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[2008] ZAWCHC 102
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Noordhoek Environmental Action Group v Wiley and Others (2843/2007) [2008] ZAWCHC 102 (19 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
2843/2007
DATE
:
19
FEBRUARY 2008
In
the matter between:
THE
NOORDHOEK ENVIRONMENTAL
ACTION
GROUP
Applicant
And
JEREMY
J F WILEY
1
ST
Respondent
JEREMY
R WILDER
2
nd
Respondent
THE
DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS
THE
CITY OF CAPE TOWN
3
th
Respondent
DAVIS,
J
:
Introduction
[1]
The applicant has applied for a final interdict in which relief
of a mandatory nature is sought. The essence of the relief
is that
first respondent should be ordered to restore erf 453 Noordhoek to
the condition that it was before the undertaking of
a construction
of a parking lot, as well as a large brick and mortar signpost so as
to
comply
with title deed conditions pertaining to erf 453, as well as
conditions pertaining to the subdivision of the mother erf
and
zoning of erf 453.
[2] It
is trite law that in order to succeed in this application for a
final interdict in motion proceedings, the applicant must
establish
a clear right, an injury actually committed or reasonably
apprehended and the absence of any suitable alternative relief.
[3] In
the context of this application, if the applicant establishes that
the use right pertaining to erf 453 does not include
the
construction of a parking lot or the construction of a parking and a
signpost is in conflict with the restrictive conditions
of zoning,
it must
follow
that
first respondent's construction and use thereof as a parking lot and
the erection of a signpost thereon would be unlawful
and would
constitute an injury actually committed. Accordingly, first
respondent's opposition to this application has focused
on the first
and third of the requirements for a final interdict.
The
factual matrix
[4] It
would appear from the papers that a number of facts are not, in any
substantive form, disputed between the parties. First
respondent is
a trust in whose name erf 453 (portion of erf 270) Chapman's Peak,
Noordhoek (erf 453), is registered. Subject
to what follows, first
respondent was the registered owner of erf 270 Chapman's Peak in
Noordhoek, the original mother erf which
was subdivided pursuant to
approval granted during 1993, into six erven with separate title.
Prior to its subdivision, the rezoning
of certain of the subdivided
erven with formerly comprised erf 270, was zoned public open space
in terms of the local authority's
applicable zoning scheme.
[5] Although
first respondent has noted that he objected to the original zoning
of erf 270 at the time and the rezoning application
of erf 270
Chapman's Peak, applicant brought no application to review or set
aside either the original zoning of the mother erf
or the zoning of
erf 453 after the subdivision and the conditions pertaining to the
subdivision of erf 270 and the current zoning
of erf 453 are
accordingly common cause.
[6]
Approval was granted for the rezoning and subdivision of erf 270
by the relevant provincial authority in 1993, although
it does
appear from the papers that the process of subdivision may only have
been completed in 1998; hence the averment of the
date 1998 by first
respondent in his answering affidavit. First respondent's
application for rezoning and subdivision of erf
270 emphasised that
a
sketch
plan indicating the proposed development and land use for the
mother erf after the subdivision allowed for an open space
of
approximately 600m
2
which was identified as number 9 on the sketch plan. The sketch plan
described the area which now comprises erf 453 as a paddock,
although the proposal at that stage also included a community hall
on the western side of the erf. In terms of the subdivision
which
was later granted, the site of the proposed community hall was later
moved to the eastern side of erf 270 which became
the subdivided erf
456.
[7]
The application for rezoning and subdivision emphasised that the
site was the most important under-developed site in the context
of
the developing environment of Noordhoek. The application also
emphasised that the site was relatively flat with a fairly high
water table and that the site was "buildable" but careful
control had to be
exercised to ensure the retention of its many
natural attributes. The application for subdivision or rezoning
further proposed
that:
1. All
parking must be provided on site and in accordance with the
requirements of the rezoning scheme.
2. A
committee be established which would include members nominated by
the local civic association which would be involved in
the process
of formulating an acceptable development plan and building design
manual in respect of the land in question and
which would ensure
its satisfactory implementation. It was suggested that the community
would remain involved in the process
of the development of the site
in that manner.
