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[2013] ZASCA 13
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Lagoonbay Lifestyle Estate (Pty) Ltd v Minister for Local Government, Environmental Affairs and Development Planning of the Western Cape and Others (320/12) [2013] ZASCA 13 (15 March 2013)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 320/12
In
the matter between:
LAGOONBAY
LIFESTYLE ESTATE (PTY) LTD
................................
Appellant
and
THE
MINISTER FOR LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT
PLANNING
OF THE WESTERN CAPE
.................................
First
Respondent
THE
GEORGE MUNICIPALITY
........................................
Second
Respondent
CAPE
WINDLASS ENVIRONMENTAL ACTION
GROUP
AND 24 OTHERS
....................................................
Third
Respondent
Neutral
citation:
Lagoonbay Lifestyle Estate (Pty) Ltd v The Minister
for Local Government, Environmental Affairs and Development Planning
of the
Western Cape & others
(320/12)
[2013] ZASCA 13
(15
March 2013)
Bench:
NUGENT, PONNAN, TSHIQI and MAJIEDT JJA and
SALDULKER
AJA
Heard: 25 FEBRUARY 2013
Delivered: 15 MARCH 2013
Summary:
Land use – regulation of - regional structure plan and zoning
and subdivision – applications to amend.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
Western Cape High Court
(Cape Town) (Griesel J sitting as court of first instance):
1. The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel to be paid jointly
and
severally by the respondents.
2. The order of the court below dismissing the application with costs
is set aside and in its stead is substituted the following:
‘
(a) It is declared that the purported
decision by the first respondent dated 28 April 2011 refusing the
applicant's application
for rezoning and subdivision in respect of
the proposed Lagoonbay development is unlawful and is accordingly set
aside.
(b) It is declared that the second respondent is the competent
authority to consider and determine the applicant's application
for
rezoning and subdivision in respect of the proposed Lagoonbay
development and its decision to approve that application on 17
July
2010 is confirmed.
(c) The applicant’s application for the amendment of the George
and Environs Urban Structure Plan from agriculture/forestry
to
township development in respect of the farm Hoogekraal 238 is
remitted to the first respondent for reconsideration.
(d) The respondents are ordered to pay the costs of the application
jointly and severally such costs to include those of two counsel.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN
JA
(NUGENT,
PONNAN, TSHIQI and MAJIEDT JJA and SALDULKER AJA concurring):
[1] At the heart of the dispute in this matter is a proposed
development on the farm Hoogekraal 238, which is situated within the
George Municipality in the Southern Cape. The development, which is
being promoted by the appellant, the Lagoonbay Lifestyle Estate
(Pty)
Ltd (Lagoonbay), envisages a gated community spanning some 655
hectares. It includes: two 18-hole golf courses; 895 single
residential houses; 320 single and fractional title lodges; 150
single and fractional title apartments; a hotel, wellness centre,
spa
and clubhouse precinct; a commercial area; conference centre and
private nature reserve. It is by all accounts a fairly ambitious
and
expensive project - R5 billion is its projected cost.
[2] Given its vast scale as also the fact that the land on which the
proposed development is to be undertaken is zoned
‘agriculture/forestry’,
Lagoonbay had to secure approval
for the project in four different phases. The first related to an
amendment of the George and
Environs Urban Structure Plan (1982) (the
structure plan) in terms of s 4(7) of the Land Use and Planning
Ordinance 15 of 1985
(LUPO). The second - to an environmental impact
assessment process (EIA) in terms of the Environment Conservation Act
73 of 1989
(ECA) and the National Environmental Management Act 107 of
1998 (NEMA). The third - to the rezoning and subdivision of the
property
in terms of ss 16(1) and 25(1) of LUPO. And, the fourth and
final phase - to the approval of building plans under the National
Building Regulations and Building Standards Act 103 of 1977. For the
purposes of this appeal only the first and third phases are
relevant.
[3] On 17 July 2007 and in response to an application by Lagoonbay
for an amendment to the structure plan the then Minister for
Local
Government, Environmental Affairs and Development Planning of the
Western Cape (the Minister), Ms Tasneem Essop, wrote to
the municipal
manager of the George Municipality:
'1. The Competent Authority for
the administration of [LUPO] has decided that the application for the
amendment of the Urban Structure
Plan, from "Agriculture /
Forestry" to "Township Development", on the combined
properties known as Hoogekraal
238 in order to allow for a
development be approved in terms of section 4(7) [LUPO] subject to
the following conditions:
1.1. The applicant must
investigate the viability of alternative land-uses which should take
into account a triple-bottom line approach,
i.e. a principle that
must be considered in a balanced manner and within a regional
context.
