About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 186
|
|
JDJ Properties CC and Another v Umngeni Local Municipality and Another (873/11) [2012] ZASCA 186; [2013] 1 All SA 306 (SCA); 2013 (2) SA 395 (SCA) (29 November 2012)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case No: 873/11
In the matter between:
JDJ Properties CC
..............................................................................
First
Appellant
Double Diamond CC
......................................................................
Second
Appellant
and
Umngeni Local Municipality
..........................................................
First
Respondent
Triumph Brokers (Pty) Ltd
........................................................
Second
Respondent
Neutral citation:
JDJ Properties v Umngeni
Local Municipality
(873/11)
[2012] ZASCA 186
(29 November 2012)
Coram:
LEWIS, HEHER, THERON AND PILLAY JJA AND
PLASKET AJA
Heard:
08 November 2012
Delivered: 29 November 2012
Summary:
Promotion of Administrative Justice Act 3 of
2000
–whether decision to approve building plans administrative
action – standing of near-by landowner and lessee of property
to review decisions taken by municipality in terms of town planning
scheme – whether internal appeal available in terms of
s 62
of
Local Government: Municipal Systems Act 32 of 2000
or
s 9
of National
Building Regulations and Building Standards Act 103 of 1977 –
review of decisions taken in terms of town planning
scheme and to
approve building plans.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
KwaZulu-Natal High Court,
Pietermaritzburg (Seegobin J sitting as court of first instance)
1 The appeal is upheld with costs.
2 The order of the court below is set aside and replaced
with the following order:
(a) The decision of the general manager: planning and
development services of the first respondent, purportedly taken in
terms of
clause 2.6.3 of the Howick town planning scheme, relaxing
the side space requirement in respect of erf 848, Howick is set
aside.
(b) The decision of the first respondent’s council
taken on 30 June 2010 to approve the building plans submitted on
behalf
of the second respondent for building work on erf 848, Howick
is set aside.
(c) The respondents are directed, jointly and severally,
to pay the applicant’s costs, including the costs of the
application
for interim relief.
JUDGMENT
PLASKET AJA (LEWIS AND PILLAY JJA concurring)
[1] This appeal, against a judgment of the KwaZulu-Natal
High Court, Pietermaritzburg (Seegobin J) concerns four issues:
whether
the approval of the second respondent’s building plans
(including two related decisions to relax side space and parking
requirements)
by the first respondent constitutes administrative
action as that term is defined in s 1 of the Promotion of
Administrative Justice
Act 3 of 2000 (the PAJA); whether the
appellants have standing to review the decision to approve the
building plans; whether the
appellants had available to them an
internal appeal which they were required to utilise before taking the
decision on review; and
whether, if the appellants succeed in
clearing all of these hurdles, they have established a basis for the
review and setting aside
of the decision. The appeal is before this
court with the leave of the court below.
The facts
[2] The building plans in issue in this matter relate to
erf 848 situated in the central business district of the town of
Howick.
This property, zoned ‘General Commercial’, had
been owned by the first respondent but, because it had become a
derelict
eye-sore, a decision had been taken to sell it by public
tender with a view to it being redeveloped. The second respondent’s
tender was accepted and a deed of sale was duly entered into by the
first and second respondents which included certain development
requirements.
[3] Two of the development requirements warrant mention.
First, clause 9.1 of the deed of sale records that the property is
vacant
land and that it is to be ‘developed by the Purchaser as
a commercial development’. Secondly, clause 9.5 provides that
if the development of the property has not been completed within 18
months of the signing of the deed of sale ‘the Seller
may
cancel this agreement and obtain return of the Property, or may
assess and levy rates thereon as if the development had been
concluded, at its sole discretion’.
[4] The second respondent planned to build a shopping
complex on the property and, to this end, entered into an agreement
of lease
with Basfour 3281 (Pty) Ltd in terms of which the property
was let to Basfour for nine years and 11 months at a monthly rental
of R115 500. From the affidavit of Mr Ismail Cassimjee, a director of
the second respondent, it appears that the lessee’s
plan was to
utilise the property as a retail supermarket aimed at lower-income
earners.
[5] Because of the nature of the proposed supermarket’s
business, it required, in the words of Cassimjee, ‘more
building
space and less parking on the property’ because the
target clientele typically ‘do not usually have vehicles to
park
outside the retail outlet’. As a result of this, the
second respondent applied for the relaxation of the first
respondent’s
usual parking requirements in terms of the Howick
Town Planning Scheme (the Howick scheme). It also obtained the
consent of the
owners of an adjoining property, and the approval of
the first respondent, to waive the side space requirement, thus
allowing for
the building on erf 848 to abut the neighbouring erf.
Throughout this process, the first and second respondents were in
constant
contact, discussing and negotiating as the development
progressed.
[6] Prior to concluding the lease agreement with
Basfour, the second respondent had, in March 2010, submitted its
building plans
to the first respondent for approval in terms of the
National Building Regulations and Building Standards Act 103 of 1977.
In May
2010, Mr Jordoa de Jesus, a member of the first appellant and
of the second appellant, both of which carried on business in close
proximity to erf 848, learned of the proposed development. The first
appellant owns two properties situated across the road from
erf 848
and the second appellant owns a retail business that operates from
those properties.
[7] De Jesus was most unhappy that the development was
taking place at all and was also alarmed to hear that the second
respondent
appeared to be receiving favourable treatment from the
first respondent. He registered his concerns by way of a letter to Mr
Stephen
Simpson, the general manager, planning and development
services of the first respondent. He also instructed an attorney,
counsel
and a town planner to oppose the second respondent’s
application for the approval of the building plans. To this end,
written
representations were made to the first respondent and he and
his team attended a meeting of the executive committee of the first
respondent’s council, and of the council itself when the
approval of the building plans was considered and passed by the
council.
[8] When the second respondent had received confirmation
that its building plans had been approved, it concluded the lease
agreement
with Basfour and gave its building contractor the go-ahead
to commence building operations. The appellants launched an urgent
application
in which they sought an interim order interdicting the
second respondent from proceeding with the building operations
pending a
review of the decision to approve the building plans. The
application for the interim interdict was dismissed but the
application
to review the decision was postponed, with the costs
reserved.
[9] The appellants later amended their notice of motion
to include a further ground of review and further relief relating to
the
demolition of part of the building and the vacating of the
property pending the issue of a new certificate of occupancy by the
first respondent.
[10] The court below dismissed the application with
costs without deciding on the merits. It found that: (a) the decision
to approve
the building plans was not administrative action for
purposes of the PAJA because the appellants had not shown that the
decision
had adversely affected their rights and had a direct,
external legal effect, holding that ‘[o]n this basis alone the
application
falls to be dismissed’; (b) as it was unable to
find that the primary aim of the appellants in challenging the
decision to
approve the building plans was to stifle competition, it
was not able to find that they lacked standing on this account; and
(c)
the appellants had available to them an internal appeal against
the decision that they challenged, they had failed to utilise it
and,
on that account, the application had to be dismissed because s 7(2)
of the PAJA requires the exhaustion of internal remedies
before
parties may approach a court to review administrative action. These
findings will be dealt with in turn.
Administrative action
[11] Section 1 of the PAJA defines administrative
action, subject to listed exclusions that are not relevant for
present purposes,
as follows:
‘”
administrative
action” means any decision taken, or any failure to take a
decision, by –
an organ of state, when –
(i) exercising a power in terms
of the Constitution or a provincial constitution; or
(ii) exercising a public power
or performing a public function in terms of any legislation; or
(b)
a natural or juristic
person, other than an organ of state, when exercising a public power
or performing a public function in terms
of an empowering provision,
which adversely affects the
rights of any person and which has a direct, external legal effect .
. .’
[12] It does not appear to be in dispute that a
decision, as envisaged by the PAJA,
1
was taken by the first respondent, that it is an organ
of state as defined in s 239 of the Constitution, that in taking the
decision
to approve the building plans it exercised a public power
and that this power derived from legislation. The only two elements
of
the definition which are in dispute in this matter are the
requirements of an adverse effect on rights and direct, external
legal
effect.
