About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 13
|
|
Ethekwini Municipality v Alderwood Trading 61 CC (6244/2010) [2011] ZAKZDHC 13 (4 March 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 6244/2010
In the matter between:
ETHEKWINI MUNICIPALITY
….............................................
APPLICANT
and
ALDERWOOD TRADING 61
CC
…...................................
RESPONDENT
______________________________________________________
JUDGMENT
Delivered
on 04 March 2011
SWAIN J
[1] The applicant, the
eThekwini Municipality, seeks an order directing the respondent,
Alderwood Trading 61 cc to comply with
“the ruling”
of the Town Planning Appeals Board in Appeal No.
2964/2004, which appeal was heard as long ago as 29 January 2004.
[2] The practical effect
of the enforcement of the ruling in question, is to compel the
respondent to demolish an exterior staircase,
located at a property
owned by the respondent and which is situated at 524/526 Peter Mokoba
Road, Overport, Durban (the property).
In substitution of access
being gained to the upper level of the property, by way of the
exterior staircase, the applicant seeks
an order directing the
respondent to construct an internal staircase, at the property to
achieve this objective, in accordance
with the said ruling.
[3] In order to consider
the ruling of the Appeals Tribunal in context it is necessary to
briefly consider the history of the matter.
[4] The property had
formerly consisted of residential units which had, with the consent
of the applicant, been converted into a
pair of maisonettes. The
previous owner of the property, the Nazir Malek Trust (the Trust) had
sought to convert the residential
maisonettes, into business
premises.
[5] For present purposes
it suffices to consider the application the Trust made in April 2002,
for authority for the
“as built”
building
(being the property) and to convert the entire building to offices.
[6] That application was
granted by the applicant on 12 July 2002, pursuant to a decision by
the Executive Director (Development
and Planning), which authorised
the Trust to use the whole building for office purposes, subject to
the following conditions:
[6.1] The submission and
approval of detailed building plans, including a landscape plan, to
the satisfaction of the Executive Director.
[6.2] The provision of
twenty one parking bays.
[6.3] Restricting the
authority to the use of the ground floor as attorneys’ offices
and the remainder of the building as
administration offices only for
S A A.
[7] The decision was
unsuccessfully brought before the Mayor’s Decision Making
Committee by way of an interim appeal on 23
June 2003.
[8] The decision was then
brought on appeal before the Appeals Tribunal by Professor and Mrs.
Bell, the owners of a property adjacent
to the property.
[9] The Appeals Tribunal
dismissed the appeal and upheld the decision of the Executive
Director
“subject to the following conditions”.
“
5. The
exterior staircase on the south-western side of the building on the
appeal site be demolished, the upper door leading to
the staircase be
bricked up, and access to the upper floor of the building be limited
to the inner staircase leading to and from
the front of the building
facing on to Ridge Road.
6. That, by way of permanent bollards
or other permanent forms of device, motor vehicles be precluded from
parking in the south-eastern
corner of the appeal site between the
bays numbered 5 and 6 on the site plan which was annexed to report
number DM25/03 dated 12
May 2003 submitted to the Mayor’s
Decision Making Committee which formed part of the record filed by
the local authority
together with its appeal memorandum in this
appeal.
7. If the applicant, the Nazir Malek
Family Trust, or any registered owner of the property fails to comply
with any of the aforementioned
conditions numbered 1 to 6 within a
period of six (6) months from the date upon which the decision in
this appeal as reviewed by
the Honourable the Minister for
Traditional Affairs and Local Government has been forwarded by the
Secretary of the Appeals Board
to the applicant or the then current
owner, the decision by the local authority made by the Executive
Director (Development and
Planning) on the 12 July 2002 and confirmed
by the Mayor’s Decision Making Committee on 19 June 2003 shall
forthwith lapse
and be of no further force and effect”.
[10] Before dealing with
the substantive effect of these conditions upon the merits of the
application, it is necessary to consider
a preliminary defence raised
by the respondents. This is that the applicant has failed to allege
that the Trust, or the respondent,
was ever notified of the decision
of the Appeals Tribunal. As a consequence it is submitted that in the
absence of proof of such
notification, the six month period afforded
to the Trust or “
the then current owner”
of
the property to comply with the conditions, has not yet commenced
running, with the result that the present application to compel
the
respondent to comply with the conditions, is premature. The only
response of the applicant to this allegation, in its replying
affidavit, is to deny that the application is premature.
[11] Although it is clear
that the applicant makes no express allegation that the Trust or the
respondent, were ever notified of
the decision, it is common cause
that the exterior staircase in question was demolished, albeit to be
replaced with a new exterior
staircase, which it appears no longer
attracts the disapproval of Mrs. Bell. In my view, the probability
exists that the Trust
was notified of the decision of the Appeals
Tribunal, for otherwise why would the staircase in question have been
demolished? For
reasons which will become apparent, it is however not
necessary for me to decide this point.
[11.1] I will assume in
favour of the applicant, that the Trust was notified of the ruling of
the Appeal Tribunal, with the result
that the application is not
premature.
[11.2] I will assume in
favour of the respondent, that the demolition of the staircase took
place within six months of the Trust
being so notified.
[12] I make these
assumptions in the light of the fact that it is common cause that the
condition, that access to the upper floor
of the building, be limited
to the inner staircase leading to and from the front of the building
facing on to Ridge Road (Peter
Mokoba Road) has not been complied
with. The allegation, made by Bridget Kerr in support of the
application, that access to the
first floor is through an exterior
staircase, the interior staircase was demolished and there has been
no construction of the inner
staircase, is not disputed by the
respondent. The respondent is content to rely upon the withdrawal of
Mrs. Bell’s objection
to the presence of the newly constructed
exterior staircase, as justification for its conduct, arguing that
the imposition of the
original condition by the Appeals Tribunal was
done so specifically, to protect the privacy of the Bells. Be that as
it may, the
fact remains that there is on the papers, no interior
staircase, which limits access to the upper floor by way of such a
route.
