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1994
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[1994] ZASCA 100
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Town Council of Sandton v Gourmet Property Investments CC (725/91) [1994] ZASCA 100 (19 August 1994)
Case No 725/91
/mb
IN THE SUPREME COURT OP SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the appeal between:
THE TOWN COUNCIL OF SANDTON
APPELLANT
and
GOURMET PROPERTY INVESTMENTS CC
RESPONDENT
CORAM
: BOTHA, SMALBERGER, KUMLEBEN JJA, NICHOLAS et MAHOMED
AJJA
HEARD
: 24 MAY 1994
DELIVERED
: 19 AUGUST 1994
JUDGMENT
KUMLEBEN, JA
/.....
2
KUMLEBEN,
JA
:
The respondent is the owner of a property in Sandton,
Johannesburg, on which it conducts a restaurant and a retail business in two
separate buildings. A roof was constructed over the intervening space to create
what was described as a "conservatory". On completion
this covered area was used
for additional seating to serve as an extension of the restaurant. The appellant
objected on the ground
that such use was unauthorized. The respondent maintained
that it had the right so to use it. An application to court followed for
an
order prohibiting the respondent from placing any seating accommodation in that
area. It was heard in the Witwatersrand Local
Division of the Supreme Court by
Eloff JP. The relief sought was refused. With leave of the court a
quo
,
the correctness of this decision is now on appeal.
3 The facts are
common cause. Section 4 of the National Building Regulations and Building
Standards Act 103 of 1977 prohibits the
erection of a building for which plans
and specifications are required without the consent of the local authority, in
this case the
appellant. (The said roof structure is by definition a "building"
and I shall refer to it as such.) An applicant for the required
approval is
obliged in terms of the regulations to complete an application form and submit
it, together with plans and particulars
of the proposed building, to the
appellant. The architect, on behalf of the respondent, noted on the plans that
"no seating [is]
to occupy conservatory area". (I shall refer to this
self-imposed restriction as the "condition".) It is not disputed that approval
was given subject to this condition. On completion of the conservatory, and some
other building alterations which for present
4 purposes are
unimportant, the respondent, as I have said, refused to refrain from using the
conservatory as part of the restaurant.
In paragraph 19 of the founding affidavit, after recounting the history
of the matter and the breach of the condition, appellant alleged;
"In the circumstances it is submitted that the Respondent is not only
acting unlawfully and contrary to the conditions and particulars
of the approved
building and site development plans in respect of the conservatory, but that the
Respondent has committed an offence
as contemplated by Section A25(5) of the
Regulations."
In reply Carnie Matisonn, a member of the respondent authorised to act on
its behalf, said in the answering affidavit:
"I deny that the Respondent is acting unlawfully and submit that in fact
the conservatory is being used for purposes contemplated
on the approved plans.
I accordingly deny that any offence as alleged has been committed."
5
The court a
quo
found it
unnecessary to
decide the merits, that is, whether the
respondent
acted unlawfully and contrary to the condition.
It
concluded, on the strength of what was said
in
paragraph 19 above, that the appellant had based
its
cause of action on regulation A25(5) and that
the
conduct of the respondent, even if unlawful
or
unauthorised, did not fall within the
prohibition
therein set out but may fall foul of
another
regulation, A25(l). On this narrow ground
the
application failed. Although other defences
were
raised, they were not pursued in argument.
The
result of this appeal thus depends on whether
the
court a
quo
was correct in its conclusion on
this
aspect of the case.
Before turning to consider this question it is necessary to comment on
the merits, that is, the
6 respondent's assertion that it acted
lawfully and, more particularly, the allegation that "the conservatory is being
used for the
purposes contemplated on the approved plans."
In this regard the respondent states that:
"A 'conservatory' is, I am advised, merely an architectural concept and
is used to designate any multi-functional domed, or partly-domed
room
constructed of glass or other plastic see-through materials designed to allow
light to pass through as a decorative architectural
feature. Whereas a
conservatory in its conventional sense facilitates horticultural decoration, it
may also serve numerous purposes,
eg. an entertainment or restaurant area. In
this regard, I refer this Honourable Court to the affidavit of Dr Izac Johannes
van der
Wat, an expert on South African Historical Architecture, marked
'C'."