[13] In order to interpret the definition of
administrative action in the PAJA one must begin with s 33 of the
Constitution.
2
Because the PAJA is intended to give effect to the
fundamental right to just administrative action, it must be
interpreted consistently
with s 33 and effect must be given to the
purpose of s 33, namely the creation of ‘a coherent and
overarching system for
the review of all administrative action’.
3
In
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs & others
4
O’Regan J held that because the purpose of the
PAJA was to give effect to s 33, ‘matters relating to the
interpretation
and application of PAJA will of course be
constitutional matters’. This means that the PAJA should be
interpreted generously
and purposively and that austere formalism in
its interpretation should be avoided.
5
[14] In
Sokhela & others v
MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) &
others
6
Wallis J summarised the proper approach to be taken when
he said:
‘
In my
view, the intention of the Constitution was to draw together the
disparate threads of our administrative law, and the circumstances
in
which the power of judicial review was available, under the umbrella
of a single, broad concept of administrative action. In
accordance
with the generous construction to be afforded constitutionally
guaranteed rights, conduct that attracted the power of
judicial
review under our previous dispensation will ordinarily be regarded as
constituting administrative action under the present
constitutional
dispensation. There will of course be exceptions arising from
differences in the structure of government and the
status of
differing levels of government . . . but, in general, it seems to me
that, where the power of judicial review was available
under our
previous dispensation, the courts will be slow to construe that
conduct as falling outside the ambit of administrative
action under
the Constitution and PAJA.’
[15] In
Grey’s Marine Hout
Bay (Pty) Ltd & others v Minister of Public Works & others
7
Nugent JA made the point that while the precise ambit of
administrative action has always been hard to define, ‘[t]he
cumbersome
definition of that term in PAJA serves not so much to
attribute meaning to the term as to limit its meaning by surrounding
it with
a palisade of qualifications’.
8
At its core, however, is the ‘idea of action (a
decision) “of an administrative nature” taken by a public
body
or functionary’. While indications of what is intended may
be derived from the qualifications to the definition, the term
‘also
falls to be construed consistently, wherever possible, with the
meaning that has been attributed to administrative
action as the term
is used in s 33 of the Constitution (from which PAJA originates) so
as to avoid constitutional invalidity’.
9
[16] After summarising the import of the more important
cases on what constituted administrative action in terms of s 24 of
the
interim Constitution and s 33 of the final Constitution, he
concluded that administrative action is ‘in general terms, the
conduct of the bureaucracy (whoever the bureaucratic functionary
might be) in carrying out the daily functions of the State, which
necessarily involves the application of policy, usually after its
translation into law, with direct and immediate consequences
for
individuals or groups of individuals’.
10
[17] Nugent JA approached the interpretation of the two
elements of the definition with which this case is concerned –
that
rights must be adversely affected, and that the action must have
a direct, external legal effect – on the basis that in
ascribing
a meaning to them that is consistent with the way in which
s 33 was interpreted their literal meaning could not have been
intended:
11
‘
For
administrative action to be characterised by its effect in particular
cases (either beneficial or adverse) seems to me to be
paradoxical
and also finds no support from the construction that has until now
been placed on s 33 of the Constitution. Moreover,
that literal
construction would be inconsonant with s 3(1), which envisages that
administrative action might or might not affect
rights adversely. The
qualification, particularly when seen in conjunction with the
requirement that it must have a “direct
and external legal
effect”, was probably intended rather to convey that
administrative action is action that has the capacity
to affect legal
rights, the two qualifications in tandem serving to emphasise that
administrative action impacts directly and immediately
on
individuals.’
[18] In my view, the approval of the building plans in
this case has such an effect. As De Jesus has stated, the consequence
will
be an increase in traffic using the road where both the second
appellant’s and first respondent’s businesses are
located,
with an increase in congestion. Because of the small amount
of parking authorised by the first respondent, it would inevitably
follow that the free parking provided by the second appellant to its
customers would be used by customers shopping at the second
respondent’s development.
[19] It was held by the court below that as the second
appellant’s and the second respondent’s client bases
differed,
and the latter’s client base would be poor people
using public transport, these concerns were groundless. I do not
agree
with this conclusion. The fact that the second respondent’s
client base will, in the court below’s words, mainly comprise
of ‘the rural poor’ will mean that transport will be
necessary to convey them from their homes to the shopping complex.
The vehicles concerned will increase traffic congestion in the area
concerned and will need somewhere to park. The second appellant’s
parking area is nearby and convenient. It is probable that attempts
will be made to use it and the appellants will have to take
steps to
protect their right to reserve the parking for their customers.
[20] The court below categorised these consequences as
trivial inconveniences which were insufficiently serious to qualify
as an
adverse effect on rights having a direct, external legal
effect. In so doing, it approached the issue in a narrow, legalistic
manner
rather than purposively and in accordance with the
interpretation of these requirements favoured by Nugent JA in
Grey’s
Marine
. It erred in this respect. In my view,
the decision to approve the building plans had the capacity to affect
the rights of the
appellants and others living and doing business in
the area concerned, and would impact directly on them. That being so,
all of
the elements of administrative action for purposes of the PAJA
are present and the decision to approve the building plans is
therefore
an administrative action.
[21] Furthermore, the appellants, as a landowner and
lessee respectively in the immediate vicinity of the development to
which the
building plans relate have a right to enforce compliance
with the Howick scheme. I shall expand on this when I deal with the
attack
on the appellants’ standing. Their right to safeguard
the amenity of their immediate neighbourhood was potentially affected
by the decision that they sought to impugn.
12
That brings the decision to approve the second
respondent’s building plans within the definition of
administrative action
in the PAJA.
[22] In conclusion on the administrative action point,
it has always been the case that decisions of local authorities to
approve
building plans are subject to administrative law review and
nothing in the structures of government under either the interim
Constitution
of 1993 or the final Constitution of 1996, the status of
local governments or the powers of local governments compels a
difference
in this regard.
13
Both pre- and post-1994 cases have regarded it as trite
that administrative law review applies to decisions to either approve
or
refuse to approve building plans, whether under the common law,
the Constitution directly prior to 2000 (when the PAJA came into
effect) or under the PAJA thereafter. This is perhaps the reason why
Jafta AJ, in
Walele v City of Cape Town &
others
,
14
could assert with no resort to authority that ‘[t]here
can be no doubt that when approving building plans, a local authority
or its delegate exercises a public power constituting administrative
action’. That puts paid to the first issue.
[23] Even if it is accepted that the decision to approve
the second respondent’s building plans is not administrative
action
for purposes of the PAJA, that would not mean that the
decision is immune from review: it would then be an exercise of
public power
that is reviewable in terms of s 1
(c)
of the Constitution, the principle of legality and
rationality
15
-- and it would be reviewable on essentially the same
grounds as those set out in s 6(2) of the PAJA. (In this case, where
the attack
on the decision is based on a lack of authority and
irrationality, the ‘gateway’ to review – the PAJA
or s 1
(c)
of the
Constitution – will make no difference to the result.
16
)
It follows that the court below erred in finding that the application
had to be dismissed on the sole ground that the decision
under
challenge was not administrative action.
Standing
[24] In the court below, the second respondent attacked
the standing of the appellants to review the decision to approve the
building
plans on the basis that they did not have a sufficient
interest as all they were seeking to do was to improperly suppress
trade
competition. The court below did not accept this argument but
the attack on the appellants’ standing was persisted in on
appeal but on a different basis: that the appellants, not having any
rights that had been adversely affected by the decision, had
no
standing to review the first respondent’s approval of the
second respondent’s building plans.
[25] What this argument sought to do was to conflate the
alleged absence of two of the elements of administrative action, as
defined
in the PAJA, with a lack of standing. This is, in my view, an
incorrect approach. Whether one is dealing with administrative action
as defined in the PAJA is a separate and distinct enquiry to whether
a party has standing to challenge an exercise of public power.
