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[2018] ZASCA 159
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Tavakoli and Another v Bantry Hills (Pty) Ltd (1251/2017) [2018] ZASCA 159; 2019 (3) SA 163 (SCA) (28 November 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1251/2017
In
the matter between:
ALLEN
TARGHI TAVAKOLI
FIRST
APPELLANT
DLX
PROPERTY (PTY) LTD
SECOND
APPELLANT
and
BANTRY
HILLS (PTY) LTD
RESPONDENT
Neutral
citation:
Tavakoli
v Bantry Hills
(1251/2018)
[2018] ZASCA 159
(28 November 2018)
Coram:
Lewis, Zondi and Dambuza JJA and
Mokgohloa and Rogers AJJA
Heard
:
14 November 2018
Delivered:
28 November 2018
Summary:
Town planning –
item 40(c) of Development Management Scheme constituting Schedule 3
to the City of Cape Town’s Municipal
Planning By-law of 2015 –
whether appellants had standing to complain of non-compliance –
appellants failing to establish
membership of class for whose benefit
item 40(c) enacted – appellants also failing to establish harm
caused by non-compliance
– court a quo correctly found
appellants lacked locus standi – appeal dismissed.
ORDER
On
appeal from:
The
High Court of South Africa, Western Cape Division (Saldanha J sitting
as court of first instance).
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Rogers
AJA (Lewis, Zondi and Dambuza JJA and Mokgohloa AJA concurring)
[1]
The appellants applied in
the Western Cape Division of the High Court of South Africa for an
order reviewing and setting aside the
City of Cape Town’s
approval of building plans submitted by the respondent for the
construction of a luxury block of flats
on property it owns in Sea
Point (the Bantry Hills property). The City was cited as a respondent
but abided the court’s decision.
[2]
Three issues were argued
in the court a quo, namely (i) whether the appellants had locus
standi; (ii) if so, whether the approval
of the plans was
unlawful because they contravened item 40(c) of the Development
Management Scheme (DMS) constituting Schedule
3 to the City’s
Municipal Planning By-law of 2015 (By-Law); (iii) if so, whether
the court should in the exercise of
its discretion refrain from
setting aside the approval. The court a quo found against the
appellants on the first two points and
said that it would have found
for the respondent on the third as well provided certain remedial
action was effected within a specified
time.
[3]
The appellants applied for
leave to appeal. The court a quo found that they did not have
reasonable prospects of success on locus
standi and refused leave to
appeal on that ground. The court a quo nevertheless granted
them leave to appeal against its
interpretation of item 40(c). The
court a quo erred in so doing. An appeal lies against the order, not
the reasons, of a court.
Unless the appellants could overcome the
attack on their locus standi the dismissal of their application could
not be reversed
on appeal. This court removed the conundrum by
granting the appellants leave to appeal on locus standi. The same
three issues as
were before the court a quo are thus before us.
[4]
The review application,
incorporating a request for interim relief, was launched in October
2016. The application for interim relief
was heard by Gamble J who
gave judgment on 3 November 2016 (
Tavakoli
& another v Bantry Hills (Pty) Ltd & another
[2016]
ZAWCHC 157).
In terms of his order the review was set down for
hearing on an expedited date in February 2017 with a timetable for
the filing
of further papers. Undertakings given by the respondent
were made an order. These were that until judgment was granted on the
review
building work would not progress beyond the ground floor slab
in respect of four of the blocks and beyond the first level slab in
respect of the fifth block.
[5]
The review was duly heard
in February 2017. The court a quo gave judgment on 21 April 2017,
dismissing the review. The interim interdict
having fallen away,
building resumed. The development comprises 66 apartments spread over
five residential blocks extending above
ground level to seven floors
in respect of one block, eight floors in respect of three blocks and
four floors in respect of a fifth
block. According to an affidavit
dated 27 July 2018, the external structures as at that date were
complete while internal work
was far advanced. Full completion was
anticipated by 13 August 2018. Of the 63 apartments 53 had already
been sold.
[6]
The Bantry Hills property
is about 7500 m² in extent. It lies between Regent Road to the
north, Kloof Road to the south and
Kings Road to the west. (The sea
lies downhill to the north, Signal Hill uphill to the south, the city
centre to the east and Camps
Bay/Clifton to the west.) The plans
provide for two vehicular driveways onto the property. Vehicles
approaching the property from
Regent Road will turn up Tramway Road,
a one-way street which runs southwards to the boundary of the
property before making a right
turn and exiting onto Kings Road. The
first vehicular access will be straight ahead off Tramway Road at the
corner where it turns
right towards Kings Road. Vehicles approaching
the property from Kloof Road will turn down Kings Road, a one-way
street running
northwards, then right into Ilford Road, a one-way
street which runs eastwards before making a right turn and exiting
onto Kloof
Road. The second driveway onto the Bantry Hills property
will be on one’s left at the corner where Ilford Road turns up
to
Kloof Road.
