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[2013] ZACC 39
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Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others (CCT 41/13) [2013] ZACC 39; 2014 (1) SA 521 (CC); 2014 (2) BCLR 182 (CC) (20 November 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 41/13
[2013] ZACC 39
In the matter between:
MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND DEVELOPMENT
PLANNING OF THE WESTERN CAPE
.......................................................
Applicant
and
LAGOONBAY LIFESTYLE ESTATE (PTY) LTD
...........................
First
Respondent
GEORGE MUNICIPALITY
............................................................
Second
Respondent
CAPE WINDLASS ENVIRONMENTAL
ACTION GROUP AND 24 OTHERS
.....................................
Third
to Twenty-seventh
Respondents
Heard on : 20 August 2013
Decided on : 20 November 2013
JUDGMENT
MHLANTLA AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Madlanga J, Nkabinde J, Skweyiya J, Van der Westhuizen J and
Zondo J concurring):
Introduction
This
case concerns a challenge to the validity of the applicant’s
decisions to refuse applications by the first respondent
for the
rezoning and subdivision of certain properties in the Southern Cape.
The rezoning and subdivision approvals were sought
for purposes of a
large-scale property development. The matter comes before us by way
of an application for leave to appeal against
a decision of the
Supreme Court of Appeal.
Parties
The
applicant is the Minister of Local Government, Environmental Affairs
and Development Planning in the Western Cape Provincial
Government
(Provincial Minister). The first respondent is Lagoonbay Lifestyle
Estate (Pty) Ltd (Lagoonbay), a private company
promoting the
proposed property development in relation to which the approvals are
sought. The second respondent is the George
Municipality
(Municipality), a local government authority located in the Western
Cape. Although the proposed development will
abut the boundary of
the Mossel Bay Local Authority, the properties sought to be
developed are located within the Municipality’s
area of
jurisdiction. The Municipality has played no significant role in
these proceedings. The third respondent is the Cape
Windlass
Environmental Action Group (Cape Windlass), a local environmental
organisation formed by concerned residents to protect
the
environmental integrity of the Garden Route. Cape Windlass was
involved in the proceedings before the Western Cape High Court,
Cape
Town (High Court) and the Supreme Court of Appeal. The fourth to
twenty-seventh respondents did not participate in the proceedings
before this Court.
Background
Lagoonbay
is the promoter of a large development incorporating some
655 hectares of land in the Southern Cape. The development
is
expected to include two golf courses, a hotel, a private park and a
gated residential community. The developers also intend
to relocate
farm workers who currently live and work on the land to a nearby
village.
In order to undertake the development, Lagoonbay must secure various
approvals. These include—
(a) the amendment of the applicable regional structure plan;
1
(b) an environmental authorisation under the National Environmental
Management Act;
2
(c) authorisations for certain necessary changes in land use; and
(d) approval of the relevant building plans under the National
Building Regulations and Building Standards Act.
3
This
matter concerns the first and the third of these approvals. The
George and Environs Urban Structure Plan (Structure Plan) initially
designated the land sought to be developed as “Agriculture/Forestry”.
In order to proceed with the realisation of its
development vision,
Lagoonbay was therefore required to apply for an amendment to the
Structure Plan that would change the designation
of the land to
“Township Development”. The land-use approvals sought
relate to the rezoning and subdivision of the
affected properties and
fall to be determined in terms of the Cape Land Use Planning
Ordinance.
4
Lagoonbay submitted its application for the amendment of the
Structure Plan to the Municipality and the Western Cape Department
of Environmental Affairs and Development Planning in terms of
section 4(7) of LUPO
5
and section 18(1) of the PPA.
6
The Municipality recommended that the application be approved. On 17
July 2007 a previous Provincial Minister, Ms Essop (Minister
Essop),
approved the application in terms of section 4(7) of LUPO, subject
to certain conditions. These included condition 1.3,
which provides
that “the associated future zoning application in respect of
the land concerned shall be subject to the
approval by the
Provincial Government as the location and impact of the proposed
development constitutes ‘Regional and
Provincial Planning’.”
On 4 August 2009 Lagoonbay submitted applications for rezoning and
subdivision in respect of the land sought to be developed
to the
Municipality.
7
The applications were approved on 14 July 2010. The Municipality
then referred those applications to the Provincial Minister
“for
the necessary further attention.” On 28 April 2011 the
Provincial Minister refused the applications for
subdivision and
rezoning in terms of sections 16
8
and 25
9
of LUPO, pursuant to his view that he was “the competent
authority for the administration of [LUPO]”.
10
Aggrieved
by the Provincial Minister’s decisions, Lagoonbay launched an
application in the High Court for an order setting
them aside.
High Court
Lagoonbay’s primary challenge was based on the contention
that, in the light of the constitutional division of power between
provinces and municipalities, the Provincial Minister did not have
the functional competence to decide rezoning and subdivision
applications.
11
In the alternative, Lagoonbay argued that, when refusing the
applications, the Provincial Minister acted in contravention of
the
Promotion of Administrative Justice Act
12
in that his refusals were: unreasonable; biased; in bad faith;
arbitrary and capricious; and based on irrelevant considerations,
an
ulterior motive or an error of law. Lagoonbay sought a declarator to
the effect that the Municipality was the final decision-maker
in
relation to rezoning and subdivision decisions and that the
approvals granted by the Municipality on 14 July 2010 constituted
the final land-use approvals required.
In
answer the Provincial Minister contended that: (a) he was empowered
by condition 1.3 to refuse Lagoonbay’s applications;
(b) he
was empowered by sections 16 and 25 of LUPO to refuse those
applications; and (c) the constitutional scheme of powers
allows for
provincial involvement in certain rezoning and subdivision
decisions. Regarding the PAJA challenge, the Provincial
Minister
argued that his refusals should not be set aside as they were
rational, reasonable and supported by relevant facts.
Cape
Windlass joined forces with the Provincial Minister and raised
concerns relating to the environmental authorisation granted
to
Lagoonbay by the provincial authorities,
13
as well as certain doubts regarding the socio-economic benefits that
Lagoonbay had indicated would flow from the proposed development.
The High Court (in a judgment by Griesel J)
14
dismissed the application with costs. It held that section 42(1)
of LUPO specifically authorised Minister Essop to impose
such
conditions as she deemed fit – including condition 1.3 –
when authorising the amendment of the Structure Plan.
15
The
Court accepted that zoning is generally a municipal competence.
However, it concluded that there is a category of cases where
land-use planning decisions exceed the bounds of municipal planning,
and therefore require provincial oversight, because of the
scope of
the interests they affect.
16
It further held that the applications brought by Lagoonbay fall into
that category and that the impugned rezoning and subdivision
decisions therefore fell within the Province’s competence for
planning. On this additional basis it was permissible and
appropriate for Minister Essop to have reserved the final
rezoning and subdivision approvals for her office.
17
The
High Court concluded that sections 16 and 25 of LUPO, insofar as
they grant authority to the Provincial Minister to approve
applications for rezoning and subdivision, are not inconsistent with
the Constitution. The Provincial Minister was thus entitled
to rely
on those provisions, in addition to the condition imposed by
Minister Essop, as the source of his power to decline the
rezoning
and subdivision applications.
18
Finally,
the High Court rejected the various challenges to the Provincial
Minister’s decision brought in terms of PAJA.
19
The Court thus upheld the validity of the Provincial Minister’s
refusals and dismissed the application with costs.
Supreme Court of Appeal
The Supreme Court of Appeal (per Ponnan JA)
20
upheld Lagoonbay’s appeal with costs. The Court did not deal
with the Provincial Minister’s powers under LUPO, but
relied
on the provisions of the Constitution regarding the division of
functions and competences between spheres of government,
21
as well as the interpretation of those provisions by the Supreme
Court of Appeal in
Gauteng
Development Tribunal (SCA)
.
22
Ponnan JA held that under the Constitution rezoning and subdivision
applications fall to be dealt with by municipalities and
therefore
that the Provincial Minister lacked the power to refuse Lagoonbay’s
applications.
23
He accordingly declared the Provincial Minister’s rezoning and
subdivision decisions unlawful and set them aside.
