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[2010] ZAWCHC 465
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CT Marina Property (Pty) Ltd and Others v Barmaran View CC and Others (11933/10) [2010] ZAWCHC 465 (10 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
Number: 11933/10
In
the
matter
between:
CT
Marina Property (Pty) Ltd
…...........................................
First
Applicant
John
Mountain Property CC
….......................................
Second
Applicant
136
Kloof Road Investments (Pty) Ltd
…...........................
Third
Applicant
and
Barmaran
View CC
….......................................................
First
Respondent
Vector
Construction CC
…..........................................
Second
Respondent
The
City of Cape Town
…................................................
Third
Respondent
REASONS
DELIVERED ON 10 SEPTEMBER 2010
[1]
On
21
July
2010,
I
granted the relief set out below and indicated that my reasons would
follow. These are my reasons.
THE
RELIEF GRANTED
[2]
The order provided as follows:
That
pending the determination of proceedings to review and set aside the
third respondent's purported approval of building plans
in respect
of the Erf 901, Bantry Bay at Cape Town, the first and second
respondents are interdicted and constrained from proceeding
with any
further building work or construction on the property.
That
the applicants must launch the further proceedings referred to in
2(a) above within 30 days calculated from the date of granting
the
order proposed in prayer 1, failing which this order shall
ipso
facto
lapse.
BACKGROUND
[3]
On 19 November 200& the City of Cape Town
(the
third respondent)
approved
building plans for the construction of a 3- storey double dwelling
with a top storey mezzanine level on the property situated
at Erf 901
Bantry Bay. also known as 138 Kloof Road, Bantry Bay in Cape Town
(the
property).
The
property is a consolidation of Erf 451 and a portion of Erf 55. The
first respondent is the owner of the property and it contracted
the
second respondent to build the dwelling.
[4]
The second respondent had begun construction and when these
proceedings commenced was about to cast the final slab that would
form the mezzanine level.
[5]
The property is situated on the seaward side of Erf 884. the property
of the first applicant, and Erf 891, the property of the
second
applicant. The property adjoins Erf 449, the property of the third
applicant.
The
applicants' version
[6]
John Mountain
(Mountain),
first
applicant's director, attested to the founding papers and said that
in 2007, he had instructed architects to investigate the
impact of
the proposed development on the property. In the course of the
investigation, the architect prepared a photomontage of
the area
depicting the proposed new building. He concluded that the impact of
the new building on the view from first applicant's
dwelling would be
unreasonably affected by the construction.
[7]
On 3 December 2007, Tommy Brummer
(Brummer),
a
town planner and regional planner, lodged an objection to the
proposed plans with the third respondent on behalf of the applicants.
On 20 March 2008, the third respondent informed Brummer that the
application for subdivision and departures in respect of the property
had been withdrawn.
[8]
However, soon afterwards, the original dwelling on the property was
demolished. Mountain again contracted Brummer to investigate
whether
the third respondent had approved any plans and to comment on them.
Mountain said that:
"Brummer
was able to view the approved plans. Although he was unable to obtain
a copy thereof but was able to trace the plans."
[9]
According to Mountain, the approved plan traced by Brummer depicted
the new building superimposed upon the original dwelling.
This
allowed the applicants to understand the height of the new dwelling
in relation to that of the original dwelling. He said
that the
original dwelling was depicted on the approved plan as a dotted line
and that the highest point of the original dwelling
was the ridge of
the roof that appeared to be the same height as the proposed level of
the mezzanine storey of the new dwelling.
[10)
The building consisted of a ground storey below the level of Kloof
Road, a first storey at the level of Kloof Road and 2
double garage
front doors, and a second storey with a mezzanine level.
[11]
Influenced by the dotted line, Brummer was satisfied that the
proposed building was no higher than that of the original dwelling
excepting the mezzanine level. He was further satisfied that the new
plans resolved the difficulties he had in respect of the
2007 plans.
[12]
In June 2010, Mountain saw that the construction of the new dwelling
protruded above Kloof Road. Bantry Bay. He noticed that
the height
of the 'column boxes' on the first floor/garage storey were higher
than he had expected. Mountain realised that the
completed structure
would be significantly higher than originally anticipated.
