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[2014] ZAGPPHC 93
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Morrison v City of Johannesburg and Others (66324/12) [2014] ZAGPPHC 93; [2014] 2 All SA 100 (GNP) (28 January 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
DATE:28/01/2014
CASE
NO:66324/12
In
the matter between:
ALEXANDER
WHYTE
MORRISON
.
........................................................................
Applicant
And
THE
CITY OF
JOHANNESBURG
.......................................................................
First
Respondent
THE
CITY MANAGER OF THE CITY OF
JOHANNESBURG
................................................................................................
Second
Respondent
GABRIEL
JACOBUS
MARX
..................................................................................
Third
Respondent
SAN
CHIARA DEVELOPMENT HOME OWNERS
ASSOCIATION
.....................................................................................................
Fourth
Respondent
JUDGMENT
MURPHY,
J
1.
Mr
AW Morrison ("Morrison"), the applicant in this
application, seeks an order reviewing and setting aside the decision
of the City of Johannesburg, the first respondent, ("the City")
to approve the building plans submitted to it by the
third
respondent, Mr GJ Marx ("Marx") and remitting the decision
back to the City for reconsideration.
2.
The
application follows upon an urgent application in which Spilg J on 22
October 2012 interdicted Marx from continuing with building
operations at his property pending the final determination of an
appeal in terms of section 139 of the Town-Planning and Townships
Ordinance 15 of 1986 ("the Ordinance") or a review of the
decision of the City to approve the building plans submitted
by Marx.
3.
Morrison
is the owner of Unit 6, San Chiara Estate, being Portion 10 (a
Portion of Portion 4) of Erf 39, Lonehill Ext 5, Calderwood
Rd,
Lonehill, Johannesburg. Marx is his neighbour, being the owner of
unit 5 (Portion 9).
4.
During
2010 Marx decided that he wanted to extend portions of his house and
instructed his architect to prepare a plan, Annexure
RA3 to the
founding affidavit. It is evident from the plan that Marx proposed to
build a double story structure adding additional
floor area of 85,026
square metres to his house. The ground floor consists of an extended
TV area and a new "Hollywood carport/double
garage", and
the first floor comprises a new gym or bedroom of 27,286 square
metres.
5.
The
Site Development Plan ("SDP"), Annexure RA4, reveals that
the estate contains 17 units built on stands of approximately
500
metres. It is evident from the SDP that each property was placed in
such a way as to give the adjacent properties a corridor
of open
space to allow for light and some outlook. Morrison has annexed
photographs to his founding affidavit, including a photo
shopped
version, depicting the situation if the double story structure is
built, and has submitted that the proposed structure
will
significantly obstruct sunlight from reaching his outside
entertainment areas, consisting of a swimming pool and adjacent
patio-style porch. Whereas presently the outlook from his garden and
porch is an open view facing north, if the structure is built,
the
view will be obscured by a pitched tile roof which he claims will
overshadow and disturb his enjoyment of his garden and
porch-area. Moreover, as the structure will impede the north-facing
aspect of his property, it will diminish the amount of sunlight
capable of entering the ground floor of his home. He maintains that
the impact of the proposed new structure will reduce the value
of his
home by an amount of about R500 000.
6.
The
City's attitude to Morrison's concerns is that Marx's property
already casts a shadow over Morrison's entertainment area, and
that
such should be expected in an urban environment where densification
is approved, properties are smaller and people have to
live in close
proximity. Marx adds that the SDP in fact contemplated a double
garage, denies that the structure will have the impact
alleged,
maintains that Morrison should appreciate that one of the impediments
of high- density housing is restricted views and
contends that the
structure will give them both greater privacy.
7.
Marx
lodged the building plans for consideration and approval by the City
in December 2010. These plans could not be approved because
they
showed parts of the building within the building restriction area on
Marx's property which building line had not been relaxed.
The City
accordingly invited an application for relaxation of the building
line.
8.
The
property falls within the scope of the Sandton Town-Planning Scheme
("STPS"). Section 18 of the Ordinance provides
for the
preparation by local authorities of town-planning schemes for land
situated within their jurisdiction for the purpose of
ensuring
coordinated and harmonious development of the area to which it
relates. In terms of section 58(2) of the Ordinance
any person who
contravenes or fails to comply with a provision of an approved scheme
of an authorised local authority shall be
guilty of an offence.