Regarding the amendment of the Structure Plan in 2007, the Court
held that the approval by Minister Essop was ineffective and
the
condition she imposed incapable of fulfilment.
24
It therefore remitted the application for amendment to the
Provincial Minister for reconsideration.
25
Having found against the Provincial Minister on the issue of
functional competences, it was unnecessary for the Supreme Court
of
Appeal to consider the PAJA challenges.
26
Submissions in this Court
Where
necessary I shall set out particular arguments advanced by the
parties in greater detail. For now it suffices to give a
broad
overview.
In
support of his application to have the Supreme Court of Appeal’s
order overturned, the Provincial Minister advances three
arguments.
First, Lagoonbay has not challenged condition 1.3 and sought to have
it set aside. The imposition of condition 1.3
was an administrative
act that continues to have legal consequences, including the
consequence of empowering the Province to
decide rezoning and
subdivision applications. Accordingly, the Provincial Minister was
lawfully empowered to refuse Lagoonbay’s
applications in April
2011. Second, sections 16 and 25 of LUPO empower provincial
functionaries to make rezoning and subdivision
decisions. Because
there has been no attack on the validity of LUPO, Lagoonbay is not
entitled to attack the Provincial Minister’s
exercise of his
powers under that Ordinance. Third, even if the first two arguments
do not succeed, the rezoning and subdivision
applications sought by
Lagoonbay fall within the Province’s constitutional competence
to determine provincial planning
issues.
27
In addition, the Provincial Minister maintains that his decisions
are substantively defensible and therefore not susceptible
to being
set aside under PAJA.
In response to the Provincial Minister’s first argument,
Lagoonbay contends that Minister Essop could not have performed
any
act that would allow her to usurp functions that the Constitution
reserves for municipalities, which functions include responsibility
for deciding rezoning and subdivision applications. In response to
the Provincial Minister’s contentions regarding LUPO,
Lagoonbay argues that the relevant provisions of LUPO have been
impliedly amended or repealed by the Constitution, and in any
event
do not authorise provincial authorities to decide rezoning and
subdivision applications. With regard to constitutional
competences,
Lagoonbay submits that the term “provincial planning” in
the Fifth Schedule to the Constitution does
not include
responsibility for rezoning and subdivision decisions. In this
regard much reliance is placed on
Gauteng Development Tribunal
(SCA)
and this Court’s subsequent decision in that
matter.
28
The impugned decisions are inconsistent with the Constitution and,
so the argument goes, the Supreme Court of Appeal was correct
to set
them aside. Finally, Lagoonbay maintains its alternative challenge
(under PAJA) to the substance of the Provincial Minister’s
decisions, albeit on narrower grounds than those pursued in the High
Court.
Cape Windlass makes two submissions. First, it seeks an order
granting it a right of appeal in terms of section 44 of LUPO
29
in the event of the Provincial Minister’s refusals being
overturned. However, during oral argument, counsel for Cape Windlass
rightly conceded that such an order was not necessary for the
entitlement in section 44 to be exercised. I need say nothing
more on this issue. Second, Cape Windlass requests this Court to
overturn the costs order made against it by the Supreme Court
of
Appeal, arguing that, as a member of civil society that has acted in
good faith in this matter, it ought not to be mulcted
in costs.
Issues
Determination
of this case requires us to consider—
(a) whether leave to appeal should be granted;
(b) if so, whether sections 16 and 25 of LUPO were impliedly amended
or repealed such that they no longer authorise provincial
authorities
to make rezoning and subdivision decisions;
(c) if not, whether this Court may consider the constitutionality of
LUPO in these proceedings;
(d) if not, whether, in the light of the various delegations of
planning powers that have occurred since LUPO’s commencement,
the Provincial Minister was competent under that Ordinance to decide
Lagoonbay’s rezoning and subdivision applications;
(e) if so, whether the Provincial Minister’s refusals fall to
be reviewed and set aside under PAJA; and
(f) an appropriate costs order.
Leave to appeal
This
matter raises constitutional issues regarding the division of powers
and competences between different spheres of government,
as well as
the proper approach to challenging public power that has been
exercised under a particular statutory framework. Furthermore,
the
application relates to matters of great practical import and, as is
evident from what follows, the appeal bears prospects
of success. It
is therefore in the interests of justice that leave to appeal be
granted.
Implied repeal of select portions of LUPO
Placing heavy reliance on the decision in
CDA
Boerdery
,
30
Lagoonbay argues
that sections 16 and 25
of LUPO
have been impliedly amended or repealed
by the Constitution,
31
section 8 of the
Local Government:
Municipal
Systems Act
32
and section 83(1) of the
Local Government:
Municipal
Structures Act,
33
such that they no longer empower provincial
authorities to decide rezoning and subdivision applications.
In
CDA Boerdery,
the
Supreme Court of Appeal was faced with a challenge to a
municipality’s power to levy rates on immovable property
within
its area of jurisdiction. The Cape Municipal Ordinance
34
provided that the Premier of the Western Cape had
to approve the imposition of certain rates, including the rates
under challenge.
The respondent municipality contended that this
requirement should be treated as having been impliedly repealed
because it was
repugnant to section 229 of the Constitution
read with section 10G(6), (6A) and (7) of the Local Government
Transition Act.
35
It is not necessary to replicate those
legislative provisions here. Suffice it to say that section 229 of
the Constitution grants
municipalities an original power to levy
rates on properties, while the Transition Act set out in detail the
mechanisms and processes
through which municipalities were required
to value properties and levy rates. None of these constitutional or
statutory provisions
envisaged any provincial role in the levying of
such rates. The Supreme Court of Appeal found in favour of the
respondent municipality.
On
Lagoonbay’s construction,
CDA
Boerdery
is authority for the contention that sections 16
and 25 of LUPO were impliedly amended or repealed because they are
inconsistent
with the municipal and provincial competences
delineated in the Constitution, the Systems Act and the Structures
Act,
36
at least to the extent that they purport to empower provinces to
decide rezoning and subdivision applications. This is because
CDA
Boerdery
decided that where an old-order ordinance is clearly
repugnant to the present constitutional scheme, it could be said
that the
ordinance has been impliedly repealed.
Lagoonbay’s
reliance on
CDA Boerdery
is misplaced. As a matter of general
principle, old-order legislation remains in force until the
necessary steps are taken to
have it set aside.
37
No such steps have been taken with regard to sections 16 and 25 of
LUPO, whether in the form of legislative revision or in the
form of
a court granting just and equitable relief pursuant to a direct
challenge to those provisions.
Furthermore,
the Schedules to the Constitution are framed in broad terms and the
cited sections of the Structures Act and the
Systems Act simply echo
or refer to the Constitution. These provisions speak only of
“provincial planning”, “municipal
planning”
and “regional planning and development”. Even if we
accept that legislative provisions may be impliedly
amended or
repealed, there is no obvious and direct contradiction between those
broad phrases and the language employed in LUPO
such that the
provisions of the latter can or should be taken to have been amended
or repealed by implication. This is in stark
contrast to
CDA
Boerdery
, where the unequivocal provisions of the Constitution
and the detailed prescripts of the Transition Act were inescapably
incompatible
with the Cape Municipal Ordinance.
In
addition, the statutory provision requiring the Premier’s
assent in
CDA
Boerdery
was an isolated and
excisable requirement. In this case, the provisions of LUPO
(including sections 16 and 25) depend on an intricate
scheme that
delegates rezoning and subdivision to municipalities through
provincial oversight responsibilities. There is no offending
provision which may readily and easily be removed in order to
address the unconstitutionality alleged by Lagoonbay.
And
as counsel for the Provincial Minister stated during oral argument,
the general terms contained in the Constitution, the Systems
Act and
the Structures Act cannot be said to have impliedly repealed LUPO
when they do not offer an equivalent to the framework
currently
provided by that Ordinance. W
hatever its flaws, LUPO remains
legislation that is of fundamental practical importance – it
is the critical statute governing
planning processes in various
provinces. As such, any mode of addressing its unconstitutionality
should be undertaken either
by the appropriate legislative
authority, or by a court exercising its discretionary remedial
powers under section 172(1)
of the Constitution.
