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[2024] ZAECMKHC 68
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Siyalanda Property Development (Pty) Ltd v Nelson Mandela Bay Metropolitan Municipality (CA72/2023) [2024] ZAECMKHC 68 (18 June 2024)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. CA72/2023
In
the matter between:
SIYALANDA
PROPERTY DEVELOPMENT
(PTY)
LTD
Appellant
and
NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
Respondent
FULL
BENCH APPEAL JUDGMENT
HARTLE
J
Introduction:
[1]
The
appellant, a property developer, appeals with the leave of the court
below against its order dismissing an application for a
declarator in
its favour that “
the
provisions of regulation 9.3.1.2 of the Port Elizabeth Town Planning
Scheme Regulations (“the Scheme”)
[1]
are
not applicable to its proposed development of erf 3783 Summerstrand.
”
(“
the
development”
and
“
property”
respectively).
[2]
There are also ancillary challenges arising
from the order under appeal, which I contextualize below.
Background:
[3]
The appellant is the registered owner of
the property, vouched for by a Certificate of Consolidated Title
dated in 2008. The
property is located to the west of the
premises of Emfuleni Resorts (Pty) Ltd and also abuts the Boardwalk
Casino Complex, all
of which properties front on Second Avenue in
Summerstrand, Gqeberha.
[4]
The issues that formed the subject matter
of the review application in the court below were implicated when the
appellant, in terms
of the provisions of the Scheme, submitted a Site
Development Plan (“
SDP
”)
to the respondent (“
the
Municipality
”) to develop the
property.
[5]
The subject matter of the development
entailed a sectional scheme consisting of 420 residential units
contained in 30 blocks of
flats, as well as a clubhouse, a park and
recreational open spaces. At the time of the launch of
the review application
in August 2020 the property was unimproved,
but construction of the development with less units and blocks is
currently underway
as a unique feature of the litigation that I will
shortly explain.
[6]
There
is no contention that the property,
[2]
well as far as it is known the larger erf 3112 as it was constituted
prior to the consolidation, was zoned in 2000 for special
purposes
No. 407 in terms of which its primary uses are:
“
Hotel/s/recreation/resort
facilities, tourist orientated and incidental retail facilities and
dwelling units/residential accommodation
”.
[3]
[7]
It is the latter part of its use
description, namely that it allows for dwelling units or residential
accommodation to be erected
on it - that is aside from the fact
according to the Municipality that it was
rezoned
for the indicated purposes including
the residential aspect in 2000, that formed the basis for the
invocation by it of the impugned
Scheme regulation entailing the
“
Provision of Open Space”
when the appellant lodged with it its SDP in respect of the then
proposed development.
[8]
The
Scheme, which it is common cause applied at the time of the
submission of the appellant’s SDP to the Municipality, provides
under Part VI thereof relative to “
GENERAL
AMENITY AND CONVENIENCE
”
,
[4]
more particularly under the sub-heading “
Outline
Site Development Plan
”
in paragraph 11.1 thereof that:
“
A
person intending to erect dwelling units on an erf in the Use Zone
Residential 2 or Residential 3 or, in the discretion of the
Council,
for a proposed development of any kind in any other Use Zone, shall
submit, for the acceptance by the Council, an outline
site
development plan which shall:- show … (inter alia) (x) the
extent and position of any Open Space to be provided ...
provided
that the Council may exempt an applicant from complying with any of
the requirements of this regulation.”
[9]
Clause 11.2 provides further that:
“
No
building plan shall be approved and no construction work shall be
commenced until the site development plan has been accepted
by
Council. The erection of a building for the commencement of
construction work before the acceptance of the site development
plan,
or, if the plan has been accepted, otherwise than in accordance
therewith shall be a contravention of the Scheme; provided
that the
Council may consent to an amendment of the plan.”
[10]
It is also necessary to indicate at the
outset what the impugned provisions of the Scheme say elsewhere in it
regarding the provision
of open space, that is other than what is
provided for in Regulation 11.1.2 to the effect that a site layout
plan must,
inter alia
,
show “
the extent and position of
any Open Space to be provided”
.
[11]
Clause 9.3 of the Scheme provides for
“
Provision of Open Space
”.
It is a sub-heading that occurs under “
PART
V – SUBDIVISION OF LAND
”
and is preceded by two antecedent sub-headings. These concern
“
Applications to subdivide
land
” and “
Areas
of subdivision
”. It is
followed by two further sub-headings, namely: “
Areas
within floodlines
” and “
Urban
aesthetics on limited access roads
”.
[12]
It
is apposite to repeat below some of the sub-regulations of Part V
which ostensibly concern themselves with the sub-division of
land.
[5]
They read as
follows:
“
PART V -
SUBDIVISION OF LAND
9.1
Applications
to subdivide land
9.1.1 An application
to subdivide land shall be submitted to the Council for approval
either by the Council where the Council is
empowered in terms of the
Ordinance to approve applications for subdivision, or by the
Administrator in any other case.
9.2
Areas of
subdivision
9.2.1 Any subdivision
which is to be used for the purpose of erecting a dwelling house,
other than in Use Zone Residential 2 and
Residential 4, shall not be
smaller than 500 mý in allotment areas Malabar, Gelvandale,
Bethelsdorp, Bloemendal and Korsten
and 600 mý in the rest of
the Area provided that:- [Amended TPA 1106 (Amended 3) 2.10.92]
(i) where a minimum
area of land per dwelling house is shown on the Map such minimum
requirement shall prevail over the areas as
stipulated in this
regulation;
(ii) where there are
existing detached dwelling houses, other than a second dwelling unit
erected in terms of Regulation 3.12,
so situated that the achievement
of the minimum area is impossible, the Council may consent to a
relaxation of the minimum area;
(iii) the boundaries
of existing erven of an average size less than the minimum area may,
with the consent of the Council, be rearranged,
on condition that the
number of subdivisions so created is not greater than the original
number and that no new subdivision is
smaller than 300 mý or
the smallest of the previously existing erven, whichever is the
greater;
(iv) where attached
dwelling units, other than a second dwelling unit erected in terms of
Regulation 3.12, exist on one erf, the
Council may consent to
sub-division to less than the minimum area on condition that each
individual dwelling unit shall, after
subdivision, be capable of
functioning as an independent erf with access to a public street.
9.2.2 Any subdivision
of an erf at the intersection of two streets shall be splayed in
accordance with the recommendations set
out in paragraph 8 of Part A,
Table A6 of the Guidelines for the Provision of Engineering Services
for Residential Townships as
issued by the former Department of
Community Development, in 1983.
9.2.3 For the purposes
of this regulation, the area of any splay at the corner of two
intersecting streets and the area of any land
given off for the
purpose of widening of existing streets shall be included for the
purpose of determining the area of the subdivision.
9.3
Provision of
Open Space
9.3.1 Subject to the
provisions of regulation 9.3.2:-
9.3.1.1
The owner of an erf zoned for Residential 1 purposes, shall, on
subdivision thereof, provide, free of charge, open space
in a ratio
of 72 my in respect of every portion of the subdivided erf in excess
of two which is of an area of 500 my or more, and
in the ratio of 96
my in respect of every portion of the subdivided erf in excess of two
which is of an area of 250 my or less;
provided that for any portion
of the subdivided area between 500 my and 250
mý
the amount of open space to be provided shall
be determined on a pro rata basis.
9.3.1.2
When an erf
is created for residential purposes where more than one dwelling unit
is permitted, whether by subdivision or rezoning,
the owner shall
provide, free of charge, open space in the ratio of 54 my in respect
of every dwelling unit in excess of six, or
14 my in respect of every
habitable room in excess of twenty-four, which may be erected on the
erf.
9.3.2 The provisions
of regulation 9.3.1 shall be subject to the following:
9.3.2.1 When, in the
opinion of the Council, a lesser amount of open space is to be
provided than that required to be provided
in terms of regulation
9.3.1, the developer shall pay to the Council a levy for the
difference between the amount of open space
actually provided and
that required to be provided.
9.3.2.2 When the
Council requires the provision of open space in excess of the amount
required to be provided in terms of regulation
9.3.1 the Council
shall compensate the developer for such excess.