3. The
open space area of approximately 6000m
2
should
be ceded to the Council so as to give the community some of the
public open space they sought.
An
Annexure (F) to the application for rezoning and subdivision
contained the following regarding the development:
"The
proposed development leaves about 9000m
2
of private open space...divided into two spaces:
1. A
paddock of about 6000m
2
;
2. village
square of about 3000m
2
"
8]
Pursuant to the application for subdivision and rezoning, erf 270
was subdivided into six erven, one of which was erf 453.
The
subdivision and rezoning was approved by the provincial authority,
inter
alia,
with
the following conditions:
"1.
That the ± 6000m
2
area indicated as "open space" be deducted from erf 270
and zoned "open space" in terms of the Scheme Regulations
pertaining to this area;
2. that
in terms of section 2(b) of the Scheme Regulations, the site be
reserved as "open space for public use" and
that no
permanent structure be erected thereon without the Administrator's
consent
3. That
a title condition be imposed restricting the use of the land for
open space purposes only".
The
approval for rezoning of a portion of erf 270 Noordhoek
from public open space to commercial, special
residential, general residential and civic and community
purposes was granted subject to the conditions which
are
contained in the schedule. One of the conditions was condition 10
which stated:
"All
parking to be on site and in accordance with the requirements of the
zoning scheme".
It
would appear that the word "site" referred to the
portion of erf 270 which fell to be rezoned as described in the
top
of the condition relating to the rezoning of the remainder of the
subdivided erven, excluding erven 453 and 454.
[9] The
conditions were incorporated as title deed restrictions in the
certificate of registered title in respect of the subdivided
erven.
During 1995, first respondent applied to the then relevant local
authority for an extension of the said rezoning approval
for a
further period of two years and for approval of its development plan
and design manual for the six erven. The design manual
indicated
that the development of erven 493, 455 and 457 would occur in three
phases. The design manual made no reference to
the utilisation of
erf 453 for parking and specified that the area comprising erf 453
would be used as "farmland/open space".
The manual also
positively asserted that "this area will be retained as open
space and used for grazing or growing produce".
[10]
On 26 June 1995 the local authority's executive
committee granted the extension of the rezoning approval
and
approval of the development plan and design manual on the basis
that:
"The
required open space (4770m
2
located at the western corner and 1435m
2
located in the north- east corner) is to be subdivided. No parking
is to be permitted on the open space.
It further required
that the design manual be amended to indicate that the open
space site be reserved for public
use and not solely for grazing and
growing produce for the farm stall and restaurant".
[11]First
respondent later applied for a further rezoning of erf 455 from
"civic and community" to "general residential"
to enable first respondent to consolidate erven 455 and 457 for the
purposes of the construction of a 31-room hotel on the
erven.
Although this application was later withdrawn by first
respondent, the issue of parking now came to a head.
Construction of
the brick and mortar structure for the signage on erf 453, which is
set out in photographs annexed to the founding
and replying
affidavits, occurred during early 2005. It appears to be common
cause that the local authority approved the structure,
provincial
authority (being second respondent) had not.
[12]
At this point it is perhaps appropriate to note that neither second
nor third respondent have entered any form of appearance,
nor
provided this Court with any argument in relation to this. As Mr
Bridgman
,
who appeared on behalf of first respondent correctly noted, this is
regrettable and, in my view, somewhat of an abrogation of
their
public duty towards the environment and development within this
area. I say no more in this regard. During September 2006,
first
respondent caused erf 453 to be graded, tarred and kerbstone to be
built thereon, again reflected in photographs which
are annexed to
the founding affidavit. So much therefore for the factual matrix
underpinning the dispute.
Material
Disputes
[13]
I now turn to the material issues in dispute, It would appear that
by the time this matter was argued before me, the material
issue had
crystalised into a dispute about the condition pertaining to the
subdivision and rezoning of erf 453, namely that erf
453 was
reserved in terms of section 2(b) of the Scheme Regulations as
"open space for public use" and whether this
included the
use by the public for parking their vehicles on such open space.