The implied repeal argument must therefore fail. If sections 16 and
25 of LUPO were not impliedly amended or repealed, may this
Court
nevertheless resolve this dispute with direct reference to the
prescripts of the Constitution regarding municipal and provincial
functional competences? I now proceed to answer this question.
What was pleaded regarding LUPO’s validity?
Absent
an appropriate justification for a more expansive approach, in these
proceedings we are limited to considering the grounds
of review
contained in the original application challenging the rezoning and
subdivision refusals. Fundamental to this case,
therefore, is a
proper understanding of what has been pleaded by Lagoonbay.
In its founding affidavit in the High Court, Lagoonbay acknowledged
the centrality of sections 16 and 25 of LUPO to this matter.
In
express terms the deponent averred that “[t]he empowering
provisions authorising the designated functionary to approve
the
rezoning and subdivision are, accordingly, firstly section 16 and,
secondly, section 25 of LUPO.” Notwithstanding
this
acknowledgement, and the fact that sections 16 and 25, at least on
their face, empower the Provincial Minister to make rezoning
and
subdivision decisions, Lagoonbay did not seek to impugn the validity
of those statutory provisions. The founding papers contain
no more
than the throwaway line that “any purported reliance by the
[Provincial Minister] on any purported legislative
empowering
provision would . . . fall foul of the constitutional scheme and
would be constitutionally invalid.”
In
his answering affidavit the Provincial Minister asserted that
sections 16 and 25 of LUPO were the source of his powers to make
the
impugned rezoning and subdivision decisions. He accordingly argued
that Lagoonbay’s attack had to fail as the validity
of those
sections had not been challenged.
In
reply Lagoonbay sought to counter the Provincial Minister’s
response by means of—
(a) the “either-or” argument: LUPO provides that either
the Province or the Municipality may exercise the listed functions,
not both, and it was the Municipality that was the competent
authority to decide the rezoning and subdivision applications;
38
(b) the contentions regarding the implied amendment or repeal of
sections 16 and 25, which I have set out and dealt with above;
39
and
(c) an invalidity attack: as set out in the founding affidavit,
40
any authorisation for the provincial exercise of rezoning and
subdivision functions contained in the Ordinance is constitutionally
invalid.
Regarding its invalidity argument, Lagoonbay indicated that the
notice of motion would be amended to include an application for
the
relevant provisions of LUPO to be declared constitutionally invalid.
Importantly, this proposed amendment never took place,
and there was
never a direct challenge to the constitutional validity of LUPO
before the High Court. Of similar importance, Lagoonbay
never sought
to amend its pleadings to introduce such a challenge on appeal,
whether before the Supreme Court of Appeal or before
this Court.
Effect of Lagoonbay’s failure to challenge the
constitutionality of LUPO
This
Court enjoys a wide jurisdiction and, when deciding a constitutional
matter within its power, is obliged to “declare
that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency”.
41
That being said, this Court has time and again reiterated the
importance of challenging the constitutional validity of legislation
in a manner that is accurate, timeous and comprehensive. Unless
considerations of justice and fairness require otherwise, parties
must be held to their pleadings. It is not for this Court to trawl
through the record and submissions in the hope of finding
a means of
assisting a particular litigant.
As Skweyiya J put it in
Phillips
,
42
appellate courts are hesitant to pronounce on the constitutional
validity of a statute where the issue has not been properly
pleaded
and ventilated in lower courts. Departure from this general rule
occurs only in exceptional cases:
“
It is
not ordinarily permissible to attack statutes collaterally. The
constitutional challenge should be explicit, with due notice
to all
affected. This requirement ensures that the correct order is made;
that all interested parties have an opportunity to make
representations; that the relevant evidence can, if necessary, be led
and that the requirements of the separation of powers are
respected.
This is not to say that
circumstances could never exist where the interests of justice
required that a constitutional matter be
raised for the first time on
appeal before this Court. They would, however, be rare and the
circumstances would have to be exceptional.”
43
(Footnotes omitted.)
In
Prince I
44
this Court was required to decide certain evidentiary issues. During
the course of argument, a point regarding the composition
of the
court a quo arose in that it appeared that the Supreme Court of
Appeal had considered the matter without the quorum prescribed
by
section 12(1)(b) of the Supreme Court Act.
45
Section 12(1)(b), in turn, appeared to be inconsistent with the
interim Constitution. Notwithstanding the absence of a formal
challenge to the offending provision, this Court nevertheless
evaluated section 12(1)(b) and declared it constitutionally invalid.
Ngcobo J noted that—
“
[t]he
Minister was not represented in this Court, but abided its decision.
As the validity of section 12(1)(b) arose in the course
of the
hearing and the Minister was not aware that this Court would consider
the validity of the section, he was invited to make
representations
on the validity of the section. The Minister declined to do so.”
46
However,
he explained that—
“
[p]arties
who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought
to be challenged
at the time they institute legal proceedings. In addition, a party
must place before the Court information relevant
to the determination
of the constitutionality of the impugned provisions. . . . I would
emphasise that all this information must
be placed before the Court
of first instance. The placing of the relevant information is
necessary to warn the other party of the
case it will have to meet,
so as to allow it the opportunity to present factual material and
legal argument to meet that case.
It is not sufficient for a party to
raise the constitutionality of a statute only in the heads of
argument, without laying a proper
foundation for such a challenge in
the papers or the pleadings. The other party must be left in no doubt
as to the nature of the
case it has to meet and the relief that is
sought. Nor can parties hope to supplement and make their case on
appeal.”
47
(Footnote omitted.)
It is sufficient for present purposes to conclude with a
consideration of this Court’s decision in
DPP v Minister of
Justice
.
48
The High Court raised the constitutionality of certain provisions of
the Criminal Procedure Act
49
of its own accord during criminal proceedings. On appeal this Court
laid down the following principles:
(a) A court may, of its own accord, raise the unconstitutionality of
a law that it is called upon to enforce.
50
This ensures the supremacy of the Constitution and further ensures
that we have a coherent system of law based on the Constitution
as a
foundational document.
51
(b) In an instance where a point of law is
apparent on the papers, but the common approach of the parties
proceeds on a wrong perception
of what the law actually is, then a
court should, of its own accord, raise the point of law and require
the relevant parties to
deal therewith.
52
(c) “
Courts should observe the limits of
their powers. They should not constitute themselves as the overseers
of laws made by the Legislature.
Ordinarily, therefore, they should
raise and consider the constitutionality of laws that are properly
engaged before them and where
this is necessary for the proper
resolution of the dispute before them.”
53
(d) A court may, of its own accord, decide a
constitutional issue if “it is necessary for the purpose of
disposing of the
matter before it”.
54
(e) A court may also, of its own accord, decide a
constitutional issue if it is in the interests of justice to do so.
Determining
the interests of justice entails, inter alia,
considerations of public interest and whether the matter has already
been fully and
fairly aired.
55
In the light of this jurisprudence and for the reasons that follow,
I am of the view that we cannot consider the constitutionality
of
LUPO in these proceedings. First, as a point of distinction from
DPP
v Minister of Justice
, this Court does not have a declaration of
constitutional invalidity before it – there is no such order
with which we are
presently required to engage. Indeed, the Supreme
Court of Appeal did not consider the constitutional validity of
sections 16
and 25 of LUPO at all. If we were to evaluate LUPO’s
validity in these proceedings, we would be forced to do so without
the valuable insights and analysis of that Court – a situation
that should be avoided where possible.
56
Second,
Lagoonbay can never have been under any doubt regarding the
statutory source from which the Provincial Minister purported
to
draw his powers to make the impugned decisions: the refusal letter
explicitly cites sections 16 and 25 of LUPO. And sections
16 and 25,
on their face, quite clearly contemplate provincial responsibility
for deciding rezoning and subdivision applications.
The division of
powers and competences between the Municipality and the Provincial
Minister lies at the heart of this case. The
Provincial Minister’s
powers under LUPO, and the constitutionality of that Ordinance’s
arrangement of functional
competences, are not a set of ancillary
concerns that could reasonably have been overlooked when Lagoonbay
sought to challenge
the impugned refusals. This notwithstanding,
Lagoonbay elected to proceed with the present dispute without
challenging the validity
of LUPO. The present matter is therefore
distinguishable from
Prince I
, where the Court
mero motu
considered the validity of a statute on a preliminary point, in
order to deal with the main dispute between the parties.
