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[2016] ZAECPEHC 58
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Georgiou v Nelson Mandela Bay Metropolitan Municipality and Others (1147/2016) [2016] ZAECPEHC 58; [2016] 4 All SA 524 (ECP) (22 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: 1147/2016
In
the matter between:
YVETTE
GEORGIOU
Applicant
and
NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
First
Respondent
PUMZA
GWABENI
N.O.
Second
Respondent
JOHANN
METTLER
N.O.
Third
Respondent
JUDGMENT
MBENENGE
J:
[1]
The applicant seeks an order compelling the first respondent (the
Municipality) to approve a building plan submitted by her
in respect
of Erf […], Lorraine, Port Elizabeth in terms of section 7 of
the National Building Regulations and Building
Standards Act 103 of
1977 (the Act).
[2]
The application has a long and colourful history, spanning
approximately the past 10 years. For present purposes, only
the
salient facts, which are by and large common cause, need be narrated.
The applicant purchased Erf [...] during the year
2005.
She thereafter purchased the adjoining property located at 250A and,
ultimately, during or about December 2014,
Erf …6 at …
Kragga Kamma Road, the intention having been to consolidate the three
erven and convert her business
into a five-star boutique hotel
inclusive of 22 guest rooms, a conference centre, a wedding venue, a
chapel, a gift shop and a
SPA.
[3]
It came to pass during 2007 that the applicant lodged an application
with the Municipality in terms of regulation 3.18 of the
applicable
Zoning Scheme Regulations
[1]
for
special consent to implement a lawful secondary use to the
Residential 1 zoning to operate a guest house on Erf [...].
Pursuant thereto, the applicant was granted special consent to
operate a twelve-roomed guest house. The Municipality also
gave
approval to the applicant’s site development plan submitted in
compliance with the conditions of the special consent
on 26 February
2010. Reflected on the site development plan was a room added
to Erf [...] which was intended for use as a
gymnasium and for
multiple purposes.
[4]
One of the conditions on the tittle deed accompanying the site
development plan precludes the construction of any building or
structure, except boundary walls and fences, closer than 4.5 metres
from the rear boundary of Erf [...] or 1.57 metres from a lateral
boundary common to an adjoining Erf.
[5]
It is common cause that on Erf [...] a private gym, swimming pool and
chapel were built without an approved plan. The
chapel was
built 1.5 metres from the side and rear boundary line of the Erf, in
breach of the restrictive condition in the title
deed applicable
thereto. It is the existence of the restrictive condition
pertaining to the rear building line that made
the Municipality
refuse the applicant’s building plan, even though the related
site development plan had previously received
approval.
[6]
Meanwhile, construction of the multi-purpose room on Erf [...] had
commenced after foundations had been laid with the involvement
of the
Municipality, in anticipation of the ultimate approval of the
building plan. Once the Municipality refused to accept
the
building plan, construction on the site ceased at a time when a
portion of exterior walls had already been constructed.
[7]
The applicant also set in motion the process of acquiring Erf …0,
Lorraine, located immediately behind Erf [...] in the
hope that a
consolidation of erven […] and …0 would result in the
encroachment over the building line falling by
the wayside, or an
application made for relaxation of the building line. The
construction on Erf [...] resumed and the building
work thereon was
completed during the latter half of 2013.
[8]
On 9 December 2013 the applicant applied to the Municipality for a
rezoning of erven […], ..8 and 1756.
[9]
During April 2014 the Municipality brought an application before this
court seeking an order directing the applicant to take
all necessary
steps to demolish all unlawful building structures,
[2]
and restraining the applicant from continuing with the construction
of buildings until such time as the applicant shall have received
an
approved building plan from the Municipality.
[10]
Amidst opposition, the application by the Municipality was
granted,
[3]
and leave to appeal
subsequently applied for by the applicant was refused by the SCA and,
ultimately, by the Constitutional Court.
[4]
[11]
The Municipality also successfully applied for the review of its
decision in respect of the aforesaid rezoning and the special
consent
on the basis that an incorrect procedure had been followed.
[5]
[12]
Subsequent thereto, the applicant engaged her architect to prepare a
plan in respect of the structure on Erf [...] constructed
without an
approved plan, to provide for demolition of the portion encroaching
over the rear building line to enable her to comply
with the terms of
the order by Revelas J directing her to demolish the structure.
[13]
On 20 November 2015 the applicant submitted the plan drawn by her
architect for approval. The plan was not approved.
The
relevant functionary of the Municipality proffered the following
comment:
“
TPMM
TP TO COMMENT
D55
DRAINAGE INSIDE BUILDING NOT ALLOWED
D76
EXISTING UNAUTHORISED STRUCTURE OVER BUILDING LINES TO BE DEMOLISHED
PNTR
PLAN
NOT A TRUE REFLECTION OF WHAT IS ON SITE
ADDT
ADJACENT TO COLDROOM
& OBTAIN A VENTILATION CERTIFICATE FROM
ENGINEERS
DO3
DRAINAGE PALN NOT APPROVED
OIFH
APPROVED FIRE PLAN REQ
RRPO
REDUCE
SCALE OF SOUTH EAST ELEVATION
WD1
WINDOW TO BE I M FROM BOUNDARY
SANS
S/T
ALL TIMBER USED IN THE ERECTION OF A BUILDING BE TREATED AGAINST
TERMITE
SANS 2
AND WOOD BORER ATTACK &
FUNGAL DECAY IN ACCORDANCE WITH SANS
10005
CCAS
COURT
CASE PENDING
QUPW
QUERY USE
OF PROPOSE ADDITION.”
[14]
Site meetings involving officials of the Municipality and the
applicant’s architect were thereafter held. Steps
were
also taken by the applicant to give heed to the comments which had
resulted in the applicant’s plan being not approved
in the
first place. The plan was also amended to be in line with the
changes the architect had effected.
[15]
The amended plan was submitted, but did not receive the approval of
the Municipality, on 11 December 2015. On this occasion
the
Municipality commented:
“
ADPA
ADDITIONAL PLAN FEES PAYABLE
DO3
DRAINAGE PLAN NOT APPROVED
CPDR
COVERED
POOL DETAILS REQ
15GG
PLAN
TO BE A TRUE REFLECTION OF WHAT IS ON SITE
JSHD
SEE
LETTER ATTACHED
SANS
S/T ALL
TIMBER USED IN THE ERECTION OF A BUILDING BE TREATED AGAINST
TERMITE
SAN2
AND
WOOD BORDER ATTACK & FUNGAL DECAY IN ACCORDANCE WITH SANS
10005
CCAS
COURT
CASE PENDING.”
[16]
Some delay in processing the matter was occasioned, punctuated by the
loss on no less than 3 occasions, of copies of the already
submitted
building plan. The loss was not accounted for by the relevant
municipal officials.
[17]
Exchange of correspondence between the applicant, through her
attorneys, and the Municipality (through its attorneys) ensued.
The applicant had been urging the Municipality to approve the plan,
drawing attention to the fact that all shortcomings previously
pointed out had been remedied, without the attraction of any decision
favourable to her. For instance, by letter dated 23
March 2016
penned by the Municipality’s attorneys an undertaking was made
that the Municipality would consider the plan which
had been
resubmitted on 8 March 2016 “
within the ambit of the terms
of the Court Order where it deals with Erf [...] and the National
Building Regulations and Buildings
Standards Act 103 of 1977
.”
In that letter the applicant was further advised as follows:
“
[The
Municipality] is the decision maker and we cannot therefore advise on
whether the plans will be approved or not until the decision
has been
made. [The Municipality] will inform your agent of its
decision.”
[18]
Having been of the view that the Municipality had been dilatory,
heedless of the provisions of section 7 of the Act which obliges
the
Municipality to either grant or refuse its approval of the plans
submitted within 30 thirty days after receipt of the application
where, as here, the architectural area of the building to which the
application relates is less than 500m
2
, the applicant
resorted to the instant application on 11 April 2016.
[19]
In pursuit of their opposition to the application, the respondents
have contended that subsequent to the launch of the application
(on
11 April 2016) the applicant’s building plan had been
considered on 15 April 2016 and refused because it did not comply
with the Act and regulation E1 of the Regulations. It is
further contended that approval of the plan would fall foul of the
zoning and the limited use to which the properties could be put
having regard to the special consent granted and the limitations
placed thereon as appears more fully from the judgment of Revelas J.
Further affidavits were delivered by the parties resulting
from the
comment sheet by the Municipality of 15 April 2016 issued subsequent
to the launch of the application. Linked to that
was an application
by the respondents to strike out matters introduced by the applicant
not in her replying affidavit but in her
supplementary affidavit
[20]
According to the relevant comment sheet embodying the decision of 15
April 2016 the applicant’s building plan was “
not
approved
”
, and
the following comments were proffered by the Municipality:
“
NFC
NO FURTHER COMMENTS AT THIS STAGE
SANS
S/T
ALL TIMBER USED IN THE ERECTION OF A BUILDING BE TREATED AGAINST
TERMITE
SAN2
AND
WOOD BORER ATTACK & FUNGAL DECAY IN ACCORDANCE WITH SANS
10005
SAA4
SUBMIT
AND APPLICATION FOR DEMOLITION IN TERMS OF REGULATION E FOR
ALL 3 PROPERTIES
DO2
DRAINAGE PLAN APPROVED
SAAR
SUBMIT
AN AFFIDAVIT RE EXCLUSIVE USE OF RESIDENTIAL 1 FOR ERF [...]
G&SR
FIRE
WALL REQ BETWEEN GARAGE AND STUDY
ZA4D
QUERY APPROVAL
FOR DISPLAY AREA”
[21]
At issue in these proceedings is whether the comment sheets issued by
the Municipality, from time to time,
[6]
embodying the Municipality’s decisions not to approve the
applicant’s building plan communicated a decision to refuse
to
grant approval of the plan or whether, properly construed, the
comment sheets amounted to a postponement or avoidance of a
decision. The answer to this question is dispositive of this
case.
[22]
The bedrock of this application is section 8(1) of the Act which
grants the court the power to make an order directing a local
authority which fails to grant or refuse timeously its approval in
accordance with section 7 in respect of an application within
the
period stated in such order. Section 7 of the Act which the
applicant seeks to invoke provides:
“
(1) If a
local authority, having considered a recommendation referred to in s
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 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 that the local authority
shall grant or refuse, as the case may be,
its approval in respect of
any application where the architectural area of the building to which
the application relates is less
than 500 square metres, within a
period of 30 days after receipt of the application and, where the
architectural area of such building
is 500 square metres or larger,
within a period of 60 days after receipt of the application.”
[23]
According to the applicant, the decisions embodied in the comment
sheets issued from time to time are not any definitive decisions
to
go by; the failure by the Municipality to deal with her application,
goes the applicant’s case, “
is simply procrastinating
on giving her relief to which [she is] entitled
.” It
was accordingly argued that section 8 accords the applicant a remedy,
as the Municipality has not taken any decision
within the stipulated
time frame.
[24]
It was argued, on behalf of the respondents, that even though the
decisions are not definitive they constitute an unequivocal
refusal
to approve the plan and once that happened a remedy available to the
applicant is that provided by section 9(1) of the
Act.
[7]
[25]
A proper construction of section 7 of the Act will provide an answer
to the question at hand. In
eThekwini
Municipality v Tsogo Sun KwaZulu –Natal (Pty) Ltd
[8]
Heher JA gave the following interpretation to the section:
“
[17]…A
local authority is not required to reject an application but only to
refuse to approve it. There is a significant
difference between
the two which is made clear in the Act and appears equally plainly in
the letter of notification. While
‘
rejection
’
may bear a sense of
outright and final refusal, a ‘
refusal
to approve
’
[9]
is more flexible and does not necessarily shut the door on future
approval. This broader meaning is implicit in s 7(5).
[18] No doubt those
applications which cannot be brought within the express reservations
in s 7(5) must be regarded as having effectively
been rejected.
In the last-mentioned event the local authority becomes
functus
officio
and the applicant who wishes his plans to receive
further consideration will have to bring a new application in terms
of s 4 (3)
of the Act. But a local authority is not
functus
officio
if the plans which it has previously refused to approve
qualify for reconsideration by reason of s 7(5)(
a
)or (
b
).
In such the earlier refusal to approve was merely conditional and may
be reversed.
[19] Even in this
sense of a refusal to approve, the notification must no doubt be
unequivocal: it must manifest approval of the
plans or refusal to
approve them.”
[26]
In my view, the remarks made in the
Tsogo
Sun
case
[10]
find application in
hoc
casu.
The
comment sheets convey clear and unambiguous messages. On the
face thereof it appears that the Municipality gave consideration
to
the application for approval of the applicant’s building plan;
the comments made point to certain items deserving of being
attended
to before further consideration; the comments constitute reasons for
not approving the application and what should be
attended to before
reconsideration is given. The comment sheets did not
communicate a postponement of the Municipality’s
decision
warranting the invocation of section 8.
[27]
The respondents have stated under oath that the decision taken on 15
April 2016 subsequent to the launch of this application,
referred to
above, was, in any event, final in nature. On the principle
enunciated in
Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
[11]
the application falls to be dealt with on the version of the
respondents. Therefore, I find that the decision was in fact
final and definitive.
[28]
In sum, therefore, when the instant application was launched, in May
2016, the Municipality had already taken a decision refusing
to
approve the building plan application, on 20 November 2015 and,
subsequent thereto, on 11 December 2015 and 5 February 2016.
Those decisions did not render the Municipality
functus officio
and were subsumed by the decision taken by the Municipality on 15
April 2016 rejecting the building plan.
[29]
Unless and until the decision of 15 April 2016 has been overturned by
a competent tribunal on review on the strength of the
maxim
omnia
praesumuntur
rite
esse
acta
,
[12]
it remains of force and valid. Therefore, this court has no
jurisdiction to deal with the application directly without the
applicant first approaching the review tribunal contemplated in
section 9 of the Act.
[30]
The applicant has misconceived her cause of action and is therefore
not entitled to the relief she is seeking.
[31]
I would, in any event, have exercised my discretion against granting
the applicant the final interdict she is seeking.
The building
plan subject to this application relates to a structure that was
erected without a building plan. Granting the
final interdict
would, in the circumstances of this case, undermine the principle of
legality.
[13]
In light
of the view I take of this matter, nothing more need be said on this.
[32]
I was of the view that the parties had placed all the facts enabling
the court to deal with this matter, hence the respondent’s
application to strike out was not granted. Instead, the parties
were afforded the opportunity to fully ventilate all the
issues on
all the facts placed before the court.
[33]
In the result I make the following order:
The
application is dismissed with costs.
_______________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant : Mr P W A Scott SC
Instructed
by : Deon Van Der Merwe Attorneys
C/O
Wouter Minnie Attorneys
Govan
Mbeki
PORT
ELIZABETH
Counsel
for the Respondent : Mr T M G Euijen SC
Instructed
by :Gray Moodliar Attorneys
19
Raleigh Street
PORT
ELIZABETH
Date
heard : 11 August 2016
Judgement
delivered : 22 September 2016
[1]
The Port Elizabeth Zoning Scheme
Regulations.
[2]
On Erf ...8 there was a
structure linking the main building to another free standing
building without any building plans therefor
having been submitted,
and Erf 1756 the extensions to the main building (an enclosed patio
and sunroom) were built without approved
plans and the use of the
property for hotel and wedding related activities was in breach of
the applicable tittle deed conditions
which prohibited the use of
the property for non-residential purposes.
[3]
Unreported Judgment by Revelas J
delivered on 31 July 2015 under case number (1222/14).
[4]
The order of the Constitutional
Court was delivered on 31 May 2016.
[5]
Nelson Mandela Bay
Metropolitan Municipality v Georgiou t/a Georgiou Guesthouse and Spa
and Others
2016 (2)
SA 394
(ECP) at para [82], wherein the following order was granted:
“
1.
The decision of the Executive Mayor on behalf of the applicant
municipality dated 10 November 2014 to approve a rezoning of
erven
1756, 2318 & 2787 Lorraine from Residential 1 to Residential 3
in terms of the Port Elizabeth Zoning Scheme Regulations
promulgated
under section 9(2) of the Land Use Planning Ordinance, 15 of 1985 is
hereby set aside.
2.
The decision of the Executive Mayor on behalf of the applicant
municipality dated 10 November 2014 to grant special consent
to the
first respondent to use the aforestated erven to operate a licenced
hotel and a place of worship is hereby set aside.
3.
The first respondent is ordered to pay the costs of the application,
such costs to exclude the taxed costs of drawing and preparing
the
applicant’s founding papers in the application.”
[6]
The papers reveal that more than
two comment sheets were issued. For instance there is another
comment sheet indicating
that the applicant’s building plan
was “
not
approved
”
made
on 5 February 2016
[7]
Section 9(1) provides:
“
Any
person who-
(a)
feels aggrieved by the refusal of a local authority to grant
referred to in s 7 in respect of the erection of a building;
(b)
feels aggrieved by any notice of prohibition referred to in s 10; or
(c)
disputes the interpretation or application by a local authority of
any national building regulation or any other building
regulation or
by-law,
may,
within the period, in the manner and upon payment of the fees
prescribed by regulation, appeal to a review board
.”
[8]
2007 (6) SA 272 (SCA).
[9]
My emphasis.
[10]
Supra.
[11]
1984 (3) SA 623 (A).
[12]
Oudekraal Estates (Pty) Ltd v
City of Cape Town & Others
2004
(6) SA 222
(SCA) at para [26] and
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty)
Ltd
2014 (3) SA 481
(CC) at para
[100] – [101] where the Constitutional Court cited with
approval the principle enunciated in
Oudekraal.
[13]
Lester v Ndlambe Municipality
2015 (6) SA 283
(SCA) at para
[31}