Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another (560/08) [2010] ZASCA 3; [2010] 2 All SA 519 (SCA) (17 February 2010)

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[2010] ZASCA 3
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Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another (560/08) [2010] ZASCA 3; [2010] 2 All SA 519 (SCA) (17 February 2010)

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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 560/08
In the matter between:
THE CAMPS BAY RATEPAYERS’
AND RESIDENTS’ ASSOCIATION
First Appellant
PS BOOKSELLERS (PTY) LIMITED
Second Appellant
and
GERDA YVONNE ADA HARRISON First
Respondent
THE MUNICIPALITY OF THE CITY
OF CAPE TOWN
Second Respondent
Neutral citation:
Camps Bay Ratepayers’ & Residents’
Association v Harrison
(560/08)
[2010] ZASCA 3
(17 February 2010)
Coram:
NAVSA,
NUGENT, VAN HEERDEN, MLAMBO and MAYA JJA
Heard:
25 AUGUST 2009
Delivered:
17 February 2010
Summary:
Local authority ─ National Building
Regulations and Building Standards Act 103 of 1977 ─ application to
review and set
aside approval of building plan ─ whether plan
complies with the relevant statutory requirements.
_________________________________________________
_____________
ORDER
______________________________________________________________
On appeal from
:
Cape High Court (HJ Erasmus J sitting as court of first instance):
The appeal is
dismissed
with costs including the costs of two counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAYA
JA (NAVSA, NUGENT,
VAN HEERDEN and MLAMBO JJA concurring)
Introduction
[1]
This is an appeal,
with the leave of the court below, against its refusal of an
application for the review and setting aside of
a decision of the
second respondent (the municipality) approving the first respondent’s
building plans relating to the proposed
development of Erf 590
Brighton Estate Extension No. 2 Township Camps Bay (the property),
under s 7 of the National Building Regulations
and Building Standards
Act 103 of 1977 (the Building Standards Act).
[2]
The litigation
between the parties has a long history dating back to 2005 and a few
orders have been made at various stages

of their legal
skirmishes. This makes it necessary to set out the
relevant background facts in some detail and, in so far as they may
be disputed,
I will apply the test laid down in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
1
[3]
The main
protagonists are the second appellant, PS Booksellers, and the first
respondent, Harrison, who are neighbours. PS Booksellers
is the
registered owner of Erf 594, which is its principal place of business
situate diagonally opposite the property. Harrison is
a property
developer and the registered owner of the property which she acquired
in September 2004 for development and resale. The
litigation arose
from the appellants’ objections to building operations she
commenced on the property, which allegedly contravened
the applicable
municipal zoning scheme and restrictive title deed conditions (which
are discussed later in the judgment) in respect
of building set-back
and height requirements.
[4
] On 24 January 2005,
the municipality approved Harrison’s building plans under Plan No.
480217 (the original plan) which depicts
a three-storey residential
dwelling with a swimming pool on a plot measuring 427m
2
in extent. The storeys are designated ‘Upper Ground Floor’,
‘First Floor’ and ‘Second Floor’. According to this plan
the
property is situated at the corner of Geneva Drive and Blinkwater
Road. Its topography slopes from Blinkwater Road down towards
Geneva
Drive. It has an open parking area with access from Blinkwater Road.
There is another open parking area and a basement garage
on the side
of Geneva Drive designated ‘Lower Ground floor’ which, because of
the steeply sloping nature of the property, are
at a significantly
lower level than the parking facilities off Blinkwater Road.
[5] Building operations commenced in March,
shortly after the original plan’s approval. However, the appellants
objected to the
construction. After the objections were raised, a
chain of correspondence flowed between the appellants and Harrison in
an attempt
to reach a compromise. In consequence, Harrison submitted
a substantially revised plan which the municipality approved under
Plan
No. 485042 (the September 2005 plan). The appellants were
nonetheless not satisfied that their concerns had been addressed. In
November
2005, they instituted an application to interdict any
further building operations on the property and its sale, transfer or
alienation
pending (a) an appeal to be launched in terms of s 62 of
the Local Government: Municipal Systems Act 32 of 2000 (the Systems
Act)
2
against the approval of the September 2005 plan, (b) an application
for the demolition of any construction which contravenes the
title
deed conditions and (c) certain review proceedings.
3
[6
] The principal issue
in the application (as in the s 62 appeal which followed) concerned a
wall which included a large planter and
a swimming pool water
reticulation system constructed along the western side of the
property on the Geneva Drive boundary which continues
on the eastern
side of the property on the Blinkwater Road street boundary to which
portion of the dwelling abuts on. The appellants
complained that it
was not merely a boundary wall but was designed to support not only
the swimming pool and the planter but also
to retain a substantial
amount of fill material deposited and compacted behind it to its full
height. This, they contended, contravened
clause D(d) of a reciprocal
restrictive title deed condition registered in favour of every owner
of an erf in Camps Bay under the
provisions of s 18(3) of Ordinance
33 of 1934 (the Ordinance), which is applicable to the parties’
respective properties. The clause
prohibits the erection of a
‘building or structure or any portion thereof, except boundary
walls and fences ... nearer than 3.15
metres to the street line which
forms a boundary’ of an erf.
[7]
The appellants also
argued that the ‘finished’ ground level abutting the dwelling
from which the dwelling’s height was to
be measured had been
achieved by unlawful manipulation. This was so, they contended,
because the retaining wall impermissibly altered
the finished ground
level adjacent to the facades of the dwelling, which was artificially
raised by some 3,5 metres, and disguised
the height of such facades
thus enabling Harrison to construct a dwelling to a height in excess
of the restriction of 10 metres prescribed
by the applicable
provisions of s 98(2) of the Zoning Scheme Regulations (the Zoning
Scheme).
4
[
8] In April 2006, the
appellants obtained the interdict which remains in operation.
5
This relief was granted on the basis that the retaining walls
reflected in the September 2005 plan indeed contravened clause D(d)
and that, prima facie, they artificially raised the finished ground
level by retaining fill material compacted behind them and
reconfigured
the original steep slope in the property to an almost
horizontal platform thus concealing an infringement of the relevant
height
restriction.