Third,
as pointed out during oral argument, LUPO is premised on the
understanding that it is competent for provinces to exercise
rezoning and subdivision functions – this understanding runs
throughout the Ordinance, beyond the provisions we would consider
for purposes of this case. And this is important because LUPO
regulates many interconnected aspects of land-use planning apart
from rezoning and subdivision applications, including structure
plans, town-planning schemes, zoning maps and departure
applications.
However, we have received no submissions on the
implications that a declaration of constitutional invalidity
regarding sections
16 and 25 would have for these other aspects.
For
example, under the Ordinance a structure plan is subject to the
approval of provincial authorities
57
and a structure plan may deal with rezoning.
58
If we were to find that section 16 of LUPO is invalid because it
unconstitutionally assigns the municipal function of rezoning
to
provinces, we would nevertheless, without submissions from the
affected parties, be hard-pressed to determine the implications
for
structure plan approvals flowing from such a finding. In other
words, if we are to consider the constitutionality of LUPO,
it is
insufficient for us to have been presented only with argument
regarding the content of provincial and municipal planning
competences. In addition, we would require submissions (which we do
not have) on how those competences affect the specific provisions
of
LUPO and how we are to give effect to those competences without
creating a practical catastrophe in the planning processes
of the
North West, Western Cape and Eastern Cape provinces. It would
therefore be inappropriate for this Court to consider the
constitutionality of the provisions without, at the very least, a
full, proper and direct challenge before it. Any
mero motu
declaration regarding sections 16 and 25 could well have
implications extending far beyond those provisions, and we should
certainly hesitate to make any declaration without a proper
understanding of those implications.
59
It
would have been a prudent and reasonable course of action for
Lagoonbay to seek an amendment of its notice of motion in order
to
place the issue of LUPO’s constitutionality squarely before
the High Court, the Supreme Court of Appeal and this Court.
This is
particularly the case given that the Provincial Minister has
repeatedly raised LUPO as a central component of his defence.
And
yet, Lagoonbay failed to seek an appropriate amendment in any of the
courts that have considered this matter. Indeed, in
this Court it
sought to amend its notice of motion to add an additional challenge,
but the proposed addition did not relate to
the constitutionality of
LUPO. That being so, there are no reasons of justice or equity that
require us to depart from the case
as Lagoonbay has pleaded it.
Indeed, it would be unjust to the Provincial Minister if this Court
were to allow the introduction
of a new challenge at this late stage
of proceedings.
LUPO was clearly and unambiguously the stated source of the
Provincial Minister’s power to make the April 2011 decisions.
Hence, any challenge to those decisions must take cognisance of the
content of the provisions of LUPO. In the absence of a proper
and
direct attack on the constitutionality of LUPO, this Court is
constrained to determine any challenge to the Provincial Minister’s
decisions on the basis that LUPO is constitutionally valid.
It is tempting to follow the approach adopted by the Supreme Court
of Appeal.
60
This Court’s jurisprudence quite clearly establishes that: (a)
barring exceptional circumstances, national and provincial
spheres
are not entitled to usurp the functions of local government;
61
(b) the constitutional vision of autonomous spheres of government
must be preserved;
62
(c) while the Constitution confers planning responsibilities on each
of the spheres of government, those are
different
planning
responsibilities, based on “what is appropriate to each
sphere”;
63
(d) “‘planning’ in the context of municipal
affairs is a term which has assumed a particular, well-established
meaning
which includes the zoning of land and the establishment
of townships
” (emphasis added);
64
and (e) the provincial competence for “urban and rural
development” is not wide enough to include powers that form
part of “municipal planning”.
65
At the very least there is therefore a strong case for concluding
that, under the Constitution, the Provincial Minister was not
competent to refuse the rezoning and subdivision applications.
However,
for the reasons set out above,
66
the
Gauteng Development Tribunal (CC)
findings do not avail
us. LUPO has not been impliedly amended or repealed, and its
provisions authorise, as a matter of general
principle, provincial
involvement in rezoning and subdivision applications. It was not
open to the Supreme Court of Appeal to
adopt the approach it did
because, in the circumstances of this case, it is simply
inappropriate to ignore the provisions of
the Ordinance that lie at
the heart of the dispute between the parties.
With this in mind, I shall now consider Lagoonbay’s contention
that LUPO does not authorise provincial authorities to decide
rezoning and subdivision applications.
Lagoonbay’s reliance on sections 16 and 25 of LUPO
Lagoonbay contends that the Provincial Minister acted ultra vires
LUPO
67
when he issued the impugned refusals. The argument runs thus:
(a) Sections 16 and 25 of LUPO clearly indicate that it is
either
the Province
or
the Municipality (if so authorised) which is
to decide rezoning and subdivision applications. LUPO does not
contemplate that deciding
such applications should be a duplicated
function, performed at both local and provincial level.
(b) In 1988 the Structure Plan was amended pursuant to section 16 of
LUPO, and the Scheme Regulations were amended pursuant to
section 25
of LUPO,
68
to empower the Municipality as the final decision maker in
relation to rezoning and subdivision applications. As is apparent
from an explanatory circular issued by the Provincial Administration
in 1988 which accompanied these amendments (1988 Circular),
this
was a transfer of power from the Province to the Municipality, rather
than an expansion of the Municipality’s powers
such that it
would be able to perform the same planning functions as the
Provincial Minister.
(c) Condition 1.3 directly contravenes the Constitution insofar as it
seeks to usurp for the Provincial Minister a power that falls
within
the ambit of “municipal planning”. It is therefore an
unconstitutional nullity that had no legal effect. Put
differently,
the Provincial Minister’s power to decide rezoning and
subdivision applications in 2011 depended on the substantive
validity
of the condition imposed by Minister Essop in 2007. Because the
imposition of the condition was unconstitutional and invalid,
it
could never have clothed the Provincial Minister with the authority
to issue the impugned refusals in 2011.
(d) Because condition 1.3 had no legal effect, the division of
competences under LUPO remains as set out in the 1988 Circular.
It
follows that the Provincial Minister was not competent under LUPO to
decide Lagoonbay’s applications in 2011, and his
decisions in
that regard fall to be set aside.
Provincial Minister’s rezoning decision
Lagoonbay’s argument on rezoning cannot be sustained. The
introduction to the 1988 Circular indicates that it concerns
the
“transfer of powers to local authorities by means of a general
structure plan and the amendment of local authorities’
zoning
scheme regulations to authorise councils to perform certain
functions”. The first paragraph of the 1988 Circular
includes
the following:
“
It is,
therefore, gratifying to inform you that the
Administrator-in-Executive Committee has, at a recent meeting,
resolved to
transfer its powers . . . to all local authorities in the
Cape Province,
subject
to certain conditions
.”
(Emphasis added.)
Paragraph
11 of the 1988 Circular explains that the “transfer of powers
[contemplated in the Circular] will come into operation
on 1 January
1989, and any application received by [the Cape Provincial
Administration] after 6 January 1989 will be returned to
councils for
disposal.” The 1988 Circular thus contemplates the transfer of
certain planning functions from the Province
to municipalities by
means of the necessary amendments to the Structure Plan and the
applicable Scheme Regulations. However, that
transfer was clearly
qualified, and it is those qualifications which undo Lagoonbay’s
argument.
Section
16(1) of LUPO provides that a structure plan may authorise a
municipal council to decide rezoning applications. The 1988
amendment to the Structure Plan clearly “authorises
[municipal] councils to grant or refuse rezoning applications in
terms of sections 14(4), 16(1) or 18 [of LUPO]”. However, it
expressly states that “the said authorisation shall not
be
applicable . . . where
a state institution . . . is not in favour
[of the rezoning]
.” (Emphasis added.)