1.2. The current development
proposal as it stands should not be regarded as approved. The details
of a possible development alternative
on the land in question as well
as the detail and extent should be resolved during the integrated
environment process and planning
processes.
1.3. The associated future
zoning application in respect of the land concerned shall be subject
to approval by the Provincial Government
as the location and impact
of the proposed development constitutes "Regional and Provincial
Planning."'.
[4] On 14 June 2010 the Council of the George Municipality adopted
the following resolution:
'
"That
the rezoning and subdivision of portion of Hoogekraal no. 238, George
(Lagoon Bay Lifestyle Estate) be approved subject
to the conclusion
of a detailed services agreement and as per the conditions laid down
by the administration."
. . .
In terms of condition 1.3 of the
letter of approval dated 17 July 2007 regarding the amendment of the
Regional Structure Plan received
from the Department of Environmental
Affairs and Development Planning, the rezoning application in respect
of the land concerned
is subject to approval by the Provincial
Government.'
[5] That decision was communicated to the current Minister, Mr Anton
Bredell, who after having considered the matter, wrote to
Lagoonbay
on 28 April 2011:
'1. Your application dated 4
August 2009, referred to me (in terms of condition 1.3 of the
approval of the George and Environs Urban
Structure Plan, from
"Agriculture/Forestry" to "Township Development",
dated 17 July 2007), by the George Municipality
on 14 July 2010,
refers.
2. I, as the Competent authority
for the administration of [LUPO], have decided that the applications
for:
2.1. the subdivision of Portions
. . . of the Farm Hoogekraal No. 238, George,
be refused
, in
terms of section 25 of [LUPO];
2.2. the rezoning of the
consolidated project site consisting of Portions . . . of Hoogekraal
. . . George, from "Agricultural
Zone 1" to "Subdivisional
Area" to allow the following land uses:
. . .
be refused
, in terms of
section 16 of [LUPO]; and
2.3. the subdivision of the
consolidated project site into . . .
be refused
, in terms of
section 25 of [LUPO].'
[6] Aggrieved by that decision of the Minister, Lagoonbay launched an
application in the Cape High Court. It cited the Minister
as the
first respondent, the George Municipality as the second and the Cape
Windlass Environmental Action Group, an environmental
organisation
committed to the protection of the environmental integrity of the
Garden Route (also known as the Cape Windlass) and
the rural
character of the high plateau between George and Mossel Bay, as the
third. To the extent here relevant the Notice of
Motion read:
'3. It is declared that the
decision by the First Respondent dated 28 April 2011, in terms of
which Applicant's application for
the rezoning and subdivision
relating to the proposed Lagoon Bay development, was refused, is
constitutionally unlawful and a nullity;
. . .
5. It is declared that the
decision taken by the Second Respondent on 17 July 2010, in terms of
which the Applicant's application
for the rezoning and subdivision in
respect of the proposed Lagoon Bay development, was approved, was a
decision taken by the correct
designated functionary and constitutes
the required approval under the Land Use Planning Ordinance, 15 of
1985, as read with the
Constitution.’
That application failed before Griesel J, who dismissed it with costs
including those of two counsel, but granted leave to Lagoonbay
to
appeal to this court.
[7] As Nugent JA observed in
Johannesburg Municipality v Gauteng
Development Tribunal & Others
2010 (2) SA 554
(SCA) para 15:
'The Constitution establishes
government at three levels. At national level, legislative authority
vests in Parliament and executive
authority vests in the President
(who exercises it together with other members of the Cabinet). At
provincial level, legislative
authority vests in the provincial
legislatures and executive authority vests in the provincial Premiers
(who exercise that authority
together with other members of the
executive councils). At local level, government comprises
municipalities, which must be established
for the whole of the
territory of the Republic, and the legislative and executive
authority of a municipality vests in its municipal
council.'
[8] What occupies our attention in this case is the interrelationship
between the second and third of those three spheres of government.
South Africa consists of wall-to-wall municipalities. Municipalities
make up regions. And regions, in turn, constitute provinces.
