considerations
which are relevant to the assessment under subsection 99(1)(c) of
whether, and under subsection 99(2)(d)
of the extent to which, the
proposed land use would be desirable.  More particularly,
subsections (3)(a) to (c) were replaced
with one subsection which
referred merely to “socio-economic impact”, with the
remaining subsections being renumbered
accordingly. The revised
subsection (3) reads as follows:
“
The following
considerations are relevant to the assessment under subsection (1)(c)
of whether, and under subsection (2)(d) of the
extent to which, the
proposed land use would be desirable –
(a)
socio-economic impact;
(b)
…
(c)
…
(d)
compatibility with surrounding uses;
(e)
impact on the external engineering services;
(f)
impact on safety, health and wellbeing of the
surrounding community;
(g)
impact on heritage;
(h)
impact on the biophysical environment;
(i)
traffic impacts, parking, access and other
transport related considerations; and
(j)
whether the imposition of conditions can mitigate
an adverse impact of the proposed land use.”
[70]
The Applicants in their reply were adamant
that as section 99(3) was amended prior to the appeal to the Mayor,
the appeal ought
to have been determined in light of the amendment,
especially because the appeal is a wide one.
[71]
The Respondents held a different view and
argued that the presumption against statutory retroactivity prevented
the Mayor to have
considered the appeal in light of the amendment as
Parliament is presumed not to have intended to alter the law
applicable to past
events and transactions in a manner which is
unfair to those concerned in them, unless the contrary intention
appears.
[72]
In
terms of section 108(5) of the MPBL, the appeal authority (the Mayor)
is permitted to receive relevant information and reconsider
the
matter afresh. This is indeed a wide appeal in the true sense of the
word.
[13]
However, there is at
common law a
prima
facie
rule of construction that a statute (or any amendment or
legislatively authorised alteration thereto) should not be
interpreted
as having retrospective effect.  The presumption
against statutory retrospectivity arising from this rule may however
be rebutted,
either expressly or by necessary implication, by
provisions or indications to the contrary in the enactment under
consideration.
[14]
[73]
In the present instance, there is
nothing in the express provisions of the MPBL to rebut the
presumption nor are there any compelling
indications from which
retrospectivity can be implied. The Mayor, was therefore not obliged
to determine the appeal in light of
the amendment.
[74]
As part of the Developer’s property
is in an HPOZ area, the proposed development triggers the activities
in paragraphs (b)
and (c) of item 162. In the context of an
application for item 162(1) approval, the relevant criteria
contemplated in the DMS under
section 99(2)(b), refer to the
criteria in item 164(2), which states:
‘
In considering an
application referred to in item 162(1), the City must take into
account the effect such activity may have on the
significance of the
heritage place or heritage area concerned.’
[75]
Heritage impact is also a relevant
consideration under both sections 99(1) and (2), because subsection
(3) provides that among the
considerations “
relevant
to the assessment under subsection (1)(c) of whether, and under
subsection (2)(d) of the extent to which, the proposed
land use would
be
desirable” is “
impact
on heritage
” (s 99(3)(g)).
Heritage impact under section 99(3)(g) would include any heritage
impact on heritage resources
surrounding the site of the proposed
development.
[76]
The item 162(1) approval in this case thus
required the decision maker to consider, among other considerations:
the “
effect [that the activities listed
in item 162(1)] may have on the significance of the heritage place or
heritage area concerned
” (item 164(2)
read with s 99(2)(b)); and “
impact
on heritage”
(including on surrounding
heritage resources) in assessing whether, and the extent to which,
the proposed land use would be desirable
(ss 99(1)(c) and (2)(d) read
with (3)(g)).
[77]
Heritage is thus implicated in both
section 99 of the MPBL and item 162(1) of the DMS. In terms of the
former, the City is enjoined
to consider, among other threshold
requirements, whether the proposed land use is desirable. If the
threshold requirements are
met, the City is enjoined to consider,
among other relevant considerations, the extent of the desirability
of the proposal.
[78]
In considering of the desirability of the
proposal, the following factors are relevant:
a)
economic impact;
b)
social impact;
c)
scale of the capital investment;
d)
compatibility with surrounding uses;
e)
impact on external engineering services;
f)
impact on safety, health and well-being of
the surrounding community;
g)
impact on heritage;
h)
impact on the bio-physical environment;
i)
traffic impacts, parking, access and other
transport related considerations; and
j)
whether the imposition of conditions can
mitigate an adverse impact of the proposed land use.
[79]
According to the Applicants, even if it is
accepted that section 99 is to be the controlling provision for all
kinds of applications,
the application of Chapter 20, Part 1 of the
DMS cannot simply be restricted to the introduction of the factor
mentioned in section
164(2) into the section 99 decision process via
section 99 (2)(b). According to the argument advanced, item 164 is to
be regarded
as applying in its own right, with all the provisions
thereof read as informing the adjudication process. To that extent it
was
contended that heritage consideration in item 162(1) must be
regarded as the pre-eminent consideration and not simply one among

many in a basket of factors. Similarly, it was argued by the
Applicants that the decision- makers failed to apply the MPBL
properly
as it is apparent that in terms of section 99(2)(d), read
with section 99(1)(c) that a proposed land use might be considered
desirable
in terms of the factors mentioned in subsection (3) and
thus satisfy the threshold enquiry, but nevertheless be refused under
section
99(2) in view of other relevant considerations, for example,
the criteria contemplated in the DMS.
[80]
The argument advanced by the Applicants on
this point is unconvincing. On a proper reading of the MPBL, section
99 is the controlling
provision for all kinds of applications. The
application of Chapter 20, Part 1 of the DMS and the factor mentioned
in item 164(2)
must be read in conjunction with the section 99
decision process via section 99(2)(b). Even if, item 164 is to be
regarded as applying
in its own right, with all the provisions
thereof read as informing the adjudication process, the heritage
consideration in item
162(1) cannot be regarded as the pre-eminent
consideration but only one among many in a basket of factors.
Similarly, I am not
persuaded that the decision-makers approach to
section 99 of the MBPL was flawed or improperly applied.
The
Heritage impact and the rationality and reasonableness of the
decision:
[81]
According to the Applicants, despite the
City’s acknowledgement that it was duty bound to assess the
heritage impact of the
proposal, the City made no request to the
Developer to submit a heritage statement as this was indispensable
for the application.
The further complaints by the Applicants
were amongst other that: the objectors did not have sufficient time
to deal with its contents
before the MPT meeting; the views expressed
in the Heritage statement which was relied upon by the City, with
reference to what
was contained in the report to the MPT, were
strongly contradicted by HWC; The City’s failure to engage with
the views of
HWC and its own EHM – which both took strong
exception to statements and recommendations in the Heritage Statement
–
demonstrates its failure properly to consider the impact of
heritage on the development.  Moreover, it was contended that
the averments and conclusions of HWC and EHM further illustrate the
irrationality and unreasonableness of the City’s approval