Clause 11(1) of the STPS provides that no building other than
boundary walls or fences or temporary structures
erected in
connection with building operations shall be erected in the "building
restriction area". Clause 1 (xi) defines
the building
restriction area to mean an area of uniform width, unless otherwise
stated in the scheme, upon which no building,
save that which is
allowed elsewhere in the scheme, may be erected. The definition must
be read with the definition of "building
line" in Clause 1
(x) of the STPS which means a line indicating the furtherest boundary
of a building restriction area from
a street, a proposed street,
street widening, or any other boundary of a property and which is a
fixed distance from the boundary
of an erf. Clause 11(2) of the STPS
provides that unless otherwise stated on the map, building lines
shall apply to properties
according to use zones as indicated in
Table B. It is common cause that the property has been zoned as
"Residential 2",
which according to Table B requires
building lines along a street boundary of 5 metres and one of 3
metres along other boundaries.
9.
The
building plans submitted by Marx in December 2010, as I have said,
indicated that the structure would encroach into the building
restriction area. Clause 10(2)(d) of the STPS provides:
"The
local authority may, upon receipt of a written application or the
submission of a site development plan, allow the erection
of a
building in the building restriction area in the case of a corner erf
or if, as a result of the topography of the property
or of the
adjacent land or of the propinquity of buildings already erected on
the building restriction area, adherence to the building
line
requirements would unreasonably hamper the development of the
property."
10.
During
the course of the interaction by the parties with the City it became
apparent, because of the proposed encroachment in the
building
restriction area, that Marx was required to make an application in
terms of Clause 10(2)(d) of the STPS for a relaxation
of the 3 metre
building line between the two units. I have not been able to locate a
copy of the written application in the inadequately
indexed record of
decision filed by the City, nor is it referred to in any of the sets
of affidavits. It appears to be common cause
though that such an
application was made. Morrison's previous attorneys objected to the
building plans submitted by Marx in December
2010 in a letter dated
11 February 2011. The basis of the objection was that Morrison had
not consented to the proposed alterations
and that they "disobeyed"
the building lines defined in the STPS. This latter objection no
doubt prompted the City to
call for an application in terms of Clause
10(2)(d) of the STPS.
11.
On
1 June 2011, Morrison's current attorneys addressed a detailed letter
of objection to the City on his behalf. They objected to
the proposed
structure's impact on the use and enjoyment of the property, and
raised the additional point that the proposed additions
and
alterations to Marx's property would be inconsistent with the SDP and
hence could not be approved until such time as the SDP
has been
amended. Reference was made in this regard to Clause 14(1) of the
STPS, the relevant part of which reads:
"A
site development plan, compiled to a scale of 1:500 or to any other
scale as may be approved by the local authority, shall
be submitted
for approval to the local authority before the submission of any
building plans. No buildings shall be erected on
the erf until such
site development plan has been approved by the local authority, and
the entire development of the erf shall
be in accordance with the
approved development plan: Provided that, with the written consent of
the local authority, the plan may
be amended from time
The
attorneys accordingly requested the City to confirm that it would not
consider the approval of any building plans that are inconsistent
with the STPS and the SDP
;
and to return the plan to Marx with an instruction to initiate steps
to have the SDP amended.
12.
Marx
brought the application for a relaxation of the building lines
subsequent to the delivery of this letter on a date and basis
unknown
(on account of the application not forming part of the record).
13.
It
appears from a letter dated 2 February 2012, addressed by Morrison's
attorneys to the City, that on 20 December 2011 the City
notified
Morrison's previous attorneys that a hearing was to be convened in
terms of section 131 of the Ordinance. The notification
is not
annexed to the affidavits and does not form part of the City's record
of decision. It is accordingly not possible to identify
precisely the
scope and purpose of the hearing. Morrison however annexed the heads
of argument filed at the hearing which are headed:
"Application
for consent: Relaxation of Building Lines in respect of Portion 9 of
Erf 39 Lonehill Extension 5 in terms of the
Sandton Town Planning
Scheme, 1980."
It
is clear also from the content of the heads of argument that the
application for which the hearing was scheduled was the application
for the relaxation of the building lines.
14.
The
hearing was convened on 16 February 2012. The argument advanced on
behalf of Morrison was to the effect that in terms of the
STPS the
erection of the structure on the property could only take place in
accordance with the SDP approved by the City which
allegedly did not
allow for the construction of the building proposed by Marx, and, as
such, the relaxation of the building lines
would be contrary to the
SDP and the STPS. Reliance was placed upon the City's decision of 13
June
2011
(attached
as Annexure G to the heads of argument, Annexure RA12) initially
refusing to accept the application for relaxation of
the building
line due to the fact that it was "legally incomplete"
because an amended SDP was required for the alterations
and
additions. Morrison argued that two applications were required:
firstly, an application to amend the SDP, and secondly an application
for relaxation of the building lines. And, it was submitted, the City
could not approve the relaxation of the building line until
such time
as an amended SDP was submitted and approved, and as required by its
own decision of 13 June 2011 Since no application
to amend the SDP
had been made, the City was precluded from granting the application
to amend the building lines. In other words,
the application for
relaxation was contended to be premature.