It is clear that the 1988 amendment to the Structure Plan only
empowers the Municipality to make the final decision regarding
rezoning applications to the extent that relevant “state
institutions” do not oppose the rezoning. And though LUPO
does
not define “state institution”, the term is broad enough
to include provincial functionaries (barring any statutory
indications to the contrary, and there are none). On the facts of
this case it is readily apparent that, at the very least, one
such
state institution – the Provincial Minister – did oppose
the rezoning decision. The 1988 Structure Plan amendment
therefore
did not empower the Municipality to act as the final decision-maker
in relation to Lagoonbay’s application. In
the result
Lagoonbay’s challenge to the rezoning refusal as being ultra
vires LUPO must fail. This in no way implies that
the Provincial
Minister was competent under the Constitution to exercise rezoning
functions. My finding here is limited to a
rejection of Lagoonbay’s
argument that the impugned decision was ultra vires LUPO.
Provincial Minister’s subdivision decision
The
position regarding the Provincial Minister’s subdivision
decision is somewhat different. Section 25(1) of LUPO provides
that
scheme regulations may authorise a municipal council to decide
subdivision applications. Pursuant to sections 7(2)
and 9 of
LUPO,
69
the Province issued scheme regulations in 1988. Regulation 3.1
provides that a municipal council—
“
may
grant or refuse an application for the subdivision of land in terms
of section 25(1) of [LUPO] within, and subject to the
conditions
applicable to, a subdivisional area, as well as an application for
the subdivision of land involving no change in zoning.”
Unlike the
1988 amendment to the Structure Plan, the Scheme Regulations do not
qualify a local authority’s power to decide
subdivision
applications, or limit its competence to instances when there is no
disagreement from the Provincial Minister. Rather,
they embody a
broad authorisation for municipalities in relation to making
subdivision decisions.
In
2009 the Scheme Regulations were amended, which amendment included
the following revision to regulation 3.1:
“
The
[Municipal] Council may grant or refuse an application for the
subdivision of land in terms of section 25(1) of [LUPO] within,
and
subject to the conditions applicable to, a subdivisional area, as
well as an application for the subdivision of land involving
no
change in zoning:
provided
that the [Municipal] Council may elect not to exercise its power to
grant or refuse an application for subdivision where
such an
application forms part of a land-use proposal which includes other
applications in terms of [LUPO], which require approval
by the
competent authority at Provincial Government sphere. In such cases
all the applications forming part of the land-use proposal
may be
referred to the competent authority at Provincial Government sphere,
for decision. Any comments and/or recommendation[s]
submitted by the
[Municipal] Council to the competent authority at Provincial
Government sphere shall receive consideration
”.
70
(Amendment in italics.)
While the
amendment authorises provincial authorities to make subdivision
decisions, it only grants that authorisation if a municipality
has
elected not to decide the subdivision application itself. In other
words, it falls within a municipality’s discretion,
when a
subdivision application is accompanied by requests for other land use
approvals, to refer all of the approval requests
to the relevant
provincial functionaries as a composite bundle, or to decide the
subdivision application and to leave the other
land-use
authorisations in the hands of competent authorities in other
spheres.
71
In the present case, the Municipality elected to decide Lagoonbay’s
subdivision application. I therefore agree that, under
LUPO, the
Provincial Minister was not the competent authority to grant or
refuse that application. This conclusion is bolstered
by the wording
of section 25(1), which provides that
either
the Province
or
a duly authorised municipality may refuse the application. There is
nothing in the text of the provision to suggest that the
Ordinance
contemplates both provincial and municipal authorities deciding the
same subdivision applications. Indeed, only a strained
reading of
LUPO could support such an impractical duplication of functions.
What then of condition 1.3? Did it empower the Provincial Minister
to refuse Lagoonbay’s subdivision applications? I think
not.
First, the condition refers only to “zoning” – it
in no way purports to reserve for the Province a power
to decide
subdivision applications. Second, in terms of section 25(1) of LUPO,
competence for deciding subdivision applications
is determined by
the Scheme Regulations rather than by the Structure Plan, and the
Scheme Regulations stipulate that the Municipality
was the
authorised functionary. It was simply not within Minister Essop’s
powers to reallocate responsibility for subdivision
applications by
imposing a condition on a Structure Plan amendment. To my mind it is
unnecessary to determine whether the imposition
of condition 1.3
could, theoretically, have had legal consequences – whatever
consequences it could have had, they could
not have related to the
power to decide subdivision applications. In the result, the
Provincial Minister’s decision to
refuse Lagoonbay’s
subdivision application was unlawful and falls to be set aside.
That
is, however, not the end of the matter: we must still determine
whether the Supreme Court of Appeal was correct to confirm
the
Municipality’s decision to grant the subdivision application.
72
Inasmuch as the Scheme Regulations empower municipalities rather
than provincial authorities to decide subdivision applications,
section 22(1) of LUPO places a temporal restriction on a local
authority’s ability to grant or refuse such applications:
“
Zoning
to precede subdivision
(1) (a) No application for
subdivision involving a change of zoning shall be considered in terms
of this Chapter, unless and until
the land concerned has been zoned
in a manner permitting of subdivision, in terms of Chapter II.
(b) The provisions of paragraph
(a) shall not preclude applications for rezoning and for subdivision
from being considered simultaneously.”
Thus
in terms of LUPO as read with the Scheme Regulations—
(a) the Municipality was the competent authority to decide
Lagoonbay’s subdivision application;
(b) to the extent that the properties sought to be subdivided were
also sought to be rezoned, subdivision decisions in relation
to those
properties could only be decided after the accompanying rezoning
approvals had been granted;
73
and
(c) the Provincial Minister was the competent authority under LUPO to
decide the rezoning application.
74
At the time that the Municipality purported to approve the
subdivision application (that is, July 2010), Lagoonbay’s
accompanying rezoning authorisation had not been granted by the
Provincial Minister (the rezoning application was only referred
to
him in August 2010). Indeed, that authorisation was subsequently
refused. To the extent that the properties sought to be subdivided
also required rezoning, it was therefore not open to the
Municipality, on 14 July 2010, to approve the subdivision of those
properties. As I have set out above,
75
it is not apparent from the record before us whether the subdivision
applications and the rezoning applications were lodged in
relation
to all of the same properties. From the Provincial Minister’s
refusal letter, it seems that subdivision was sought
with regard to
some erven and rezoning with regard to others, with a degree of
overlap between the two. I therefore consider
it appropriate to
remit Lagoonbay’s subdivision application to the Municipality
for reconsideration in the light of this
judgment. If subdivision of
a particular property was not dependent on the rezoning of that same
property, the Municipality would
have been – and remains –
competent to grant or refuse the subdivision application. If,
however, subdivision and
rezoning were sought in relation to the
same properties, the former will depend on the latter. The
Municipality is best placed
to make these determinations.
PAJA challenges
Despite
an absence of any reference thereto in Lagoonbay’s written
submissions in this Court, we were informed during oral
argument
that it persists with its alternative challenges under PAJA
(although those challenges have narrowed considerably).
In the light
of the conclusions reached above, it remains for us to consider
these arguments in relation to the Provincial Minister’s
rezoning decision. In this Court Lagoonbay contends that—
(a) the Provincial Minister committed material errors of law
76
by (i) ignoring or revisiting decisions made during the
amendment of the Structure Plan and during the environmental approval
process, and (ii) attaching significance to the agricultural
potential of the land sought to be developed when the designation
of
that land had already been changed from “Agriculture/Forestry”
to “Township Development”;
(b) the Provincial Minister’s decision was based on erroneous
facts
77
insofar as he failed to appreciate the benefits of Lagoonbay’s
water plan; and
(c) to the extent that the Provincial Minister’s decision was
based on concerns about the socio-economic impact of the proposed
development, it was “misconceived, speculative and
unreasonable”.
78
In deciding to refuse Lagoonbay’s rezoning application, the
Provincial Minister considered inter alia (a) the proposed
development’s likely adverse effects on the affected area’s
water supply; (b) the agricultural importance of the
land sought to
be developed; (c) certain inadequacies in the economic and financial
information supplied by Lagoonbay; (d) the
possibility that the
benefits listed as likely to accrue to the local community may have
been misstated; (e) the inconsistency
of the proposed development
with the goals of the Western Cape Provincial Spatial Development
Framework, as well as other policy
documents and draft documents;
(f) the potential adverse effects on vehicle dependencies and
travelling costs in the area;
and (g) the potential adverse effects
on the landscape. The Provincial Minister contends that his decision
was therefore rational,
reasonable and fully in accordance with the
prescripts of LUPO, and accordingly not susceptible to being set
aside in these proceedings.