decision having regard that the site is in the vicinity of important
heritage resources, the impact of the development on heritage
places
must be a fundamental consideration in granting permission to build
in an HPOZ and that the proposal faced substantial opposition
from
persons living in the Bo-Kaap.
[82]
On the papers filed of record, the
planning applications by the Developer were submitted to the City on
28 October 2015. The Developer
procured a Heritage Statement from
Aikman in view of the first objections by the Third Applicant and the
second comments by the
EHM branch in the planning applications. The
Heritage Statement was submitted to the City on 8 April 2016 as part
of the Developer’s
response to the objections and comments
received. The Heritage Statement was commented on by HWC.
[83]
The Heritage Statement was included as an
annexure to Heydenrych’s report. It was also linked to the
City’s website.
It was available to those persons who
wanted to object and had requested an interview.
[84]
The Third Applicant was provided with
Heydenrych’s report and its annexures, including the Aikman
statement, approximately
five days before the MPT hearing. The Third
Applicant dealt with the Aikman statement in his second objection and
during its address
to the MTP. Moreover, the Third Applicant has had
more than a month to consider the Aikman statement before his
presentation to
the MAP. He dealt with new and additional aspects of
the Aikman statement in his submission and presentation to the MAP.
On the
abovementioned stated facts, the complaint by the Applicants
that the objectors did not had sufficient time to deal with the
contents
of the Heritage Statement before the MPT meeting and or at
the MAP is in my view without merit.
[85]
In considering the Developer’s
application, the City was obliged to consider the effect that the
development may have on the
significance of the heritage place or the
heritage area concerned. In this instance, the City was confronted
with two contradictory
reports. The main complaint by the Applicants
is the City failed to engage with the views of HWC and its own EMH,
as both took
strong exception to the statements and recommendation in
the Heritage Statement. The Applicants’ position appears to be
that
as a result of the opposing views expressed by the HWC and also
the EHM branch, which only considered the heritage, the Development

ought not to have been approved.
[86]
The Applicants’ central proposition
on heritage is that any large-scale development adjacent to a
heritage site would have
an extremely negative impact on the site and
would seriously damage its heritage significance. The applicants rely
on Van Graan
for this proposition. On the other hand, both Lillie for
the City and Pentz for the Developer have expressed grave concern
regarding
Van Graan’s absolutist position.
[87]
Lillie and Pentz had accepted that a
large-scale development adjacent to a heritage resource may have a
negative heritage impact,
but, as pointed out by Pentz, one
immediately faces the problem of subjectivity. According to Pentz,
the question whether a development
near to a heritage place ‘damages’
that place may often be a matter of opinion and taste about which
reasonable people
may legitimately differ, as opposed to the act of
demolishing a national monument where the harm done is evident.
[88]
It needs to be mentioned that the MPT and
the Mayor were not only obliged to consider heritage but a far
broader range of issues,
including heritage. It is difficult to
accept that the City had no regard or failed to have appropriate
regard to heritage impact
when it considered the Developer’s
planning applications, as this contention by the Applicants ,is not
borne out by the papers
filed of record.
[89]
There can be no misgivings that heritage
enjoyed a distinct degree of attention throughout the various stages
of the application.
The objectors’ concerns, as noted by
Heydenrych, were the height, massing and position of the building. On
this point it
was noted by Heydenrych that the bulk of the building
was on the lower levels (9 storeys and below) ‘
which
is at a similar height to the adjacent existing building on Erf
148791’;
the revised proposal by the
Developer were preferred over a proposal based solely on primary
rights; it was considered that the
proposal provided an effective
transition between the City and Bo-Kaap while being mindful of the
heritage resources in the area;
it was further found that the
development had taken care with regard to the surrounding heritage
elements and that the impact of
the building was mitigated by the
setbacks applied to the building which limited its impact on the
surrounding heritage resources.
[90]
A member of the MPT considered that the
redesign and mitigation measures achieved a balance between the
developer’s statutory
rights and the built infrastructure of
the Bo-Kaap and the MPT gave as a reason for their decision the fact
that the proposal takes
cognizance of the heritage resources within
the area.
[91]
At the MAP, one of councillors was of the
view that the application responded to the HPOZ and that the
developer had been sensitive
to the Bo-Kaap by scaling down the
building on the Rose Street side. Another councillor of the MAP
thought that the design had
been as sensitive as possible. The MAP
also echoed the reasons for the MPT’s decision by finding that
the proposal took cognizance
of the heritage resources within the
area.
[92]
The Mayor agreed with the MAP. It was
recorded in the report that:
‘
I accept the
recommendation of the Advisory Panel and agree with its report to me.
I considered, in particular, the view of the
City’s Environment
and Heritage Department that the surrounding heritage resources will
be impacted on in a negative manner
to a certain degree by the
proposed development due to the design’s sheer size, height and
magnitude. However, I agree with
the MPT and the Advisory Panel that
the proposed development responds appropriately to the neighbouring
buildings and the environment.’
[93]
The City further considered the fact that
the bulk of the building was moved away from the Bo-Kaap towards
Buitengracht street.
Secondly, the Rose Street facade of the building
would only be three storeys which is entirely in keeping with the
vernacular of
the Bo-Kaap and the Second Applicant’s building.
[94]
The City has summarised its reasons for
recommending the approval after considering heritage impact as
follows:
a)
in
terms of existing rights, the developer could have massed the
building towards the Bo-Kaap as no HPOZ consent is required for
the
building on that side;
b)
this did not happen because the consolidation
allows the bulk of the building to be shifted towards the
Buitengracht side. The shift
was partly the result of interactions
with City officials and in response to objections. These changes made
by the developer are
listed in the report to the MPT. The diagrams
attached to the report specify where the changes took place. In the
result the bulk
of the proposed building is shifted away from the
Bo-Kaap;
c)
overall the building was reduced in size and
set-back further from street boundaries. In the process more than
4000m² of permissible
floor space is not being utilised. This
change also meant that the need for departures for the building above
the 38m level were
no longer required;
d)
a
number of changes were made to the Rose Street facade. This responds
to the comments made about massing and bulk. The height of
the
building was further reduced from 5 storeys to 3 storeys on the Rose
Street side. It must be borne in mind that the existing
building on
erf 8210 on the Rose Street side is already at 3 storeys.
35
on Rose
, approved in 2002, is stepped to 6/7
storeys on Rose Street. Furthermore, most of the bulk of the proposed
building is below nine
storeys which is the same height as
The
Studios
. The development will blend in with
the Bo-Kaap if the current precedent and the images of the
development prepared by Fabian Architects
are considered;
e)
furthermore, the process of ensuring that the
proposed building “
melts”
into
the Bo-Kaap on the Rose Street side has not been completed. The City
felt that there is too much glazing on the proposed shop
frontages
along Rose Street. This needs to be reduced / narrowed and
reconsidered as it does not tie in with the architectural
vernacular
of the area. The stand out balconies along Rose Street are also not
supported. Conditions have accordingly been imposed
to ensure that
these aspects are dealt with. The title deed conditions allow the
City to withhold building plan approval if these
issues are not
satisfactorily addressed. These conditions will ensure that a more
fine grain approach is adopted on the Rose Street
frontage. The MPT
specifically addressed these aspects in the amended conditions of
approval;
f)
the details at street or pedestrian level on all
streets create the interface between the building and the street and
create a user
friendly environment for pedestrians. Currently, the
street facades are mainly blank, or “
back
of house”
facilities. Even the
Buitengracht facade does not enhance the streetscape. The development
will significantly improve this. On this
aspect, one must bear in
mind that a total of 310 underground parking bays are provided by the
developer when the minimum requirement
is zero. The fact that the
parking is underground enables activation of the street edges with
businesses;
g)
what is known as the “
views
of the Bo-Kaap”
from Buitengracht
Street, are in actual fact views up the main streets leading from the
City into the Bo-Kaap, such as Wale, Church,
Shortmarket, Longmarket,
Hout and Castle Street. These views will not be affected as the
proposed building is set back off Longmarket
and Shortmarket Streets
as well. Particular attention was indeed paid to the relationship of
the proposed building to these streets.
The result is that, far from
cutting the Bo-Kaap off from the city, the design enables Shortmarket
and Longmarket Street to fulfil
their historical roles by creating
linkages between the Bo-Kaap, Riebeeck Square, the city and onwards;
h)
the proposed development will form an appropriate
transition between the single dwelling Bo-Kaap and the relatively
tall bulky buildings
in the CBD;
i)
turning to the Buitengracht Street side of the
subject properties, this area is of a nature that it can receive a
relatively large
building. The wide road reserve and the width (110m)
of Riebeeck Square itself served to mitigate a large building on this
side.
The building is counter-balanced by the mass of the City Park
(former Netcare Christiaan Barnard Hospital) building diagonally
across Riebeeck Square;
j)
the development must be assessed in a context
where the zoning rights on erf 8210 and the part of erf 144698 which
does not fall
under the Central City HPO, permit a straight facade up
to 60m without any architectural design at all on Rose Street and
parts
of Shortmarket and Longmarket Streets. There is also a zero
setback requirement on the common and street boundaries.
[95]
In this instance, considering the heritage impact, an equilibrium had
to be struck between a range of competing interest and
policy
considerations. Under these circumstances, the contention that the
decision-makers failed to have regard to the heritage
impact of the
Development, is
unsustainable
.
[96]
Regarding the criteria for assessing consolidation applications
(section 99(2)(f) of the By-law) the City has summarised the
reasons
for its decision as follows:
a)
Scale and design of the development
:
the area contains a mix of small erven with buildings on individual
erven, and buildings that straddle these erven. In terms of

