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[2018] ZAECELLC 5
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Horsell v Buffalo City Metropolitan Municipality and Another (EL1636/2016; ECD3936/2016) [2018] ZAECELLC 5 (3 April 2018)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case
No. EL 1636/2016
ECD
3936/2016
In
the matter between
ALLISON
JOY
HORSELL
Applicant
and
BUFFALO CITY
METROPOLITAN
MUNICIPALITY
First
Respondent
OWEN PETER
SANDERS
Second
Respondent
JUDGMENT
HARTLE
J
[1]
The
applicant seeks an order reviewing and setting aside a decision of
the first respondent to rezone certain property (“the
property”) owned by the second respondent, being erf 47876 (a
portion of erf 11578) East London, situate at 1A John Bailey
Road,
Bunkers Hill, from Open Space Zone II (private open space) to
Residential Zone V (flats/apartments). The new zoning,
quite
drastic in its impact to the private open space zoning of before, is
intended to accommodate a development on the property
of
approximately 34 apartments/units.
[2]
Since
this decision was taken in August 2014, the applicant seeks a further
order extending the periods provided for in section
7(1), in terms of
section 9(1) of the Promotion of Administrative Justice Act, No. 3 of
2000 (“PAJA”), so as to include
the period from august
2014 to the date of the institution of the present application, which
was only in December 2016.
[3]
It
is not in contention that the decision under challenge constitutes
administrative action in terms of section 1(i) of PAJA in
that it was
taken by an organ of state exercising a public power at the time in
terms of the Land Use Planning Ordinance, No. 15
of 1985 (“LUPO”).
[4]
The
applicant relies on two grounds listed in section 6 of PAJA: section
6(2)(d), contending that the decision was materially influenced
by an
error of law, and section 6(2)(e)(iii), averring that relevant
considerations were not taken into account.
[5]
The
applicant owns immovable property in Bunkers Hill near the second
respondent’s rezoned erf and is an affected property
owner. She
objected to the proposed rezoning and lodged an appeal against that
decision after it was approved in the second respondent’s
favour.
[6]
Although
other bases were relied upon in the applicant’s founding
affidavit bearing upon the use and enjoyment and value of
her
property being impacted by the decision, Mr. Paterson who appeared on
her behalf pressed in on one only essentially, namely
that the
municipality had rezoned the property contrary to a restrictive
condition in the title deed.
[7]
It
is apposite to begin with a brief history of the matter.
[8]
Before
the second respondent acquired title in the property it was owned by
the East London Transitional Local Council, a predecessor
of the
first respondent. The property was transferred to the second
respondent on 7 May 1998. In terms of clause 10.1
of the
agreement of sale recording this transaction, which was signed on 27
October 1997 by the “Town Clerk”, the second
respondent
acquired the property subject to certain conditions set out in an
annexure thereto, which were required to be inserted
in the Deed of
transfer. The conditions relevant for present purposes to be included
are as follows:
“
C.
This erf shall be used only for such purposes as are permitted by the
Zoning Scheme of the local authority and subject to the
conditions
and restriction stipulated by the scheme.
D.
The Owner of this erf shall not:
(i)
sell
or dispose of the erf without it being developed as a botanical
garden and bird park; or
(ii)
sell
or dispose of at any time any portion of the erf, unless he shall
first have offered such erf or portion thereof as the case
may be to
the Transitional Local Council at the original price, calculated
proportionately per square metre.”
[9]
The
deed of transfer (T 10847/1988) repeats these conditions for
posterity:
“
The
erf shall only be used for purposes permitted in terms of the East
London Zoning Scheme.
SUBJECT to the
following condition imposed by and in favour of the East London
Transitional Local Council and binding upon the Transferee
as owner
for the time being and his successors-in-title, reading:
“
The
owner of this erf shall not:
(iii)
Sell
or dispose of the erf without it being developed as a botanical
garden and bird park; or
(iv)
Sell
or dispose of at any time any portion of the erf,
Unless
he shall first have offered such erf or portion thereof as the case
may be to the said Transitional Local Council at the
original price,
calculated proportionately per square metre.”