Assuming that the Provincial Minister’s rezoning refusal was
administrative action within the meaning of PAJA, for the
reasons
that follow I am of the view that Lagoonbay’s aforementioned
challenges must fail. The point of departure for evaluating
the
substantive validity of the refusal must be section 36 of LUPO,
79
which stipulates that the Provincial Minister had to determine the
rezoning applications based on whether the proposed development
was
“desirable”, alternatively based on an evaluation of its
effect on existing rights. The standard of “desirability”
grants the decision-maker a wide discretion when evaluating rezoning
applications.
80
The challenges based on the Provincial Minister having committed a
material error of law cannot be sustained. With regard to
the first
error-of-law challenge, it is not readily apparent which decisions
were supposedly ignored and which were impermissibly
revisited.
However, the essence of the contention seems to be that the
Provincial Minister was, when deciding Lagoonbay’s
rezoning
application, obliged to avoid making decisions that conflicted with
those of earlier decision-makers. He therefore committed
a
reviewable error when he “deliberately and on spurious
grounds, ignored and/or rejected the positive recommendations
and
approvals by other functionaries/decision-makers forming part of the
broader total process.”
This must be rejected. Indeed, an almost identical argument was
dismissed in forceful terms by this Court in
Fuel Retailers
:
81
“
It is
no answer by the environmental authorities to say that had they
themselves considered the need and desirability aspect, this
could
have led to conflicting decisions between the environmental officials
and the town-planning officials [who had also considered
desirability]. If that is the natural consequence of the discharge of
their obligations under the environmental legislation, it
is a
consequence mandated by the statute. It is impermissible for them to
seek to avoid this consequence by delegating their obligations
to the
town-planning authorities.”
82
It is
quite possible that different decision-makers may consider some of
the same factors during different approval processes.
Thus, for
example, when evaluating a rezoning application a decision-maker
must, in terms of section 36(2) of LUPO, have regard
to such
considerations as the “safety and welfare . . . of the
community” and “the preservation of the natural
and
developed environment”, within the context of his or her broad
discretion to determine “desirability”.
And when
deciding an application for an environmental authorisation, a
decision-maker must have regard to various principles
to ensure
socially, environmentally and economically sustainable development,
including avoiding environmental degradation, preserving
cultural
heritage, the responsible and equitable use of natural resources,
community well-being and empowerment and the beneficial
use of
environmental resources for the service of the public interest.
83
It seems clear that environmental authorities and planning
authorities may therefore consider some of the same factors when
granting their respective authorisations. But that cannot detract
from their statutory obligations to consider those factors,
and
indeed to reach their own conclusions in relation thereto.
84
I am
accordingly of the view that Lagoonbay has failed to show that, to
the extent that the Provincial Minister may have ignored
or
revisited some of the conclusions reached during the earlier
approval processes, he improperly or unlawfully exercised his
discretion in terms of section 36 of LUPO.
The
second error-of-law challenge (regarding the Provincial Minister’s
consideration of the agricultural potential of the
land sought to be
developed) must be dismissed on the basis of a lack of materiality.
As this Court noted in
Gauteng Development Tribunal (CC)
—
“
a mere
error of law is not sufficient for an administrative act to be set
aside. Section 6(2)(d) of [PAJA] permits administrative
action
to be reviewed and set aside only where it is ‘materially
influenced by an error of law’. An error of law is
not material
if it does not affect the outcome of the decision. This occurs if, on
the facts, the decision-maker would have reached
the same decision,
despite the error of law.”
85
(Footnotes omitted.)
And, as is apparent from the reasons for the refusal provided by the
Provincial Minister in August 2011, consideration of the
prospective
effect of the development on the agricultural potential of the land
was not material to his ultimate decision. There
were many other
weighty considerations indicating that the rezoning required by the
development was “undesirable”,
such that the Provincial
Minister would, in all probability, still have decided to refuse the
rezoning application had he not
considered the land’s
agricultural potential when making his decision:
“
I am
of the view that the proposed development does
little
to support policies of integration, densification or the improvement
of the living conditions especially
of those in the wider areas around Rosemore, Tembalethu and
Pacaltsdorp. Furthermore it is an example of
urban
sprawl
which will bring about the loss of agricultural land (a scarce
natural resource), water resources, biodiversity, vehicle
dependencies
and high travelling costs for workers, loss of small
town character and of the rural cultural landscape”. (Emphasis
in original.)
Lagoonbay’s contention that the refusal should be set aside
because it was based on a factual error regarding water supply
must
fail. One of the reasons for the refusal was the Provincial
Minister’s informed concern that “local water supply
systems are already under pressure”.
86
From the record of the decision it is apparent that the Provincial
Minister did consider Lagoonbay’s water plan, but was
concerned about its inadequacies. He noted that “[n]o
indication has been given by [Lagoonbay] as to what measures will
be
put in place should water demand not be met, and what the effects
would be on the wider communities of Mossel Bay and George.”
Lagoonbay cannot seek to have the rezoning refusal set aside simply
because the Provincial Minister did not accept its version
of the
benefits that would flow from the proposed water plan. Indeed, the
Provincial Minister would have been remiss had he not
applied his
mind to the proposal and reached his own conclusion, based on all of
the relevant information before him, as to whether
or not the
proposed development would place an undesirable strain on the
region’s water resources. Lagoonbay has failed
to set out a
basis upon which this Court can fault the Provincial Minister’s
conclusion in this regard.
Finally,
Lagoonbay challenges the Provincial Minister’s analysis of the
socio-economic impact of the proposed development
on the basis that
it was misconceived, speculative and unreasonable. This cannot be
sustained. The record of the Provincial Minister’s
decision
indicates that there were good reasons and relevant considerations
supporting his concerns about the socio-economic
impact of the
proposed development, including (a) its likely adverse effects on
the “unique and varied natural beauty and
cultural historical
resources” of the area, with related implications for the
region’s tourism potential; (b) its
lack of support for
“policies of integration, densification or the improvement of
the living conditions” in the area;
(c) its potential for
resulting in “urban sprawl”; and (d) the fact that the
proposed development was motivated for
on the basis of an economic
study undertaken in 2005, which failed to account for material
developments in the area occurring
after that date. These include
several failed or failing golf-estate developments. There is
therefore no basis for concluding
that the Provincial Minister’s
“desirability” determination was unreasonable, or that
it was somehow speculative
or misconceived.
In sum, the Provincial Minister refused the rezoning application
because he considered the proposed development to have many
adverse
and uncertain consequences and therefore to be undesirable. This
determination was based on his consideration of information
provided
by Lagoonbay and by relevant municipal functionaries, as well as
information sourced from relevant provincial planning
policies.
Accordingly I find myself in agreement with the High Court that
Lagoonbay has failed to set out a proper basis upon
which this Court
may interfere with the Provincial Minister’s policy-laden
decision.
87
The challenges under PAJA to the substantive validity of the 2011
rezoning refusal cannot succeed.
Costs
The
High Court dismissed Lagoonbay’s application in its entirety
and ordered it to pay the costs of the Provincial Minister
and Cape
Windlass, including the costs of two counsel. The Supreme Court of
Appeal overturned that ruling, upheld the appeal
and mulcted both
the Provincial Minister and Cape Windlass in Lagoonbay’s
costs, again including the costs of two counsel.
For the reasons set
out above, neither the original application nor the appeal should
have been decided entirely in favour of
one of the parties. I
therefore consider it unjust to require the Provincial Minister or
Cape Windlass to bear Lagoonbay’s
litigation costs, and I
consider the reverse position equally unjust. That is reason enough
to overturn the Supreme Court of
Appeal’s adverse costs order
and not to follow the High Court’s costs order.
In
this Court both the Provincial Minister and Lagoonbay have been
partially successful. Lagoonbay has succeeded in showing that,
under
LUPO, provincial authorities are not competent to decide subdivision
applications. The Provincial Minister has succeeded
in defending his
competence under LUPO to make rezoning decisions. Cape Windlass’
limited submissions have not assisted
us in deciding these disputes
nor have they been vexatious. I therefore consider it to be in the
interests of justice and fairness
for each of the parties to pay its
own costs.
