MAS Corporation (Pty) Ltd t/a MASCOR and Another v Umvoti Municipality and Another (2155/2013) [2013] ZAKZPHC 70 (12 April 2013)

78 Reportability

Municipal Law

Brief Summary

Municipal Law — Town Planning — Review of municipal decision — Applicants sought to review the approval of building plans by the Umvoti Municipality for renovations on property adjacent to their business — Applicants contended that the plans violated the Greytown Town Planning Scheme and the National Building Regulations — Municipality conceded to the illegality of its approval — Court held that the approval was unlawful and set aside the decision, directing compliance with the Town Planning Scheme before any occupancy certificate could be issued.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were motion proceedings in the KwaZulu-Natal High Court, Pietermaritzburg, in which the applicants sought relief arising from the approval by the first respondent municipality of building plans for renovations and alterations to the second respondent’s commercial property in Greytown. The matter was framed as an application for interim relief pending a review, but the court ultimately granted relief that reviewed and set aside the municipal approval of the plans and issued consequential interdictory and directive orders.

The first applicant, MAS Corporation (Pty) Ltd t/a MASCOR, conducted business in Greytown (including a filling station and vehicle and tractor dealerships). The second applicant, Mechanised Agricultural Supplies (Pty) Ltd, owned the immovable property from which the first applicant conducted its business. The first respondent was the Umvoti Municipality, the local authority responsible for building-plan approvals and administration of the Greytown Town Planning Scheme. The second respondent, 155 York Street CC, owned the adjoining commercial property on which renovations were being undertaken.

As to the procedural history, the municipality initially delivered a notice to abide (13 March 2013) and later consented to parts of the relief sought (by email dated 14 March 2013). The second respondent opposed the relief. The application was heard on 26 March 2013 and judgment was delivered on 12 April 2013.

The general subject-matter concerned compliance with the Greytown Town Planning Scheme and the National Building Regulations and Building Standards Act 103 of 1977, particularly the requirements relating to parking provision (or contribution in lieu) and the legality of municipal approval in the face of non-compliance.

2. Material Facts

It was common cause that the applicants’ and second respondent’s commercial properties fell within the jurisdiction of the Umvoti Municipality and that the Greytown Town Planning Scheme governed and applied to the properties. The applicants’ locus standi to bring the application was not disputed.

The applicants observed that renovations were being carried out on the second respondent’s property and commissioned planning consultants (Corpolo ITS CC t/a Greene Land) to investigate the lawfulness of the building works. The applicants’ case was that the renovations and alterations were being undertaken pursuant to building plans approved by the municipality, but that the approval was in conflict with the Town Planning Scheme and the applicable regulatory framework.

A central factual premise relied upon by the court was the Town Planning Scheme’s requirement that, in a general commercial zone, off-street parking must be provided at a specified ratio (stated in the judgment as one off-street bay per 23 square metres of gross shop area), which (on the applicants’ version) meant the second respondent should have provided 19 off-street parking bays. The court accepted that the Town Planning Scheme was not inflexible because it provided an alternative mechanism: where on-site parking could not be provided, an owner could be required to make a cash contribution to a parking fund in lieu of providing bays, and this was an aspect to be considered when plans were approved.

On the facts as accepted, the second respondent did not make the payment contemplated by the scheme as a contribution in lieu of parking. The court also accepted the applicants’ contention that the municipality appeared not to have applied its mind to these provisions when approving the plans. The applicants had engaged the municipality through correspondence and meetings (including a letter to the municipal manager dated 7 December 2012, meetings thereafter, and further correspondence including 29 January 2013), but the issue remained unresolved.

The second respondent’s position was that it had submitted plans to the municipality’s town planning department and the plans were approved before building commenced. It contended that if it had been aware of the scheme requirements, it would have complied, and that it had been offered an opportunity by the municipality to do so. The second respondent also contended that it would suffer prejudice if relief were granted because it had secured a tenant (Ackermans). However, critically for the outcome, the second respondent conceded an irregularity in the sense of non-compliance with the Town Planning Scheme, and indicated an intention to seek relaxation of the rules and to contribute to the parking fund. The court treated this concession as materially altering the complexion of the dispute.

3. Legal Issues

The central legal questions the court was required to determine were whether the applicants, as neighbouring owners/affected parties, had a sufficient interest to seek enforcement of the Town Planning Scheme and to challenge municipal approval; and whether the municipality’s approval of the building plans, in circumstances of non-compliance with the Town Planning Scheme’s parking requirements (including the absence of a contribution in lieu), amounted to illegal administrative action that could not be permitted to stand.