[9]
The s 62 appeal
which the appellants duly lodged thereafter was also decided in their
favour on the same basis as the interdict
proceedings. The September
2005 plan was accordingly set aside. The appellants went further and
instituted an application for the
demolition of the dwelling, a shell
of a three-storey structure built in accordance with the original
plan. That application currently
stands over by the parties’
agreement pending the finalisation of the review proceedings which
are the subject of this appeal.
[
10] Prior to the
finalisation of the s 62 appeal, Harrison had meanwhile submitted for
the municipality’s approval a further plan
as a rider to the
original plan. (As to which plan this document was meant to be a
rider is a point of hot dispute as the appellants
contend that it was
intended to be a rider to the defunct September 2005 plan but I deal
with this aspect later.) This plan was also
met with written
objections from the appellants but after further revisions, on 6
September 2007, it was approved by the municipality’s
Development
Co-ordinator, Mr Holden, on the written recommendation of Mr Moir,
the municipality’s Building Control Officer, under
plan 506011 (the
plan). This is the impugned decision which the appellants seek to
have reviewed and set aside.
[11]
In the plan’s
final version the swimming pool is in a different, uncontentious
position. The planter and other garden landscaping
features and
structures erected to provide access to the parking space and the
front door have been omitted altogether. The walls
along the northern
and western boundaries of the property previously retaining the
swimming pool and the planter thus no longer serve
a retaining
function to those structures. The ‘sandbag wall’ running from the
corner of the garage to the Geneva Drive boundary
and intersecting
the main boundary wall which retained some soil has been removed.
Fill material between the boundary wall and the
facade of the
dwelling has also been removed. The plan shows contours in this area
which, according to Moir, is an indication of
a ‘fall’ and the
absence of fill material thus leaving nothing to be retained by the
remaining wall. The appellants confirm the
removal of these objects
but persist that the exposure of the facades by the removal of fill
material has served to reveal an infringement
of the 10 metre height
restriction and that the remaining boundary walls still retain
compacted fill material. The plan further shows
an embankment along
the northern side and the boundary wall measuring a compliant height
of 2,1 metres.
[1
2] The appellants’
grounds of review in their founding papers were framed as follows:
‘
[1] The
buildings as contemplated by the plans approved by the [municipality]
in plan no. 506011, will contravene both the title
deed conditions
applicable to the property and also the provisions of the zoning
scheme applicable to the area in which the property
is situated;
[2] The
[municipality], when considering the application for plan approval,
failed to give due consideration to the objections lodged
by the
[appellants] against the approval of such plans;
[3] The [municipality] and its
officials committed material errors of law and misdirected themselves
as to the true nature of elements
of the proposed building, when
considering the plan for approval;
28.4 The [municipality]’s
officials had regard to irrelevant considerations and failed to have
due regard to relevant considerations
– more particularly the
facts, information and objections before them – when considering
the plan for approval.’
[13
] These grounds, as
developed in the appellants’ affidavits, turned on the legality of
the plan, ie the alleged infringement of
the height restriction
imposed by the Zoning Scheme and the set-back requirements set out in
the title deed; the competence of the
delegated authority to the
decision-maker who approved the original plan (this ground was not
pursued on appeal) and the procedural
fairness or otherwise of the
decision to approve the plan in relation to the manner in which the
application was scrutinised, particularly
the municipality’s
alleged failure to identify unlawful features and consider the
appellants’ objections. The appellants subsequently
added further
grounds in their replying affidavits, namely that (a) the plan also
contravened s 47(1) of the Zoning Scheme and (b)
the approval of the
plan as a rider to a previously approved plan was incompetent.
[1
4] The court below
refused to entertain the challenge relating to s 47(1) of the
Zoning Scheme mainly on the basis that it had
been raised late (in
reply) and was as a result not adequately canvassed in the papers.
The court then dismissed all the other grounds
of review and found,
inter alia, that even if the approval process was not fair because
Moir’s memorandum did not adequately reflect
the appellants’
objections, it would not be just and equitable to set the plan
approval aside solely for that reason. In its view,
the municipality
had correctly decided that the plan complies with all the relevant
legal provisions and no purpose would be served
by remitting the
matter for fresh consideration.
[
15] Before us, the
appellants contested the decision of the court below on the same
grounds but added more: that
(a) the
municipality did not pay due regard to the objections raised by
interested parties on the basis of derogation in value of
their
properties under s 7(1)(a) and (1)(b)(ii) of the Building Standards
Act when it considered the plan; (b) the municipality failed
to
furnish the decision-maker, Holden, with a building control officer’s
recommendation
and (c) the court below
wrongly exercised its discretion in refusing the review having
regard, inter alia, to the fact that the municipality
and the court
itself did not consider a number of issues relating to whether the
application complied with relevant law, bearing
in mind that the
doctrine of legality does not countenance invalid administrative
acts.
[16] It is convenient to set out the legal
framework within which the matter falls to be decided before I deal
with the parties’
contentions. The relevant and principal statutory
provisions are provided by the Building Standards Act the objective
of which is
to promote uniformity in the law relating to the erection
of buildings within local authorities. Section 4(1) requires the
local
authority’s written approval of a landowner’s application
comprising of building plans and specifications prior to the
construction
of a building. Section 5 enjoins every local authority
to appoint a building control officer. This is a key official without
whom
a local authority may not function,
6
who must be skilled and specialized
7
and is vested with wide-ranging powers in the exercise of building
approval and development within a local authority which are set
out
in s 6. Section 6(1)(a) obliges him or her to ‘make recommendations
to the local authority in question, regarding any plans,
specifications, documents and information submitted to such local
authority in accordance with s 4(3)’.
8
[
17] Section 7
regulates the approval of building plans. Its provisions empower a
local authority to grant an application if satisfied
that the
application complies with the requirements of the Building Standards
Act and stipulates the circumstances in which an application
will be
refused. The material provisions are couched in s 7(1) which reads:
‘
If a local
authority, having considered a recommendation referred to in section
6(1)
(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;
(i) is not so satisfied; or
is satisfied that the building
to which the application in question relates –
(aa)
is to be erected in such manner or will be of such nature or
appearance that –
(aaa)
the area in which it is to be erected will probably or
in fact be
disfigured thereby;
(bbb)
it will probably or in fact be unsightly or
objectionable;
(ccc)
it will probably or in fact derogate from the value of
adjoining
or neighbouring properties;
(bb)
will probably or in fact be dangerous to life or
property,
such local authority shall refuse to grant its
approval in respect thereof and give written reasons for
such refusal;
Provided 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.’