15.
It
was submitted on behalf of Morrison at the hearing that the failure
to make application for an amendment of the SDP prejudiced
the other
residents of the estate in that their rights to object to any
amendment had not been given effect to. It was argued further
that
the application for relaxation did not include sufficient information
substantiating and motivating the approval of the application,
and
allegedly had not been brought following the proper process and on
due notice to all interested and affected parties.
16.
In
addition to the technical aspects, the attorney for Morrison
addressed the substantive issues relating to the effect the structure
would have on Morrison's property, in particular the derogation of
value and his ability to enjoy the benefits of his property.
17.
The
respondents have disputed the merits of the arguments advanced on
behalf of Morrison at the hearing. I will refer to their contentions
later.
18.
The
City's decision on the application is set out in a letter dated 19
April
2011
but
which Morrison claims only to have received in June 2012. The letter
records that the following resolution was adopted by the
City of
Johannesburg Development Planning and Urban Management Planning
Committee:
"Subject
to the general provisions of the Sandton Town Planning Scheme, 1980,
the City of Johannesburg hereby relaxes the side
space from 3 metres
to 1.22 metres along the south western boundary over such distance as
is necessary to permit the construction
of a double garage, bedroom
and patio"
The
effect of the decision is that the structure proposed by Marx would
come within 1.22 metres of the boundary of Morrison's property.
The
letter of decision however stated explicitly that the relaxation did
not bind the City to approve building plans, or absolve
Marx from
complying with any restrictive condition of title, the City's by-laws
or the approval of building plans in terms of the
National Building
Regulations.
19.
By
way of a letter dated 20 June 2012 addressed to the Gauteng Townships
Board, ("the Board"), Morrison's attorney noted
an appeal
against the decision of the City to the Board in terms of section 139
of the Ordinance. Paragraph 2 of the letter sets
out the grounds of
appeal as follows:
"2.1
The Municipality erred in finding that the notification and
advertisement
of the application was in accordance with the provisions of the
Scheme.
2.2
The
Municipality erred in failing to consider the provisions of the
Promotion
of Administrative Justice Act, Act 3 of 2000 when finding that the
notification and advertisement of the application was
administratively fair.
2.3
The
Municipality erred in exempting the applicant from having to comply
with the requirements for the amendment and approval of
the Site
Development Plan in respect of properties with a zoning of
"Residential 2"
as
contemplated in the provision of the Scheme.
2.4
The
Municipality erred in considering the impact that the approval of the
application would have on the surrounding properties such
as
overshadowing and visual intrusion. Further, the Municipality failed
to consider the development concept of the gated residential
estate
when making its decision.
2.5
The
Municipality erred in finding that the application was capable of
consideration and that such was not fatally defective.
2.6
The
Municipality erred in approving the application and should have found
that the application was inconsistent with the DFA Principles.
2.7
The
Municipality erred in approving the application and should have found
that the procedure followed was inconsistent and at variance
with the
Town Planning Scheme."
20.
Section
139(1) of the Ordinance reads:
"139.
Appeals to Board. - (1) An applicant or objector who is aggrieved by
-
(a)
a
decision of a local authority-
(i)
in
terms of section 20(3)(b), 48(l)(b) or 63(l)(b);
ii)
on any application in tems of-
(aa)
any provision of this Ordinance;
(bb)
any town-planning scheme, may, within a
period
of 28 days from the date he has beennotified in writing by such local
authority of the decision, or within such further period,
not
exceeding 28 days, as the Board may allow:
(b)
the refusal or unreasonable delay of a local authority to give a
decision contemplated in paragraph (a) may, at anytime,
If
this Ordinance does not provide for an appeal to the Administrator, a
compensation court or a services appeal board, appeal through
the
Director to the Board by lodging with the Director a notice of appeal
setting out the grounds of appeal, and he shall at the
same time
provide the local authority with a copy of the notice."
It
is Morrison's contention that he is an objector aggrieved by a
decision of a local authority on an application in terms of Clause
10(2)(a) of the STPS and is accordingly entitled to appeal to the
Board in terms of section 139(l)(a)(ii)(bb) of the Ordinance.
21.
Morrison's
attorney then addressed a letter dated 18 July 2012 to Marx informing
him that an appeal had been noted and that the
effect of such noting
was that the decision of the City could only take effect after the
conclusion of the appeal.
22.
The
City approved the building plans submitted by Marx, on 17 August
2011.
It
is this approval Morrison seeks to have set aside and remitted to the
City for reconsideration. As stated at the outset, Marx
has been
interdicted from continuing with building operations at his property
pending the determination of the appeal or the review.
23.
