About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 170
|
|
Qualidental Laboratories (Pty) Ltd v Heritage Western Cape and Another (647/06) [2007] ZASCA 170; [2007] SCA 170 (RSA); [2008] 1 All SA 550 (SCA); 2008 (3) SA 160 (SCA) (30 November 2007)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 647/06
REPORTABLE
In
the matter between:
QUALIDENTAL LABORATORIES (PTY) LTD
................................
APPELLANT
and
HERITAGE WESTERN CAPE
................................
FIRST RESPONDENT
THE HERITAGE INSPECTOR
................................
SECOND RESPONDENT
Coram:
Howie P, Navsa, Van Heerden, Mlambo JJA et Malan AJA
Heard:
16 November 2007
Delivered:
30 November 2007
Summary: National
Heritage Resources Act – demolition permit with condition –
whether provincial heritage resources authority
has the power to
impose conditions when granting demolition permit in respect of
structure enjoying no formal protection in terms
of the Act –
condition not in conflict with principle of legality.
Neutral citation:
This judgment may be referred to as
Qualidental
Laboratories v Heritage Western Cape
[2007]
SCA 170 (RSA).
___________________________________________________________
JUDGMENT
___________________________________________________________
MLAMBO JA
[1] This appeal
concerns the powers of a provincial heritage resources authority
established in terms of the National Heritage Resources
Act 25 of
1999 (the Act).
[2] The appellant
sought, on an urgent basis, the review and correction of a demolition
permit issued by the first respondent, a provincial
heritage
resources authority; the review and setting aside of a stop works
order issued by the second respondent, a senior heritage
inspector;
and certain ancillary relief. In turn the first respondent, in a
counter application, sought to interdict the appellant
from
continuing with certain building work pending inter alia the
finalisation of the application. The matter came before Davis J
sitting in the Cape High Court who dismissed the application but
granted the appellant leave to appeal to this court. The judgment
of
the court
a
quo
has
been reported: see
Qualidental
Laboratories (Pty) Ltd v Heritage Western Cape and another
2007 (4) SA 26
(C).
[3] The facts giving
rise to the litigation are largely common cause. The appellant is the
owner of immovable property situated at
erf 4953 (also known as 6
Marsh Street), Mossel Bay, Western Cape (the property). On the
property was built a cottage (called an
annex by the parties) and a
villa both of which the appellant wanted demolished to make way for
an apartment block development on
the property. It applied to the
first respondent for a permit for the total demolition of the villa
and the annex as these buildings
were older than 60 years and in
terms of the Act could not be demolished without a permit.
[4] Upon receipt of
the application and after consideration the first respondent
requested the appellant to file a heritage statement
from a heritage
practitioner containing information in terms of which the proposed
demolition could be considered. That statement
having been filed by
the appellant’s heritage consultant, Mr Christopher Snelling,
the first respondent issued a permit approving
the demolition of the
annex but not the villa and attached a condition to the demolition.
The condition is to the effect that the
plans for the intended
development on the property were to be submitted to it for final
approval. The full record of decision reads
as follows:
‘•
The
committee decided not to approve the application for total
demolition, but has approved the demolition of the annex building.
•
The
committee feels that the building has intrinsic quality and
contextual value and sites it in a Grade 3 area.
•
Plans
for any new development on the property must be submitted to HWC [the
first respondent] for approval.
•
The
new development must be subsidiary to the main building in terms of
massing, scale, sighting and location.
•
The
building will be put on the Heritage Register.’
[5] The record of
decision also mentioned that the decision was subject to a general
appeal period of 14 working days and could be
suspended, should an
appeal against the decision be received by the first respondent
within 14 days from the date the record of decision
was issued. It is
the imposition of the condition that plans for any new development on
the property be submitted to the first appellant
for final approval
that is at the centre of the litigation. I return to this aspect
later.
[6] After receiving
the permit the appellant submitted its building plans for the
proposed development to the Mossel Bay Municipality
which approved
them subject to the proviso that the appellant comply with any
condition imposed by the first respondent. The building
plans were
thereafter submitted to the first respondent by the Mossel Bay
Municipality for approval but were found inappropriate
and were as a
result not approved. The first respondent’s reasons for not
approving the building plans were essentially that
(a) as the
envisaged apartment blocks were to be constructed in the vicinity of
the villa, part of the development would obscure
the most important
aspect and view of the villa from Marsh Street; and (b) that the
proposed development was intrusive and out of
keeping with the
context created by the villa and other buildings in the surrounding
area, such as the St Blaize Terraces. It was
felt that the
development would, in fact, make a mockery of the villa’s
landmark status.
[7] The appellant
thereafter proceeded to demolish the annex and, despite the lack of
final approval for its building plans by the
first respondent,
commenced the construction of the apartment blocks on the property.
