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[2010] ZAWCHC 215
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Camps Bay Residents and Ratepayers Association and Others v Hartley and Others (3430/2010) [2010] ZAWCHC 215 (16 November 2010)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 3430/2010
In the
matter between:
THE
CAMPS BAY RESIDENTS’ & RATEPAYERS’
ASSOCIATION
…........................................................................................
1
st
Applicant
HENDRIK
STEVEN NEETHLING
…..........................................................
2
nd
Applicant
TAKU
INVESTMENTS SA (PTY) LTD
…...................................................
3
rd
Applicant
VERNON
LIONEL CHORN
….....................................................................
4
th
Applicant
and
DAVID ANTHONY HARTLEY
…............................................................
1
st
Respondent
SUSAN DENISE HARTLEY
…..............................................................
2
nd
Respondent
THE CITY OF CAPE TOWN
…..............................................................
3
rd
Respondent
JUDGMENT DELIVERED: 16 NOVEMBER 2010
BINNS-WARD, J:
By the time the matter was argued, nearly nine months after the
institution of the proceedings, the only matter remaining in
dispute
in this application for the judicial review and setting aside of the
approval by the local authority of building plans
for a double
dwelling on Erf 530, Camps Bay, was the issue of costs. Some of the
circumstances relied upon by the first and second
respondents (to
whom I shall refer simply as ‘the respondents’) to argue
that despite their last minute withdrawal
of their opposition to the
review and the abandonment of their counter-application they should
nevertheless not be liable for
all of the applicants’ costs of
suit highlight an unsatisfactory state of affairs in relation to the
administration of
the zoning scheme and to the local authority’s
management of access to relevant information. The papers in this
matter
- excluding any administrative record - run to nearly 700
pages; a building project has been in a state of suspension for
months
pending the determination of the litigation; and significant
costs and wasted expenses have been incurred on all sides. Most, if
not all, of these unwholesome circumstances could have been avoided
if a more efficient and effective system of zoning and building
plan
administration been in place.
In terms of the Land Use Planning Ordinance 15 of 1985 (Cape) - more
commonly referred to by the acronym, LUPO - the use and
development
of all land in the Western Cape Province is subject to restrictions
defined in terms of zoning scheme regulations.
These regulations,
which are area specific in their application, have been made in
terms of ss 8 or 9 of the Ordinance,
or, in respect of some
areas, comprise of the provisions of pre-existing town planning
schemes approved under the Townships Ordinance
33 of 1934, which are
deemed in terms of s 7 of LUPO to be zoning scheme regulations.
The use and development of Erf 530
is thus regulated by the
provisions of the Municipality of the City of Cape Town Zoning
Scheme Regulations published in Provincial
Gazette No. 4649,
dated 29 June 1990, as subsequently corrected and amended.
Erf 530 is zoned ‘Single Dwelling Residential’. ‘Single
Dwelling Residential’ is one of the use zones
established in
terms of reg. 11(1) of the zoning scheme regulations. A ‘use
zone’, as defined, denotes ‘an
area of land represented
on the Map in a distinctive manner for the purpose of controlling
the purposes for which buildings may
be erected and used and for
which land may be used’; see reg. 2 of the scheme
regulations.
The building which the respondents were in the course of erecting on
Erf 530, in general accordance with the impugned building
plans, is a ‘double dwelling’ within the meaning of the
zoning scheme regulations.
1
In terms of reg. 15, the erection of a double dwelling on land
within the Single Dwelling Residential use zone is permitted
only
with the consent of the municipal council.
Regulation 10(1) of the scheme regulations provides that when
granting any consent required in terms of the scheme regulations,
the municipal council may impose any condition contemplated by s 42
of LUPO. Altered land use restrictions imposed by means
of
conditions in terms of LUPO, and which, by their nature, define the
authorised land use more finitely than the generally applicable
provisions pertaining to the zoning in question, fall within the
concept of ‘departures’ from the scheme regulations,
in
the sense defined in s 2 of the Ordinance.
The concept of ‘departures’ relates to authorised
deviations from the limitations imposed in terms of the land use
restrictions applicable in a particular use zone. The concept is
defined to include an altered land use restriction imposed in
terms
of a condition by virtue of any provision of the Ordinance. Section
42 of the Ordinance, in particular, authorises the
imposition of
conditions in conjunction with various types of land use and
development related authorisations. It falls to be
noted in this
connection that ‘zoning’, when used as a noun in both
the Ordinance and the scheme regulations, means
a category of
directions setting out the purpose for which land may be used and
the land use restrictions applicable in respect
of the said category
of directions, as determined by relevant scheme regulations. ‘Land
use restriction’ in turn
is defined as ‘a restriction,
in terms of a zoning, on the extent of the improvement of land’.
2
Departures are therefore
pro tanto
amendments to the zoning
provisions of the zoning scheme regulations.
When it granted consent for the erection of a double dwelling on Erf
530, the committee of the municipal council that dealt with
the
matter under delegated authority imposed a number of conditions
which quite strictly limited the spatial characteristics
and
positioning of the structure that could be erected pursuant thereto.
