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[2013] ZAWCHC 47
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Booth and Others v Minister of Local Government, Environmental Affairs & Development Planning and Another; City of Cape Town v William Booth Attorneys and Others (2046/12, 22990/11) [2013] ZAWCHC 47; [2013] 2 All SA 275 (WCC); 2013 (4) SA 519 (WCC) (6 March 2013)
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT)
Cases No: 2046/12 & 22990/11
In the matter between: Reportable
WILLIAM
BOOTH & 2 OTHERS NNO
APPLICANTS
And
MINISTER
OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS & DEVELOPMENT
PLANNING
FIRST
RESPONDENT
CITY
OF CAPE TOWN
SECOND
RESPONDENT
And in the matter between
CITY
OF CAPE TOWN
APPLICANT
And
WILLIAM
BOOTH ATTORNEYS & 5 OTHERS
RESPONDENTS
Coram
: ROGERS J
Heard: 18 FEBRUARY 2013
Delivered: 6 MARCH 2013
_____________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
[1] The Booth Family Trust (‘BFT’) is the
owner of Erf 64403 situated at 29 Kenilworth Road, Cape Town (‘the
property’).
William Booth Attorneys (‘WBA’), a firm
comprising two attorneys (including the eponymous Mr William Booth, a
well-known
criminal defence lawyer), conducts a law practice at the
property.
[2] In terms of the applicable zoning scheme the
property is zoned General Residential. This zoning does not permit
the use of the
property for purposes of a law practice, even though
WBA has been conducting its practice there for many years. On 26
August 2008
the BFT submitted to the City of Cape Town (‘the
City’) an application to rezone the property as Special
Business.
This zoning would have permitted the conduct of a law
practice. On 19 August 2009 the City’s Protea Sub-Council (‘the
PSC’) refused the rezoning application. BFT filed an internal
appeal in terms of s 62 of the Local Government: Municipal
Systems Act 32 of 2000 (‘the Systems Act’). On 16 July
2010 the City’s Planning & General Appeals Committee
(‘the
PGAC’) dismissed the appeal. BFT filed a further appeal to the
Minister of Local Government, Environmental Affairs
& Development
Planning, Western Cape (‘the MEC’) in terms of s 44
of the Land Use Planning Ordinance 15 of
1985 (‘LUPO’).
On 13 October 2011 the MEC dismissed the appeal.
[3] Following the MEC’s dismissal of the appeal,
the City on 14 November 2011 issued an application for a declaratory
order
that WBA’s use of the property as a law practice was
unlawful and for an interdict against the unlawful use. The interdict
cited as respondents BFT, WBA and the two partners in WBA (Mr Booth
and Mr Mia). The respondents opposed the interdict application,
relying mainly on the fact that BFT enjoyed (so they said) strong
prospects of having the MEC’s decision set aside on review.
Following the furnishing of reasons by the MEC on 31 January 2012,
BFT issued a review application on 6 February 2012, citing only
the
MEC as a respondent. Following an earlier postponement of the
interdict application on 12 December 2011 to afford the City
time to
file replying papers in response to belated answering papers from the
respondents, the interdict application was on 7 February
2012, and
despite opposition from the City, postponed
sine die
. In
August 2012, by which time the City had at its own instance been
joined as the second respondent in the review, orders were
made by
agreement for the interdict and review application to be heard
together on 18 February 2013. The two applications served
before me
on that date.
[4] I shall for convenience refer to the BFT, WBA and Mr
Booth as ‘Booth’ except where a distinction is necessary.
[5] Mr Booth bought the property in 1994. He sold it to
the BFT during 1997. The precise date on which WBA began to conduct
its
practice from the property is unclear. On one view it was as
early as 1990/1991. It is at any rate common cause that WBA has used
the property for its law practice for more than 16 years. The zoning
of the property has at no time permitted such use.
[6] There have been various attempts by Booth over the
years, mainly unsuccessful, to regularise WBA’s use of the
property.