legislation these erven will eventually require a consolidation
application if the buildings on them were to expand over the property

boundary. Therefore in future there will be an increase in the number
of larger erven within the CBD;
b)
Erven of the proposed size are not uncommon in
the area, especially within the CBD context. The proposed size of the
erf is desirable;
c)
The scale and design of the development is
considered to be appropriate for the reasons set out in the report to
the MPT;
d)
The impact of the building massing: the developer
provided 3D rendering of what the massing of the building would be if
the permitted
floor area and height were used in comparison to an
unconsolidated situation. This indicates that the impact of the
proposal, in
its current form has a significantly lower impact on the
surrounding area, than if the erven were allowed to be developed
individually
within their primary rights. If the full primary rights
were to be exercised it would have a greater detrimental impact on
the
Bo-Kaap than the current proposal;
e)
The impact on surrounding properties: the impact
of the consolidation on the surrounding area is reduced when the
current proposal
is considered against the existing primary rights.
The development of the individual erven would allow for a greater
impact on
the surrounding area;
f)
There is limited urban grain on the eastern side
of Rose Street. The proposal will enhance the side of the street
given its articulation,
and thus have a positive influence to the
street and the surrounding area.
[97]
In view of the above-mentioned reasons, the City’s approval
decision cannot be regarded as irrational and or unreasonable
in
these circumstances.
The
“latest of the developments” approved by the City
[98]
The second contention was the impermissibility to make comparisons
that another similar building, namely
117 on
Strand
, that was being erected a mere 150
metres away from the Developer’s property, in the strip of
commercial properties between
the eastern and northern sides of the
Bo-Kaap.
It is situated
between Rose, Strand, Chiappini and Castle Streets, adjacent to the
Bo-Kaap. It is a 17 storey building, comprising
117 apartments, with
underground parking, 5 200m
2
of retail outlets and 6 600m
2
of office space. It also covers an
entire block. It appears on the papers filed of record that the bulk
and height of the building
is similar to the development on the
Developer’s properties. Moreover,
117
on Strand
is also
staggered away from the Bo-Kaap. Several departures were required for
it, including a height departure of 60m in lieu of
38m on the side
that does not fall within the CBD overlay zone and floor factor
departures. These departures were not required
in the current
instance.
[99]
The Applicants contended that the
comparison between the buildings constituted a “
new
reason
” which was included for the
first time in the answering affidavit. According to the Respondents,
the issue of the height
of neighbouring buildings was pertinently
raised in the founding papers, and the City was therefor allowed to
deal with this in
its answering papers and according to the
Respondents,
117 on Strand
was specifically mentioned to demonstrate that there is serious doubt
with the Respondents if the application was genuinely brought
by the
Applicants in the public interest. On the papers filed of record, I
cannot fault the Respondents for making the comparisons
with the
other buildings in the near vicinity of the proposed Development.
This cannot be regarded impermissible.
The
City’s “acute awareness“ of the significance of the
heritage resources in the area:
[100]
The contention was that even if the City was “
acutely aware
”
of the significance of the heritage resources in the area, it failed
to have regard to the impact of the development on
the heritage
resources.  This complaint is without merit. The City identified
the nearby heritage resources and pertinently
had regard to the
impact of the development on those resources and how the proposal
addressed this.  The City had regard to
the correct factors but
the weighing of the factors and the outcome thereof were different to
what the Applicants contended.
The
erroneous contention that the initial comments of the EHM were
accommodated in subsequent designs:
[101]
The complaint was the City wrongly stressed, in the answering
affidavit, that the Developer implemented the initial comments
of the
EHM because the latter suggested that an appropriate edge and
interface with the Bo-Kaap should be two storeys.  Ultimately