[7]
The appellants own three
residential properties adjacent to each other on the upper (south)
side of Kloof Road in the suburb of
Fresnaye. Immediately opposite
their properties to the north is the block bounded by Kloof Road,
Kings Road and Ilford Road. The
Bantry Hills property lies
immediately beyond this block. The appellants’ properties are
about 80 metres from the Bantry
Hills property. The Bantry Hills
property and the appellants’ properties have General
Residential (GR) zonings. The Bantry
Hills property is zoned GR4, the
applicable height limit and bulk factor being 24 metres and 1.5. The
appellants’ properties
are zoned GR2, the applicable height
limit and bulk factor being 15 metres and 1.
[8]
Item 40 of the DMS applies
to all properties zoned GR2 to GR6. It reads:
‘
40. The
following use restrictions apply to property in these subzonings:
(a) Primary uses
subject to paragraph (c) are dwelling house, second dwelling, group
housing, boarding house, guest house, flats,
private road and open
space.
(b) Consent uses
subject to paragraph (c) are utility service, place of instruction,
place of worship, institution, hospital, place
of assembly, home
occupation, shops, hotel, conference facility and rooftop base
telecommunication station.
(c) Notwithstanding
the primary and consent uses specified in paragraphs (a) and (b), if
the only vehicle access to the property
is from an adjacent road
reserve that is less than 9 m wide, no building is permitted other
than a dwelling house or second dwelling.’
[9]
The parts of Tramway Road
and Ilford Road adjacent to the Bantry Hills property have road
reserves which are less than 9 metres
wide. The issue on the merits
of the review application is the proper interpretation of item 40(c).
The appellants contend that
it applies unless there is at least one
vehicular access to the property from an adjacent road reserve that
is 9 metres or more
wide. The respondent contends that the item
applies where there is only one vehicular access to the property and
such access is
from an adjacent reserve that is less than 9 metres
wide.
[10]
For the reasons which
follow, the court a quo was right to find that the appellants lacked
locus standi. It is thus unnecessary
to pronounce on the proper
interpretation of item 40(c). It is, however, necessary to say
something of its purpose. The lawmaker’s
concern was, I
consider, the congestion that might be caused by frequent ingress
from and egress onto narrow roads. High-density
properties such as
blocks of flats are accompanied by frequent vehicular ingress and
egress. The lawmaker may also have been concerned
with congestion
caused by the parking of visitors’ cars on narrow roads though,
in view of the detailed provisions contained
in Chapter 15 of the DMS
for the provision of adequate off-street parking, this is unlikely to
have been a primary concern. At
any rate, traffic congestion,
howsoever arising, must have been the mischief at which item 40(c) is
directed.
[11]
The appellants did not
contend, either in the court a quo or in this court, that they had
locus standi merely because the Bantry
Hills property and their
properties form part of the City’s municipal area and are thus
both subject to the DMS. In
JDJ
Properties CC & another v Umngeni Local Municipality and another
[2012] ZASCA 186
;
2013
(2) SA 395
(SCA) the question arose whether the owner and tenant of a
commercial property in Howick, a town governed by a town planning
scheme,
had standing to seek the review and setting aside of the
approval of building plans relating to a neighbouring commercial
property.
The majority of this court (per Plasket AJA, Lewis and
Pillay JJA concurring) held that the owner and tenant indeed had
standing.
[12]
Plasket AJA stated that
the question of standing involves ‘a consideration of the
facts, the statutory scheme involved . .
. and its purpose’.
The issue had to be determined ‘in the light of the factual and
legal context’ (para 27).
In regard to town planning schemes
and their purpose, Plasket AJA began his discussion with reference to
the statement by Ogilvie-Thompson
JA in
Administrator,
Transvaal & The Firs Investments (Pty) Ltd v Johannesburg City
Council
1971 (1) SA 56
(A) at 70D that it was of the essence of a town planning scheme that
it is ‘conceived in the general interests of the community
to
which it applies’. He then quoted a passage from the judgment
of Grosskopf J in
BEF
(Pty) Ltd v Cape Town Municipality & others
1983
(2) SA 387
(C) at 401B-E to the effect that a town planning scheme is
intended to operate not in the general public interest ‘but in
the interest of the inhabitants of the area covered by the scheme, or
at any rate those inhabitants who would be affected by a
particular
provision’. Grosskopf J added that a provision might ‘affect’
an inhabitant without causing him financial
loss – there might
be some negative effect of a subjective nature bearing on the
amenities or character of the area.