The formulation of these restrictions was closely linked
to the
characteristics of the proposed building, as depicted in the sketch
plans drawn by Mr Geh, who was the architect employed
by the
respondents at that stage. These plans had been used in the
achievement of agreement between the applicants and the respondents
and were also referred to in the municipal officials’ report
on the item before the committee. As explained, those conditions
constituted ‘departures’ within the meaning of the
Ordinance. As such, they became part and parcel of the applicable
land use restrictions pertaining to Erf 530 in terms of the Cape
Town zoning scheme.
3
By reason of the provisions of s 39 of LUPO
4
,
that in turn gave rise to an obligation on the municipality to
comply and enforce compliance with the conditions; as well as
an
attendant obligation on all persons not to contravene or fail to
comply with them. A failure to comply with the obligations
imposed
in terms of s 39 of the Ordinance gives rise to potential
criminal liability; see s 46 of the Ordinance.
It follows that the imposition of conditions qualifying as
‘departures’ as defined in s 2 of the Ordinance is
a form of administrative legislation by a municipal council or any
functionary representing the council under delegated authority.
Furthermore, because the conditions are subsumed in the applicable
land use restrictions provided in terms of the zoning scheme,
they
constitute the provisions of ‘any other applicable law’
within the meaning of s 7(1)(a) of the National
Buildings
Regulations and Building Standards Act 103 of 1977 (‘the
Building Act’) - and a local authority is prohibited
by that
Act from approving any building plan application not compliant with
such other applicable law.
5
Regulation 1 of the zoning scheme regulations provides that the
scheme regulations fall to be read ‘in conjunction
with the
Register and the Map’. ‘Register’ in this context
means ‘the register of departures required
to be maintained by
the Council in terms of section 12’ of LUPO; see reg. 2
of the scheme regulations s.v. ‘
Register
’.
Since the inception of the Ordinance in July 1986, every local
authority has been required, in terms of s 12(1) thereof,
to
maintain a register. The special definition of the noun ‘register’
in s 2 of the Ordinance highlights how
abstruse the concept of
such a register is in reality. It provides that ‘"register",
when used as a noun, means
documents held by a local authority in
connection with all departures concerned’. Particularly in the
case of a metropolitan
municipality such as Cape Town, the
‘register’ in terms of s 12 of LUPO may thus
comprise the contents of literally
thousands of files stored or held
in diverse places and, depending on the organisational structure of
the local authority, kept
by any number of different functionaries.
It is therefore not a register in the ordinary sense of the word;
that is an official
list or an official record collected in a single
volume or series of volumes, and conveniently accessible.
‘
Map
’
is defined in reg. 2 of the scheme regulations as meaning
‘zoning map’ as defined in LUPO; that is a
map framed in
terms of s 10 of LUPO. On a proper reading of the Ordinance,
such a map is part of the zoning scheme to which
it relates. Such a
map should depict the different use zones in existence under the
particular scheme in a suitably distinguishing
manner and, with
reference thereto, identify any land unit within the scheme area in
respect of which departures are contained
in the register
concerned.
6
That the register and the map, as defined, did not fulfil the
purpose of informing the public, or even the local authority’s
building control officer, of the existence and content of the
departures in the current case is evident from the fact that the
existence of these departures as applicable land use restrictions
was in dispute on the papers and was one of the principal issues
in
contention between the parties until the filing, shortly before the
hearing, of an ‘explanatory affidavit’ by
the local
authority, which had been cited as the third respondent in the
review application and which had previously delivered
a notice of
intention to abide the judgment of the court. It was the belated
clarification of the existence of the departures
and of the
authority of the committee of the municipal council which had
imposed them that resulted in the concession by the
respondents of
the review and their abandonment of the counter-application. It was
also that feature that in large measure gave
rise to the argument
about how liability for the costs of the litigation should be
determined. That the facts should afford scope
for such a dispute to
arise is a matter for concern and indicative of a need for relevant
reform. I shall direct that a copy
of this judgment be forwarded to
the Provincial Minister responsible for development planning and to
the City Manager of the
City of Cape Town in the hope that the
matters for concern might receive constructive attention. I turn now
to describe the relevant
facts.
The applicants averred that the conditions had been imposed by the
Spatial Planning, Environment and Land Use Management committee
of
the municipal council (‘SPELUM’) at a meeting in August
2005,
7
at which the respondents and their then architect, Mr Geh, had been
present. In their founding papers the applicants further
averred
that confirmation of the decision had been conveyed by the local
authority to Mr Geh in his capacity as the respondents’
authorised agent by letter dated 16 January 2007. The letter
came from the local authority’s Director: Planning &
Building Development Management. (The delay between August 2005 and
January 2007 is explained by the fact that SPELUM’s
consent to
the erection of a double dwelling was contingent upon the agreement
by the provincial authority to remove or amend
certain title deed
conditions which had stood in the way of the erection of a double
dwelling, as proposed, on Erf 530. The provincial
authority
authorised the removal of the relevant title deed conditions by way
of a decision in terms of the Removal of Restrictions
Act 84 of
1967, which was notified in the Provincial Gazette only on 15
September 2006.)
The content of the letter of 16 January 2007 is set out below:
Dear Mr Geh
SKETCH PLANS OF PROPOSED NEW DOUBLE DWELLING FOR ERF
530, CAMPS BAY, THE MEADWAY
21 HARTLEY [the words 21 HARTLEY were
inserted by hand on the otherwise typewritten letter]
I refer to your submission dated 12-02-2004 under
reference Application Number LM1481 (59944) showing the
abovementioned proposal,
and have to advise that in so far as the
Zoning Scheme is concerned, the following departures from the scheme
regulations have
been granted.