9.3.2.3The levy to be
paid by the developer in terms of paragraph 9.3.2.1 above shall be
payable as follows:-
(i) in the case of
Residential 1 erven, on transfer of each subdivided portion and shall
be calculated in accordance with the following
formula:-
Y (X - 2) - Z R
------------- X ---
(X - 2) A Where X =
total number of subdivided portions.
Y = Area of open
space per Residential 1 portion of the subdivided erf in mý
required in terms of regulation 9.3.1.1 above.
Z = Total area of open
space actually provided in mý.
A = Area of the
subdivided portion in mý.
R = Sale price of the
subdivided portion.
provided that if there
is no sale price or if, in the opinion of the Council, the sale price
is less than the market value, R shall
be the market value of the
subdivided portion.
(ii) In the case of an
erf for residential purposes where more than one dwelling unit is
permitted:-
(a)
Where
such erf is not to be further subdivided, before building plan
approval, and shall be calculated in accordance with one of
the
following formulae, whichever one is applicable:-
[14(x-24) -
Y] x R A
Where X = Number of
habitable rooms which may be erected on the erf.
Y = Amount of open
space actually provided in mý.
A = Area of the erf in
mý.
R = Market value of
the erf.
or
[54(X-6)-Y]
x R
A
Where X = Number
of dwelling units which may be erected on the erf.
Y = Amount of open
space actually provided in mý. A = Area of the erf in mý.
R = Market value of
the erf.
(b)
Where
such erf is to be further sub-divided, on transfer of each
sub-divided portion, and shall be calculated in accordance with
the
following formula:-
[54(X-6)-Y] x R
A
Where X = Number of
subdivided portions of the erf.
Y = Amount of open
space actually provided in mý.
A = Area of the
subdivided portion in mý.
R = Market value of
the sub- divided portion.
9.3.2.4 The
compensation to be paid by the Council in terms of regulation 9.3.2.2
shall be calculated in accordance with the applicable
formula set out
in Regulation 9.3.2.3 provided that "R" shall be the market
value of the land and shall be payable as
follows:-
(i) in the case of
Residential 1 subdivisions, at the time of confirmation of the
sub-division;
(ii) in the case of an
erf for residential purposes where more than one dwelling unit is
permitted, on transfer of the open space
to the Council or, where the
erf is to be further subdivided, on confirmation of the subdivision.
9.3.3 For the purpose
of this regulation only land which, in the opinion of the Council, is
suitable for purposes of sport, play
or recreation shall count
towards the provision of Open Space.”
(Emphasis
added to identify the impugned regulation).
[13]
Against the regulations stipulated in
Regulation 11, the appellant on 13 September 2018 submitted an SDP to
the Municipality in
respect of its proposed development. This
plan was referenced in the proceedings in the court below as the
first SDP.
[14]
In
anticipation of formally assessing this SDP, the appellant was
advised by Municipal officials of its view that the
appellant
was required to make provision for open space “
in
line with clause 9.3.1 of the PE scheme”
by contending that the “
creation
of erf 3783 Summerstrand through the consolidation of erven 748-752
and a portion of 1256 and subsequent
rezoning
to Special Purposes
allowing
for a number of uses, one being dwelling units/ residential
accommodation
triggers
the provision of open spaces”
.
[6]
It sought variably to justify why it thought the provisions of the
impugned regulation were of application.
[7]
[15]
As
far as the Municipality is (and was at the time) concerned, since the
property was rezoned in 2000 for Special Purposes which
allows for a
number of uses, one being dwelling units/residential accommodation,
this means/meant that the provisions of the Scheme
relating to open
space (as shown above) applied to the development hence its request
that the applicant make provision therefor.
This was
calculated by it as being 16 884 square metres according to the
formula stated in Regulation 9.3.1.2, as opposed
to the 11 937
square metres co-incidentally made allowance for by the appellant in
its SDP in the form of recreational open
space to be provided in the
sectional scheme.
[8]
[16]
In
the parties’ endeavours to reach a compromise of their opposing
views on whether the appellant was obliged to make provision
for open
space on the basis contended for, the appellant on 7 August 2018
resubmitted the first SDP and, under protest and in reservation
of
its rights, an alternate plan (referenced as the second SDP) which,
from the Municipality’s perspective, complies with
the
provisions of Regulation 9.3.
[9]
[17]
Despite the Municipality’s approval
of the latter SDP (on 4 October 2019) the appellant consistently
reserved its right to
challenge the Municipality’s “
decision
”
(or more correctly its extended and ongoing failure to make one) in
respect of the first SDP by way of a judicial review.
(One of
the contentions in the present appeal is that the court below
misunderstood the significance of the appellant’s reservation
and erred in overlooking that it would remain entitled, even in the
event that it failed to make the declarator sought in its favour,
to
revisit the issue of the breach of its administrative law rights
vis-à-vis
its first SDP and to seek an appropriate remedy arising thereupon.)
[18]
In the latter respect there were,
according to the appellant, serious adverse consequences flowing from
the Municipality’s
delay in making the decision which in law it
was obliged to make. Having regard to that legal obligation on it, so
the appellant
complained, it failed to consider the first SDP on its
own merit as a separate submission before it. In its view it
should
have either approved of the SDP, or pertinently rejected it.
Assuming it had rejected it for specified reasons rather than
keeping
obdurate silence about its formal outcome, this would, in the
appellant’s further view, have entitled it to proceed
immediately with the review application in the court below.
[19]
The appellant had instead, as a forerunner
to launching its review application, felt itself constrained out of
caution to first
lodge an internal appeal in terms of section 62 (1)
of the Local Government : Municipal Systems Act, No. 32 of 2000 (“
the
Systems Act”
) before proceeding
with the litigation in the court below in which it complained that
the Municipality’s officials had acted
unlawfully and outside
of their authority by refusing to approve the first SDP. The
appeal fell on deaf ears and was not
dealt with in any manner, hence
the first prayer in the notice of application in the court below for
an order condoning the appellant’s
failure to have exhausted
internal remedies.
[20]
In their negotiations to settle the dispute
in the litigation in the court below the Municipality wrote an open
letter to the appellant
dated 16 November 2020 which created an
accepted premise for the parties to move forward.
[21]
One
of the concessions made therein is that the municipality had in fact
made “
no
final decision”
in respect of the approval or refusal of the first SDP and in
consequence thereof it acknowledged that the mandatory requirement
that an internal appeal first be pursued could not be asserted.
[10]
It further accepted the charge against it that it was obliged
to apply its mind to the first SDP and to approve or
reject it within
a reasonable time. It admitted that it had failed to do so.
Inasmuch as the Municipality in correspondence
exchanged on the
subject suggested a reason concerning its ostensible refusal of the
first SDP (the appellant refers to this as
a “
conclusion”
rather than a decision), namely that it made provision for less open
space than was then required in terms of the impugned regulation,
the
appellant noted its further reservation that the Municipality,
despite its request of it for documentation and information
regarding
the basis of that conclusion, had provided nothing further as part of
the Record of decision in the review application
to justify it.
Indeed, the appellant was of the view that the conclusion was the
same one that was reached during the
course of negotiations in
informally assessing the development parameters that the Municipality
would accept by way of the formal
submission of an SDP.
[11]
[22]
For the Municipality’s part, it
refused to relent on its view that the development property was of
the category envisaged
in Regulation 9.3.1.2 or to forgo its position
that the first SDP should have made provision for open space in the
ratio as prescribed
in Regulation 9.3.2.1.
[23]
On the basis of the exceptions applicable
to a scenario where the provisions of Regulations 9.3.1.2 are
invoked, the Municipality
invited the appellant to formally apply for
a lesser amount of space to be provided, and for payment of a levy in
lieu thereof.
It was proposed that the outcome of that decision
by the Council would have whatever consequences ensued thereby and
would be actionable
outside of the ambit of the review application
which is the subject of the present appeal. The appellant was however
not inclined
to go along with all the terms of the open offer
proposal and persisted both with its view that the first SDP was
still required
to be accepted or rejected as the case may be, and
with its resolute contention that Regulation 9.3.1.2 was simply not
applicable
to its development.