In
argument before me, counsel were agreed that the application had to
be determined with reference to four grounds of review, namely:
i)
The
approval of the building plans was illegal because a mandatory and
material procedure or condition (a jurisdictional fact or
condition
precedent) prescribed by the provisions of the National Building
Regulations and Building Standards Act 103 of 1977 was
not complied
with; namely, the City before taking the decision failed to consider
any recommendations made by the Building Control
Officer in terms of
section 6(l)(a) of the Act, as it was required to do in terms of
section 7(1) of the Act.
ii)
The
approval of the building plans was illegal because the administrative
decision to allow relaxation of the building line was
pending an
administrative appeal to the Board and thus the relaxation was
suspended with the result that the building plans could
not be
approved. Section 7(l)(a) of the Act permits the approval of building
plans if they comply with the requirements of the
Act "and any
other applicable law". As the decision to relax the building
line was suspended by the noting of the appeal,
the plans did not
comply with the applicable law, namely the STPS as promulgated under
the Ordinance.
iii)
The
approval of the building plans was illegal because the proposed
alterations would not be in accordance with the approved SDP
for the
estate and would thus contravene the provisions of the STPS until
such time as the SDP is amended to allow for the relaxation
of the
building line and the erection of the proposed structure in the
building restriction area.
iv)
The
approval of the building plans is reviewable administrative action in
terms of the Promotion of Administrative Justice Act 3
of 2000
("PAJA") in that the City failed to take account of the
pending administrative appeal in relation to the relaxation
of the
building line and the alleged impact of the alteration on the value,
use and enjoyment of Morrison's property.
24.
For
reasons which will become apparent, I consider it appropriate to deal
with the second ground of review first.
25.
Mr
Oosthuizen SC, who appeared for Marx, posed two challenges to the
second ground of review. The first was to the effect that Morrison
was not an "objector" within the meaning of that term as
used in section 139 of the Ordinance and hence no valid appeal
had
been lodged with the effect of suspending the decision of the City.
The second was that even if there was a valid appeal it
did not have
the effect of suspending the decision of the City.
26.
Mr
Oosthuizen's first argument is predicated on the submission that the
Ordinance shows that the terms "objector" and
"objection"
were intended to be used in a narrow and particular sense. He argued
with reference to various provisions
of the Ordinance that the word
"objection" usually relates to objections made to decisions
with regard to land use rights
and not building line restrictions. I
do not agree. The term "objector" is not defined in the
Ordinance. It should therefore
be assumed that the legislature used
the term in its popular sense unless the context or the subject
matter clearly indicates that
the term was intended to be used in a
different sense - Beadle and Co v Bowley
12 SC 401
, 402. An objector
is one who objects, as to a proposition or measure; and "to
object" means to make opposition (Websters
New International
Dictionary). There is nothing in section 139 of the Ordinance which
suggests that the terms objector should be
restricted in the manner
suggested. The right to appeal is conferred on an objector who is
aggrieved by a decision on "any"
application in terms of
any town-planning scheme. In other words any person who opposes an
application be it in respect of land
use, the grant of exemptions or
the relaxation of any requirements of the provisions of the scheme,
may appeal. Moreover, the right
of objection is not restricted in the
Ordinance to decisions in relation to consent use or land use rights.
Section
56, for example, allows for objections to a town-planning scheme
sought by individual owners of land. Nothing in the section
restricts
an applicant to any particular kind of amendment or, by extension, an
objector, to any particular kind of objection.
27.
In
the result, Morrison as an aggrieved objector had a right and
standing to note an appeal in terms of section 139 of the Ordinance
against the decision of the City to relax the building line. The
question then is whether the noting of the appeal suspended the
decision.
28.
It
is trite that in judicial proceedings the noting of an appeal has the
effect of suspending the order appealed against pending
the outcome
of the appeal before a court of appeal. The rationale of the common
law rule is that the status quo between the parties
should be
maintained until the adjudication process is complete and a final
decision reached. The law hopes in this way to avoid
the potentiality
of prejudice caused by giving effect to an order or decision that may
be reversed. However, in administrative
proceedings there is no
similar rule of the common law which suspends any administrative
decision once an administrative appeal
has been noted. Whether the
noting of an administrative appeal has the effect of suspending the
administrative decision depends
upon the interpretation of the
provision bestowing the statutory right of appeal. According to
Baxter, Administrative Law (Juta)
381, the common-law principle of
suspension can constitute no more than a presumption in the case of
administrative decisions,
and this presumption may be negatived by
the implications of the statute. He adds though that the presumption
appears nevertheless
to be a strong one. (See Morinepine Transport
(Pty) Ltd vs Local Road Transportation Board, Pietermaritzburg
1984
(1) SA 230
(N) 232 B - D; and Max v Independent Democrats
2006 (3) SA
112
(c) at 118E - 120H).