Section 15 (3)
for a double dwelling in a single dwelling use zone.
It must be clearly understood that this proposal in
principle is given merely in terms of the existing provisions of the
Zoning
Scheme. These provisions may be amended from time to time and
should final building plans drawn in accordance with these sketch
plans be found to be in conflict with any lawfully amended provision
of the Zoning Scheme Regulations such final plans may not
be approved
by the Executive Director (Strategy & Development) except with
the consent of Council.
Please ensure that a copy of the approval sketch plan
as well as this sketch plan letter is attached to the final building
plan
submission.
It must be clearly understood that work must not
commence until such time as working drawings have been submitted to
and approved
by the Council, and furthermore that nothing in this
letter is to be understood as departing from any legal provisions
which the
sketch plans may contravene, except to the extent (if any)
specifically stated above.
One set of plans is being returned; the other is being
retained in this office for record purposes.
Yours faithfully
[signed]
for
DIRECTOR: PLANNING & BUILDING DEVELOPMENT
MANAGEMENT
Sketch plans given to David Harley 05 Nov2007
The applicants averred that the 16 January 2007 letter was
accompanied by an annexure (‘annexure B’) setting
out
(albeit erroneously in certain respects) the conditions to which the
consent had been given. The respondents, however, contended
that
there were no annexures to the 16 January 2007 letter. They
also emphasised that the body of the letter contained no
reference
to any conditions attached to the consent. The respondents avoided
dealing with the content of the letter which implied
that the final
building plans submitted by them should concur with the sketch plans
drawn by Mr Geh, taking the position instead
that ‘The City
has never formally notified [us] that its consent was subject to the
conditions contained in annexure B,
or any conditions’. In
making these averments, the respondents were dependent on the advice
of Mr Geh, as their representative
at the time in respect of all
communications with the municipality on the matter. The respondents
had apparently also raised
this point in their answering papers in
the interim interdict proceedings launched to prevent the completion
of the building
pending the determination of the application for
judicial review. The effect of the point taken by the respondents
was that,
notwithstanding the provisions of s 39 of LUPO, they
were not bound by the conditions - assuming they had been validly
imposed
- because the imposition of the departures had not been
effectively communicated to them.
Mr Geh deposed to an affidavit confirming the respondents’
averments. He added that, in his experience, in matters in which
the
municipality intended to impose conditions under s 42 of LUPO
it did so by announcing its decision by means of a ‘final
notification letter’ to the affected property owner, an
example of which, in connection with another matter, he annexed
to
his affidavit. He said that had there been such a letter, of which
he had no recollection, it would be contained in his file.
The file
was with the respondents’ attorney of record and Geh stated
that he had been informed by the attorney that no
such letter was
contained in it. Mr Geh did not explain what he considered to the
status and effect of the conditions resolved
upon by SPELUM at the
meeting of that committee which he had attended, accompanied by his
then clients, the respondents, nor
did he deal with the restrictive
implications of the content of the 16 January letter. It may,
however, be inferred from
his evidence that he failed to inform the
respondents of the imposition of any binding conditions. In the
result his successor
as the respondents architect designed for the
respondents’ intended double dwelling a quite different
building from that
contemplated in the sketch plans referred to in
the 16 January 2007 letter. It was the local authority’s
approval
of the plans for that quite different building that gave
rise to the current litigation.
When the matter became litigious, the respondents engaged the
services of Mr Timothy Turner, a town planner with more than
30
years experience in urban planning in Cape Town, including a number
of years’ service as an official of the City –
a period
that culminated with his service there as Assistant Director of
Building Survey. Mr Turner described himself, without
contradiction
from any quarter, as an expert in the field of statutory planning,
including applications for rezoning, departures,
special consents,
subdivisions of land and the removal of restrictive conditions of
title. It appears from Mr Turner’s
evidence that part of his
mandate was to look into the existence of the allegedly imposed
conditions. To this end, and accompanied
by the respondents, he
attended at a meeting with the City’s District Manager:
Planning & Building Development on 10 March
2010. This
functionary was unable to produce the City’s file on the
matter at the meeting because it was not available.
The functionary
undertook to obtain it and to advise Mr Turner if the conditions had
indeed been imposed and if so, whether and
by what means the
respondents had been informed thereof. Despite two reminders by
telephone from Mr Turner, the functionary did
not revert on these
matters as promised.
On 12 May 2010, Mr Turner therefore addressed a letter to the
functionary requesting the information. No reply was ever
given to
the letter, but on 3 June 2010 a second meeting was had with
the functionary. At that meeting what is described
as ‘the
City’s file’ was available. On the basis of their
perusal thereof the relevant officials of the municipality
conceded
that it did not appear that the conditions had been attached to the
16 January letter. Mr Turner’s understanding
at the
conclusion of the June meeting was that the City would thereafter
attend to formally notify the respondents of the imposition
of the
conditions. However, no such notification followed. It would
therefore appear that at the time of Mr Turner’s perusal
of
the file neither he, nor the attending officials were able to
identify that a final notification letter in respect of the
imposition of the conditions had in fact been sent in December 2006
to the respondents’ agent, Mr Geh.