[13] It is therefore
clear that the conditions laid down by the Appeals Tribunal were not
fulfilled, within the stipulated period,
with the consequence that
the authorisation granted to the Trust and therefore the respondent,
to use the whole of the building
for office purposes, has lapsed and
is of no force and effect.
[14] It seems to me that
a necessary consequence of this conclusion, is that the conditions
imposed by the Appeals Tribunal, in
the grant of such authorisation,
must inevitably suffer the same fate. The conditions are inextricably
linked to the survival of
the authority granted to the Trust, to use
the whole building for office purposes. The conditions have no
independent juridical
status, apart from the authority granted. The
failure to fulfil the conditions, results not only in the demise of
the authority
granted, but of the conditions themselves. A
consequence of this reasoning is that the conditions which the
applicant seeks to
enforce against the respondent in this
application, are no longer in existence.
[15] When I put the above
proposition to Mr. Van Niekerk S C, who together with Mr. Sibiya,
appeared for the applicant, he submitted
that the applicant had
waived the lapsing of the authority granted to the respondent to use
the property as offices, but had not
waived compliance by the
respondent, with the conditions imposed by the Appeals Tribunal. In
this regard Mr. Van Niekerk S C points
to the following statement of
Bridget Kerr in her affidavit:
“
15
(a) However, despite all of the above,
the applicant accepts that it would be impractical, at this stage,
that the property reverts
to maisonettes.
(b) Consequently the applicant waives
its rights to restoration of the property to maisonettes and consents
to its use as offices,
subject to the respondent’s compliance
with the applicable restrictions imposed by the Town Planning Appeals
Board”.
[16] The conclusion I
have reached however, that the existence of the conditions are
inextricably linked to the existence of the
authority granted,
precludes a waiver of the sort contended for by Mr. Van Niekerk, with
the preservation of the conditions independently
of the demise of the
authority granted.
[17] Mr. Van Niekerk also
argued that the application should not be viewed in the narrow sense,
of an attempt by the applicant to
enforce the conditions imposed by
the Appeals Tribunal, but in the the broader context of the applicant
fulfilling its role of
compelling compliance with the conditions of
zoning of the property, in accordance with the Durban Scheme. This is
a scheme adopted
by the applicant to regulate the use of land,
falling within the jurisdiction of the scheme in terms of Section 47
bis of the Town
Planning Ordinance 1949, read with 13 (i) (a) of the
KwaZulu-Natal Planning and Development Act 2008.
[18] It is however quite
clear that the purpose of the whole application was to compel
compliance by the respondent, with the conditions
imposed by the Town
Planning Appeals Tribunal. This is spelt out in the notice of motion,
as well as expressly in the applicant’s
founding affidavit of
Alisande Bradshaw, in the following words:
“
11.
It is the applicant’s contention
that the trust failed to comply with the further conditions laid down
by the Town Planning
Appeals Board. The details of their failure to
comply are set out in the affidavit of Bridget Kerr filed evenly
herewith.
12.
This application seeks to compel the
respondent to comply with such conditions, as the respondent is
presently in violation of the
Appeals Board decision.
13.
The applicant submits that for the
reasons set out in that affidavit the applicant is entitled to an
order directing the respondent
to comply with the conditions imposed
by the Town Planning Appeals Board”.
This theme is repeated in
the supporting affidavit of Bridget Kerr where the following is
stated:
“
2.
The purpose of this affidavit is to
set out the grounds upon which the applicant believes that it is
entitled to compel compliance
with a decision of the Town Planning
Appeals board as set out in the founding affidavit of Alisande
Bradshaw herein in respect
of the premises situated at 524/526 Peter
Mokaba Road (formerly Ridge Road), Durban (“the property”)”.
and which concludes with
the following submission:
“
16.
The applicant submits that for the
reasons set out herein the applicant is entitled to an order
compelling the respondent to comply
with the conditions imposed in
sub-paragraph 10 (a) above by the Town Planning Appeals Board”.
[19] Although the grant
of the order sought by the applicant, may have as its consequence,
compliance by the respondent with the
provisions of the Durban
Scheme, this cannot in itself justify the grant of an order enforcing
compliance by the respondent with
conditions, which are no longer of
any force and effect.
[20] As regards the issue
of costs of the application, Mr. Van Niekerk submitted that if the
application was refused, in the light
of the conduct of the
respondent, in blatantly constructing a further exterior staircase,
without authority and failing to construct
an interior staircase, as
required by the Appeals Tribunal, the respondent should be deprived
of its costs in successfully opposing
the application.
[21] I have given
consideration to this submission, but the fact remains that the basis
for the application, for the reasons set
out above, was from the
outset misconceived.
In the result the order I
make is the following:
(a) The application is
dismissed.
(b) The applicant is
ordered to pay the
the respondent’s
costs.
______________
K. SWAIN J
Appearances /
Appearances:
For the Applicant :
Mr. G. O. Van Niekerk S C
Instructed
by :
Naidoo Maharaj Inc.
Durban
For the Respondent
:
Mr. R. Mohamed
Instructed
by :
Mohamed Hassim Attorneys
Durban
Date of Hearing
:
02 March 2011
Date of Filing of
Judgment :
04 March 2011