three storeys were approved.  It is clear on the papers filed
that the City was fully aware that the Rose Street interface
would be
three storeys high. The City’s affidavit records that setbacks
were introduced above the second floor and is this
not an issue that
warrants interference on review.
The
City sought further comments from its EMH Department:
[102]
According to the Applicants the City disregarded the further comment
from the EHM in its entirety.  It appears that this
claim was
not raised in the founding papers, but having said that, the report
to the MPT states that EHM is not supportive of the
current proposal
and refers to all three comments which are annexed as annexure “K”
to the report.  The comments
are summarised by stating that EHM
believes that the “
surrounding heritage resources will be
impacted on in a negative manner to a certain degree by the proposed
development due to the
design’s sheer size, height and
magnitude
” and that “
These issues are expanded
upon in the heritage paragraphs
”. The abovementioned shows
that the further comment was pertinently considered. Furthermore, the
Mayor specifically referred
to the EHM comment but, based on all the
reports and comments before her, she agreed with the MPT and the MAP
that the proposed
development responds appropriately to the
neighbouring buildings and the environment.
The
Developer’s alleged significant change of design to accommodate
the concerns of the objectors and reduce the scale of
the proposal:
[103]
According to the Applicants the City made a material mistake of fact
by concluding that the Developer significantly changed
the design to
accommodate the concerns of the objectors and reduced the scale of
the proposal.  The argument was advanced
that the scale was not
reduced.  This claim was not mentioned in the founding papers
but the City explained, in detail what
was meant with the changes in
design to accommodate the concerns.
[104]
On the papers filed of record, the design was significantly changed.
The differences between the initial and revised
development plans
included reducing the height of that part of the building immediately
adjacent to Rose Street from five to three
storeys; the building was
reduced in size and set back to remove building line departures after
the 14th storey; changes were made
to the articulation, balconies,
unit sizes, canopies and to the Rose Street façade. The
building envelope zoning scheme
floor area was also reduced.
The
Developer’s so-called comprehensive response to the objections:
[105]
The Applicants’ avers that the City wrongly claims that the
developer comprehensively responded to the objections.
The
statement criticised was made by the deponent to the City’s
answering affidavit whilst describing the background. This
is, with
respect, a peculiar complaint on which to base a review ground. I
agree with the Respondents’ contention that it
was an
introductory comment descriptive of the Developer’s response.
This ground is devoid of any merit.
The
City’s reasons for the impugned approvals:
[106]
According to the Applicant, the City’s reasons in this matter
were far from intelligible or informative or addressing
the principal
important controversial issues. In fact, it was argued that reasons
were confusing and contradictory. The approach
for assessing the
adequacy of reasons was formulated as follows in
Koyabe
v Minister for Home Affairs (Lawyers for Human Rights as Amicus
Curiae
),
[15]
where the following was stated:
“
Although the
reasons must be sufficient, they need not be specified in minute
detail, nor is it necessary to show how every relevant
fact weighed
in the ultimate finding. What constitutes adequate reasons will
therefore vary, depending on the circumstances of
the particular
case. Ordinarily, reasons will be adequate if a complainant can make
out a reasonably substantial case for a ministerial
review or an
appeal.
In Maimela, the
factors to be taken into account to determine the adequacy of reasons
were succinctly and helpfully summarised as
guidelines, which include
–
'the factual context
of the administrative action, the nature and complexity of the
action, the nature of the proceedings leading
up to the action and
the nature of the functionary taking the action. Depending on the
circumstances, the reasons need not always
be ''full written
reasons''; the ''briefest pro forma reasons may suffice''. Whether
brief or lengthy, reasons must, if they are
read in their factual
context, be intelligible and informative. They must be informative in
the sense that they convey why the
decision-maker thinks (or
collectively think) that the administrative action is justified.'
The purpose for which
reasons are intended, the stage at which these reasons are given, and
what further remedies are available
to contest the administrative
decision are also important factors. The list, which is not a closed
one, will hinge on the facts
and circumstances of each case and the
test for the adequacy of reasons must be an objective one.”
[107]
Having regard to the reasons provided by the decision-makers in this
matter, I am satisfied that in the circumstances of this
case
adequate reasons were furnished as the Applicants had made out a
reasonably substantive application on review.
Whether
the MPT and the Mayor acted in the belief that heritage
considerations in the HPOZ cannot trump development rights:
[108]
The Applicants’ view on this point was that the HPOZ approval
can be used to limit the Developer’s base rights.
The
Developer’s position is that it cannot. The review grounds
advanced in the founding papers was that the City adopted
the
Developer’s position on this question and so laboured under a
material mistake of law and or fact. In the Applicants’
written
submissions this contention was advanced on the basis that the City
approached the matter on the belief that existing development
rights
trump heritage considerations and that these base rights may not be
compromised even if consent is required for activities
in an HPOZ.
[109]
The Respondents view that the Applicants are wrong on this issue is
correct. Firstly, the “Base rights v HPOZ”
issue simply
did not feature in the reasoning of the MPT and the Mayor. Moreover,
the City did not adopt the Developer’s
position on this issue.
Heydenrych’s position was that the City was not empowered to
limit the Developer’s development
rights in respect of those
parts of the building which were outside of the HPOZ. Terblanche
considered that it was possible to
limit the Developer’s base
rights by imposing conditions and that the existence of base rights
could not be the sole reason
for granting the City’s approval
under the general provisions of the HPOZ. He also pointed out that
the legal opinion procured
by the developer on this issue was not one
of the reasons for the MPT’s decision and was in fact not seen
by it. The Mayor’s
position appears from her affidavit in this
case where the following was recorded:
‘
Finally, it
should be apparent from the appeals process and record that I did not
decide the appeals on the basis that the City
is not entitled to
limit primary rights conferred by the development management scheme
when considering an application for development
falling within a
heritage protection overlay zone. My belief was, and remains, that it
was not necessary to do so because the proposed
development accords
appropriately to surrounds and that sufficient mitigating measures
and conditions were put in place to address
heritage concerns
raised.’
[16]
[110]
The City’s position was not that it could not limit the
Developer’s base rights, but that it did not need to in
light
of the voluntary sacrifice of 4000m² of base rights by the
Developer. No error of law was committed and the decision-makers

properly applied their minds in the exercise of their discretion.
The
City’s reliance on the fact that the bulk of the building was
shifted away from the Bo-Kaap to Buitengracht:
[111]
According to the Applicants’, it was wrong to shift the
bulk of the building to the HPOZ side of the site.
The
Applicants’ main concern is for impact on the Bo-Kaap.
The developer addressed this concern by shifting the bulk
to the
Buitengracht Street side of the consolidated property which can cope
with the height and bulk, even though it falls within
an HPOZ.
Tall and bulky buildings are not impermissible in an HPOZ.  It
depends on the surrounding context.  The
entire CBD appears to
falls within the Central City HPO.
[112]
Ultimately none of the contentions dealt with above, viewed
individually or collectively, justifies intervention on the basis

