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[2011] ZAKZDHC 30
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Ethekweni Municipality v Vukukhanye Personnel Services CC (2164/2010) [2011] ZAKZDHC 30 (21 June 2011)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No : 2164/2010
In
the matter between :
Ethekweni
Municipality
…...................................................................................
Applicant
and
Vukukhanye
Personnel Services CC
….........................................................
Respondent
Judgment
Lopes J
[1] The respondent is the registered
owner of certain immovable property (‘the property’)
measuring 2 023m² and
situated at 62 Glenugie Road, Manors,
Pinetown, KwaZulu-Natal.
[2] The applicant, the Ethekweni
Municipality, seeks an order that the respondent be interdicted and
restrained from using the property
in contravention of the Pinetown
Town Planning Scheme in the course of preparation (‘the Town
Planning Scheme’) and
the provisions of the National Building
Regulations and Building Standards Act, 1977 (‘the NBR’).
The applicant further
seeks an order that the respondent be directed
to demolish a generator room, and a wooden hut comprising offices,
which are located
on the property. It also seeks an interdict
restraining the respondent from occupying any portion of those
buildings in the absence
of plans approved by the applicant.
The history of the property
:
[3] The history of the property as it
emerges from the papers, and insofar as it is relevant to this
application, may be summarised
as follows :-
the property is a residential site
which is zoned ‘Special Residential 1’ in terms of the
Town Planning Scheme;
during 1990 the respondent purchased
the property from its previous owner who had used the premises for
business purposes. The
property was transferred into the name of the
respondent;
in July of 2009 the respondent
applied to the applicant’s development and planning department
to have the property re-zoned
from ‘Special Residential 1’
to a ‘Transitional’ zone which would enable it to be
used for office premises;
that application was considered and
rejected by the applicant on the 8
th
October 2009;
on the 15
th
February 2010
the respondent appealed against the applicant’s refusal of the
re-zoning application. That appeal was dismissed
on the 27
th
July 2010; and
in the intervening period since it
acquired ownership of the property, the respondent:-
submitted a set of three plans in
June of 2009 for certain building works on the property, designed
to re-constitute the main
dwelling and outbuildings as office
premises. These plans did not pass the ‘pre-scrutiny’
stage and were returned
to the respondent (in this regard it is
important to note that the only approved building plans the
applicant has on record
are those for the construction of the
residential dwelling in 1976);
alleges that it re-submitted those
plans shortly thereafter but they have neither been approved nor
rejected by the applicant
and the respondent still awaits the
applicant’s decision in this regard;
has received a number of notices
from the applicant objecting to the respondent carrying out
building works and alterations
to the premises without the
requisite consent from the applicant; and
has continued to use the premises as
business and office premises.
[4] If the zoning is in fact ‘Special
Residential 1’, the respondent accepts that the uses to which
the property has
been put are in contravention of the Town Planning
Scheme. However, Ms
Mills
, who appeared on behalf of the
respondent, raised the following defences to the applicant’s
claim :-
that the property was zoned for
‘Business and Commercial’ use, and the respondent was
entitled to conduct a business
from the premises;
that the use to which the property
was being put, is not necessarily a use which commenced after the
adoption of the Town Planning
Scheme. It is possible that this use
was carried on as a pre-existing conforming use, and unless the
applicant proves otherwise,
it is not entitled to relief;
that the respondent was not obliged
to provide the applicant with any plans or permission to carry out
the building alterations
which it did. In this regard Ms
Mills
referred to s 13 of the NRB, and submitted that the repairs which
were carried out were within the ambit of the definition of
‘minor
building work’ as defined in the regulations to the NBR; and
that in any event, and for reasons of
equity, the demolition of the generator room and the wooden offices
are not warranted.
[5] The respondent sought in the
alternative that any order granted should require the respondent to
re-submit its plans for the
alterations which it carried out, within
a reasonable period of time.
The issues
:
[6] The first issue to be dealt with
is the zoning of the property. The applicant set out as annexures to
its affidavit, a zoning
and locality plan taken from the Town
Planning Scheme, as well as Table C to the scheme which sets out the
relevant uses to which
the property may be put. The respondent’s
reply to this is that the property was in fact zoned ‘Business
and Commercial
Use’. It reaches this conclusion based solely
upon a rates assessment form sent to the respondent by the plaintiff,
and containing
under the heading ‘Property Category’ the
words ‘Business and Commercial (sewered)’.