Dr van der Wat is a gynaecologist who has made a study of historical
architecture. In his affidavit he states:
"It has become apparent from my studies that the modern architectural
conservatory type structure
7
is a multi-functional domed, or partly domed room
constructed of glass or other plastic see-through materials designed to allow
light
to pass through it as a decorative architectural feature. The conservatory
concept in its conventional architectural application,
facilitates horticultural
decoration, whilst simultaneously serving a multi-purpose usage for either
private or public entertainment.
Consequently, an architectural plan
representing a conservatory will be understood by any person in the building and
architectural
industry as an architectural concept per se.
It is common cause that a conservatory constructed for purely
horticultural purposes will require underfloor drainage, underfloor
heating,
special heat regulating devices to control extreme variations in climatic
conditions, special water sprays and a very specific
horticultural layout that
utilises the benefits of these horticultural features .... Any person connected
with the building, architectural
or town planning industry would immediately
recognize upon sight of the plans herein before referred to that not one of
these special
features was incorporated. Such persons would immediately and
unequivocally conclude that the building was not designed for exclusive
horticultural usage and that as it was intended to adjoin an operating
restaurant and the plans included an enlargement of the kitchen,
storerooms,
additional kitchen equipment, tiled floors, and laundry facilities, that the
building was indeed intended to become an
extension of the existing
restaurant."
8
It may be strictly unnecessary to comment on this
opinion since, whatever the designation of the building structure and however
the
term "conservatory" is interpreted, the unambiguous and acknowledged
condition prohibits restaurant seating there. It is however
plain that Dr van
der Wat's evidence was principally concerned with contrasting, from an
architectural point of view, a
conservatory type structure
, which may
doubtless be used for a variety of purposes, with the use of the word
conservatory
in what respondent rightly refers to as its "conventional
sense", namely, an area or building used for the growth, propagation and
display
of plants and shrubs (whether or not it has the technical appurtenances, such as
special heating, which Dr van der Wat is
at pains to describe). That said, there
is simply no justification for Dr van der
9 Wat's assertion that
anyone
conversant with the facts of this case would conclude that the
"building was indeed intended to become an extension of the existing
restaurant." There are even less grounds for the respondent subscribing to any
such conclusion. On the contrary, in the "MOTIVATION
FOR THE ADDITION OF
CONSERVATORY TO STAND 426", which forms part of the application, it is said on
behalf of the respondent that:
"The proposed conservatory is intended to open up the existing west
facing portion of the restaurant onto a garden atmosphere by removing
the
existing roof over the extension to the original restaurant.
By erecting the conservatory over this area allows a more cohesive
bridging between the original restaurant and retail store.
The conservatory allows covered access, which does not presently exist,
to the existing toilets at the south of the complex, thus
increasing toilet
capacity to the restaurant.
The conservatory is not intended as an extended seating area during
normal restaurant operating
10
periods, therefore the existing parking facilities are
sufficient."
(The motivation does not candidly say, as
one might have expected if a proper disclosure was intended, that a conservatory
type structure
is planned which on completion will become an extension of the
restaurant.) On the approved building plan the "total restaurant seating
area",
44.35 metres square, is that of the existing restaurant and the "proposed
conservatory coverage" is separately stated as being
an area of 80.7 square
metres. On the diagram trees and shrubs are depicted covering about half of the
conservatory area but no tables
or chairs. Enlargements of the kitchen and other
facilities depicted on the plans serve as no indication that the capacity of the
restaurant was to be increased: they are as consistent with an intention to have
improved facilities of this kind for the existing
restaurant.
11
There can thus be no doubt that on
the facts
disclosed to the appellant
, taken in conjunction with the condition, the
conservatory was to be one in the usual and accepted sense of the word: an area
in
which plants and shrubs would be grown and displayed. On this basis the
approval was granted. It is, however, also clear that the
respondent never
intended using it for such purpose. In the answering affidavit Carnie Matisonn
states that "I was of the view that
the extension of the restaurant in the form
of a conservatory would be most appropriate" and at a later stage more
explicitly that
"the purpose for (sic) the conservatory was to extend the
restaurant facilities" and that "the only reason for proceeding with the
construction of the conservatory area was to extend the restaurant".