that the decisions of the MPT and or the Mayor were so unreasonable
that no reasonable person could have so exercised the power
or
performed the function (sections 6(2)(h) of PAJA
[17]
),
let alone a finding of irrationality.
Further
manifestations of unreasonableness:
[113]
The complaint here is that the Developer’s building will be out
of keeping with the surrounding area and in particular
the Bo-Kaap.
On a proper consideration of all the relevant photographs on Record
and the 3D GIS Analysis undertaken by the City
and provided on a
flashdrive, the Applicants’ complaint does not bear scrutiny
.
The conclusion of the MPT and Mayor that the
building would not be out of keeping with its surrounds cannot be
regarded as so unreasonable
that no reasonable person could have
reached that conclusion.
[114]
In my view the MPT’s and Mayor’s decisions were
rationally connected to the purpose for which they were taken;
the
purpose of the empowering provision; the information before them; and
the reasons given for them. No good ground and reason
exist for
interfering with their decisions.
Visual
Impact Assessment (VIA):
[115]
It was the contention by the Applicants that it matters not that the
application did not trigger the need for a VIA in law.
They
contend that the issues of height and impact were of such importance
that the VIA should have been obtained under DMS 164(1),
which
allows the City to require from an applicant “
whatever
information it deems necessary to enable an informed decision to be
made regarding the application
”.
[116]
This challenge is unfounded.  The regulatory scheme deals
specifically with the issue of when a VIA is required.
If an
application requires a height departure, a VIA is required in terms
of the Tall Buildings Policy.  In other instances,
where the
statutory and policy documents are silent, the City’s has a
wide discretion to determine whether there is a need
for an applicant
to submit a VIA. The question ultimately is whether the City was in a
position to assess the impact of the building
properly with the
material it had at its disposal. In this instance the MPT and Mayor
had the following material before them: 30
pages of site development
plans, including six elevation drawings showing the size of the
building; an Urban Design Report containing
17 different diagrams and
photographs of the proposed building; an architect’s report
with 28 different diagrams and photographs
of the proposed building;
the first objection of the Third Applicant with 13 different diagrams
and photographs of the building;
the second objection of the Third
Applicant with a photomontage using Google Earth and Sketch Up
prepared by Rick Brown Architects;
the Developer’s response to
objections including shadow studies; and 7 further photographs of the
building. In my view bulk
of the material was more than sufficient to
enable the City to assess the impact of the building properly.
Traffic
Impact
[117]
The Applicants’ complaint is that the City failed to have due
regard to the proposal’s impact on traffic. The
MPT and the
Mayor had regard to the 30-page Kantey & Templer Traffic Impact
Assessment. The applicants have sought to rely
on a “Technical
Review” of the Kantey & Templer TIA, by Pillay of Sigma Six
Engineering Advisory Services (Pty)
Ltd almost two years after having
received the Kantey & Templer TIA, and well after the answering
papers were delivered by
the Respondents. According to the
Applicants’ Technical Review report the development would have
a grave and serious impact
on traffic which was not properly assessed
in the TIA and which was not properly considered by the
decision-makers. Accordingly,
it was argued that the decision-makers
acted unreasonably to have concluded that the Development would have
a manageable traffic
and parking impact.
[118]
The challenge by the Applicants on this point is without merit.
Traffic in the inner city is congested at many places
in peak hours
but this cannot possibly mean that the whole enterprise of providing
retail and residential opportunities for the
city centre must now be
abandoned. The TIA recommendations include a traffic management plan
accommodating pedestrians, cycles,
speeding etc; that the access on
Shortmarket Street have to be a maximum width of 8m; that on-site
parking be provided by the developer
in accordance with the city’s
minimum off-street parking requirements subject to the satisfaction
of TCT:TIA & Dev Control;
and that the conditions of the
Provincial Administration: Western Cape (Department of Transport and
Public Works) be adhered to.
It is also a condition of the
MPT’s approval that these
recommendations
be implemented at the cost of the Developer, to the satisfaction of
the Commissioner: TCT.
[119]
In my view, the traffic impact by the development were adequately
taken into account by the decision-makers and there is no
good reason
to interfere with it, despite the views expressed in the Pillay
report.
The
City’s Policies
[120]
The Applicants complain that the City failed to regard, or properly
regard, its policies when granting the Developer’s

applications. Policy is not legislation, it is but a guide to
decision-making which does not bind the decision-maker inflexibly.

Regarding the policies on the papers filed of record I am satisfied
that the decision-maker gave due consideration to the substance
of
those policies and engaged with it in its decision making where
necessary.
[121]
In respect of the Table Bay District Plan (‘TBDP’) the
Applicants seek to rely on the “Environmental Management

Priorities” table. However, as suggested by the Respondents
that table does not appear in section 4 or 6.2. of the TBDP which
are
the only sections meant to guide decision-making.
[122]
What is found in those sections is that Buitengracht Street is a
‘development route,’ that is earmarked for ‘mixed

use intensification’ and falls within a metropolitan urban
node, all of which provide support for the Developer’s
proposal. Whilst Buitengracht Street is also designated as a ‘scenic
drive’, there are no views from Buitengracht Street
which would
be affected by the building.
[123]
The Tall Building Policy is not of direct relevance in this
application because the Developer did not seek a departure from
the
height provisions of the DMS. It was nevertheless used as a guide. Mr
Heydenrych’s report to the MPT concluded that the
development
was in keeping with the TBP because: the building will be divided
into three parts (base, middle and top); the building
seeks to frame
Heritage Square and limit any imposition on Bo-Kaap; the main face /
orientation of the building is towards the
CBD, with the building
parallel to the street activities; the building transitions in scale
and massing from the Buitengracht Street
side (middle and top) down
towards Bo-Kaap with the building setbacks and a local scale base
design; access is at the local scale
with pedestrian entrances on
three of the property’s four sides to the business components;
the design and massing of the
building attempts to take into account
the heritage landscape in the surrounding area; the building creates
an active public realm
at street and first floor levels; the design
of the building attempts to mimic the local vernacular along Rose
Street and provides
a modern articulated design along Buitengracht
Street; the building provides for weather protection on the street
level with canopies
along Buitengracht and Rose Streets; there are no
height or bulk departures required; the building will exceed the
height of the
surrounding buildings, but these erven also have
similar rights to build similar buildings on their properties.
[124]
The height of the building is also aligned with the CBD side of the
property, but away from the Bo-Kaap. A 60 metre height
for a limited
portion of the building is not out of kilter for the CBD where this
height is common for mid-range towers and accordingly
is contextually
appropriate.
[125] Regarding the Urban
Design Policy, the Developer’s application to the City was
accompanied by a comprehensive Urban
Design Report which addressed
the background to the application, the site and context, the key
policy informants and the urban
design indicators. Heydenrych
addressed urban design matters in some detail and concluded that the
proposal complied with the UDP
because: the development contributes
to an improved public realm with its active / business edges;
balconies and windows provide
overlooking and “eyes on the
street”; the street edge is defined with the building being
close / on the street boundary,
framing the public realm; the parking
is located within the building and not at the expense of the
streetscape; the façades
and articulation of the building
attempt to respect the heritage and cultural landscape, particularly
along Rose Street, with its
design mimicking the Bo-Kaap’s
architectural vernacular. Additionally, the massing and placement of
the building is away
from Bo-Kaap.
[126]
All of these relevant policies were clearly and properly considered
by the decision- makers and is there no good reason to
interfere
with.
The
Mayor’s site inspection:
[127]
The Mayor had visited the site on 12 December 2016, with her
technical advisor and principal legal advisor. The complaint
by the
Applicants’ in this regard was the Mayor’s visit to the
site without any of the objectors including the Developer,
was
procedurally unfair.  This complaint is without merit.
There
is nothing wrong with a decision maker, such as the Mayor, conducting
an inspection to familiarise herself with the site and
surrounding
area. In doing so she is not entertaining representations from any of
the parties. They were afforded their hearing
on appeal by way of
their written representations and oral representations to the MAP.
The
Declaratory Relief:
[128]
HWC has further advanced the argument that the proposed Development
triggered section 27(18) of the Heritage Act. If, this
argument holds
true then obviously the Development may not take place without the
necessary permit being issued. It was also contended
by HWC that the
relevant decisions of the various organs of the City ought to be
reviewed and set aside.
[129]
It is common cause that the proposed development does not fall within
a heritage site but it is in close proximity of Bo-Kaap
and Riebeeck
Square which are provincial heritage sites. In this regard section
27(18) of the Heritage Act provides as follows:
“
No
person may destroy, damage, deface excavate, alter, remove from its
original position, subdivide or change the planning status
of any
heritage site without a permit issued by the heritage resources
authority responsible for the protection of the site.”
The
Heritage Act also provides for a penal provision,
[18]
in that any person who contravenes section 27(18) is guilty of an
offence and liable to a fine or imprisonment not exceeding five
(5)
years or both such fine and imprisonment as set out in item 1 of the
Schedule.
[130]
The nub of the dispute on this issue relates to whether section
27(18) should be interpreted as, HWC contends, that a permit
is
required for a proposed development on a site, other than a heritage
site, where such proposed development may or will cause
damage or
alter, a heritage site and whether the City failed to give effect to
section 24 (b) of the Constitution.
[19]
[131]
All of this gives rise to two fundamental questions. The first is a
legal question and that is whether a development on a
site, other
than a heritage site, can trigger section 27(18). If so, the second
is a factual question and that is whether the heritage
sites, as in
this instance, Bo-Kaap and Riebeeck Square, which in close proximity,
will as a matter of fact be damaged or altered
by the proposed
development. If section 27(18) only applies to a particular heritage
site, then it follows, the factual question
and the referring to oral
evidence any factual dispute that may arise whether the proposed
development will cause damage or alter
the heritage sites, falls
away.
[132]
The interpretation of section 27(18) and its setting within the
scheme of the Heritage Act, requires a careful consideration
having
regard of the rights as embodied within the Constitution.
[134]
Our higher Courts in recent times have repeatedly stated that when it
comes to the interpretation of statutes, the fundamental
rule is that
the
words
in a statute must be given their ordinary grammatical meaning, unless
to do so would result in an absurdity.  There are
three
interrelated riders: the provisions should be interpreted
purposively; the provision must be property contextualised and

