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[2019] ZAWCHC 84
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Epstein v City of Cape Town and Another (17764/2018) [2019] ZAWCHC 84 (3 July 2019)
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THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 17764/2018
In
the matter between
JO-AN
NICOLA EPSTEIN
APPLICANT
and
THE
CITY OF CAPE TOWN
FIRST
RESPONDENT
PAUL
ELGIN WALKER
SECOND
RESPONDENT
Coram:
Rogers J
Heard
:
20 June 2019
Delivered:
3 July 2019
JUDGMENT
Rogers
J
[1]
The applicant, Ms Jo-An
Epstein, seeks the review and setting aside of the approval of
building plans by the first respondent, the
City of Cape Town (CCT),
in respect of property in Fresnaye owned by the second respondent, Mr
Paul Walker. Mr Walker’s property
runs between Avenue B (to the
north-east) and Avenue S (to the south-west), with the natural ground
level rising from north-east
to south-west. There is an old house on
the north-east side of the property with access off Avenue B. Ms
Epstein’s property
is immediately behind Mr Walker’s
property on the south-west side. Unlike Mr Walker’s property,
hers does not run through
to Avenue B; there are two further
properties between her property and Avenue B. Her immediate neighbour
to the north-east is Mr
Denzil Spolander.
[2]
There is no house on Mr
Walker’s property immediately in front of Ms Epstein’s
house. The building plans under review
envisage the construction of a
second house on that side of the property as well as the renovation
and extension of the existing
house. In the language of item 53 of
the CCT’s Development Management Scheme (DMS) forming scheduled
3 to its Municipal Planning
By-law of 2015, the existing house is the
‘main dwelling house’ and the proposed new house on the
south-west side a
‘second dwelling’.
[3]
Ms Epstein alleges that
the approved building plans violate the DMS for the following reasons
(all item references are to the DMS):
(a) A second dwelling that is a
‘separate structure to a main dwelling house’ may not
exceed a height of 6 m measured
‘from base plate to the
wall plate’ and 8 m ‘to the top of the roof’
(item 53(c). The proposed second
dwelling is a separate structure to
the main dwelling (this is disputed). If it is a separate structure,
it violates the applicable
height restrictions (this is agreed). I
shall call this the ‘separate structure’ point.
(b) If the separate structure
point fails, the applicable height restrictions for the second
dwelling are 9 m/11 m rather
than 6 m/8 m (item
22(c)(i) – this is agreed). Even so, the proposed second
dwelling has features which contravene
these limits (this is
disputed). I shall refer to this as the ‘roof height point’.
(c) If the ‘separate
structure’ point fails, the proposed second dwelling is
‘contained within the same building’
as the main dwelling
within the meaning of item 53(d) (this is disputed). In terms of that
item, such a second dwelling must be
so designed ‘that the
building appears as a single dwelling house’. In the present
case, the building containing the
main and second dwelling houses
will not ‘appear as a single dwelling house’ (this too is
disputed). I shall refer
to this as the ‘single appearance’
point.
(d) The proposed second dwelling
contravenes the requirement that it be constructed ‘in a style
that is similar to the architecture
of the main dwelling house’
(item 53(b) – this is disputed). I shall refer to this as the
‘similar style’
point. It is independent of all others.
(e) Finally, Ms Epstein alleges
that Mr Walker was guilty of a material non-disclosure to the CCT
when seeking approval of the plans,
such non-disclosure relating to
an agreement in principle reached between Mr Walker and his neighbour
Mr Spolander. I shall refer
to this as the non-disclosure point
[4]
The following definitions
in the DMS are relevant (my underlining):
‘base level’
‘an imaginary plane drawn horizontally at the average
ground level of the building, or vertical division of the
building.’
‘building’
‘without in any way limiting its ordinary meaning,
includes:
(a) any roofed structure;
(b) any external stairs, steps or landings of a building
and any gallery, canopy, balcony, stoep, verandah, porch or
similar feature of a building;
(c) any walls or railings enclosing any feature referred
to in paragraph (b) above; and
(d) any other portion of a building.’
‘dwelling house’
‘a building containing only
one dwelling unit
,
together with such outbuildings as are ordinarily used with a
dwelling house, including domestic staff quarters.’
‘dwelling unit’
‘a self-contained, interleading group of rooms, with not
more than one kitchen, used for the living accommodation and
housing of one family . . .’