29.
Section
139 of the Ordinance does not expressly provide for the suspension of
the decision appealed against. In keeping with the
common-law
principle it nonetheless may be presumed that such was the intention.
Mr Oosthuizen however referred to two provisions
of the Ordinance
which he submitted reveal a contrary intention in that they provide
expressly for suspension and this he argued
was a clear indication
that the legislature did not intend suspension to be the general rule
but rather the exception. By making
express provision for those cases
where there will be a suspension, it follows by implication that in
other instances the right
of appeal will not have the same
consequence - inclusio unius est alterius exclusio.
30.
The
first provision upon which Mr Oosthuizen relied to support his
argument is section 25 of the Ordinance, which reads:
"(1)
Subject to the provisions of subsection (2), the Surveyor-General
shall not approve a general plan or diagram of-
(a)
a
subdivision of land to which a town-planning scheme in operation
relates, unless-
(i)
the
local authority or the Board, in a matter before the Board on appeal,
or the Administrator or a Minister of State has approved
the
subdivision in terms of the provisions of this Ordinance or any other
law relating to the subdivision of land;
(ii)
the
Administrator or a Minister of State has, in terms of the provisions
of this Ordinance or any other law relating to the subdivision
of
land, granted exemption, either generally or specifically, from
compliance with the provisions of this Ordinance or that other
law;
(b)
a
consolidation of land to which a town-planning scheme in operation
relates, unless the local authority or the Board, in a matter
before
the Board on appeal, has approved the consolidation.
(2)
Where
application is made to a local authority to consolidate land as
contemplated in subsection 1(b) and the local authority fails
to
approve or refuse the application within a period of 60 days from the
date of receipt of the application it shall be deemed
that the local
authority has approved the application.
(3)
The
provisions of subsection (l)(b) shall not apply to a consolidation of
land where the diagrams for consolidated title were lodged
with the
Surveyor- General prior to the date of the commencement of this
Ordinance."
Section
25(l)(a)(i) makes it clear that where there is an appeal to the Board
in respect of the approval of a general plan or diagram
of a
subdivision of land, the Surveyor-General is prohibited from
approving the plan or diagram unless the Board on
appeal approves it.
31.
The
second provision of the Ordinance expressly providing for suspension
is section 59(15) which reads:
"(15)
Where an applicant or objector has, in terms of subsection (l)(a)(i),
appealed against any provision of a town-planning
scheme of which
notice was given in terms of section 57(l)(a)-
(a)
and
the appeal is upheld-
(i)
the
authorised local authority shall amend such provision within a period
of 30 days from the date it has been notified in terms
of sub-section
(11) of the decision of the Administrator, and it shall forthwith
give notice thereof in the Provincial Gazette;
(ii)
the
Administrator shall, where the authorised local authority fails to
comply with the provisions of sub- paragraph (i), amend such
provision and forthwith give notice thereof in the Provincial Gazette
and
thereupon he may recover the costs from the local authority;
(b)
such
provision shall not come into operation until such time as the appeal
has been considered by the Administrator and, if upheld,
notice has
been given in terms of paragraph (a)."
This
provision governs an appeal against the adoption of a draft town-
planning scheme by a local authority or the decision of a
local
authority on an application for the amendment of a town-planning
scheme made in terms of section 56(1). It provides that
the relevant
provision will not come into effect while an appeal is pending before
the Premier of the province.
32.
Mr
Oosthuizen referred also to clause 19 of the STPS which expressly
provides for suspension. However, I am not convinced that the
provisions of the STPS provide a legitimate aid to interpreting the
Ordinance. The question is what was the intention of the provincial
legislature in enacting the right to appeal in section 139 of the
Ordinance; or more particularly whether the express provision
for
suspension in section 25 and section 59(15) is sufficient to negative
the presumption that the common law principle of suspension
will
normally apply to administrative decisions? The argument, as
indicated, rests upon the maxim inclusio unius est alterius exclusio,
which is a canon of literalist or textual interpretation. In recent
years our courts have favoured a more contextual and purposive
approach to interpretation based on the understanding that a
literalist or overly textual approach can at times be a sterile
exercise
defeating of the true intention or purpose of the
legislation. In National Director of Public Prosecutions v Mohamed NO
2003 (4) SA 1
(cc) at para [40], the Constitutional Court offered the
following salutary caution in relation to the application of the
maxim:
"Although
there is no express reference thereto in its judgment, the High Court
clearly relied implicitly on the interpretative
maxim that the
'specific inclusion of one implies the exclusion of the other', in
coming to this conclusion. This maxim has been
described as 'a
valuable servant, but a dangerous master'. It is not a rigid rule of
statutory construction; in fact it has on
occasion been referred to
as a 'principle of common sense' rather than a rule of construction,
and 'it must at all times be applied
with great caution'."