[14] First
respondent contends that erf 453 has been utilised for parking for
more than 11 years and averrs that the construction
of the parking
lot to which the applicant has objected is merely an extension of an
existing use of the erf. The question therefore
which needs to be
determined is whether first respondent contravened the restrictive
title conditions of erf 453 and the conditions
of approval of
subdivision and rezoning pertaining to erf 453 by constructing a tar
and kerbstone parking lot thereon and thereby
restricting the
greater part of the erf to the use of parking only and by the
construction of the brick and mortar signpost on
erf 453. This
concerns an interpretation of both the title deed conditions and the
conditions of approval for subdivision and
rezoning.
[15]
Mr
van
der Merwe
,
who appeared on behalf of the applicant, submitted that "an
open space" zoning is irreconcilable with the limitation
and
the use of a substantial part of the erf for the parking of motor
vehicles. In his view, this contention is supported by
the
following:
1.
Section
2(b) of the applicable Zoning Scheme Regulations make separate
provision for land use restricted to "open space"
as
opposed to land use restricted to "public parking purposes".
2. First
respondent's application for subdivision and rezoning clearly
indicated that erf 453 would be retained as "open
space"
in the sense that it would be a paddock.
3. The
provincial authorities' conditions of approval and rezoning also
indicated that the parking would be limited to the sites
to be
rezoned "special residential", "community and civil",
"commercial" and "residential
hotel only" which
would comprise subdivided erven 494, 493, 456 and 457.
4. The
limitation was confirmed in express terms by the third respondent's
predecessor in title in granting of approval for an
extension of the
rezoning and subdivision. This confirmation did not constitute a
deviation of the existing restrictive conditions,
but a confirmation
thereof.
Mr
van
der Merwe
also submitted that the conditions of subdivision and rezoning not
only limited the use of the site to "open space for public
use"
but also limited the use of the site to the extent that no permanent
structure should be erected thereon without the
consent of the
Administrator. He submitted that it was common cause
that
the second respondent's consent had not been obtained for the
construction of a parking lot or the construction of
a brick and
mortar signpost.
[16]
The question arises whether the present construction is to be
regarded as a
"structure"
and
whether it is "permanent". In an answering affidavit
deposed to by Mr Wiley on behalf of first respondent, there
is a
suggestion that neither the tar and kerbstone parking lot nor the
signpost was a construction, nor permanent. Mr
van
der Merwe
countered that this was an untenable suggestion.
In
his view, it was "bizarre" to suggest that the
construction of the kerbstone and the laying of the tar were neither
constructions nor permanent. Similarly, it was incorrect to suggest
that the large mortar and brick signage was not a construction
of a
permanent nature. Accordingly, he contended that the conduct of
first respondent constituted a contravention of the restrictive
title conditions pertaining to erf 453 and the conditions of
subdivision and rezoning by the relevant respondents. The conduct,
in his view, of first respondent was
therefore
unlawful.
[17] Mr
Bridqman
,
who appeared on behalf of first respondent, submitted that the
public had a right to park on land zoned "public open space"
in terms of section 24(2) of the Cape Town Zoning Scheme. He
contended that it is "ridiculous" to assert, as the
applicant appeared to assert, that first respondent may not park on
its own private land zoned open space within a designated special
area. There was nothing in his view to suggest that in the old
Divisional Council Zoning Scheme which applied to erf 270, parking
was not permitted on land zoned open space. Precisely the opposite
was the more reasonable interpretation in his view, namely
that the
public may park on land zoned open space.
[18] In
addition, first respondent had averred that the use of erf 453 as an
area for parking had been officially and formally
recognised by the
relevant authorities (insofar as formal approval was in fact
necessary) starting with the Administrator in
the 1993 rezoning in
terms of the various development plans which have been approved.
