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[2008] ZAWCHC 180
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Noordhoek Environmental Action Group v Wiley and Others (2843/2007) [2008] ZAWCHC 180 (21 April 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
2843/2007
DATE: 21
APRIL 2008
In
the matter between:
THE
NOORDHOEK ENVIRONMENTAL
ACTION
GROUP Applicant
and
JEREMY
JONATHAN F WILEY 1
st
Respondent
THE
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS 2
nd
Respondent
THE
CITY OF CAPE TOWN 3
rd
Respondent
JUDGMENT
(Application
for Leave to Appeal)
DAVIS,
J
This
is an application for leave to appeal against the whole of the
judgment of this Court which was delivered on Tuesday 19 February
2008. I do not intend to traverse the essential facts of the case
which was set out in that judgment. However it is necessary
to
commence with two preliminary points.
Firstly,
in paragraph 3 of the order which was granted, reference is made to
the prohibition from the using of erf 453 or any portion
thereof "as
a permanent parking area for vehicles". When the notice of
application for leave is examined, objection is
taken to the order
prohibiting all forms of parking without the qualification
"permanent". That is an error for which
I am must take the
blame. When this judgment was read into the record, I mistakenly read
from the incorrect copy of the notice
of motion in my file and
therefore omitted to read my handwritten qualification to the order
to applicant's prayer in its notice
of motion which appeared to me,
for reasons which I shall dwell on presently, to be too wide; that is
it sought the prohibition
of all parking on erf 453, even of a
temporary nature. Hence the correction in the typed judgment and the
explanation in respect
of the reference in the notice of application
for leave to appeal, f might add that this correction was accepted by
both parties
and I shall say no more
r
save
for an implication of that finding.
Secondly,
the argument for leave to appeal contained submissions by Mr
Bridgman
,
who appeared on behalf of the applicant in this application,
regarding the meaning of paragraph 1 of the order. Mr
Bridgman
appeared to suggest that, even if permission was sought and granted
for the construction of a permanent structure on erf 453, first
respondents would, as a result of this order, be prevented in
perpetuity from implementing the contents of that permission. That
submission leads me to deal with the merits of this application for
leave to appeal.
In
my view, the judgment which was delivered, pursuant to which the
order was granted, rests on two foundational findings: firstly
that
erf 453 was reserved in terms of Section 2(3) of the Scheme
Regulations "as open space for public use" and accordingly,
in terms of the finding of this Court, this could not include the
employment of such space as a permanent tarred parking site for
vehicles. That finding turned on the interpretation of the conditions
which were attached to erf 453, as a result of the rezoning
of erf
270.
Further,
the Court found that there had been no permission granted to first
respondent to construct a permanent parking facility
on the site.
Pursuant to those two central findings, I am of the view, that Mr
Bridgman's
construction of the order is incorrect. It must surely be the case
that, in the event of duly authorised permission being granted
to
first respondent to construct a permanent parking on erf 453, the
order which was granted in this case would have no application
to
such permission, Central to the judgment of this Court, was a finding
that, given the nature of the conditions and given the
absence of
permission, first respondent was not entitled to proceed with the
construction of permanent parking. The converse must
apply: if
permission is granted, the foundation for the order falls away.
That
leads to an examination of the essentia! merits, as to whether there
is a reasonable prospect of success on appeaE, as that
term has been
developed in our
jurisprudence.
As
Mr
van
der Merwe
,
who appeared on behalf of respondent in this application observed,
there was nothing in the notice of application for leave to
appeal to
suggest that there was now a dispute regarding the finding of this
Court that the existing parking lot was a permanent
structure.
Therefore, on the basis of the notice of application for leave to
appeal, which has been placed before this Court, the
evaluation of
the merits of applicant's case must be predicated on the finding
that, at present, there is a permanent structure
on erf 453.
Hence
the case on appeal, and indeed a central plank of the case as argued
in the principal matter, was whether legal permission
had been
granted to construct a permanent parking lot on erf 453. In short,
once tt is accepted that there is a permanent structure,
namely that
the present parking on erf 453, together with the other construction
on the site, constitutes a permanent structure,
there can be no
possible success in an argument that the zoning condition have not
been breached.
The
only prospect of success then turns on whether, on the papers, it
could not be contended that permission was granted to so construct
a
permanent parking lot, or, as Mr
Bridqman
submitted,
that there was a sufficient dispute on the papers so as to prevent a
Court from concluding that no permission had been
granted for the
parking lot as presently constructed.
I
should again point out that the far more expeditious avenue for first
respondent, as was debated in argument before this Court,
is that
legal permission should be sought and granted, and if that was the
case this dispute would no longer be live. That is not
an issue
before this Court at present.
Mr
Bridgman
again pressed the point that the letter from the provincial engineer
of 21 November 2003 constituted permission to construct the
present
parking lot on erf 453. An examination of that letter, read as a
whole, together with the diagram attached to the letter,
does not
appear to apply to erf 453. It may well apply to the balance of erf
270 from which erf 453 emerged, but there is no basis
for the
conclusion that erf 453 was covered by that letter. The only parking
layout plan that clearly deals with erf 453 was the
plan supported by
the City Engineer in terms of a letter of 14 September 2006, I might
add that this letter may constitute a rather
compelling indication
that permission had not been granted earlier as contended for by
first respondent. One may ask rhetorically
as to why the need for
permission as late as 2006, if permission had afready been granted in
2003, as contended for by Mr
Bridgeman
,
and as set out in the application for leave to appeal.
In
summary;
The
present construction which was the subject of the dispute is a
permanent structure. That is now an uncontested finding on
which
another Court would have to work;
The
provincial authorities' consent, which was expressly required as a
condition in respect of rezoning and subdivision,
had not been
shown to have been procured insofar as erf 453 was concerned;
An
examination of an affidavit deposed to by first respondent's
attorney, Miss
Fleischer
,
which emerged extremely late in the proverbial litigation day, is
itself indicative of first respondent's problem. Having trawled
through various forms of documentation from the relevant
authorities, all that she could conclude is that various forms of
applications and development plans were submitted, but no specific
permission for the construction of the permanent parking site
can be
definitively shown to have been granted. The best Ms
Fleischer
can do is to aver that there is a factual dispute regarding
permission. But if permission was granted to construct the permanent
structure it should exist. In my view, on the law as it presently
exists, there is no dispute on the papers with regard to this
matter, because no official permission has been shown to exist.
Untit such permission is granted, the construction continues
to be
illegal.
I
mentioned earlier that the prohibition is against permanent parking.
The reason for that finding is clear: on the papers a Court
cannot be
certain that, from time to time informal parking did not take place
on the open space. Since a finding about temporary
parking will not
alter the nature of the open space, occasional parking of such a
nature may well be possible. That is not an issue
which is relevant
to the determination as to whether a permanent structure was
constructed on what was intended to be open space,
save where
permission was granted to alter that condition.
Mr
Bridgman
submitted that, once it is accepted that some form of informal
parking may well have taken place on erf 453, that is fatal to
applicant's case. The compelling counter argument is that, on the
evidence which is available on the papers, it is clear, particularly
from the photographs which were placed before this Court, that there
never was permanent parking on erf 453. For all of these reasons,
on
the evidence placed before this Court, together with the findings
which are no longer are contested, there is no prospect that
another
Court woutd come to a conclusion different to this Court. Accordingly
the
APPLICATION
FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.
DAVIS, J