33.
The
purpose of section 139(1) of the Ordinance is to confer upon an
aggrieved party a right of reconsideration of a decision rendered
by
a local authority in relation to, amongst other things, an
application in terms of any town-planning scheme. The value of an
appeal (to state the obvious) is that it allows for reconsideration
of the merits of a decision and substitution of another decision
on
the basis of correctness. It is not aimed at curing irregularity but
allows an aggrieved party a second bite of the cherry in
relation to
the rightness of the decision.
34.
In
certain circumstances the safeguard provided by an appeal is more
necessary than others. This is especially the case where the
initial
decision-maker is the legislator and executive body responsible for
the policy and legislative provisions which form part
of the
subject-matter and matrix of the appeal. Baxter Administrative Law
255 puts it well as follows:
"A
right of appeal is an invaluable safeguard. It provides an aggrieved
individual with the assurance that the decision will
be reconsidered
by a second decisionmaker. The appellate body is able to
exercise a calmer, more objective and reflective
judgement. Detached
from the 'dust of the arena', as it were, and the immediacy of the
initial decision, the second decision-maker
is in a better position
to discern a faulty reasoning process and, in particular to evaluate
facts. This assumes special importance
in the case of a discretionary
decision since much of that decision is likely to depend on the
inferences ('ultimate facts') drawn
from the raw evidence ('basic
facts'). In the end the final decision will have been the subject of
more careful scrutiny, prolonged
debate and sober reflection."
35.
The
policy in relation to building within building restriction areas is a
matter for local authorities, as is the determination
of applications
for relaxation or exemption of or from that policy. Thus, for obvious
reasons, where the first decision-maker is
the maker of policy, the
legislator of it and the adjudicator of applications for exemption
from it, the existence of a right to
appeal to an independent,
detached and more objective body assumes greater importance. Section
139(1) of the Ordinance provides
for that possibility. However, such
legislative provision will be rendered nugatory in effect should it
be held that an appeal
against a decision to permit building in the
restriction area has no suspensive effect. That would mean that
despite the appeal
the applicant for relaxation, on obtaining
approval of his plans, could commence building and the appellate body
would be presented
with a fait accompli, or facts on the ground,
which would have a naturally chilling effect on its decision. The
appellate body
will no longer merely be confronted with determining
whether to prohibit building but will have the additional burden of
deciding
whether to order the demolition of the building built within
the restriction area while the appeal was pending, assuming it had
such power, which if it did not would render the appeal worthless. In
either instance the appellate body would be faced with making
a more
difficult decision of potentially disproportionate quality.
36.
Our
system of constitutional and administrative law is suffused with the
principle of proportionality, constituting as it does a
constituent
element of the rule of law and the overarching principle of legality.
The purpose of the principle is "to avoid
an imbalance between
the adverse and beneficial effects ... of an action and to encourage
the administrator to consider both the
need for the action and the
possible use of less drastic or oppressive means to accomplish the
desired end" - Hoexter Administrative
Law in South Africa (Juta)
344. The principle finds expression in our law not only as a
recognised ground of constitutional and
administrative review but
also in the presumptions of statutory interpretation that the
legislature does not intend an unreasonable
or unfair result or to
alter the existing law more than is necessary. While there may be
instances where the non-suspension of
a decision on appeal will be
both legitimate and legal, and hence proportional, the presumptions
and the doctrine of the rule of
law require courts when faced with
legislative ambiguity to choose a meaning which most effectively
promotes the principle of proportionality.
The delay suffered by a
litigant pending appeal is less oppressive than the right of appeal
being rendered practically worthless
by allowing the decision of the
initial decision-maker, in this instance a not entirely disinterested
party, to assume an almost
final quality.
37.
For
those reasons, therefore, I am not persuaded that the failure of
section 139(1) of the Ordinance to make express provision for
suspension of the decision appealed against is decisive. The ordinary
principle that the noting of an appeal suspends the decision
is the
least oppressive means of advancing the policy of the scheme of
regulation and the provision should be interpreted in accordance
with
the presumption favouring proportionality, fairness and
reasonableness. The existence of explicit provision for suspension
in
two instances in a detailed and complex statute is insufficient
basis, in my view, to negative the presumption that the legislature
intended the proportional result which the principle of suspension
will achieve. Moreover, the policy of our system of administrative
law, as reflected in section 7(2) of PAJA, normally imposes a duty to
exhaust domestic remedies. A complainant is usually obliged
to make
use of a statutory extra-judicial remedy before seeking review in a
court of law. Where noting a statutory appeal does
not have the
effect of suspending the administrative decision, the statutory
remedy will be ineffective to the extent that a court
could not in
good conscience impose the duty to exhaust the remedy. By effectively
allowing litigants to proceed directly to court,
the autonomy of the
administrative process would be undermined and the benefit of the
appellate tribunal's technical expertise,
access to relevant
information and know-how would be lost to the process - Koyabe v
Minister of Home Affairs -
2010 (4) SA 327
(CC) para 36-38.