[19] A
letter dated 21 November 2003 was, in his view, decisive. On
behalf of the Provincial Department of Transport
and Public
Works the Deputy Director-General: Road Infrastructure
accepted the traffic impact statement which
agreed with the
proposed parking arrangements and required that "sufficient
open spaces shall be retained for on-site
parking in accordance with
this branch's Road Access Guidelines. In addition, Mr
Bridgman
sought to read the permission of 27 May 1993
to
be flexible in that as economic context changed, so should the
reading of the permission insofar as development
was
concerned. To the applicant's argument that aerial
photographs taken from 1996 onwards revealed little
in the way
of permanent parking, Mr
Bridqman
contended that the aerial photographs of 2004 and 2005 clearly
showed cars parked on erf 453. Obviously cars are not at all times
parked on erf 453 but
at
peak time, such as the Noordhoek County Fair on the nearby
Noordhoek Avondrust common or when the Noordhoek Farm
Village was busy when the public parked their cars on erf
453. There was no indication on the aerial photographs submitted
by
the applicant as to the day of the week or month in which the
photographs were taken.
[20]
In his answering affidavit, Mr Wiley stated that the public
had
parked on erf 453 for more than 11 years. In Mr
Bridgman's
view, this version could not simply be discarded on
the basis of roughly dated and unclear aerial photographs.
Evaluation
[21]
Unfortunately there is no definition of open space that can
determine this dispute with any measure of precision. Although
not
decisive (there is nothing equivalent in the applicable Divisional
Council Zoning Scheme), the Zoning Scheme Regulations
(revised
December 1973) define open space as follows:
"Public
open space or public place means any land used or reserved in the
Scheme for use by the public as an open space,
park, garden,
playground, recreation ground and ancillary facilities".
In
O'Gradv
v Fisher & Others
2007(2) SA 380 (C) at 386-387,
Van
Reenen, J
determined that a paved parking area intended to be used by
guests fell within the definition of a building. Of
relevance
to the present dispute is the following passage from the judgment;
"Although
the concept of "structure" includes a building, it is a
concept of much wider import...and, in its
wide sense, means
anything which is constructed or put together, articles put
together to form one whole form
of structure...or anything
which is constructed; and it involves the notion of something which
is put together consisting
of a number of different things which are
not together or built together". It is apparent from the
photographs of the
paved area annexed to the papers that it consists
of building bricks of unequal size placed in a discernible pattern
on levelled
and (presumably compacted) ground and embedded in the
mortar.In my view, the said paved area clearly falls within the
everyday
dictionary meaning of "structure"."
[22]
An aerial photograph of 2007 luminously reveals the extent of the
permanent nature of the parking so constructed which occupies
a huge
central portion of the relevant erf. Whatever parking took place
prior to the construction was clearly of a temporary
and informal
kind as is revealed by the aerial photograph attached to the papers
between 1996 and 2005. Even in the design manual
submitted by first
respondent in 1995 in support of an extension of the rezoning
approval, it is common cause that no reference
was made in respect
of the utilisation of erf 453 for parking. Mr
Wiley's
answer is
itself
extremely instructive:
"I
point out that the development plan and design manual are
guideline documents and are not intended to be definitive
or
overly prescriptive. It is by no means intended to cast the
development in stone but rather to evolve over time to meet the
reasonable practical needs of a growing local community in
accordance with sound urban design, architectural town planning and
traffic management principles".
[23]
Although much was made of the letter of the DDG of Road
Infrastructure of 21 November 2003 which, read together with the
traffic impact statement of September 2003 as supporting first
respondent's case regarding permission for parking on erf 453,
it
appears that the letter refers to erf 270 as a whole and not in any
specific fashion to erf 453 and therefore the right to
park on that
erf.
The very basis of this case turns on whether the protection of the
open space on the subdivided erf 453 has been breached.
If erf 453
was to be regarded as part of erf 270, what was the point of the
specific condition pertaining to 'open space' on
erf 453?