The
first enquiry relates to the
nature
of the public power in issue, while the second relates
to the
interest
that
an applicant may have in proceedings, and whether that interest is
sufficient to enable it to challenge the exercise of the
public power
concerned. The first issue is determined by an application of the
definition of administrative action in the PAJA
to the facts, while
the second issue is determined by the application of s 38 of the
Constitution.
17
[26] This distinction is illustrated by
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others
18
in which this court intimated (without deciding the
issue) that a decision to discontinue a prosecution was not an
administrative
action for purposes of PAJA but held that it was
reviewable in terms of s 1
(c)
of
the Constitution
19
and found that the appellant, a political party, had
standing to review the decision because, inter alia, of its interest
‘in
ensuring that public power is exercised in accordance with
constitutional and legal prescripts and that the rule of law is
upheld’.
20
[27] Whether a litigant’s interest is sufficient
to clothe him or her with standing involves a consideration of the
facts,
the statutory scheme involved (in public law disputes, a
statutory power is almost inevitably involved) and its purpose: the
issue
must, in other words, be determined in the light of the factual
and legal context.
21
[28] The source of the power to enact the Howick scheme
is the Town Planning Ordinance 27 of 1949 (Natal). Section 40(1) of
the
Ordinance contains a statement of the general purpose of every
structure plan, development plan, town planning scheme or package
of
plans. That purpose is to achieve ‘a co-ordinated and
harmonious development of the municipal area, or any area or areas
situate therein, to which it relates . . . in such a way as will most
effectively tend to promote health, safety, order, amenity,
convenience and general welfare, as well as efficiency and economy in
the process of development and the improvement of communications’.
[29] In
Administrator, Transvaal
and the Firs Investments (Pty) Ltd v Johannesburg City Council
22
Ogilvie Thompson JA said that it was ‘of the
essence of a town-planning scheme that it is conceived in the general
interests
of the community to which it applies’. And in
BEF
(Pty) Ltd v Cape Town Municipality & others
23
Grosskopf J stated:
‘
The
purposes to be pursued in the preparation of a scheme suggest to me
that a scheme is intended to operate, not in the general
public
interest, but in the interest of the inhabitants of the area covered
by the scheme, or at any rate those inhabitants who
would be affected
by a particular provision. And by "affected" I do not mean
damnified in a financial sense. "Health,
safety, order, amenity,
convenience and general welfare" are not usually measurable in
financial terms. Buildings which do
not comply with the scheme may
have no financial effect on neighbouring properties, or may even
enhance their value, but may nevertheless
detract from the amenity of
the neighbourhood and, if allowed to proliferate, may change the
whole character of the area. This
is, of course, a purely subjective
judgment, but in my view this is the type of value which the
ordinance, and schemes created
thereunder, are designed to promote
and protect. In my view a person is entitled to take up the attitude
that he lives in a particular
area in which the scheme provides
certain amenities which he would like to see maintained. I also
consider that he may take appropriate
legal steps to ensure that
nobody diminishes these amenities unlawfully.’
[30] The
BEF
case
is simply a specific application of the broader principle expressed
in
Patz v Greeene & Co
24
which was summarised thus in this court by Stratford JA
in
Roodepoort-Maraisburg Town Council v
Eastern Properties (Pty) Ltd
:
25
‘
Where
it appears either from a reading of the enactment itself or from that
plus a regard to surrounding circumstances that the
Legislature has
prohibited the doing of an act in the interest of any person or a
class of persons, the intervention of the Court
can be sought by any
such person to enforce the prohibition without proof of special
damage.’
[31] The
BEF
case
was applied by Meer J in
PS Booksellers (Pty)
Ltd & another v Harrison & others
26
when she spoke of ‘the recognised standing of
residents and property owners, in a community or township, to enforce
the provisions
of zoning schemes’. And in
Pick
‘n Pay Stores Ltd & others v Teazers Comedy and Revue CC &
others
27
Hussain J held that it was not only owners of property
but also lessees of property who may fall within the class of persons
whose
interests are protected by a town planning scheme. Consequently
it is not only owners of property who may enforce the terms of a
town
planning scheme. Lessees may also have standing to do so.
[32] In the
BEF
case,
Grosskopf J raised the question of the limits of standing for
purposes of the review of a decision in terms of a town planning
scheme. Having held that a person living in an area generally
speaking has the right to take legal steps to enforce compliance
with
the scheme, he proceeded to say that he ‘would not like to
assert dogmatically that such a remedy would be available
to all
persons living in the area covered by a scheme as large as that of
Cape Town’. He did not have to engage with this
issue because
the applicant before him was ‘an immediate neighbour to the
property on which the non-conforming garage was
built’.
28
[33]
Prinsloo & Viljoen
Eiendomme (Edms) Bpk v Morfou
,
29
while accepting the principle set out in the
BEF
case, applied the qualification alluded to by Grosskopf
J. There was in this case no evidence as to such fundamental issues
as where
the house of the respondent (on appeal) was situated in
relation to the site on which the bottle store that was the subject
of
his challenge was built, the distance between the two, the area
covered by the town planning scheme and whether the respondent’s
property and the property on which the bottle store stood were in the
same use zone.
30
In these circumstances, the court held that the
respondent had failed to show that, in relation to the property on
which the bottle
store stood, the restriction he sought to enforce
was enacted in the interest of property owners such as him.
31
In all of the cases in which a property owner was held
to have standing, Eloff JP stated, the ‘nature of the
conditions and
the circumstances of the case’ showed that the
scheme had been enacted in the interest of the applicants concerned:
in all
of these cases the applicants whose standing was recognised
were persons who owned land in the vicinity of the respondent’s
land and in each case their properties fell within the same use zone
as the respondents.
32
[34] In this matter, the nature of the interest involved
is the right to enforcement of the Howick scheme. It is this interest
that
gives the appellants standing. They are part of the class of
persons in whose interest the Howick scheme operates for three
interlocking
reasons: first, they are an owner and a lessee
respectively of property within the area covered by the Howick scheme
in a modestly
sized town; secondly, their properties and business are
within the same use zone as the development to which the building
plans
relate; and thirdly, their properties and business are in such
close proximity to the second respondent’s development, being
across a road, that no question of them being too far removed from
the second respondent’s development can arise. These factors
distinguish their circumstances from those of the respondent in the
Prinsloo & Viljoen Eiendomme
case and place them squarely
within the principles set out in the
BEF
case. In addition,
the requirements of annexure 7 of the Howick scheme in relation to
the procedure for obtaining special consent
for specific relaxations,
discussed in paragraphs 61 to 65, indicate that it is not only
immediate neighbours who may enforce compliance
with the scheme, but
all those to whom notice must be given before relaxation is
permissible, who may object to the relaxation
and even appeal against
an unfavourable decision.
[35] The appellants’ interest as persons in whose
favour the Howick scheme operates is a sufficient interest for
purposes
of s 38
(a)
of
the Constitution
33
to enable them to apply to court to vindicate their
fundamental right to just administrative action entrenched in s 33(1)
of the
Constitution and given effect to by the PAJA. The challenge to
their standing consequently has, in my view, no merit and must fail.
The exhaustion of internal remedies
[36] The court below held that the appellants had
available to them an internal appeal which they had not utilised but
were required
to exhaust before applying to review the decision to
approve the building plans. It held that their application had to be
dismissed
on this basis alone. This duty to exhaust their internal
remedy arose, it found, from s 7(2) of the PAJA (which refers to ‘an
administrative action in terms of this Act’) even though it had
held earlier that the decision complained of was not an
administrative action for purposes of the PAJA. In these
circumstances the court below could not logically have applied s 7(2)
of the PAJA and ought to have found that the less stringent common
law approach to the exhaustion of internal remedies applied (which
ironically is more compatible with the fundamental right of access to
court than s 7(2) of the PAJA) and that there was no bar
to it
reviewing the decision.
