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[2017] ZAGPPHC 20
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Isago@N12 Development (Pty) Ltd v City of Matlosana Local Municipality and Others (54750/2016) [2017] ZAGPPHC 20 (2 February 2017)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.:54750/2016
2/2/2017
Reportable:
NO
Of
interest to other judges: NO
Revised.
In
the matter between:
ISAGO@N12 DEVELOPMENT
(PTY)
LTD APPLICANT
and
THE
CITY OF MATLOSANA LOCAL MUNICIPALITY FIRST
RESPONDENT
MATLOSANA
GARDENS (PTY) LTD SECOND
RESPONDENT
THE
SURVEYOR
GENERAL THIRD
RESPONDENT
THE
REGISTRAR OF
DEEDS FOURTH
RESPONDENT
THE
DEPARTMENT OF RURAL, ENVIRONMENT AND
AGRICULTURAL
DEVELOPMENT, NORTH WEST
PROVINCIAL
GOVERNMENT FIFTH
RESPONDENT
Heard:
26 October 2016
Delivered
2 February 2017
JUDGMENT
A.A.LOUW
J
Introduction
[1]
The applicant applied in part A of an urgent application for the
following relief:
"2. That the
Second Respondent be interdicted from continuing with and directed to
cease
all physical development activities, including, but not
limited to, groundworks, installation of services, construction of
buildings
and all other activities related to the development and
establishment of Erven
2450 and 2451 in the township known
as
Flamwood Extension 24, pending
the finalisation of
the·review applications, including any appeals, contemplated
in Part B hereof;"
Part
B aims to obtain orders against the first, third, fourth and fifth
respondents in respect of the establishment of the township
Flamwood
Extension 24. The object is to have those various resolutions set
aside which will have the effect of disestablishing
the township.
[3]
Flamwood Extension 24 (the township) is situated on the
Klerksdorp/Stilfontein corridor. The applicant has developed
substantial
property in close vicinity to that of the property.
[4]
The original township as approved on 29 November 2006 comprised of
110 erven which constituted about 10 residential units per
hectare.
[5]
That general plan for the approved township was neither submitted nor
approved by the Surveyor General within a period of one
year after
the date of approval of the application. Applicant contends that the
application has accordingly lapsed as provided
in section 101 of the
Town Planning and Townships Ordinance, 15 of 1986.
[6]
The approved dwelling units were increased to approximately 675 on
application by the second respondent's predecessor. This
was followed
by an application of 21 October 2013 in terms of which the
permissible number of residential stands was increased
from 675 units
to 1173 units.
[7]
In that regard the following is stated in paragraph 10.8. of the
founding affidavit:
"10.8. Despite
the fact that the application for amendment was clearly material and
constituted
a
substantively new application, the Municipality
accepted same, processed same (without any form of circulation or
notification to
affected parties) and approved same no sooner than 12
November 2013,
as
is evident from the letters of approval,
attached to the Notice of Motion
as
Annexure
'".
To
put it differently, an application with far reaching impacts on
services, traffic generation, the environment, owners of adjacent
and
other properties in close proximity to the subject property and
numerous other aspects related to the development of land was
accepted by the Municipality
as
an application for the
amendment of an approval that did not exist anymore (i.e. that had
lapsed), without any proper motivation
or supporting studies and
proceeded to approve it
within 18 (eighteen) days
after
date of receipt thereof, without any form of public participation,
notification or opportunity given to parties, such
as
the
applicant, who
may
be affected by the
development, to consider an application, studies in support
thereof and to then form
a
view
as
to whether it
intends objecting thereto, commenting thereon or simply let it be."
[8]
The applicant's grievances in this regard are the following:
8.1 Its right to a fair
administrative justice process has been ignored. There were no public
participations at each stage of the
"amendments" to the
original approval and thus there was no opportunity to object,
comment or make any other input.
8.2 The development on
the property causes environmental damage. The second respondent
interfered with the watercourse of the Palmietspruit
and is
constructing storm water drainage therein. Furthermore, part of the
parking area of the development is below the 1:100 year
flood line
which is contrary to the conditions of approval.
8.3 There is no clarity
where the bulk services to support the development will come from. In
this regard the applicant fears that
bulk services it supplied in the
surrounding areas it developed will simply be used for the benefit of
the second respondent. In
this regard the first respondent has
authorised the connection by the second respondent to a mini
substation erected by the applicant.
8.4 The high density of
the development will also impact on the traffic flow in the vicinity.