[13]
Plasket AJA observed that
Grosskopf J’s remarks in
BEF
were a specific
application of the broader principle enunciated in
Patz
v Greene and Co
1907
TS 427
and summarised in
Roodepoort-Maraisburg
Town Council v Eastern Properties (Pty) Ltd
1933
AD 87
at 96, viz that where the lawmaker has prohibited the doing of
an act in the interest of a person or class of persons, such person
may enforce the prohibition ‘without proof of special damage’.
The corollary is that if the prohibition has been enacted
in the
public interest generally, a litigant must prove that the violation
of the prohibition has caused him damage. As Grosskopf
J said in
BEF
,
a township restriction may be imposed for the benefit of a specific
class and also for the benefit of the public in general (400H).
In
such a case the standing of persons in the specific class does not
depend on proof of damage whereas the standing of other persons
does.
[14]
In
BEF
Grosskopf JA refrained
from the ‘dogmatic’ assertion that in the case of a town
planning scheme a remedy would be available
to all persons living in
an area as large as the one covered by the Cape Town scheme. It was
unnecessary to do so because the objecting
party was an immediate
neighbour. The issue did, however, arise for decision in
Prinsloo
& Viljoen
Eiendomme
(Edms) Bpk v Morfou
1993
(1) SA 668
(T), a full court appeal. With reference to
BEF
,
Eloff JP said that whether an owner in a scheme covering a large area
could enforce a prohibition depended on the circumstances
and the
nature of the condition or restriction (672A):
‘
There may be
circumstances in which the particular town planning scheme covers a
large area with a variety of uses and restrictions
and that it is
inconceivable that an owner in, say, the southern part of the area
may enforce a condition of a parochial nature
applicable to the
northern part of the scheme.’
Eloff
JP held that the applicant had failed to establish that the
prohibition he sought to enforce was enacted in the interests
of
property such as the one the applicant owned. Since he based his
standing solely on the fact that his property was situated
in an area
to which the town planning scheme applied his application should have
been dismissed.
[15]
In
JDJ
Properties
Plasket AJA
discussed
Prinsloo &
Viljoen Eiendomme
without
disapproval. Regarding the identification of persons in whose
interests a particular town planning provision operates, he
summarised Eloff JP’s analysis of the authorities as follows
(para 33):
‘
In all of the
cases in which a property owner was held to have standing, Eloff JP
stated, the “nature of the conditions and
the circumstances of
the case” showed that the scheme had been enacted in the
interest of the applicants concerned: in all
of these cases the
applicants whose standing was recognised were persons who owned land
in the vicinity of the respondent’s
land and in each case their
properties fell within the same use zone as the respondent’s.’
[16]
This summary led Plasket
AJA to the following conclusion on the facts of the
JDJ
Properties
case (para
34):
‘
In this
matter, the nature of the interest involved is the right to
enforcement of the Howick scheme. It is this interest that gives
the
appellants standing. They are part of the class of persons in whose
interests the Howick scheme operates for three interlocking
reasons:
first, they are an owner and a lessee respectively of property within
the area covered by the Howick scheme in a modestly
sized town;
secondly, their properties and businesses are within the same use
zone as the development to which the building plans
relate; and
thirdly, their properties and business are in such close proximity to
the second respondent’s development, being
across a road, that
no question of them being too far removed from the second
respondent’s development can arise. These factors
distinguish
their circumstances from those of the respondent in the
Prinsloo
& Viljoen Eiendomme
case
and placed him squarely within the principle set out in the
BEF
case.’
[17]
The above passage should
not be understood as laying down immutable requirements applicable to
every case. The passage must be viewed
in the context of the
circumstances of that case, including the provisions of the scheme
the appellants were seeking to enforce.
The fact that an aggrieved
person owns or occupies property covered by a scheme may be a
prerequisite for enforcing it but is not
on its own sufficient.
Depending on the nature of the provision at issue, I can readily
imagine that an owner or occupier may have
standing to enforce a
provision even though his or her property has a different zoning from
the offending property – for
example, the owner of a
residential property might, in appropriate circumstances, be entitled
to complain of a departure from restrictions
applicable to a nearby
commercial property. Proximity will often be an important
consideration though this will depend on the nature
of the provision
at issue. One cannot say, as I think the appellants sought to argue
in the present case, that a proximity of 80
metres is always close
enough.