[10]
Clause
12 of the deed of sale records the following aspects under the
heading: “ERECTION OF BUILDINGS, PENALTY RATES AND REVERSIONARY
PROVISION”:
“
12.1
The Purchaser shall develop this erf as a botanical garden and bird
park within a period of one year as from the date of the
sale, or
within such further period as the Transitional Local Council may
allow, buildings, the erection of which is permitted
on the property.
(Sic)
12.2 In the event of
such buildings not being erected by the Purchaser as aforesaid, then
and in that event liquidated damages equal
to the annual rates which
would have been leviable on the basis of Transitional Local Council
valuation commensurate with the value
as determined above, shall be
payable to the seller in addition to the rates leviable on the
valuation of the land until such buildings
are completed to the
satisfaction of the Seller.
12.3 The Seller may,
in lieu of the payment of liquidated damages as referred to above, at
any time after expiry of the period referred
to in Clause 12.1
hereof, require that the property revert to it against payment by it
of the original purchase price paid to the
Seller, the cost of
transferring the land to the Seller being payable by the Purchaser
provided that the Purchaser shall be entitled
to remove within a
period of three (3) months from the date on which notification is
received from the Seller of its intention
to enforce its rights under
this clause, any improvements which may have been erected on the
property. Any improvements not
removed by the Purchaser as
aforesaid, shall thereupon vest in the Seller without payment of
compensation therefor, provided that
the Purchaser shall be liable to
the seller for any loss which may be sustained by reason of the
Purchaser’s failure to remove,
if so required, any complete
and/or incomplete buildings or structures from the property which may
be deemed by the Seller to be
a hindrance to its use of the property.
12.4 The Purchaser
or his successors in title shall not dispose of the erf or any
portion thereof before the building referred to
in Clause 12.1 has
been erected unless he or his successors in title shall first have
offered the property or any portion thereof
which he may wish to
dispose, in writing to the Seller at the price at which it was
originally sold to the Purchaser by the Seller.
12.4.1
The said offer shall remain open for a period of three months from
receipt thereof and if it is accepted by the Seller, all
costs in
connection with such transfer being payable by the Purchaser.
In the event of the Seller refusing such offer, the
Purchaser may
dispose of the land to a third party approved by the Seller, on
condition that such third party acquiring the property
shall before
transfer is passed to him, enter into a written agreement with the
Seller, acknowledging and accepting in all respects
the terms of this
Deed of Sale as applying to him and that transfer will not be given
or taken until such agreement by such person
acquiring the property
has been entered into with the Seller. The relevant certificate
authorising registration of transfer
required by Section 96 of
Ordinance 20 of 1974, shall not be issued until such agreement has
been entered into.”
[11]
The
approval of the sale of the property to the second respondent is
recorded in a minute of the East London Transitional Local
Council
dated 16 October 1996. Paragraph 1 of the Resolution rendered the
approval conditional
inter
alia
subject to:
“
(b)
Portion of Erf 11578/10 East London being subdivided and rezoned from
proposed Public Open Space to Private Open Space purposes.
…
(q)
A suitable reversionary clause being included in the Deed of Sale.
…
(s)
All costs involved in making land available to be borne by the
purchaser.
“
(t)
every effort being made to retain existing indigenous trees as far as
possible.”
[12]
Paragraphs
3 and 4 of the Resolution reads as follows:
“
3.
That it be noted that the sale by private treaty is supported for the
following reasons:
(a)
The
applicant is prepared to fund all the costs of the provision of
services to the site including the widening of John Bailie Road
to
accommodate a larger traffic flow.
(b)
In
light of the fact that Municipal (illegible) are not available to the
site it can be regarded as an odd lot of land which may
be sold out
of hand in terms of the Municipal Ordinance.
(c)
The
proposed botanical garden and bird park is of a specialized nature
which the applicant has proved that he is capable of undertaking,
and
it is regarded that it will be in the interest of the community.
4.
That the Director of Development Planning ensure that the building
structure to be erected on erf 11578/10 is restricted to a
flatlet
only for the caretaker.”
[13]
So
much for the history of the sale.
[14]
The
second respondent avers he that did indeed develop the property as a
botanical garden and bird park and thus complied with clause
12.1 of
the conditions of sale. He related in his answering affidavit the
peculiar difficulties experienced in maintaining it as
such and the
fact that it was a commercial failure.