In the result the inescapable inference is that from the outset the true
intention was to
12 enlarge the restaurant and that the designation
of the proposed building as a "conservatory" with reference to its intended
purpose
was a subterfuge: the whole exercise has the odour of
duplicity.
Turning to the disputed issue, both regulations are included in the
national building regulations (R1081 published in the Government
Gazette of 10
June 1988) and relate to their enforcement. They read as follows:
A25(l)
"No person shall use any building or cause or permit any building to be
used for a purpose other than the purpose shown on the approved
plans of such
building, ... whether such plans were approved in terms of the Act or in terms
of any law in force at any time before
the date of commencement of the Act,
unless such building is suitable, having regard to the requirements of these
regulations, for such first-mentioned purpose
."
(I shall refer to the words italicized as the "proviso".)
13
A25(5)
"Any person who, having obtained approval in terms of the Act for the
erection of any building, deviates to any material degree from
any plan, drawing
or particulars approved by the local authority shall, except where such
deviation has been approved, be guilty
of an
offence."
The detailed reasoning on which the conclusion
of the court a
gup
was based appears from this passage in
the judgment:
"It will be seen that sub-regulation (1) is
the
one which deals specifically with the use of
a
building for a purpose other than that shown on
the
approved plans. Sub-regulation (5) deals
with deviations from a
plan, drawing or
particulars by a person who obtained
approval
for the erection of a building. That
deviation
relates, I think, to a deviation in
the
construction of a building, for the words
after
'deviation' follow on 'the approval for
erection
of a building' (my underlining). It seems to
me
to be concerned with the situation where the
physical
construction is not in accordance with
'any plan, drawing or
particular'. This
conclusion is, I think, reinforced by the
fact
that sub-regulation (1) is the
sub-regulation
dealing specifically with the use of a
building
inconsistent with what the plans show. The
14
draughtsman of the regulation could
hardly have intended to deal with unauthorised use as opposed to unauthorised
construction both
in sub-regulation (1) and in sub-regulation (5). Further
reinforcement for the conclusion is found by the fact that sub-regulation
(1)
does not absolutely prohibit a use other than authorised by the plans. It
prohibits such unauthorised use where the building
is suitable having regard to
the requirements of the regulations for the 'unauthorised use'. It is
inconceivable that the draughtsman
of the regulations could have intended that
unauthorised use may, under sub-regulation (1), be tolerated subject to certain
conditions,
but that unauthorised use is absolutely prohibited by sub-regulation
(5).
These sub-regulations have to be reconciled and harmonised. The way of doing
it is to construe them, as I have indicated, by interpreting
sub-regulation (5)
as dealing with the deviation in the physical construction of the building as
such. I think too that the wording
of sub-regulation (6), which amplifies the
provisions of sub-regulation (5), indicate that what those sub-regulations are
concerned
with is alteration in the physical design of a
building."
As appears from this passage, the critical
consideration on which the decision of the court a
quo
was based, was
that the offence and prohibition
15 in regulation A25(5) apply only
to a deviation in the "physical construction" of the building (the "restrictive
interpretation").
The use to which a building may be put is
manifestly a consideration - an important one - in deciding whether approval for
the erection
of a building ought to be granted. (Regulation Cl(l), for instance,
requires that "any room or space shall have dimensions that will
ensure that
such room or space is fit for the purpose for which it is intended". See too s
17(1) (1) of the Act and regulation A20(l)
read with Table 1 - OCCUPANCY OR
BUILDING CLASSIFICATION, particularly A1 thereof.) In this regard I agree with
the submission of
counsel for the appellant, Mr Osborn, that a restriction as to
the use may be positively or negatively formulated. Both formulations
feature in
this case. The condition "NO SEATING TO OCCUPY CONSERVATORY" is explicitly
imposed
16 and, as one knows, without seating no restaurant can
operate or exist. The designation CONSERVATORY on the plan means, for the
reasons stated, a conservatory in the accepted sense of the word and it follows
that a dome-like structure used as a restaurant can
never be validly or
realistically regarded as a conservatory. Thus the condition and the designation
(the "stipulations"), particularly
if considered jointly, restrict and define
the purpose for which the building may be erected and used: they prohibit its
use as a
restaurant and authorise its use as a conservatory. Thus the
respondent's use for the former purpose deviated from the avowed and
approved
purpose.