[13]
This sparked a new investigation. Brummer learned that the dotted
line had not been drawn to scale and that the structure
being
erected was 2.55 metres higher than originally anticipated. Mountain
said that the dotted line had misled the applicants
and. possibly
also, the third respondent.
[14]
The applicants therefore intended to launch an application for the
review of the approval granted to the first respondent.
The
applicants sought the relief referred to above pending the
finalisation of the intended review proceedings.
[15]
The applicants alleged that they would suffer irreparable harm if
the first and second respondents were allowed to complete
the
building works. I deal in more detail with that allegation below.
The
first respondent's version
[16]
The second and third respondents have not opposed the application;
they abide by the court's decision.
[17]
Harry Singer
(Singer)
attested
to the first respondent's answering affidavit and said that the
first respondent was in the process of constructing a
dwelling in
accordance with plans approved by the third respondent.
[18]
Singer said that the 2007 plans included a building with an average
mean sea level height of 75 metres. The first applicant
abandoned
those plans after receipt of objections and in June 2008 submitted
new plans to the third respondent in respect of
the current project.
In October 2008, Brummer. representing the applicants, objected to
the new plans. Singer deduced from the
objection that Brummer had
intimate knowledge of the planned structure and the proposed height.
[19]
The third respondent nevertheless approved the plans on 19 November
2008 and construction began on 28 October 2009. On 18
June 2010,
Brummer complained on behalf of the applicants that the various
levels had not been built in accordance with the mean
height above
sea level set out in the plans. He was wrong.
[20]
Once Brummer realised his error, he alleged that he had been misled
as to the height of the building by the dotted line.
Singer denied
that the new building would in any way impact on the sea view from
Erf 449, owned by the third applicant.
[21]
About the dotted line Singer said the following:
The
dotted line outline was placed on the plan merely to indicate the
previous and general position of the original dwelling.
It was in no
way meant to be a reflection of the relative heights of the old and
new dwellings. This is borne out by the fact
that no heights have
been provided for the old dwelling.
[22]
Singer said that the applicants have remained "supine" for
a period of more than 8 months. That is from November
2009 when
Brummer viewed and traced the building plans until construction work
was at a point in June 2010 when the second respondent
"was
making ready to cast the final concrete slab which would form the
base of the approved mezzanine level".
[23]
Singer further alleged that even had Brummer been misled, the
construction complied with the relevant zoning regulation and
therefore no objection would succeed. The first respondent was
entitled to build to a height of approximately 15 metres above
Kloof
Road. In an exercise of caution, it had lowered the various slabs on
the plan by approximately half a metre.
[24]
Singer also said the second respondent had employed approximately 50
labourers who would be adversely affected should the
project not
continue. In addition, the first respondent had to pre-order the
concrete required for laying the mezzanine stab.
It was of a
specific nature designed to prevent 'entirely the ingress of water
and is necessary in order for the creation of
the swimming pool."
Singer said that any delay in that process would "cause huge
amount of loss..." Singer suggested
that the applicants could
claim damages as an alternative to the relief sought.
[25]
Cornelis Johannes Moir
(Moir),
was
employed by the third respondent as a building control officer when
the first respondent submitted its plans. He has since
retired. Moir
attested to an affidavit in these proceedings and said that he was
directly involved in the approval of the building
plans that are the
subject of this application. The plans were submitted in June 2008
and he inspected them. The third respondent
identified the second
and third applicants as interested parties and in correspondence
invited them to make representations on
the proposed plans. Brummer
responded as indicated above. Moir said that he had not been misled
by the dotted line and that he
was "not satisfied that ...the
building... would disfigure the ...area...".
Response
to Moir
[26]
Mr Kantor, who appeared for the applicants, submitted that Moir's
affidavit had provided the applicants with more grounds
for the
review. He submitted that Moir had been required to prepare a
recommendation for consideration by the decision maker,
who was
another official. The details of that official do not appear from
these papers. It appeared from Moir's affidavit, so
the argument
went, that Moir had not applied his mind to the subjective facts and
circumstances relevant in terms of section
7(1)(b){ii)(bbb) and/or
(ccc) of the National Building Regulations and Building Standards
Act 103 of 1977 when he made his recommendation.
