Ehlers NO and Another v Member of the Executive Council: Department of Environmental Affairs and Developmental Planning (Western Cape) and Others (A523/06) [2007] ZAWCHC 45; [2008] 1 All SA 576 (C) (22 August 2007)

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[2007] ZAWCHC 45
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Ehlers NO and Another v Member of the Executive Council: Department of Environmental Affairs and Developmental Planning (Western Cape) and Others (A523/06) [2007] ZAWCHC 45; [2008] 1 All SA 576 (C) (22 August 2007)

Reportable
in
the high court of South Africa
(cape
of good hope provincial division)
Case
No A523/06
In
the matter between:
STEPHANUS
HEINRICH EHLERS N.O
. First Appellant
HYMAN
BRUK N.O. Second Appellant
(in
their capacity as trustees of the
Ehlers Family Trust
)
and
member
of the executive council:
department of environmental
affairs
and developmental planning
(Western cape) First Respondent
CITY
OF CAPE TOWN
Second Respondent
A
R liebreich ( a.k.a. wilmot) Third Respondent
J
JOUBERT Fourth Respondent
judgment:
delivered 22 august 2007
Griesel
J:
The
appellants, the trustees of the Ehlers Family Trust (
the trust
),
appeal against the dismissal by the court
a quo
(Ngwenya J)
of their appli­cation for the judicial review and setting aside
of an administrative decision by the first
respondent, the MEC for
Environmental Affairs and Developmental Planning in the Provincial
Government of the Western Cape (
the MEC
).
The
decision of the MEC in issue in this case is the dismissal of an
appeal by the appellants in terms of s 44 of the Land
Use
Planning Ordi­nance 15 of 1985 (
LUPO
) against a decision
by the second respondent (
the City
) to approve applications
by the third and fourth respondents for the re­zoning and
subdivision of erven 696, 708 and 3171,
Eversdal (
the
properties
).
Factual
background
The
properties in question, as well as a neighbouring property (erf
3752) belonging to the trust, all fall within the area known
as
Vyge­boom, which forms part of the erstwhile Durbanville
municipality. A structure plan, known as the ‘Vygeboom Structure
Plan’ (
the structure plan
), approved in terms of s 4(10)
of LUPO, is in force in the area. The provisions of the structure
plan play a central role
in this matter and will be considered in
greater detail in what follows.
In
terms of the original applications, submitted to the City on 23
August 2000, it was proposed that the properties be rezoned from
single residential zoning to ‘subdivisional area’ for the
pur­pose of being subdivided into 22 single residential erven,
13 group housing erven, two private open spaces, one public open
space, three private roads and a remainder. Notice of the
applications
was duly given to surrounding proper­ty owners in
terms of the provisions of LUPO and the applications were also
advertised
in the local press, as well as the Provincial Gazette.
Some 28 objections were received from other residents in the area,
including
one from the trust. Most of the objectors objected to the
greater densification of the area and drew attention to the need to
preserve
the semi-rural character thereof.
Planning
reports were prepared by various internal depart­ments of the
City, none of which raised any objections to the appli­cation.
On 11 April 2002, the relevant sub-council con­sidered the
matter and recom­mended to the City’s Executive Councillor
for
Planning and Environ­ment that the applica­tions be approved
subject to certain conditions. Some two weeks later, on
26 April
2002, the Executive Councillor duly accepted the recommendations of
the sub-council and approved the appli­cations
subject to the
stipulated conditions.
On
6 June 2002, the
appellant
s, together with
a number of other unsuccessful objectors, noted appeals in terms of
s 62 of the Local Govern­ment: Municipal
Systems Act 32 of
2000. The appeals were considered and dismissed by the Municipal
Planning Appeals Committee on 26 September 2002.
On
1 November 2002, the
appellant
s noted a
further appeal, this time to the MEC in terms of s 44(1) of
LUPO. On 15 April 2003, however, the MEC dismissed the
appeal.
Written reasons for this decision were furnished to the
appellant
s
on 28 August 2003.
In
the reasons furnished for dismissal of the appeal, it was recorded,
inter alia
, that the MEC had had at his disposal ‘the file
with all relevant information which he perused before making the
decision’.
It was further stated that ‘all the aspects of the
file were taken into account and contributed to the final decision’.