34
It should then have reviewed the decision in terms of
the principle of legality and rationality sourced in s 1
(c)
of the Constitution.
[37] As I have found that the decision was an
administrative action for purposes of the PAJA, it is necessary to
address the issue
of whether the appellants had available to them an
internal remedy which they ought to have utilised.
[38] Section 7(2) of the PAJA states:
‘
(a)
Subject
to paragraph
(c)
,
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted.
(b)
Subject
to paragraph
(c)
,
a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph
(a)
has been exhausted, direct that
the person concerned must first exhaust such remedy before
instituting proceedings in a court or
tribunal for judicial review in
terms of this Act.
(c)
A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation
to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.’
[39] No application for exemption from the duty to
exhaust internal remedies has been brought by the appellants because
their argument
is that no such remedy is available to them and so s
7(2) has no application.
[40] There appear to be only two possible internal
remedies. The first is the internal appeal created by
s 62
of the
Local Government: Municipal Systems Act 32 of 2000
. This court has
held, however, in
City of Cape Town v Reader &
others
35
that this appeal is only available to an unsuccessful
applicant for planning permission and not to a person who was not
party to
an application for planning permission, such as a neighbour.
The crux of the reasoning, in the majority judgment of Lewis JA, was
that, in
Walele’s
case,
36
the Constitutional Court had held that objectors to the
grant of planning permission (such as the appellants in this case)
have
no right to take part in the approval process, although they may
subsequently challenge the validity of the approval after it has
been
granted, and so a person who was not a party to the application
process cannot appeal against the result.
37
Section 62
is not available to the appellants. It is not
an internal remedy in their hands for purposes of
s 7(2)
of the PAJA.
[41] The second possibility is s 9 of the National
Building Regulations and Building Standards Act. This section
provides as follows:
‘
(1)
Any person who –
(a)
feels aggrieved by
the refusal of a local authority to grant approval referred to in
section 7 in respect of the erection of a
building;
(b)
feels aggrieved by
any notice of prohibition referred to in section 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.’
[42] Sections 9(1)
(a)
and
(b)
are
not of application because they apply expressly to persons who have
applied unsuccessfully for approval for the erection of
a building or
have been prohibited from either commencing or continuing with
building operations. I turn to consider whether s
9(1)
(c)
applies to the appellants.
[43] It appears to me that there are two reasons why s
9(1)
(c)
does not apply
to the appellants. The first flows from the reasoning in
Reader
.
How can a person appeal against a decision taken in proceedings in
which he or she was not a party? The essence of an appeal is
a
rehearing (whether wide or narrow) by a court or tribunal of second
instance.
38
Implicit in this is that the rehearing is at the
instance of an unsuccessful participant in a process. Persons in the
position of
the appellants cannot be described as unsuccessful
participants in the process at first instance and do not even have
the right
to be notified of the decision.
[44] The second reason relates to the subject matter of
s 9(1)
(c)
. It affords
a right of appeal in respect of a local authority’s
interpretation or application of any of three types of legislative
instruments: a national building regulation, any other building
regulation and a by-law. A regulation, according to Baxter, is
a
legislative instrument ‘used by all classes of administrative
authorities, including ministers, to complete the details
concerning
the practical implementation of the parent legislation, the
procedures to be followed and behaviour to be observed by
persons to
whom the parent legislation applies’.
39
A by-law, he says, is a legislative instrument ‘used
most frequently by municipalities to regulate the conduct of persons
falling within their jurisdiction’.
40
He defines a scheme as a legislative instrument ‘created
by local authorities for the purpose of town planning’,
41
thus distinguishing a scheme from a regulation and a
by-law.
[45] The appellants challenge the validity of the first
respondent’s relaxation of the side space and parking
requirements
of the Howick scheme. If they are correct, they argue,
the approval of the building plans will have to be set aside. The
Howick
scheme owes its legal pedigree to the Town Planning Ordinance
(Natal). In terms of s 44(1), a municipality ‘may, by
resolution,
decide to prepare’ a town planning scheme. In terms
of s 44(2), such a resolution ‘shall not take effect unless and
until it is approved by the responsible Member of the Executive
Council’(the MEC).
[46] The Ordinance prescribes procedural steps that must
be taken before the scheme can be placed before the MEC. Section 49
provides
that before it is submitted to the MEC ‘the draft
scheme shall be adopted by resolution of the local authority at a
meeting
of which special notice indicating the business to be
transacted has been given to each member’.
[47] Prior to the MEC authorising the scheme he or she
must refer it to the KwaZulu-Natal Planning and Development
Commission, for
its consideration and report. The commission must
give notice to the public of the application for the scheme’s
approval.
42
Members of the public may file objections or other
representations
43
and the application is then set down for a public
hearing, where the municipality, objectors and other interested
parties are heard.
44
After the hearing the commission submits to the MEC a
copy of the record of the proceedings, copies of objections and other
representations
and a report as well as any recommendations it may
wish to make.
45
[48] After consideration of the commission’s
report and recommendations, the MEC may refuse to approve the scheme
or he or
she may approve it with or without modifications.
46
Finally, when the MEC has approved a scheme he or she
‘shall notify such approval by proclamation in the
Gazette
and such scheme shall come into operation upon the
publication of such proclamation, and thereafter be referred to as an
approved
scheme’.
[49] From this analysis of how a scheme comes into
operation, it is apparent that, although it is a legislative
instrument (on account
of its general application), it is not a
regulation made by the MEC and it is also not a by-law passed by the
municipality. It
is a hybrid form of legislation created by
resolution in the local sphere of government, and approval and
promulgation by proclamation
in the provincial sphere of government
with a public participation process sandwiched between the two. It
is, consequently, not
one of the types of legislative instruments
referred to in s 9(1)
(c)
of
the National Building Regulations and Building Standards Act. As a
result, the internal appeal created by the section is not
available
to the appellants. (The same conclusion was reached by Davis J in
Van
der Westhuizen & others v Butler & others
47
in relation to the equivalent legislation in the Western
Cape Province.)
[50] In the result, the court below’s conclusion
that the appellants’ application had to be dismissed because
they had
not, prior to launching it, exhausted their internal
remedies as required by s 7(2) of the PAJA was erroneous. That being
so, the
merits of the application to review the approval of the
second respondent’s building plans can now be considered, the
twin
hurdles set up by the PAJA and the standing point having been
cleared by the appellants.
The merits
[51] The validity of the first respondent’s
approval of the second respondent’s building plans is
challenged on the
basis that because the decision to relax the Howick
scheme’s parking requirement was unreasonable and its side
space requirement
was relaxed unlawfully, the approval of the
building plans itself was invalid.
The parking requirement
[52] The first respondent’s council took a
decision to waive compliance with the requirement that the second
respondent was
to provide 82 parking bays on the premises (one
parking place for every 23 square metres) on condition that it
contributed R190 000
to a parking fund. It did so in terms of
clause 8.5.1 of the Howick scheme, which allows for this in
circumstances in which ‘it
is physically impractical to provide
on-site parking without disturbing the continuity of the shopping
frontage, or where the lot
is of such proportions that parking
accommodation cannot be reasonably provided’.
[53] This decision was challenged by the appellants on
the basis of its unreasonableness on account of irrelevant
considerations
having been taken into account and it being
irrational.
[54] The first respondent’s council had a report
from Simpson, the general manager: planning and development services,
before
it when it took the decision. That report pointed to the
empowering provision, clause 8.5.1, spoke of the impossibility of
providing
parking in terms of the current design and pointed to the
economic benefits for Howick of the development proceeding. The
council
did not take its decision immediately but adjourned to
consider the proposal. It also had the appellants’
representations
before it. When it took its decision, it did not do
so lightly, according to Simpson, who pointed out that it was taken
‘after
considering input from interested and affected parties
and the fact that the proportions of the site meant that the parking
accommodation
could not reasonably be provided’.
[55] In my view, reliance on clause 8.5.1 was justified
and the factors that were taken into account were relevant to the
decision.