‘height of a building’
‘a vertical dimensional from a specified level to another
specified level, as set out in the development rules of a zoning,
measured in metres; provided that –
(a) chimneys (maximum horizontal dimensional 1,5 m);
(b) flues (maximum horizontal dimensional of 1 m);
(c) lift shafts (maximum horizontal dimensional of 2,5 m
and maximum vertical dimensional of 2 m per lift shaft);
(d) masts, and
(e) antennas,
shall not be counted for the purpose of height control.’
‘outbuilding’
‘a structure, whether
attached or separate
from
the main building, which is normally ancillary and subservient to
the main building . . ., but
does not
include a second dwelling.’
‘parapet’
‘a
low
projection, wall or moulding which
finishes
the uppermost edge of a building with a flat or low pitched roof.’
‘second dwelling’
‘another
dwelling unit
which may, in terms of this
[DMS], be erected on a land unit where a dwelling house is also
permitted; and such second dwelling
may be a
separate structure
or
attached to an outbuilding
or may be
contained in the
same structure as the dwelling house
, . .
.’
‘structure’
‘without in any way limiting its ordinary meaning,
includes any building, shelter, wall, fence, pillar, tower,
pergola,
steps, landing, terrace, sign, ornamental architectural
feature, swimming pool, fuel pump or underground tank, any
building
ancillary to service infrastructure provision, and any
portion of a structure.’
‘terrace’
‘an area to which occupants or users of a building have
access, created on a flat roof over a portion of the building,
resulting from the setting back of part of the building above such
portion.’
‘top of the roof’
‘for the purpose of height control, means the top of the
roof ridge in the case of a pitched roof, or the
top of the
parapet
where a parapet extends above the roof.’
‘vertical division’
‘a portion of the building bounded by any combination of
external and internal walls, with or without openings, which
portion is, by design, clearly identifiable as a logical vertical
component from other portions of the building. . .’
‘wallplate’
‘the lowest point of a longitudinal member, truss,
bracket, pillar, post, structure or any other similar device as
determined
by the City, supporting a roof.’
[5]
Item
21
(b) provides that
a ‘second dwelling’ is an ‘additional use right’
of a property zoned single residential
1 (SR1). Mr Walker’s
property is so zoned. By virtue of item 21(b)(iv), this additional
use right is subject to the conditions
stated in item 53, the
relevant parts of which I have quoted.
[6]
Item 22(c) provides that
the ‘maximum height of a building, measured from the base level
to the wall plate and top of the
roof’ shall be determined in
accordance with the table set out in that item. The relevant column
of the table has the heading
‘Maximum height above base level’
and the sub-headings ‘To wallplate’ and ‘To top of
roof’.
For a property of the zoning and size of Mr Walker’s
property, the applicable heights are 9 m and 11 m respectively. The
word ‘roof’ is not defined.
The
separate structure point
[7]
In my view the second
dwelling will not be a ‘separate structure’ to the main
dwelling. The first and second storeys
of the main dwelling (with its
ground storey being the lowest) will share party walls with the
basement parking level and ground
storey of the second dwelling. The
point at which two dwellings come closest to each other is the point
at which there should be
a gap if each is to be ‘separate’
from the other. It is at this point that the two dwellings in the
present case will
be attached and not ‘separate’. The
definition of ‘second dwelling’ indicates that a
‘separate structure’
is to be contrasted with one which
is either ‘attached to an outbuilding’ or ‘contained
in the same structure’
as the main dwelling. The last two cases
involve physical attachment or integration. It is the absence of
these features which
makes a structure ‘separate’.
[8]
In the founding affidavit
Ms Epstein said that there was no interior access between the two
dwellings but her counsel did not argue
that this made the second
dwelling a ‘separate structure’. By definition a second
dwelling is a ‘dwelling unit’
apart from the dwelling
unit constituted by the main dwelling. By definition a ‘dwelling
house’ can only contain ‘one
dwelling unit’. A
‘dwelling unit’ is a ‘self-contained’ group
of interleading rooms used for occupation
by one family. One would
not expect interior access between two ‘self-contained’
units occupied by two families.
[9]
Ms Epstein’s counsel
had some difficulty in formulating precisely what additional form of
physical connection, lacking in
the present case, was needed to cause
dwellings not to be ‘separate’. He said the dwellings had
to be ‘contained
within the same structure’, that the
‘external walls must be common to both’. Clearly the
second dwelling contemplated
by the DMS cannot be a dwelling unit
entirely inside another dwelling unit, ie a unit with no exterior
walls (and thus no windows
or private access), surrounded entirely by
the main dwelling unit. One would expect all, or nearly all, the
rooms of a second dwelling
to have at least one exterior wall.