[24]
Despite some minor issues resolved (the
municipality agreed to the relief sought in prayers 1.3 and 4.3 and
4.4 of the amended notice
of motion) and with a costs offer by the
municipality on the table up to the date of the offer, the parties at
least agreed that
the dispute, at the time of the hearing of the
review application, had been whittled down to two questions.
The first was
whether Regulation 9.3.1.2 of the Scheme was applicable
to the development, i.e. whether the development property was created
for
residential purposes as envisaged by Regulation 9.3.1.2 thereof.
The second was whether the appellant as a result thereof
was obliged
to make provision for the amount of open space required in terms of
the ratio prescribed in Regulation 9.3.2.1.
[25]
The Municipality opposed the remaining
relief sought by the appellant in prayers 2 and 4.1, 4.2 and 5 of its
notice of motion, obviously
premised on its central view that the
provisions of the impugned regulation apply to the development.
[26]
Before adverting to the outcome in the
review application, it is necessary to traverse the history of the
property before it came
to be constituted as erf 3783.
The history of “the
property”:
[27]
Erf
3783 before the consolidation comprised of two components which it
appears were conveniently consolidated to form the development
property. The first component of the development property is
erf 3112 which the appellant acquired from the Municipality
by way of
transfer in 2002 after it was redesignated as erf 3112. Before
that erf 3112 was known as Portion of erf 1256.
Erf 3782
Summerstrand is the second component. It was acquired from the
Municipality by the appellant only in 2008. It was
previously
marked on SG 5111/2001 as “
Remainder
”,
evidently of erf 1256.
[12]
Both components were essentially chips off the old block, as it were,
of erf 1256, that is of the parent erf that featured
on the Master
Plan for Summerstrand.
[28]
The appellant came into the picture in
2000.
[29]
On 6 March 2000 the Town Planning and Land
Use Committee
(“the Committee”
)
of the respondent’s predecessor Municipality (the Port
Elizabeth Transitional Council (“
the
PE TLC”)
resolved to recommend to
its Council that seven erven (748 to 752, 1943 and Portion of
Remainder 1256 (that was later redesignated
as erf 3112)) be rezoned
from Special Purposes No. 8 to Special Purposes No. 407, and further
resolved that the said erven be sold
to the appellant.
[30]
The resolution of the Committee records
both the fact of the rezoning for these special purposes and its
conditions comprising a
formal amendment of the Port Elizabeth Zoning
Scheme, as well as the sale of the rezoned erf to the appellant, as
follows:
“
218.
SUBJECT:
SALE
ERVEN
:
748 TO 752, 1942 AND PORTION OF
REMAINDER OF 1256, SUMMERSTAND
SITUATION:
SECOND
AVENUE, SUMMERSTRAND
APPLICANTS:
SIYALANDA
PROPERTY DEVELOPMENT (PTY) LIMITED AND EMFULENI RESORTS
FILES:
E01/123/01256P1;
E01/23/01256P37; E01/23/012566P44 (DW) (Agenda p.
218)
Following debate, the
Committee agreed to re-affirm its previous decision to sell the site
to Siyalanda Property Development (Pty)
Limited, setting the selling
price at R2.2 million plus value added tax and advancing the
following reasons for the out of hand
sale:
(i)
the sale is to a joint venture undertaking
of which half is owned by a person who owns no property in the city,
this being his first
access to land;
(ii)
the proposed development will create
employment in the city;
(iii)
the sale will lead to social and economic
empowerment;
Notwithstanding the fact
that the Committee has delegated authority in this matter, at the
request of two members it was agreed
to refer the matter to the full
Council for a decision.
RESOLVED TO
RECOMMEND:
(a)
That the application received from Emfuleni
Resorts for the purchase of Erven 748 – 752, 1943 and a portion
of Remainder Erf
1256, Summerstrand, be refused.
(b)
That, in terms of Provincial Circular
LDC/GOK 9/1988 and by a majority of the full Council, the Port
Elizabeth Zoning Scheme be
amended (TPA 4456) by the rezoning of Erf
748-752, 1943 and a portion of Remainder Erf 1256, Summerstrand, as
marked B and C on
Plan no. E3A-X-22, be rezoned from Special Purposes
No. 8 to Special Purposes no. 407, subject to the following
conditions:
(i)
Primary Uses:
Hotel/s,
recreation/resort facilities, tourist orientated and incidental
retail facilities and
dwelling units/residential accommodation
;
(ii)
Other uses:
More
detailed uses and zoning parameters being finalized on the basis of a
combination of site development plans
which
plan will include a Traffic Impact Assessment and Environmental
Impact Assessment;
(iii)
on-site parking shall be provided in terms
of Clause 13 of the Port Elizabeth Town Planning Scheme except in
respect of offices
where parking shall be provided at the ratio of 4
bays per 100m² GLA;
(iv)
detailed development parameters
shall be finalised in consultation with the City Engineer on the
basis of:
(a)
a site development plan (SDP) as
contemplated in terms of Clause 11.1 of the Port Elizabeth Zoning
Scheme shall be submitted for
approval by the City Engineer prior to
the submission of any building plans;
(b)
a Traffic Impact Assessment (TIA), based on
a detailed development plan prepared by a professional transportation
engineer to enable
the City Engineer to assess the additional traffic
loading on the surrounding roads and intersections resulting from the
completed
development and in full operation. All improvements
which may result from the TIA shall be for the account of the
Purchaser;
(c)
the development plan required for the
Traffic Impact Assessment shall be drawn to scale and to indicate
on-site parking and access
to the site. The Department of
Transport’s guidelines for on-site parking must be met;
(v)
the developer shall pay a transportation
development levy which is subject to escalation. The
transportation development levy
will be determined when more detailed
vehicle trip generation is provided in the TIA shall be submitted for
approval;
(vi)
a detailed landscaping plan prepared by a
Registered Landscape Architect shall be submitted with the Site
Development Plan for approval
by the City Engineer. The
landscaping plan shall further be implemented at the Purchaser’s
cost to the satisfaction
of the City Engineer and Director : Parks
and Recreation prior to the occupation of any buildings on the
property.
(vii)
Erven 748 to 752, 1943 and the portion
of Remainder Erf 1256, Summerstrand in question shall be
consolidated;
(viii)
a development plan shall be submitted at
the Purchaser’s cost accompanied by a report/designs from a
Consulting Engineer detailing
all on –site service designs, all
services traversing the erf and the interaction of such services with
the surrounding Municipal
services, including the disposal of
concentrated or non-concentrated stormwater and subsoil water being
discharged from the surrounding
catchment area (Municipal roads, the
abutting properties, etc.) onto the erf, to the City Engineer for
approval.
(ix)
any modifications and alterations to the
stormwater system shall be at the Purchaser’s expense and to
the satisfaction of
the City Engineer.
(x)
the developer shall, at own costs, relocate
the electricity cables or registered a servitude in favour of the
Council and acceptable
to the City Electrical Engineer. No
structures, cutting or filling which will alter the ground level will
be allowed within
the servitude, or in the absence of a servitude,
within 1 m of the underground cables. The Council shall not be
held responsible
for the electricity cables beyond the supply point.
The costs of these electricity cables shall be for the Purchaser’s
account;
(xi)
the Purchaser shall register at own costs a
10 m wide sewer servitude in favour of the Council over the 600 mm
diameter traversing
Erf 1256. The position of the sewer to be
confirmed by the City Engineer prior to the survey of the servitude;
(c)
That, subject to the consent of the Premier, Erven 748 to 752, 1943
and a portion of Remainder Erf 1256, Summerstrand,
as shown marked as
areas B
[13]
and C on Plan no.
E3A-X-22, be sold to Siyalanda Property Development (Pty) Limited,
subject to the following conditions:
(i)
a sale price of R2,2 million plus value added tax;
[14]
(ii)
the erven sold shall be consolidated simultaneously with
transfer;
[15]
(iv)
the Purchaser acknowledges that Erf 748 to
752 and 1943 Summerstrand are held under lease by Emfuleni Resorts
(Pty) Limited;
(v)
the Purchaser shall comply with the
provisions of TPA 4456;
(vi)
all costs associated with the transaction,
including survey costs, shall be for the Purchaser’s account;
(vii)
Council’s standard conditions of
sale.”