I see nothing untoward about a council deciding that, where
the objective circumstances are present to allow it to relax its
parking
requirements, the nature of the development will not need
much parking to be provided, the development will have positive
economic
consequences for the town, that the parking requirement
should be relaxed and the developer be required to contribute to a
parking
fund that will, in turn, be used to upgrade parking some 230
metres from the development. The decision is neither unreasonable for
want of irrelevant considerations having been taken into account nor
irrational.
The side space requirement
[56] Simpson explained how the side space requirement
was relaxed. He said that at a fairly early stage in the process
various issues
were raised with the second respondent, including the
need to apply for the relaxation of the side space requirement. A few
days
later he received a letter from the second respondent’s
architect which attached a letter from the neighbouring land owner
‘confirming relaxation of the side building line to zero’.
This meant, he said, that ‘the building could be built
up to
the property line of Erf 848 on the side adjoining Lot 776’.
[57] He explained later in his answering affidavit that
clause 2.6.3 of the Howick scheme ‘authorises the municipality’
to relax the side space requirement, that it was relaxed and that
because ‘the municipality’ had exercised its discretion
a
special consent application was not required.
[58] De Jesus pointed out in his replying affidavit that
clause 2.6.3 did not apply on the facts and that Simpson had not said
who
took the decision but it had clearly been him and he had no
authority to take it. In a supplementary affidavit, Simpson stated
that he had the delegated authority to take such a decision and he
had in fact done so. This brought forth the amended notice of
motion
in terms of rule 53(4) which sought the setting aside of Simpson’s
decision – in the event of it being found
that he took the
decision – and the setting aside of the approval of the second
respondent’s building plans.
[59] Despite Simpson’s coyness, in his answering
affidavit, as to how and by whom the decision was taken, it must be
accepted
that he took the decision and that authority to do so had
been delegated to him by the municipal council, along with a vast
array
of other powers. The validity of that delegation of power is
not challenged and it is not for us to express a view on the wisdom
of a democratically elected and accountable municipal council
delegating powers on such a grand scale to one unelected official.
The issue that we have to decide is whether Simpson could validly
have relaxed the side space requirement in the manner in which
he
did.
[60] As part of the general restrictions in terms of the
Howick scheme, clause 2.6.1 provides that, subject to qualifications
not
relevant for present purposes, ‘[n]o building shall be
erected nearer than 2 metres to any side or rear boundary of the lot
on which it is situated’. Clause 2.6.3 then provides:
‘
The
local authority may, in its discretion, permit in any zone any
building to be erected closer to any boundary than the distance
specified in these clauses if on account of the siting of existing
buildings or the shape, size or levels of the lot, the enforcement
of
these controls will, in the opinion of the local authority, render
the development of the lot unreasonably difficult. In considering
any
application under this clause the local authority shall have due
regard to any possible detrimental effect on adjoining properties.’
[61] Part 8 of the scheme deals with commercial zones.
After clause 8.3 has set out, in table form, the buildings and uses
that
are permitted in commercial zones, clause 8.4 provides for what
it terms additional controls. Clause 8.4.3 deals with the relaxation
of the side space requirement. It states:
‘
The
side space requirement may be relaxed by special consent of the local
authority except where it is necessary to provide access
to the rear
of the building for the purpose [of] parking and loading
accommodation or where such buildings adjoin lots zoned for
residential purposes.’
[62] Annexure 7 deals with special consent. It says that
a local authority may not consider an application that requires
special
consent until the applicant has complied with the various
requirements listed in sub-paragraphs (i) to (x) of the annexure.
These
include that: the application for special consent must be in
writing ‘setting out full particulars and reasons, and such
application shall be submitted in duplicate’; the
applicant shall give notice of the application in a
newspaper or newspapers approved by the council; he or she shall also
place
a notice ‘in a prominent position on the property’;
and so on.
[63] It was argued that clause 2.6.3 and clause 8.4.3
create different mechanisms for the relaxation of the side space
requirement:
if the jurisdictional requirements listed in clause
2.6.3 are present, the side space requirement can be relaxed without
special
consent.
[64] I do not agree. Clause 2.6.3 is a general provision
while clause 8.4.3 applies specifically to land use controls in
commercial
zones. In other words, clause 2.6.3 tells one of the
circumstances in which a local authority may relax the side space
requirement,
but it says nothing of how this is to be done. Clause
8.4.3 provides the answer: in commercial zones, the side space
requirement
may be relaxed with special consent; and annexure 7 sets
out how that special consent is to be sought.
[65] It is common cause that no special consent was
sought or granted. Simpson took the view that it was not required. In
this he
misconstrued the relevant provisions of the scheme and
misconstrued the power that had been delegated to him. He took a
decision
in the mistaken belief that clause 2.6.3 authorised him to
do so. His decision is therefore to be reviewed and set aside in
terms
of s 6(2)
(a)
(i)
of the PAJA. It can also be said that, by purporting to grant the
relaxation in the absence of an application for special consent
and
compliance with the procedural requirements of annexure 7, he failed
to comply with ‘a mandatory and material procedure
. . .
prescribed by an empowering provision’. His decision falls to
be set aside on this account in terms of s 6(2)
(b)
of the PAJA.
The approval of the building plans
[66] I turn now to the approval of the second
respondent’s building plans. Section 7(1)
(a)
of the National Building Regulations and Building
Standards Act provides that if a local authority, having considered a
recommendation
of the building control officer concerning an
application for the approval of building plans, ‘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’.
[67] Section 6(1) of the KwaZulu-Natal Planning and
Development Act 6 of 2008 states that a town planning scheme ‘is
binding
on the municipality, all other persons and organs of state,
except in the event of a conflict with the provisions of an
integrated
development plan that was adopted prior to the scheme or
amendment to the scheme’. This is reinforced by s 56(1) of the
Town
Planning Ordinance which says that when an approved scheme comes
into force ‘the responsible authority shall observe and enforce
the observance of all the provisions of the scheme’. Section 77
makes it a criminal offence to fail to comply with a notice
directing
compliance with a scheme. This means that the provisions of a scheme
fall within the term ‘any other applicable
law’ in s
7(1)
(a)
.
48
[68] In
Walele’s
case
49
Jafta AJ held that s 7(1) requires a decision-maker to
satisfy himself or herself of two things before he or she can validly
approve
building plans. They are that ‘there is compliance with
the necessary legal requirements’ and that ‘none of the
disqualifying factors in s 7(1)
(b)
(ii)
will be triggered by the erection of the building concerned’.
The decision-maker’s
ipse dixit
that he or she was satisfied will not suffice. The state
of satisfaction must rest on objectively reasonable grounds
50
and it is a reviewable irregularity for the
decision-maker to fail to ‘properly determine that none of the
disqualifying factors
would be triggered’.
51
[69] Heher JA, in
True Motives 84
(Pty) Ltd v Mahdi & another
,
52
set out how the test is to be applied as follows:
‘
The
refusal of approval under s 7(1)
(a)
is
mandatory not only when the local authority
is
satisfied
that
the plans
do
not comply
with
the Act and any other applicable law, but also when the local
authority remains in doubt. The plans may not be clear enough.
For
instance, no original ground levels may be shown on the drawings
submitted for approval, with the result that the local authority
is
uncertain as to whether a height restriction imposed with respect to
original ground levels is exceeded. In those circumstances
the local
authority
(a)
would
not be satisfied that the plans breach the applicable law, but
equally
(b)
would
not be satisfied that the plans are in accordance with the applicable
law. The local authority would, therefore, have to refuse
to grant
its approval of the plans. Thus, the test imposed by s 7(1)
(a)
requires
the local authority to be positively satisfied that the parameters of
the test laid down are met.’
[70] In this case, given the complete absence of an
application for special consent for the relaxation of the side space
requirement
and no attempt to comply with the procedural requirements
of an application for special consent, the first respondent could not
have been satisfied that the second respondent’s application
for the approval of its plans complied with the Howick scheme.