Following on the delivery of the answering papers in the interim
interdict proceedings, in which it was reportedly averred that
they
had not been formally informed of the imposition of the conditions,
the applicants engaged the services of another professional
town
planner, Mr Brümmer. This witness says that he inspected ‘the
LUPO file’ in May 2010. From what he saw
there he was able to
infer that a ‘final notification’ had been sent to the
respondents’ agent on 18 December
2010. Through a
misunderstanding this observation had not been set out in the
replying papers in the interim interdict application
and was only
clearly stated for the first time in the applicants’ replying
papers in the review. The replying papers also
served as the
applicants’ answering papers in the counter-application by the
respondents for (i) a declaration that
no conditions had been
validly imposed in terms of s 42 of LUPO and (ii) an order
substituting the local authority’s
refusal to approve certain
revised building plans submitted by the respondents with an approval
of such plans.
As mentioned, the City delivered an ‘explanatory affidavit’
shortly before the hearing of the application. The stated
purpose of
this affidavit was to assist the court by apprising it of the
relevant facts. It was proper and commendable of the
City to present
this evidence; although it was unfortunate that it was produced so
late, barely a day before the matter was due
to be argued.
8
It was confirmed in the explanatory affidavit of the City that the
conditions in contention had indeed been imposed and that
Mr Geh had
been notified thereof in a so-called ‘final notification’
letter, dated 18 December 2006.
It was argued on behalf of the respondents that if the information
contained in the City’s explanatory affidavit had been
available to them earlier they would not have opposed the review or
instituted the counter-application. In a supplementary affidavit
submitted in response to the City’s explanatory affidavit, the
respondents averred that they had opposed the review application
on
the basis of their assessment of the facts alleged in the founding
papers. In this regard they contended that it had not been
established in the founding papers that conditions had been validly
imposed, or that the respondents had been duly notified thereof.
The
respondents averred that their opposition on these grounds as well
as their counter-application were ‘bona fide and
reasonable in
the light of the content of the founding affidavit and the facts
available at the time of attesting our answering
affidavits and
launching of the counter-review. Before adopting this position we
made concerted efforts to obtain the relevant
information …from
the City (without success) and this is already on record.’ The
respondents also suggested that
their treatment by the City had been
less than even-handed when compared with the co-operation allegedly
given to the applicants.
This latter suggestion was quite correctly
abandoned by the respondents’ counsel when the applicants’
counsel convincingly
demonstrated from the bar that it was
ill-founded. The respondents argued that in the circumstances it
would be unfair for them
to be made liable for all of the
applicants’ costs of suit in the proceedings and it was
submitted on their behalf by counsel
that it would be appropriate to
make the respondents liable for only one half of the applicants’
costs in the review. In
advancing those submissions respondents’
counsel purported to reserve their position with regard to seeking a
costs order
against the City. I made it clear, however, that if
costs were to be sought against the City, the determination of costs
would
have to stand over until the City had been given notice and an
opportunity to submit argument. In the face of that indication
counsel requested me to determine costs as between the actively
participating parties in the litigation; that is excluding the
City.
Before making that determination, I consider it
to be appropriate, in the sorry circumstances of this matter
described thus far,
to highlight some of the pertinent shortcomings
in the administrative process and draw to the attention of the
relevant organs
of state certain measures which require attention if
cases similar to this are to be avoided. Problems such as those that
have
characterised the current case are to be expected if the
provisions of the applicable zoning restrictions are not
sufficiently
clear and accessible to the public. As already
mentioned, the provisions of the zoning scheme, including any
applicable departures
or conditions, are generally obligationary by
reason of s 39 of LUPO. They are therefore plainly intended to
have the effect
of law in a legislative sense, albeit
administratively made. Zoning scheme provisions are intended to
regulate land use and development
so as to promote the co-ordinated
and harmonious use of land; cf. e.g.
Esterhuyse
v Jan Jooste Family Trust
1998 (4) SA
241
(C) at 253H-I.
9
The public, and most certainly the owners and occupiers of land in
the close proximity of other land which is to be the subject
of
altered land use or development, for example, by the erection
thereon of new or extended building structures, have a cognisable
legal interest in compliance with and the enforcement by the local
authority with the provisions of the applicable zoning scheme.
This
much has been recognised in many judgments over the years handed
down by courts throughout the country. The seminal judgment
on point
in this jurisdiction is generally recognised to be that of
Grosskopf J in
BEF
(Pty) Ltd
v Cape Town Municipality and Others
1983
(2) SA 387
(C),
at 400-401.
10
The provisions of s 36 of LUPO, which require a local
authority, when deciding any application under LUPO, to have regard
to the preservation of the natural and developed environment
concerned or the effect of the application on existing rights
concerned, amongst other matters, afford statutory confirmation of
the existence of that legal interest.
It is a basic tenet of the rule of law that law cannot be effective
if its content is not clear and readily accessible. So, for
instance, as Mokgoro J observed in
President of the RSA v
Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC)
(1997 (1) SACR 567
;
1997 (6) BCLR 708)
at para. [102], in the context of addressing the content of the
concept of ‘law of general application’ in s 33
of
the interim Constitution
11
,
‘The need for accessibility, precision and general application
flow from the concept of the rule of law. A person should
be able to
know of the law, and be able to conform his or her conduct to the
law. Further, laws should apply generally rather
than targeting
specific individuals’; or, as De Villiers J put it in
Bareki NO and Another v Gencor Ltd and Others
2006 (1) SA 432
(T) at 439 C-D, in the context of discussing the presumption against
retrospective effect of legislation, ‘The ability
to arrange
one's affairs in the shadow of the law is an essential requirement
to the rule of law. The point was made as follows
by the American
Supreme Court in
Papachristou v City of Jacksonville
[1972] USSC 42
;
405 US
156
(1972) at 162:
'Living under a rule of law entails various
suppositions, one of which is that "[all persons] are entitled
to be informed as
to what the State commands or forbids"
Lanzetta v New Jersey
[1939] USSC 61
;
306
US 451
, 453.
'.’
The provisions of LUPO indicate that ‘departures’ should
be recorded in a local authority’s register (as defined).
I
have already highlighted the abstruse nature of such a register. The
facts of this case illustrate just how illusive the contents
of the
register, as defined, can be – not only to the public, but
also to professionals engaged in the field of land use
and
development and even the local authority’s own officials.
Although one cannot be certain on the papers, this probably
explains
why the building control officer failed to advise the local
authority in his recommendation in terms of s 6 of
the Building
Act that a building constructed as proposed in the building plan
application would contravene the land use restrictions
imposed in
terms of the s 42 conditions.
It was remarkable that none of the witnesses, whether they be
municipal officials or professional town planners or architects,
made any mention of having had reference to the zoning map. I think
it may safely be inferred from this common omission that
the map
also does not fulfil an effective role in informing anyone of the
existence or the nature of departures applicable to
any land unit.
It is furthermore not clear how accessible the zoning map is to the
public. The map would not serve the purpose
of informing the public
of the applicable legal restrictions if it is not readily available
for inspection without the need to
make formal application in terms
of the Promotion of Access to Information Act 3 of 2000 (‘PAIA’).
The method of advising the applicant-owner of the affected land unit
of the imposition of the altered land use restrictions by
means of a
‘final notification’ letter might afford a generally
effective basis of making the relevant departures
binding on the
owner, but it does not afford an effective means of making the
departures generally binding on the public in the
manner that s 39
of LUPO requires for the purpose of achieving the wider objective of
zoning provisions in principle. Altered
land use restrictions
affecting what may be built on particular land units will rarely be
intended only to be personal or individual
in effect; they are
determined with regard to the criterion of ‘desirability’
within the meaning of s 36 of
LUPO
12
and are intended to govern the future development of the land unit,
regardless of who the current or succeeding owners of the
subject
property might be, or the identity of the successive owners of
surrounding properties who have a legal interest in the
enforcement
of compliance with the applicable zoning scheme, including all duly
granted departures. That is the characteristic
of such restrictions
which has led to them being described as essentially servitutal in
nature; cf.
Provisional Trustees, Alan Doggett Family Trust v
Karakondis and Others
1992 (1) SA 33
(A) ([1992]
1 All SA 242
(A)) at 37B-D (SALR).
The facts and the result of the
Alan Doggett Family
Trust
case are illustrative of how the use of the imposition of
conditions for land use planning purposes can be negated if proper
attention is not given to making the conditions generally binding.
Ironically, the litigation in that matter also arose from a
dispute
between neighbouring landowners in Camps Bay. The background facts
to the
Alan Doggett Family Trust
case were as
follows: A landowner applied in terms of the then applicable
Townships Ordinance (the statutory predecessor of LUPO)
to subdivide
his property into two erven. A neighbour objected to the application
on the grounds that the use and development
of the applicant’s
property for the construction of a dwelling house on each of the two
units to be created in terms of
the proposed subdivision would
obstruct the sea view enjoyed from the neighbour’s property.
The Administrator approved
the subdivision, but – plainly in
order to protect the amenities of neighbouring property –
imposed a condition that
‘development on the subdivisional
portions be restricted to one storey above the street level of Upper
Francolin Road’.
The Administrator also imposed a number of
other conditions in respect of his approval of the subdivision. He
directed that some
of the resultant restrictions on the development
of the subdivided portions be registered against the title deeds. He
omitted
however to make such a direction in respect of the
aforementioned height restriction. The result was that the
protection sought
to be afforded to the amenity of the neighbour’s
property was rendered nugatory when, as an obviously foreseeable
consequence
of the subdivision, the divided portions were
subsequently sold off to purchasers who acquired them ignorant of
the existence
of the unregistered conditions. One of these
purchasers commenced with erection of a double storey dwelling.
The Appeal Court upheld the dismissal by the Cape High Court of the
interdict sought by the neighbour to prohibit the erection
of a
double storey building on one of the subdivided portions. It did so
on two bases. The court found that the Administrator’s
decision not to require the registration of the condition indicated
that the specific condition was deliberately not intended
to be
servitutal in nature, and had been intended to be binding only on
the applicant for subdivision, and not his successors
in title. This
finding was premised on the court’s view of the peculiar facts
of that case, which, although it might be
amenable to criticism, is
self-evidently not of any relevance for present purposes. The second
basis, which is relevant to the
matter currently under
consideration, was given in the alternative to the first. It arose
from the argument by the neighbour’s
counsel that the
imposition of building height restriction condition was an
administrative act having the force of law and was
binding on the
subsequent purchaser despite the fact that the building restriction
was not registered in the title deed of the
subdivided portion and
that she had no knowledge of its existence when she bought and
obtained transfer of the property. Counsel’s
argument was
advanced with regard to judgments in two other cases,
13
which it was contended were analogous. The court rejected the
contention, holding the other matters to be distinguishable. Judged
by the absence of any mention thereof in the judgment, it would
appear, however, that the court’s attention was not directed
to the obligationary provisions of s 39 of LUPO. The provisions
of s 39 of LUPO apply also to all conditions imposed
in terms
the Townships Ordinance.
14
Joubert JA addressed the argument that the subsequent purchaser
was bound by the unregistered condition by reason of the
effect of
administrative lawmaking as follows (at 39J-40B SALR):
On the assumption that the imposition of the building
restriction by the Administrator as a condition of subdivision was an
administrative
act intended to have the force of law but which was
not required by the Administrator to be registered, then the
imposition thereof
had to be brought to the knowledge of the First
Respondent in order to render it binding on her. See
Byers v Chinn
and Another
1928 AD 322
at p 329-331. To hold otherwise would
seriously imperil the position of
bona fide
purchasers and
owners of land who buy and own land by virtue of a clean title deed
without any reference to the existence of an
unregistered restrictive
condition which would diminish the ownership of the land. I
accordingly find that there is no substance
in the contention of Mr
Rosenthal
.
(I respectfully venture that h
ad the Appeal
Court’s attention been drawn to the provisions of s 39 of
LUPO and had the court been alerted to the provisions
of the
Ordinance which suggest that the object of zoning is the co-ordinated
and harmonious use of land, it might not have distinguished
the
ratio
in
Thompson v Port
Elizabeth City Council
1989(4) SA 765
(A). The issue identified in
Byers v
Chinn and Another
,
loc
cit
,
would
nevertheless have remained a consideration in assessing the
efficacious of the imposed condition as a provision with generally
binding effect.)
The obligation imposed by s 39(1) of LUPO on every local
authority to comply with and enforce compliance with the provisions
incorporated in a zoning scheme and any conditions imposed in terms
of the Ordinance brings with it, if the obligation is to
be
effectively discharged, a duty by such authorities to ensure that
any such conditions are made accessible to the public in
a manner
consistent with the requirements of effective lawmaking. That duty
is not discharged merely by sending a final notification
letter to
the owner of the subject property and filing a copy in a folder that
is not always readily available. The duty could
be carried out by
publishing the conditions in the Provincial Gazette, or, even more
effectively, by requiring them to be registered
against the title
deed of the affected land unit. There is no reason why the wording
of such conditions could not be suitably
worded to reserve the right
to the planning authority to waive or vary their effect as
contemplated by s 42(3) of LUPO.
Had the conditions been
registered in the current case, the unlawful and invalid approval of
building plans would in all likelihood
not have occurred and the
adverse financial and logistical consequences of that decision
thereby avoided. To the extent that
the currently extant
legislation
15
is inadequate to facilitate the registration or proclamation of such
conditions, appropriate measures should be considered to
redress the
deficiency. In the interim, local authorities might usefully
consider making the grant of departures conditional
upon the
execution by applicant owners of appropriate non-revocable powers of
attorney for the registration of appropriately
worded servitutal
conditions as a means of achieving the required effectiveness and
public notification.
While I therefore have some sympathy for the respondents if they
were indeed unaware of the imposition of the conditions because
of
the difficulties they encountered in trying to verify the actual
position, the fact remains that it has been established that
their
agent, Mr Geh, was informed about the conditions. Geh’s
knowledge, even though he might genuinely have overlooked
receipt of
the ‘final notification’ letter, falls to be imputed to
the respondents as his principals. No proper basis
has been
established in this respect on which the respondents should be in
any degree exempted from the consequences of the general
rule in
litigation that costs follow the result.
One of the other issues that were debated in the context of the
argument on costs was that of access to the record of the delegation
of authority by the municipal council of its functions under LUPO to
SPELUM. The respondents contended that it behoved the applicants
to
prove SPELUM’s authority in their founding papers. They
objected to the production of the record of the City’s
applicable system of delegations as an annexure to the applicants’
replying papers. They also pointed to the difficulties
they and
their representatives had had in trying to obtain a copy of the
record of delegations for the purposes of their counter-application,
in which, it will be recalled, they sought a declaration that the
imposition of the conditions had been outside the authority
of
SPELUM. They averred that they had been pushed from pillar to post
by various officials of the municipality during their endeavours
to
obtain the relevant information. They had eventually been informed
that they were required to make a formal application for
the
information in terms of PAIA. The eventual provision of a copy of
the system of delegations by the City was raised by the
respondents
as one of the examples of the City’s alleged lack of
even-handedness in its treatment of the protagonists in
the
litigation. As pointed out by the applicants’ counsel, there
was no substance in this allegation as the record in question
had
been provided to both sides in the dispute at the same time as an
attachment to a single email from the City addressed to
them both.
In my judgment there was no merit in the respondents’
contentions on this issue. It was not incumbent on the applicants
to
prove the authority of SPELUM. It was sufficient for the applicants
in their founding papers to allege the fact of the imposition
of the
conditions by SPELUM and on the effect,
prima facie
, of the
presumption
omnia praesumuntur rite esse acta
. The applicants
were entitled to accept that the respondents would be aware of the
committee system of municipal government and
the fact that the
municipal council was empowered by statute to devolve the relevant
function to a committee such as SPELUM.
If the respondents disputed
the authority of the committee in their answering papers, it was
open to the applicants to address
the challenge in their replying
papers, as they did. By contrast, the respondents were required by
the nature of the relief they
sought in terms of their
counter-application to allege and prove their contention of a lack
of authority by SPELUM to impose
the conditions and the applicants
were entitled to traverse the issue in their response to the
counter-application. The length
and content of the applicants’
replying papers were affected by the dual nature of the reply in the
context of the counter-application.
Although, as too often the case
with replying affidavits, they were characterised by an amount of
unnecessarily argumentative
content, I do not consider that there
was otherwise anything else materially objectionable about them.
The record of the City’s system of delegations would be a most
relevant piece of evidence in this regard. Apart from the
opportunity that would have been afforded had the respondents used
the procedure afforded by uniform rule 53, I consider that
a local
authority’s system of delegations is a something that, by its
nature, should be available to the public without
the formality of a
request, as defined in PAIA. In terms of s 14(1) of PAIA, the
City, being a ‘public body’
within the meaning of the
Act, is required to compile and make available a manual describing,
amongst other matters, its structure
and functions. An adequate
description of the City’s structure and functions would
include a description of its political
structures, of which the
SPELUM committee is one, and an indication of the functions
delegated to such structures in terms of
s 59 of the Local
Government: Municipal Systems Act. It is evident in reg. 4 of
the Promotion of Access to Information
Regulations, 2002, made in
terms of s 92 of PAIA, that a public body’s information
manual is meant to be easily accessible,
without charge. The
existence or content of the City’s information manual was not
traversed in the evidence. Suffice it
to say, however, that it
should not have been necessary for any of the parties to have to
apply for the particulars of the framework
of delegations by the
municipal council to its committees established in terms of
s 79
of the
Local Government: Municipal Structures Act 117 of 1998
by way
of a formal request in terms of PAIA.
In related vein I consider it appropriate to
observe that the unwholesome situation of a partly completed
building standing unattended
for months while litigation took its
course could also have been avoided if the local authority had
heeded the advice given in
the majority judgment of the
Constitutional Court in
Walele
v City of Cape Town and Others
[2008]
ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC)
, at
para. [71], that notwithstanding the absence of a statutory
requirement to that effect, it would be ‘helpful and
enhancing
to the process [of considering building plan applications] if the
Building Control Officer, at the stage of compiling
the
recommendation invite[d], from owners of neighbouring properties,
representations about the impact the proposed building
might have on
their properties. Such approach would help in dealing with issues
relating to disqualifying factors. This would
significantly reduce
chances of approval of plans in cases where some of the
disqualifying factors exist but were not discovered
by a local
authority. As we now know, the existence of such factors, if proved,
constitutes a valid ground for setting aside
the approval after it
had been acted upon and at high cost to all parties concerned’.
Implementation of that advice would assist in the fulfilment of
local government’s objects in terms of s 152 of the
Constitution. There is no reason why the logistical and financial
burden of giving notice of building plan applications to
neighbouring property owners as part of the process should not be
borne by the building plan applicants, and it is therefore beyond
understanding why the City has apparently not heeded the advice
given them by the highest court in the land on constitutional
matters.
16
There were rumblings during the argument of the current case about
delictual liability on the part of the municipality. While
expressing no opinion on the cogency of these on the facts of the
current case, local authorities might do well to consider in
principle whether an unreasonable manner of dealing with their
obligations under s 39 of LUPO, s 7 of the Building
Act,
or s 152(2) of the Constitution might not indeed expose them to
the risk of liability in this regard.
17
That the litigation might have been avoided had the imposition of
the relevant conditions been more effectively implemented and
communicated does not, however, afford a basis for the respondents
to avoid the usual consequences of the result of the litigation
in
respect of liability for costs. In the result the following orders
are made:
The purported approval by the third respondent of the building plan
application submitted by the respondents in terms of s 4
of the
National Buildings Regulations and Building Standards Act 103 of
1977 on 4 June 2009 is reviewed and set aside.
Insofar as might remain necessary, the counter-application is
dismissed.
The first and second respondents shall be liable to pay the
applicants’ costs of suit in the application and the
counter-application;
such costs to include the costs of two counsel
and the qualifying fees of Mr Thomas Brümmer.
The Registrar is directed to forward a copy of this judgment to the
Provincial Minister responsible for Development Planning
and to the
City Manager, City of Cape Town.
A.G. BINNS-WARD
Judge of the High Court
Date of Hearing:
10 November 2010
Date of Judgment
16 November 2010
Applicants’ counsel:
D.F. Irish SC
D. Baguley
First and second
respondents’ counsel
J.G. Dickerson SC
G.A. Leslie
Applicants’ attorneys
Slabbert Venter Yanoutsos Inc
Wynberg
Deneys Reitz Attorneys
Cape Town
First and second
respondents’ attorneys
Kritzinger & Co.
Cape Town
1
In
an affidavit filed in support of their contentions why costs should
not completely follow the result, the respondents indicated
their
intention to convert the current partly completed structure for use
as a single dwelling instead of as a double dwelling.
2
See
s 2 of LUPO and reg. 2 of the scheme regulations.
3
Thus
the differentiation by counsel in argument of the alleged
infringement of the generally applicable provisions of the zoning
scheme and the alleged infringement of s 42 conditions as if
these afforded two independent grounds of review was not strictly
speaking correct. They actually constitute a single ground of
review; that is the approval of the building plans in respect of
a
proposed building that if erected would infringe the zoning scheme
was unlawful because it would breach the local authority’s
statutory obligations in terms of s 39 of LUPO and s 7(1)
of the National Building Regulations and Building Standards
Act 103
of 1977 (‘the Building Act’)..
4
Section
39 of LUPO provides, insofar as currently relevant:
(1) Every local authority shall comply and enforce
compliance with-
(a) the provisions of this Ordinance or, in so far
as they may apply in terms of this Ordinance, the provisions of the
Townships
Ordinance, 1934 (Ordinance 33 of 1934);
(b) the provisions incorporated in a zoning scheme
in terms of this Ordinance, or
(c) conditions imposed in terms of this Ordinance or
in terms of the Townships Ordinance, 1934,
and shall not do anything, the effect of which is in
conflict with the intention of this subsection.
(2) No person shall-
(a) contravene or fail to comply with-
(i) the provisions incorporated in a zoning scheme
in terms of this Ordinance, or
(ii)
conditions imposed in terms of this Ordinance or in terms of the
Townships Ordinance, 1934
5
Cf.
Camps
Bay Ratepayers and Residents Association and Another v Harrison and
Another [2010] ZACC 19 (4 November 2010)
at para. [14].
The judgment, which is not yet reported in the law reports, may be
accessed at
http://www.saflii.org/za/cases/ZACC/2010/19.pdf
.
6
See
s 10 of LUPO, read with s 12(3) thereof.
7
SPELUM
is a committee of councillors established in terms of
s 79
of
the
Local Government: Municipal Structures Act 117 of 1998
, to which
the relevant powers had been delegated by the council in terms of
the system of delegations adopted in terms of
s 59
of the
Local
Government: Municipal Systems Act 32 of 2000
.
8
Much
of the information put before the court in this affidavit should
have been available in the administrative record had the
respondents
availed of the procedures in terms of uniform rule of court 53 in
their attack on the allegedly imposed
s 42
conditions. Had
those procedures been used, the administrative record in respect of
the decision to impose the conditions would
have been put in. In
this regard the respondents argued with reference to
Jockey Club
of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) that they were not
bound to use
rule 53.
The applicants however contended that in the
peculiar circumstances they were prejudiced by the respondents’
failure to
avail of the procedures provided in terms of the rule in
what was essentially, at least in part, an application to review the
imposition of the conditions. In this regard the applicants relied
on
South African Football Association v Stanton Woodrush (Pty)
Ltd t/a Stan Smidt & Sons and Another
2003 (3) SA 313
(A)
([2003]
1 All SA 274)
at para.s [4]-[5]. Had it been necessary to
determine the issue, I would have been inclined to hold in favour of
the applicants’
argument. The proper course, however, would
have been for the applicants to use
rule 30
to force the respondents
to use the appropriate procedure.
9
Cf.
also
Broadway Mansions (Pty) Ltd v
Pretoria City Council
1955 (1) SA 517
(A) at 523B
10
See
also
Esterhuyse
, supra,
at
253J-254C.
11
Act
200 of 1993.
12
Section
36 of LUPO provides:
(1) Any application under Chapter II or III shall be
refused solely on the basis of a lack of desirability of the
contemplated
utilisation of land concerned including the guideline
proposals included in a relevant structure plan in so far as it
relates
to desirability, or on the basis of its effect on existing
rights concerned (except any alleged right to protection against
trade
competition).
(2)
Where an application under Chapter II or III is not refused by
virtue of the matters referred to in subsection (1) of this
section,
regard shall be had, in considering relevant particulars, to only
the safety and welfare of the members of the community
concerned,
the preservation of the natural and developed environment concerned
or the effect of the application on existing rights
concerned (with
the exception of any alleged right to protection against trade
competition).
13
Duze
v Eastern Cape Administration Board and Another
1981(1)
SA 827 (A) at p 841 C-E and
Thompson v
Port Elizabeth City Council
1989(4) SA
765 (A)
14
See
s 39(1)(c) of LUPO. The relevant part of s 39 has been set
out in fn.4, above.
15
I
have in mind the provisions of the
Deeds Registries Act 47 of 1937
,
the Interpretation Act 33 of 1957 (which is serious need of updating
and revision to address the requirements of the modern
constitutional framework) and the Provincial Powers Extension Act 10
of 1944.
16
The
recent judgment in
Camps Bay Ratepayers and Residents
Association and Another v Harrison and Another
, supra, as well
as that in
Walele
itself, confirm that a local authority’s
non compliance with its obligations in terms of s 7 of the
Building Act gives
rise to a constitutional issue.
17
Cf.
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA)
at para.s
[19]-[20].