[15]
It
is necessary to also relate the circumstances culminating in the
issue of the present application for review.
[16]
In
October 2012 the second respondent applied for the present rezoning.
On 29 November 2012, the applicant’s husband, Dr.
Paul Steyn,
acting as her agent and in his own right as well, submitted an
objection to the application along with numerous other
persons
claiming to be affected by the proposed rezoning. The chief
complaint (relevant for present purposes) raised on her
behalf was
that the approval of the application and the consequential rezoning
would in effect contradict the restrictions embodied
in the title
deed as read with the conditions of sale which in effect limit the
use of the property to a botanical garden or bird
park in perpetuity
and in the public interest, well at least until those conditions are
formally removed in law.
[17]
The
applicant at the time of raising the objection aforesaid (and at the
launch of this application) was unaware that the Council
had, before
the second respondent even made application for the present
rezoning, on 31 May 2012, passed a Resolution
pursuant to
which the reversionary clause in its favour was excluded and the
pre-emptive clause was waived, removing the perceived
obstacle in its
view to the present rezoning.
[1]
[18]
That
this had happened became evident from the record of decision put up
by the first respondent pursuant to the provisions of Rule
53. It
appears that the very concern was given recognition in considering
the second respondent’s application for rezoning
in the City
Manager’s report to the Development Planning and Management
Portfolio Committee (dated 8 April 2014) in which,
under the heading
“City Planning Conditions”, after referring to the
restrictive clause impediment, the City Manager
reports that:
“
It
is important to note that the applicant (Mr. O Sanders) applied to
the erstwhile Buffalo City Municipality to have the aforementioned
restrictive clause (Clause ‘D’), as contained in the Deed
of Transfer (T10874/1998), removed. (Sic)
[2]
A
report was tabled before Council and Minute No. BCMC 1653/12 dated 31
May 2012 stated the following:
“
That
minute No. CL82/97 dated 21 October 2996 be amended to exclude the
reversionary clause and that the Pre-emptive Clause D of
the Deed of
Transfer be waived”
Refer
to
Annexure
‘E’
for a copy of the letter, signed by the Director of Planning &
Economic Development, informing Mr. O Sander (the applicant
and owner
of Erf 47876, East London) of Council’s decision to waive
Clause ‘D’ of the Deed of Transfer (T10847/2008).
[19]
It
is unnecessary to reflect on the Council’s decision in this
respect because it is not the subject of the review. Although
the
applicant contended in her supplementary affidavit, after being
apprised of the purported waiver of the restrictive condition,
that
there was no indication in the record that neighbours were informed
of or given an opportunity to respond to the question
of the waiver,
this was not persisted with as a clear and separate ground for the
review.
[3]
Instead the thrust of
the applicant’s complaint is that there was no formal removal
of the restriction under the Removal
of Restrictions Act, No 84 of
1987, a legal position which the applicant accepts.
[20]
The
first respondent’s decision to rezone the property was advised
to the applicant’s attorneys (who had communicated
the
objection to it in the first place on behalf of both the applicant
and her spouse) by way of a registered letter dated 19 august
2014.
What it says in effect is that notwithstanding numerous objections
which had been placed before it, it had approved the rezoning
subject
to certain conditions, none of which have any bearing for present
purposes.
[21]
In
it the applicant was advised of her right to appeal to the Premier
against the decision in terms of section 44 of the LUPO, which
she
duly exercised by lodging an appeal within the prescribed time period
of 14 days. This right turned out to be a putative one
because the
Constitutional Court in
Minister
of Local Government, Western Cape v Habitat Council
[4]
had declared section 44 unconstitutional and invalid with effect from
4 April 2014 already. The expectation created by the Constitutional
Court was that the municipalities would create their own internal
appeal processes. This gave rise to a chain of correspondence
between the applicant’s attorneys and the City as to what the
applicant was to do to in the circumstances in order to meaningfully
exercise her remedy of appeal, culminating ultimately in a letter
dated 17 November 2016 addressed to her attorneys advising that
that
no alternative processes were expected to be put in place in order
for her appeal to be heard and that she was free to approach
this
court for the necessary relief.