In
adopting the content of the departmental sub­missions to him,
the MEC accepted that the rezoning and subdivision appli­cations
complied with the structure plan.
Having
thus exhausted their internal remedies, the
appellant
s
launched the present application to this court to review and set
aside the decision of the MEC in terms of the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (
PAJA
).
1
Again their efforts were unsuccessful. The learned judge
a quo
held that the objections to the rezoning and sub­division
appli­ca­tions had been adequately considered by the MEC
and
dismissed the review applica­tion with costs. The present appeal
comes before us with the leave of the court
a quo
.
Grounds
of review
The
grounds of review advanced before the court
a quo
– and
again before us on appeal – are twofold:
(a) The
Vygeboom structure plan contains a restriction (in para 4.2.1
thereof) on the area for group housing development (2,5 ha
or 4%
of the total Vygeboom area). The proposed development would result in
the maximum area indicated for group housing being exceeded.
In
failing to have regard to this restriction and in accepting that the
proposed development complied with the structure plan, so
the
argu­ment went, the MEC failed to apply his mind properly in
making the decision. Moreover, one of the material reasons given
by
the MEC – namely compliance with the structure plan – was not
‘rationally connected’ to the decision, as contemplated
by
s 6(2)(f)(ii) of PAJA.
(b) The
MEC failed adequately to consider the letters of objection sub­mitted
to the local authority and had, impermissibly, contented
him­self
with reliance on a purported summary of those objections by his
departmental officials.
Based
on the foregoing, the
appellant
s submitted
that the MEC’s decision is assailable ‘because …relevant
considerations were not consider­ed’;
2
secondly, that the decision itself ‘is not rationally connected to
… the reasons given for it by the (MEC)’.
3
The
Vygeboom Structure Plan
In
terms of s 5(1) of LUPO, ‘(t)he general purpose of a
structure plan shall be to lay down guidelines for the future
spatial
development of the area to which it relates (including urban
renewal, urban design or the preparation of develop­ment plans)
in such a way as will most effectively promote the order of the area
as well as the general welfare of the community concerned’.
Section
4 deals with preparation of structure plans. In general, a structure
plan requires the approval of the MEC, being the successor
to the
‘administrator’ referred to in LUPO. In terms of s 4(10)(
a
),
the council of a local authority may approve a structure plan in
respect of land situated within its area of juris­diction
or
part thereof – in other words, the approval of the MEC is not
required for such a structure plan. In terms of s 4(10)(
c
),
how­ever, no structure plan approved in terms of s 4(10)(
a
)
(ie a so-called ‘lower order’ structure plan) shall be
inconsistent with a structure plan contemplated in s 4(1), (2)
or (3) (i.e. a so-called ‘higher order’ structure plan).
A
structure plan in respect of Vygeboom was duly approved by the
Durbanville Municipality in 1995 in terms of s 4(10) of LUPO
and is currently still in force. It is a ‘lower order’ structure
plan. A draft Durbanville local structure plan had simultaneously
been prepared in terms of s 4(1) of LUPO as a proposed ‘higher
order’ structure plan, but it was never approved by the
erstwhile
Administrator and thus does not enjoy any ‘official’ status.
As
noted earlier, the MEC based his decision
inter alia
on the
accept­ance that the rezoning and subdivision appli­cations
were consistent with the structure plan in question.
The
appellant
s
vigorously assailed this assumption, for two reasons: first, the MEC
did not personally have regard to the pro­visions of
the
structure plan and therefore could not properly consider the appeal.
Secondly, in any event, insofar as the MEC relied on the
advice of
his departmental advisers, he was misdirected inasmuch as the
proposed develop­ment does
not
in fact comply with the
structure plan.
Dealing
with the first point, it is per­missible in our law for a
decision-maker in the position of the MEC to rely on the expertise
and advice of the officials in his or her department, provided that
the final decision is that of the decision-maker.
4
(It is interesting to note that the position in English law appears
to be more lenient: under the so-called ‘
Carltona
principle’, the courts have recognised that the duties on
Ministers and the powers given to Ministers are normally exercised
under the authority of the Ministers by responsible officials of the
department and the responsible Minister is not obliged to
bring his
or her own mind to bear upon a matter entrusted to him or her.
5
)
In
the present matter, various senior officials in the MEC’s
department considered the application with the specific purpose of
measuring its compliance with the relevant provisions of the
structure plan. Copious reports were prepared by them and were
placed
before the MEC for his consideration, dealing in some detail
with the relevant provisions of the structure plan. In these
circumstances,
it was not incumbent upon the MEC personally to read
the actual planning instrument in order to enable him to make a
valid decision
in terms of s 44(1) of LUPO. He was, in other
words, entitled to rely on the advice of his departmental advisers
in this regard.
This
raises the crisp question as to whether the MEC was misdirected by
his advisers with regard to the provisions of the structure
plan in
question. The
appellant
s’ argument is
based squarely on the provisions of para 4.2.1 of the structure plan
which, according to the
appellant
s, had
been overlooked by the MEC and his advisers. The paragraph reads as
follows:
‘
The
Ordinance [LUPO] determines that a lower order plan may not make
recommendations in contradiction with a higher order plan.
The
overall structure plan for Durbanville restricts potential
development of group housing in Vygeboom to 2,5 ha (4%) of
the
area and the subdivision of standard 1 000m
2
erven.
The maximum density for group housing would be 20 units per
hectare.’
In
failing to have regard to these provisions, so it was argued, the MEC
and the departmental officials advising him failed to realise
that
the proposed development would in fact exceed the maximum permissible
area of Vygeboom set aside for group housing development
in terms of
the structure plan.
The
appellant
s’ reliance on para 4.2.1 is
clearly an afterthought, which was raised for the first time in the
appellant
s’ founding affidavit herein.
In my view, such reliance is misplaced. The Vygeboom structure plan
itself does not contain the
restriction referred to; it merely
records what was contained in the then
draft
Durbanville
local structure plan. As noted above,
6
this plan was never approved and never acquired ‘official’
status. The fact that such plan prescribes a certain restriction
in
respect of group housing in Vygeboom is therefore neither here nor
there.
In
any event, having regard to the overall scheme of the Vygeboom
structure plan, I am satisfied that there was no intention on
the
part of the compilers thereof to entrench a 2,5 ha (4%)
limitation in respect of group housing for the area. The structure
plan is a voluminous document, containing four chapters (or
sections) and various figures and annexures. Chapter 1 is an
‘Introduction’,
whereas chapter 2 contains a detailed ‘Analysis
of the Spatial Situation’; chapter 3 contains a detailed ‘Analysis
of Public
Participation’ and the final chapter contains certain
‘
Aanbevelings/Recommendations
’. In actual fact, it is
only in para 4.3, under the heading ‘
Voor­stelle/­Proposals’,
that specific recommendations are contained. Paragraph 4.3.1
reads as follows:
‘
The
recommendations are based on the above conceptual framework. It
contains a conservation statement, development guide­lines,
guidelines for subdivision, conditions regarding access and
guidelines for general matters.’
Paragraph
4.3.3 contains certain ‘steps’ relating to
‘
Ontwikkeling/­Development’
, which ‘should be
implemented’. Included amongst these ‘steps’ are pro­visions
that ‘(t)he rezoning of erven smaller
than 4000m
2
for
group housing or general residen­tial use will not be
permitted’. Certain ‘criteria for the develop­ment, rezoning
or subdivision of any erf/property … for the purpose of group
housing’ are also set out,
inter alia
a requirement that no
building or structure higher than 8,5m may be erected on any erf and
that certain minimum building lines
must be imposed. Sub-para 3)
provides:
‘
A
maximum density of 15 units per hectare will be permitted for the
development of group housing.’
No
further recommendations are made relating to group housing. However,
it is instructive to note that in para 3.2.1, under the
heading
‘Comment from Council’, it is recorded that the council of the
Durbanville Municipality supported a proposal that ‘15%
of the
total structure plan area will be permitted for group housing
purposes, as opposed to the current policy of 2,5ha’. The
council
also supported a maximum permissible density of 20 units per
hectare.
Having
regard to the foregoing, it is apparent that para 4.2.1 does not
form part of the operative part of the report containing
the
recommendations. Para 4.2.1 contains neither ‘recom­mend­a­tions’
nor ‘proposals’. It appears from the
record that all of the
planning authorities – both at local authority and provincial
level – have approached the matter on
the basis that the structure
plan’s guidelines are those to be found in para 4.3. They have
advised the MEC accordingly and I
am unable to hold, as urged
on
behalf of
the
appellant
s, that they
have erred in this regard. It follows that, in my view, the
conclusion of the MEC and his advisers is correct, namely
that the
application for rezoning and subdivision does indeed comply with the
Vygeboom structure plan.
In
the circumstances, the first ground of review is without merit and
must fail.
Letters
of objection
The
provisions of LUPO require that applications for the rezoning and
subdivision of land must in appropriate cases be advertised
and any
objections sub­mitted in respect of such advertisement fall to
be considered in the deter­mination of the application.
7
These requirements were duly complied with in this instance. What is
more, copies of the original objections were placed before
the MEC
for his consideration with the following pertinent advice in the
depart­mental report: ‘In order to appreciate the
specific
views and emotions of the objectors, please refer to the attached
copies of objections.’ The MEC duly heeded this advice
and perused
the copies of objections placed before him. He failed to notice,
however, that the copies of two of the 28 objections
– one from Dr
M Van den Aardweg and another from Mr J D M Coetzee –
were in­complete, inasmuch as pages
2 and 3 of the Van den
Aardweg objection and page 2 of the Coetzee objection were not
included in the bundle of objections placed
before him.
Relying
on these
lacunae
in the appeal record before the MEC, the
appellants submitted
‘that this omission
constitutes both a failure of procedural fairness and a failure to
apply his mind to relevant considerations’.
In
his answering affidavit the MEC explained that both objections (from
Van den Aardweg and Coetzee) were fully dealt with in the
written
comments to the City on the various objections. The essence of the
objections also appeared in the summary of one of the
departmental
reports perused by him. In this regard, the record shows that the
missing pages 2 and 3 of the Van den Aardweg objection
(written in
large manuscript) refer to the need for the subdivisions to be not
less than 1 500 or 2 000 square metres,
and to existing
high traffic density at peak hours, as well as the need to preserve
a rural atmosphere. Each of these points are
addressed fully in the
various depart­mental reports considered by the MEC. Moreover,
each of Van den Aardweg’s points, from
1 to 4, are quoted in full
and dealt with in the response from the third respondent’s
husband. Likewise, the missing page of
the Coetzee objection adds
nothing new, and is adequately summarised. Indeed, the sum­mary
employs the very same language used
by Coetzee.
In
terms of s 3(2)(
a
) of PAJA, ‘a fair administrative
procedure depends on the circumstances of each case’.
8
LUPO does not require, as a jurisdictional fact, that when the MEC
hears an appeal in terms of s 44(1), each and every objection
must
be before him in its full and original form, rather than a summary
of or a report on such objections. What material should
be before
the MEC and taken into consideration by him must be determined by
the circumstances of the particular appeal being pursued.
In
the circumstances of this case, I am unable to find that the failure
of the MEC to have regard to the
full
complaints of the two
objectors in question vitiates his decision. I prefer the approach
suggested by De Smith
et al
,
9
where the learned authors remark as follows:
‘
If
the ground of challenge is that relevant considerations have not
been taken into account, the court will normally try to assess
the
actual or potential importance of the factor that was over­looked,
even though this may entail a degree of speculation.
It will often
be absurd for a court to hold that a discretion had been invalidly
exercised because a trivial factor had been overlooked.’
Having
regard to the vast volume of documentation that was in fact placed
before the MEC and considered by him before reaching his
decision on
the appeal in question, I am of the view that the
appellant
s’
complaint under this heading can indeed be described as ‘trivial’.
If either Van den Aardweg or Coetzee were of the view
that their
right to administrative fairness had been infringed by the fact that
portions of their letters of objection were not
before the MEC when
he dismissed their appeals, it was for them to take it further, if
so minded. They chose not to do so. I find
it incongruous that the
appellant
s should now to take up the
cudgels
on their behalf, complaining of
‘procedural un­fairness’
in circumstances where there
is no suggestion that the
appellant
s’
own objections and their appeal had not been fully and fairly
considered by the MEC. Given these facts, the present case is
entirely distinguishable from the authorities relied upon by the
appellant
s in support of their argument
that it was incumbent upon the ultimate decision-maker himself to
consider all the original objections.
10
On
the facts of the present matter, I am unpersuaded that the missing
pages caused the
appellant
s any prejudice
or resulted in any procedural un­fairness vis-à-vis the
appellants.