The dispute principally concerned the application of law to fact. The court was required to apply the governing planning framework and the principle that courts will not sanction illegality to the factual matrix of an approved plan alleged to be in conflict with the Town Planning Scheme. To the extent that there were factual disputes about prejudice and the tenant’s parking needs, the judgment treated the decisive consideration as the illegality conceded and the municipality’s failure to comply with its scheme, rather than a balancing of competing commercial conveniences.

4. Court’s Reasoning

The court approached the matter from two principal legal starting points: standing to enforce town planning compliance, and the imperative of legality and the rule of law in municipal decision-making.

On standing, the court accepted the view expressed by Plasket AJA in JDJ Properties CC and Another v Umngeni Local Municipality and Another 2003 JOL 29814 (SCA), namely that a landowner has a sufficient interest to clothe it with locus standi to enforce compliance with a town planning scheme. The court treated the facts in JDJ Properties as closely comparable and accepted that the applicants had a right to enforce the scheme, which supplied the necessary standing.

On legality, the court held that it was trite that courts cannot enforce or sanction illegal acts by a municipality. The judgment emphasised that the rule of law must be upheld irrespective of municipal ineptitude or failure to apply the Town Planning Scheme and to adhere to the National Building Regulations framework. In this context, the municipality’s conduct was assessed against the Town Planning Scheme provisions requiring either the provision of on-site parking or the alternative contribution mechanism, which the court accepted had not been properly considered when the plans were approved.

The municipality’s stance was significant: it had consented to the setting aside of the building plans and to the non-issuance of an occupation certificate until compliance. The court treated the second respondent’s acceptance that there was an illegality in the municipality’s actions as decisive. Although the second respondent proposed to regularise the position by applying for relaxation and contributing to the parking fund, the court found that this did not cure the unlawfulness of the existing approval. Once illegality was conceded, the defences advanced by the second respondent were regarded as falling away, and the court concluded that it was prohibited from sanctioning the municipality’s illegal approval.

In exercising its discretion as to the appropriate relief, the court granted review and interdictory orders aimed at preventing continued building works and occupation pending compliance with the applicable scheme and lawful approval.

5. Outcome and Relief

The court reviewed and set aside the decision of the Umvoti Municipality approving the building plans for renovations and/or alterations to the second respondent’s property at 117 Pine Street, Greytown.

The municipality was directed not to issue a completion and/or occupation certificate under section 14(1) of the National Building Regulations and Building Standards Act 103 of 1977 until the second respondent had complied with the Greytown Town Planning Scheme.

The second respondent was directed to cease forthwith any alterations, electrical installations, and/or building works of whatever nature at the premises until it had complied with the Greytown Town Planning Scheme. The second respondent was also directed not to allow any tenant to occupy the premises prior to the approval of the building plans by the municipality.

On costs, the court reserved the issue and adjourned it for argument, indicating that it wished the municipality to address why it should not bear the costs of the application in light of the evidence.

Cases Cited

JDJ Properties CC and Another v Umngeni Local Municipality and Another 2003 JOL 29814 (SCA).

Legislation Cited

National Building Regulations and Building Standards Act 103 of 1977 (including section 14(1)).

Local Government: Municipal Structures Act 117 of 1998.

Close Corporations Act 69 of 1984.

Ordinance 27 of 1949 (including section 40).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that neighbouring landowners had standing to enforce compliance with a town planning scheme and to challenge municipal approval of building plans that conflicted with that scheme. It held further that courts are not permitted to sanction or allow to stand illegal municipal conduct, and that the conceded non-compliance with the Greytown Town Planning Scheme rendered the municipality’s approval unlawful.

Accordingly, the municipal approval of the plans was reviewed and set aside, the municipality was interdicted from issuing an occupation/completion certificate pending compliance, and the second respondent was ordered to stop works and not to permit occupation pending lawful compliance and approval. The question of costs was reserved for later argument, with the municipality to be heard on why it should not bear the costs.

LEGAL PRINCIPLES

The judgment applied the principle that an affected landowner has a sufficient and direct interest to confer locus standi to seek enforcement of a town planning scheme, including by challenging municipal approvals that undermine scheme requirements.

It also applied the foundational principle of legality: a court will not sanction, enforce, or permit the continuation of illegal administrative action by a municipality, and the rule of law must be upheld even where illegality results from municipal failure to apply the governing planning and building regulatory framework.

Finally, the judgment reflected that subsequent offers to regularise or cure non-compliance (such as proposed relaxation applications or contributions in lieu of parking) do not, without more, retrospectively validate an approval found to have been taken unlawfully at the time it was made.