[22]
Since
she was only informed that the internal remedy of appeal was no
longer open to her on 17 November 2016, the applicant claims
that she
brought this application, which was launched on 15 December 2016,
within the period provided for in section 7(1) of PAJA.
It is
only “insofar as it may be necessary” that she
seeks an order extending the periods provided for in section
7 (1)
in terms of section 9 (1) so as to include the period from 19 August
2104 to the date of the institution of this application,
which on
anyone’s version constitutes a considerable delay in the
prosecution of the review.
[23]
The
chronology is important as the applicant points out. The
decision and appeal to the Premier post-date the declaration
of
invalidity of section 44 of LUPO by the Constitutional Court in
Habitat
,
but the Spatial Planning and Land Use Management Act, No. 16 of 2013
(“SPLUMA”), which provides the new regulatory
framework
for spatial planning and land use management by municipalities across
the country, had not yet come into operation.
The date of
commencement of that act was 1 July 2015, but after its
implementation the municipality by its own admission failed
to
establish the necessary appeal body and mechanism as provided for in
terms of SPLUMA, or at all. The result is that at
the relevant
time there was no provision at all for an appeal, a vital cog in the
administrative law process.
[24]
The
irony is that although in
Habitat
the Constitutional Court promoted the autonomy of the municipality to
exercise responsibility for land planning and management,
and
determined that a right of appeal to it should exist and the remedy
should lie with it (rather than the Premier) pursuant to
the
necessary mechanisms being put in place, the applicant was left in
the invidious position of having to prosecute a review to
this court
as being the only remaining option available to her. Mr.
Paterson’s was constrained to wryly observe that
her appeal
falls presently to be regarded as “addressed to the ether”.
There is further merit in his submission in
this respect that the
exchange between the applicant’s attorneys and the first
respondent on the issue of what it stood her
to do when the
municipality failed her by not fulfilling its duty in creating the
proper appeal body and mechanism at least “kept
alive the whole
process of the appeal” until the last word was spoken by the
first respondent on 17 November 2016 when her
attorneys were informed
that “the appeal (she) submitted in terms of section 44 of
(LUPO) is considered unconstitutional
in terms of legal opinion
obtained.” Still the municipality appeared to be confused
regarding the status of whatever
it considered it remained
accountable to the applicant to be dealing with. It continued to
refer to it as an “appeal against
the (rezoning) application”,
but now resorted to notifying her that she had “the right to
appeal to the High Court
against (its decision) and/or the conditions
imposed by Council, within 21 days from the date of (its) letter.”
It is no
wonder, as Mr. Paterson put it, that the first respondent
agreed to abide the decision of the court on the important aspect of
the delay by the applicant in prosecuting the review in lieu of the
appeal as it was largely responsible for the dilemma in which
the
applicant found herself.
[25]
The
second respondent opposes the relief sought by the applicant for an
extension of time in terms of section 9 of PAJA. The
point
initially taken on behalf of the applicant in argument, namely that
the parties referred to in section 9 (1) are the applicant
for review
and the administrator who took the decision and that the real party
that needs to condone is the first respondent and
not the second
respondent -who was joined only as an interested party, was fairly
abandoned by Mr. Paterson. The contention needed
only to be stated to
be rejected as being contrary to the clear purport of section 9(1)
read with 7 (1) of PAJA. Obviously, all
the parties properly joined
have an interest in the outcome of those proceedings and certainly in
the element of finality of administrative
decisions upon which they
rely. Prejudice to the other litigants has always been a factor to be
considered in determining whether
to grant an extension or not.
[26]
On
the merits of that application, the second respondent contends that
the applicant has failed to meaningfully explain the delay.
She
was unequivocally told by way of a letter dated 27 October 2014 that
she would have to approach this court for a review of
the decision
made by the municipality to which she objects but adopted a supine
position. It is submitted further that the
delay is not a
slight one but rather substantial with significant prejudice to the
second respondent who has placed reliance on
the decision and
incurred certain expenses. (Notably he has not provided any details
of the financial prejudice alleged to have
been suffered by him other
than the initial payment for the approval application.)
[27]
Mr.