[10]
If that be so, the only
sensible way in which two dwelling units can lack separateness is by
being physically connected by way of
party walls so that one cannot
walk around each house separately. That is the position here. There
is an uninterrupted line of
exterior wall encompassing the two
dwellings which are attached on one side. At any given point the
exterior wall is either the
exterior wall of the main dwelling or of
the second dwelling; it is impossible for a particular segment of an
exterior wall to
be simultaneously the exterior wall of two separate
dwelling units.
[11]
It follows that the
separate structure point fails; the reduced height restrictions
imposed by item 53(c) are not applicable.
The
roof height point
[12]
The roof height point
concerns features to be erected at the top of vertical division 4 of
the second dwelling shown on the plan
‘JE6’. The roof of
that vertical division will mainly be a concrete slab beneath which
lie the kitchen, scullery, dining
area, guest toilet and patio. In
the north-west corner, however, there is an opening in the slab above
which is a slanted pop-up
roof enclosed by glass and apparently
resting on members supported by posts anchored on the edge of the
slab or on top of the exterior
walls. The pop-up roof and its glass
walls provide additional volume and light for the living area
beneath.
[13]
The slab rests on walls
which at their highest point constitute the slab’s wall plates.
They are just within the 9 m
height limit. In terms of the plans
the slab will support a roof garden and leisure area (I shall call it
the deck) comprising
the following features (illustrated in
‘MB4A.1’):
(a) The deck will be accessed by
stairs at the south-west corner which, at the point where they give
out onto the deck, will be
enclosed on three sides and covered by a
roof. (I refer to this feature as the portico.)
(b) The deck will have a planting
area along the south-east side contained by a lower wall at the front
and higher walls at the
back and side.
(c) Recessed into the garden
area, and also surrounded by a low wall, will be a jacuzzi.
(d) The rest of the deck will be
clad with wood.
(e) The deck perimeter be
cordoned by a combination of the walls and portico already mentioned
and iron balustrading.
[14]
In the founding papers Ms
Epstein did not allege any infringement of the wall plate
restriction. In her replying affidavit, however,
she alleged that the
portico roof and pop-up roof rested on wall plates higher than the
wall plates supporting the slab and thus
higher than 9 m. When her
counsel sought to argue the new points, I invited him to discuss that
aspect with opposing counsel during
the tea adjournment to ascertain
whether Mr Walker might wish to file further affidavits and if so
whether Ms Epstein would tender
a postponement. After the adjournment
her counsel informed me that while he wished to preserve the new
points he would not tender
a postponement.
[15]
Although I allowed
argument to proceed on all points, Mr Walker’s counsel argued
that I should not permit Ms Epstein to rely
on those raised in the
reply papers. Given the choice Ms Epstein’s counsel
exercised, I agree. Although I am inclined
to think that the new
points are both good, I do not know what Mr Walker and his experts
would have said if afforded the chance
to respond. Furthermore, I
have not had the benefit of full argument regarding the definition of
‘wall plate’ as applied
to the pop-up roof and portico
roof.
[16]
Ms Epstein’s
counsel, for example, regarded the pop-up roof’s wall plate as
the lowest point of the vertical posts supporting
that roof. I am not
sure that is correct; it may well be that the ‘longitudinal
members’ which support the pop-up roof
are the beams running
more or less horizontally immediately below the roof, in which case
the wall plate height would be the lowest
side of those horizontal
members, a height considerably above 9 m. However, accepting Ms
Epstein’s counsel’s more modest
interpretation, it is not
beyond doubt that the pop-up roof has a wall plate higher than 9 m.
It is not clear whether the lowest
point of the vertical posts is the
top of the slab or the top of the exterior walls which –
elsewhere in this vertical division
– support the slab. If the
latter were the case, the pop-up roof’s wallplate height would
– like the wallplate
for the slab – be just within the
9 m limit. If the former were the case, the wall plate height
might exceed the permissible
height by the depth of the slab (perhaps
about 0,3 m).
[17]
In the case of the
portico, I have greater difficulty in seeing what answer could be
given. Mr Walker’s counsel submitted
that one does not know
from what material the portico will be constructed. With reference to
‘MB4A.1’, he said the
portico might be a wooden
structure. Having regard to the building plans themselves, I doubt
this, but I do not think it matters.