[24] There
was considerable debate as to the plan that was
finally
accepted
in 1997. Ms
Fleischer
,
attorney
for
first respondent, contended that the development plan of 17 October
1 997 approved parking on the erf. However, applicant
produced a
letter from the South Peninsula Municipality dated 17 October 2003
which read together with the attached plans which
clearly superseded
the
earlier
version proffered by first respondent, indicated an absence of
parking on that erf 453. An examination of the development
plans
proferred by first respondent indicates the intention to have
open space in the area which is now erf 453. Only
on 14 September
2006 did a parking layout plan emerge which was supported by the
City Engineers. For these reasons the papers
did not reveal a
dispute of fact sufficient to conclude that no finding can be made
that no permission was ever granted for a
permanent parking lot on
erf 453.
[25] As
to the interpretation of the permission which was granted in terms
of legislation regulations to the extent that if there
is any doubt
about the permission granted, the concept "open space"
should, in my view, be interpreted so as
to
support
the constitutional commitment to the environment as contained in
section 24 of the Republic of South Africa Constitution
Act, 108 of
1996.
[26]
I accept that I am not interpreting legislation
per
se,
in
which case the Constitution is directly applicable in terms of
section 39(2) of the Constitution. It does appear to me, however,
that the constitution provides a recourse for interpretation of
ambiguous phrases and that a court should take seriously
constitutional
commitments to the protection of the environment when
determining the meaning of a phrase as hotly contested as open space
was
during the course of the hearing.
No
alternative remedy
[27]
First respondent contends
that
insofar
as applicant had lodged a complaint with third respondent and
referred the matter to the provincial authorities and that
as the
administrative process had not yet reached finality, this
application should not be adjudicated before such administrative
process has been completed. The requirement for a final interdict
that respondent should have no alternative remedy requires;
1.
That the alternative remedy should be adequate in
the circumstances;
2.
that it should grant similar protection to the relief sought.
(See
in this particular regard
Cape
Town Municipality v
Abdullah
1974(4) SA 428 (C) at 440) The alternative remedy clearly must be
effective or appropriate in the circumstances. The facts demonstrate
that the administrative process did not provide an effective remedy.
Although second respondent had taken the
approach that the use of
erf 453 was unlawful and that an application should be lodged by
first respondent in terms of the Removal
of Restrictions Act 84 of
1967, both respondents decided to abide the decision of this Court.
As to their attitude I have already
made my views clear.
[28]
After applicant had filed a complaint with third respondent, several
months past during which the application received no
response
thereto. Applicant was advised of a site visit by second respondent
during November 2006 and no further steps were taken
by either
respondent, nor was applicant advised that any steps
would
be taken in future. Only after the present application was launched
did a copy of a communication by second respondent to
third
respondent become available to the applicant. The communication
assumed that no development had taken place and described
no
timeframe within which any legal steps would be taken.
In
my view, this is no basis for a contention that there was a
satisfactory alternative remedy available.
[29]
In my view, there is no effective alternative remedy
providing
similar relief to the relief sought in this application which is the
restoration of erf 453 to the condition that it
was before first
respondent undertook the permanent structures of which I have
already
described.
[30]
For there reasons, therefore, the following order is made:
1.
First
respondent is prohibited and interdicted from erecting any permanent
structures on erf 453 (portion of erf 270) Chapman's
Peak.
2.
First
respondent is interdicted and prohibited from using erf 453 (portion
of erf 270) Chapman's Peak in any manner other than
in accordance
with the zoning in terms of the third respondent's Zoning Scheme
Regulations as "open space for public
use" in
accordance
with
the title deed conditions registered in respect of the said erf and
in accordance with the first respondent's development
plan in
respect of erf 270 Chapman's Peak approved by the
transitional Metropolitan Substructure for FishHoek,
Kommetjie
and Noordhoek on 26 June 1995.
3.
First
respondent is interdicted and prohibited from using erf 453
(portion of erf 270) Chapman's Peak or any
portion thereof
as a permanent parking area for vehicles.
4.
First
respondent is directed to demolish and remove all permanent
structures on erf 453 (portion of erf 270) Chapman's
Peak,
including all tar, asphalt surfacing, kerbside constructions and
construction of a signpost currently situate on the erf.
5.
First
respondent is directed to restore erf 453 to the condition prior to
the construction of the structures referred to in 4
above.
6.
First
respondent is ordered to pay the costs of
this application.
DAVIS,
J