[18]
The DMS is an integral
part of the By-Law and has the force of law (s 26(3) of the
By-Law). The By-Law, including the DMS,
applies to all land within
the geographic area of the City and binds all owners and users of
such land (s 2 of the By-Law).
Given the City’s very large
geographic area, the owners and users, viewed in their totality,
should in my opinion be regarded
as the general public rather than a
specific class for purposes of applying the principle laid down in
Patz v Greene
.
If item 40(c) was imposed solely for the benefit of the general
public in this sense, the appellants – in order to have
locus
standi – needed to establish that they suffered harm from a
contravention of the item beyond that which it may be supposed
all
owners and users in Cape Town suffered. If, on the other hand, item
40(c) was imposed for the benefit of a specific class of
owners and
users, or partly for the benefit of such a class and partly for the
benefit of the general public, the appellants could
establish
standing by showing that they belonged to the specific class.
[19]
The
starting point is thus to ascertain whether item 40(c) was enacted
for the benefit of a specific class to which the appellants
belong.
It is not sufficient, in this regard, that the item in fact operates
to the advantage of a class of persons to which the
appellants
belong. It must appear that the lawmaker had the interests of the
particular class in mind in enacting the provision
(
Kuter
v South African Pharmacy Board & others
1953
(2) SA 307
(T) at 310H-311A). I have explained that the mischief with
which the prohibition is concerned is traffic congestion in narrow
roads
giving vehicular access to high-density properties. The
implicated congestion does not extend beyond the narrow road or roads
actually
giving vehicular access (for purposes of discussion I shall
assume in the appellants’ favour that the item applies even
where
more than one narrow road gives access to the property). If at
least one road giving access to the property has a road reserve which
is 9 metres wide or more, it does not matter that other roads forming
part of the immediate road network are narrow and may become
congested. The additional traffic which may be attracted to the
vicinity of of a new block of flats is unaffected by whether the
abutting road giving access to the flats is more or less than 9 m
wide. It is only the properties on the abutting road itself which
may
be prejudicially affected by the fact that the road is narrow and may
become congested
[20]
It seems to me, therefore,
that the class which the lawmaker had in mind when enacting item
40(c) comprises the owners and users
of properties in the narrow road
or roads giving access to the subject property. The appellants are
not such persons.
[21]
It might be argued that
the prohibition was also enacted for the benefit of owners and users
who are likely to use the narrow roads
and thus be ‘affected’
by congestion (‘affected’ in the sense contemplated by
Grosskopf JA in
BEF
).
On this assumption, one would have to have regard to the proximity of
the relevant properties and the particular features of
the road
network in the vicinity to determine whether an owner or user has
standing on this basis. Any member of the public might
notionally use
one of the narrow roads but this notional possibility cannot mean
that every member of the public has the right,
without proof of
damage, to complain of a violation of the item.
[22]
The appellants do not form
part of the class of persons likely to be affected by congestion in
Tramway Road or Ilford Road. Persons
owning or residing on properties
on the upper (south) side of Kloof Road would have no occasion to use
Tramway and Ilford Roads
as access routes to other destinations. A
resident of Kloof Road would use Kloof Road itself to reach the city
centre to the east
or Camps Bay/Clifton to the west, and would use
Kings Road to reach Regent Road and the beachfront area. Such a
resident would
have no occasion to turn down off Kloof Road into
Kings Road and then turn right into Ilford Road, since this would
simply take
him or her back to Kloof Road. And such a resident
wishing to reach his or her home from Regent Road would not turn up
Tramway
Road because this would take him on to Kings Road which is a
one-way street running back down to Regent Road.
[23]
The appellants’
counsel, while acknowledging that traffic congestion in narrow
abutting roads was the primary mischief at
which item 40(c) is
directed, submitted that an additional purpose may have been to
maintain the low-density residential character
usually associated
with narrow roads. The appellants’ properties were sufficiently
proximate to the Bantry Hills property
to benefit from the
preservation of this character.
[24]
I cannot agree that this
was a purpose of item 40(c). The character of areas within a zoning
scheme is established by the zoning
applicable to the properties in
that area. In regard to residential areas, the lowest-density zonings
in the DMS are Single Residential
Zones 1 and 2. The GR Zones make
provision for urban living at higher densities, including blocks of
flats, so as to promote efficient
urban development and manage urban
sprawl (see the introductory notes to Chapter 6). The permitted
density increases from GR1 to
GR 6. The Bantry Hills property falls
in an area characterised by GR4 zoning, ie relatively high-density
residential development.