Order
[74] In
the result the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld to the extent set out below.
3. The order of the Supreme Court of Appeal is set aside and replaced
with the following:
(a) The application challenging the decision by the Minister of Local
Government, Environmental Affairs and Development Planning
in the
Western Cape Provincial Government (Provincial Minister), dated 28
April 2011, to refuse the rezoning application of Lagoonbay
Lifestyle
Estate (Pty) Ltd (Lagoonbay) is dismissed.
(b) It is declared that the decision by the Provincial Minister dated
28 April 2011, refusing Lagoonbay’s application for
the
subdivision of certain properties, is unlawful and is accordingly set
aside.
(c) It is declared that the George Municipality is the competent
authority under the Land Use Planning Ordinance 15 of 1985 to
determine Lagoonbay’s subdivision application.
(d) Lagoonbay’s subdivision application is remitted to the
George Municipality for reconsideration.
(e) Each party must pay its own costs in the High Court and in the
Supreme Court of Appeal.
4. There is no order as to costs in this Court.
For
the Applicant: Advocate S Rosenberg SC, Advocate A Breitenbach
SC and Advocate D Borgström instructed by the
State
Attorney.
For
the First Respondent: Advocate M Maritz SC and Advocate H de Waal
instructed by Werksmans Attorneys.
For
the Third Respondent: Advocate T Potgieter SC instructed by Chennels
Albertyn.
1
In
terms of sections 5 and 6(1) of the Physical Planning Act 125 of
1991 (PPA), a structure plan provides guidelines for the future
development of a particular region and has as its object the
promotion of “the orderly physical development of the area
to
which that [structure] plan relates to the benefit of all . . .
inhabitants [of the region]”. Even though structure
plans only
provide guidelines, in terms of section 27(1)(a) and (b) of the PPA
no land may be developed in a manner inconsistent
with the relevant
structure plan and no land may be used other than in a manner
provided for by the structure plan’s zoning
prescriptions.
2
107
of 1998 (NEMA).
3
103
of 1977.
4
15
of 1985 (LUPO).
5
Section
4(7) reads as follows:
“
A structure plan so approved
may at any time, on application to or on the direction of the
Administrator, be amended or withdrawn,
with the approval of the
Administrator, by a local authority or joint committee concerned or
the director, in such manner as
may be determined by the
Administrator and subject to inhabitants of the area of jurisdiction
of any local authority concerned
and other interested parties being
afforded an opportunity of lodging objections or making
representations.”
6
Section
18(1) provides:
“
Any person who has an
interest in a [structure] plan, or any department of State,
provincial administration or regional or local
authority, may apply
in writing to the Planning Authority concerned for the amendment of
the relevant [structure] plan.”
7
The
land incorporates portions of properties described as “Hoogekraal
No. 238” and “Buffelsdrift No. 227”,
located in
Glentana, George. From the Provincial Minister’s
correspondence it appears that subdivision was sought in relation
to
“Portions 5, 66, 69 and 80 of the Farm Hoogekraal No. 238”
as well as of the “consolidated project site”.
The same
source indicates that rezoning was sought in relation to “Portions
42, 82, 122, Portion A of Portion 5 of Hoogekraal
238, Portion 6,
17-19, 23, 41, 52, 53, 55, 64, Rem 65, Rem 67, Rem 68, 70, 72,
74 76, 79, 85, Rem 88, Rem 90, 102, 160,
168, 179, 180, Portion
A of Portion 66, Portion A of Portion 69 and Portion A of Portion 80
of the Farm Hoogekraal No. 238”.
It is not clear whether the
rezoning and subdivision applications were sought in relation to all
of the same properties.
8
Section
16 provides:
“
Rezoning on application of
owner of land
(1) Either the Administrator or, if authorised thereto
by the provisions of a structure plan, a council may grant or refuse
an
application by an owner of land for the rezoning thereof.
(2) (a) A rezoning in respect of which the application
has been granted by virtue of the provisions of subsection (1) shall
lapse—
(i) if the land concerned is not, within a period of
two years after the date on which the application for rezoning was
granted,
utilised as permitted in terms of the zoning granted by the
said rezoning;
(ii) where it has been granted for the purposes of
section 22, if a relevant application for subdivision in accordance
with the
rezoning concerned is not made in terms of section 24
within a period of two years after the date on which the application
for
rezoning was granted; or
(iii) where such application for subdivision was indeed
so made, but the subdivision concerned or part thereof is not
confirmed,
unless either the Administrator or, if authorised
thereto by the provisions of the structure plan concerned, the
council extends
the said period of two years, which extension may be
granted at any stage.
(b) Subject to the applicable provisions of section 7,
14(2), 14(4)(a) or 14(4)(b), land in respect of which a zoning has
lapsed
in terms of subsection (2) of this section shall be deemed to
be zoned in accordance with the utilisation thereof as determined
by
the council concerned.
(3) Where an application for rezoning is granted under
subsection (1) or a rezoning has lapsed in terms of subsection (2),
the
local authority concerned shall as soon as practicable amend the
zoning map concerned and, where applicable, a register in its
possession accordingly.”
9
Section
25 states:
“
Granting or refusal of
application
(1) Either the Administrator or, if authorised thereto
by scheme regulations, a council may grant or refuse an application
for
the subdivision of land.
(2) In granting an application under section (1) either
the Administrator or the council concerned, as the case may be,
shall
indicate relevant zonings in relation to the subdivision
concerned for the purpose of the application of section 22(2).”
10
Section
16 of LUPO empowers a province to grant or refuse rezoning
applications and section 25 empowers a province to grant or
refuse
subdivision applications. This is the general position unless a
structure plan has, or provincial regulations have, authorised
a
municipal council to undertake those functions.
11
The
functional competences of provinces and municipalities are set out
in the Fourth and Fifth Schedules to the Constitution,
read with
sections 104(1)(b), 104(4), 125(2)(a)-(c) and 156(1)(a). In relation
to Lagoonbay’s functionality challenge,
the argument centred
on whether deciding rezoning and subdivision applications falls
within the municipal competence of “municipal
planning”
(Part B of the Fourth Schedule) or within the provincial competences
of “regional planning and development”
(Part A of the
Fourth Schedule) and “provincial planning” (Part A of
the Fifth Schedule).
12
3
of 2000 (PAJA).
13
See
the approval referred to in [4]Error: Reference source not found
above.
14
Reported
as
Lagoon Bay Lifestyle Estate (Pty) Ltd v Minister of Local
Government, Environmental Affairs and Development Planning, Western
Cape and Others
[2011] ZAWCHC 327
;
[2011] 4 All SA 270
(WCC)
(High Court judgment).
15
Id
at para 7.
16
Id
at paras 10-2.
17
Id
at para 15.
18
Id
at para 18.
19
Id
at para 22.
20
Lagoonbay
Lifestyle Estate (Pty) Ltd v The Minister for Local Government,
Environmental Affairs and Development Planning of the
Western Cape
and Others
[2013] ZASCA 13
(Supreme Court of Appeal judgment).
21
Above
n 11. See the Supreme Court of Appeal judgment above n 20 at paras
7-8 and 10-1.
22
Johannesburg
Municipality v Gauteng
Development Tribunal and Others
[2009] ZASCA 106
;
2010 (2) SA 554
(SCA) (
Gauteng Development
Tribunal (SCA)
).
23
Supreme
Court of Appeal judgment above n 20 at para 11.
24
Id
at para 10.
25
It
should be noted that the Structure Plan has been withdrawn. As such,
it is unnecessary to consider the correctness of the Supreme
Court
of Appeal’s decision to remit the application.
26
The
full order granted by the Court reads as follows:
“
1. The appeal is upheld with
costs, such costs to include those consequent upon the employment of
two counsel to be paid jointly
and severally by the respondents.
2. The order of the court below dismissing the
application with costs is set aside and in its stead is substituted
the following:
‘
(a) It is declared that the
purported decision by the first respondent dated 28 April 2011
refusing the applicant’s
application for rezoning and
subdivision in respect of the proposed Lagoonbay development is
unlawful and is accordingly set
aside.
(b) It is declared that the second respondent is the
competent authority to consider and determine the applicant’s
application
for rezoning and subdivision in respect of the proposed
Lagoonbay development and its decision to approve that application
on
17 July 2010 is confirmed.
(c) The applicant’s application for the amendment
of the George and Environs Urban Structure Plan from
agriculture/forestry
to township development in respect of the farm
Hoogekraal 238 is remitted to the first respondent for
reconsideration.
(d) The respondents are ordered to pay the costs of the
application jointly and severally such costs to include those of two
counsel.’”
27
See
n 11 above.
28
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
[2010] ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC)
(
Gauteng Development Tribunal (CC)
).
29
Section
44(1)(a) provides:
“
Appeal to Administrator
An applicant in respect of an application to a council
in terms of this Ordinance, and a person who has objected to the
granting
of such application in terms of this Ordinance, may appeal
to the Administrator, in such manner and within such period as may
be prescribed by regulation, against the refusal or granting or
conditional granting of such application.”
30
CDA
Boerdery (Edms) Bpk and Others v Nelson Mandela Metropolitan
Municipality and Others
[2007] ZASCA 1
;
2007 (4) SA 276
(SCA) (
CDA Boerdery
)
.
31
The
provisions referred to in n 11.
32
32
of 2000 (Systems Act). Section 8 provides:
“
General empowerment
(1) A municipality has all the functions and powers
conferred by or assigned to it in terms of the Constitution, and
must exercise
them subject to Chapter 5 of the Municipal Structures
Act.
(2) A municipality has the right to do anything
reasonably necessary for, or incidental to, the effective
performance of its functions
and the exercise of its powers.”
33
117
of 1998 (Structures Act). Section 83(1) states:
“
A municipality has the
functions and powers assigned to it in terms of sections 156 and 229
of the Constitution.”
34
20
of 1974.
35
209
of 1993 (Transition Act).
36
Above
n 11, n 32 and n 33 respectively.
37
See,
for example,
S v Thunzi and Another (Minister for Justice and
Constitutional Development joined)
[2010] ZACC 27
;
2011 (3) BCLR
281
(CC) at paras 25 and 51.
38
I
deal with this argument in detail at [49] to [56] below.
39
[23]
to [29] above.
40
Reliance
here was placed on the throwaway line referred to in [31] above.
41
Section
172(1)(a) of the Constitution.
42
Phillips
and Others v National Director of Public Prosecutions
[2005]
ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) (
Phillips
)
.
43
Id
at paras 43-4. See also
Shaik v Minister of Justice and
Constitutional Development and Others
[2003] ZACC 24
;
2004 (3)
SA 599
(CC);
2004 (4) BCLR 333
(CC) at paras 23-5.
44
Prince
v President, Cape Law Society, and Others
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) (
Prince I
).
This was an antecedent to
Prince II
, which dealt with the
validity of the Cape Law Society’s refusal to register the
applicant’s contract of community
service on the basis of his
consumption of marijuana:
Prince v President, Cape Law Society,
and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC);
2002 (3) BCLR
231
(CC) (
Prince II
).
45
59
of 1959.
46
Prince
I
above n 44 at para 40.
47
Id
at para 22.
48
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
[2009] ZACC 8
;
2009 (4) SA
222
(CC);
2009 (7) BCLR 637
(CC) (
DPP v Minister of Justice
)
.
49
51
of 1977.
50
DPP
v Minister of Justice
above n 48 at para 34.
51
Id
at para 36; section 2 of the Constitution.
52
DPP
v Minister of Justice
above n 48 at para 35. See also
CUSA v
Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA
204
(CC);
2009 (1) BCLR 1
(CC) at para 68 and
Matatiele
Municipality and Others v President of the RSA and Others
[2006]
ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at para 67.
53
DPP
v Minister of Justice
above n 48 at para 39. See also
Glenister
v President of the Republic of South Africa and Others
[2008]
ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2) BCLR 136
(CC) and
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC).
54
DPP
v Minister of Justice
above n 48 at para 40.
55
Id
at paras 40-1. See also
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para 11.
56
Minister
of Police and Others v Premier of the Western Cape and Others
[2013] ZACC 33
at para 20.
57
Section
4(1)(a) of LUPO.
58
Id
section 5(2).
59
See
the discussion at [27] to [28] above.
60
See
[15] above.
61
Gauteng
Development Tribunal (CC)
above n 28 at para 44.
62
Id
at para 50.
63
Id
at paras 53 and 55-6.
64
Id
at para 57.
65
Id
at para 63.
66
[40]
to [45] above.
67
That
is, beyond the powers that LUPO confers.
68
The
amended Scheme Regulations were promulgated by means of Provincial
Notice 1047/1988, published in the
Extraordinary Gazette of the
Province of the Cape of Good Hope
4563 of 5 December 1988
(Scheme Regulations).
69
Section
7(2) reads as follows:
“
The Administrator shall with
effect from the date of commencement of this Ordinance make scheme
regulations as contemplated in
section 9, supplementary to all
scheme regulations existing under subsection (1) of this section, in
order to give effect to
section 9(1).”
Section
9, in turn, provides:
“
Scheme regulations
(1) Control over zoning shall be the object of scheme
regulations, which may authorise the granting of departures and
subdivisions
by a council.
(2) Scheme regulations may be amended or replaced by
the Administrator by notice in the
Provincial Gazette
after
the proposed amendment or replacement has, if deemed necessary by
the director, been made known in such manner as the director
may
think fit.”
70
Para
2.1 of Provincial Notice 177/2009, published in the
Provincial
Gazette of the Province of the Western Cape
6631 of 29 May 2009
at 795.
71
It
is worth noting that the Scheme Regulations were amended as recently
as 2013, and even that amendment retains municipalities
as the
primary organs of state responsible for deciding subdivision
applications. See para 2.1 of Provincial Notice 257/2013,
published in the
Provincial Gazette of the Province of the
Western Cape
7157 of 8 August 2013 at 1790.
72
See
paragraph 2(b) of that Court’s order, above n 26.
73
In
terms of section 22(1)(a) of LUPO.
74
See
the conclusion reached in [52] above.
75
Above
n 7.
76
In
terms of section 6(2)(d) of PAJA, a court may review administrative
action if that “action was materially influenced
by an error
of law”.
77
In
terms of section 6(2)(e)(iii) of PAJA, a court may review
administrative action if that “action was taken because
irrelevant
considerations were taken into account or relevant
considerations were not considered”.
78
This
challenge could either lie in terms of section 6(2)(e)(iii) of PAJA,
or in terms of section 6(2)(h), which provides that
a court may
review administrative action if “the exercise of the power or
the performance of the function authorised by
the empowering
provision, in pursuance of which the administrative action was
purportedly taken, is so unreasonable that no reasonable
person
could have so exercised the power or performed the function”.
79
Section
36(1) provides:
“
Basis of refusal of
applications and particulars applicable at granting thereof
Any application under Chapter II or III shall be
refused solely on the basis of a lack of desirability of the
contemplated utilisation
of land concerned including the guideline
proposals included in a relevant structure plan in so far as it
relates to desirability,
or on the basis of its effect on existing
rights concerned (except any alleged right to protection against
trade competition).”
Chapter
III of LUPO regulates subdivision applications.
80
See,
for example,
Booth and Others NNO v Minister of Local Government,
Environmental Affairs and Development Planning and Another
[2013] ZAWCHC 47
;
2013 (4) SA 519
(WCC) (
Booth
) at paras
47-9, for an indication of the breadth of the discretion.
81
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province, and Others
[2007] ZACC 13
;
2007 (6) SA 4
(CC);
2007 (10) BCLR 1059
(CC) (
Fuel Retailers
).
82
Id
at para 92. See further paras 84-97.
83
Section
2(3)-(4) of NEMA.
84
See
Fuel Retailers
above n 81 at paras 88 and 96-7.
85
Above
n 28 at para 91.
86
The
concern arose from a consideration of the provincial guidelines
regarding the use of river water for such facilities as golf
courses, as well as information provided by municipal engineering
authorities regarding desalination options. See
Booth
above n
80 at paras 28-30 and 33 for a useful discussion of the importance
and value of reliance on policy documents when making
planning
decisions.
87
See
the High Court judgment above n 14 at para 24.