38.
The
consequence of this finding is that the City was not entitled to
approve the building plans because the issue of the relaxation
of the
building line had not been finally determined and hence the approval
did not comply with the provisions of the STPS. The
approval
accordingly falls to be set aside on that ground alone on account of
illegality in terms either of section 6(2)(f)(i)
of PAJA or the
doctrine of the rule of law.
39.
The
City in its answering affidavit contended that Morrison was never
entitled to participate in any hearing relating to the relaxation
of
the building line as no provision is made for such in the Ordinance
or STPS. That may or may not be so, but the very existence
of a
building restriction area is for the benefit of neigbours and a
decision relaxing the building line will constitute administrative
action which materially and adversely affects the rights or
legitimate expectations of such persons and accordingly is required
to be procedurally fair in terms of section 3 of PAJA. Having decided
to grant Morrison a hearing to determine his objections,
the City
recognised him as an objector, and aggrieved as he was by the
decision of the City on the application in terms of Clause
10(2)(d)
of the STPS, he was entitled to appeal to the Board in terms of
section 139 of the Ordinance.
40.
As
I have said, the validity of the second ground of review is
sufficient to set aside the approval. I am accordingly disinclined
to
pronounce on the third ground of review which alleges that the
proposed alterations would contravene the STPS until such time
as the
SDP is amended to allow for the relaxation of the building line and
the erection of the proposed structure in the building
restriction
area. The issue is at the heart of the appeal pending before the
Board and may form the basis of a further application
for review of
the Board's decision. The Board as the mandated specialist tribunal
is better qualified to pronounce on the issue
after considering the
relevant policy considerations and hence it seems to me that it would
be inappropriate for this court to
pronounce on the issue at this
stage, especially when it is not necessary to do so.
41.
The
fourth ground of review has two components: firstly the City failed
to give proper consideration to the pending appeal and secondly
it
did not properly consider the impact of the approval on Morrison's
use and enjoyment of his property and the concomitant loss
of value.
The first allegation is in effect the second ground of review in a
different guise and is valid for the same reasons.
The second
allegation is again an issue at the heart of the appeal pending
before the Board and is best left for determination
by it.
42.
The
remaining ground of review, the first ground, is that the approval of
the building plans was illegal because the decision was
taken in the
absence of any report or recommendation by the Building Control
Officer.
43.
Section
6 of the Act requires that a Building Control Officer make
recommendations to the Local Authority in question regarding
any
plans, specifications, documents and information submitted to such
Local Authority in accordance with section 4(3), which relates
to the
approval of applications in respect of the erection of buildings.
Section
7 of the Act states as follows:-
"(1)
If a Local Authority, having considered a recommendation referred to
in Section 6(l)(a)-
(a)
is
satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof;
(b)
(i)
is not so satisfied; or
(ii)
is
satisfied that the building in which the application in question
relates -
(aa)
is to be erected in such manner or be of such nature or appearance
that -
(aaa)
the area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb)
it will probably or in fact be unsightly or objectionable;
(ccc)
it will probably or in fact derogate from the value of the adjoin or
neighbouring property;
Such
Local Authority shall refuse to grant its approval in respect thereof
and give written reasons for such refusal;"
44.
The
City in terms of section 7(1) of the Building Regulations Act has to
consider the recommendation referred to in section 6(l)(a)
of the
Building Regulations Act by the Building Control Officer.
45.
The
City filed a record in terms of the requirements of Rule 53 for
purposes of the review. In such record, no recommendation, as
referred to in Section 6(l)(a) of the Building Regulations Act by a
Building Control Officer was to be found.
46.
Notwithstanding
same, when the City filed their Answering Affidavit, they attached to
their Answering Affidavit, as Annexure "SN1",
what appears
to be a proforma document purporting to be such a recommendation. The
document reads as follows: -
"I,
CM Mabeba hereby state that I have scrutinised this building plan
application. It is my finding that this building plan
application
conforms with the requirements of Act 103 of 1977 and any other
applicable law, and I do not find any of the detrimental
condition
referred to in Section 7(l)(b)(ii)(aa) of Act 103 of 1977. This
recommendation is in accordance with the function that
has been
delegated to me by the Building Control Officer of the City of
Johannesburg in accordance with Section 6(4) of Act 103
of 1977."
47.