Urgency
[9]
The construction on the property started in January 2016. By the time
this application was issued in July 2016 extensive developments
had
already taken place. This appears from a bundle of photographs
attached to the answering affidavit. A number of the buildings
had
reached two or three storeys in height and there were substantial
groundwork and other construction in process for further
phases to
follow. The applicant states the reason the application was not
brought sooner is that alarm bells only started ringing
when
substantive structures appeared. Thereafter the applicant tried to
obtain information from the first respondent and the second
respondent as to what was going on i.e. obtain copies of the
approvals and all other relevant documentation. This it only received
during the second half of June 2016. It says thereafter it moved as
speedily as possible to have this application issued. I accept
the
applicant's explanation and find that the application is urgent.
Prima
facie right
[10]
The fact that there was no public participation has the result that
the applicant was denied his right to fair transparent
and open
administrative action and as a meaningful and serious roll player in
the area to be able to comment and participate in
the decision-making
process that led to the disputed approvals of the rights for the
second respondent.
Irreparable
harm
[11]
The absence of a fair administrative justice process in itself leads
to irreparable harm in that failure to be allowed to exercise
its
rights and participate in the decision-making process leads thereto
that the applicant has been irreparable harmed.
[12]
The interest of the environment and the flood line, the watercourse
and other related aspects dealt with above show that there
could be
meaningful damage to the environment and other persons' properties
upstream and downstream, including the properties being
developed by
the applicant.
[13]
This is apart from the bulk infrastructure questions. It has been
stated that the second respondent is making use of the bulk
electrical infrastructure that the applicant has, at great cost,
installed for the benefit of its development. No provision has
been
made for storm water, roads or sewerage in the area and, if these
questions are not & addressed, could be to the detriment
of all
the developers and occupiers in the broader area around the
development that is currently underway.
No
alternative relief
[14]
Applicants submit that it has no alternative relief than approaching
this court on an urgent basis for the relief in part A.
If this
relief is not granted, the court hearing part B will be presented
with a
fait accompli.
I accept this argument.
Balance
of convenience
[15]
This brings me to consideration of the difficult question of the
balance of convenience or the balance of harm.
[16]
The second respondent's development is a social housing project in
terms of the
Social Housing Act, 16 of 2008
. "Social Housing"
is a national government programme for subsidised rental housing to
cater for the housing needs of
low to medium income households. Of
the total development costs of R390 million the Social Housing
Regulating Authority and the
Department of Local Government and Human
Settlement, North West Province has respectively provided 40% on 29%
in grant funding.
[17]
With reference to the bundle of photographs attached to the answering
affidavit one can see how far the building works have
progress in the
six months from January to July 2016. It is now a further six months
later and the development must be at an advanced
stage. Well over
half of the budget must have been expended. The second respondent
stated that any order to stop the development
would be devastating
and ruing the financial feasibility of the future development. It
sets out a calculation consisting of contractors
costs, developers
costs and loss of rental income amounting to R115 million and
representing the costs of a stop work order.
[18]
It is highly questionable whether the balance of convenience
justifies the granting of interim relief in these circumstances
which
will mean that a partly completed building will stand derelict for
months, if not years, whilst the review and any appeal
thereto are
finalised.
[19]
The contravention of the environmental authorisation has also now
been addressed by the North West Department for Rural, Environment
and Agricultural development. On 28 September 2016 it issued a notice
of its intention to issue a compliance order in terms of
section 31L
of the
National Environmental Management Act, 107 of 1998
. It is
specifically stated therein that the second respondent has
contravened the environmental authorisation by constructing a
parking
area within the 1:100 year flood line of the Palmietspruit and also
that it has constructed storm water channels within
the flood line of
the Palmietspruit. In a supplementary affidavit the second respondent
stated that it has halted all construction
in the abovementioned area
and it promises its full cooperation with the Department to remove
all offending construction and to
rehabilitate the affected sites.
[20]
This to a large extent, although in an imperfect manner, takes care
of the environmental concerns.
[21]
The issue of bulk electricity, water and sewerage to the developments
in the area is something that role players in conjunction
with the
first respondent will have to sort out.
[22]
In all the circumstances I am of the view that the harm the second
respondent will suffer if the interim relief is granted
far outweighs
the harm to the applicant if the relief is
not
granted.
[23]
In all the circumstances the application for interim relief cannot be
granted.
Order
Part
A of the application is dismissed with costs, including the costs of
two counsel.
_________________
A.
A. LOUW
Judge
of the High Court