(Emphasis added).
[31]
It is common cause that the committee’s
resolution was approved in the terms recommended in 2000 and that the
following significant
events ensued:
31.1
the PE Zoning Scheme was amended (TPA
4456), which rezoning of the implicated seven erven - land usage use,
applied from the date
of approval;
31.2
the later purchase of portion of remainder
of Erf 2156, by the appellant from the Municipality (separate from
the six erven that
are the subject of a long lease by Emfuleni
Resorts) was subject to the express condition that “
the
Purchaser shall comply with the provisions of Town Planning Amendment
No. 4456”
; and
31.3
the Municipality ostensibly reserved to
itself the right to finalise more detailed use, zoning, and
development parameters in respect
of the subject property (of which
redesignated erf 3112 formed the larger part) through the mechanism
or control of the submission
of a site development plan and the
mandatory processes that had to ensue before any buildings could be
erected on the property.
[32]
As an aside I should point out that the
historical character of erf 3782, although a very minor component of
erf 3783, was ostensibly
not given any particular recognition by the
Municipality in its “
conclusion”
or reason suggested why the impugned resolution fell to be applied to
the consolidated development property. (It was ostensibly
surveyed by Diagram No. 7300/2005 (on which it was represented as erf
3782) contemporaneous with the transfer to the appellant
prior to the
consolidation so its unique standing ought to have occurred to it.)
The consolidation that was anticipated via the
Municipality’s
sale and rezoning resolution of 2000 obviously related to the seven
erven highlighted therein. Erf 3782 was
self-evidently not in
contemplation at the time, yet the Municipality asserted (for
purposes of making the impugned resolution
stick) that erf 3783 had
been “
created”
by rezoning for residential purposes through a consolidation of what
it seems to have assumed were the same seven erven that formed
the
subject matter of the 2000 resolution.
[33]
Further,
when the appellant began to engage with the Municipality concerning
its SDP with regard to the proposed development it
appears that apart
from commenting that the appellant had not taken advantage of the
“
basket
of rights”
that had been made available to the owner by the rezoning of the
property (which includes erf 3782) to Special Purpose Zone No.
407,
neither party especially recognized the implication of the manner in
which it was seeking to put the residential uses to its
benefit
viz-a-viz
erf 3112, namely by way of a sectional title development which, I say
as an aside, probably required a revisiting of the erf’s
zoning
or a refining of its consent uses in respect of the proposed
development.
[16]
Be that
as it may, the Municipality did emphasize however that it was
important to ensure that all the conditions of TPA
4456 had to be
adhered to in assessing the appellant’s SDP.
[34]
Given
the assumption made by the Municipality that erf 3782 was one of
several erven implicated by the resolution of 2000, it is
necessary
to reflect on its separate zoning status. Before the 2000 resolution,
the use rights applicable to portion of erf 1256,
which is a
constituent part of the development property, was also that of
special purposes No. 8.
[17]
[35]
It
is evident from a report of the City Engineer drafted in 1988
[18]
that this amendment to the PE Zoning Scheme was recorded as Town
Planning Amendment No. 254A7 and had been effected in or about
1985
already but the necessary development controls had (by 1988) not
effectively been put in place.
[36]
This is apparent from the following
background recorded in the City Engineer’s report at the time:
“
SUBJECT:
Rezoning Scheme
Amendment
ERVEN:
Ptn Erf 1256, Erf 1943 and Erf 748 to 752 SUMMERSTAND
SITUATION:
Off Winchester Way and Beach
OWNER/APPLICANTS: PEM
FILES:
191/12/254/23; 191/01/07/23; E5/254; E2/23/44/1; T.P.A. 254.A7
1.
AMENDMENT REQUIRED
The application is for
the amendment of the Port Elizabeth Zoning Scheme to include
development parameters for the Humewood Caravan
park, zoned for
Special Purposes No. 8 in terms of the Master Plan for Summerstrand
(T.P.A.254.A4).
2.
BACKGROUND
When the original
report for T.P.A. 254.A4 was prepared in July 1979 no controls or
uses for Special Purposes No. 8 (Humewood Caravan
Park) were included
as it was the intention that they would be submitted at a later date
and dealt with as an ad hoc zoning amendment.
The total lease
area of the Humewood Caravan Park (Special Purpose Zone No. 8) is as
indicated on Plan NO. E3A-Z-11, attached.
The Land Usage
Committee at its meeting held on 2 July 1985 resolved that the
Humewood Caravan Park and certain adjoining land,
measuring
approximately 20 ha in extent, be offered for lease by public tender,
subject to the conditions as set out in Item 43
of the Town Clerk’s
report No. 7/1985, provided that the conditions be amended by the
deletion of clauses (i) and (vi) thereof.
Clause (x) of the
aforementioned report reads as follows:
“
The
Port Elizabeth Town Planning Scheme being suitably amended to
incorporate the necessary development controls, once the Lessee’s
development plan has been finally negotiated.”
The City Engineer in a
report to the Town Clerk, dated 16 July 1985, recommended that:
1.
The area approx. 20 ha in extent
consisting of Ptn. erf 1256, Ptn. erf 1251 and erven 748 to 752
Summerstrand shown borded in bold
outline on plan E3A-Z-10A be leased
by public tender for development along the lines indicated in
Annexure X (attached to
this report as Annexure “A”)
and subject to a lease agreement suitably covering the Council's
interests;
2.
The actual development controls
applicable to the site be moulded around the accepted development
plan of the successful tenderer
in due course, and that a Town
Planning Amendment to incorporate those controls in the town planning
scheme be processed at that
stage.
The lease agreement
was signed by the lessee on 26 February 1987 and the development
guidelines as set out in Annexure “A”
of this report,
were included as the Second Schedule to the aforementioned lease
agreement.”
[37]
The report goes on to flag that although
the developmental guidelines
had been
included as part of the lease agreement for the Humewood Caravan Park
there happened to be “
no provision
in terms of the Port Elizabeth Zoning Scheme to control development”
.
Thus it was indicated that it would be necessary to obtain the then
Administrator’s approval to amend the zoning scheme
to include
the development parameters for Special Purposes Zone No. 8 which were
to be based on the developmental guidelines aforesaid.
[38]
Town Planning Amendment No. 254.A7
comprised a comprehensive holiday
resort
development including a caravan park and self-contained chalets/
bungalows, the latter in a density of 25 per hectare used
for such
purpose. A layout plan was required to be submitted for approval in
the case of buildings to be erected. It mandated that
the building
plan had to “
show all existing and
proposed development, clearly indicating the extent and nature of all
of the various components of the project.
Access, internal pedestrian
and traffic circulation, parking and holding areas, landscaping, tree
planting etc., must also be shown
where applicable. All landscaping
shall be to the satisfaction of the Director of Parks”.
[39]
What can be gleaned from the foregoing is
that the Municipality’s predecessor was astute to maintain the
necessary development
controls over both constituents of the
development property (now known as erf 3783) under the mantle of the
applicable zoning scheme.
[40]
This
reservation of the Municipality’s rights was equally maintained
in the 2000 resolution, and is reflected in the deed
of sale in
respect of erf 3112 sold by it to the appellant in the recognition,
firstly, of the anticipation that erf 3112 should
be separately
surveyed (in the event that it was not so registrable in the Deeds
office at the time of the sale); subject to the
condition that the
appellant should comply with the provisions of Town Planning
Amendment No, 4456; and subject to the further
condition that the
property was sold “
subject
to all conditions contained in or referred to in the Title Deed
thereto and subject also to all conditions imposed when
the
subdivision of the land of which the above mentioned property forms
part, was approved.”
[19]
[41]
As indicated above although the acquisition
history of the smaller component of the development property (erf
3782) was not elaborated
upon it is clear that it was included in the
area demarcated on Plan E3A-Z-10A referenced in the report to the
committee regarding
the amendment of TPA 254. A4 to TPA 254.A7 to
include development parameters for the Humewood Caravan Park.
[42]
It should perhaps also be emphasized that
its zoning for special purposes whatever the implication thereby
permitting the erection
of bungalows and chalets, preceded the coming
into operation of the Scheme (bringing with it the impugned
regulation presently
under consideration) by fifteen years or so.