The
document purported to have been signed on 17 August 2012. Thereunder,
the following is stated: -
"I,
A Bouwer, hereby state that I have considered the above
recommendation for approval made in terms of Section 6(l)(a) of
Act
103 of 1977. I am satisfied that this building plan application
conforms with the requirements of Act 103 of 1977 and any other
applicable law, and I do not find any of the detrimental conditions
referred to in Section 7(l)(b)(ii)(aa) of Act 103 of 1977.
I
therefore approve this building plan application in accordance with
Section 7(l)(a) of Act 103 of 1977. This approval is in terms
of the
authority that has been delegated to me by the Executive Director:
Development Planning & Urban Management, City of
Johannesburg.
Signed and dated 17 August 2012."
48.
In
paragraph 43 of the replying affidavit Morrison stated that the
recommendation annexed to the answering affidavit was "surprising"
in view of it not forming part of the record of decision. It was
submitted that if the document existed at the time that the record
was filed, then it should have formed part of the record. Moreover,
it was pointed out that the City tendered no explanation for
the
report not forming part of the record and the document was not proved
by virtue of the author of the document not having made
an affidavit
in relation to it. The City did not respond to any of these
allegations and averments in the replying affidavit by
filing a
supplementary affidavit.
49.
Where
new material is introduced in a replying affidavit, especially where
it deals with inadequately particularised or explained
averments in
the answering affidavit, a respondent should file replicating
affidavits dealing with the new material and seek leave
for the
additional affidavit to be admitted. Failure to do so in the event of
a material dispute of fact arising, may result in
the averment in the
answering affidavit being held to be untenable or uncreditworthy and
the applicant's version being preferred
- Sigaba v Minister of
Defence and Police and another
1980 (3) SA 535(TKSC)
at 550F.
50.
While
the manner in which the City has dealt with the report in its papers
is inadequate, it is clear from paragraphs 49-54 of its
answering
affidavit that the City positively averred that it considered the
recommendation of the Building Control Officer. The
record shows that
there was prior correspondence with the Building Control Officer by
the representatives of Morrison and that
the plans were endorsed as
recommended by the Building Control Officer on the same day as the
plans were approved. These are indications
supporting the City's
assertion that it considered the recommendations. The late and
unexplained filing of the recommendation is
indeed suspicious but I
am not persuaded that it is sufficient to infer that the City has
fraudulently sought to mislead the court.
There is insufficient basis
for rejecting the averment of the City as untenable or uncreditworthy
and accordingly its version must
be accepted.
51.
In
argument, counsel for Morrison, Mr Rip SC, submitted that the report
of the Building Control Officer was defective by reason
of its
failure to elaborate on the factors considered before making the
recommendation. That case was not made out on the affidavits
and the
respondents were not called upon to meet that case. I agree with Mr.
Oosthuizen that Morrison should not be permitted to
change tack in
this way during argument. The case that the respondents were called
to meet was that no recommendation was made
or considered before
approval was granted and not whether or not the report of the
Building Control Officer was sufficient - see
Administrator,
Transvaal v Theletsane
[1990] ZASCA 156
;
1991 (2) SA 192
(A).
52.
In
the result, the first ground of review has not been substantiated on
the evidence.
53.
Be
that as it may, the application must succeed on the basis of the
second ground of review. The decision approving the building
plans
must be set aside and remitted to the City for reconsideration with
the direction that it should do so only once the appeal
in relation
to the consent for relaxation of the building line has been finally
determined by the Board or another court.
54.
Spilg
J in his order of 22 October 2012 ordered that the costs of the
urgent application will be costs in the cause of the review
application or the appeal before the Board whichever is disposed of
first. There is no reason why the costs of the review application
should not follow the result.
55.
In
the premises, the following orders are made:
i)
The
decision of the first respondent taken on 17 August 2012 to approve
the building plans submitted to it by the third respondent
is hereby
reviewed and set aside.
ii)
The
decision of the first respondent is remitted to it for
reconsideration with the direction that such reconsideration should
take place only once the question of consent for the relaxation of
the building line has been finally determined by the Gauteng
Township
Board on appeal or on review by another court.
iii)
The
first, second and third respondents are ordered to pay the costs of
this application, as well as the urgent application heard
by Spilg J,
jointly and severally, the one paying the other to be
absolved;
such costs to include the costs of employing two counsel and senior
counsel.
JR
MURPHY
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on
:
27 November 2013
For
the Applicant
:
Adv M Rip SC
Instructed
by
:
Ivan Pauw & Partners
For
the First and Second Respondents
: Adv SD Mitchell
Instructed
by
:
Mojela Hlazo Attorneys
For
the Third Respondent:
Adv
MM Oosthuizen SC
Instructed
by:
Rothmann
Phahlamohlaka Inc
Date
of Judgment
: