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[2012] ZAKZPHC 63
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Turnbull-Jackson v Hibiscus Coast Municipality and Others (7929/2009) [2012] ZAKZPHC 63 (26 September 2012)
49
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: 7929/2009
TREVOR TURNBULL-JACKSON
..........................................................
APPLICANT
and
HIBISCUS COAST MUNICIPALITY
.......................................
FIRST
RESPONDENT
PEARL STAR INVESTMENTS CC
....................................
SECOND
RESPONDENT
MEC FOR AGRICULTURE AND
ENVIROMENTAL AFFAIRS, PROVINCE
OF KWAZULU-NATAL
...........................................................
THIRD
RESPONDENT
JUDGMENT
SISHI J
Introduction
[1] The applicant and the second
respondent are the owners of the two pieces of immovable properties
situated adjacent to each other
in Margate, South Coast. On 20
February 2007 the first respondent (“the municipality) approved
a set of building plans for
two three storey blocks of flats on the
second respondent’s premises (“the 2007 plans”).
These two three storey
blocks of flats, were to be built upon Lot
3371 Margate, a property owned by the second respondent. In this
review, the applicant
seeks to review and set aside that approval.
The Parties
[2] The applicant is the owner of
immovable property described as the remainder of Erf 75, Ramsgate,
Registration Division ET, Province
of KwaZulu-Natal, measuring 4195
square metres in extent. The applicant runs a guest house in the said
premises.
[3] The first respondent is Hibiscus
Coast Municipality, a local government municipality, which has its
address at Civic Offices,
Connor Street, Port Shepstone,
KwaZulu-Natal.
[4] The second respondent is Pearl
Star Investments 14 CC, a close corporation duly registered and
incorporated in terms of the
laws of the Republic of South Africa.
The second respondent is the property developer.
[5] The third respondent is the MEC
for Agriculture and Environmental affairs, Province of KwaZulu-Natal,
joined in these proceedings
by virtue of the direct and substantial
interest he has in the matter. No relief is sought against the third
respondent.
The location of the properties
[6] The applicant is the owner of
remainder of Erf 75 Ramsgate. A portion of the eastern boundary of
which is a common boundary
with lot 3371, which is the property owned
by the second respondent (hereinafter referred to as “the
developer”) to
which the subject plans relate. The applicant’s
property is situated at the higher level than that of the second
respondent.
[7] To the south west of both the
applicant and the second respondent’s properties and adjacent
to Erf 3378 is the Indian
Ocean. To the sea side of both properties
and to the boundary with the second respondent’s property is
Erf 3378 which is
owned by the Municipality.
[8] Applicant’s property has
180º sea views whilst overlooking lot 3371 Margate. The sea is
situated to the south of
the applicant’s property.
[9] The second respondent’s
property was developed many years ago by the construction of a
dwelling house and associated structures
including a retaining wall.
The original dwelling house has since been demolished but the
retaining structures remain in situ.
Background
[10] After the approval of plans on 20
February 2007, applicant lodged an appeal against the approval of the
building plans in terms
of section 62(1) of the
Local Government
Municipal Systems Act, No.32 of 2000
. The applicant’s appeal
was dismissed by the Hibiscus Coast Municipality Appeals Board on 7
November 2007.
[11] Under Case Number 9105/2008, in
this court, applicant applied to review and set aside the decision of
the Hibiscus Coast Municipality
Appeals Board. Under that case, the
proceedings and decision of the Appeal’s Board were set aside
by the High Court of KwaZulu-Natal,
Pietermaritzburg on 31 August
2009 and applicant was granted leave to institute review proceedings,
to review and set aside the
approval by the first respondent of the
second respondent’s plans on 20 February 2007. Applicant
complied with the terms
of the Court Order, granting it leave to
institute these proceedings.
[12] The appeals noted by the
applicant against the approval of both the 2005 and the 2007 plans
were finalised before the decisions
of the
Constitutional Court
in
Welele v City of Cape Town 2008(6) SA 129 (CC) and of the
Supreme Court of Appeal in City of Cape Town v Reader and Others
2009(1)
SA 555 (SCA)
.
[13] These decisions found that
persons such as the applicant never actually had
locus standi
to note an appeal against the approval of the building plans. Thus,
the so-called appeals hearings which were conducted by the
municipality in ignorance of this fact were legally of no force and
effect.
Provisions of the Town Planning
Scheme
[14] Properties within the Municipal
Area of jurisdiction fall within various planning schemes for
different areas. These schemes
make provision for properties to be
zoned into different categories. The zoning of a property determines
the uses to which it may
be put and the uses which may be permitted
with the consent of the neighbours or with special consent. The
scheme clauses also
prescribe matters such as height of buildings
permitted in each zone and other building controls such as the site
space and the
building line which are the lines from the edge of the
property which building must ordinarily be contained.
[15] Applicant and the second
respondent’s properties both fall within the provisions of the
Margate Town Planning Scheme.
The scheme permits six storey
developments without any form of special consent or other permission.
The developer’s property
is zoned general residential and the
Margate Scheme provides that in such zoning development consisting
more than three storeys
require the building be recessed away from
the normal building lines and side spaces on the lot by a specified
distance for each
additional storey. The scheme also contains
provisions relating to basements. This aspect will be dealt with
later on in this judgment.
But, in terms of the planning scheme, the
lowest floor of the building may qualify as the basement if it meets
the criteria set
by the scheme. These criteria relate both to the use
to which the floor is put and to the volume thereof which is below
ground.
If both of these criteria are met then the floor does not
count as the storey for the purposes of the height limitations in the
scheme. It is consequently possible to have three storeys and a
basement without special consent.
The history of the plans,
approvals, appeals and litigation
[16] It is common cause or not in
dispute that as at 14 November 2006 and at the time that the second
respondent submitted plans
to the first respondent to erect two
three-story blocks of flats comprising a total of 9 flats upon Lot
3371 Margate, which is
owned by second respondent; the position was
that:
(a) In 2003, second respondent had
applied to construct a six storey block of flats on Lot 3371 Margate.
In February 2004, first
respondent approved the plans, applicant
appealed the approval and the approval was set aside on appeal.
(b) Between the approval and the
setting aside of the approval, second respondent had nevertheless
commenced construction. Applicant
had to apply to Court under Case
Number 11103/04, to hold construction but the lower elements of the
proposed six storey block
of flats had already been constructed. The
construction was substantial.
[17] In 2005 second respondent lodged
plans to construct two blocks of flats, of three storeys each nine
flats upon Lot 3371 Margate.
In these plans (“2005 plans”)
second respondent, sought to incorporate and justify the three storey
construction of
one block, block “A” which already
existed on site. Applicant objected to the 2005 plans, but they were
approved by
Mr
Van der Walt of the first respondent.
[18] The applicant immediately
launched an appeal against the approval of the 2005 plans in which
applicant contended that the building
control officer of the first
respondent was not appropriately qualified and was incorrectly
appointed; that the so called basements
of the two proposed blocks,
especially that of block “A”, (which had already been
constructed, was above the ground
and was a storey and not a
basement; that the erection of the flats would disfigure the area,
would be unsightly and affect the
views, would be overbearing and
affect applicant’s privacy and would derogate and diminish the
value of the applicant’s
property. The first and the second
respondent were furnished by the applicant with and expert witness
opinion by skilled and experienced
property evaluator which stated
that the construction of two blocks of flats on Lot 3371 Margate
would diminish the value of the
applicant’s property between
20% and 30%.
[19] As it had previously done, second
respondent continued construction upon Lot 3371 Margate between the
plans being approved
and the appeal lodged by the applicant against
the approval being heard.
[20] In the time between the plans
being approved and the appeal lodged by the applicant against the
approval being heard under
Case Number 11723/05 applicant launched
proceedings in the Durban High Court against first and second
respondents for multifacet
relief which included an interdict to stop
construction on Lot 3371 Margate and a
declarator
that the
basements of the second respondent’s proposed blocks (and in
particular block “A” – which had
already been
constructed in 2004) were in fact not basements at all but storeys.
The challenges to the first respondent and second
respondent’s
status and conduct and the complaints raised by applicant are the
same as those raised in the appeal set out
above and were placed
before the Court under Case Number 11735/05.
[21] After Case Number 11723/05 was
launched and in September 2005, the approval of the 2005 plans by Van
der Walt of the first
respondent was set aside on appeal.
[22] According to the first
respondent, the applicant’s appeal against the approval of 2005
plans was upheld on the basis
that the second applicant’s wall
encroached into the side space and no special consent had been
obtained for this encroachment.
The first respondent contended that
it was consequently unnecessary to determine the other issues raised
in the appeal.
[23] In October 2005 and in the
context of Case Number 11723/05 (and the Declarator sought therein
concerning the basement/storey
dispute which it was agreed would be
pursued and was still pending) so that the question of the
interpretation of the scheme could
be resolved because there was
likely to be at issue at any subsequent plans which the developer
submitted.
The undertaking
[24] It appears from the
correspondence which has passed between the parties and affidavits
filed in this and other proceedings
that the applicant contented that
the second respondent gave him an undertaking that it would not lodge
any plans for development
of Lot 3371 whilst the issue of the scheme
relating to basement was being resolved by the Courts in the 2005
application. The developer
on the other hand contends that what was
agreed was that it would not submit any plans until the time that it
showed these to applicant
and he had had a chance to comment.
[25] The applicant contends that the
second respondent gave an undertaking, recording in writing by the
Attorneys acting for both
applicant and second respondent that second
respondent would not lodge fresh plans with first respondent in
respect of Lot 3371
Margate, until the Court had determined the issue
of the basement under Case Number 11723/05. The first respondent was
aware of
the undertaking.
[26] Notwithstanding the aforegoing,
and on 14 November 2006 second respondent lodged fresh plans with the
first respondent to construct
two blocks of flats comprising nine
flats upon Lot 3371 Margate and Van der Walt, the same person who had
approved the plans in
2004 and the 2005 for the second respondent and
whose approval for those plans had been set aside on appeal on both
instances,
apparently approved these building plans on the 20
February 2007.
[27] The contention by the applicant
is that the 2005 plans are substantially the same plans submitted by
the second respondent
to the first respondent on 14 November 2006.
[28] According to the applicant, the
first plans submitted on 14 November 2006 by the second respondent,
differ from the 2005 plans
only in the following respects:
The contours of the land upon which
the proposed structures are depicted had been altered/literally
manipulated;
Block “B” (whilst still
of the same, “footprint”, size and dimensions as in the
2005 plans) had been positioned
differently on the plan;
Block “A” (which seeks to
justify and incorporate the existing structure on site) whilst being
of the same “footprint”,
size and dimensions as Block
“A” in the 2005 plans has been adjusted in one minor
respect by the inclusion of a fire
escape – the “footprint”
and dimensions of the building are otherwise identical.
[29] The contention by the second
respondent which was made in the context of challenging the legal
effect of an undertaking given
by the applicant was that plans
submitted on 14 November 2006 by the second respondent are
“completely different”.
[30] The first respondent has
contended that the applicant has avoided stating in these proceedings
that the applicant’s attorneys
sought an undertaking from the
Municipality that it would not consider any plans which might be
lodged by the developer pending
the determination of the issue of the
basement by the Court dealing with the 2005 application. The
Municipality refused to give
such an undertaking because it was of
the view that it was not permitted to contract out of its statutory
obligation to consider
any plans submitted. This is stated by the
applicant himself to be the position in paragraph 31 of the affidavit
in the 2007 application.
The fate of the 2005 Application
[31] It came to the attention of the
first respondent that the Court might be reluctant to grant a
declarator in vacuo
and consequently that if the question of
basement were to be determined in 2005 application, it would be
necessary for further
affidavits to be filed in those proceedings
once new plans had been drafted by the developer so that a
determination can be made
on relevant facts.
[32] The 2005 application was
adjourned sine die on the basis of the understanding between the
applicant and the second respondent
that if necessary in due course,
further papers would be filed in the 2005 application to have the
basement issue resolved. If
that did not occur, then these affidavits
would have to be served on the first respondent as a party to the
2005 application, but
as far as the first respondent was concerned,
the matter was adjourned sine die and there was nothing which
affected its duty to
consider the plans.
The 2007 plans
[33] On 20 February 2007, the
Municipality approved the new set of plans again for two three storey
blocks of flats. These are referred
to as “2007 plans”
although N Naidu filed an affidavit in this Court stating that he had
approved the plans, Van der
Walt has alleged in his affidavit that
this was an error, it was him who had recommended the approval of the
2007 plans. The applicant
noted the internal appeal against the
approval of the 2007 plans and launched an application in the Durban
High Court under the
case number of the 2005 application for an
interdict prohibiting construction in accordance with 2007 plans
until his appeal had
been finalised. On 17 August 2007, the
application for an interim relief was adjourned sine die and an order
was granted by consent
in terms of which the developer undertook not
to perform any further construction work until the expiry of three
days after the
date upon which the decision in the appeal was handed
down.
The 2007 application
[34] The appeal was dismissed on 7
November 2007. On 5 December 2007, the applicant launched subsequent
litigation at the Durban
High Court under Case Number 14748/2007.
This is referred to as “the 2007 application”. In the
2007 application, the
applicant sought an order interdicting the
developer from carrying on with the building operations on the
strength of the 2007
plans pending the determination of the review
relief sought in the 2005 application and giving him leave to
supplement its founding
papers of the earlier application to take
account events which had occurred since its launch.
[35] The tenure of the applicant’s
affidavit in the 2007 application appears to be that he sought to
enforce a contractual
right he claimed to have against the developer
arising out the undertaking. The applicant contended that the
undertaking had been
breached.
The 2008 application
[36] This, notwithstanding, and
apparently pursuant to the position he adopted in the 2007
application that fresh proceedings were
desirable, the applicant
launched a review application under case number 9105/2008 (“the
2008 application”) in which
he sought to review and set aside
not the initial approval of the 2007 plans but the dismissal of his
appeal. The 2008 application
was served on the municipality on 4 June
2008, by that time the decision in Walele had been handed down but
the decision in Reader
had not. It appears that there was some
confusion as to the important meaning of the judgment in Walele and
the municipality consequently
nonetheless filed such record as it was
able to on 2 September 2008 which it augmented on 20 October 2008.
[37] Thereafter, and on 14 November
2008, the decision in Reader, was handed down and it became plain
that the applicant had never
had an appeal and indeed had no right to
be involved in the approval process and to object during that
process.
[38] The applicant was, however,
undeterred by this authority and in the 2008 application launched an
interlocutory application
to compel the municipality and the official
who had heard the appeal to furnish “
a complete and coherent
record of the appeal proceedings”
as the applicant
contended that the record provided was deficient.
[39] The municipality responded by
pointing to the effect of the judgments in Walele and Reader and
contending that in the light
thereof the 2008 application was
ill-founded. Indeed, the municipality’s attorneys had written
to those acting on behalf
of the applicant inviting them to withdraw
the 2008 application for a review and the application interlocutory
thereto so as to
avoid unnecessary costs being incurred but the
applicant refused to do this. Instead, at the hearing of the 2008
application before
Swain J on 31 August 2009, the applicant’s
counsel sought to distinguish his situation from that in
Walele
and
Reader
and persisted in seeking an order in terms of the
interlocutory application.
[40] Swain J agreed with counsel who
argued on behalf of the municipality that the effect of the decisions
in
Walele
and
Reader
was to render the domestic appeal
non est
but was of the opinion that in light of the principles
enunciated in Oudekraal Estates v City of Cape Town, it would be
proper
for the sake of good order to set aside that decision so that
there could be no confusion about whether it did or did not have
consequences although legally it was a nullity. It was on this basis
and this basis alone that an order was made setting aside the
decision of the appeal tribunal.
[41] The first respondent submitted
correctly that the applicant does not disclose any of this to this
Honourable Court and instead
seeks to create the impression in his
affidavits that the order of Swain J amounts to a decision on the
merits of the appeal and
vindicates his contentions as to the
irregularities which he alleges beset the approval process. This is
quite simply not the case.
[42] With the decision of the appeals
tribunal having been set aside, the approval of the 2007 plans
remained and it was clear that
the applicant would need to institute
a fresh review to set that approval aside. Counsel for the
municipality indicated to Swain
J that because the entire appeal
process had proceeded with all parties under the common
misunderstanding that the applicant had
the right to an internal
appeal, the delay in launching a review against the plans approval
was not something upon which the municipality
would seek to rely. It
was consequently for this reason that part of the order made by Swain
J permitted the applicant to launch
the present review proceedings
within a particular time frame. This was to avoid wasting any further
time or ink on questions of
condonation.
Grounds of review
[43] The applicant relies on six
grounds of review in support of this application, namely;
1. That Mr Van der Walt of the first
respondent ought to have recused himself as the decision maker;
2. That no decision could be taken
involving an issue already before Court and as yet undetermined. (The
2005 application precluded
the approval of the plans).
3. That the building control officer
(B.C.O.) ought to have given the applicant a pre-recommendation
hearing (pre-recommendation
hearing).
Grounds of review 4, 5 and 6 are based
on the first respondent’s alleged failure properly to apply the
provisions of the National
Building Regulation and Buildings Act 103
of 1977 “(the Building Standards Act)”.
That the BCO failed to make a
recommendation within the meaning of Section 7(1)(a) of the Building
Standards.
That the decision is not in
compliance with Section 7(1)(a) of the Building Standards Act.
That the decision is not in
compliance with Section 7(1)(b)(ii) of the Building Standards Act.
[44] It has been contended on behalf
of the applicant that any one of these ground alone is sufficient to
warrant the granting of
the review, and the setting aside of the
decision to pass the plans.
[45] It is appropriate at this stage
to deal with each the grounds of review:
First ground of review: Mr Van
der Walt should have recused himself as a decision maker.
[46] In essence, the applicant
contended that he entertained a reasonable suspicion that Mr Van der
Walt was biased against him
as a result of which Mr Van der Walt
ought to have recused himself and not considered the 2007 plans. This
ground of review that
Mr Van der Walt should have recused himself in
approving the plans must be seen in the context that Mr Van der Walt
had been involved
and had been aware of and involved in the earlier
plans and the litigation which arose around them.
[47] The applicant bears the onus to
show on a balance of probabilities that a reasonable person in his
position would have had
a subjective apprehension bias. The applicant
contends that this onus has been discharged because it is common
cause that on two
previous occasions the plans submitted by the
second respondent were approved by Mr Van der Walt and his approval
was overturned
on appeal. These plans were the 2004 plans for the six
storey building and the July 2005 plans, there were obvious
infringements
of the town planning requirements in respect of both
plans.
[48] It is clear from the papers that
Mr Van der Walt was the only person in the first respondent who was
qualified and appointed
to make the final decision as to whether to
pass the plans. The first respondent has contended correctly in my
view, that the setting
aside of the earlier plans was based on an
interpretation of the town planning scheme, provisions relating to
side space and does
not in any way relate to Mr Van der Walt’s
integrity. Furthermore, Mr Van der Walt was also aware of the
applicant’s
contentions and objections which had been raised
earlier so that he could take these into account in the proceedings.
In his affidavit
he has stated that he has taken these into account.
[49] Mr Van der Walt was the person
best placed to deal with the approval and that there was no other
person properly qualified
within the Municipality to do so. In this
regard, applicant has contended that a decision maker could have been
seconded from another
Municipality. The applicant’s suggestion
that a decision maker could simply be seconded from another
Municipality is not
something which the National Building Regulations
and Building Standards Act, No. 103 of 1977 (the Building Standards
Act) counternancies
nor has the applicant referred to any specific
provisions of the Act, which permits the cause of action he has
suggested should
be followed. Section 28(4) of the Act allows the
delegation of Municipalities powers only to Municipalities own
committees or employees.
A person seconded from another section would
manifestly not fall within either of these categories and any of such
delegation would
have been
ultra vires
and invalid. The
section reads as follows:
“
Any local
authority may in writing delegate any power confirred upon it by or
under this Act, other than a power referred to in
Section 5, to any
committee appointed by it or to any person in his employ”.
[50.] A further ground advance by the
applicant is that the Municipality was attempting to hide the fact
that it was Mr Van der
Walt who had passed the plans and that it was
for this reason that Mr Naidoo claimed under oath that he had
approved them when
deposing to an affidavit in July 2010. Applicant
contends that an adverse inference can be drawn from this, clearly
the first respondent
knew that Mr Van der Walt ought not to have been
the decision maker and attempted to hide the identity of the decision
maker. Obviously
this cannot be true in the light of the information
available on the papers. First because the applicant had stated
plainly the
Mr Van der Walt had been the approving officer and denied
Mr Naidoo’s allegation that he had approved the plans.
Secondly,
in his affidavit, Mr Van der Walt stated at the outset that
Mr Naidoo had made this statement and had done so erroneously and Mr
Naidoo himself deposed to an affidavit explaining this.
[51] Furthermore, it is also not
correct that there is no reference to Mr Van der Walt as being the
decision maker on the record
supplied as his name is evident from the
plans themselves as the person who approved them.
[52] The allegations by the applicant
in this regard cannot be true. It is also clear from the papers that
the applicant had a copy
of the full set of plans prior to the
institution of these review proceedings and when the 2007 application
was launched the full
plans were an annexure to those proceedings.
[53] Mr Van der Walt in his
supplementary answering affidavit has stated the following (Volume
4(a) page 626-627 par 158.6) ‘
It is correct for the
applicant to say that the plans themselves were not part of the
record. They are item 29 of the record and
because of their bulky
nature are in possession of the Municipalities attorneys, they will
off course form part of the record before
this honourable Court when
the matter is adjudicated. The applicant has these plans and indeed
annexed copies of them to the 2007
application where they were dealt
with at some length and refers to the detail in the plans in his
affidavit under reply’.
[54] The applicant further contends
that the reasonable suspicion of bias is further confirmed by Mr Van
der Walt’s admission,
and possibly even the soliciting of
additional documents supportive of second respondent after the 2007
plans had been launched.
[55] In this regard, the second
respondent submitted, correctly in my view, that the applicant’s
criticism of Mr Van der Walt
for possibly even soliciting additional
documents regarding the calculation relating to the basement is
likewise misplaced, more
particularly in the light in the dicta in
Walele and Camps Bay Ratepayers
, in terms of which our Courts
have held that municipal decision maker is obliged positively to
satisfy himself as to certain matters.
The two cases referred to in
this matter are the following:
Walele vs City of Cape Town and
Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) at para 55 and;
Camps Bay Rate Payers and
Residents Association and Another vs Harrison and Another
2011 (4)
SA 42
(CC) at para 33.
[56] Mr Van der Walt’s approach
has been specifically endorsed by the Supreme Court of Appeal in the
matter of
True Motives 84 (Pty) Ltd v Madhi & Another
2009 (4)
SA 153
(SCA) at para [31] page 166 A to B where the Court stated that
if the primary facts are not apparent from the document submitted
to
the decision maker, the decision maker will seek clarification in
writing by discussion with the applicant or his representative,
or on
the ground by physical inspection.
In the light of this decision,
Mr Van der Walt can therefore not be criticised for calling for
addition documentation or information
to enable him to make a
decision.
[57] A reasonable suspicion of bias is
also said to be grounded on Mr Van der Walt’s allegedly
entertaining the developer’s
visit to nullify concerns that an
updated environmental report was necessary. In this regard, the first
respondent submitted, correctly
in my view, that this criticism
completely ignored what had been stated, not only by Mr Van der
Walt
but also by Magabela that the department itself had advised the
Municipality that an updated environmental report was not necessary,
which evidence of the conversation with the department is confirmed
by document in the record (a letter from department dated 15
December
2007.)
[58] The applicant also based his
suspicion on an allegation that Mr Van der Walt had passed other
large developments for the second
respondent to its obvious
satisfaction. The respondents contend correctly in view that there is
no factual basis for this submission
on the record and particularly
not at the portion of the record to which the applicant refers, as
the basis for this submission.
[59] The applicant also relies on the
contention that Mr Van der Walt entertained a misrepresentation that
there was no existing
building on site at the time that the plans
were approved. It is clear from the papers that there is no dispute
whatsoever that
the lower elements of block “A” had been
constructed in accordance with previous planning approval which was
subsequently
set aside on appeal and there is
in situ
on the
ground at present an incomplete structure. Nobody on behalf of the
first respondent has ever suggested anything on the contrary.
Mr Van
der Walt has, however, explained that in considering plans one takes
into account what is envisaged on those plans themselves.
The fact
that the existing structure was not taken into account for the
purpose of determining the plan submission fee is due to
the fact
that the whole development was to be considered in accordance with
the 2007 plans and this is not and cannot be suggestive
or bias on
the part of the Municipality in fact, it leans the other way. The
fact that the deposit had been paid in respect of
previous building
plans which had been set aside and which deposit had not been repaid
into the developer and was consequently
still in position of the
Municipality although it could be strictly speaking had been demanded
by the developer, is likewise something
that re-downs to the
Municipality’s credit and does not demonstrates bias. This
submission is in my view correct.
No access Road
[60] The applicant complains that
Panorama Parade extension which provides road access to the
development does not exist and so
the plans should not have been
approved. There is undisputed evidence that Panorama Parade Road
exists and has been in existence
for more than 30 years. This road
provides the only access to the second respondent’s property
and other bordering properties
on the Admiralty Reserve. The
allegation that Mr Van der Walt ignored the absence of the legally
declared road and condoned the
continued use of Panorama Road
Extension, notwithstanding that it is in the Admiralty Reserve,
ignoring his duty to uphold the
law and not to condone
non-compliance, has no substance.
[61]
I
n
BRT Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers’ Union and Another 1992(3) SA 673 (A),
the
Court held that the test to be adopted in recusal applications in
involving the appearance of bias is whether there exist a
reasonable
suspicion of bias on the part of the decision maker. Provided that
the suspicion partiality is one which might reasonably
be entertained
by lay litigant, a reviewing Court cannot be called upon to measure
in a nice balance the precise extent of the
apparent risk. If
suspicion is reasonably apprehended, then that is the end of the
matter.
(Page
694H-695A).
[62] There is no doubt that
there has been a history of previous litigation between the parties
in this matter and that Mr Van der
Walt of the first respondent
passed the 2004 and the 2005 plans. It is common cause that there
were obvious infringement of the
town planning requirements in these
plans which resulted in their being set aside on appeal. The fact
that these plans were set
aside on appeal does not necessarily
establish that Mr Van der Walt was biased against the applicant. The
issue is whether the
suspicion of bias is reasonably apprehended in
the circumstances of this case.
[63]
Having
considered all the material placed before me in this regard, I am
satisfied that the applicant’s grounds are not such
as to
establish a reasonable suspicion of bias.
[64] The applicant has
failed to establish that Mr Van der Wal
t’s
approach was not both rational and reasonable.
Second Ground: Whether the 2005
application precluded the approval of the plans
[65] As indicated above in Case Number
11723/05, the applicant sought the declarator concerning the
basement/story dispute. The
second respondent gave an undertaking to
the applicant that it would not lodge fresh plans with the first
respondent in respect
of Lot 3371 Margate until the Court had
determined the basement issue under Case Number 11723/05.
[66] Under the second ground, the
applicant’s contentions are based on two other considerations:
1. The first is the notion that in the
2005 application, the Court would be called upon to decide whether
the lowest level of block
“A”, which had already been
constructed in accordance with earlier approved plans, was or was not
basement for the
purposes of the applicable Town Planning Scheme.
This was a question the applicant stated that he and developer had
reserved for
determination by the Court.
The second is the undertaking which
the second respondent gave to the applicant. The applicant’s
contention is that the
2005 and 2007 plans were substantially the
same. The applicant thus argues that all his objections to and the
claimed deficiences
in the 2005 plans also beset the 2007 plans.
The first consideration
[67] The applicant contends that the
fact the first respondent was a party to ligation in which the
basement issue was pertinently
alive means that the first
respondent’s making a determination on the basement issue would
have the effect of pre-empting
the Court’s decision, and
rendering academic the specific issue which had been expressly
reserved by two of the parties,
for determination by the Court.
[68] One of the recurrent themes
throughout the applicant’s affidavits and his heads of argument
is his contention that the
2005 and 2007 plans were for all intent
purposes the same, the only difference being that in the 2005 plans,
block “B”
had been moved “slightly further”
down the slope on the second respondent’s property and closer
to block “A”.
It is therefore important to first
determine whether there are any significant differences between the
two plans.
[69] The first respondent has annexed
LCM3, the site plan sheet for the 2005 plans and HCM4 the site plan
sheet for the 2007 plans
to its affidavit for comparison. A
comparison of the two site plan sheets reveals the following:
Firstly:
The encroachment into
the side space next to block “A” had been removed. This
was the feature of the 2005 plans that
had led to the approval being
overturned on appeal.
Secondly:
The section to the
front block “A” is now an open porch and so excluded from
calculations to determine whether the
lowest level was a basement.
Thirdly:
Block “B”
was moved 12 metres down the slope, significantly impacting the
basement calculation and the issue of the
view.
[70] The applicant himself stated in
an affidavit in the 2007 application that “the design of block
“A” had been
altered in two quite material respects. In
paragraph 56 of his founding affidavit in that application, the
applicant himself pointed
out that the portion of block “A”
which had intruded into 4.5 meter side space no longer appeared in
the plans and
of significance to the question of whether the bottom
story of the development constituted the basement was the fact that a
section
to the front of the building that is the seaward side, had
now become an open porch or veranda which had the effect of excluding
it from calculations made in order to determine whether the lowest
level of the building complied with the test for a basement
in so far
as the matter of volume is concerned.
[71] These changes were in my view
significant particularly in so far as the applicant’s
contentions regarding his views were
concerned and also in relation
to whether the lowest level of block “B” could be
regarded as a basement for the purposes
of the scheme. It also
removes the problems relating encroachment into the side space which
had been a feature of the 2005 plans.
It can therefore not be correct
to state, as the applicant does, that the plans were the same and the
same considerations applied
across the board.
The second consideration
[72] Despite being common cause that
the Municipality did not give any undertaking, the applicant contends
that because it was aware
of the undertaking given to him by the
developer, the Municipality was precluded from approving the plans.
[73] In order to determine whether
this undertaking was binding on the Municipality, it is necessary to
contrast the applicant’s
claim in these proceedings with what
was said in the 2007 application.
[74] The Municipality has pointed out
in this application that in 2007 application the applicant stated:
(a) He had a contractual right only
against the developer, to enforce the undertaking.
(b) The Municipality had been asked to
give an undertaking that it would not consider building plans pending
determination of the
issue of basement by the Court in the 2005
application, but that Municipality refused to give such an
undertaking which, the applicant
was advised, was probably due to
reluctance on its part to contract out of its statutory obligation to
consider any plan submitted.
(c) The developer’s attorney
contacted other Counsel on the way forward and was advised that the
Court might be reluctant
to deal with declaratory order in the
absence of any plans and so a proposal was made that the 2005
application be adjourned sine
die and that further affidavits be
exchanged duly with new plans if the applicant still had difficulty
therewith, which proposal
the applicant accepted.
(d) The applicant had no contractual
right it could enforce against the Municipality.
(e) The applicant understood that it
might be more convenient for fresh review proceedings to be lodged.
This is evident from paragraph
133 of the applicant’s founding
in the 2007 application. It is inexplicable why the applicant has
denied that this is what
he said in the 2007 application.
[75] Furthermore, although the
compliance with the undertaking with the second respondent is a
matter of some dispute, it is of
no relevance for the purposes of
this application as the undertaking did not and could not prevent the
first respondent from complying
with its statutory obligations.
[76] Counsel for the second respondent
submitted, correctly in my view, that the applicant had alternative
remedies at his disposal
which he could have invoked against the
second respondent but clearly elected not to do so.
It is not disputed that the applicant
was well aware of the submission of 2007 building plans prior to
their approval. Despite
this knowledge, the applicant elected not to
institute any legal proceedings, relying on the undertaking prior to
the approval
of the new plans.
The applicant participated in the
approval process.
The applicant does not claim any
prejudice for the so called breach of the undertaking.
[77] In my view, the applicant’s
submissions relating to an undertaking have no substance and ought to
be rejected and are
accordingly rejected.
[78] The applicant accepted in the
2007 application that rather than proceed with the 2005 application,
a fresh review would be
instituted in terms of which all the relevant
questions would be determined. Although the applicant denies this, in
the 2007 application
his approach was to agree with Mr Van der Walt’s
suggestion that it would be appropriate for the applicant to
institute entirely
fresh proceedings in relation to the review rather
than burdening another Court with having to read through a great deal
of entirely
irrelevant material in the 2005 application, much of
which had been overtaken by events.
[79] It would be convenient to
specifically refer to the applicant’s founding affidavit in the
2007 application. In paragraph
133 of the said affidavit the
applicant stated the following:
“
However,
I was advised that it may be more convenient both to the Court and
the practise if fresh proceedings were launched, although
I
acknowledge that I have no contractual right as against the first
respondent to insist that such course be followed. In the event
of
the parties agreeing, and with the permission of this Honourable
Court, the order which I seek pending the determination of
the 2005
application could be suitably modified to accommodate the fresh
review application, on the understanding that the costs
incurred in
the 2005 application would be reserved for decision of the Court in
the new application.”
[80] In paragraph 99 of the
applicant’s replying affidavit in the 2007 application, the
applicant stated the following:
“
I am in
respectful agreement with Mr Van der Walt and the second respondent
that the best course would be to commence fresh review
proceedings. I
do not agree that the dispute about the proper construction of the
provisions relating to “basement”
no longer arises and
respectfully refer in this regard to what I have already said about
Mr Van der Walt’s over simplification
of the issues. However,
our dispute on that point does not appear to be relevant in the
present context.”
[81] What is therefore clear is that
the present proceedings before this Court are the fresh proceedings
which were envisaged and
that the applicant foresaw reliance on the
2005 application. That application, apart from the question of costs,
is no longer alive
and could not and did not serve to preclude the
Municipality’s consideration of the 2007 plans as the applicant
well understood
that at that time.
[82] Furthermore, Counsel for the
second respondent has submitted correctly in my view, that the 2005
application would not have
determined whether the lower level of
block “A” was a basement because:
(1) It related to the 2005 plans and
not to the 2007 plans.
The declarator sought by the
applicant related to the interpretation of the scheme clauses
related to the basement and had nothing
whatsoever to do with the
level which should be used in that determination. The question of
whether the lower levels of block
“A” in the 2005 plans
constituted a basement arose in the context of the review relief in
that application which
had become academic when the applicant’s
appeal against the 2005 plans succeeded.
[83] In the circumstances, it would
not be appropriate to set aside the approval of the 2007 plans on the
basis of this ground.
Third Ground :
Pre-recommendation hearing
[84] It was argued on behalf of the
applicant that the Constitutional Court held that a neighbour does
not, simply by virtue of
being a neighbour, have a right to a
pre-decision hearing when building plans (other than those requiring
special consent) are
considered unless there is a circumstance which
gives rise to a legitimate expectation of a hearing.
(
See: Walele v City of Cape Town &
Others paragraphs [42] supra).
[85] A legitimate expectation
generally arises from a practise or a promise, but it has to arise
where there is dramatic impairment
of interest.
(See: Walele supra
and Nortje v Minister of Correctional Services
2001 (3) SA 472
(SCA)
[14] and Bullock v Provincial Government of North Western Province
2004 (5) SA 262
SCA para [22]
.
The facts and circumstances of a
particular case determine the content of the procedural fairness
required.
[86] It was further submitted that the
submission of the building plans by the second respondent to the
first respondent was ‘a
dramatic impairment of the interest’
in the context of the second respondent’s undertaking of which
the Municipality
was aware that no new plans would be submitted until
the basement issue had been determined, coupled with the pending
litigation
on the basement issue. Both these according to the
applicant created a legitimate expectation that no decision would be
taken without
the applicant being heard, if indeed the first
respondent decided to entertain the plans, at all.
[87] It was argued that in view of the
failure to afford the applicant a pre-decision hearing on the
objections to the fresh plans,
the passing of the plans should be set
aside. It was argued on behalf of the first respondent, correctly in
my view, that the facts
relied upon by the applicant, leaving aside
the factual issues, are not such as can give rise to legitimate
expectation as there
was no promise made by the Municipality as the
decision maker and any claimed expectation was not induced by the
Municipality but
by a third party.
[88] In
Walele’s case, supra,
at paragraph 35,
the following is stated:
“
The doctrine
of legitimate expectation, however, has its own limitations. It
cannot be precisely defined. In some cases it has been
expressed as
a:
Substantive benefit or advantage or
priviledge which the person concerned could reasonably expect to
acquire or retain and which
it would be unfair to deny such a person
without prior consultation or a prior hearing.
The doctrine applies where a person
enjoys priviledge or a benefit which it would be unfair to deny that
person without giving
him or her a hearing. A legitimate expectation
arise either from a promise made by the decision maker or from a
regular practise
which is reasonably expected to continue.
See: also
South African Veteranary
Council & Another v Syzmaski 2003 (4) SCA 42 at para 19 page 49
E-H.
[89] Furthermore, it would not have
been lawful or competent for the Municipality to refuse to entertain
the 2007 plans as it would
have been in contravention of Section 7 of
the Buildings Standards Act, which imposes a legal duty on the
Municipality to consider
plans submitted to it.
See: Walele, supra, at para 41 page
150 F and the University of Western Cape v MEC for Health and Social
Services
1998 (3) SA 124(C)
at 134 C-G.
[90] It has also been established that
persons in the position of the applicant have no right to be involved
in the planning approval
process.
(See: Walele supra and para 19 and
City of Cape Town vs Readar and others
[2008] ZASCA 130
;
2009 (1) SA 555
(SCA) at para
30 & 31)
In the
City of Cape Town vs Reader
& Others at para 31
, the Court held as follows: ‘This
interpretation, namely, objecting neighbours and others have no right
of appeal at all
under section 62, its borne out by section 62(3) :
The appeal authority must consider
the appeal and confirm, vary or revoke the decision but no such
variation or revocation of a
decision may detract from any right that
may have accrued as a result of the decision.
It seems plain that
the purpose of Section 62 as a whole is to give to the dissatisfied
applicant permission - and no-one else –
an opportunity for the
matter to be reheard by a higher authority within the Municipality
…’.
[91] It follows therefore that the
failure to afford the applicant a pre-decision hearing on the
objections to the fresh plans cannot
be a ground for setting aside
the passing of the plans. This ground should therefore fail.
Fourth Ground : Absence of the
recommendation by the Building Control Officer as required in Section
6(1)(a) of the National Building
Regulations and Building Standards
Act 103 of 1977.
[92] The applicant contends that there
is no recommendation as required in terms of Section 6 of the Act, by
virtue of the fact
that the form upon which that recommendation is
endorsed is inconsistent and nonsensical.
[93] The approval of the building
plans by local authority is governed by Sections 6 and 7 of the
National Building Regulations
and Building Standards Act 103 of 1977
(the Act) these sections provide:
Section 6(1)(a)
“
A Building
Control officer shall –
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)”
Section (2) of the Act provides:
“
When a fire
protection plan is required in terms of this Act by the local
authority, the building control officer concerned shall
incorporate
in his recommendations referred to in sub-section 1(a) a report of
the person designated as chief fire officer by such
local authority,
or any other person to whom such duty has been assigned has been by
such chief fire officer, and if such building
control officer has
also been designated as the chief fire officer concerned, he himself
shall also report in such recommendations”.
[94] The applicant contends that
Walele decision, supra,
is the authority for the proposition
that a simple endorsement does not count as a recommendation. Counsel
for the first respondent
submitted, correctly in my view, that the
paragraph of
Walele
referred to by the applicant refers to a
finding by the Court that in the particular case with which it was
concerned with, the
endorsement and signature of the building control
officer did not constitute the recommendation. The basis of this
decision was
in
Walele
case, however, the fact that the
building control officer had only made in a block on a form which
read: “
BCO recommended in terms of Section 6(1)(a) of Act
103/1977”. (See: Walele, supra,at para 5)
it was therefore
not possible to determine what the building control officer had
considered. It is also clear from the judgment
that the building
control officer in
Walele
had information concerning the
issues the decision maker was required to consider which he did not
place before the decision maker.
(See:
Walele, supra, at para 70
)
[95] In the heads of argument the
applicant has contended that the BCO, as a specialist must make a
recommendation that makes sense
and upon which the decision maker can
rely for guidance. It is required to be in the form of a report, as
was made by the BCO in
the Camps Bay case – not just a
signature above a stamp. Having read the Camps Bay judgment I did not
find anything which
states that such report is required.
(See:
Camps Bay Ratepayers and
Residents Association and Another vs Harrison and Another 2011(2)
BCLR 121 (CC).
However, the decision in
Walele
is to the contrary effect. The Court in
Walele
case
specifically disagreed with the submission that the grounds
supporting the advice given by the building control officer are
required to appear in the body of the recommendation and that
endorsement and signature on their own could not constitute a
recommendation.
(See: Walele, supra, at para 64).
[96] The applicant’s case in
regard to the building control officer’s recommendation was
initially based on a contention
that he was not properly qualified
and therefore not validly appointed. This seems to have been
abandoned by the applicant who,
once, proof of his valid appointment
had been adduced, now contends that there is no recommendation as
required in terms of section
6 of the Act, by virtue of the fact that
the form upon which that recommendation is endorsed is internally
inconsistent and nonsensical.
[97] The first respondent contends
that the applicant seeks to find gross irregularity by misconstruing
pro-forma documentation.
It contends that the document in question is
a pro-forma internal scrutineering sheet used by the Municipality’s
department
of Building Control when evaluating plans. This department
checks the plans against each of the categories referred to in the
form
and notes where there are difficulties. If categories are in
order, then a tick is entered on the form if there are not then the
item is crossed. It was contended on behalf of the first respondent
that the ticks indicated that there was nothing wrong with
the plans
from a building control officer’s perspective and this is
consequently what led to the recommendation endorsed
on this sheet.
The first respondent has authorised that from the address details at
the top of the form, it is apparent that the
pro-forma document is
envisaged to be sent to the person who submitted the plans in the
event that there is a problem. However,
because a form contains a
handy list of all the things that the building control department is
required to apply its mind, it is
used in all instances of
scrutineering even where no problems are found and there is
consequently no need to send the document
to the person who submitted
plans as was the case.
[98] Mr Van der Walt of the first
respondent has explained how this form was used and what it actually
means. It is not appropriate
for the applicant to simply disregard
this explanation and contend that there was no recommendation before
Mr Van der Walt. There
was a recommendation before him.
[99] Insofar as Section 6(2) of the
Act is concerned, it was submitted, correctly in my view, on behalf
of the first respondent
that the relevant section of the Act pertains
only to circumstances where a fire protection plan is required in
terms of the Act.
Furthermore this is a ground relied upon by the
applicant belatedly it was not raised pertinently on the papers and
the applicant
has not stated upon what basis it contends that Section
6(2) finds application.
Fifth Ground : Non-compliance
with Section 7(1)(a) of the Building Standards Act
[100] The applicant contended that the
plans were not compliant with:
(i) The National Environmental
Management Act of 107 of 1998 (NEMA)
The Margate Town Planning Scheme;
The Deeds Registry Act;
(i)
Alleged non-compliance with
NEMA
[101] Section 24(2) (a) of the
National Environmental Management Act 107 of 1998 (NEMA) provides
that the Minister, or an MEC with
the concurrence of the Minister may
identify activities which “may not commence without
environmental authorisation from
the committed authority.
[102] A list of these activities
together with competent authorities was published in GNR386 in
Government Gazette Number 28753
of 21 April 2006 (“the list”)
the list took effect from 3 July 2006. Item 6 of list provides that
“the excavation,
moving, removal, depositing or compacting of
soil, sand, rock or rubble covering an area exceeding 10 square
meters in the sea
or within the distance of a 100 metres inland of
the water sea “ are listed activities”.
[103] The applicant contends that
environmental assessment was required because both blocks “A”
and “B”
of the development are within one hundred metres
of the high water mark. Authorisation from the competent authorities
was consequently
required and the Municipality cannot approve
building plans for the development unless and until such
authorisation has first been
obtained.
[104] The Municipality has contended
that this is not the position. The Municipality has submitted,
correctly in my view, that the
language of NEMA makes it plain that
the effect of the listing is that the activity could not, in the
language of Section 24(2)(a)
of NEMA “
commence
without
environmental authorisation”.
[105] Even in his heads of argument,
the applicant has contended that
construction cannot commencement
on any property within 100 metres of the high water mark, until
there is an environmental assessment as expressed under the
regulations
to the NEMA. The applicant is not saying that the
approval of the plans is prohibited under the NEMA under these
circumstances.
[106] There is evidence that the
Municipality was advised prior to the approval of the plans by the
third respondent’s department
that, in the department’s
view, NEMA did not apply and that environmental impact assessment on
file was sufficient. The applicant
seeks to impeach the
Municipality’s decision on the basis of a letter generated 6
months after the plans had been approved
in which the department
changed its stance. The department stated that NEMA does apply and
that the environmental impact assessment
was required. The
Department, however, does not in that letter state that an
environmental impact assessment is required before
plans can be
approved, but simply that an assessment and approval will be required
before any further construction works continues
on block “B”.
The applicant has contended that an environmental assessment report
was required for both buildings “A”
and “B”
because both are within 100 metres within the high water mark. The
department’s stance was, however,
that no authorisation was
required in respect of block “B” as work thereon was
commenced before the coming into force
of listed activities in terms
of NEMA. The second respondent considered that building work on block
“B” cannot commence
until there is an environmental
assessment. The fact that an environmental authorisation is
outstanding does not preclude the approval
of the plans. There was
therefore no malafides or bias on the part of the first respondent
when it approved the plans without the
necessary environmental impact
assessment.
(ii)
Non-compliance with
Margate Town Planning Scheme
[107] The applicant’s contention
in this regard relates largely to the question of whether the lowest
level of blocks “A”
and block “B” constitute
a basement for the purposes of the scheme.
[108] It is common cause that the
provisions of the town planning scheme in question are such that a
floor of a building which constitute
a basement does not count as a
story for purposes of determining the height of the building allowed
in terms of the scheme or any
restrictions on the side space and
building line which construction over three storey requires.
[109] The applicant contends that the
lowest levels of block “A” and block “B” are
not basements as defined,
consequently, counts as storeys for the
purposes of this scheme and thus require the building to be
positioned from the normal
side space and building line. If this were
the case then the approval of the 2007 plans would have been contrary
to the provisions
of the town planning scheme.
[110] The local authority is required
to be satisfied that the plans complied with other law which would
include the town planning
scheme.
[111] Evidence on the papers has
established that the determination of the natural ground level for
the purposes of deciding whether
the lowest levels of the development
constitute basement is complicated by the fact that the second
respondent’s property
was developed many years ago by the
construction of a retaining wall and a dwelling. This in itself would
have disturbed natural
ground level. The natural levels were further
disturbed when the second responded excavated and began constructing
in terms of
an earlier set of plans. There has also been development
on adjacent sites.
[112] A determination of whether the
last floor of the building constitutes a basement involves questions
regarding the interpretation
of the scheme clause in question and
then its application to levels on the ground.
[113] Having perused the reports of
the two land surveyors, it appears that there is a dispute between
the professional land surveyors
engaged by the applicant and the
second respondent as to which levels are to be applied.
[114] Mr Van der Walt of the second
respondent has explained in some length why it is was that he
preferred the approach to determine
the levels according to which the
basement calculation was done, which was adopted by the developer’s
surveyor over that
employed the applicant’s surveyor.
[115] The first respondent accepted
the lowest levels of blocks “A” and “B”,
constituted basements for the
purposes of the scheme based on the
survey of the second respondent’s surveyor.
[116] His data was preferred to that
of the applicant’s surveyor as : -
(a) The applicant’s survey was
based on a beacon which was not original and therefore could not
represent natural ground level.
(b) The applicant’s survey was
inconsistent with physical features on the subject and surrounding
sites;
(c) The second respondent’s
survey on the other hand;
(aa) was not based on the replaced
beacon;
accorded with physical features on
site, some of which had been present for many decades.
(cc) extrapolated contours by
analysing not only the subject site but surrounding properties.
[117] It is clear that not only Mr Van
der Walt’s explanation of how he came to be satisfied is
rational and compelling, the
fact that he asked for further
calculations to be done in order to satisfy himself accords with the
dicta in Camps Bay referred
to above.
[118] At the end of the day, the
question is not which of the surveyor’s is correct but whether
Mr Van der Walt was reasonable
in preferring one of them to the
other, and in my view, he in fact acted reasonably in preferring the
second respondent’s
surveyor’s views to those of the
applicant’s surveyor.
[119] As the Supreme Court of Appeal
pointed out in
True Motives 84 Pty (Ltd) v Mahdi and another
2009
(4) SA 153
SCA at para 31
; in an analogous context, each case is
manifestly dependent upon the local authority’s evaluation of
the known facts and
it is not incumbent upon the local authority in
order to discharge that onus to instruct its own expects. It cannot
be expected
that ratepayers within the municipality’s area of
jurisdiction be expected to foot the bill for the municipality
engaging
its own land surveyor’s to adjudicate where there are
differences of opinion between surveyor’s engaged by the
applicant
and objector. The Supreme Court of Appeal held that would
neither be practical nor cost effective. What is instead required is
for the decision maker to come to a conclusion as to whether he or
she positively satisfied on the basis of the known facts.
[120] That is precisely what Mr Van
der Walt says indeed in para 126 of his supplementary answering
affidavit:
“
The
Municipality is not in a position to instruct its own independent
land surveyor to evaluate the competing contentions of those
employed
by the applicant and the second respondent. I preferred the views of
one surveyor above another based on the actual physical
appearance of
the subject property …”.
[121] Having considered all the facts
on whether Mr Van der Walt adopted an approach which is both rational
and reasonable, I am
satisfied that he did.
Deeds Registry Act
[122] The applicant contends that
there are restrictive rights (which have been referred to as Barregar
rights) endorsed against
the second respondent’s title deeds
which preclude the approval of the building plans.
The first respondent submitted,
correctly, that if such rights did exist at the time that the 2007
plans were approved, they meant
only that the development could not
occur until the consent of those in whose favour the rights had been
registered had been obtained.
Evidence has, however, established
that the Barregar rights had, however, been varied with the consent
of the holders prior to the
approval of the plans and thus posed no
obstacle thereto.
[123] Accordingly, the basis of
challenge on these grounds must fail.
Sixth Ground:
Non-compliance with Section 7(1)(b) of the Act
[124] The applicant contends that the
erection of the two blocks of flats would disfigure the area, be
unsightly and affect views,
be overbearing and damage his privacy and
derogate from and diminish the value of his property. This according
to the applicant
precluded the valid approval of the 2007 plans.
[125] Section 7(1)(b) of the Act reads
as follows:
“
If a
local authority, having considered a recommendation referred to in
section 6(1)(a) –
…
(b)(i) is not so satisfied; or
(b)(ii) is satisfied that the
building to which the application in question relates –
(aa) is to be erected in such a
manner or will 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) a will probably or in fact be
unsightly or objectionable;
(ccc) it will probably or in fact
derogate from the value of adjoining or neighbouring properties;
(bb) will probably or in fact be
dangerous to life or property;
such local authority shall refuse to
grant its approval in respect thereof and give written reasons for
such refusal”.
[126] In support of its contention,
the applicant made the following submissions: In paragraph 33 of the
Camps Bay case
, the Constitutional Court clarified its stance
in the
Walele
by comparing the
Walele
principles to
those enunciated in the majority decision of the SCA in the True
Motives case. What emerges is a clear restatement
that stare decisis
(Camps Bay para 28)
requires that all lower courts apply the
interpretation of section 7(1)(b)(ii) as it emerges from the Camps
Bay case – namely
that:
“
The local
authority cannot approve plans unless it positively satisfies itself
that the proposed building will not trigger any of
the disqualifying
features referred to in section 7(1)(b)(ii). If in doubt the local
authority must consequently refuse to approve
the plans.”
To place the matter beyond doubt, it
is stated in
Camps Bay [para 33]:
“
under
Walele it is the applicant for approval who must satisfy the local
authority that the disqualifying factors do not exist …
Walele
imposes an obligation on the local authority to ensure the absence of
the disqualifying features.”
[127] The applicant submitted that
neither the BCO nor the decision maker followed this process. Had
they done so, the expert opinion
of the property valuator which
stated that the construction of two blocks of flats on Lot 3371
Margate would diminish the value
of Applicant’s property
between 15% and 30%, would have been part of the record, since it was
part of the litigation to which
the first respondent was a party –
but it is not.
The applicant has pertinently and
repeatedly made the claim that his property has been and will be
significantly devalued by the
building to which the plans relate. The
applicant has provided proof of diminution of the value of his
property. There is no competing
valuation from the respondents;
Accordingly the bald and unsupported
denial of loss of value falls to be rejected as of being “so
far-fetched and untenable
that the Court is justified in rejecting
them merely on the papers”
Plascon Evans Paint Ltd v Van
Riebeeck Paints (Pty) Ltd 1984(3) SA 623(a) at 634H-635C
[128] In view of the failure of the
decision maker to have proper regard to the disqualifying features,
the decision to pass the
plans should be set aside.
[129] The first respondent submitted
that there are two conflicting decisions regarding what is required
and the onus applicable
in relation to section 7(1)(b). In
Walele,
supra, at [55],
it is stated that the local authority cannot
approve plans unless it positively satisfies itself that the proposed
building will
not trigger any of the disqualifying factors referred
to in section 7(1)(b)(ii). If the local authority is in any doubt
therefore
it must refuse to approve the plans.
Walele
thus
imposes an obligation on the local authority to ensure the absence of
the disqualifying factors.
[130] The Supreme Court of Appeal in
True Motives, supra, [at 21],
however, found that these
remarks were obiter and held a local authority is bound to approve
plans unless it is satisfied that
the proposed building will probably
or in fact trigger one of the disqualifying factors referred to in
section 7(1)(b)(ii). According
to True Motives therefore, if there is
doubt, the building authority must consequently approve the plans.
Consequently, in terms
of the True Motives test, it is the objector
to the plans who must satisfy the local authority about the positive
existence of
the disqualifying factors and there is no duty on the
local authority to ensure the absence of disqualifying factors.
[131] The Constitutional Court
declined to pronounce on this difference in the
Camps Bay
Ratepayers case, supra
.
[132] Counsel for the first respondent
submitted that the Constitutional
Court’s stance in the
Camps Bay Ratepayer’s case means that the decision in True
Motives, which held that the dicta
in
Walele
regarding these
matters were obiter and not binding is therefore still good law and
consequently the test as per the Supreme Court
of Appeal in True
Motives is that which applies.
[133] Consequently, it is for the
applicant to satisfy the Court as to the positive existence of the
disqualifying factors upon
which he relies.
[134] As the Court pointed out in True
Motives [at para 24, 163D – E]:-
“
when one
has regard to the nature of the circumstances which may compel a
refusal of building plans under section 7(1)(b)(ii) one
sees that
they are
very
much matters of opinion, matters upon which reasonable persons may
disagree
.
They are not as clear cut as, for instance, the distance a building
is set back from a street. Recognising this, the legislature
introduced the concept of ‘probability’ that the building
would be of a certain type or have a certain effect”.
[135] The Court in
True Motives at
[para 57]
also pointed out that the test in this regard is
whether the decision maker’s approach is “both rational
and reasonable”.
[136]
True Motives at [para 31]
also drew attention to the fact that each case is “manifestly
dependent on the local authority’s evaluation of the
known
facts”. As such, the Court pointed out that the local authority
was not obliged to employ professional valuers to advise
it in
relation to every application as this was neither practical not cost
effective. The municipality must simply make a rational
and
reasonable decision on the basis of what is before it on the known
facts.
[137] The applicant points to what he
claims is a substantial derogation in value to his property which he
claims will result from
the construction of the development approved
in terms of the 2007 plans. He bases this on a report from a valuer
obtained in respect
of the 2005 plans.
[138] There are two important legal
principles which apply to the question of value in this context.
Firstly, value means “market
value” and that is
calculated with reference to all of the property’s potential,
both realised and unrealised
[True Motives at para 30/164I –
165G].
In other words, the fact that the second respondent is
entitled to develop its property in accordance with the law to the
limits
of its potential, is something which has an influence on the
market value of the applicant’s property as it stands. Put
differently,
a hypothetical purchaser now would val
ue th
e
applicant’s property taking into account that the town planning
scheme allows the construction of six storeys in the view
line of the
applicant’s property.
[140] Secondly, and this flows from
the first principle:
“
derogation
from market value only commences:-
When the negative influence of the
new building on the subject property contravenes the restrictions
imposed by law; or
Because the new building, though in
accordance with legally imposed restrictions, is, for example, so
unattractive or intrusive
that it exceeds the legitimate
expectations of the parties to the hypothetical sale
[Camps Bay
at para 40].
[141] Consequently, the development of
a building which materially interferes with a neighbour’s
previously existing amenities
does not have as an automatic
consequency the derogation in value as required to trigger a
disqualifying factor in terms of the
Act
[True Motives at para
30.164 I-J].
[142] It is against this background
and bearing the applicant’s onus in mind that Van Der Walt’s
conduct must be measured.
[143] He was mindful of the fact
that:-
1. Konyn’s report was prepared
in respect of the 2005 plans.
It was based on digital images that
did not correctly reflect even the 2005 development as they were
prepared on the basis that
an additional story will be constructed
on top of the already constructed portion of Block A, which is not
what was approved
in either the 2005 or the 2007 plans
[Volume
4(a), page 683, paragraph 206.3 and page 615, paragraph 129]
.
3. Block B in the 2007 plans has been
moved 12 metres down the slope and out of the applicant’s line
of vision so:-
3.1 the depiction of Block B in the
digital images did not show Block B as per the 2007 plans;
3.2 the impact of Block B in the 2007
plans on both view and amenity was greatly reduced.
4. The digital images were prepared
from the lower levels of the applicant’ where the impact was
greater but the applicant’s
viewing room and main focal point
is on the upper level
[Volume 4(a), page 684, paragraph 206.4].
[144] It was submitted correctly, that
Van Der Walt’s approach and consideration of the matter was
plainly rational and reasonable.
In fact, his approach is given
credence by the applicant’s admission that the digital images
add another floor
[Volume 5(a), page 846, paragraph 125].
[145] The applicant has consequently
failed to discharge the onus resting on him on this ground of review.
[146] Having considered all the
submissions made and the relevant authorities referred to in this
regard, I am satisfied that this
ground has no substance and that the
decision to pass the plans cannot be set aside on this ground.
Legal Position
[147] There is no doubt that the
Municipality’s decision to approve the 2007 plans is
administrative action as defined in
the Promotion of Administrative
Justice at 3 of 2000 (PAJA). In terms of Section 33 of the
Constitution, the Municipalities are
required to act in a manner
which is lawful, reasonable and procedurally fair. Section 33(1) of
the Constitution of the Republic
of South Africa Act 108 of 1996
provides that everyone has a right to administrative action that is
lawful, reasonable and procedurally
fair.
Requirements for a Review
[148] In a review the question is not
whether the decision is capable of being justified …, but
whether the decision maker
properly exercised the powers entrusted to
him or her. The focus is on the process and on the way in which the
decision maker came
to the challenged conclusion.”
See : Rustenburg Platinum Mines Ltd
v CCMA
2007 (1) SA 576
(SCA) at 589 1-590 A.
[149] The grounds for review have been
authoritatively stated as follows:
“
Broadly,
in order to establish review grounds it must be shown that the
President
failed
to apply his mind
to the relevant issues in accordance with the ‘behest of the
statute and the tenents of natural justice’ … Such
failure may be shown by proof, inter alia, that the decision was
arrived at arbitrarily or capriciously or mala fide or as a result
of
unwarranted adherence to a fixed principle or in order to further an
ulterior or improper purpose; or that the President misconceived
the
nature of the decision conferred upon him and took into account
irrelevant considerations or ignored relevant ones; or that
the
decision of the President was so grossly unreasonable as to warrant
the inference that he had failed to apply his mind to the
matter in
the manner aforestated.”
See: Johannesburg Stock Exchange v
Witwatersrand Nigel Ltd 1988(3) SA 132 (AD) at 152 A-D
(See also: Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs 2004(4) SA 490 CC at paras 44 –
45)
[150] In
Pharmaceutical
Manufacturer’s Association of South Africa and Another: In Re
Ex Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at paragraph 90
, the Court stated:
“…
The
setting of this standard does not mean that the Courts can or should
substitute as to what is appropriate for the opinion of
those in whom
the power has been vested. As long as the purpose sought to be
achieved by the exercise of public power is within
the authority of
the functionary, and as long as the functionary’s decision,
viewed objectively is rational, a Court cannot
interfere with the
decision simply because it disagrees with it or considers that the
power was exercised inappropriately”.
[151] In my view, Mr Van der Walt’s
decision to approve the second respondent’s plans was rational.
[152] I am satisfied that the six
ground of review advance by the applicant in this matter have no
substance and do not justify
the setting aside of the approval of the
second respondent’s plans by the first respondent on 20
February 2007.
Alternative relief
[153] The applicant has submitted that
in the event of this Court not being disposed to grant the review on
the basis of any one
of the legal grounds advanced above, on the
papers as they stand, then the applicant will seek an order that the
following factual
issues be referred for oral evidence:
1. Whether the applicant had
reasonable grounds for suspicion that the decision maker was biased;
2. Whether the basement issue was
still subjudicare when the plans were passed.
3. Whether the Buildings Standards Act
or any other law was contravened by the plans;
4. Whether there will be a derogation
of value of the applicant’s property if the building is
constructed in accordance with
the plans.
[154] In my view, there are no real
factual disputes that require the leading of oral evidence in this
matter. All the issues raised
in the alternative have been dealt with
in this review. All parties concerned in this matter had an
opportunity to place all the
evidence before the first respondent and
actually did so. In my view, oral evidence will not disturb any
balance in this matter.
[155] Having considered all the
material placed before me, I am satisfied that the applicant’s
review application should be
dismissed.
[156] There is no reason why the costs
should not follow the result in this matter.
[157] In the result, I make the
following order:
1. The applicant’s review
application is dismissed with costs.
____________
SISHI J
APPEARANCES
Date of hearing : 7 November2011 &
13 December 2012
Date of judgment : 26 September 2012
Counsel for the Applicant : N. N.
Lange
Applicant’s Attorneys :
PRESTON-WHYTE & ASSOCIATES
C/O MASON INCORPORATED
3
rd
Floor Fedsure Building
251 Church Street
PIETERMARITZBURG
Ref: Craig Preston-Whyte/Keith Hobson
First Respondent’s Attorneys :
SEETHAL ATTORNEYS
C/O STOWEL & CO
295 Pietermaritzburg Street
PIETERMARITZBURG
Ref : G J CAMPBELL/ljn/SEE/0004
Counsel for the First Respondent: A.M.
Annandale SC
Second Respondent’s Attorneys :
LOUIS HANSMEYER ATTORNEYS
C/O STOWELL & CO
295 Pietermaritzburg Street
PIETERMARITZBURG
Ref: LAH/Stella
Counsel for the Second Respondent:
Ernst Crots