The
court’s discretion
Even
if I were to err in coming to any of the foregoing conclusions, it
is clear that, both at common law and in terms of PAJA,
a court has
a wide discretion to withhold the review remedy, even where the
substantive grounds for the grant of the remedy have
been made out.
At common law, as pointed out by Baxter,
11
it is evident –
‘…
that
equitable considerations exercise a strong influence over the
courts. Account will some­times even be taken of such factors
as
the motives of the applicant in seeking relief and his prior
knowledge of the intentions of the public authority. Con­sequently,
the courts are prepared to receive a wide range of arguments
directed to the question of how they ought to exercise their
discretion’.
12
This
position is now entrenched in the provisions of s 8(1) of PAJA,
which authorise the court, in wide and general terms,
to grant ‘any
order that is just and equitable’.
In
my considered opinion, it would not be just and equitable to grant
the appellants the remedy they seek in these proceedings.
As rightly
submitted
on behalf of
the respondents,
the appellants have been afforded several opportunities to
ventilate, develop and refine objections and further
arguments
against the proposed development. The fact that the outcome of this
protracted process was that none of the planning
authorities at
local authority and provincial level agreed with the appellants does
not mean that proper con­sideration was
not given to their
objections or that their right to procedurally fair administrative
action has been infringed.
It
must be borne in mind, further, that administrative fairness is not
a one-way street. It does not only extend to the objectors
to a
proposed subdivision, rezoning or development, such as the present
appellant
s. The applicants for rezoning
(
in casu
, the third and fourth respondents) have an equal
right to adminis­trative fairness. Their applications have been
submitted
strictly in accordance with the prescribed legal
requirements and have received conscientious and meticulous
con­sideration
at every level of local and provincial
govern­ment that dealt with the matter. At each level, their
appli­cations have
been held to be compliant with the relevant
legal require­ments. It is now
seven
years since they
sub­mitted their applications. I am of the view that the
appellants have had more than ample opportunity to
try to persuade
the relevant authorities of the justness of their cause. It is now
the turn of the third and fourth respondents
to receive the
administrative fairness to which they too are entitled.
Order
For
the above reasons, I would
dismiss the appeal with costs,
including the costs of two counsel, where applicable.
B
M Griesel
Judge of the High Court
Louw
J:
I agree. It is so ordered.
W
J Louw
Judge of the High Court
Allie
J:
I agree.
R
Allie
Judge of the High Court
1
Pursuant
to a settlement reached in an urgent interim application brought by
the present
appellant
s,
it was only the approval of the 13 group housing erven that remained
in issue between the parties.
2
See
s 6(2)(
e
)(iii)
of PAJA.
3
See s 6(2)(
f
)(ii)(
dd
)
of PAJA.
4
President
of the RSA v South African Rugby Footfall Union
2000 (1) SA 1
(CC) para 43;
Hayes
v Minister of Finance and Development Planning, Western Cape
2003 (4) SA 598
(C) at 623H.
5
See De Smith Woolf & Jowell
Judicial
Review of Administrative Action
5ed (1995) at 6-113.
6
Para
above.
7
See
s 17(2) (in respect of applications for rezoning) and s 24(2)
(in respect of applications for sub­division).
8
See
also
Premier,
Province of Mpumalanga v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal
1999 (2) SA 91
(CC) at para 39 and cases cited therein.
9
Op
cit
§6-087.
10
Cf
Camps
Bay Ratepayers and Residents Association and Others v Minister of
Planning, Culture and Administration, Western Cape, and
Others
2001 (4) SA 294
(C) at 318J–320E;
Hayes
and Another v Minister of Finance and Development Planning, Western
Cape, and Others
2003
(4) SA 598
(C) at 616D–I; and the
dictum
of Denning LJ in
R
v Minister of Agriculture and Fisheries,
Ex
parte
Graham; R v Agri­cultural Land Tribunal (South Western
Province),
Ex
parte
Benney
[1955]
2 All ER 129
(CA) at 134f–g, which was quoted with approval in the
Camps
Bay
judgment (at 320B).
11
Lawrence
Baxter
Administrative
Law
(1984) at 712–713.
12
Op
cit
at 718. See also
Cora
Hoexter ‘
The
Future of
Judicial
Review in South Africa in Administra­tive Law
’
(2000) 117
SALJ
484.