statutes must be construed consistently with the Constitution so that
where reasonably possible the provisions should be interpreted
to
preserve their constitutional validity.
[20]
It is also well recognised that it is wrong to ignore the clear
language of a statute under the guise of adopting a purposive

interpretation, as doing so would be straying into the domain of the
legislature.
[21]
[135]
In terms of section 1 of the Heritage Act, a heritage site is defined
as “a place declared to be a national or provincial
heritage
site by SAHRA or a provincial heritage resources authority”.
Chapter II of the Act covers sections 27-47, which
deal with the
Protection and Management of Heritage Resources. Part I of Chapter II
covers sections 27-32 which are concerned with
‘
Formal
Protections’.
Part 2 and 3 of Chapter
II, sections 33-38, concerns ‘
General
Protections’
and sections 39- 47,
‘
Management’
.
[136]
Section 27, in the scheme of the Heritage Act, is clearly concerned
with the formal protection of National and Provincial
heritage sites.
SAHRA and a provincial heritage resources authority, under sections
27(1) and (2), may investigate the desirability
of the declaration as
a heritage site of those places with qualities so exceptional that
they are of special national significance
in terms of the prescribed
heritage assessment criteria or those places which have special
qualities which make them significant
in the context of the province
or a region in terms of the prescribed heritage assessment criteria.
In terms of sections 27(5)
and (6) only such places may be declared
to be a heritage site.
[137]
The permit contemplated by section 27(18) is required for an act
which may ‘
destroy, damage, deface,
excavate, alter, remove from its original position, subdivide or
change the planning status of any heritage
site
’.
Of the eight activities listed above, six of them on a plain reading
cannot be undertaken other than on the topographical
boundaries of
the heritage site. It is however hypothetically possible to give
damage
or
alter
a considerably extended meaning, as HWC seeks
to do, but to do so would effectively mean that any activity that
detracts or harms
the heritage significance, be it on or off the
heritage site, can damage the heritage significance of the site.
[138]
The interpretation HWC contends for is in my view unsustainable for
the following reasons. First, such an interpretation will
render much
of the subsection redundant, in that
damage
or
alter
in its extended
meaning could cover virtually everything. Second, it would be
impossible to demarcate what kind of activity a person
is dealing
with as the only criterion would be some abstruse concept of damage
or harm to the heritage significance of the affected
heritage site.
Such an approach would definitely create uncertainty and ambiguity,
as such activity in question, whatever
it may be and wherever it may
be taking place, will be a question that in many instances will have
no ready answer.  The fact
that in the present matter HWC seeks
a referral to oral evidence of what it terms the factual question of
whether there is or is
not damage in the present case, illustrates
the difficulty in this regard. It is inevitable that in very many
cases there will
be different views as to whether a development (or
some other activity) would affect a heritage site in the vicinity.
A developer
and a heritage resources authority would often disagree,
as in the present case.  If the interpretation HWC maintain
should
prevail then it would mean that in every case where such an
issue arises, a court would need to adjudicate the dispute.
This
could never have been what Parliament intended.
[139]
Thirdly, the legislature had deemed it appropriate to provide for a
mechanism in the Heritage Act to protect heritage sites
from
development(s) in area(s) that surround it. Section 28 of the
Heritage Act provides as follows:
‘
28 Protected
areas
(1) SAHRA may, with
the consent of the owner of an area, by notice in the Gazette
designate as a protected area-
(a) such area of land
surrounding a national heritage site
as is reasonably
necessary to ensure the protection and reasonable enjoyment of such
site, or to protect the view of and from such
site; or
...
(2) A provincial
heritage resources authority may, with the consent of the owner of an
area, by notice in the Provincial Gazette
designate as a protected
area-
(a) such area of land
surrounding a provincial heritage site
as is reasonably
necessary to ensure the protection and reasonable enjoyment of such
site, or to protect the view of and from such
site; or
(b) such area of land
surrounding any archaeological or palaeontological site or meteorite
as is reasonably necessary to ensure
its protection.
(3) No person may
damage, disfigure, alter, subdivide or in any other way develop any
part of a protected area unless, at least
60 days prior to the
initiation of such changes, he or she has consulted the heritage
resources authority which designated such
area in accordance with a
procedure prescribed by that authority.’
(my
underlining)
[140]
The argument by HWC’s that section 28 is ineffective because
the designation as a protected area depends on the owner
of the
land’s consent is unpersuasive. In the scheme of the Act, the
legislator has clearly enacted section 28 to regulate
conduct in
areas that surround heritage sites where it may be necessary to
ensure the protection of the site. Certain safeguards
and limitations
have also been built into section 28. Furthermore, in terms of
section 27(8), the owner of land may object to the
declaration of his
or her property as a heritage place. Section 27(11) contemplates
consultation with the owner in that event.
An owner dissatisfied with
a declaration made by a heritage authority may appeal the decision.
On a proper reading of these sections
and section 28, the legislature
had deemed it appropriate to build in certain procedural safeguards
regarding the rights of owner(s)
of property surrounding a protected
area.  In the absence of these procedural safeguards for owners
of property surrounding
a protected site, the legislature in my view
never intended that section 27(18) should apply to land surrounding a
heritage site.
[141]
Fourthly, without a permit, the activities described in section
27(18) constitute an offence in terms of section 51(1)(a)
and carry a
penalty of a fine or imprisonment not exceeding five years’ or
both. This means that section 27(18) must be interpreted
so that
there is no uncertainty in its meaning, against the risk of being
penalised.  A strict construction of the subsection
is therefore
called which in the circumstances of this matter does not favour the
interpretation advanced by HWC. The dictum in
DA
v ANC
[22]
by the Constitutional Court is apposite:
‘
[T]he
restrictive interpretation of penal provisions is a long-standing
principle in our law. Beneath it lies considerations springing
from
the rule of law. The subject must know clearly and certainly when he
or she is subject to penalty by the state. If there is
any