Nothing in the record indicates that any enquiries were made in this
regard or that the issue was even considered. That being so,
a
jurisdictional fact for the proper exercise of the power was absent
and the approval of the building plans must be set aside
on the basis
of s 6(2)
(b)
of the PAJA, in that ‘a mandatory and
material . . . condition prescribed by an empowering provision was
not complied with’.
The order
[71] The following order is made.
1 The appeal is upheld with costs.
2 The order of the court below is set aside and replaced
with the following order:
(a) The decision of the general manager: planning and
development services of the first respondent, purportedly taken in
terms of
clause 2.6.3 of the Howick town planning scheme, relaxing
the side space requirement in respect of erf 848, Howick is set
aside.
(b) The decision of the first respondent’s council
taken on 30 June 2010 to approve the building plans submitted on
behalf
of the second respondent for building work on erf 848, Howick
is set aside.
(c) The respondents are directed, jointly and severally,
to pay the applicant’s costs, including the costs of the
application
for interim relief.
_______________
C Plasket
Acting Judge of Appeal
HEHER JA:
[72] I have had the privilege of reading the judgment of
Plasket AJA. My consideration of the matter leads me to a different
conclusion.
[73] Counsel for the municipality has submitted that it
was not open to the appellants to resort to proceedings for judicial
review,
whether under PAJA or the common law, because they possessed
no direct interest in the decision of the council to relax the side
space requirement on erf 848,the property of the second respondent.
This is a challenge to their locus standi in these proceedings.
For
the reasons that follow I agree with the submission.
[74] In the context of a town planning scheme, the
concept of side space is a land use control usually directed to the
protection
of the amenities of a property adjoining the subject
property on that side. The amenities would typically include light,
air and
spatial factors such as access and private open space, which
often, although not invariably, stand to benefit residential usage
of
the adjoining property.
[75] A similar effect can be achieved by providing for
set backs of building lines on street frontages. In such a case
aesthetics
might be added to the amenities and a property located
opposite the subject property will probably possess a cognisable
interest
in the preservation of the building line. (Depending on
factors such as the rights attaching to the subject property, its
location
and the nature and importance of the street, protectable
interests may extend to other properties within the area of the
scheme.)
[76]
The relevant provisions of
the scheme relating to side space
Clause 2 of the scheme provides:
‘
2.6
SIDE AND REAR SPACE
2.6.1 No building shall be
erected nearer than 2 metres to any side or rear boundary of the lot
on which it is situated provided
that no building or portion of a
building intended to be used for the purpose of a residential
building, medium density housing
unit, maisonette, semi-detached
house or terraced house shall be erected nearer than 4,5 metres to
any such boundary, and provided
the minimum side or rear space, as
the case may be, shall be increased by 1,5 metres for the full height
of the building for every
storey above three storeys of the building.
2.6.2 The local authority may
authorise the erection of single storey outbuildings on the side and
rear boundaries provided the
owners of properties contiguous to the
affected boundaries have indicated in writing that they would have no
objection to such
authorization.
2.6.3 The local authority may,
in its discretion, permit in any zone any building to be erected
closer to any boundary than the
distance specified in these clauses
if on account of the siting of existing buildings or the shape, size
or levels of the lot,
the enforcement of these controls will, in the
opinion of the local authority, render the development of the lot
unreasonably difficult.
In considering any application under this
clause the local authority shall have due regard to any possible
detrimental effect on
adjoining properties.
2.6.4 Where access to parking
courts is required, the side space of affected lots shall be
calculated from the boundaries of such
access road.’
[77] It is significant that in the exercise of the
general discretion conferred on the council (by clause 2.6.3) to
permit relaxation
of building lines, the council is obliged to have
regard to the possible detrimental effect on adjoining properties but
is not
required to have the same regard to the effect on neighbouring
properties (such as the first appellant’s properties are in
relation to erf 848).
[78] Clause 2.6 contains general provisions applicable
throughout the scheme which in accordance with the maxim
generalia specialibus non derogant
must
be read subject to provisions dealing with the same subject matter in
relation to a particular case:
R v Gwantshu
1931 EDL 31.
[79] In this last-mentioned regard special provisions
govern the relaxation of side space in commercial zones. This appeal
concerns
such a case since erf 848 (the subject property) is zoned
General Commercial
.
However, in such a zone ‘the building line shall be the street
line’ (clause 8.4.1). Thus, unlike property adjacent
to a side
space, an erf located directly across the street (as are the first
appellant’s erven 11 and 12) does not enjoy
the benefit of set
back on the property opposite (erf 848).
[80] In relation to an application for special consent
for the relaxation of side space in a commercial zone the local
authority
may not grant such consent if a building adjoins a lot
zoned for residential purposes (clause 8.4.3).
53
A property that is zoned for residential purposes but
does not adjoin the property on which the side space is sought to be
relaxed
does not obtain a similar protection if it is a neighbouring
property even when simply separated by a road from the property on
which the side space is located.
[81] In the absence of some particular circumstance –
for which no case is made by the appellant – I see no reason to
infer that a side space limitation on a property within a commercial
zoning is, in the context of the scheme in question, intended
to
operate for the benefit of a neighbouring property also zoned
commercial, but not located adjacent to the side space which is
the
subject of the limitation. The fact that both properties are sited in
a commercial zone is meaningless unless the restricting
provision
also has a material bearing on both.
The locus standi of the first appellant
[82] The authorities cited by Eloff JP in
Prinsloo
& Viljoen Eiendomme (Edms) Bpk v Morfou
1993
(1) SA 668
(T) at 670H-I bear out the conclusion of the learned judge
that where the owner of a property situated in the area of a scheme
attempts,
solely on the strength of the scheme
to restrain the owner of another property in the same
area from putting it to a use prohibited by the scheme, the test is
whether
the restrictions on the use sought to be enforced were
enacted in the interests of a property owner in the position of the
applicant
or whether the applicant has suffered loss or damage by
reason of the breach of the restriction.
[83] The full court in
Prinsloo &
Viljoen Eiendomme
was required to consider
the locus standi of the owner of a stand in Kriel. The township was
the subject of a town planning scheme.
The owner applied to interdict
the use of a building on a property in the same township which was
zoned ‘special’ for
the purpose of a hotel but upon which
the business of a liquor store was being conducted. The full court
held that the owner had
no locus standi to enforce the particular
provision of the scheme that limited the use of the property to that
of a hotel. Eloff
JP said:
‘
It
appears generally to have been accepted in the cases dealing with the
point under discussion that the test to be applied is that
laid down
in
Patz
v Greene & Co
1907
TS 427
at 433,subject to the gloss added in
Roodepoort-Maraisburg
Town Council v Eastern Properties (Pty) Ltd
1933
AD 87
at 96,namely whether the restrictions on use sought to be
enforced were enacted in the interest of property owners in the
position
of the applicants or whether the applicants have suffered
loss or damage by reason of the breaches of the restrictions (see
CD
of Birnam (Suburban) (Pty) Ltd and Others v Falcon Investments Ltd
1973
(3) SA 838
(W) at 844D-H;
BEF
(Pty) Ltd v Cape Town Municipality and Others
1983
(2) SA 387
(C) at 400D-H; and
Randleigh
Buildings (Pty) Ltd v Friedman
1963
(3) SA 456
(D) at 458E-H).
It will be recalled that I found
that the respondent made no averment of any loss or damage to his own
property by reason of the
construction by the appellant of its bottle
store. The simple question remains whether respondent has shown that
the restriction
on land created relative to stand I was enacted in
the interest of property owners such as the respondent. In each of
the cases
quoted to us in which it was held that an owner of land
subject to a town planning scheme may enforce any of its terms
applicable
to another property, it was found that the nature of the
conditions and circumstances of the case showed that the condition
and
question was made in the interest of persons such as the
applicants. In the
CD
of Birnam
case
supra
the applicants were
associated property development companies owning land in the vicinity
of the respondent’s property (see
at 840D). Their properties
and that of the respondent all fell within one and the same special
residential use zone (see at 842A).
In breach of the restrictions
applicable to it,the respondent set up a quarrying business on its
property which was likely to affect
the enjoyment by the applicants
of their properties adversely. On those facts Margo J held that the
applicant had
locus
standi
. In the
Randleigh Buildings
case Warner AJ was
concerned with restrictions laid down in “residential areas”,
where an owner of land in those areas
sought to restrict another from
using it otherwise than for residential purposes. At 459A the Court
concluded:
“
In the
present case it seems to me that in preparing the scheme the
Amanzimtoti Town Council must have had in mind the interests
of land
owners in the area set aside for residential purposes and
consequently those owners have
locus
standi
to
enforce that particular provision.”
In the
BEF
case
supra
the parties owned
adjoining sites. Their properties were subject to a town planning
scheme which provided
inter
alia
for open spaces.
The applicant in effect tried to enforce compliance with the scheme.
After quoting the
Patz
v Greene & Co
case,
Grosskopf J said (at 401B-F):
“
The
purposes to be pursued in the preparation of a scheme suggest to me
that a scheme is intended to operate, not in the general
public
interest, but in the interest of the inhabitants of the area covered
by the scheme,
or
at any rate those inhabitants who would be affected by a particular
provision
.
54
And by
‘affected’ I do not mean damnified in a financial sense.
‘Health, safety, order, amenity, convenience and
general
welfare’ are not usually measurable in financial terms.
Buildings which do not comply with the scheme may have no
financial
effect on neighbouring properties, or may even enhance their value,
but may nevertheless detract from the amenity of
the neighbourhood
and, if allowed to proliferate, may change the whole character of the
area. This is, of course, a purely subjective
judgment, but in my
view this is the type of value which the ordinance, and schemes
created thereunder, are designed to promote
and protect. In my view a
person is entitled to take up the attitude that he lives in a
particular area in which the scheme provides
certain amenities which
he would like to see maintained. I also consider that he may take
appropriate legal steps to ensure that
nobody diminishes those
amenities unlawfully. I would not like to assert dogmatically that
such a remedy would be available to
all persons living in the area
covered by a scheme as large as that of Cape Town. In the present
case, however, the applicant is
an immediate neighbour to the
property on which the non-conforming garage was built.’
I think it would be useful to
deal further with the question posed by Grosskopf J, whether any
owner of a land covered by the Cape
Town Town Planning Scheme could
enforce any condition applicable to any property in so large an area.
I respectfully venture to
suggest that it depends on the
circumstances and the nature of the condition or restriction. There
may be circumstances in which
the particular town planning scheme
covers a large area with a variety of uses and restrictions and that
it is inconceivable that
an owner in, say, the southern part of the
area may enforce a condition of a parochial nature applicable to the
northern part of
the scheme. . . .
I do not think that the
respondent has come near to showing that the restriction on land
which was imposed on the appellant’s
property was made in the
interests of properties such as his.’
[84] I respectfully agree with the approach taken by the
learned judge. A town planning scheme frequently operates over areas
markedly
different in location and intrinsic characteristics. It
necessarily ranges over different uses and land use controls many of
which
cannot be said to affect the overall operation of the scheme.
Not every control is of even indirect benefit to all land in the
scheme or all owners. The whole scheme is no doubt promulgated in the
general public interest of all owners of land in the area
of the
scheme in the undefined senses of harmonious development, health,
order, general welfare etc which are the underlying purposes
of such
schemes. Such owners may be regarded as a ‘class’ within
the public as that term is used in the authorities.
But the
particular or direct interest of any owner in any
provision
of the scheme must depend upon the reach of that
provision in the context of the scheme, and the nature of the adverse
effects,
if any, resulting from a breach of the provision. Mere
proximity without regard to the substance of the restriction cannot
be a
sufficient determinant.
[85] In its application to the court a quo the present
first appellant did not allege, or set out any grounds upon which it
can
be found, that the side space provision in question operates for
the benefit of its property; indeed, as I have attempted to show,
such an inference runs counter to the context of the side space
provisions in the scheme. In clauses 8.4.3 and 2.6.3 it is not
propinquity which is important, but rather the adjacent location of
the side space to a residential erf. The first appellant also
made no
averment of actual or potential loss or damage to its property by
reason of the relaxation of the provision (even in the
wider sense
ascribed to the concept of ‘adverse effects’ by Grosskopf
J in
BEF (Pty) Ltd v Cape Town Municipality
1983 (2) SA 387
(C) at 401B-F). Neither the
nature of the condition nor the circumstances of the case conduce to
a finding that the appellant’s
property benefits by the
maintenance of the side space restriction on the first respondent’s
erf or suffers by its relaxation.
[86] I conclude as a result that the first appellant
possessed no cognisable legal interest in such illegality as the
second respondent
may have perpetrated in relation to the relaxation
of the side space condition on erf 848 and that the first appellant
accordingly
obtained no locus standi to impugn its decision. The
second appellant is merely the operator of the Spar supermarket on
the properties
of the first appellant and can have no better rights
than the first appellant has.
[87] Although it is unnecessary to decide the question
finally, if my conclusion that only the owner of the adjoining erf
776 has
a direct interest in the maintenance and enforcement of the
side space provision is correct, that conclusion leads logically to
a
finding that the council’s failure to follow the procedures for
special consent in Annexure 7 was not unlawful. This is
because the
only person with an interest had furnished his consent for the
relaxation before the council made its decision. Public
advertisement
and the opportunity to object, for which Annexure 7 provides, were
therefore superfluous and unnecessary.
[88] Having, for the reasons explained by Plasket AJA,
failed to prove a sustainable ground of review in relation to the
parking
provision over erf 848, the appellants should have been
non-suited.
[89] I would dismiss the appeal with costs.
_________________
J A HEHER
JUDGE OF APPEAL
THERON JA
[90] I have had the benefit of reading the judgments
prepared by Plasket AJA and Heher JA. I agree with both Plasket AJA
and Heher
JA that the appellants have failed to prove any grounds
upon which this court can set aside the first respondent’s
decision
to waive compliance with the parking requirement. I agree
with Heher JA that the appellants do not have standing to challenge
first
respondent’s decision regarding the side space
requirement. I would add the following brief comments.
[91] That Heher JA is correct is underscored by the fact
that the appellants did not seek an order that the building be
demolished.
The relief initially sought by the appellants in respect
of the side space requirement was that the second respondent be
ordered
to demolish so much of the building that is situated closer
than two metres to the rear or side boundaries of the property. It is
so that the second respondent has undertaken ‘to restore the
property or alter it in accordance with any alteration of the
…
approvals on review’. This court has not given any directions
as to the restoration or alteration of the building.
The abandonment
of any relief against the second respondent raises the question about
the purpose of this appeal and might have
rendered the entire process
academic.
55
[92] The decision of the first respondent is an
administrative act, which, until set aside by a court in review
proceedings, exists
in fact and is capable of having legally valid
consequences.
56
One of the consequences thereof is that it gave the
second respondent the right to proceed with building operations in
terms of
the approved building plans, including the parking and side
space relaxations. The second respondent acted within the law and in
accordance with its rights, and within the terms of what it perceived
to be a valid decision taken by the first respondent. The
administrative decision that the appellants now seek to review and
set aside have already been acted upon by the second respondent.
57
For as long as the decision of the first respondent
stood, the second respondent, in continuing with the building
operations, was
acting lawfully.
58
In my view, and having regard to the factual context in
which the decision was made, it would be unjust to grant the relief
sought.
[93] I would dismiss the appeal, with costs.
_____________
L THERON
JUDGE OF APPEAL
APPEARANCES:
For appellant : A Rall SC
Instructed by: Christopher Richard Lee Attorney, Howick;
McIntyre & Van der Post, Bloemfontein
For the first respondent: R M van Rooyen
Instructed by:
PKX Incorporated, Pietermaritzburg;
Lovius Block, Bloemfontein
For the second respondent: A J Dickson SC
Instructed by:
Jasat & Jasat, Pietermaritzburg;
Lovius Block, Bloemfontein
1
A
decision is defined in s 1 of the PAJA to be ‘any decision of
an administrative nature made . . . under an empowering
provision,
including a decision relating to . . .