Paterson on the other hand correctly notes that the second respondent
could have been under no illusion whatsoever that the
applicant had
appealed against the decision in his favour and was entitled to have
that appeal determined. It is significant in
my view that the first
respondent was informed, in response to the letter which the second
respondent suggests put the record straight
regarding what it is she
had to do to assert her right, that she wished to avoid instituting
proceedings in the high court.
An appeal such as availed her
would have entailed an objective assessment of the decision taken by
the Council on the record.
Why should she be expected to
litigate when an internal remedy is notionally at her disposal and
forms part of her right to fair
and just administrative action? I do
not believe that it was unreasonable to have put the onus back on the
first respondent to
provide a solution that did not entail
litigation. It was the first respondent that dallied in considering
how it was going to
address appeals and who eventually concluded that
the applicant’s appeal was considered “unconstitutional”.
It
missed the import of the
Habitat
decision and the expectation that
it
was responsible to create the necessary appeal mechanisms. I agree
that the applicant’s attorneys could have been more steadfast
in holding the first respondent to account, but they were to an
extent misled by the suggestion that the first respondent was
consulting with its advisors and trying to come up with an
appropriate solution to the predicament. I expect that there
are
going to be many a teething problem brought about by the
implementation of SPLUMA, and that many affected parties are going to
fall through the cracks. The applicant is such a person who had an
entrenched remedy of appeal, but which has now come to naught.
This
quandary, not of her making, must be weighed in the balance against
the delay in the development occasioned to the second
respondent who
has at all times being aware that the applicant remains aggrieved by
the decision and who could therefore not have
acted on the new land
use. The second respondent will be able to recover from his
position of remaining uncertain about his
entitlement ultimately to
develop the property, but if the applicant is non-suited on the other
hand, that will leave her without
the only remedy now available to
her supposedly in lieu of the lost appeal. On a balance of the
relevant considerations I
am therefore inclined to grant the
extension of time sought by her.
[28]
That
brings me to the merits of the review.
[29]
The
restrictive condition in contention is interpreted differently by
each of the parties. What is agreed though is that it should
be
interpreted in accordance with its terms and in the context, i.e. as
read with the conditions of sale and contemporaneous Resolutions
passed at the time.
[5]
[30]
Before
I compare what each of them contend for, I digress to point out that
the law is that restrictive conditions in title deeds
take precedence
over zoning decisions.
[6]
This is so where the condition (the character and efficacy of which
will be different in each case , which has come to be
imported in the
relevant title deed, restricts the use, development or subdivision of
the property concerned. This much is
provided for in clause
4.10 of the City’s Zoning Scheme regulations:
“
TITLE
CONDITIONS
Nothing
in the provisions of this scheme shall be construed as permitting or
enabling the Council to permit in any township the
erection or use of
any building or the use of any land for the purpose which is
prohibited under any approved conditions of title
applying to such
township or the conditions of title under which any land may be
held.”
[31]
It
follows logically that the approval being applied for and the
consequential rezoning should not be countenanced if the restrictive
condition embodied in the title deed is in conflict therewith.
Deed restrictions run with the land and restrict any future
owner.
They cannot be removed without obtaining a release from every
possible party that could benefit from keeping the restriction.
When
it comes to removing such a condition, it is expected that
stakeholders should provide input through participatory processes
provided by the law.
[32]
At
the relevant time the decision to allow the rezoning was made, the
provisions of the Removal of Restrictions Act were still of
force and
effect. The parties are agreed that the procedures provided for in
that act for the removal of what the applicant contends
to be a
restrictive condition standing in the way of the rezoning were not
engaged in any way. Of peculiar relevance is that the
provisions of
section 2 (1) (a) of that act only allowed such removal after
consideration of the interests in the area and the
public.
Notice was expected to be given of such an application and the
applicant and others affected by the proposed removal
would have had
the right to object. It is common cause that no such notice or
opportunity was afforded to the applicant in
this instance, notably
because the second respondent did not seek such removal neither did
he (or the first applicant for that
matter) regard it as necessary to
do so. To the contrary, the first respondent submits that if
the condition is binding on
the second respondent at all
vis-à-vis
itself,
because it waived the condition in its favour, it will only become an
issue on any resale of the property or the opening
of a sectional
title development register in due course.