[7] This allegation is repeated at
least three times in the answering affidavit. In its replying
affidavit the respondent sets out
that rates are computed according
to the purpose for which the property is used, in accordance with the
applicant’s rates
policy. In terms of that policy it does not
matter whether the use to which the property is put is authorised or
not. That is why
the rates assessment form reflects the words
‘Business and Commercial (sewered) - it has nothing to do with
the town planning
zoning of the property.
[8] I do not believe this defence has
any merit. It is illogical to assume that the description of the
property in a rates notice
as being ‘Business and Commercial
(sewered)’ overrides a zoning laid down in the Town Planning
Scheme. The respondent
adduces no evidence, other than the say so of
the deponent to its answering affidavit, to substantiate such a
finding.
[9] In any event, this argument seems
to have been something of an afterthought. I say this because in an
application by the respondent
in July 2009 for the re-zoning of the
property, the respondent’s representative states that the site
is covered by a ‘Special
Residential 1’ zone. In the
application the respondent records that the site was used for
business purposes ‘as a result
of the loss of residential
amenity…’, and that the respondent ‘has undertaken
to follow the regulated processes
by obtaining a rezoning prior to
operating an office use from the site’.
[10] I find that the property is zoned
‘Special Residential 1’. In those circumstances, and on
the respondent’s
own admission, the use to which the property
is being put is in contravention of the Town Planning Scheme.
[11] Secondly, Ms
Mills
submitted that because of the provisions of s 67 of the Town Planning
Ordinance 27 of 1949, the respondent is entitled to use the
property
for business purposes notwithstanding that such use is in
contravention of the provisions of the Town Planning Scheme.
[12] The Ordinance provides :-
’
67
… (1) No person in any area in respect of which a resolution
to prepare a scheme shall have taken effect shall –
erect
a building or structure or alter or extend a building or structure;
or
develop
or use any land, or use any building or structure for any purpose
different from the purpose for which it was being developed
or used,
as the case may be, at the date when the resolution to prepare a
scheme took effect; or
use
any building or structure erected after the date when the resolution
to prepare a scheme took effect for a purpose different
from the
purpose for which it was erected; or
…
unless
in any such cases he has first applied in writing to the local
authority for authority to do so, and the said local authority
has
granted its written authority therefor, either with or without
conditions :…
Where
there has been any interruption in the development or use of any
land or the use of any building or structure after the
date when the
resolution to prepare a scheme took effect for a continuous period
exceeding eighteen months, or where any building
or structure
erected after such date is not used for the purpose for which it was
erected within eighteen months after its completion,
it shall not be
lawful to re-commence such development or use or commence such use,
as the case may be, without the authority
of the local authority
applied for and granted in the manner prescribed in sub-section
(1).’
[13] In order to determine whether or
not the respondent’s unlawful acts are sanctioned by the
provisions of s 67 of the Ordinance,
it is necessary to look at the
purpose of the above section of the Act.
[14] Breaking down sub-s 67(2) in
order properly to understand it, it provides :-
that where there has been an
interruption in the development or use of the building for a
continuous period exceeding 18 months,
after the date when the
resolution to prepare a scheme took effect; or
where any building erected after the
date upon which the resolution to prepare a scheme took place is not
used for the purpose
for which it was erected within 18 months after
the completion of that building;
it shall not be lawful to re-commence
such development for use or commence such use without the authority
of the local authority.
[15] The purpose of the section as
best I am able to interpret it is that if the use to which a building
has been put is interrupted
for a continuous period of more than 18
months, then it is unlawful to re-commence such use without the
authority of the local
authority. In addition, if the building or
structure is not used for the purpose for which it was erected within
18 months after
its completion, it will not be lawful to re-commence
such use without the authority of the local authority.
[16] This provision does not govern
the present matter. The suggestion is that because the applicant
bears the onus of proving unlawfulness,
it has to satisfy the court
that no such interruption as envisaged in sub-s 67(2) took place. It
is clear from the papers that
the buildings on the property were
originally constructed for residential use. The submission is that
the applicant must prove
that the original use has not been
interrupted continuously for more than 18 months, during which 18
months the property was used
for business purposes. Until the
applicant does so, so the argument goes, the applicant has not
discharged the onus of proving
unlawful conduct on the part of the
respondent.