Judgment of the
court below:
[43]
In
the court below the parties both argued their respective contentions
from the premise of the principles of interpretation expressed
in
Natal
Joint Municipal Pension Fund v Endumeni Municipality (“Endumeni”)
[20]
as to how the offending regulation fell to be interpreted. The
appellant maintained that its provisions did not apply because
the
Scheme did not provide in terms for the provision of “
Open
Space”
in respect of its situation or development parameters, and the
Municipality asserted contrariwise that it was so entitled and
obliged to insist on the provision of open space from its perspective
given the rezoning at least of the development property by
the 2000
resolution whereby in its view it had been “
created
for residential purposes where more than one dwelling unit is
permitted”
.
As far as it was concerned the meaning promoted by the appellant
regarding the impugned regulation that in the latter’s
view
justified its insistence that it was not required to provide “
Open
Space”
on the basis contended for was absurd and could not be countenanced.
[44]
It appears upon a perusal of what
contentions were advanced on behalf of each party in the court below,
however, that they were
somewhat at cross purposes.
[45]
The
appellant’s contention in chief was that the impugned clause on
which the Municipality based its expectation (nowhere
regulated as a
stand-alone obligation in the Scheme) for the provision of open space
belonged contextually under a chapter dealing
exclusively with
subdivisions that only implicated properties created by this method
as it were (according to a process whereby
subdivision goes hand in
hand with rezoning)
[21]
that
subsequently were developed. It refuted that the development
property had been “
created”
for residential purposes in such a manner and complained as it does
now on appeal that the Municipality has tried to shoehorn the
applicable facts into the provisions of the impugned regulation where
they plainly did (and still do) not fit. Mr. Richards
who
appeared for the appellant in both the court below and in the appeal
before us, asserted in the first court that on the plain
wording of
regulation 9.3 read as a whole, the Scheme under Part V concerned
itself with
subdivisions
in the context of
LUPO
.
[22]
Mr. Buchanan, who appeared for the Municipality (in both courts as
well) submitted contrariwise that the property (applying
no
distinction between the two components that made up the consolidated
erf 3783) had been created for residential purposes by
the rezoning
in 2000, which was the imprimatur for the provision of open space
enjoined upon the appellant in the impugned regulation,
triggered
obviously by the desire on its part at that juncture to erect
buildings on the property.
[46]
Mr. Buchanan appeared to be under the
impression that the case advanced on behalf of the appellant in the
court below was that the
provisions of clause 9.3.1.2 did not apply
because the property had on the appellant’s version instead
been “
created”
by consolidation, which origin by necessary implication suggested
that this excluded it from its purview. Mr. Richards’
submission to the contrary, however, was simply that the regulation
did not apply, even accepting how both the original components
of the
property emanating from the parent property had transmuted. There was
certainly no suggestion on the appellant’s part
that each
erven’s property DNA, as it were, fell to be disregarded once
the Certificate of Consolidated Title was issued
in respect of erf
3783.
[47]
This misunderstanding however led the court
below to infer that the appellant was being opportunistic by
suggesting both that the
consolidation precluded the applicability of
Regulation 9.3.12 and that its prior history (including the fact that
it was constituted
of a part that before consolidation had been
rezoned for special purposes including the erection of dwelling
units/residential
accommodation), had been effaced once erf 3112 was
consolidated with the “
Remainder”
(erf 3782) to become erf 3783. (The suggested absurdity of this
proposition is self-evident.)
[48]
Accepting Mr. Buchanan’s submissions
as to how the impugned regulation ought to be interpreted, the court
below found that
the properly had been “
created
”
by the prior rezoning of the applicable portion of Erf 1256 for
residential purposes (by virtue of its special purpose 407
use) which
parlayed to its ultimate conclusion that its provisions applied to
the proposed development.
[49]
It axiomatically dismissed the meaning of
the provisions of regulation 9.3.1.2 contended for on behalf of the
appellant as being
“
problematic”
and producing “
insensible or
unbusinesslike results”
that
undermined the apparent purpose of the Scheme, which purpose was not
really enlarged upon except to state that the practical
implications
of the regulation are “
the
provision of open space by a landowner”
.
[50]
The present appeal is fairly in my view
premised on the basis not only that the court below was mistaken in
its interpretation of
the meaning to be attributed to the impugned
provision, but also that it had failed to consider the specific basis
upon which it
had submitted the second SDP and the pertinent
reservation of it rights vis-à-vis that layout plan under the
circumstances.
[51]
In such circumstances this court is at
large to reconsider both issues.
[52]
I turn presently to the question what the
impugned regulation under the erstwhile Scheme means.
The principles of
interpretation:
[53]
The
“
updated”
approach to interpretation was indeed “
famously”
set out in
Endumeni
[23]
as follows:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document…The ‘inevitable point of departure is the
language of the provision itself’, read in context
and having
regard to the purpose of the provision and the background to the
preparation and production of the document.”
[24]
[54]
In
a more recent decision of the Supreme Court of Appeal in
Capitec
Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty)
Ltd and Others (“Capitec”)
[25]
the court enlarged upon and qualified the essence of the approach
adopted in
Endumeni
[26]
as follows:
“
It
is the language used, understood in the context in which it is used,
and having regard to the purpose of the provision that constitutes
the unitary exercise of interpretation. I would only add that the
triad of text, context and purpose should not be used in a mechanical
fashion. It is the relationship between the words used, the concepts
expressed by those words and the place of the contested provision
within the scheme of the agreement (or instrument) as a whole that
constitutes the enterprise by recourse to which a coherent and
salient interpretation is determined. As
Endumeni
emphasised,
citing well-known cases, ‘[t]he inevitable point of departure
is the language of the provision itself’.”
[27]
[55]
The SCA however cautioned against a
formulaic reliance on
Endumeni
warning that:
“
[49]
Endumeni
has
become a ritualised incantation in many submissions before the
courts. It is often used as an open-ended permission to
pursue
undisciplined and self-serving interpretations. Neither
Endumeni,
nor
its reception in the Constitutional Court, most recently
in
University
of Johannesburg
,
[28]
evince scepticism that the words and terms used in a contract have
meaning.
[50]
Endumeni
simply
gives expression to the view that the words and concepts used in a
contract and their relationship to the external
world are not
self-defining. The case and its progeny emphasise that the meaning of
a contested term of a contract (or provision
in a statute) is
properly understood not simply by selecting standard definitions of
particular words, often taken from dictionaries,
but by understanding
the words and sentences that comprise the contested term as they fit
into the larger structure of the agreement,
its context and purpose.
Meaning is ultimately the most compelling and coherent account the
interpreter can provide, making use
of these sources of
interpretation. It is not a partial selection of interpretational
materials directed at a predetermined result.
[51]
Most contracts, and particularly commercial contracts, are
constructed with a design in mind, and their architects choose words
and concepts to give effect to that design. For this reason,
interpretation begins with the text and its structure. They have a
gravitational pull that is important. The proposition that context is
everything is not a licence to contend for meanings unmoored
in the
text and its structure. Rather, context and purpose may be used to
elucidate the text.”
[29]
[56]
In
University
of Johannesburg v Auckland Park Theological Seminary and Another
(University of Johannesburg)
[30]
the Constitutional Court held that an expansive approach should be
taken to the admissibility of extrinsic evidence of context
and
purpose.
[31]
[57]
In this sense both parties urged upon the
court to have regard to the common cause facts and the historical
character of the development
property.
Discussion:
[58]
Mr. Buchanan submitted that
based
on the language of Regulation 9.3.1.2 and in the light of the
ordinary rules of grammar and syntax
,
the development property was created for
residential purposes
where
more than one dwelling is
permitted
by virtue of
rezoning
and or subdivision
as envisaged by the
impugned regulation.
[59]
In consideration of the factors conducing
to a meaningful interpretation of the impugned regulation there
is no contest, firstly,
as to the purpose of the Scheme or its role
played in this important regard. Secondly, when it comes to the
language used in the
Scheme and having regard to its purpose as I
will shortly demonstrate, it is plain that we are in the realm of
planning and property
law.