uncertainty about the ambit of a penalty provision, it must be
resolved in favour of liberty.
[T]his Court has
endorsed this approach. And indeed, the Bill of Rights gives these
considerations added force. It posits the rule
of law as a founding
value of our constitutional democracy. It entrenches the common law’s
protections against arbitrary
deprivation of liberty and
imprisonment. The common-law presumption in favour of interpreting
penalty provisions restrictively
therefore applies with added force
under the Constitution.’
[142]
Lastly, owners of property surrounding a provincial heritage site
could be arbitrarily deprived of rights in their property,
if HWC’s
construction of section 27(18) was to be preferred. This
certainly would be contrary to section 25(1)
of the
Constitution.
[23]
A
deprivation of property is arbitrary if it is procedurally unfair,
which would be the case if ownership rights are removed without
a
hearing.
[24]
It would seem
that on HWC’s approach, section 27(18) limits the
development rights of land surrounding a provincial
heritage site
without the owner having been given a hearing or even been notified
of that limitation. Such an interpretation could
render
section 27(18) constitutionally unsound.  The alternative
interpretation of section 27(18) is to be preferred,
the
Heritage Act does not require a permit for the development of a place
that is not itself a heritage site, as it is reasonable
and
constitutionally-compliant.  The
Gees
[25]
matter on which HWC relied, is distinguishable from the present
instance. In
Gees
,
the Supreme Court of Appeal held that it is not an arbitrary
deprivation to attach development-constraining conditions to a
section
34(1) demolition permit where the conditions protect heritage
resources surrounding the building to be demolished. In
Gees
,
there was no dispute that a permit was required under the Heritage
Act. The Act itself authorised the conditions. In
Gees
,
the owner had a hearing and consequently there was no question of
procedural unfairness.
[143]
For these stated reasons, the declaratory order sought by HWC falls
to be dismissed.  In view of the abovementioned reasons,
the
further points that were raised by the Respondents as to whether the
HWC was
functus officio
after
it informed the Developer that its proposed development does not
require a permit in terms of section 27(18) and whether the
dispute
between the City and the HWC was an intergovernmental dispute as
defined in the Intergovernmental Framework Act, 13 of
2005, have
become redundant.
It
also needs to be mentioned that on the papers filed of record, it is
common cause that HWC, in its submission to the City adopted
the
position the development does not trigger listed activities in terms
of section 38(1) of the Heritage Act nor does it require
a permit in
terms of section 27(18) of the said Act.  To this end, the HWC
regarded itself as a commenting body and not an
approving body.
HWC
reliance on section 24 of the Constitution as a review ground:
[144]
It was also the case of HWC that the City was obliged to give effect
to section 24 of the Constitution in its decision-making.
[26]
According to HWC’s founding papers it was contended that the
‘
impugned
decisions impact on and limit the s 24(b) right’
.
In this instance, HWC seeks to advance the argument that the heritage
resources forms part of the surrounding environment within
which
humans exist and is protected by section 24(b) of the Constitution.
The City’s decision-makers, so the argument goes,
could not
have made a proper decision regarding the proposed development as it
failed to recognise that a constitutional right
was affected by its
decision and as a result failed to comply with its constitutional
obligation.
[145]
The argument by HWC is unpersuasive.  It is common cause that
the City’s record made no reference to the constitutional
right
of the environment as envisage in section 24(b) of the Constitution,
but such failure does not automatically invalidate the
decision taken
by the City. It is now well accepted in our law that there is no
principle of general application that a decision
by an administrative
authority must be set aside purely on the formal basis that the
authority did not expressly or deliberately
weigh up the conflicting
interests as it was required to do.
[27]
Moreover, each case must be decided upon its own facts.
[146]
On a reading of the record, the argument advance by the Respondents
is far more plausible. The record contains reference to
impact on the
safety, health and well-being of the surrounding community; the
impact on the biophysical environment and to heritage
issues. All of
these criteria are contained in section 99(3) of the MPBL which were
in fact considered by the City in deciding
the application for the
approvals.  In that regard the MPBL certainly gives effect to
section 24 of the Constitution.
[147]
Moreover, the principle of subsidiarity, a well-established doctrine
within our courts jurisprudence, had been recognised
by all the
parties. According to the said principle, a litigant is precluded
from relying directly on a constitutional right where
legislation has
been enacted to give effect to it. In this regard, the HWC’s
conduct suggests that it considered the MPBL
to give effect to
section 24(b) as it failed to mention or to refer to the
constitutional right as envisage in its comments on
the proposed
development. As one of the appellant’s in the appeal process,
it also failed to raise this point as a ground
of appeal. The HWC’s
challenge on this point is therefore unsustainable and can safely be
rejected.
[148]
For all these stated reasons, it follows that the Applicants’
applications cannot succeed and should be dismissed.
Costs:
[149]
There is no reason why the usual position relating costs in review
matters should not apply. The rule that in constitutional
matters,
the unsuccessful party is ordinarily not ordered to pay costs, does
not apply in this instance.
[150]
In the result, the following order is made:
1). The Review
application and the Fourth Applicant’s application for a
Declaratory order are dismissed with costs. The Applicants
to pay the
Respondents costs jointly and severally, the one to pay the other to
be absolved. Such costs to include the costs of
two counsel.
_____________
LE
GRANGE, J
[1]
Act 25 of
1999.
[2]
Section 50 of the MPBL provides:
“
Consolidation
and construction of building.
(1) [A] person may not construct a
building or structure that straddles the boundaries of two or more
contiguous land units unless
the owners of the contiguous land units
have either taken legal steps to the City Manager's satisfaction, to
ensure that such
land units cannot be separately sold, leased,
alienated or otherwise disposed of or the City has approved the
consolidation of
the land units.”
[3]
Item 162 of the DMS provides:
“
General provisions: Heritage
Protection Overlay Zoning
(1) Unless exempted, the following
activities affecting a place or an area protected as a Heritage
Protection Overlay Zone require
the approval of the City:
(a) any alteration, including any