[18
] I turn to deal
with each of the grounds of review.
The a
lleged
failure by the decision-maker (Holden) to consider the appellants’
objections under s 7(1)(a) and (1)(b)(ii) of the Building
Standards
Act
[19
] It was contended
for the appellants that they duly lodged an objection that the
proposed building would derogate from the value
of neighbouring
properties, including Erf 594, which both Moir and Holden were
obliged to consider; that Moir failed to inform Holden
of the
objection by furnishing him with a copy of the document in which it
was embodied or a fair and accurate summary thereof, as
he was
obliged, and that such failure – to place statutorily relevant
information before the decision-maker – nullified Holden’s
approval of the plan. The objection was purportedly embodied in two
letters dated 27 October 2006
9
and 15 January 2007,
10
respectively, and an affidavit filed in support of the appellants’
founding papers which was deposed to on the latter date by Mr
van der
Spuy, a sworn valuer. Van Der Spuy’s brief affidavit, one of a
number of documents attached to the founding affidavits,
merely
stated without proffering any supporting facts that the basis for
determining Erf 594’s market value was the arm’s length
price
which he estimated a willing buyer would pay a willing seller in an
open market situation and that the dwelling, described
as ‘imposing
and somewhat overbearing’, would substantially derogate from the
market value of Erf 594 if permitted to stand.
[20] The appellants’ submissions in this regard
may, in my view, be disposed of shortly. The issue of derogation of
value was not
pertinently raised as a ground of review in the court
below. The passing reference to the issue in the letters of objection
and Van
Der Spuy’s affidavit to which no weight can be accorded
remained merely that, and no more, as the allegations were not
adopted
in the founding affidavit to found a ground of review on
which the appellants relied. The respondents, who could well have
raised
a solid defence, were therefore not required to address these
documents and rightly did not address the issue in their opposing
affidavits.
Notably, the ground was not mentioned at all in the
comprehensive judgment of the court below which scrupulously listed
those argued
before it. The appellants’ counsel was also
constrained to concede, albeit reluctantly, that the ground was
rather canvassed in
the demolition application which was not before
us and was not ‘dealt with as a separate and distinct ground’ in
these proceedings.
[21
] The appellants
therefore seek, at appeal stage, to rely on a ground that they not
only failed to establish in their founding papers
but was not
canvassed at all in the court below. This is impermissible. As Cloete
JA pointed out in
Minister of Land
Affairs and Agriculture v D & F Wevell Trust
:
11
‘
It is not proper for a party in motion
proceedings to base an argument on passages in documents which have
been annexed to the papers
when the conclusions sought to be drawn
from such passages have not been canvassed in the affidavits. The
reason is manifest –
the other party may well be prejudiced because
evidence may have been available to it to refute the new case on the
facts. The position
is worse where the arguments are advanced for the
first time on appeal. In motion proceedings, the affidavits
constitute both the
pleadings and the evidence: ... and the issues
and averments in support of the parties’ cases should appear
clearly therefrom.
A party cannot be expected to trawl through
lengthy annexures to the opponent’s affidavit and to speculate on
the possible relevance
of facts therein contained. Trial by ambush
cannot be permitted.’
This review ground must, therefore, fail.
The a
lleged
failure by the municipality to provide the decision-maker with a
recommendation from the Building Control Officer as contemplated
by
sections 6 and 7 of the Building Standards Act
[22
] The appellants’
attack in this regard was based on the ground that the memorandum
Moir submitted to Holden was not a recommendation
as envisaged by
sections 6 and 7 of the Building Standards Act because it, inter
alia, (a) did not fairly or accurately summarise
their objections to
the plan and was in certain respects factually incorrect, (b) did not
inform Holden, even in summary, of all
their objections particularly
those relating to the infringement of the height restrictions and
derogation of value of neighbouring
properties, (c) contained
insufficient information such as would enable Holden to independently
make a rational decision on the application
before him and (e) showed
that Moir himself failed to appreciate the nature of the objections
or left out information he thought
had no merit thus arrogating
himself a discretion he did not have. Reliance for this proposition
was placed on the
Walele
12
decision
which we were advised was delivered
after the matter was argued before the court below but before
judgment was given.
[23] As with the derogation of value argument
dealt with above, the contention that Moir’s memorandum was not a
proper recommendation
was not one of the review grounds in the
appellants’ affidavits; it was raised for the first time in their
heads of argument in
this court. I am not inclined to lend it any
credence for the same reason that I refused to entertain the
derogation of value point.
As I have said, it would be prejudicial to
the municipality if the appellants were allowed to advance a new
issue on appeal which
was not raised in their founding affidavits and
which the municipality did not have an opportunity to deal with in
its opposing affidavit.
But I will consider the question whether or
not the municipality gave due regard to relevant considerations and
the appellants’
objections as that is what was canvassed in the
affidavits.
[24
] That Holden’s
decision constituted administrative action as defined by the
Promotion of Administrative Justice Act 3 of 2000
(PAJA), which is
constitutionally required to be lawful, reasonable and procedurally
fair,
13
was not in dispute. As pointed out, the appellants’ main complaint
in their papers was that the municipality’s officials did
not have
due regard to their objections which the municipality denied.
Although there was no statutory obligation on the municipality
to
afford the appellants an opportunity to make representations about
the impact the proposed building might have on their properties,
14
it nevertheless commendably invited PS Booksellers’ input. Once it
did so, it was enjoined to consider the appellants’
representations.
A determination of whether such representations were
properly considered requires an examination of the procedure followed
in the
approval process.