News of the construction soon reached the first
respondent and
Mr Bewin September, a senior heritage inspector and the second
respondent herein, accompanied by another heritage
officer, decided
to investigate. On arrival at the property they observed that the
annex had been demolished and that an excavation
had taken place,
that concrete footings and a slab had already been laid with the
principal external walls already up to ground level
including what
appeared to be a basement. Steel reinforcements for concrete columns
were already in place. The second respondent
entered into discussions
with the appellant’s contractor and officials from the Mossel
Bay Municipality’s Planning Department
in an attempt to resolve
the situation. As construction continued unabated without final
approval of the building plans, the second
respondent issued and
served a stop works order on Mr Roy Freedman, a director of the
appellant, stating that it had come to the
first respondent’s
attention that he was ‘responsible or is partly responsible for
alleged illegal alteration to a structure
older than 60 years,
without fulfilment of Permit conditions (Permit no 2005/03/015) dated
2005/03/07 in terms of s 48(2)(c)
as per the
National Heritage
Resources Act’ and
that he was therewith ‘formally
ordered’ in terms of the Act to immediately cease all works
until further notification
and that failure to comply with the order
could result in the criminal prosecution of Mr Freedman and/or the
owner of the property.
[8] It was the
threat of a criminal prosecution rather than the stop works order
that appears to have had the desired effect and to
have been the
catalyst that galvanised the appellant into launching its ill-fated
application before Davis J in the court
a
quo
.
Central to the matter is the competence of the first respondent to
impose the condition regarding the submission of building plans
to it
for final approval.
[9] Any entity like
the first respondent exercising public power is confined to
exercising only such powers as are lawfully conferred
upon it –
this is the principle of legality. See
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at 399 para 56 and
Pharmaceutical
Manufacturers Association of SA: In re Ex Parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at 699 para 50.
[10] It is prudent
at this stage to consider the statutory framework. In broad outline
the scheme of the Act encompasses general principles
underpinning the
management of heritage resources; the establishment of heritage
resources authorities and their functions, responsibilities
and
powers; the protection and management of heritage resources including
formal and general protection as well as general provisions
incorporating the competence of provincial heritage resources
authorities to grant or refuse permits. An overview of the Act shows
that its overarching objective is the identification, protection,
preservation and management of heritage resources for posterity.
1
This objective also
finds resonance in clause 24(b) of the Constitution.
[11] The first
respondent was established in accordance with s 23 of the Act in
terms of Provincial Notice 336 dated 22 October 2002,
published in
the Provincial Gazette, by the Member of the Executive Council
responsible for cultural affairs in the Western Cape.
In terms of s 8
the first respondent, as a provincial heritage resources authority,
is responsible for the identification and management
of heritage
resources in the Western Cape that have special qualities making them
significant within a provincial context. A heritage
resource is
defined in s 1 as a place or object of cultural significance. In
terms of s 5 heritage resources management should recognise
that
heritage resources have lasting value and are finite, non-renewable
and irreplaceable. In view of this, heritage resources have
to be
carefully managed to ensure their survival to be preserved for
succeeding generations.
[12] Section 34(1)
is the section in terms of which the appellant was obliged to apply
for a permit for the authority to demolish
the villa and annex. This
section reads:
‘
34.
Structures (1) No person may alter or demolish any structure or part
of a structure which is older than 60 years without a permit
issued
by the relevant provincial heritage resources authority.’
It is evident that s
34(1) contains a general protection against the alteration or
demolition of any structure or part thereof which
is older than 60
years without a permit issued by the relevant provincial heritage
resources authority. In turn s 34(2) provides
that in the event of
the refusal of a provincial heritage resources authority to issue a
permit regarding the demolition or alteration
of a generally
protected structure it must consider bringing the structure concerned
within any of the formal protections set out
in the Act.
[13] It is common
cause that neither the property nor the villa is a declared national
or provincial heritage site as contemplated
in s 27. They also do not
enjoy provisional protection in terms of s 29, nor are situated
within a designated protected area within
the meaning of s 28. They
are, furthermore, not listed in a heritage register in terms of s 30,
nor designated as a heritage area
in terms of s 31, nor declared
heritage objects as contemplated in s 32. The property does, however,
fall within an area proposed
by the Municipality’s consultants
as being worthy of consideration as an urban conservation area in
terms of the local zoning
scheme.
[14] The granting or
refusal of demolition permits is regulated by s 48. Section
48(2) is relevant for present purposes and reads:
‘
(2)
On application by any person in the manner prescribed under
subsection (1), a heritage resources authority may in its discretion
issue to such person a permit to perform such actions at such time
and subject to such terms, conditions and restrictions or directions
as may be specified in the permit, including a condition–
(a) that the
applicant give security in such form and such amount determined by
the heritage resources authority concerned, having
regard to the
nature and extent of the work referred to in the permit, to ensure
the satisfactory completion of such work or the
curation of objects
and material recovered during the course of the work; or
(b) providing for
the recycling or deposit in a materials bank of historical building
materials; or
(c) stipulating that
design proposals be revised; or
(d) regarding the
qualifications and expertise required to perform the actions for
which the permit is issued.’
It is evident that
in terms of s 48(2) the first respondent has a discretion insofar as
the granting or refusal of a permit is concerned.
The first
respondent also has a discretion regarding the imposition of any
terms, conditions, restrictions or directions when granting
a permit.