[17] I cannot agree with this
interpretation. It is common cause that the conduct of the respondent
is unlawful if the zoning of
the property is ‘Special
Residential1’, which I have found it to be. In my view that is
all the applicant needs to
do to establish prima facie unlawful
conduct on the part of the respondent. If the respondent wishes to
raise a defence to that
allegation based on the past and distant
history of the property, then it must raise such facts as would
establish such a defence.
That is not the same as burdening the
respondent with the onus to prove lawfulness.
[18] It does not seem reasonable that
the purpose of the section can be as is contended for by the
respondent. One need only consider
the steps which the municipality
would have to take to enforce the provisions of the Act, if that was
a correct interpretation.
It would have to investigate and establish
the use to which every property has been put since the resolution to
prepare the Town
Planning Scheme took effect. It would have to know,
for instance, whether the property had been put to a different use
from that
for which the property was originally intended, when such
different use first started and when it ended. These are clearly not
matters of which the applicant would necessarily become aware, and I
cannot envisage that the legislature intended that the applicant
should have to do so in order to establish conduct by a party which
is in contravention of the Town Planning Scheme. I am accordingly
of
the view that this defence has no merit.
[19] As part of the second defence, Ms
Mills
drew a distinction between town planning schemes in the
course of preparation and town planning schemes which have been
approved
by the relevant member of the Executive Council (‘MEC’).
She submitted that where schemes have been approved by the
MEC
pursuant to the provisions of s 54 of the Ordinance, the applicant is
entitled to prohibit the use of property in a manner
contravening the
provisions of the Town Planning Scheme, or to procure the demolition
of buildings which do not conform to the
provisions of the scheme.
She submits that this operates in terms of s 56 of the Ordinance
which does not apply to schemes in the
course of preparation. She
further submitted that non-compliance with a scheme in the course of
preparation does not necessarily
attract sanction because it is not
necessarily unlawful.
[20] Section 54 of the Ordinance
provides the Administrator with the power to refuse or approve a
scheme after a report and recommendations
on the scheme have been
submitted to him. Section 56 of the Ordinance provides that once an
approved scheme comes into operation,
the responsible authority (in
this case the applicant) shall observe and enforce the observance of
all the provisions of the scheme.
Certain powers are then given to
the responsible authority.
[21] In thus interpreting the
Ordinance, those sections dealing with the creation of schemes in the
course of preparation have been
ignored. These appear from s 45 of
the Act onwards. Section 46 provides that every scheme ( and a
‘scheme’ includes
a scheme in the course of preparation)
shall define the area to which it applies and shall specify the uses
of land or buildings
which are permitted or prohibited or which may
be permitted by special consent. Those sections provide for public
participation
in the adoption of the provisions of a scheme in the
course of preparation. They also provide that any owner of land may
apply
to the local authority for the re-zoning of the land, and
provision is made for appeals against the decision of the local
authority
by any applicant or objector.
[22] The prohibitions which appear in
s 67 are clearly enforceable at the instance of the applicant. In
this regard see
Essack v Pietermaritzburg City Council and Another
1971 (3) SA 946
(A) at 964 E – 965 D,
Ethekweni Municipality
v Tsogo Sun KwaZulu-Natal (Pty) Ltd
2007 (6) SA 272
(SCA) para
25.
[23] The third issue raised by the
respondent’s counsel was that nothing in the NBR required the
respondent to submit plans
or request permission from the applicant
to carry out the building operations which it did. This was because
the provisions of
s 4(1) of the NBR provide :-
‘
(1)
No person shall without the prior approval in writing of the local
authority in question, erect any building in respect of which
plans
and specifications are to be drawn and submitted in terms of this
Act.’
‘
Building’
is defined in s 1 of the NBR and provides that it includes :-
‘
(a)
any other structure, whether of a temporary or permanent nature and
irrespective of the materials used in the erection thereof,
erected
or used for or in connection with –
(i)
the accommodation or convenience of human beings or animals;
(ii)
…storage … of any goods …
(b)
…
(c)
…
(d)
any part of a building, including a building as defined in paragraph
(a), (b) or (c).
[24] It was submitted that neither the
NBR nor the regulations promulgated pursuant thereto specify what
buildings and structures
require plans and specifications to be drawn
and submitted under the NBR. In this regard reference was made to s
13 of the NBR
which gives a building control officer the power to
exempt the owner from the obligation to submit plans with regard to
minor building
works. Minor building works are defined in s 1 of the
regulations to the NBR.