[25
] Undisputed
evidence is that the exercise, which was undertaken by various
departments within the municipality, took the following
sequence. On
2 June 2006 the Land Information Property Management Department
granted the necessary clearance after verifying and
confirming
cadastral boundary measurements, title deed information, servitude
and road widening information. On 17 August 2006 Messrs
Napoli (a
Principal Plans Examiner) and September (the Section Head) of the
municipality’s Land Use Management Department granted
clearance
after verifying and confirming that the plan was consistent with the
Zoning Scheme Regulations, including height restrictions
and building
lines. These officials had sight of and considered the actual letters
of objection before endorsing the plan. Structural
engineering
acceptance indicating that structural certification was in order had
been granted by the Plans Examiner who, after assessing
that the
application complied with the Building Standards Act and other
relevant laws, submitted it to Moir.
[26
] Moir then
requested Harrison and her experts to address him on the merits of
those objections. He subsequently requested further
information from
her in response to which the municipality received correspondence
from Messrs Lewis (a land surveyor) and Labrum
(a structural
engineer). After considering these responses Moir referred the plans
to Mr Henshall-Howard, the municipality’s Building
Development
Management Head, on 5 June 2007, and thereafter, on 17 August 2007,
he passed them on to September to consider the certificate
from
Labrum for further verification and clearance. According to Moir, he
did not only consider the objections and all the information
placed
before him but also inspected the property before compiling his
memorandum which included a summary of the objections. It
is that
memorandum and the approval document which made reference to the
different departmental clearances that Holden relied on
in granting
the approval.
[27
] In his affidavit,
Holden stated that in reaching his decision he relied on the facts,
opinions and advice provided to him by Moir
and the other in-house
experts who scrutinised the application. He said that he considered
the information furnished by Moir adequate
and was satisfied that the
appellants’ objections – the memorandum recorded that the
objections included that the proposed building
contravened the title
deed conditions; that the levels furnished by the land surveyor were
incorrect and that the embankment around
the dwelling would become
unstable – which were ‘clearly and properly conveyed’ (as
confirmed by a later, thorough perusal
of the original letters of
objection) had no merit and that the plan met the statutory
requirements. He reached this conclusion after
giving particular
attention to the fact that the application had been revised to comply
with the title deed conditions and the Zoning
Scheme; Labrum’s
advice that the building was founded at undisturbed ground level and
did not rely on any fill against the boundary
for support; that the
walls encroaching the title deed requirements could be removed and
responsible landscaping would not affect
the structure; the opinion
of the experienced and reputable Lewis that the levels were correct
and no point of the building would
exceed the prescribed 10 metre
height level above the finished ground level and Moir’s advice that
none of the statutory requirements
would be infringed. (These were
the very issues at the heart of the appellants’ case which
essentially concerns the height levels
and building lines of the
proposed building.)
[28] There is, generally, nothing improper about
such conduct, as a decision-maker may rely on the expertise and
advice of officials
within his or her institution as long as he or
she is fully apprised of the interested parties’ representations –
an accurate
summary containing a fair synopsis of the relevant
evidence and such representations will generally suffice – and does
not abdicate
the responsibility of independently assessing the
application and making the ultimate decision.
15
[29]
It appears to me on
this evidence that all the necessary protocols were scrupulously
observed by the relevant officials and due regard
paid to the
appellants’ concerns in the approval process. I cannot conceive
what more could have been done to render the process
fair. As I see
it, Holden was entitled to rely on Moir’s memorandum and the
accompanying document in the manner he did. This must
be so, bearing
in mind that the building control officer’s recommendation is
intended to be the decision-maker’s primary source
of information
which forms the basis of his or her opinion.
16
As the court put it in the
Walele
decision ‘[t]he discretion conferred
on the decision-maker is highly circumscribed because the decision
taken is reliant upon the
antecedent opinion reached ... upon a
consideration of the [building control officer’s] recommendation.’
17
[30
] The question
whether the action complained of causes prejudice is important in
deciding whether or not to grant the relief sought.
None seems to
have been occasioned here by reason of the procedure followed.
Bearing in mind that what constitutes a fair administrative
procedure
depends on the circumstances of each case,
18
I am unable to find that such procedure is so flawed as to vitiate
the decision to approve the plan.
The alleged unlawfulness of the approval of the plan as a rider
plan
[31
] The appellants
persisted with their argument in the court below that the Building
Standards Act makes no provision for the concept
of a rider plan and
that
the municipality therefore
impermissibly approved the plan as a rider plan to a previously
approved plan
. They contended further that
the plan was in any event approved as an amended version of and a
rider to the defunct September 2005
plan, a fact which alone rendered
its approval incompetent.
[32
] I deal first with
the latter submission. The plan expressly states on its face that it
was approved as a rider to the original
plan. The Moir memorandum
referred to it as such as did the parties themselves in the founding
and opposing affidavits. As pointed
out by the appellants in their
replying papers, Holden’s approval document referred to it as a
rider to the September 2005 plan,
perhaps because the latter plan was
the most recently approved plan and still subsisted when the plan was
approved on 2 June 2006.
But, whatever the reason for this obvious
error was, I do not think that it can detract from the patent fact
that the municipality
approved the plan as a rider to the original
plan.
[33
] Concerning the
first contention, i
t is so that the
Building Standards Act makes no mention of a rider plan. However, s
17(1) empowers the Minister to make regulations
regarding, inter
alia, ‘the preparation, submission and approval of plans and
specifications of buildings, including the approval
of amendments or
alterations to plans and specifications of buildings during the
erection thereof’. In consequence, Regulation
A25(5) criminalizes
deviation from an approved plan building ‘except where such
deviation has been approved’. Regulation A25(6)
then empowers a
local authority to stop the erection of a building where there is an
unauthorized deviation from approved plans during
the course of
construction, except where it is found that the deviation is
necessary, in which case construction may be allowed to
continue
subject to the submission of an amended plan for approval.
[34] These provisions undoubtedly contemplate a
deviation from an approved plan and the submission and approval of an
amended plan,
drawing or particulars to cater for such a deviation
where necessary. At a practical level, according to Moir’s
uncontested allegations,
the municipality routinely receives and
processes applications for the approval of additional or
supplementary plans (commonly referred
to as rider plans) amending or
qualifying a previously approved plan whenever a deviation from such
approved plan becomes necessary
during the construction of a
building.
[3
5] I am inclined to
agree with the court below that the Legislature would hardly have
vested the Minister with the authority to make
provisions of this
nature if local authorities did not have the implied power to approve
amendments or alterations to approved plans
in terms of the governing
provisions contained in s 7 of the Building Standards Act. It seems
to me that to give effect to the Legislature’s
clear intention, the
plans, specifications and documents required to accompany an
application in respect of the erection of a building
by s 4 of this
Act (the wording appears to envisage the possibility of a plurality
of plans per application) must necessarily include
amended or rider
plans. In the circumstances, I find that the plan was a rider to the
original plan and that its approval was not
ultra
vires
the provisions of the Building
Standards Act.
The alleged contravention of title
deed
conditions
[
36] As indicated
above, the appellants’ other complaint is that the plan
impermissibly allows retaining walls which encroach on
the 3,15 metre
setback to the street line and form a boundary to the property in
contravention of clause D(d) of the applicable restrictive
title deed
conditions. Although this issue does not appear to have been pursued
with any vigour or at all in argument in the court
below the
appellants insist that the infringing walls remain in the original
plan and are depicted on the plan. According to Moir,
the walls along
the northern and western boundaries of the property no longer serve a
retaining purpose but mark the boundary walls
of the property. Only
the
wall abutting Blinkwater Road serves a
retaining function. But, he says that this wall supports only a
municipal public footway incidentally
and this, the municipality
contends, does not infringe the relevant requirements but places it
in line with clause D(g) of the title
deed provisions imposing
favourable conditions in the municipality’s favour against property
owners.
19
[37] It must be considered that the main
objective of the title deed conditions, which were introduced in the
absence of comprehensive
town planning legislation, was to regulate
development and usage of land between developers and the purchasers
and owners of individual
erven and their successors-in-title. The
purpose of this particular setback restriction must obviously have
been to prevent property
owners from building too close to the street
lines. That does not seem to have happened here. No building or
structure encroaches
on the 3,15m setback as the wall in issue does
not retain any ground or structure on the property itself. It merely
performs a boundary
function as it encloses an open space,
20
which is permitted by the restriction, and benefits the municipality
on a portion of the latter’s land external to the property.
It
seems inconceivable that this was the contemplated target of the
restriction and I can find no transgression of the provisions
of
clause D(d).
The alleged contravention of s 98 of the Zoning Scheme in
respect of the 10 metre height restriction
[3
8] In support of this
ground, the appellants contended
that
Harrison artificially raised the ground level on the property to
evade the height restriction by using fictitious ground levels
in the
plan as evidenced by the differences between the levels shown in the
survey and the architect’s drawings in the plan.
[39
]
Section
98 of the Zoning Scheme provides:
‘
Camps Bay and Bakoven
(1) No
building within the area of Camps Bay and Bakoven bounded by the
municipal boundary to the South and Kloof Road to the North
shall
exceed three storeys in height.
(2) No point on the façade of
any building within such area shall be more than 10m above the level
of the ground abutting such façade
immediately below such point.
(3) For the
purpose of subsection (2) “façade’ means a main containing wall
of a building, other than a wall of an internal courtyard.’
[40
] Lewis deposed to
an affidavit recording his findings. He prepared a survey map in
September 2004 on which he subsequently superimposed
the plan. In his
view, the heights of the contour lines in the plan were accurate as
they accorded with his earlier survey and corresponded
with those
reflected in the original plan. These findings were supported by
another land surveyor, Mr Abrahamse, who undertook an
independent
survey at Harrison’s instance. Abrahamse confirmed that a survey of
the finished ground level surrounding and immediately
adjoining the
dwelling revealed that no point of the façade of the dwelling was
more than 10 metres above the level of the ground.
Another expert, Mr
Lowden, a civil engineer specializing in structural engineering
engaged by the municipality, found amongst other
things that ‘the
foundations of the dwelling are founded at an appropriate level and
that the building structure is not dependent
on the construction of
any retaining walls to provide stability to the foundations’.
[41
] The appellants’
response to these experts’ allegations in their replying papers was
that their objection was ‘never that
the height from the top to the
bottom of the parapet [of the dwelling] to the ground immediately
abutting the façade as currently
shown on the plan exceeds 10
metres’ but that ‘the true height of the façade, absent the
illegal structures and the fill retained
thereby, will and does
exceed 10 metres’.
[42
] It is clear from
these allegations that the appellants accept that the dwelling
reflected in the plan falls within the permissible
height restriction
and that their complaint concerns rather the dwelling that has
actually been constructed. In that case the appellants
cannot
challenge the approval of the plan on the basis they have advanced
namely; that the municipality approved a plan that permits
a dwelling
that infringes the 10 metre height restriction imposed by s 98 of the
Zoning Scheme. It did not. That, I think, puts paid
to this review
ground.
[43] It is not necessary in the light of this
finding to determine whether or not the height of the actual dwelling
is compliant,
an exercise I suspect may prove unwinnable for the
appellants on the available evidence. The Building Standards Act does
provide
for a situation where a building has been built contrary to
approved plans but that enquiry (which is probably the subject of the
pending demolition application) falls outside the purview of these
proceedings.
The alleged contravention of s 47 of the Zoning Scheme in
respect of setback requirements
[
44] The court below
declined to consider this ground of review on the grounds that it was
raised too late in the proceedings and
that the required
interpretation of s 47 was highly controversial as it involved the
measurement of the average depth of the site
and the scrutiny of the
relationship, if any, between the relevant regulation and the title
deed conditions; issues which, in its
view, had not been properly
canvassed in the papers.
[45
] I am of the
respectful view that the court’s refusal to entertain the matter
was wrong. This, however, is an appeal against the
exercise of
another court’s discretion in the strict or narrow sense which
involves a choice between permissible options. The approach
to be
followed by this court, therefore, is not to consider whether the
decision of the court was correct or not and substitute its
decision
simply because it would have reached a different conclusion: it may
interfere only where it is shown that the discretion
was not
exercised judicially or was exercised based on a wrong appreciation
of principles of law or a misdirection on the facts or
reached a
decision that could not reasonably have been made on the relevant
facts and principles.
21
[46]
In my view, the
basis on which the court’s decision was premised indicates a
misapprehension of both the relevant principles and
the facts and
that the court may even have misconceived the very nature of the
enquiry. First, the matter was raised purely as a
law point. The
dispute raised was not fact-based (the relevant boundaries of the
site, setbacks and measurements represented on the
plans which seem
to have caused the court below some anxiety were common cause) but
concerned only the interpretation and application
of statutory
provisions. It did not alter the legal basis upon which the
appellants relied or the ambit of the relief sought. Furthermore,
the
appellants alleged no prejudice – the foremost consideration in a
court’s exercise of its discretion as to whether or not
to
entertain a belated point
22
– and were in fact able to deal with the issues fully in their
supplementary papers and argument as indicated by the court itself
in
its judgment. I think that these reasons alone were sufficient to
persuade the court below to entertain the review ground. This
court
is thus at large to interfere.
[
47] Section 47 of the
Zoning Scheme prescribes specific building lines for buildings and
reads:
‘
(1) Except as provided in
subsection (2), no building which is a Dwelling House, Double
Dwelling House, Group of Dwelling Houses or
an Outbuilding to any of
the foregoing shall be erected nearer than 4,5m to any street
boundary of the site of such building provided
that:
where a lesser building line is
prescribed for the street concerned in Schedule 4 of Appendix A, the
distance prescribed in terms
of Schedule 4 shall apply;
the above
prohibition shall not apply to the boundary between a site and a
street or portion thereof adjacent to such site which
street or
portion cannot in the opinion of the Council be constructed or is in
the form of a service lane, pedestrian way or steps,
and such
boundary shall, for the purpose of Chapter VII, be deemed to be a
common boundary.
(2) Where the
average depth of the site of any building referred to in subsection
(1) measured at right angles to a street boundary
of such site does
not exceed 20m, such building may be erected nearer than 4,5m but not
nearer than 3m to the street boundary concerned.
(3) Where the
boundaries of a site are so irregular that doubt or uncertainty
exists as to the correct value of the average depth
of the site, the
Council shall define such average depth in accordance with the intent
of this section.’
[48] The plan reflects that the dwelling is set
back 3,233 metres from the north eastern street boundary. It
therefore infringes
the provisions of s 47(1) unless covered by the
exceptions created by subsections (2) and (3). The appellants contend
that the municipality
was obliged to refuse plan approval in the face
of this patent contravention of the 4,5 metre setback restriction.
[49] Harrison contended that the average depth of
the site is less than 20 metres with the result that the exception in
s 47(2) applies.
In addition
, it was
argued on her behalf that even if there was an illegality the
appellants had unduly delayed raising their challenge which
is in any
event improper as the original plan and the source of the
contravention is not impeached.
[50] The municipality went further and argued that
the boundaries of the site are so irregular that doubt or uncertainty
exists as
to the correct value of the average depth of the site,
which entitles the municipality to then define such average depth, as
provided
for in s 47(3). It is difficult to see how the boundaries
of the site can be said to be irregular as contemplated by that
section
when the boundaries are made up of a series of straight
lines. But that apart there is no suggestion in the papers that the
municipality
was pertinently aware at the time it approved the plan
that the building encroached over the building line, least of all
that it
applied the provisions of that section when determining
whether to approve the plan. Its reliance upon that provision thus
seems
to me to be an afterthought.
[
51] The manner in which
the ‘average depth’ of a site is to be calculated for purposes of
s 47(2) is in dispute but, on the view
that I take of the matter, it
is not necessary to resolve that dispute and I have assumed for
present purposes that the building
indeed encroaches over the
building line on its north eastern boundary by 1,267 metres as
alleged by the appellants. The question
that then arises is whether
the appellants are entitled to have the plan set aside on that
ground.
[52] The infringement that is now complained of
appeared on the original plan that was approved in February 2005.
Yet the challenge
was raised for the first time by the appellants
more than three years later in the replying affidavits that were
filed in May 2008.
The appellants had by then dragged the respondents
through a whole gamut of internal processes and litigation.
Significantly, the
appellants have from inception been aided by a
battery of experts. The appellants’ explanation for failing to
raise this challenge
until the last moment is that they became aware
of the issue only in the course of preparing their replying
affidavits when it was
drawn to their attention by their town
planning advisor who had previously relied on handwritten notes and
visual memory as he was
prevented from copying the submitted plan. I
think it is quite clear from that explanation that the real concern
of the appellants
was unrelated to the distance that the building was
to be constructed from the street boundary.
[53] In terms of s 7(1) of PAJA:
‘
Any proceedings for judicial
review in terms of section 6(1) must be instituted without
unreasonable delay and not later than 180
days after the date –
. . .
on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)
(a)
have
been concluded; or
where no such remedies exist,
on which the person concerned was informed of the administrative
action, became aware of the action
and the reasons for it or might
reasonably have been expected to have become aware of the action and
the reasons.’
[54
] The appellants
‘might reasonably have been expected to have become aware’ of the
infringement when they first inspected the
original plan and
proceedings for review on that ground ought ordinarily have been
commenced within 180 days of that date. Section
9(2) however allows
the extension of these time frames where ‘the interests of justice
so require’. And the question whether
the interests of justice
require the grant of such extension depends on the facts and
circumstances of each case: the party seeking
it must furnish a full
and reasonable explanation for the delay which covers the entire
duration thereof and relevant factors include
the nature of the
relief sought, the extent and cause of the delay, its effect on the
administration of justice and other litigants,
the importance of the
issue to be raised in the intended proceedings and the prospects of
success.
23
[55] Here, it seems to me that had the appellants
indeed been concerned about the distance that the building was to be
constructed
from the street, there is simply no acceptable
explanation for why the infringement was not detected by their
advisers at the outset.
In my view, this lapse which as I have
indicated shows that this infraction was not their primary concern,
does not favour the appellants’
application on this ground.
[56] But there is further reason why the challenge
should not be entertained at this late stage.
As
pointed out by this court in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
:
24
‘
[A] court
that is asked to set aside an invalid administrative act in
proceedings for judicial review has a discretion whether to
grant or
to withhold the remedy. It is that discretion that accords to
judicial review its essential and pivotal role in administrative
law,
for it constitutes the indispensable moderating tool for avoiding or
minimising injustice when legality and certainty collide.’