[60]
In
Yvette
Georgia t/a Georgiou Spa v Nelson Mandela Bay Metropolitan
Municipality
[32]
the court held that the self-same Zoning Scheme
Regulations
are part of a larger body of statutory laws that are aimed at
achieving orderly and rational development of land and
land use in
the Municipality's area of jurisdiction so as to achieve a proper
balance, in the public interest, between the competing
rights and
interests of residents. The judgment confirms that the purpose of
Part III is to especially determine use zones and
uses to which the
property may be put whereas the other parts of the Scheme concern
development parameters.
[33]
(The development parameters are critical when it comes to the putting
up of buildings.)
[61]
The Scheme was adopted by the
Municipality’s predecessor pursuant to the provisions of
Chapter II of LUPO (now repealed)
which emphasize, in section 9
thereof, that the object of scheme regulations, which may authorise
the granting of departures and
subdivisions by a council, shall be
control over the zoning. As provided for further in section 11 of
LUPO, the general purpose
of a zoning scheme shall be to determine
use rights and to provide for control over use rights and over the
utilisation of land
within the area of jurisdiction of a local
authority.
[62]
In the Scheme itself, “
use
right
” in relation to land, means
the right to utilise that land in accordance with the zoning thereof,
including any departure.
“
Zone
”
when used as a verb, means to set apart the land for a particular
zoning. “
Zoning or Zone
”
when used as a noun, means a category of directions setting out the
purpose for which land may be used and the land use
restrictions
applicable in respect of the said category of directions, as
determined by relevant scheme regulations.
[63]
In regulation 3.1 of the Scheme
in
casu
under “
PART
111- USE OF LAND AND BUILDINGS
”
the intent of the regulations is stated as follows: “
The
purpose of this part of the regulations
(which then goes on to specify the primary, secondary and prohibited
uses in the set use zones specified in Table A)
is
to determine use zones and uses which may be carried on in these
zones and to determine the conditions applicable to them”
.
For the purposes of the Scheme’s regulations the term “
use”
includes “
the use of the land and
the erection of a building”.
[64]
TABLE “A” - USE ZONES
records the uses permitted under each identified
category. The designation of “
Special
Purposes”
(which pertains in this
peculiar factual scenario) under both columns 2 and 3 lists the
peculiar primary (“
uses
permitted”
) and secondary uses
(“
uses permitted with the
Special Consent of the Council”
)
both as “
Uses as specified in the
applicable zoning scheme
.”
Prohibited uses in columns 4 are said to constitute “
Uses
other than those mentioned in Columns 2 and 3”
,
that is the primary and secondary uses respectively. In this instance
the applicable zoning schemes are TPA 4456, and possibly
still 245.A7
which reflect what uses were in mind.
[65]
Zoning
is therefore pre-determined, with its primary and preordained consent
uses. Permitting a consent use does not entail
an amendment of
an existing zone, but merely an extension thereof.
[34]
[66]
“
Rezoning”
in
the context of the Scheme means “
the
alteration of
(the)
Zoning
Scheme under section 14 (4), 16 or 18 of the Ordinance
(that is a reference to LUPO)
in
order to effect a change of zoning to particular land
”.
[35]
[67]
The
parties appeared to accept that a reference to subdivision means
cadastral subdivision. Whereas Mr. Richards argued that
the
concepts of rezoning and subdivision go hand in hand under the part
of the Scheme dealing with the subdivision of land (of
which
Regulation 9.3 is a subpart), the emphasis of the Municipality is on
the rezoning that, in respect of erf 3112 as it was
constituted prior
to the consolidation of the development property, predestined the
property for the residential purposes contended
for.
[36]
[68]
There
are no factual issues in dispute in this instance or seriously
contested factors brought to bear upon the interpretation except
that
the appellant contends that the Municipality’s inconsistent and
or hesitant approach in dealing with its first SDP on
the basis that
the provisions of the impugned regulation applied to the development
(without being able to point forcibly in its
view to a clear
entitlement to stipulate for open space and the contrived reasons
provided along the way for its insistence in
this respect), strongly
confirm its position to the contrary that the impugned regulation
cannot be interpreted in the manner contended
for by the
municipality. The Municipality submits, to the contrary, that
whether it was right or wrong in what it said about
its claimed
entitlement to insist on the provision of open space under the mantle
of the impugned regulation, all of this is irrelevant
to the issue of
the court’s interpretation of its provisions.
[37]
[69]
There is further no question that the
antecedents of the property, as Mr. Richard’s put it, do apply
to the context which
the court below was obliged to have regard to.
In fact, this is pivotal to an appreciation of the Special Purposes
that apply to
the constituent parts of the development property, and
the peculiar development parameters specified for in the case of both
amendments
to the zoning scheme.
[70]
In this respect it bears pointing out that
Regulation 1.0 of the Scheme saves anything lawfully done in terms of
the preceding scheme
regulations,
recording
that anything lawfully done in terms of the previous scheme
regulations shall be deemed to have been done under the corresponding
provisions, if any, of the Scheme’s provisions presently under
scrutiny. In regulation 1.3 the components of the zoning scheme
are
said to comprise of the Zoning Map, the Register and the Scheme
regulations. Regulation 1.6.5 provides that nothing in the
present
Scheme shall be construed as permitting any person to do anything
which is in conflict with the conditions registered against
the title
deed of the land. Regulation 3.17.2 provides further that a condition
as contemplated in sub-regulation 3.17.1 shall
have the same force
and effect as if it were a regulation of the Scheme under
consideration.
[71]
In this respect the antecedent history of
the development property certainly forms part of the unitary
approach to be adopted
in interpreting the impugned regulation.
[72]
It is so as observed by the parties that
the concept of open space is not defined in the Scheme whereas
private and public
open spaces are. Their peculiarity is that the
latter constitute areas within the Municipality’s jurisdiction
that have been
“
zoned”
as such. The Scheme itself states that
“
Private
Open Space”
means “
any
land
zoned
for private use as a ground for sports, play, rest or recreation or
as an ornamental garden or pleasure ground”
.
“
Public Open Space”
means “
any land
zoned
for use by the public as an open space, park, garden, playground,
recreation ground or square”.
Both
Private and public open spaces with this categorisation of them being
zoned areas are also given specific recognition in
Table A to
the Scheme.
[73]
I add that within the context of Part V of
the Scheme that the open space contended for in the second scenario
contemplated by Regulation
9.3.1.2, (as opposed to where a
Residential 1 erf is subdivided where it is anticipated that a single
dwelling house is to be developed
on such subdivided erf which the
owner either pays a levy for or is compensated for the provision of
Open space as the case may
be upon registration of the subdivision)
envisages that the “
Open Space”
to be provided by the owner free of charge is to be
transferred
to the Municipality. Moreover, as is indicated by regulation 9.3.3,
the open space to be so transferred can only be land which
in the
Municipality’s opinion is “
suitable
for purposes of sport, play or recreation”
before
it “
shall count towards the
provision of Open Space.”
[74]
Not coincidentally in my view, the
qualification aforesaid correlates with the formal definition of
public open space and suggests
(in the context of the subdivision of
land under this part) that the open space contended for must be of
the standard that lends
itself to being zoned in the Scheme (upon
transfer) as “
public open space”.
[75]
The parties are
ad
idem
that public open space cannot be
implicated in a sectional title scheme. On behalf of the
Municipality, it was suggested
that private open space was rather
contended for in the present situation but it cannot be seriously
suggested (assuming
the provisions of the impugned regulation
apply on its peculiar reasoning) that the communal spaces made
provision for in the sectional
scheme fall to be transferred to the
Municipality and maintained on its register even as private open
space. It is what it
is and, as Mr Richards pointed out, not a
natural fit with the provisions of Part V.