The structure which supports a
roof need not be a masonry wall or a longitudinal member resting on a
masonry wall. The portico
will have a flat roof and will be supported
on three sides by the vertical structures surrounding the opening of
the stairwell.
If, as in the case of the roof slab, the wall plate is
constituted by the surface of the vertical structure on which the
flat roof
rests, the portico’s wallplate is clearly
considerably higher than 9 m.
[18]
However it is unfair to
reach a definite conclusion when Mr Walker has not had an opportunity
of providing countervailing evidence.
I may also take into account
that the CCT, which abided the court’s decision, was not
forewarned of this issue in the founding
papers. Given the CCT’s
lack of response on other issues, it is unlikely that it would have
provided an explanation on this
one, but I cannot be certain of that.
In this regard I take into account that the definition of ‘wallplate’
refers
to various features and devices ‘as determined by the
City’. By approving the plans the CCT seemingly determined that
the wall plate of the portico roof was at the same level as the wall
plate of the slab.
[19]
I turn to the matters
raised in the founding papers, namely whether the various features of
the deck which are higher than the cement
slab violate an applicable
height restriction. Mr Walker’s counsel resisted this
conclusion on two arguments:
(a) that the features of the deck
are all part of the roof, and that because none of the features is
higher than 11 m the roof by
definition is at no point higher than
11 m;
(b) that if the features in
question are higher than the highest point of the roof, the DMS does
not prevent this, provided those
features are not higher than 11 m.
[20]
As to the first argument,
the height restriction is framed with reference to the defined
expression ‘top of the roof’.
In the case of a pitched
roof, that means the top of the ‘roof ridge’. We are not
concerned with a pitched roof. In
other cases, the ‘top of the
roof’ is the ‘top of the parapet where a parapet extends
above the roof’.
On the assumption that not every non-pitched
roof will have a parapet, the relevant part of the definition must be
taken to mean
that the ‘top of the roof’ in the case of a
non-pitched roof is either the highest point of the ‘roof’
or – if the roof has a parapet extending above that height –
the top of such parapet.
[21]
Leaving aside the question
of a parapet, what is the highest point of the slab roof? The word
‘roof’ is not defined.
In this context it means the
structure or material which covers the top of a building and without
which the building would be open
to the elements. The function of a
roof is to cover. A structure which performs this function may have
ornamental features. Such
ornamental features have no separate
function. However, a structure having some function other than
covering the top of the building
cannot be regarded as part of the
roof.
[22]
The wooden decking is not
part of the roof. Its function is to provide a floor for the roof
garden, not to finish off the roof.
Similarly, the jacuzzi,
balustrading and planter walls have functions unrelated to the
function of a roof. None of these features
can be regarded as
ornamental embellishments of the roof. They will be erected on top of
the roof; they are not themselves part
of it.
[23]
In regard to the wall
around the planter boxes, the expert evidence is that the
construction of the slab required an ‘upstand
beam’
around its perimeter. Ms Bell (Mr Walker’s architect) stated
that the upstand beam had to be at least 0,5 m
high but that
this did not mean it could not be higher. She contended that it could
protrude as high as 2 m, ie up to the 11 m
limit. Mr Retief, the
civil engineer who provided a confirmatory affidavit, qualified Ms
Bell’s statement by stating that
from a structural perspective
the required beam has a constant height. Where Ms Bell spoke of the
‘upstand beam rising and
falling in height’, she was
referring to differing heights brought about by brickwork laid on top
of the beam. I take this
to mean that the upstand beam in the present
case needed to be, and was, about 0,5 m in height, and that the
rest of the wall
depicted in ‘MB4A.1’ is masonry work
built on top of the beam.
[24]
The upstand beam would
either be part of the ‘roof’ as ordinarily understood or
would qualify as a ‘parapet’
for purposes of the
definition of ‘top of the roof’. I reject, though, the
argument by Mr Walker’s counsel that
the wall above the slab
could be as high as 2 m while still forming part of the ‘roof’.
The height of the perimeter
wall around the planting area has nothing
to do with the function of the roof and is not an ornamental feature
of it. Apart from
containing the planting area, its function is to
provide privacy to those using the deck.
[25]
The walls depicted on
‘MB4A.1’ cannot be regarded as a ‘parapet’.
The low walls in front of the planting
area are not on the ‘edge’
of the building but on the interior part of the roof and thus fall
outside the definition
of ‘parapet’. The higher walls at
the back and side of the planting area are on the ‘edge’
of the building
but they neither are ‘low’ nor do they
‘finish’ the uppermost edge of the building. The word
‘low’
in the definition of ‘parapet’
qualifies each of the words in the phrase ‘projection, wall or
moulding’.
Although ‘low’ is dimensionally
imprecise, it must be understood in the context of a protrusion which
‘finishes’
the ‘uppermost edge of a building with a
flat or low pitched roof’. The perimeter walls in the present
case are higher
than the most generous allowance for a ‘low’
wall and do not serve the function of finishing the edge of the
building
but the function of enclosing a planting area and providing
privacy for users of the deck.
[26]
I thus reject the argument
that any of these features form part of the ‘roof’. The
very definition of ‘top of
the roof’ supports this view.
If anything might qualify as forming part of a flat roof it would be
a low parapet, yet the
definition talks of the parapet extending
‘above the roof’. In other words, the DMS does not
conceive of the parapet
as part of the roof. If it were part of the
roof, it would have been unnecessary to mention it.
[27]
Since Mr Walker has chosen
to erect walls and balustrading as features of the deck, rather than
to finish the flat roof with a parapet,
I take the ‘top of the
roof’ to be the upper edge of the slab. The depth of the slab
is not stated in the record but
to judge by other dimensions on the
plans it is about 0,3 m, meaning that the top of the roof is
1,7 m lower than
the maximum permitted height of 11 m.
Of course, Mr Walker could not have raised his flat roof to the
maximum height of 11 m
because then the wall plate would have
been at 10,7 m rather than at the permitted 9 m; but he
could have had a pitched
roof going up to 11 m.
[28]
The question is whether,
since the top of Mr Walker’s flat roof is well below the
permitted maximum height of 11 m, there
is anything to preclude his
constructing non-roof features on top of the slab. The question can
be reformulated thus: Are the height
restrictions in the DMS to be
construed as meaning that the highest permissible point on a building
is the ‘top of its roof?
For the reasons which follow the
answer in my view is yes.
[29]
First, throughout the DMS
height restrictions are introduced as fixing the ‘maximum
height of a building’. A ‘building’
as defined
would include features constructed on top of a flat roof. In the case
of certain zonings, including residential zonings,
two limits are
specified – from base level to ‘wall plate’ and
from base level to ‘top of the roof’.
In certain
non-residential zonings the only height limit is from base level to
‘top of the roof’. Unless ‘top
of the roof’
were intended to be the highest permissible point of the building,
none of these height restrictions would actually
specify a ‘maximum
height of a building’.
[30]
Second, if the DMS were
not construed in the way I have indicated, there would be no height
restriction at all in respect of structures
built on top of a flat
roof. Mr Walker’s counsel took it for granted that structures
built on top of a flat roof could not
exceed (in this case) 11 m.
However, if the ‘top of the roof’ of any particular
building were not its maximum permissible
height, one would have to
imply a further unstated restriction, namely that if the top of a
building’s roof is lower than
11 m the maximum height of any
further structures may not exceed 11 m. I do not consider that
the lawmaker would have left
such an important matter to implication.
But conversely it could not have been the lawmaker’s intention
that there would
be no limit on the height of such further
structures.
[31]
Third, if structures could
permissibly be erected on top of a roof up to the 11 m limit, it
would have been unnecessary for the
upper height restriction to have
been framed with reference to the ‘top of the roof’. The
true restriction –
both for pitched and flat roofs –
would simply have been that the building may not exceed a specified
height. The highest
point of the building might be its roof or some
other structure.
[32]
Fourth, the inclusion of a
‘parapet’ in the definition of ‘top of the roof’
would be superfluous if structures
higher than a ‘parapet’
were permitted up to the 11 meter limit.
[33]
Fifth, the definition of
‘“height” of a building’ contemplates that
certain parts of a building –
chimneys, flues, lift shafts,
masts and antennas – might be higher than the ‘top of the
roof’ because the definition
expressly provides that such
elements shall not be counted for purposes of height control. If in
any given case such elements were
lower than the top of a particular
building’s roof it would be unnecessary to make an exception
for them. (The second dwelling
in the present case will have two
steel chimneys extending above the roof – see ‘JE4’.)
This supports a conclusion
that structures other than those excepted
by this definition may not exceed the ‘top of the roof’.
[34]
Mr Walker’s counsel
argued that, if there were a pitched roof to the height of 11 m, the
roof space above 9 m could be
used for additional structures, as
in the case of attic rooms. This showed that there could be
structures, other than a roof, higher
than 9 m. It was
illogical, he submitted, to hold that such structures were
impermissible when constructed on top of a flat
roof with a height of
9 m. As a matter of interpretation, the answer to this argument is
that in the former case the additional
structures would be below the
‘top of the roof’ (the roof ridge) whereas in the latter
case they would be above of
the ‘top of the roof’ (the
flat slab). If, as I consider, a building may not be higher than the
‘top of its roof’,
the additional structures in the
former case would be below the permissible height whereas the latter
would not.
[35]
I express no definite view
as to whether this differentiation is sensible. There is no
constitutional attack on the rationality
of the DMS. The argument
based on unreasonable differentiation is not so powerful as to
overcome the other difficulties in the
way of Mr Walker’s
argument. I may mention, in this regard, that in the replying papers
Dr Stephen Townsend, a retired architect
whose past service includes
around 20 years with the CCT, confirmed a statement by Ms Epstein
that when the DMS was conceived the
intention in providing an extra
two metres for roofs was so as not to discourage pitched roofs. This
purpose finds some support
in the fact that in the case of many
non-residential zonings the height restriction is simply framed with
reference to the ‘top
of the roof’, on the basis,
presumably, that for most business and industrial buildings there was
no reason to encourage
or make allowance for pitched roofs.
[36]
There may also be this
relevant distinction between the use of roof space between 9 m
and 11 m on the one hand, and the
use of space of 2 m above
a flat roof with a height of 9 m on the other. In the former case the
activities in the roof space
are not on public display.
Aesthetically, what the public sees is a finished roof. In the latter
case such structures would or
might involve human activity open to
public display. Aesthetically, the structures on top of the roof
might present a ‘jumble’
of shapes and sizes. And
importantly, a pitched roof will usually be at wall plate height
where it is closest to boundary lines,
rising more or less gradually
to roof ridge height at the centre of the building. From the
perspective of neighbouring properties
and adjoining roads, such a
roof is far less intrusive than a perpendicular wall constructed to
height of 2 m around the perimeter
of a roof slab.
[37]
I thus conclude that all
the features of the deck will be higher than the building’s
permissible height and that the approval
of the building plans was
for this reason unlawful.
The
single appearance point
[38]
The first aspect of this
point is whether the second dwelling is ‘contained within the
same building’ as the main dwelling
house. The applicant’s
counsel argued that, if I were to find that the second dwelling was
not a separate structure, it would
follow as a matter of course that
it was contained within the same structure as the main dwelling. The
respondent’s counsel,
by contrast, submitted that, because the
lawmaker, in defining ‘second dwelling’, distinguished
attachment to an outbuilding
and containment within the same building
as the main dwelling, a second dwelling could not be said to be
‘contained within
the same building’ as the main dwelling
merely because it was ‘attached’ to the main dwelling. A
second dwelling
attached to the main dwelling without being contained
within the same building was not, so the argument went, subject to
the ‘single
appearance’ requirement laid down in item
53(d).
[39]
While the different
expressions used by the lawmaker are puzzling, I cannot accept the
respondent’s argument. It seems to
me that the lawmaker
envisaged only three ways in which a second dwelling might notionally
be erected on a property: as a separate
structure; as an attachment
to an outbuilding; or as a dwelling contained in the same structure
as the main house. For reasons
I have explained, a second dwelling
could never be ‘contained within’ the same building as a
main dwelling if by this
were meant a second dwelling with no
exterior features, surrounded entirely by a main dwelling. If this be
so, the only way in
which the same building could be said to
‘contain’ within itself a main dwelling and a second
dwelling is if the one
is attached to the other by party walls so
that there is a continuous line of exterior walls encompassing both
dwellings.
[40]
Although the lawmaker
could have used the word ‘attached’, the actual
expression chosen – ‘contained within
the same building’
– may have been influenced by the fact the lawmaker
intended to impose, in respect of this
form of attachment, a
requirement that the building containing the two dwellings should
‘appear as a single dwelling house’.
This requirement
does not exist where the second dwelling is attached to an
outbuilding. I cannot accept that the lawmaker intended
there to be a
fourth form of second dwelling, one attached to the main dwelling but
not contained within the same building as the
main dwelling, with the
owner in this fourth situation free from the single appearance
requirement imposed by item 53(d). Apart
from the difficulty in
distinguishing the two situations, there would have been no purpose
in imposing the single-appearance requirement
in the one case but not
the other.
[41]
Just as the applicant’s
counsel had difficulty in explaining why the two dwellings, though
attached, were still ‘separate’,
so the respondent’s
counsel had difficulty in explaining what additional feature –
absent in the present case –
was needed to cause two dwellings
to be contained within the same building. I may add that the
respondent’s counsel’s
argument was at odds with the
respondent’s opposing papers in which Ms Bell clearly (and I
think correctly) took the view
that ‘contained within the same
structure’ was the obverse of ‘separate’ and that
the two dwellings in
the present case will be contained within the
same structure (paras 24 and 66-70).
[42]
The second aspect of the
dispute which thus arises is whether the design is such that the
building containing the two dwelling units
will ‘appear as a
single dwelling house’. The parties were agreed that this
phrase had reference to external appearance.
By definition, two
dwelling units would, from the inside, appear to be separate
dwellings. The debate was how external appearance
was to be assessed.
[43]
The applicant’s
counsel argued that appearance as a single dwelling involved a
cumulative assessment from all exterior perspectives.
If a person
walked around the building, would such person at the end of the
circuit say that the building appeared to be one dwelling
or two? In
the present case, a person walking around the building would observe
separate entrances from separate streets, separate
parking
arrangements and separate front doors. The building would thus appear
to such person as two dwellings, not one.
[44]
The respondent’s
counsel argued that appearance as a single dwelling was a single
snapshot from any exterior point at which
the public might
realistically view the building. If from any one of those exterior
points the building appeared as a single dwelling,
the item 53(d)
requirement was satisfied, even though – by accumulating
knowledge from each of the snapshots – one
might learn that the
building in fact contained two dwellings.
[45]
I prefer the respondent’s
argument. ‘Appearance’ is the way something is perceived
from a particular perspective.
The ‘appearance’ of an
object viewed from one perspective will often differ from its
‘appearance’ from
other perspectives. The lawmaker was
not, I think, concerned to conceal from investigative busybodies that
two families might be
leading separate lives in a particular
building. A second dwelling is after all lawful within limits. The
lawmaker’s concern
was one of aesthetics. The lawmaker did not
want the public appearance to be one of two dwellings. If from all
realistic perspectives
the building would, in each of those
appearances, seem to be a single dwelling, the lawmaker’s
purpose would be achieved.
One is not concerned with the knowledge of
members of the public but with the way the building ‘appears’.
[46]
In the present case the
public would see the building either from Avenue B or from Avenue S.
From the former perspective, one would
see the vehicular entrance and
front door of the main dwelling, the north-east facing facades of the
main dwelling’s three
storeys and the north-east facing facade
of the main dwelling’s pop-roof roof which slopes gently upward
towards the north-east
above the top storey. The second storey and
deck of the second dwelling will be higher than the highest point of
the main dwelling.
It is unclear whether, viewed from any point on
Avenue B, a person would be able to see these components of the
second dwelling.
If a person could see them, such person would not
know that they were upper levels of a second dwelling rather than
set-back upper
levels of the main dwelling.
[47]
From the Avenue S
perspective, a person would see the driveway off that road into the
basement parking of the second dwelling, the
dwelling’s front
door at ground storey level, the south-west facing facades of the
second dwelling’s ground, first
and second storeys, the
south-west facing facade of the second dwelling’s pop-up roof
and the south-west facing facade of
the portico. Since the main
dwelling is lower than the second dwelling, a person might not see
the main dwelling at all. If one
caught a glimpse of it, one would
not know, just from appearance, that it was not a part of the second
dwelling.
[48]
The single appearance
point thus fails.
The
similar style point
[49]
The question here is
whether the second dwelling will be constructed ‘in a style
that is similar to the architecture of’
the main house. Ms
Epstein did not, on this point, offer any expert architectural
evidence as part of her founding papers. In her
opposing affidavit Ms
Bell, who has worked as an architect for more than 30 years, said
that in her expert opinion the proposed
dwellings are undoubtedly of
a similar architectural style. Although some of the timber doors and
windows of the main dwelling
are to be retained, the new second
storey will have aluminium framed doors and windows to match those of
the second dwelling. The
main dwelling’s red-tiled pitched roof
will be removed and replaced with a concrete slab roof similar to the
roof of the
second dwelling. Both dwellings will feature a pop-up
roof. Furthermore ‘the same balustrade details, edges and
parapet detail,
pergolas and privacy screens, wall finishes and
colours have been used to create a seamless structure’.
[50]
In the replying papers the
applicant offered the evidence of Dr Townsend though this amounted to
no more than a bare opinion that
‘the two dwellings are not of
similar architectural styles’ (para 116 of the replying
affidavit of Ms Epstein read
with the short confirmatory affidavit of
Dr Townsend). To the extent that the matter is one of a reasonably
observant layperson’s
impression, I can see some similarities
and some differences. The differences are not so striking as to move
me to reject Ms Bell’s
opinion and the CCT’s own
assessment.
[51]
I should mention, finally,
in this regard that I have dealt with the similar style point on the
basis that the two dwellings will
be constructed in accordance with
the approved plans. Because of the conclusion I have reached on the
roof height point, Mr Walker
will need to make changes to the plans
in respect of the second dwelling. Whether, after those changes have
been made, the similar
style requirement will still be satisfied is a
matter which the CCT will need to reassess.
The
non-disclosure point
[52]
The final ground of review
is that Mr Walker allegedly failed to disclose to the CCT that he had
agreed in principle to sell to
Mr Spolander the portion of his
property containing the main dwelling, to be achieved either by way
of subdivision or a sectional
title scheme. Ms Epstein contends that
such non-disclosure was material because Mr Spolander, who lives
behind the main dwelling,
has no incentive to see the main dwelling
raised in the manner depicted in the plans, given that it would block
his view. In short,
the complaint is that Mr Walker had and still has
a concealed intention to build the second dwelling, whereafter the
main dwelling
will be partitioned off to Mr Spolander and remain as
is.
[53]
Mr Walker has denied
having such a concealed intention. On the well-known principles
applicable to motion proceedings, I cannot
find for Ms Epstein on
this point. I need only add that the building plans for the two
dwellings were approved by the CCT as a
single set of plans. Given
the requirements of item 53, it would be unlawful for Mr Walker to
build the second dwelling without
carrying out the renovations to the
main dwelling. If this were to happen, the CCT and quite possibly
neighbours like Ms Epstein
would have their remedies which might
include an order for the demolition of the second dwelling. If
subdivision or the opening
of a sectional title scheme was sought,
there would be further opportunity for objection and official
intervention. I may also
record that the respondent’s counsel
tendered an undertaking that his client would complete all the works
reflected in the
approved plans within the five-year period of the
plans’ validity and would demolish the second dwelling if he
failed to
carry out the approved renovations to the main dwelling.
Costs
and order
[54]
Ms Epstein’s success
on the roof height point means that the approval of the building
plans should be reviewed and set aside.
I cannot accede to the
request by the respondent’s counsel to set aside only those
features of the plans which I have found
to be unlawful. Although
many aspects of the plans are not touched by this judgment, my
decision on the roof height point will
substantially affect the
design of the second dwelling. Depending on how the plans are
altered, the CCT may need to reassess the
‘similar style’
aspect. Furthermore, there are indications that the pop-up roof and
portico roof may present height
problems relating to their wall
plates which were not present to the minds of those who assessed the
plans. Although I have not
reached a finding on those aspects in the
present proceedings, it is desirable that they should be reconsidered
by the CCT when
assessing revised plans.
[55]
In regard to costs, the
roof height point probably occupied about half of the time taken up
in argument. Ms Epstein has not only
won on this point but succeeded
in obtaining the relief sought in her notice of motion, albeit not in
all the grounds she advanced.
I thus think that she should be
entitled to an award of costs in her favour. However, her failure on
four out of the five points
should be taken into account. I think it
would be just to allow her 50% of her costs.
[56]
I make the following
order:
(a) The decision of the first
respondent, taken on 5 July 2018, to approve building plans in
respect of the second respondent’s
property at [...] B Avenue,
Fresnaye, under approval number 97536758, is reviewed and set aside.
(b) The second respondent must
pay 50% of the applicant’s party and party costs as taxed or
agreed.
Owen
Rogers.
Judge
O L Rogers
APPEARANCES
For
Applicant
D
W Baguley
Instructed
by
Slabbert
Venter Yanoutsos
c/o
Norton Rose Fulbright
8
Riebeek Street
Cape
Town
For
Respondent
H
J de Waal SC (with him D Lubbe)
Instructed
by
Dirk
Coetzee Inc
c/o
De Klerk & Van Gend
Absa
Building, 132 Adderley Street
Cape
Town