Turning to regulation A25(5), it refers to "any plan, drawing and
particulars". All details featuring on a plan are part of the plan:
for
instance, the written instruction on the plan
17 (Annexure 0 to the
replying affidavit) under the caption "ROOF PLAN" that the roof is to be
"CONSTRUCTED FROM EPOXY COATED ALUMINIUM
etc" is a constituent of the plan. The
stipulations noted on it are likewise part of the plan. This is confirmed
ex
visceribus actus
. Regulation A25(l) refers to "the purpose shown on the
approved plans" of the building. Furthermore, in my view, the stipulations
can
also be classified as "particulars" within the meaning of that word as used in
regulation A25(5) and in numerous other regulations.
Regulation A2(l) specifies
the plans
and particulars
to be furnished in an application and reads as
follows:
"Any person intending to erect any building, excluding temporary
building, shall submit to the local authority the following plans
and
particulars, together with the application:
(a)
A site
plan;
(b)
layout
drawings;
(c)
a drainage
installation
drawing;
18
(d) such plans and particulars as may be required by the local authority
in respect of -
(i) general structural arrangements, subject to any requirement contained
in these regulations with regard to design of the structural
system;
(ii) general arrangement of artificial ventilation;
(iii) a fire protection plan;
(iv) any certificate contemplated in these regulations; and
(v) any other
particulars."
The word
"particulars", particularly in (v) above, is thus used in addition to, and in
contra-distinct ion to, plans and specifications.
It plainly includes the
purpose
for which the building is to be used. In the regulations
preceding regulation A25(5) there is reference to "plans and particulars"
(Al(2)), "plans, particulars" and "drawings or specifications"
19
(Al(5)) and "plans and particulars" (A2). From this one infers that in the
regulations it was intended that the words "plans",
"drawings" and "particulars"
are each intended to bear a distinct and different meaning. Mr Subel, who
appeared for the respondent,
conceded that "particulars" when used elsewhere in
the regulations would include the designation of the building and implicitly its
intended use - or vice versa - but submitted that in regulation A25(5) this word
was to have a different and more restricted meaning.
I can find no good reason
for such a distinction.
The question, however, remains whether regulation A25(5) is to receive
the restrictive interpretation since, if so, the fact that
the stipulations are
part of the plan, or are particulars within the meaning of the regulation,
cannot avail the appellant.
20 I, with respect, find the reasons for
the restrictive interpretation in the judgment of the court a
quo
, and
which were relied upon by counsel for the respondent in argument before us,
unconvincing. I turn to discuss them
seriatim
, (i) The words "the
erection of any building" in the regulation, relate to the nature of the
approval sought and not to the prohibited
deviation. They therefore, as counsel
conceded, do not lend support to this interpretation. (ii) As to regulation
A25(6), there is
to my mind no reason why the empowerment "to stop the erection"
should be limited to constructional deviations. In the instant case,
had the
true facts come to the knowledge of the appellant during the course of erection
(viz that the stipulations were to be disregarded
and that the building was to
be a restaurant) there is no reason why the appellant should not have been
entitled to
21
stop the erection of that building. This would
have been the appropriate remedy to prevent an abuse of the approval given - and
perhaps
saved the respondent certain expenses. The proviso to this regulation
does in the nature of things refer to a constructional deviation,
but it does
not follow that a restrictive meaning is to be placed upon the substantive
portion of the regulation. (iii) Finally,
it was considered necessary to
interpret regulation A25(5) restrictively to reconcile and harmonise it with the
provisions of regulation
A25(l). This would appear to be the principal reason
relied upon by the court a
quo
. But in my view the two regulations deal
with two different situations. The latter applies to a building which has been
erected iji
accordance with
the approval given (that is
inter alia
"for a purpose ... shown on the approved plans") and which is
subsequently
used for a
22
purpose "other than the purpose shown on the
approved plans," In such a case the proviso may be invoked to establish that the
building
is suitable for such other unauthorised use. Regulation A25(5) on the
other hand is concerned with a contravention of (deviation
from) of an express
stipulation on which the grant of approval was based. They are thus compatible:
in
casu
the former regulation would have entitled the respondent to use a
conservatory
for some
other
suitable purpose, whilst the latter
regulation continues to preclude its use as a
restaurant
. It could never
have been contemplated that an owner intending from the outset to use his
building for purpose A, could apply for
the approval of a plan reflecting
purpose B and, having obtained approval, put the building to use for purpose A
and thereafter claim
that the unauthorised use is permitted on the strength of
the proviso. Thus, in
23
the case of constructional deviation, a person
could hardly build at variance with the specifications of an approved plan and
thereafter
claim that the building erected is suitable for some other purpose.
In short, the proviso does not override or eviscerate regulation
A25(5).
I am accordingly of the view that regulation A25(5) was correctly invoked
to restrain the respondent from what was plainly a contravention
of its
provisions.
In the circumstances it is unnecessary to consider whether the
self-imposed
restriction coupled with the
planned deception
is in
any event a ground for granting the relief without regard to whether or not the
correct regulation was cited in the founding
affidavit as the basis of the cause
of action.
It is accordingly ordered that: (i) The appeal is upheld with costs, such
costs
24 to include the costs of two
counsel.
(ii) The order of the court a
quo
is set
aside,
(iii) An order is granted in terms of prayers 1 and 2 of the notice of
motion.
(iv) The respondent is ordered to pay the costs of the application in the
court a
quo
, such costs to include the costs of two
counsel.
M E KUMLEBEN
JUDGE OF
APPEAL
BOTHA JA
SMALBERGER JA - Concur
MOHAMED
AJA
JUDGMENT
NICHOLAS AJA
.
2
NICHOLAS AJA:
Erf 426 Parkmore is situated at 136 Eleventh Avenue Parkmore in the
municipal area of Sandton. There is on the erf a restaurant and
a retail shop.
Between these buildings there was formerly an open space.
The owner of the erf (hereinafter called "the property") is Gourmet
Property Investments CC ("the owner"), which conducts the restaurant
under the
name of "Freddies Tavern".
At the beginning of 1989 the owner had in contemplation the erection in
the open area of a "conservatory". In March its architects
submitted to the
Sandton Town Council ("the Council") what was described as a "site development
plan" which showed the existing buildings
and the proposed conservatory. There
appeared on the plan a note which read, "No seating to occupy conservatory
area".
3
On 4 April 1989 the Management Committee of the Council resolved that
-
"The site development plan be approved,
subject to the conservatory area
having no seating accommodation.
"
(The
emphasis is mine.) On 26 June 1989 the owner submitted to the Council an
"application for approval of plans" for the conservatory
which was accompanied
by two drawings: one was a duplicate of the site development plan which had
already been approved; the other
was entitled "Roof Plan" and it too contained
the notation "No seating to occupy conservatory area". The Council approved the
application
on 21 September 1989.
The owner then proceeded to erect the conservatory in accordance with the
approved plan. After completion however the owner caused
to be placed
4
in the conservatory area seats for about 90 people. On 21 May 1990
Sandton's Director of Town Planning addressed a letter to the owner,
calling
upon it "to remove all seating in this area immediately, failing which legal
action will be instituted". The owner did not
comply with the demand and on 19
October 1990 a further letter was sent to the owner advising inter alia that the
Council intended
to institute legal action to remove the cause of
complaint.
On 1 March 1991 the Council instituted motion proceedings against the
owner in which it claimed
"1. That the Respondent be directed to remove all the seating
accommodation in the conservatory area of its premises on Erf 426 Parkmore,
136
- 11th Avenue, Parkmore, Sandton; alternatively that the Sheriff or his deputy
be authorised and directed to remove all the seating
accommodation in the
conservatory area of the Respondent's premises on Erf 426
5
Parkmore, 136 - 11th Avenue, Parkmore, Sandton.
2. That an interdict be granted prohibiting the Respondent from placing any
seating accommodation or allowing any seating accommodation
to be placed in the
conservatory area at its premises on Erf 426 Parkmore, 136 - 11th Avenue,
Parkmore, Sandton.
3. That the Respondent be ordered to pay the costs of this
application."
The applicant
relied on subregulation (5) of reg A25 of the regulations made in terms of sec
17(1) of the
National Building Regulations and Building Standards Act
,
103 of 1979 ("the Act") . The regulations were contained in R1081 which was
published in the Government Gazette of 10 June 1988.
A subsequent amendment is
not now relevant. Regulation A25 is in the following terms:
6
"A25. GENERAL ENFORCEMENT
(1)
No person shall
use any building or cause or permit any building to be used for a purpose other
than the purpose shown on the approved
plans of such building, or for a purpose
which causes a change in the class of occupancy as contemplated in these
regulations with
regard to fire protection or means of escape, whether such
plans were approved in terms of the Act or in terms of any law in force
at any
time before the date of commencement of the Act, unless such building is
suitable, having regard to the requirements of these
regulations, for such
first-mentioned
purpose.
(2)
Any person who
contravenes a provision of subregulation (1) shall be guilty of an offence, and
the local authority may serve a notice
on such person calling upon him forthwith
to cease with contravention.
(3) Where the
erection of any building
was completed before the date of
commencement
of the Act and such erection was
in
contravention of the provisions of any law in
force
before such date, the local authority
7
may take any action it may have been competent to take in terms of such
law.
(4)
Where any
building was being erected before the date of commencement of the Act in
contravention of the provisions of any law in force
before such date and the
erection of such building is continued on or after such date in contravention of
such provisions or of the
provisions of the Act, the person who continues so to
erect such building shall be guilty of an
offence.
(5)
Any person who,
having obtained approval in terms of the Act for the erection of any building,
deviates to any material degree from
any plan, drawing or particulars approved
by the local authority shall, except where such deviation has been approved, be
guilty
of an offence.
(6) The local
authority may serve a
notice on any person contemplated in
section
4(4) of the Act or subregulation (4) or
(5),
ordering such person forthwith to stop the
erection
of the building concerned or to
comply with such approval, as the
case may be:
8
Provided that where any deviation is found to be necessary during the
course of construction of such building, the local authority
may authorize the
work to continue but shall require that an amended plan, drawing or particulars
to cover such deviation is submitted
and approved before a certificate of
occupancy is issued.
(7) Whether or not a notice contemplated
in subregulation (6)
has been served the local
authority may serve a notice on the owner
of
any bulding contemplated in subregulation (4)
or (5),
ordering such owner to rectify or
demolish the building in question
by a date
specified in such
notice.
(8) ...
(9) ...
(10) ..."
In construing
the regulations, they must be viewed against the background of the relevant
provisions of the Act under which they were
made.
Section 4 of the Act
provides:
"4. (1) No person
shall without the prior approval in writing of the local
9
authority in question, erect any building in respect of which plans and
specifications are to be drawn and submitted in terms of this
Act.
(2)
Any application
for approval referred to in subsection (1) shall be in writing on a form made
available for that purpose by the local
authority in
question.
(3)
Any application
referred to in subsection (2) shall
-
(a)
(b) be accompanied by such plans, specifications, documents and
information as may be required by or under this Act, and by such particulars
as
may be required by the local authority in question for the carrying out of the
objects and purposes of this Act.
(4) Any person erecting any building in
contravention of the
provisions of
subsection (1) shall be guilty of
an
offence and liable on conviction to a
fine not
exceeding R100 for each day on
10
which he was engaged in so erecting such
building."
Sec 6(1)(a)
provides for the making of recommendations by a building control officer
regarding any plans, specifications, documents
and information submitted to a
local authority in accordance with sec 4(3). Sec 7 deals with approval by local
authorities in respect
of the erection of buldings. It provides -
"7. (1) If a local authority, having considered a recommendation referred
to in section 6(1)(a)-
(a) is satisfied that the
application in
question
complies with the requirements
of this Act and
any other
applicable law, it shall grant
its approval in
respect
thereof;
(b) (i)is not so satisfied; or
(ii)is satisfied that
the
building to which the
11
application in question
relates-
(aa) is to be
erected in
such manner or will be of
such nature or
appearance
that-
(aaa) the area in which it
is to be erected
will
probably or in fact be
disfigured thereby;
(bbb) it will probably or
in fact be unsightly
or
objectionable;
(ccc) it will probably or
in fact derogate from
the
value of adjoining or
neighbouring properties;
such local authority shall refuse to grant its approval in respect
thereof and give written reasons for such refusal;
(2)
...
(3)
...
(4)
...
(5)
Any
application in respect of which a local authority refused in
accordance
12
with subsection (l)(b) to grant its approval, may, ... subject to the
provisions of subsection (1) be submitted anew to the local
authority within a
period not exceeding one year from the date of such refusal
-
(a) (i) if the plans,
specifi= cations and other documents have been amended in respect of any aspect
thereof which gave cause for
the refusal; and (ii) if the plans, specifi=
cations and other documents in their amended form do not substantially differ
from the
plans, specifications or other documents which were originally
submitted; ..."
The owner resisted the application on a number of grounds. Most of them
were dismissed by the Court a
quo
, so that ultimately only one question
remained for consideration, namely, whether the owner, by installing seating in
the conservatory
area,
13
"deviated to a material degree from any plan, drawing or particular
approved by the local authority", within the meaning of sub-regulation
(5).
ELOFF JP considered that the owner's conduct was not hit by the
sub-regulation, and dismissed the application with costs. The Council
now
appeals with leave granted by the Court a
quo
.
The learned Judge-President considered that on a proper interpretation
sub-regulation (5) dealt with deviations "in the physical construction
of the
building as such".
One of his reasons was that in the regulation the word "deviates" follows
on the phrase "having obtained approval in terms of the
Act for the
erection
of any building ". I do not think with respect that this circumstance
provides support for the learned Judge President's interpretation.
The phrase
simply follows the wording of sec 4(1) of the Act which
14
provides that "No person shall without the prior
approval in
writing of the local authority in question
erect any buildings ...." He thought too that "the
wording of sub-regulation (6), which amplifies the
wording of sub-regulation (5), indicates that what those
sub-regulations are concerned with is alteration in the
physical design of the building". Again I respectfully
disagree. Sub-regulation (6) merely empowers the local
authority, where that is appropriate, to make an order
as set out therein. It does not throw any light on the
meaning of sub-regulation (5).
ELOFF JP said in his judgment:
"It will be seen that sub-regulation (1) is the one which deals
specifically with the use of a building for a purpose other than that
shown on
the approved plans. Sub-regulation (5) deals with deviations from a plan,
drawing or particulars by a person who obtained
approval for the erection of a
building. That deviation relates, I think, to a deviation in the construction of
a building, for the
words
15
after 'deviation' follow on 'the approval for
erection
of a building"
(my underlining). It seems to me to be concerned with the situation where the
physical construction is not in accordance
with 'any plan, drawing or
particular'. This conclusion is, I think, reinforced by the fact that
sub-regulation (1) is the sub-regulation
dealing specifically with the use of a
building inconsistent with what the plans show. The draughtsman of the
regulation could hardly
have intended to deal with unauthorised use as opposed
to unauthorised construction both in sub-regulation (1) and in sub-regulation
(5)."
With respect I do not think that
there is any call for a reconciliation of sub-regulation (1) with sub-regulation
(5)- Each has its
own subject matter: sub-regulation (1) deals with use of a
building for a purpose other than the purpose shown on the approved plans;
sub-regulation (5) deals with deviations from "any plan, drawing or
particulars". In the present case the purpose for which the conservatory
was to
be
16
used was not shown on the plan - although the representation of the
proposed structure was labelled "conservatory", I do not think
that the word was
there used with the relevant meaning given in the Oxford English Dictionary, 2nd
ed. s.v.
Conservatory
5,
viz.
"A greenhouse for tender flowers or plants; now, usually, an ornamental
house into which plants in bloom are brought from the hot-house
or
green-house."
On the plan the word was used
to connote a structure of the nature of a conservatory which would provide an
amenity for the restaurant
which it would adjoin. It was described in the
motivation which accompanied the application for approval as follows:
"The proposed conservatory is intended to open up the existing west
facing portion of the restaurant onto a garden atmosphere by removing
the
existing roof over the extension to the original restaurant.
17
By erecting the conservatory over this area allows a more cohesive bridging
between the original restaurant and retail store. The
conservatory allows
covered access, which does not presently exist, to the existing toilets at the
south of the complex, thus increasing
toilet capacity to the restaurant. The
conservatory is not intended as an extended seating area during normal
restaurant operating
periods, therefore the existing parking facilities are
sufficient."
In the context the word
"conservatory" was descriptive of the structure; it was not definitive of the
use to which it was to be put.
Building plans and drawings ordinarily set out details of construction
which are required for the erection of the proposed building.
In the case of
large buildings they are accompanied by a specification which contains
particulars. In the case of smaller buildings,
however, such particulars may be
noted on the
18
drawings themselves, as in this case, where it is stated on the plan
"Conservatory to be constructed from epoxy coated aluminium or
steel and high
(impact laminated glass". Similarly with the notation "No seating to occupy
conservatory area".
Such particulars do not necessarily relate
only
to constructional details. That they may concern
other matters
appears from sec 7(1)(b) of the Act, which
provides that if a local
authority is (i) not satisfied
that the application in question
complies with the
requirements of the Act or (ii) is satisfied that
the
building to which the application in question
relates,
is to be erected in such manner or will be of
such
nature
or
appearance
that the consequences set
out in
sub-paras (aaa), (bbb) or (ccc) will or may follow,
the
local authority shall refuse to grant its approval
in
respect thereof and give written reasons for
such
refusal. From this it is manifest that the
local
19
authority may have regard not only to the structural
details
of the building but also to its nature or
appearance, including the
effect of the building on the
value of adjoining or neighbouring
properties (para
(ccc)). Sec 7(5) provides that where approval of an
application has been refused in terms of sec 7(1)(b),
the application may be submitted anew to the local
authority
"(a) (i) if the plans, specifications and other documents have been amended
in respect of any aspect thereof which gave cause for
the
refusal."
It is clear from the terms of the
Management Committee's approval that but for the notation on the plan "No
seating to occupy conservatory
area", the application to construct the
conservatory would have been refused. The probability is strong that the
notation on the
plan was made in order to avoid a
20
refusal of the application on the ground that the buiding would "probably
or in fact derogate from the value of adjoining or neighbouring
properties" by
reason of on-street parking congestion. In the affidavit by Mr Matisonn filed on
behalf of the owner, it was said:
"As I understand the reason for the imposition of the restriction on seating
in the conservatory area, it was to limit the number
of vehicles which would be
drawn to the area of the building (brought by patrons of the restaurant) and
thereby alleviating or, at
least, avoiding an exacerbation of parking problems
in the said area."
In a letter by the
Council's Director of Town Planning dated 19 October 1990 reference was made to
discussions with Matisonn:
"It was discussed that a reason for the Council not allowing seating in
the
21
conservatory area of the restaurant is due to the critical parking problem
in Eleventh Street Parkmore."
In my opinion
therefore the action of the owner in placing seats in the conservatory area,
deviated to a material degree from the
"plan, drawing or particulars approved by
the local authority".
I would uphold the appeal with costs including the costs of two counsel
and set aside the order of the Court a
quo
, substituting an order in
terms of prayers (1), (2) and (3) of the notice of motion, including the costs
of two counsel.
H C NICHOLAS AJA.