[76]
The concept of “
open
space”
occurs in two places in
the Scheme. Read in chronological order, it first occurs under
Regulation 9.3 relative to Part V
and, secondly, it is implicated
under PART VI of the Scheme under general amenities and convenience
that must be given regard to
when an owner intends to erect a
building, provision for which (that is the extent and position) must
be shown in the context of
a site development plan. Continuing
to read in linear fashion the list of matters to be shown on the SDP,
reading from sub
regulation 11.1.2 (viii), that is the area of the
site and the number of
dwelling units
per gross hectare, the next sub regulation (ix) which states that if
the site is to be
subdivided
,
the proposed subdivision lines must be shown, and flowing into sub
regulation (x), namely that the extent and position of
Open
Space
to be provided must be shown,
repeat the three concepts that are referenced under the sub mantle of
the subdivision of land chapter
all of which suggest that it is only
in respect of developments that flow from cadastral
subdivisions envisaged under Part
V that require the extent and
position of open space to be provided to be represented in an ensuing
layout plan. I am fortified
in my view of this because it
is not a generic reference to open space in the listed requirement
under Regulation 11.2 (x),
but a reference especially to “
Open
Space
” and that closed concept
flows only from Regulation 9.3 where it is also given the distinctive
capitalization of the two
words appearing side by side.
[77]
I am therefore persuaded that Part V
regulates the narrow subject of subdivision of land and that the
sub-regulation concerning
the provision of “
Open
Space”
as per prescribed formulae
resorts under the exclusive scenarios made provision for under this
part.
[78]
Mr.
Richards fairly pointed out that each of the sub
regulations
9.1, 9.2, 9.4 and 9.5 deal exclusively with procedures relating to
subdivision or regulate matters arising in relation
to the
subdivision of land.
[38]
Indeed the formulae in sub-regulation 9.3.2.3 (ii) (a) and (b)
are capable of calculation only with reference to subdivision.
[79]
Even understanding “
rezoning”
by resolution as the qualifying “
creation”
of the property for residential purposes contended for by the
Municipality, erf 3112 (as it was then known) was rezoned in 2000
for
“
Special Purposes”
and not to put the property to use as the appellant recently decided
to do. It was created in the context of the Scheme for
the
express uses indicated in TPA 4456 at a time when the Municipality
still owned the property, subject to the particular conditions
that
pertained (and which will continue to pertain since there does not
appear to have been any rezoning since).
[80]
Perhaps the property by its subsequent
survey (of each of the components making up the consolidated whole)
could be said to have
been subdivided in the manner contended for by
the definition in LUPO but it in any event remains subject to the
zoning and development
parameters set out in TPA 4456 (and possibly
TPA 254.A7).
[81]
In consequence I find that the provisions
of regulation 9.3 insofar as they relate to the “
Provision
of Open Space”
do not apply to
the appellant’s development. Having said so, the
absurdity contended for by the Municipality
in not being able to
insist on the provision of open space (as an amenity rather than the
closed concept referenced under Regulation
9.3) are ameliorated by
the fact that TPA 4456 and TPA 254. A7 has reserved the right
to the Municipality to control the
development. It appears
further in this respect that the appellant’s request to develop
the property went through the
rigours envisaged by the Amendment(s)
aforesaid including a vital environmental impact assessment.
The communal areas foreshadowed
in the appellant’s first SDP
must also have been contemplated on the basis of the relevant
provisions of the Sectional
Titles Act. There is no need therefore to
strain for an interpretation that is an unnatural fit in all the
circumstances.
The review relief
sought by the appellant in prayers 4.1 and 4.2 of the amended notice
of motion:
[82]
For the rest, given the Municipality’s
admissions concerning its failure to have made a decision in respect
of the appellant’s
first SDP and the specific consequences that
this entailed for it in the circumstances, it appears necessary to
grant to the appellant
the relief sought in prayer 4.1 of its amended
notice of motion. I agree with Mr. Richards in this respect
that
the provisions of section 6 (3)
(a) of the Promotion of Administrative Justice Act, No. 3 of 2000
(“
PAJA”)
are
applicable to the circumstances and that the Municipality’s
failure to have taken a decision falls to be reviewed and
set aside
in terms of section 6 (2)(g) of PAJA.
[83]
The court below quite evidently erred
in concluding that the review relief sought by the appellant was
rendered “
academic”
and moot by what was viewed as a compliance by it with the provisions
of the Scheme in submitting the second SDP; that the reservation
by
it of its rights “
does not take
its case any further and may have been a miscalculation”
as constituting a “
self-correction”
and compliance with the requirements in the Regulations; and further
that the relief review relief was “
incompetent
and of no consequence”.
(There is
no contestation in this respect that the court below missed the
significance of the appellant’s reservation of
its rights and
the parties’ agreement reached or the import thereof.)
[84]
The “
conclusion”
referred to in prayer 4.2 of the amended notice of motion was also in
my view made after taking into account irrelevant considerations
and
having regard to the unauthorised and unwarranted dictates of the
Director : Land Planning and accordingly also falls to be
reviewed
and set aside on the basis that was motivated by the appellant in the
review application.
[85]
I therefore propose to grant the following
order:
1.
The appeal succeeds, with costs on Scale C.
2.
The
order
appealed against is set aside and replaced by an order in the
following terms:
“
1.
It is declared that the provisions of regulation 9.3.1.2 of the Port
Elizabeth Town Planning Scheme Regulations (“the
Scheme”)
are not applicable to the Applicant's proposed development on 3783
Summerstrand.
2. The
following decisions and/or actions of the Respondent through the
medium of its employees in the course of their functions
as such are
reviewed and set aside:
2.1
the
failure of the respondent to consider and finally approve or reject
the first Site Development Plan (“SDP”);
2.2
the
respondent’s conclusion that the first SDP does not comply with
the purported provisions of Regulation 9.3.1.2 of the
Scheme.
3.
The matter is remitted to the
Respondent for consideration by it of the Applicants first SDP and
the Respondent is directed to do
so without requiring the Applicant
to comply with the purported provisions of Regulation 9.3.1.2 of the
Scheme.
4.
The Respondent shall pay the costs
of the application.”
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE,
R
BROOKS
JUDGE
OF THE HIGH COURT
I
AGREE,
F
PRETORIUS
ACTING
JUDGE OF THE HIGH COURT
DATE
OF APPEAL:
18 March 2024
DATE
OF JUDGMENT:
18 June 2024
Appearances:
For
the Appellant: Mr. J G Richards SC instructed by Pagdens Attorneys
c/o Cloete & Co., Makhanda (ref. PAG1/00111/AB)
For
the Respondent: Mr. R G Buchanan SC instructed by Gray Moodliar Inc.
c/o Whitesides Attorneys, Makhanda (ref. Mr. Nunn/sw/C13890)
[1]
This
is the Scheme as approved by Provincial Notice No. 676 dated 2
November 1990, published in terms of section 9 (2) of the
Land Use
Planning Ordinance, 15 of 1985 (“
LUPO
”).
After the establishment of the respondent as a metropolitan
municipality in December 2000, it continued to apply
within the
geographic area of the former Port Elizabeth Municipality. It has
since been replaced by the Municipality’s
Integrated Land Use
Scheme and LUPO has also been repealed. Both however remain
material for the purposes of this appeal.
[2]
Erf
3783 is constituted of the erstwhile erf 3112 which measured 4,4745
ha, and “
Remainder
”
(of erf 1256) which by process of deduction must have measured
0,2545 ha. The consolidated erf measures 4,7290 ha
in total.
[3]
The
status of erf 3782, the smaller erf consolidated with erf 3112 was
not especially elaborated upon by either party. It
was
evidently also carved from the parent erf 1256 before it was
partitioned off. Indeed both erven formed part of a tract of
land
initially held by the Municipality under Deed of Grant T223/1957 in
terms of the condition stipulated that it would assume
full
responsibility for the protection of the land and the reclamation of
driftsands occurring thereon. The erven were thereupon
commonly the
subject of Deed of Transfer T23312/1988 in favour of the
Municipality incorporated under “
the
Remainder of erf 1256
”
measuring in extent 1542,8954 Hectares. The survey diagram S.G
No.7301/2005 attached to the Certificate of Consolidated
Title
reflects that the portion of the remainder previously described as
erf 3112 was designated in 1992 as “
Sub-Lease
Area No. 1
”
and before that, in 1987, as a “
Lease
Area”,
whereas erf 3782, a small square with a tiny trigon tip abutting erf
3112, is given no particular description. In the diagram
applicable to the survey of erf 3112 before it was transferred to
the appellant (S.G. No. 5111/2001) the square is simply marked
“
Remainder
”,
obviously with reference to erf 1256.