[57]
Even before the
advent of PAJA it was recognised that there may be circumstances in
which delay might justify the refusal of relief,
thereby effectively
giving legal effect to an otherwise unlawful act. In
Harnaker
v Minister of the Interior
,
25
which concerned a challenge to a
legislative act, the court said the following:
26
‘
[I]f the
affected members of the public, having
locus
standi
to
apply to Court for an order declaring the legislative act null and
void, delay unreasonably in taking such action and this causes
prejudice, I do not see why they should not all be precluded from
obtaining relief. . . . I can see no inequity arising from the
application of the delay rule in this way. Accordingly . . .
unreasonable delay by the plaintiff in instituting action, coupled
with
resultant prejudice to defendant, is a valid defence, or
objection, to the action.’
[
58] In
Wolgroeiers
Afslaers v Munisipaliteit van Kaapstad
27
this Court, after an extensive
discussion of
Harnaker
and
other cases, set out the parameters of a court’s discretion in
relation to delay:
28
‘
W
hat
has indeed been prescribed by our Courts is that proceedings should
be instituted within a reasonable time and, as I have already
mentioned, the Court is at liberty, depending on the circumstances
and in the exercise of its discretion, to condone unreasonable
delay
in appropriate cases. l cannot possibly accept that in the
formulation of the requirement that proceedings should be instituted
within a reasonable time, it was intended to fetter the Court’s
discretion to such an extent that even where a litigant disregards
the Court’s directive by unnecessary and excessive delay in
bringing proceedings, the Court does not have the right to refuse the
application merely because it is not proved or cannot be proved that
the respondent was not materially prejudiced, even though there
were,
on a review of all the circumstances, other well- founded reasons for
the exercise of its discretion against the applicant.
I
accept that prejudice to the respondent and the degree thereof are
relevant factors in the consideration of whether unreasonable
delay
ought to be overlooked, and that they can sometimes be the decisive
factor, especially in cases of comparatively trivial delays
.
. .
Whilst,
as I have already indicated, the question whether there was an
unreasonable delay requires a factual finding, the answer to
the
question whether an unreasonable delay ought to be overlooked rests
in the discretion of the Court, exercised by taking into
consideration all the relevant circumstances and factors.’ (my
emphasis.)
[
59] In
Oudekraal
,
29
this court, dealing with the necessity
for a review to be properly brought by a party seeking to set aside
an alleged invalid administrative
act, referred to the
Wolgroeiers
dictum set out in the preceding paragraph and remarked as follows:
‘
No doubt a
court that might be called upon to exercise its discretion will take
account of the long period that has elapsed since
the approval was
granted, but the lapse of time in itself will not necessarily be
decisive: Much will depend upon a balancing of
all the relevant
circumstances, including the need for finality, but also the
consequences for the public at large and indeed for
future
generations, of allowing the invalid decision to stand. In weighing
the question whether the lapse of time should preclude
a court from
setting aside the invalid administrative act in question an important
– perhaps even decisive – consideration is the extent to which
the appellant or third parties might have acted in reliance upon
it.’
[60] A review application to the Cape High Court
followed on this court’s decision in
Oudekraal
,
which once again resulted in an appeal to this court. In the second
appeal –
Oudekraal Estates (Pty) Ltd v
City of Cape Town
30
(
I shall refer to the second
appeal as
Oudekraal 2)
– this court, in
applying
Wolgroeiers
,
31
had regard to the following dictum from
that case:
32
‘
If it is alleged that an
applicant did not institute the proceedings within a reasonable time,
the Court must decide (a) whether the
proceedings were in fact only
launched after a reasonable time had elapsed and (b) if so, whether
the unreasonable delay should be
condoned. Again, as it appears to
me, with reference to (b), the Court exercises a judicial discretion
while taking into consideration
all the relevant circumstances.’
[61] In
Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie
,
33
with reference to the aforesaid passage from
Wolgroeiers
,
the following was stated:
‘
The investigation, as far as
(a)
is concerned, has nothing to do with the Court’s discretion; it is
simply an examination of the facts of the case in order to determine
whether the period which has elapsed, in the light of all the
relevant circumstances, was reasonable or unreasonable. (
Wolgroeiers
Afslaers
at 42C-D;
Schoultz v Voorsitter,
Personeel-Advieskomitee van die Munisipale Raad van George, en ’n
ander
1983 (4) SA 689
(C) at 697-8.) Naturally, the finding which is made in that regard
implies that the Court makes a value judgment in the sense of
the
Court’s view of the reasonableness of the period which has elapsed
in the circumstances of the case. Equating such a value
judgment with
a discretion is, however, legally and logically indefensible.’
34
[62] In the present case the lapse of three
years before the appellants acted was undoubtedly inordinate,
particularly if regard
is had to the promptitude with which people
might ordinarily be expected to act and build in accordance with
approved building plans.
Proceeding to the next step of the enquiry,
namely whether the delay should nevertheless be condoned, it is
necessary to step back
and consider the totality of circumstances.
There is no suggestion that Harrison consciously flouted the building
line restriction.
Acting in reliance upon the approval of the plan
she has built a substantial structure. Besides the substantial cost
that would
be necessitated by adapting the building, Harrison has
sustained considerable cost in defending litigation that was quite
unrelated
to the encroachment over the building line. Moreover, the
infraction is relatively minimal, so much so that it went unnoticed
even
by the array of experts employed by the appellants until the
litigation was well advanced.
The local authority supports
Harrison and there is not the slightest prospect that the infraction
will impact in any meaningful way
on the aesthetics or future
development of Camps Bay. Throughout this saga Harrison has attempted
to the best of her ability to deal
with the appellants’ concerns.
They, on the other hand, have been intractable. For all these reasons
I conclude that the delay
in raising this issue should not be
condoned and the application to review and set aside the plans on
that ground should not succeed.
[63] For these reasons the appeal should fail. It is accordingly
dismissed with costs including the costs of two counsel.