[33]
The
applicant’s contention is that on a proper interpretation of
the restrictive condition, it is not exclusively enforceable
by the
first respondent. Even assuming it is a species of personal
servitude, in the present context the holder of the rights is
the
municipality, which must exercise all its rights in terms of its
purposes and objects as defined in section 152 of the Constitution.
In this respect it cannot act as a private person. In addition,
the content of the obligation leads inexorably to the conclusion
that
the public has an interest in the condition.
[34]
Therefore,
for so long as the property remains burdened by the condition, the
rezoning cannot be supported. The condition also cannot
simply be
waived because it is not a private matter between the two
respondents. The waiver cannot detract from the rights that
the
public may have arising from the presence of the condition in the
Deed.
[35]
The
applicant argues that on the face of it the condition is directed
towards the protection of the municipality and its rates base.
It is a prohibition against the sale or disposition of the property
in any other form than as a botanical garden.
[36]
The
property was sold to the second respondent at a particular price
because of the proposed botanical garden and bird park which
was
regarded as being in the interests of the community as exactly that,
a botanical garden and bird park, as a direct obligation.
That
obligation limits the buildings permitted and makes plain that the
property was not regarded as being available for residential
purposes. In that agreement the rates loss arising from the
reduced purchase price is stipulated as liquidated damages and
it is
this that the condition entrenches.
[37]
The
applicant submits that this background indicates that the sale and
transfer of the property to the second respondent was regarded
by the
first respondent as motivated by the public benefit arising from the
envisaged development as a botanical garden and bird
park and that
the condition cannot now be interpreted to allow the second
respondent to erect flats on the property.
[38]
The
first respondent defends its decision on the basis that the second
respondent did indeed develop the property as a botanical
garden and bird park and made every effort to retain the existing
indigenous trees on the property, thus complying with the conditions
upon which approval to sell the property to him was granted. On
this basis it contends that the owner has an irrevocable
and
unfettered right to sell or otherwise dispose of the property without
the necessity of first offering it to the municipality.
[39]
This
interpretation is to be gleaned according to it by reading the “or”
in the provision contained in the title deed
conjunctively. Upon
adopting such approach fulfilment of the provision in sub-clause (i)
is dispositive of the need to first offer
the property to the
municipality in terms of sub-clause (ii) of the condition. In any
event it asserts that any “waiver”
of the reversionary
right is academic.
[40]
The
applicant’s argument that the owner failed in his direct
obligation to develop the property as a botanical garden and
bird
party are similarly moot, alternatively fall to be addressed in these
proceedings on the facts put up by the respondents.
[41]
It
further denies that the condition is a prohibition against the sale
or disposition in any form other than as a botanical garden
and
points out that the applicant must for such an interpretation rely
not on the clear wording of the provision, but on claims
that the
agreement must be interpreted by reference to “public interest
“in the owners’ envisaged development
of the property.
This offends in its view against the primary canon of interpretation
that provisions in the terms and conditions
of private agreement
between the parties must be given their clear, literal meaning.
[42]
It
submits that it any event the public interest in the development of
any property within the municipality is fully governed by
laws that
prescribe the way spatial planning and development may occur at local
government level and that it has fully complied
with those
provisions. Indeed, it points to the fact that it has put up
the entire record of the decision as part of the
review which it
maintains is entirely consistent with its contention that the
legitimate interest of all members of the public
were considered
during the deliberative process that culminated in the decision
sought to be reviewed.
[43]
It
further defends its entitlement to have waived the reversionary right
or to have released the second respondent from any obligation
that
may have arisen under the reversionary right.
[44]
The
second respondent also denies that the rezoning of the property
conflicts with clause D contained in the title deed. He maintains
that the restrictive condition was required to be inserted in the
title deed following the recommendation made to the Executive
Committee, which was adopted and confirmed by the Council on 21
October 1996, supporting the sale by private treaty for the peculiar
reasons iterated there. Also contained in the recommendation is
a list of the works to be undertaken by him, at his cost,
in order
that municipal services could be made available to the property which
would otherwise not have been put in place by the
municipality itself
for an unused “odd lot of land.” The obligation to
develop the erf as a botanical garden and bird
park within an agreed
or extended timeframe was a once off requirement which specific
consequences if it was not met. Either liquidated
damages would have
to be paid or the municipality could require that the property revert
to it against payment of the purchase
price. During this period
that the second respondent was expected to develop the property as
agreed, neither he nor his successors
in title could dispose of the
property before first offering it for sale to the municipality at the
price at which it was originally
sold to him. If he did so and
the municipality refused the offer he was free to sell it to a third
party approved by the
municipality provided the third party bound
himself to the municipality on the same terms as provided for in the
agreement of sale.