[25] The respondent submits that the
applicant has not demonstrated that all the work which the respondent
carried out on the property
was not excluded from the definition of
‘minor building work’. In those circumstances the
applicant has not demonstrated
that plans were required in terms of
the NBR and accordingly it cannot be said that the respondent has
contravened any of the provisions
of the Act.
[26] What is clear is that the
respondent seeks to invoke an exemption in terms of sub-section
13(1). However, it is required that
such an exemption be given in
writing. No allegation whatsoever has been made by the respondent
that it has the consent in writing
of the applicant not to submit
building plans on the basis of an exemption in terms of s 13(1).
[27] Indeed, the contrary is evident
because the applicant has written a number of letters to the
respondent complaining about the
works and indicating that plans are
in fact required. I accordingly find that this defence has no merit.
[28] Finally, it is submitted that the
demolition of the generator and the wooden hut are not warranted. The
submission was made
that this was because of the way in which they
have been built, and that they do not constitute a danger to any
person. Those are
matters, however, which are not for the respondent
to decide. These matters are among the very reasons why the applicant
is given
the responsibility of overseeing building works.
[29] Notwithstanding the aforegoing, I
am of the view that it may be unreasonable to order the demolition of
the generator room
and the wooden offices, on the basis that the
respondent be given a final opportunity to remedy its default.
[30] In all the circumstances I am
satisfied that the applicant has established the clear right
necessary for an interdict. In as
far as the respondent has operated
in breach of the Town Planning Scheme and the NBR, there has already
been an injury committed.
The applicant has been prevented from
complying with its statutory obligations in overseeing the
construction and use of premises
within its area of jurisdiction.
This of itself is sufficient prejudice to satisfy the second
requirement for an interdict.
[31] Whilst it may be arguable that
there are other remedies which the applicant could apply – for
instance the institution
of criminal proceedings against the
respondent, the fact that there is an alternative statutory penalty
does not disqualify the
applicant from being granted the relief which
it seeks.
See
:
Huisamen and Others v
Port Elizabeth Municipality
1998 (1) SA 477
(E) at 483 I –
484 F.
[32] In my view the respondent cannot
complain of any prejudice which it suffers as a result of its
unlawful conduct.
[33] Finally and insofar as there are
any disputes of fact on the papers, in my view they do not raise
real, genuine or bona fide
disputes of fact which impact upon the
probabilities. I am satisfied that the respondent’s conduct was
unlawful, both in
relation to the use to which it has put the
property, and the changes it made to the property without consent.
See
:
Plascon-Evans Paints
Ltd v van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E
– I.
[34] I make the following order :-
(i) the respondent is interdicted and
restrained forthwith from continuing, using, undertaking or
conducting any activities in contravention
of the Pinetown Town
Planning Scheme in the course of preparation, at or upon the property
described as Erf 1657 Pinetown and situated
at 67 Glenugie Road,
Manors, Pinetown, KwaZulu-Natal (‘the property’) and, in
particular from using the property for
any purpose other than those
permitted uses in terms of a ‘Special Residential 1’
zoning.
(ii) The respondent is interdicted and
restrained forthwith from occupying or in any way using any portion
of the generator room
and the wooden hut structure on the premises.
(iii) In the event of the respondent
failing to submit plans in terms of the National Building Regulations
and Buildings Standards
Act, 1977 to the applicant for the generator
room and wooden hut structure within 20 days of the date of this
order, the respondent
is directed to demolish, or cause to be
demolished, those structures within 14 days of the lapse of the 20
day period.
(iv) In the event of the respondent
failing to submit the necessary plans for approval by the applicant
as envisaged in (iii) above,
and failing to demolish the said
structures within the time periods set forth above, the Sheriff of
this Court is authorised and
directed to cause such structures to be
demolished, and in doing so may utilise the services of the
applicant’s employees
or agents.
(v) The respondent is directed to pay
the applicant’s costs of this application, such costs to
include the costs consequent
upon the execution of any order in terms
of paragraph (iv) above.
Date of hearing :25
th
May
2011
Date of judgment : 21
st
June 2011
Counsel for the applicant : S Mahabeer
(instructed by Naidoo Maharaj Incorporated)
Counsel for the respondent : L M Mills
(instructed by Nxumalo and Partners)