______________________
MML MAYA
Judge of
Appeal
APPEARANCES:
APPELLANTS: DF Irish SC with IC Bremridge
Instructed by Abe Swersky & Associates, Cape
Town
Lovius-Block, Bloemfontein
FIRST RESPONDENT: HP Viljoen SC with JC Marais
Instructed by Kritzinger & Co, Cape Town
Matsepes Inc, Bloemfontein
SECOND RESPONDENT: G Budlender SC with K Pillay
Instructed by Abraham & Gross,
Cape Town
EG Cooper & Majiedt Inc, Bloemfontein
1
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635C.
2
Section 62(1) of the Systems Act entitles ‘[a]
person whose rights are affected by a decision taken by a political
structure,
political office bearer, councillor or staff member of a
municipality in terms of a power or duty delegated or sub-delegated
by
a delegating authority to the political structure, political
office bearer, councillor or staff member, [to] appeal against that
decision by giving written notice of the appeal and reasons to the
municipal manager within 21 days of the date of the notification
of
the decision’.
3
The review proceedings which would have targeted
the September 2005 plan approval never got off the ground as the
intended result
was achieved in the s 62 appeal proceedings.
4
The Regulations were p
romulgated
in terms of s 9(2) of the Land Use Planning Ordinance 15 of 1985
published in Provincial Gazette 4684 of 1 March 1991
.
5
The judgment is reported as
PS
Booksellers (Pty) Ltd v Harrison
2008
(3) SA 633
(C) per Meer J.
6
See
Paola v Jeeva NO
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) paras 14-16;
Walele v City of Cape Town
[2008] ZACC 11
;
2008
(6) SA 129
(CC).
7
See Part A16 of the Regulations under the
Building Standards Act, GN R2378 RG4565, 12 October 1990 (the
Building Regulations) which
stipulates the tertiary educational
qualifications which must be vetted by the Human Sciences Research
Council that a building
control officer must possess to qualify for
the position.
8
Section 4(3) sets out the nature of the
particulars which the application envisaged in the section should
contain.
9
The material part of this letter reads:
‘The approval of these
building plans with their reliance on a fictitious and unattainable
finished level of the ground abutting
the façade of the building
would permit the retention of the currently illegal building when
the height of the façade would exceed
the 10m limitation (by some
2m) … [t]hat is, the unlawfully constructed three storey building
achieves, and would retain, a physical
height of one storey higher
than the legitimate expectations of the owners of adjoining and
neighbouring properties. We accordingly
submit that the building in
question … “is to be erected” … in such a manner that it
will be … undesirable and will …
derogate from the value of
adjoining and neighbouring properties, and that the Council is
therefore compelled to reject the building
plan application by
virtue of the provisions of s 7(1)(b) of the [Building
Standards Act].’
10
In this letter the relevant objection was
recorded as follows:
‘
Quite
apart from all the aforegoing objections, our clients object to the
revised plans now submitted on the basis that in terms
of s
7(1)(b)(ii)(aa)(ccc) the structure will in fact derogate from the
value of adjoining or neighbouring properties. In support
of our
clients’ aforementioned objections, we annex hereto … an
affidavit deposed to on the 15
th
January 2007 by Mr John Phillip van der Spuy, a Sworn Valuer, which
must be treated as if inserted herein’.
11
2008 (2) SA 184
(SCA) para 43. See also
National Director of
Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 47;
Van
Zyl v Government of the Republic of South Africa
2008 (3) SA 294
(SCA) para 40;
Swissborough Diamond Mines (Pty) Ltd v Government
of the Republic of South Africa
1999 (2) SA 279
(T) at 324F-G.
12
Op cit
n6.
13
Section 3(1) of PAJA requires that
‘[a]dministrative action which materially and adversely affects
the rights or legitimate expectations
of any person must be
procedurally fair.’
14
Walele
at para
71.
15
Earthlife Africa (Cape Town) v
Director-General: Department of Environmental Affairs and Tourism
[2005] ZAWCHC 7
;
2005 (3) SA 156
(C) para 76;
Minister
of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA)
para 20;
Jeffs
v New Zealand Dairy Production and Marketing Board
[1996]
3 All ER 863
(PC) at 870F-G;
Walele
para 69.
16
Walele
paras 68
and 70.
17
At para 67.
18
See s
3(2)(a) of PAJA;
Premier,
Province of Mpumalanga v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal
1999 (2) SA 91
(CC) para 39.
19
Clause D(g) reads: ‘As being in favour of the Council of the
Municipality of Cape Town:- That the owner of this erf shall be
obliged to receive material to give a proper slope to the bank, if
this erf is below the level of the adjoining erf, and if this
erf is
above the level of the adjoining erf, he shall [in] like manner
permit a safe slope to the bank, unless in either case he
shall
elect to build retaining walls to the satisfaction of the City
Engineer and within a period to be determined by the Municipality
of
Cape Town.’
20
BEF (Pty) Ltd v Cape Town Municipality
1983
(2) SA 387
(C) at 396D-G.
21
Knox D’Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 361H;
Naylor v Jansen
2007 (1) SA 16
(SCA) para14;
Giddey
NO v JC Barnard and Partners
[2006] ZACC 13
;
2007 (5)
SA 525
(CC) para 19.
22
Anglo Operations Ltd v Sandhurst Estates (Pty)
Ltd
2007 (2) SA 363
(SCA) para 32.
23
Brummer v Gorfil Brothers Investments (Pty)
Ltd
[2000] ZACC 3
;
2000 (2) SA 837
(CC) para 3;
Van
Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC) paras 20 and 22.
24
2004 (6) SA 222
(SCA) para 36.
25
1965 (1) SA 372
(C); see also
Kalil
and another NNO v Minister of Interior
1962
(4) SA 755
(T) at 758A-759D;
Hassan &
Co v Potchefstroom Municipality
1928
TPD 827
;
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA).
26
A
t 381D-G.
27
1978 (1)
SA 13
(A) at 42A-D.
28
Original Afrikaans text translated into English.
29
Above n24, para 46.
30
2010 (1) SA 333
(SCA).
31
At 39C-D; original Afrikaans text translated into English.
32
Para 50.
33
1986 (2) SA 57
(A) at 86D–E.
34
Original Afrikaans text translated into English;
See
also
Oudekraal 2
at
para 51.