(b)
giving,
suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission’.
2
Section
33 reads as follows:
‘
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must-
(a)
provide for the review of administrative action by a
court or, where appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights
in subsections (1) and (2); and
(c)
promote an efficient administration.’
3
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another
as amici curiae)
2006 (2) SA 311
(CC) para 118 (Chaskalson CJ) and para 446 (Ngcobo
J);
Camps Bay Ratepayers’ and Residents’ Association
& another v Harrison & another
2011 (4) SA 42
(CC) para
51.
4
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 25.
5
S
v Zuma & others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) paras 14-15.
6
Sokhela
& others v MEC for Agriculture and Environmental Affairs
(KwaZulu-Natal) & others
2010 (5) SA 574
(KZP) para 82.
7
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA).
8
Para
21.
9
Para
22.
10
Para
24. See too
Zondi v MEC for Traditional and Local Government
Affairs & others
2005 (3) SA 589
(CC) paras 104-105;
Johannesburg Municipal Pension Fund & others v City of
Johannesburg & others
2005 (6) SA 273
(W) para 14.
11
Para
23. Nugent JA’s approach to the interpretation of the
requirement of a direct, external legal effect was endorsed by
the
Constitutional Court in
Joseph & others v City of
Johannesburg & others
2010 (4) SA 55
(CC) para 27. See too
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech
Systems (Pty) Ltd & another
2011 (1) SA 327
(CC) para 37.
12
Esterhuyse
v Jan Jooste Family Trust & another
1998 (4) SA 241(C)
at
253J-254D.
13
Most
of the cases cited in this judgment support this proposition.
Writing in 1984 Lawrence Baxter in
Administrative Law
at 173
described the town planning system as a ‘highly sophisticated
example of administrative regulation’. Cases
in which either
the approval of building plans or the refusal to approve building
plans are challenged inevitably involve the
review of decisions of
public functionaries or bodies on administrative law grounds. See
for instance
BEF (Pty) Ltd Cape Town Municipality & others
1983 (2) SA 387
(C) at 400B-D (approval of plans invalid because
decision-maker acted in terms of a delegation of power that was not
authorised);
Paola v Jeeva NO & others
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) para 16 and
Walele v City of Cape Town & others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) para 72 (decision taken in both cases in the
absence of jurisdictional facts invalid) See too
Camps Bay
Residents’ and Ratepayers’ Association & another v
Harrison & another
(note 3) paras 48-63 (application of the
time limit for instituting review proceedings in terms of the PAJA)
14
Walele
v City of Cape Town & others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) para 27.
15
See
Democratic Alliance v Ethekwini Municipality
2012 (2) SA 151
(SCA) paras 20-21.
16
See
for instance,
Fedsure Life Assurance Ltd & others v Greater
Johannesburg Transitional Metropolitan Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) para 56;
President of the Republic of South
Africa & others v South African Rugby Football Union &
others
2000 (1) SA 1
(CC) para 148;
Pharmaceutical
Manufacturers Association of SA & another: In re ex parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) paras 82-85;
Affordable Medicines Trust & others
v Minister of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) paras
74-75;
Albutt v Centre for the Study of Violence and
Reconciliation & others
2010 (3) SA 293
(CC) paras 49-50.
17
Section
38 of the Constitution reads:
‘
Anyone listed in this section has the
right to approach a competent court, alleging that a right in the
Bill of Rights has been
infringed or threatened, and the court may
grant appropriate relief, including a declaration of rights. The
persons who may approach
a court are –
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act
in their own name;
(c)
anyone acting as a member of, or in the interest of, a
group or class of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.’
18
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others
2012 (3) SA 486
(SCA).
19
Para
27.
20
Para
44.
21
Rinaldo
Investments (Pty) Ltd v Giant Concerts CC & others
[2012] 3
All SA 57
(SCA) paras 15-16.
22
Administrator,
Transvaal and the Firs Investments (Pty) Ltd v Johannesburg City
Council
1971 (1) SA 56
(A) at 70D.
23
BEF
(Pty) Ltd v Cape Town Municipality & others
1983 (2) SA 387
(C) at 401B-F.
24
Patz
v Greene & Co
1907 TS 427.
25
Roodepoort-Maraisburg
Town Council v Eastern Properties (Pty) Ltd
1933 AD 87
at 96.
26
PS
Booksellers (Pty) Ltd & another v Harrison & others
2008
(3) SA 633
(C) para 19.
27
Pick
‘n Pay Stores Ltd & others v Teazers Comedy and Revue CC &
others
2000 (3) SA 645
(W) at 654F-H.
28
BEF
(Pty) Ltd v Cape Town Municipality & others
(note 23) at
401E-F.
29
Prinsloo
& Viljoen Eiendomme (Edms) Bpk v Morfou
1993 (1) SA 668
(T).
30
At
670B-F.
31
At
672D.
32
At
671B-F.
33
That
the interest concerned does not have to be a right for purposes of s
38(a) of the Constitution appears clearly from
Kruger v President
of the Republic of South Africa & others
[2008] ZACC 17
;
2009 (1) SA 417
(CC) para 25.
34
See
for instance,
Bindura Town Management Board v Desai & Co
1953
(1) SA 358
(A);
Welkom Village Management Board v Leteno
1958
(1) SA 490
(A);
Golube v Oosthuizen & another
1955 (3) SA
1
(T);
Lawson v Cape Town Municipality
1982 (4) SA 1
(C);
Mahlaela v De Beer NO
1986 (4) SA 782
(T);
Maluleke v MEC,
Health and Welfare, Northern Province
1999 (4) SA 367
(T). See
too Baxter (note 13) at 720-723.
35
City
of Cape Town v Reader & others
[2008] ZASCA 130
;
2009 (1) SA 555
(SCA) paras
30-32.
36
Note
14.
37
Para
30.
38
See
generally, D R Harms
Civil Procedure in the Supreme Court
at
C1.4. See too
Tikly & others v Johannes NO & others
1963
(2) SA 588
(T) at 590G-591A.
39
Baxter
(note 13) at 199.
40
Baxter
(note 13) at 199.
41
Baxter
(note 13) at 199.
42
Ordinance,
s 51.
43
Ordinance,
s 52.
44
Ordinance,
s 53(1).
45
Ordinance,
s 53(3).
46
Ordinance,
s 54(1).
47
Van
der Westhuizen & others v Butler & others
2009 (6) SA
174
(C) at 187G-H.
48
eThekwini
Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd
2007 (6) SA 272
(SCA) para 25;
Muller NO & others v City of Cape Town
2006 (5) SA 415
(C) para 27.
49
Note
14 para 55.
50
Para
60.
51
Para
63.
52
True
Motives 84 (Pty) Ltd v Mahdi & another
2009 (4) SA 153
(SCA)
para 19.
53
The
zoning of erf 776 permits, as a primary use, ‘residential
buildings, except on the ground floor’. It was not contended
by the appellants that erf 776 was, therefore, ‘zoned for
residential purposes’.
54
The
emphasis is mine.
55
West
Coast Rock Lobster Association & others v Minister of
Environmental Affairs and Tourism & others
[2011] 1 All SA
487
(SCA) para 45.
Radio Pretoria v Chairman, Independent
Communications Authority of South Africa & another
2005 (1)
SA 47
(SCA).
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
2004 (6) SA
222
(SCA) para 26.
Millennium Waste Management (Pty) Ltd v Chairperson, Tender
Board: Limpopo Province & others
2008 (2) SA 481
(SCA) para
23;
Camps Bay Ratepayers and Residents Association v Harrison
[2010] 2 All SA 519
(SCA) para 59.
Heritage
Hill Home Owners Association v Shoprite Checkers (Pty) Ltd &
others
[2012] ZASCA 65
para 26.
56
57
58