action affecting the structure, appearance or physical properties of
a heritage place, whether
by structural or other works, by painting,
plastering or other decoration or any other means;
(b) any development, including any
physical intervention, excavation or action other than those caused
by natural forces, which
may in any way result in a change to the
appearance or physical nature of a heritage place, or influence its
stability and future
well-being, including –
(i) construction, alteration,
demolition, removal or change of use of a heritage place or a
structure at a heritage place;
(ii) carrying out any works on or
over or under a heritage place;
(iii) subdivision or consolidation of
land comprising a heritage place, including the structures or
airspace of a heritage place;
(iv) any change to the natural or
existing condition or topography of land; and
(v) any permanent removal or
destruction of trees, removal of vegetation or topsoil;
(c) addition of any new structure;
(d) partial demolition of a
structure;
(e) alteration to or removal of any
historical landscape or any landscape feature, including boundary
hedges and mature plantings;
or addition or removal of or alteration
to hard landscaping surfaces, street furniture or signage;
(f) below ground excavation.”
[4]
Item 64(e)
of the DMS provides:
“
Development
rules
(a) – (d)
…
(e) Parking and
access
(i) …
(ii) In order to enhance the amenity
of the street level, no parking bays shall be located closer than
10m to the street boundary
at ground level on the land unit either
outside or within the building, without the approval of the City.”
[5]
Item 121(2)
of the DMS provides:
“
Encroachment
of building lines
(1) …
(2) A building
line of 5 m shall apply to any boundary adjacent to a designated
metropolitan road, unless otherwise agreed by
the City and to which
subitem (1) (a) (i) is also applicable.”
[6]
Section 99
provided as follows:
“
Criteria
for deciding application
(1) An application must be refused if
the decision-maker is satisfied that it fails to comply with the
following minimum threshold
requirements –
(a) the
application must comply with the requirements of this By-law;
(b) the proposed land use must comply
with or be consistent with the spatial development framework, or if
not, a deviation from
the municipal spatial development framework
must be permissible;
(c) the proposed land use must be
desirable as contemplated in subsection (3); and
(d) ….
(2) If an application is not refused
under subsection (1), when deciding whether or not to approve the
application, the decision
maker must consider all relevant
considerations including, where relevant, the following –
(a) any applicable
spatial development framework;
(b) relevant
criteria contemplated in the development management scheme;
(c) any applicable
policy approved by the City to guide decision making;
(d) the extent of the desirability of
the proposed land use as contemplated in subsection (3);
(e) impact on existing rights (other
than the right to be protected against trade competition);
(f) in an application for the
consolidation of a land unit –
(i) the scale and
design of the development;
(ii) the impact of
the building massing;
(iii) the impact
on surrounding properties; and
(g) other considerations prescribed
in relevant national or provincial legislation.
(3) The following considerations are
relevant to the assessment under subsection (1)(c) of whether, under
subsection 2(d) of the
extent to which, the proposed land use would
be desirable -
(a) economic impact;
(b) social impact;
(c) scale of the capital investment;
(d) compatibility with surrounding
areas;
(e) impact in the external
engineering services;
(f) impact on the safety, health and
well-being of the surrounding community;
(g) impact on heritage;
(h) impact on the bio-physical
environment;
(i) traffic impacts, parking, access
and other transport related considerations; and
(j) whether the
imposition of conditions can mitigate an adverse impact of the
proposed land use.
[7]
Section 20 of the Municipal Planning Amendment By-law 2016 provides:
“
Amendment
of section 99 of the City of Cape Town: Municipal Planning By-law,
2015
Section
99 of the principal By-law is hereby amended by the substitution for
subsection 3 of the following subsection:
“
(3) The following
considerations are relevant to the assessment under subsection
(1)(c) of whether, and under subsection (2)(d)
of the extent to
which, the proposed land use would be desirable –
(a)
(economic impact)
socio-economic impact;
(b)
(social impact)
(c)
(scale of capital investment)
(where bold means deleted and
underlined means added)
[8]
This meeting was held before the Municipal Planning By-law came into
force on 29 June 2015. The practice of pre-submission meetings
has
now been codified in section 70 of the By-law.
[9]
The Civil Practice of the
High Courts of South Africa
(5
th
ed), Vol 2, at pp 1271-2.
[10]
MEC for Environmental
Affairs and Development Planning v Clairison’s CC
2013 (6) SA 235
(SCA) at paras [18-20]. See also
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 48.
[11]
See
Tellumat (Pty) Ltd v
Appeal Board of the Financial Services Board and Others
[2016] 1 All SA 704
(SCA) at para 42.
[12]
Pursuant to proclamations in Provincial Gazettes 7647 and 7769,
respectively.
[13]
Tickly
and Others v Johannes N.O. and Others
1963 (2) SA
588
(ECD) at 590F and following.
[14]
See
Workmen’s
Compensation Commissioner v Jooste
[1997] ZASCA 58
;
1997 (4) SA 418
(SCA) at 424 F-I and the cases referred therein.
[15]
2010 (4) SA 327
(CC) paras 63-4.
[16]
Record
2079:8.
[17]
Promotion of Administrative Justice Act 3 of 2000
.
[18]
Section
51(1)(a) of the Heritage Act.
[19]
Section 24
of the Constitution provides: “Everyone has the right-
(a) ..
(b) to have the environment
protected, for the benefit of present and future generations,
through legislative and other measures
that-
(i) prevent pollution and ecological
degradation;
(ii) promote conservation; and
(ii) secure ecologically sustainable
development and use of natural resources while promoting justifiable
economic and social
development.”
[20]
Cool
Ideas 1186 CC v Hubbard
2014 (4) SA
474
(CC) at para 28 and the cases referred to therein.
[21]
Smyth v Investec Bank Ltd
2018 (1) SA 494
(SCA) paras 45-7.
[22]
2015 (2) SA
232
(CC) at para 130-1.
[23]
Section
25(1) reads: ‘No one may be deprived of property except in
terms of law of general application, and no law may permit

arbitrarily deprivation of property.’
[24]
See
First
National Bank of SA Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA
768
(CC) at para 100 and
Reflect-All
1025 CC and Others v MEC for Public Transport Road and Works,
Gauteng Provincial Government
and Another
2009 (6) SA 391
(CC) at para 39.
[25]
Gees v Provincial Minister
of Cultural Affairs and Sport, Western Cape and Others
2017 (1) SA 1
(SCA) at paras 30-3.
[26]
Ibid.
[27]
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 706;
Hamata
v Chairperson, Peninsula Internal Disciplinary Committee
2000 (4) SA 621
(C) at para 39;
Young
Mining Shan CC v Chagan NO and Others
2015 (3) SA 227
(GJ) at para 67.