Item 40(c) would be a very arbitrary and
unsatisfactory way of preserving the character of an area. A GR4
property might be abutted
by two narrow roads but if the vehicular
access were provided from a third road which was at least 9 m wide
the restriction would
not be applicable. This shows that the
restriction is concerned not with narrow roads as such but with the
traffic associated with
narrow roads giving vehicular access to
high-density properties.
[25]
I thus conclude that the
appellants do not have locus standi by virtue of membership of a
specific class for whose benefit item
40(c) was enacted. I am
prepared to assume that item 40(c) was enacted not only for the
benefit of a specific class but also for
the benefit of the general
public, ie all owners and users of property within the geographic
area of Cape Town. On that assumption,
however, the appellants needed
to prove that the violation has caused or will cause them damage.
[26]
The appellants were
required to establish their locus standi in their founding papers.
The only founding allegations concerning
standing are in para 21,
where their deponent, Mr Tavakoli, said that they had standing
because they were entitled to enforce the
DMS against the respondent
and because their constitutional rights to just administrative action
had been infringed by the approval
of the plans. The first of these
grounds is a conclusion unsupported by facts. The second, as the
JDJ
Properties
case shows,
does not relieve the appellants of the burden of establishing their
standing along conventional lines. With reference
to s 38 of the
Constitution, the appellants have not alleged that they are acting in
anyone’s interests other than their
own. The sufficiency of
their own interest must be determined in accordance with the
principle emanating from
Patz
v Greene.
As Cameron
JA stated in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & others
[2012]
ZASCA 28
;
2013 (3) BCLR 251
(CC), an ‘own-interest litigant’
does not acquire standing from the invalidity of the challenged
decision but from
the effect it will have on his or her interests
(para 33).
[27]
In the answering affidavit
the respondent’s deponent denied the appellants’ locus
standi. In reply the appellants’
deponent, Mr Tavakoli, ‘noted’
this denial. There was no advance, insofar as locus standi is
concerned, when the appellants
delivered their supplementary founding
affidavit following the furnishing of the City’s record.
[28]
In the supplementary
answering affidavit the respondent’s deponent, Mr Rossi,
pointed out that the appellants continued to
advance their case
‘without any allegation relating to what special or peculiar
interest he may have in the legislative provision’.
Mr Rossi
explained at some length why, in the respondent’s view,
non-compliance with item 40(c) would not have any negative
effect on
the appellants and their properties. He pointed out that the
appellants had made no allegations concerning the impact
which the
development might have on traffic in the area ‘and accordingly
the applicants are not and would not be entitled
to assert any
argument in this regard at the hearing of the matter’. Mr Rossi
nevertheless annexed two traffic impact assessment
reports
demonstrating that the development would have an insignificant impact
on traffic. In his supplementary replying affidavit
Mr Tavakoli again
‘noted’ Mr Rossi’s allegations, saying that they
were matters for legal argument. He said that
it was difficult to
understand why Mr Rossi had annexed the traffic impact assessment
reports.
[29]
In written argument the
appellants’ counsel referred us to a letter annexed to the
founding affidavit in which their attorneys,
in requesting access to
the building plans, stated that the appellants had an interest in the
proposed development inter alia because
it would ‘dramatically
increase the traffic congestion in the area’ and potentially
decrease the value of their properties.
Reliance in this way on an
annexure is not permissible (
Minister
of Land Affairs and Agriculture & others v D & F Wevell Trust
& others
2008 (2)
SA 184
(SCA) para 43), all the more so where the appellants in their
affidavits chose to treat the question of traffic congestion as
irrelevant.
I simply add that the annexed impact reports are at odds
with a suggestion of a significant increase in traffic. Upon
completion
of the development the volume-to-capacity ratios of all
relevant intersections will remain low and the levels of service
good.
[30]
The appellants thus failed
to demonstrate that the violation of item 40(c) has caused or will
cause them harm. Their true concern
seems to have been that the new
development would impair their view but in their supplementary
replying papers they disavowed this
concern as a basis for locus
standi. In conclusion I should emphasise that my conclusion on locus
standi is made in relation to
a restriction which is, to adapt Eloff
JP’s expression, highly parochial. Many of the DMS’ other
provisions may have
a far wider reach.
[31]
The following order is
made:
The
appeal is dismissed with costs, including the costs of two counsel.
__________________
O L
Rogers
Acting
Judge of Appeal
APPEARANCES
For
Appellants
A
M Smalberger SC
Instructed
by
K J Bredenkamp
Attorneys, Cape Town
Hill
McHardy & Herbst, Bloemfontein
For
Respondent
S
P Rosenberg SC (with him R D E Gordon)
Instructed
by
Edward
Nathan Sonnenbergs, Cape Town
Webbers,
Bloemfontein