The second respondent contends that the public
benefit to be derived from the sale of the property to him was not
regarded as being
limited to the resultant botanical garden and bird
park, nor was this the primary benefit to the first respondent
flowing from
the sale. The primary benefit was in fact the
development of the unused odd piece of land at no cost to it.
In the
meantime, the discounted price paid for the property was
offset by the fact that the second respondent would at his own cost
undertake
significant works to ensure that municipal services be made
available to the property. This is work which the municipality itself
would have had to undertake and which would add significant value to
the property.
[45]
It
was never intended that the property remain a botanical garden and
bird park in perpetuity says the second respondent. Rather
he was
required to develop a bird park on the property prior to its sale and
if he wanted to sell, offer it to the local authority
at the original
purchase price before the property could be sold to a third party. He
asserts that the agreement does not require
that the property be sold
as a botanical garden and bird park, nor that it remains a botanical
garden and bird park to the permanent
exclusion of other uses to
which the property may be put.
[46]
He
claims that this interpretation is supported by the fact that the
condition does not stipulate that the property may only be
developed
as a botanical garden and bird park to the permanent exclusion of any
other form of development and asserts that to interpret
the condition
as requiring that the property be maintained in perpetuity as a
botanical garden is a strained one.
[47]
In
the result it was submitted on his behalf that the rezoning of the
property is not prohibited by the restrictive condition contained
in
the title deed.
[48]
Ms.
Beard submitted that further and in any event the rezoning of the
property is simply “… a consent which is given
by a
local authority … for town planning purposes and town planning
purposes only” and is distinct from a consent
which enables
“the owner actually to use the property for the purposes for
which the local authority’s consent for
town planning was
given”.
[7]
[49]
What
all these arguments overlook however is that the Deed also contains
the provision that the erf shall only be used for purposes
permitted
in terms of the East London Zoning Scheme. Read together with
clause D (i) and the Recommendation to the
Council that
approves the sale subject
inter
alia
to the property being subdivided and rezoned from Public Open Space
to Private Open Space, incorporating the reasons furnished
in
paragraph (c) justifying why the sale by private treaty should be
supported more especially the “interest of the community”
in the then proposed botanical garden and bird park being of a
“special nature”, it is clear to my mind that
the Council
intended that the property be used strictly for purposes of a
specialized botanical garden and bird park . I
am fortified in
my view by the City’s definitions in the Zoning Scheme of the
following concepts:
““
Land
use restriction
”
–
means
a restriction, in terms of a zoning, on the extent of the improvement
of land.
“
Private
Open Space
”
–
means
any land which has been set aside in this scheme for use as a
primarily private site for club buildings, sport, play, rest
or
recreational facilities
or
as an ornamental garden or a pleasure garden
,
and includes public land which is or will be leased on a long term
basis, whether public or private.” (Emphasis added)
[50]
That
being the case it is unnecessary to look any further for an element
of public or community interest in Clause D. The
land use
restriction is confined to that of a specialized garden and bird park
and is registered against the title deed albeit
clause D (i) perhaps
ambiguously requires that the property not be sold without it first
having been developed as a botanical garden
and bird park as opposed
to it being developed (in the legal context of adding improvements to
the property) as such in perpetuity.
For this reason, the
purported waiver by the first respondent per Resolution dated 31 May
2012 of the reversionary clause (leaving
aside the procedurally
unfair manner in which it came to be effected) was nor permissible
inasmuch Clause D restricts the sale
of the property without it being
developed in the future as a botanical garden and bird park, not just
within the initial time
frame of 1 year from date of sale referred to
in clause 12.1 of the sale agreement. But even wishing away the
waiver (or defending
it on the basis of Clause D (ii) which
innocuously requires it to be offered for sale to the municipality
first) the property cannot
be rezoned contrary to the restrictive
condition pertaining to the specific land use contemplated whilst
this condition remains
registered against the title deed. It follows
that the first respondent therefore made a material error when it
considered that
there was no legal impediment to the rezoning and its
decision accordingly falls to be reviewed and set aside.