[27]
That report does not form part of these papers. On these papers, the
applicants have not made out a case for alleging failure
on the part
of either Moir or the decision maker. Mr Kantor submitted that the
applicants only realised their further review
grounds on receipt of
Moir's affidavit.
DISCUSSION
[28]
I accepted that the relief granted would have financial implications
for the workers as well as the first and the second
respondents. I
further accepted, as alleged by Mountain, that the project was
approximately 12 months from completion. The building
work in
process at the property is in accordance with plans that the third
respondent had approved.
[29]
Counsel for the first respondent argued that the applicants could
claim damages and a demolition order should they succeed
in the
intended review proceedings. It is so that if the building works
were to continue, the applicants would then have to convince
a court
to order the demolition of a completed building. Griesel J, in the
matter of
Camps
Bay Ratepayers Association vs Minister of Planning, Western Cape
2001(4)
SA 294(C) said the following at 328 para c-d:
..Moreover,
if an interdict were not granted at this stage, the result would be
that the developer would be entitled to continue
construction
of the flats. Should the applicants later decide to bring an
application for a demolition order, they would obviously
have a much
more difficult task in eventually persuading the Court to make such
an order in respect of a fully built block of
flats."
[30]
I was further of the view that the balance of convenience favoured
the applicants in the circumstances of this matter. In
this regard,
Nicholson J in the matter of
Ladychin
Investments v South African National Roads Agency
2001(3)
SA 344 (N) at 353 paras F-1 said the following:
"Where
the applicant cannot show a clear right then he has to show a right
which, though prima facie established, is open
to some doubt. In
that event, the applicant will have to show that the balance of
convenience favours him. The test for the grant
of relief involves a
consideration of the prospects of success and the balance of
convenience - the stronger the prospects of
success., the less the
need for such balance to favour the applicant; the weaker the
prospects of success the greater the need
for the balance of
convenience to favour him.
By
balance of convenience is meant the prejudice to the applicant if
the interdict be refused, weighed apainst the prejudice to
respondent if it be granted.fmv underlining)
Even
if there are material conflicts of fact the Courts will still grant
interim relief. The proper approach is to take the facts
as set out
by the applicant, together with any facts set out by the respondent,
which the applicant cannot dispute and to consider
whether, having
regard to the inherent probabilities the applicant should on those
facts obtain final relief at
a
trial.'
[31]
Nicholson J went on to say at 353 paras l-J to 354 A that:
"...
The facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown on the case
of the applicant
he
should
not succeed in obtaining temporary relief, for his hght, prima facie
established, may only be open to
'some
doubt'.
If
there is mere contradiction, or unconvincing explanation, the matter
should be left to trial and the hght be protected in the
mean time,
subject of course to the respective prejudice in the grant or
refusal of the relief."
[32]
It is common cause that the respondents are currently performing the
building operations in terms of an approved administrative
act. I
considered an interim interdict pending the review of an
administrative action should not be lightly granted even if all
the
requirements for the granting of interim relief had been complied
with.
Condonation
before
review
[33]
The respondent's counsel argued that the applicants were obliged, in
terms of
s7(1)
of the
Promotion of Administrative Justice Act 3 of
2000
. to have brought their review application within a period of
180 days and/or 90 days as provided for in s9 of the Act. Counsel
submitted that the intended review application would be brought
outside of the periods provided for in the Act.
[34]
He further submitted that it was incumbent on the applicants to show
that they enjoyed prospects of success in the review
being
entertained. They failed to set out the factual basis upon which
they would assert that it would be in the interest of
justice to
extend the time limit prescribed by s7 of the Promotion of Access
Act.
[35]
I disagree. Mountain said that it was only in June 2010 that the
applicants realised that the building would be "an
imposing and
dominating structure quite out of keeping with the area". He
said that Brummer thought the dotted line represented
the original
house, which meant that only the mezzanine level was added to the
height of the original dwelling. As indicated
above, the dotted line
was not drawn to scale.
CONCLUSION
[36]
I decided to exercise my discretion in favour of the applicants
because in my view, the balance of convenience favoured them.
I was
persuaded that to the extent that they would need condonation to
bring the review application they have explained their
delay. I was
satisfied that an application for interdictory relief instead of an
application for demolition and damages was more
appropriate.
BAARTMAN,
J