[15] The appellant’s
stance in the court
a quo
and before us is
that, properly construed s 34, providing as it does for general
protection against alteration or demolition, does
not clothe the
first respondent with the power to impose the condition and
particularly not in relation to the villa for which permission
to
demolish was refused. In the appellant’s view the full extent
of the first respondent’s power in the circumstances
of this
case was only to authorise the demolition of the annex and impose
conditions in that regard and nothing further.
[16] It was further
submitted in relation to the villa that the only power which the Act
confers upon the first respondent is to protect
it from alteration or
demolition but that the first respondent enjoys no power to regulate
any other construction on the property.
Counsel submitted that the
imposition of the condition in the demolition permit was thus beyond
the first respondent’s powers.
Counsel labelled the condition
as one the objective of which was to control development which he
submitted was not authorised by
s 48 and was beyond the first
respondent’s power. It was further submitted that the powers
contained in s 48(2) (in terms of
which the condition was imposed)
which entitle the first respondent to impose a condition that design
proposals be revised, are exercisable
only in the context of control
by a heritage resources authority over the alteration or development
of heritage resources which enjoy
formal protection in terms of the
Act through the provisions referred to in paragraph 13 above. In so
far as the stop works order
is concerned, it is sought to be set
aside on the basis that its validity is predicated upon the
effectiveness of the condition the
validity of which is impugned.
[17] It is common
cause that the appellant’s application for a permit, though
specifying the villa and the annex, envisaged
a single structure
whose total demolition was sought. The sketch plan submitted with the
application depicts a single structure even
though in actual fact
only the roof overlapped between the two buildings which were at
least a metre apart. The annex was built directly
adjacent to the
villa with its flat roof effectively a continuation of the lean-to
roof of the villa’s kitchen and pantry.
It is also apparent
that the first respondent treated the application in the same light.
It is clear from the stance adopted by the
first respondent that when
it approved the demolition of the annex and not of the villa it was
in effect approving the partial demolition
of a single structure.
[18] The first
respondent clearly considered the villa, in respect of which
permission to demolish was refused, to be a building of
considerable
cultural significance and worthy of preservation in its particular
context. In this regard the aesthetic importance
of the villa was
emphasized in the appellant’s heritage report compiled by its
heritage consultant, Mr Snelling. The report
inter alia records:
‘
The
aesthetic/contextual
value
of
the building is considered to be high in terms of its local content.
It is however felt that this significance has been compromised
by the
annex addition. Given the urban feel of much of Mossel Bay, resultant
from what Fransen describes as its restricted layout,
6 Marsh Street
presents an interesting and elegant departure from the established
building pattern that indicates the building had
once enjoyed some
considerable status. Indeed the building and site could be considered
to be of landmark quality . . .. The Landmark
quality is further
enhanced by the placement of the main gables to the building,
positioned to address the street and be visible
from all approaches.
This is a building that was designed in order to be noticed . . ..’
Therefore any new
development that would detract from the villa and its surrounds would
be contrary to the first respondent’s
obligation to protect and
conserve the villa’s landmark status.
[19] The condition
imposed by the first respondent therefore accords with its
conservation mandate in terms of the Act and is directly
in line with
the principles of heritage resources management set out in ss 5 and
6. The imposition of the condition is also within
the parameters, not
only of the Act but is consonant with the overall scheme of the Act.
The first respondent’s power to impose
conditions in my view is
not as narrowly circumscribed as contended for by the appellant.
[20] I may add that
the purpose and effect of the condition is designed to enable the
first respondent to exercise a power vested
in it in terms of the Act
and which, as pointed out, is consonant with the overall objective of
the Act ie the conservation of a
heritage resource. Therefore the
condition, rather than being one aimed at controlling development, as
contended by the appellant,
was in actual fact a condition with a
conservation objective. It must also follow that, the condition
having been validly imposed,
the stop works order is also
unimpeachable.
[21] The court
a
quo
was
therefore correct in dismissing the application and this appeal must
fail.
[22] Having come to
this conclusion it becomes unnecessary to consider the other two
issues raised by the first respondent regarding
the failure of the
appellant first to exhaust its internal remedies as set out in s 49
before launching its court application, as
well as its failure to
bring the application within the prescribed time limit, both as
required by s 7 of the Promotion of Access
to Justice Act 3 of 2000.
[23] In the
circumstances the following order is made:
The appeal is
dismissed with costs including the costs consequent upon the
employment of two counsel.
________________
D
MLAMBO
JUDGE
OF APPEAL
CONCUR:
HOWIE
P
NAVSA
JA
VAN
HEERDEN JA
MALAN
AJA
1
In
this regard the preamble to the Act is of relevance. It reads:
‘
This
legislation aims to promote good management of the national estate,
and to enable and encourage communities to nurture and
conserve
their legacy so that it may be bequeathed to future generations. Our
heritage is unique and precious and it cannot be
renewed. It helps
us to define our cultural identity and therefore lies at the heart
of our spiritual well-being and has the power
to build our nation.
It has the potential to affirm our diverse cultures, and in so doing
shape our national character. . . .’