[51]
Such
an order will also address the fact that in purporting to waive the
conflicting restrictive condition, no notice was given
to affected
owners and no opportunity given to them to participate in a process
that in effect amounted to a “removal”
of the restriction
to clear the way for the rezoning. Although this complaint
against the first respondent’s handling
of the matter hovered
in the background only as a ground of review, I take Mr. Paterson’s
point that the public nature of
any removal is part of the very
fabric of the Removal Act and that the applicant was robbed of a
significant opportunity to say
her say concerning this significant
development. It is most alarming that the impediment perceived by the
municipality to the rezoning
was disposed of separately and seemingly
surreptitiously. Hopefully when the application is considered
again under SPLUMA
this kind of fragmentation will not be a feature
of the process.
[52]
As
for the question of costs, these should follow the result. The second
respondent was eager to enter the
lis
despite
a costs order not being sought against him unless he should oppose
and in clear circumstances where the applicant had been
denied an
effective exercise of her right to appeal. The first respondent as I
said before was responsible for the applicant’s
necessary
resort to these proceedings.
[53]
In
the premises I grant the following order:
1.
The
periods provided for in section 7 (1) of the Promotion of
Administrative Justice Act, no 3 of 2000 (“PAJA”) are
extended in terms of section 9 (1) of PAJA to include the period from
August 2014 to the date of the institution of this application;
2.
The
decision of the first respondent to rezone Erf 47876 East London from
Open Space Zone 2 (Private Open Space) to Residential
Zone 5
(flats/apartments) is set aside; and
3.
The
respondents are to pay the costs of the application jointly and
severally.
________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 7 December 2017
DATE
OF JUDGMENT: 3 April 2018
APPEARANCES
:
For the
applicant: Mr. T J M Paterson S.C. instructed by Drake Flemmer &
Orsmond Inc., East London (ref. Mr. S Mathie/mk/MAT7046/S.40).
For the first
respondent: Mr. P Beningfield S.C. instructed by Smith Tabata Inc.,
East London (ref. Mike Smith/ly/10E044745).
For the second
respondent: Ms. M L Beard instructed by Clark Laing Inc. East London
(ref. Justin Laing/MAT1491)
[1]
The report
notes in respect of city planning’s comments that the
restrictive clause contained in the Deed of Transfer pertaining
to
the sale of the property was “removed”. This is not
technically legally correct as it is common cause that the applicant
never sought a removal of the condition under the Removal of
Restrictive Conditions Act, no 84 of 1987, the relevant provisions
of
which pertained at the time. Such a process would have
obviously entailed an opportunity for formal community participation.
[2]
It was
obviously not a formal removal within the meaning contended for in
the Removal of Restrictions Act.
[3]
I believe
there may have been merit in Mr. Paterson’s suggestion that
leaving aside the formal processes to remove the restrictive
condition, the “2012 process” itself fell short of
public participation and notice in terms of Chapter 4 of the Local
Government Municipal Systems Act.it is ironic that the proposal to
sell was advertised and objections invited, but that the waiver
was
effected under unknown circumstances and evidently without any form
of notice to the public.
[4]
2014 (4) SA
436 (CC).
[5]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at [18]
[6]
Malan &
Another v Ardconnel Investments (Pty) Ltd
1988 (2) SA 12
(A) and
cases following this decision especially in this division. See Van
Rensburg & Another NNO v Nelson Mandela Metropolitan
Municipality & Others
2008 (2) SA 8
(SE) and on appeal at
2011
(4) SA 149
(SCA). See also NMBMM v Yvette Georgiou y/a Georgiou
Guesthouse and Spa and others on SAFLII.
[7]
Enslin
v Vereeniging Town Council
[1976] 3 All SA 351
T at 356. A consent
to use is notionally different however to a land use or zoning
scheme.