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[2010] ZAWCHC 481
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Trustees for the Time Being of the Triple Eight Trust and Others v Midnight Feast Properties 24 (Pty) and Others (4841/2010) [2010] ZAWCHC 481 (23 September 2010)
Republic of South Africa
In the High Court of
South Africa
Western Cape High Court,
Cape Town
Case
No: 4841/2010
In
the matter between:
The
Trustees for the Time being of the
Triple
Eight Trust No. T2645/2004
….............................................................
First
Applicant
Patrick
Christopher George Morton
…......................................................
Second
Applicant
Tweed
Heads Prop Investments (Pty) Ltd
…................................................
Third
Applicant
DLX
Properties (Pty) Ltd
….........................................................................
Fourth
Applicant
Allen
Targhi Tavakoli
…..................................................................................
Fifth
Applicant
Tailorbird
(Pty)Ltd
…......................................................................................
Sixth
Applicant
Ruth
Friedman
…......................................................................................
Seventh
Applicant
Berenice
Wolman
…......................................................................................
Eight
Applicant
Steven
Jossel
…............................................................................................
Ninth
Applicant
The Trustees for the Time
Being of The Barfin Trust
…...............................
Tenth
Applicant
Michael
Coles
…......................................................................................
Eleventh
Applicant
And
Midnight
Feast Properties 24 (PTY)
…......................................................
First
Respondent
Juan
Pera
….........................................................................................
Second
Respondent
Rene
Pera
.
…............................................................................................
Third
Respondent
Gilda
Vernier
….......................................................................................
Fourth
Respondent
John
Anthony Vernier
…............................................................................
Fifth
Respondent
The
City of Cape Town
….........................................................................
Sixth
Respondent
ECO Ventures Property
Development
….............................................
Seventh
Respondent
Louw
J
Judgment
delivered: 23 September 2010
[1]
In this application for judicial review the applicants seek the
review and setting aside of building approval granted on 27
July
2009 under plan number 00650/2009 by the City of Cape Town ('the
City') in terms of section 7 (1) of the National Building
Regulations and Building Standards Act, 103 of 1977 ('the NBR Act')
in respect of a block of 39 sectional title flats consisting
of 7
storeys plus one basement parking garage, to be erected on erven
417, 418, 419, 657, 712 and 799 situated on the corner
of Queens
Road and Kloof Road Bantry Bay ('the subject properties').
[2]
The first respondent purchased the subject properties which make up
three adjoining properties (erven 417, 418, 419 and 657
constitute
one property). Save for erf 712 of which it is the owner, the first
respondent has not yet taken transfer of the other
erven of which
the second to fifth respondents are the registered owners. The first
respondent is in the process of consolidating
the subject properties
into one property which will then be 2603m
2
in
extent. The Surveyor General has approved a diagram for the
consolidated properties but the consolidation has not yet been
registered.
[3] At present there are
improvements on the subject properties but neither the demolition of
the existing structures nor the
building works in respect of the
development have at present commenced.
[4] Once erected, the
building will be in excess of 20 metres in height and because it is
to be erected on a consolidated piece
of land, the setbacks from the
erstwhile internal common boundaries between the separate erven will
no longer apply resulting
in a solid wall stretching for 60 meters
from East to West along and below Kloof Road. It will dominate its
surroundings in the
manner depicted on 'Annexure 'LF7'. The
applicants contend that this will constitute an overbearing
development of an inappropriate
nature.
[5]
This application was launched on 10 March 2010, initially for urgent
interim relief pending the outcome of the review. On
12 May 2010 an
order was made by agreement setting the matter down for hearing on
19 August 2010 and recording an undertaking
by the first respondent
not to commence construction of its development pending the hearing
of the application.
[6] The City is the
sixth respondent and abides the decision of the court. Eco Venture
Property Development (Pty) Ltd is cited
as the seventh respondent on
the basis that the applicants believed it to be the developer of the
project. Since the first respondent
has stated that it is the
developer, no relief is sought against the seventh respondent who
does not oppose the relief sought.
[7] The applicants are
the owners of properties in the neighbourhood of the proposed
development and the majority of them have
their permanent homes at
these properties. Their standing to bring the application is not in
dispute.
[8] The subject
properties are subject to the Zoning Scheme Regulations of the
Municipality of the City of Cape Town Zoning Scheme,
(the scheme
regulations), as published in Provincial Gazette 4649 dated 29 June
1980, corrected by Provincial Gazette 4684 of
1 March 1991 and
amended by annexure "A2" to Provincial Notices 134 in
Provincial Gazette 6438 of 18 May 2007.
[9] The subject
properties have been zoned General Residential Use, sub-zone R4,
permitting the construction of a building with
7 storeys together
with basement storey/s. Once consolidated, the consolidated property
will remain subject to the scheme regulations
and continue to be
zoned General Residential Use sub-zone R4.
[10] The applicants, who
are represented by Mr. Bremridge attack the approval of the plans on
a broad front. In outline, the applicants
contend that:
1. The plans are
unlawful in that it contravenes the NBR Act and other applicable,
laws namely, the scheme regulations and section
17 of the Roads
Ordinance, 19 of 1976;
2. The City's officials
failed to apply their minds to the preceps of section 7 (1)(b)(ii)
of the NBR Act by failing to undertake
a proper sensitivity
assessment and by failing to find that the negative factors listed
in the section obtained;
3. The building control
officer ('the BCO'), in this case Mr Moir, failed to make a proper
recommendation as required by section
6 (1) of the NBR Act and
failed to provide the decision maker, in this case Mr Theron, with
sufficient information and in effect
usurped the authority to make
the decision under section 7 of the NBR Act.
[11] The relevant
provisions of the NBR Act are section 4 (1), section 6 and section 7
(1). The relevant portions read as follows:
"4 (1) No person
shall without the prior approval in writing of the local authority
in question, erect any building in respect
of which plans and
specifications are to be drawn and submitted in terms of this Act".
6 Functions of building
control officers
(1) A building control
officer shall-
(a)
make
recommendations to the local authority in question, regarding any
plans, specifications, documents and information submitted
to such
local authority in accordance with section 4 (3);
(b) ensure that any
instruction given in terms of this Act by the local authority in
question be carried out;
(c) inspect the erection
of a building, and any activities or matters connected therewith, in
respect of which approval referred
to in section 4 (1) was granted;
(d)
report
to the local authority in question, regarding non- compliance with
any condition on which approval referred to in section
4(1) was
granted.
2)
When a fire protection plan is required in terms of this Act by the
local authority, the building control officer concerned
shall
incorporate in his recommendations referred to in subsection (1)
(a)
a
report of the person designated as the chief fire officer by such
local authority, or of any other person to whom such duty
has been
assigned by such chief fire officer, and if such building control
officer has also been designated as the chief fire
officer
concerned, he himself shall so report in such recommendations.
(3)...
(4)...
7 (1) If a local
authority, having considered a recommendation referred to in section
6 (1)(a)-
(a) is satisfied that
the application in question complies with the requirements of this
Act and any other applicable law, it
shall grant its approval in
respect thereof;
(b) (i) is not so
satisfied; or
(ii) is satisfied that
the building to which the application in question relates -
(aa) is to be erected in
such manner or will be of such nature or appearance that-
(aaa)
the area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb) it will probably
or in fact be unsightly or objectionable;
(ccc) it will probably
or in fact derogate from the value of adjoining or neighbouring
properties;
(bb) will probably or in
fact be dangerous to life or property, such local authority shall
refuse to grant its approval in respect
thereof and give written
reasons for such refusal:
Provided ..."
[12]
The interpretation of these sections was considered by the
Constitutional Court in the matter of
Walele
v City of Cape Town and Others
(6)
SA 129 (CC). In
True
Motives 84 (Ptv) Ltd v Mahdi and Another
(4)
SA 153 (SCA), the majority, Japhta JA as he then was dissenting,
held that the Constitutional Court was wrong as to its
interpretation of section 7(1)(b)(ii) of the Act but that the
Constitutional Court's finding on this issue was obiter. Counsel
on
both sides accepted in argument that this court is bound by the
SCA's interpretation of section 7 (1)(b)(ii).
[13] It is common cause
and trite that the scheme regulations constitute an instance of
'applicable law' under section 7 (1)(a)
of the NBR Act and that the
respondents' application for plan approval must comply with the
scheme regulations.
[14] The applicants
contend that the approved plans provide for a building which
contravenes the following provisions of the scheme
regulations:
1. Section 30, which
restricts the coverage for a building on the subject properties to
50%;
2. Section 60, which
imposes certain building lines and set-backs;
3. Section 75 which
prohibits the erection of a building on the subject properties if
any portion of the street boundary is less
than 8 metres from the
central line of the street.
[15] The respondents who
are represented by Mr. Rosenberg and with him, Mr. Baguley,
submitted that:
1. the City properly
exercised its discretion to approve the first respondent's plans as
they comply with both the provisions
of the NBR Act itself as well
as other applicable law in that:
1. the ceiling of the
basement level is below ground level as defined by the scheme
regulations and accordingly, the basement
is exempted from the
calculation of coverage so that the coverage permitted by the scheme
regulations is not exceeded;
2. the basement level of
the development is wholly below the ground level as defined by the
scheme regulations and accordingly,
no set-backs are required at the
basement level;
3. the City has relaxed
the set-back required on the Queens Road boundary so that the
boundary there is correctly set-back;
4. the roads authority
has relaxed the set-back required on the Kloof Road provincial road
so that the basement and ground floor
on the Kloof Road side are
correctly set back.
2.
The City's decision maker properly applied his mind to the preceps
of section 7 (1)(b)(ii) and was not satisfied that the development
will probably disfigure the area in which it is to be erected, will
probably be unsightly or objectionable and will probably
derogate
from the value of adjoining or neighbouring properties.
[16] In my view, this
application can be decided on the basis of the objections to the
approval based on the coverage and setback
restrictions, both of
which turn on whether the basement parking garage must be excluded
from consideration. The meaning of 'ground
level', as defined in
section 2 of the scheme regulations when applied to the basement
parking garage is relevant to:
1. The coverage
restrictions in sections 30 and 31 (2) of the scheme regulations,
since storeys of buildings, 'the ceilings of
which are below ground
level', are in terms of section 36(a) to be disregarded in the
calculations to determine the coverage
restrictions; and
2. The setback
provisions in section 60 of the scheme regulations do not apply to a
storey which is 'wholly below the ground level'.
Coverage
[17] The applicants
contend that part of the ceiling of the basement parking garage is
above the ground level and that the basement
parking garage as a
whole is therefore a storey of the building that must be included in
the calculation of actual coverage.
The respondents contend that
only that part of the basement, the ceiling of which is not below
ground level, is to be included
in the calculation. It is common
cause, however, that if the whole of the basement parking garage is
included, the building as
approved exceeds the 50% coverage allowed
by the scheme regulations.
[18] Under section 31
(2) of the scheme regulations the permissible 'actual coverage' for
the building on the subject properties
is 50%. This means that the
building may not cover more than 50% of the area of the subject
properties.
[19] 'Actual coverage in
relation to a building' is defined in section 2 to mean 'the area
which is covered by such building calculated
in the manner hereafter
prescribed'
[20] Under section 35
(1) 'actual coverage' includes the area covered by all parts of the
building on the subject property but
section 36 provides that:
The areas covered by the
following buildings or portions of buildings shall be disregarded in
the calculation of Actual Coverage:
(a) Buildings or storeys
of buildings the ceilings of which are below ground level
(b) ...
(c) ...
(d) ...'
[21] I agree with the
applicants' contention that the basement is a storey of the building
for purposes of section 35 (1)(a) and
that if part of the ceiling of
the basement is not below ground level, the whole of the basement
(the storey) must be included
in the calculation.
Setback
[22]
It is common cause that in terms of Section 60 of the scheme
regulations the ground storey of the building in this case must,
in
accordance with the relevant calculations under that section, be set
back 8,165m from the street and common boundaries with
adjoining
properties. The approved plans reflect that from level 1 upwards,
the building is properly set back the required 8,165metres.
The
basement parking garage is, however, not so set back and it is
common cause that if the setback requirements are applicable
to the
basement parking garage, the building will, if constructed in
accordance with the approved plan infringe upon the setback
requirements.
[23] The applicants
contend that the setback requirements do apply to the basement while
the respondents contend that the restrictions
do not so apply.
[24] Section 60 (6) of
the Scheme regulations provides:
60 (6) Every storey
below ground storey, other than a storey wholly below the ground
level, shall for purposes of this section
be deemed to be the ground
storey.
[25] It follows that
unless the basement is 'wholly below the ground level' it shall be
deemed to be the ground storey and will
be subject to the setback
requirement of 8,165metres.
The
meaning of 'ground level'
.
[26] The current
definition of 'ground level' in section 2 of the scheme regulations
was introduced by way of an amendment on
18 May 2007 and reads as
follows:
"ground
level', in relation to a building means the existing level of the
surface of the finished ground level surrounding
and immediately
abutting the building as determined by reference to data in
Council's records or by a Land Surveyor's certificate
or,
alternatively, through interpretation of such data or by another
method as determined by Council. (In case of a dispute,
Council's
opinion shall prevail)'.
[27] At the same time,
Section 11 of the scheme regulations was introduced on 18 May 2007.
It reads as follows:
Raising
the ground level
Any unsupported
earthbanks, soil retaining structure, column, suspended floor or any
other device which exceeds 2.1m in height
or enables a ground floor
or platform to be more than 2.1m in height above the existing ground
level shall require the Council's
consent. Where a series or number
of such structures are used to achieve a raised floor or platform,
these shall require Council's
consent where the cumulative height of
these structures or devices exceeds 2.1m when measured horizontally
over a distance of
3m or less'.
[28] In essence the
dispute between the parties is that the applicants contend that
'ground level' refers to an historical existing
level, that is to
the level of the ground as it exists at the time plan approval is
being considered. The respondents contend,
on the other hand, that
'ground level' refers to the level as it will exist once the
building or other structures or devices
have been constructed in
accordance with plans for which approval is being sought.
[29] Prior to the
amendment on 18 May 2007, the definition read as follows:
"ground
level', in relation to a building, means the finished level of the
surface of the ground surrounding and immediately
adjoining the
building when erected'.
[30] The meaning of
ground level under the previous definition clearly referred to the
position as it will be once the building
is erected. This is common
cause. The respondents contend that the new definition has not
brought about any change in this regard.
[31]
The applicants emphasise that the definition refers to'... the
existing
level
of the surface of the
finished
ground
level'. The definition recognises, so it is contended, that a person
wishing to develop a property may find that the property
had
previously been developed. The person seeking to further develop and
build on such property is then not restricted to taking
the
measurements from some pre-existing natural ground level which may
be difficult or impossible to determine. The developer
must, for
plan approval, work with the then existing and finished ground level
as it is at the time plan approval is being sought,
that is, as it
was before commencement of construction. This meaning of ground
level, it is contended, accords not only with
the plain meaning of
the words, that is, the existing ground level, though it may
previously have been finished, but it also
accords with the methods
prescribed in the definition itself for determining the ground
level. The definition provides that ground
level shall be
determined:
1. by reference to data
in City's records; or
2. by a Land Surveyor's
certificate, or alternatively;
3. through interpolation
of such data or by another method as determined by the City.
These methods, it is
contended on behalf of the applicants can only have application to
the determination of an historically existing
ground level at the
time plan approval is being sought.
[32] The respondents
contend that the definition of ground level must be read in
conjunction with section 11 which was introduced
at the same time.
They contend that the purpose of introducing section 11 was clearly
to prevent vertical retaining walls of
excessive height or pillars
holding up ground floors at heights of say 10 or 20 metres above
ground level. A system allowing
the raising of such structures or
devices incrementally by up to 2.1m every 3 metres was therefore
introduced to allow ground
levels to be raised in a sensitive manner
instead of in a vertical manner. The provision requiring the
determination of the ground
level with reference to the records of
the City or a land surveyor's certificate were inserted, so it is
contended, in order
to ascertain the ground level before it is
increased in terms of section 11. Such determination is necessary
because section
11 requires the City's consent for any increase
above 2,1 metres. The respondents therefore contend the 'ground
level' as defined
is the finished level of the ground once the
building works as set out in the plan, are complete and not the
level of the ground
at the time approval is being sought, that is as
it existed prior to the commencement of the project.
[33] The respondents
consequently contend, that section 11 allows a developer to raise
the ground level by 2.1m every 3 metres
as of right and that
measurements from 'ground level' as defined must then be taken from
the top of the device or structure by
which the level has been
raised (or the uppermost of such device or structure in series)
rather than from the level before it
was raised.
[34]
The approved plan makes provision for a soil retaining wall
structure on two down slope sides of the building. The plan TBI
illustrates the effect of the containing wall and fill. The
respondents' case is that if the building is constructed in
accordance
with the approved plan it will be surrounded by the
retaining wall structure on the down slope sides, and that through
the use
of this device, the ground level will have been increased
from the ground level as it exists at present on the down slope
sides,
by 2,1 metres. This increase will, it is contended, result in
the basement being wholly below the 'ground level' as defined in
section 2 of the scheme regulations, since the retaining wall and
the fill it retains abutting the building on the plan TB1 will
have
occurred within the parameters determined by the scheme regulations.
From this it follows, it is contended, that the basement
as shown on
the approved plan is situate wholly below the ground level, being
the finished level of the earth immediately abutting
the building.
[35] Mr Moir, who was
the BCO on this project, was employed in various capacities by the
City since 1974. He moved to the City's
Building Survey Department
in 1981 as a plans examiner. In 1990 he was appointed Principal
Building Control Officer ('the BCO').
He retired in 2008 but was
thereafter employed on a contract basis by the City as its BCO until
March 2008. He has for 30 years
examined plans submitted to the City
and during his 12 years as BCO he considered thousands of plans. Mr
Moir's evidence regarding
the manner in which the City interpreted
and applied the definition of 'ground level' is as follows:
"22.
At all material times since the amendments to the zoning scheme on
18 May 2007 (including a change in the definition
of
'ground
level)
the
City has interpreted ground level to mean the
finished
level
of the ground and not the pre-existing level of the ground.
23.
The City's interpretation of
'finished
ground level'
has
been the level of the ground surrounding the building as at 17 May
2007 (the day before the so-called
'critical
amendments)
with
reference to the City's records as lawfully increased in terms of
section 11 of the zoning scheme regulations.
24. The City
consistently interpreted and applied this construction of the
applicable provisions of the zoning scheme from the
date of the
amendments of 18 May 2007 until relatively recently.
25.
On the basis of what was settled practice, plans were regularly
prepared and approved, providing for (within the limits allowed
by
the zoning scheme regulations) a change of ground level to enable
the inclusion of a basement in developments along the Atlantic
Seaboard and elsewhere.
26. When I considered
the first respondent's basement, I was satisfied that it complied
with the definition of a basement and
that it was wholly below the
ground level. I still hold that view unequivocally.
27. Section 11 of the
zoning scheme regulations permits an applicant to raise the level of
the ground by up to 2.1m without the
consent of the City. The first
respondent has done precisely this by erecting a retaining wall at
2.1m. There is no doubt that
this legitimate and legislatively
sanctioned device effectively raises the ground level and renders
the basement wholly below
ground level.
28.
Furthermore,
I confirm that section 11 of the scheme regulations
permits the
raising of ground level by 2.1m every 3m. Mr Brummer's depiction of
the consequence of this on "TB 1" of
his answering
affidavit ('GK 2' to Mr Klotz' affidavit) is correct.
29.
Recently the City has made a number of decisions based on a
different interpretation of
'ground
level'
namely
that this means the pre-existing unfinished level of the ground. I
know that the City also employs the finished ground
level approach
too with the result that its approach is no longer consistent.
30. In my view the
correct approach is the approach adopted in the present matter."
[36]
There is a dispute whether, even on the respondents' version of the
increase of ground level by the retaining structure,
the basement
will be wholly below ground level. The applicants contend that even
on the respondents' version, the structure itself
does not render
the basement wholly below ground level because parts of the basement
ceiling is above the 2,1m height of the
retaining wall. If the
increase is taken to the top of the soil piled behind the retaining
wall, as the respondents contend,
then the increase in height is
2,8m which is above the 2,1m allowed by section 11 of the scheme
regulations and requires the
City's consent which, it is common
cause has not been obtained. Mr Rosenberg submitted that the excess
of 700mm should be ignored
as
de
minimis.
In
view of the conclusion to which I have come, it is not necessary to
consider this dispute.
[37] The current
definition of 'ground level' was introduced when the scheme
regulations were amended on 18 May 2007. At the same
time a new
section 11 was inserted into scheme regulations. These new
provisions, whether read together or on their own, are
confusing,
obscure and uncertain. 'Ground level' is defined in Section 2 as
being both the existing and finished 'ground level'.
Section 11 is
headed 'Raising the ground level', but the body of the section does
not in terms deal with the raising of the ground
level itself.
[38] The surveyor, Mr
Tony Vroom made calculations of the ground level on the subject
properties which show, on the applicants'
interpretation of 'ground
level' namely ground level, though finished, as it existed at the
time of plan approval, prior to the
commencement of works, that the
parking garage is not 'wholly below' that ground level and that the
ceiling level of the parking
garage is, in certain areas, above that
ground level. His evidence is not disputed. It is therefore common
cause that if the
applicants' contention that ground level means the
level of the ground as it exists at the time plan approval is
sought, the
basement is not wholly below ground level and that part
of the ceiling of that the basement is above ground level and that
the
approved plan offends against the setback and coverage
provisions of the scheme regulations and that plans should not have
been
approved.
[39]
Counsel on both sides presented full argument on the meaning to be
given to the current definition of 'ground level'. However,
given
the particular facts of this case, I am not satisfied that the
difficult issue of the meaning to be given to 'ground level'
as it
is currently defined has been fully addressed in all its possible
implications.
[40] The case can in my
view be decided, however, without making a choice between the two
interpretations of the meaning of 'ground
level'.
[41] I will accept in
the respondents' favour (without deciding) that the level of the
ground may legitimately be raised to constitute
a new 'ground
level', that is that the respondents' interpretation of the
definition is correct and that the 'ground level' must
be determined
at the level of the ground at which it will stand upon completion of
the works.
[42]
Assuming that section 11 does provide for the ground level to be
raised, this is not the only purpose to which the works
and devices
mentioned in section 11 can be put. The mere construction under
section 11 of an
unsupported
earthbank, soil retaining structure, column, suspended floor or any
other device enabling a ground floor or platform
to be raised,
does
not
per
se
entail
a raising of the level of the ground. The execution of such works
may or may not result in the
de
facto
raising
of the level of the ground.
[43] The first question
is therefore whether the retaining wall and soil fill will, once
constructed, in fact result in an increase
in the level of the
ground. Only once it is found that the level of the ground will in
fact be raised, the next question will
arise, namely, whether the
new level constitutes 'ground level' as defined in section 2 of the
scheme regulations.