[4]
In
line with the Oxford Dictionary meaning of amenity, which denotes a
“
useful
or desirable feature of a place
”,
these sub regulations focus on aspects or
features of land use that would tend to promote amenity and
convenience in the urban environment. Sub aspects under this
heading concern, for example, the external
appearance
of buildings, the control of environmental areas and the provision
and design of parking areas and loading bays. More
specific aspects
come under consideration in terms of regulation 11.1.2 which
indicates the matters required to be shown on a
layout plan that
must, according to provisions of regulation 11.1 satisfy the
Municipality before construction work can be authorised
to commence.
These matters include the siting of all buildings and parking areas,
a general indication of external finishes to
be used in building and
paving, the contours of the site, vehicle and pedestrian access and
circulation, the position of all
services and, if applicable, any
servitudes to be registered, the proposed method of disposing of
stormwater, the phasing of
the construction, the area of the site
and the number of dwelling units per gross hectare, if the site is
to be subdivided, the
proposed subdivision lines, the extent and
position of any “
Open
Space
”
to be provided and the height, coverage and, on a Residential 3 erf,
the total floor space of all buildings.
[5]
The
penultimate Regulation (9.4) under this part caters for a situation
where a subdivided erf may be impacted by a 100 year flood
line and
the last Regulation (9.5) relates to urban aesthetics on a
subdivided erf which has a street boundary across which no
vehicular
access is permitted. It pertains to the security wall or fence
on such boundary that is required to be erected
as well as the
integration of any outbuilding erected on the subdivision with the
main building so as to “
read
as a single complex
”.
They are only of relevance to demonstrate the appellant’s
contention that the whole part applies exclusively to
issues
relating to the subdivision of land and therefore have no
application to the entitlement contended for by the Municipality
that it should make provision for Open Space in the development
according to the formula provided for in Regulation 9.3 thereof.
[6]
This
formulation of what the property in the Municipality’s view
comprised of is patently incorrect. Erven 748-752 are not
a
component of the consolidated development property.
[7]
The
Municipality had for example contended that it was entitled to
stipulate for open space on the basis of certain guidelines
and
directives which it had issued on the subject. The parties
ultimately agreed however that, firstly the Municipality’s
“
Guidelines
for the Provision of Open Space in Residential 2 and 3 Type
Developments”
and,
secondly, the directives which had been issued by the Director: Land
Planning, had no legal standing and could not be relied
upon by its
planning officials.
[8]
Although
the appellant argued in the court below that there was no
“
regulated
”
requirement
viz-a-viz
its development for the provision of open space on the basis
contended for by the Municipality, it did not ostensibly suggest
that open space in the context of spatial planning is anathema.
Indeed in the course of negotiating development parameters for
the
sectional scheme, communal space was earmarked and it has complied
with DEDEAT’s requirements per TPA 4456. It
further does not take issue with the Municipality’s
calculations according to the formula, contending instead that the
provisions of the impugned regulation simply do not apply to its
development.
[9]
This
was important to ensure that the appellant could at least
legitimately get on with the construction of its sectional scheme
development.
[10]
The
Municipality acknowledged that the formal appeal submitted by the
appellant in terms of section 62 (1) of the Systems Act
did not fall
for consideration by its appeal authority.
[11]
The
conclusion ostensibly equals its stance that the provisions of the
impugned regulation are of application.
[12]
It
appears as “
1256”
on the Master Plan for Summerstrand (E3A-X-22) dated 1 October 2019.
[13]
B
on the Plan represents the renamed erf 3112. A is the area
comprising the Boardwalk Casino Complex and C represents the six
erven that are the subject to the long lease of Emfuleni Resorts.
[14]
It appears that only the portion of remainder of erf 1256 (B on the
Plan) was eventually acquired by the appellant for a reduced
purchase consideration of R1.6 million.
[15]
Since the remaining erven were not acquired as per the resolution,
the need for their anticipated consolidation obviously fell
away.
[16]
It appears that an essential layer may have been missed in the
process (or was not given context in the evidence in the court
below). At the time when negotiations were underway the local
authority’s approval under the provisions of
section 4
of the
Sectional Titles Act, No. 95 of 1986
, was seemingly no longer a
requirement. Whereas the proposed development could well have
been brought within the primary
uses indicated by the erf’s
zoning, TPA 4456 (at least in respect of erf 3112) envisaged “
more
detailed uses and zoning parameters being finalised
on
the basis of a combination of site development plans which plan
(would)
include
a Traffic Impact Assessment and Environmental Impact Assessment”.
It begs the question whether under the sectional scheme the
buildings erected should not have required a conversion to a new
different kind of residential use that seems on the face of it not
to be a natural fit with TPA 4456, but that is just by way
of
observation. As Mr Richards elaborated in his argument before this
court, special purpose zonings are “
one-offs”.
In other words they are zonings or right uses that do not fit within
one of the defined parameters such as Residential 1 or 2
or 3 etc.
They are special and unique and defined by the terms of the
amendment to the zoning scheme.
[17]
This is
evident
from a report of the City Engineer and an extract from the Port
Elizabeth Municipality’s zoning map provided on
the occasion
when it was necessary to amend the Port Elizabeth Zoning Scheme to
include development parameters for the then Humewood
Caravan Park.
[18]
See footnote 16.
[19]
Erf 3112 (portion of erf 1256) Summerstrand was evidently surveyed
in August and September 2001 according to S.G. No. 5111/2001.
The
original diagram referenced therein is 12840/1957 which accords with
the year in which the Deed of Grant was issued ostensibly
at the
time of the layout of Summerstrand.
[20]
2012
(4) SA 593 (SCA).
[21]
See
sections 22
and
25
of LUPO.
[22]
Subdivision is not defined in the Scheme, but the appellant
contended that it must mean cadastral subdivision. S
ubdivide”,
in relation to land, at least under LUPO, means:
“
to
subdivide the land whether by—
(a)
survey;
(b)
the allocation, with a view to the separate registration of land
units, of undivided
portions thereof in any manner; or
(c)
the preparation thereof for such subdivision.”
[23]
Supra
.
The descriptive words concerning the import and significance of
Endumeni
are
those of the Constitutional Court in
University
of Johannesburg v Auckland Park Theological Seminary and Another
2021 (6) SA 1
(CC) at para [64] and [66]
endorsing
the approach to interpretation adopted by the SCA in its decision.
[24]
Supra
,
at para [18].
[25]
2022
(1) SA 100 (SCA)
[26]
Supra
[27]
At
par [25].
See
also
Ezulweni
Mining Company (Pty) Ltd v Minister of Mineral Resources and Energy
and Others
2023
(5) SA 112
(SCA) at paras [28] & [29].
[28]
Supra
.
[29]
Capitec,
Supra
,
at the indicated paragraphs.
[30]
Supra.
[31]
Supra,
at
para [63] – [69].
[32]
[2017] JOL 39353
(ECG) at [20]. Even though this judgment
pre-dates
Endumeni
,
its interpretation of the relevant Scheme provisions appropriately
reflects upon context and purpose in the same manner.
[33]
Supra
at
[21]. See Regulation 11.1 and my comment in footnote 4.
[34]
Kleinsmidt
and Others v Groter Hermanus Plaaslike Oorgangsraad and another
[1998]
JOL 2794
(C) at page 10, citing
De
Vroeg v Stadsraad van Randburg
1970 (2) SA 132
(W) at 141A; and
Lawsa
Vol 28 paragraph 463.
[35]
Section 14 (4) of LUPO concerned itself with a scenario where it was
necessary to substitute a zoning scheme to redress a situation
where
the
de
facto
usage was not in line with the formal zoning. Section 16
related to owner applications to subdivide, and section 18 entailed
a rezoning initiated by the then Administrator, or Council.
[36]
The
same can probably be said of erf 3872 but the Municipality honed in
only on the rezoning envisaged by the 2000 resolution.
[37]
There
is at least merit in the suggestion that the provisions of the
impugned regulation were unclear, from both perspectives.
[38]
The
tying of the two concepts of rezoning and subdivision going hand in
hand as per the submission of Mr. Richards and that rezoning
must
arise in the manner permitting makes logical sense and commends
itself to me.