A use
right in relation to land is a right to utilise that land in
accordance with a category of directions setting out the purpose
for
which the land may be used. The authority to regulate the use of land
within a municipal area is conferred upon a municipality,
whilst the
authority to regulate the use of land within a particular region is a
provincial competence. Different considerations
will obviously weigh
with each in the exercise of those powers. Decisions as to the uses
that a municipality will allow will necessarily
be influenced by
local considerations including its capacity to provide the necessary
infrastructure and services within the constraints
of its budget
(
Johannesburg Municipality
para 9). Regional planning, on the
other hand, is informed by broader interests and objectives. In terms
of LUPO, the principal
tools for the regulation of land use is
through the introduction and enforcement of structure plans at a
regional level and zoning
schemes at a municipal level. The general
purpose of a structure plan is to lay down guidelines for the future
spatial development
of the area to which it relates in such a way as
will most effectively promote the order of the area and the general
welfare of
the community concerned (s 5). And the general purpose of
a zoning scheme is to determine use rights and to provide for control
over use rights and over the utilisation of the land in the area of
jurisdiction of a local authority (s 11). Thus while a comprehensive
land-use regime calls for integrated and coordinated interaction on
the part of provincial and municipal government, it goes without
saying that the one may not usurp the powers of the other.
[9] Here there is no attack on the structure plan. Nor on the
Minister’s powers to amend it. Lagoonbay’s case is that
the Minister’s decision constituted a final approval of its
application to amend the structure plan. I cannot agree. It seems
to
me that had the Minister not been satisfied with Lagoonbay’s
application, it would have been open to her to have refused
the
amendment. Instead she chose to defer her decision. I cannot
comprehend why she was not entitled to say: ‘I will not
amend
the structure plan until I know exactly what is envisaged’, or
‘I will let you have a provisional approval subject
to the
relevant officials in my department being satisfied as to what the
final development will look like’. For, I daresay,
she could
hardly have approved the amendment whilst being indifferent to what
the development would in due course look like. The
logical corollary
of that is that she reserved for herself the right to say no after
she had been apprised of the detail. It is
thus plain that, properly
construed, what the Minister did, did not amount to an unconditional
approval of Lagoonbay’s application.
[10] The Minister’s approval was subject to what I, for
convenience, shall refer to as three conditions. Those are set out
in
paragraphs 1.1 to 1.3 of her letter of 17 July 2007 to the George
Municipality. Only the third, which provides ‘the associated
future zoning application in respect of the land concerned shall be
subject to approval by the Provincial Government . . .’,
merits
consideration. Zoning, as I have endeavoured to illustrate, was a
municipal competence. The rezoning application was thus
a matter for
the George Municipality, not provincial government. It follows that
the Minister usurped for herself and her departmental
officials a
power that had been reserved for the George Municipality.
Accordingly, the condition upon which the Minister’s
approval
was dependent was incapable of fulfilment. And, in consequence, her
final decision, which had been deferred, has become
impossible of
performance. It follows that the structure plan remains unamended and
the application for its amendment falls to
be considered afresh by
the provincial authorities. The upshot of all of this is that the
development cannot go ahead until such
time as the Minister approves
the application to amend the structure plan.
[11] That leaves the rezoning application: The George Municipality
resolved to approve Lagoonbay’s rezoning and subdivision
application. That decision has not been assailed. The municipality
thereafter and in the erroneous belief that that application
was
subject to approval by the provincial government as per condition 1.3
of the Minister’s letter of approval, referred
it to the
present incumbent of that office, Mr Bredell, who, without an
appreciation that his predecessor had misconceived her
powers,
proceeded to deal with the matter. That he lacked the authority to
do, for it was a matter that was reserved for the administration
of
the municipality (
Johannesburg Municipality
para 30). It must
follow that his decision in that regard cannot stand and it
accordingly falls to be set aside.
[12] In the result the appeal succeeds and it is upheld with costs,
such costs to include those consequent upon the employment
of two
counsel to be paid jointly and severally by the respondents. The
order of the court below dismissing the application is
set aside and
in its stead is substituted the following:
‘
(a) It is declared that the purported
decision by the first respondent dated 28 April 2011 refusing the
applicant's application
for rezoning and subdivision in respect of
the proposed Lagoonbay development is unlawful and is accordingly set
aside.
(b) It is declared that the second respondent is the competent
authority to consider and determine the applicant's application
for
rezoning and subdivision in respect of the proposed Lagoonbay
development and its decision to approve that application on 17
July
2010 is confirmed.
(c) The applicant’s application for the amendment of the George
and Environs Urban Structure Plan from agriculture/forestry
to
township development in respect of the farm Hoogekraal 238 is
remitted to the first respondent for reconsideration.
(d) The respondents are ordered to pay the costs of the application
jointly and severally such costs to include those of two counsel.’
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: M C Maritz (with him H J de Waal)
Instructed
by:
Werksmans
Attorneys, Cape Townd
Phatsoane
Henney Attorneys, Bloemfontein
For
First Respondent: S Rosenberg SC (with him D Borgstrom)
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
Third Respondent: I D Potgieter (with him E v d Horst (Ms)
Instructed
by:
Chennels
Albertyn, Rondebosch
Honey
Attorneys Bloemfontein