[44]
The Concise Oxford Dictionary (10
th
Revised
Edition, 2002), gives the following meaning to key words in the
definition of ground level: Ground, 'the solid surface
of the
earth'; Level, 'a horizontal plane or line with respect to the
distance above or below a given point'; Surface, 'the outside
part
or uppermost layer of something'; To finish, to 'complete the
manufacture or decoration of (something) by giving it an attractive
surface appearance' and 'the manner in which a manufactured article
is finished; the surface appearance of a manufactured article'.
[45] The plain meaning
of the words used in the definition of ground level indicates that
it is the uppermost layer (surface)
of the solid surface of the
earth (ground) which may be above or below (the level) of a given
point and which has been completed
(finished) by giving it a surface
appearance. The respondents contend that the retaining wall
structure will result in the level
of the ground being raised from
the existing level to a new level which will then constitute 'ground
level' as defined. For the
top of the fill behind the retaining wall
to constitute the new raised 'surface of the finished ground level'
logically requires
it to have a real connection to the existing
ground, that is, to the solid surface of the earth before it was
raised.
[46]
In my view, the respondents' case falls down at the first question
posed above in par [43]. The top of the soil retained
by the
retaining wall structure in this case cannot, in my view, once it is
constructed, properly and realistically be said to
be the surface,
that is, the uppermost layer of the ground in the sense of the
'solid surface of the earth'. It will, once constructed,
be no more
than the upper surface of a band of soil, in part 2,9 metres wide,
which is retained by the wall which encloses the
basement on the
North Eastern (Queens road) and North Western (common boundary sides
of the building). This band of soil will
have no real connection
with the existing ground level and cannot realistically be called
the new level of the ground. In addition
the retaining structure
(wall) and soil contained behind it, will in my view, in fact be a
part of the building itself. It will
not only contain the soil but
will also in part, constitute the structure of the entrance and exit
to the basement, albeit with
a planter filled with soil which is to
be placed over the gaps in the wall forming the entrance and the
exit. It will also contain
structures such as the council electric
meter room. The 'ground level' will in my view, not be raised at all
by the retaining
wall structure. The 'ground level' will still be
where it is at present. Once the building is completed, the
'ground
level surrounding and immediately abutting the building'
will
be at the surface of the ground where it abuts the outside of the
retaining wall.
[47] This is not to say
that the level of the ground cannot be raised by means of a device
such as a retaining wall. However,
in this case, all that will occur
is that a relatively narrow band (given the dimensions of the
project as a whole) of soil will
be placed around a large part of
the building. On the facts of this case, the ground level on the
down slope sides of the building
will not be raised at all.
[48] It follows that,
assuming (without deciding) the respondents to be correct in their
interpretation of the definition in section
2 read with section 11,
the surface of the ground will not be raised if the building should
be erected in accordance with the
approved plan. The building
erected according to the approved plan will consequently have a
basement which is not be wholly below
ground level and the whole of
the ceiling of the basement will not be below ground level.
[49] It follows that the
plans do not comply with the requirements of section 30 (relating to
the coverage restrictions) and section
60 (relating to the setbacks
restrictions) of the scheme regulations. It is not disputed that if
this is the conclusion, the
City should not have approved the plan
and that the plan approval should be set aside.
[50] In the light of
this conclusion, it is not necessary to consider the further points
raised by the applicants.
[51]
It follows that the following order must be and is herewith made:
1.
The decision of the Sixth Respondent in terms of section 7 of the
National Building Regulations and Building Standards Act
No. 103 of
1977, taken on the 27
th
of
July 2009, to approve First Respondent's building plans in respect
of erf 907 Bantry Bay under plan number 00650/2009, is reviewed
and
is set aside;
2. The First Respondent
is ordered to pay the costs of this review application, such costs
to include the costs occasioned by
the employment of two counsel.
W.J.
LOUW
Judge of the High Court