In 1996 he applied for a temporary departure in terms of
s 15 of LUPO, which the local authority refused in 1997. In
October
1997 Booth submitted a rezoning application which the local
authority refused in July 1998. There was an appeal to the MEC in
terms
of s 44 of LUPO which the MEC rejected in September 1999.
Following this rejection there were several futile and somewhat
maladroit efforts by the City to pursue criminal action against
Booth.
[7] When the criminal proceedings appeared to the City
to be going nowhere, the City decided rather to seek a civil
interdict. An
application was issued in December 2001. On 18 November
2002 and by agreement an order was made postponing the interdict
application
to 14 May 2003 to afford Booth time to submit a further
administrative application to regularise WBA’s use of the
property.
This took the form of an application for a departure in
terms of s 15 of LUPO, lodged in February 2003. The interdict
application
was removed from the roll to allow the new departure
application to be determined and was not thereafter revived.
[8] The City refused the departure application on 30
October 2003. Booth pursued an internal appeal in terms of s 62
of the
Systems Act. The appeal was refused on 6 August 2004,
whereupon Booth lodged an appeal to the MEC in terms of s 44 of
LUPO.
On 8 December 2005 the MEC upheld the appeal and granted the
temporary departure. The MEC’s decision was that the temporary
departure was ‘valid for a period of two years only, during
which time the premises shall be rehabilitated to make it more
suitable for a private residence’. The papers do not reveal
precisely what Booth had in mind in seeking the temporary departure.
The MEC’s decision indicates that the departure was a temporary
indulgence after which the premises would have to be returned
to
residential use - it was not a long-term solution to Booth’s
problems.
[9] On 8 December 2007 the two-year period of the
departure lapsed. Nothing changed – WBA continued to practise
from the property.
In April 2008 the City served a notice in terms of
s 39(2) of LUPO requiring the BFT to cease its unlawful use of
the property.
This had no effect. Over the period June to November
2008 the City turned again to the criminal courts with no greater
success
or proficiency than before. While these steps were being
pursued, Booth on 26 August 2008 filed the rezoning application which
is the subject of the current proceedings. Its fate and the ensuing
legal history I have summarized in paragraphs 2 and 3 above.
The legislative framework
[10] An application for rezoning is made in terms of
ss 16 and 17 of LUPO, which form part of Chapter II.
[11] Section 36 of LUPO reads thus:
’
36
Basis of refusal of applications and particulars applicable at
granting thereof
(1) 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).
(2) Where an application under
Chapter II or III is not refused by virtue of the matters referred to
in subsection (1) of this section,
regard shall be had, in
considering relevant particulars, to only the safety and welfare of
the members of the community concerned,
the preservation of the
natural and developed environment concerned or the effect of the
application on existing rights concerned
(with the exception of any
alleged right to protection against trade competition).’
[12] Section 39(2)(a)(i) provides that no person shall
contravene or fail to comply with provisions incorporated in a zoning
scheme
except in accordance with the intention of a plan for a
building as approved and to the extent that such plan has been
implemented.
In terms of s 46(1)(a) a contravention is a
criminal offence punishable by a fine not exceeding R10 000 or
imprisonment
not exceeding five years or both.
First ground of review
[13] Despite the numerous review grounds advanced in the
papers, Mr WG Burger SC, who appeared with Mr MV Combrink for Booth,
focused
his oral submissions on two points. He did not abandon the
other grounds but made no submissions in support of them. Mr Burger,
I should perhaps add, replaced Booth’s former lead counsel at a
relatively late stage. He was not a co-author of the heads
of
argument filed for Booth on 1 February 2013.
[14] The first ground which Mr Burger
developed was that the MEC had based his decision on the Land Use
Management Policy for Kenilworth
Main Road (Between Claremont &
Wynberg) and Kenilworth Road (‘the KRP’
1
).
Mr Burger submitted that the MEC had viewed the KRP not as a
guideline but as a rule to be followed and in so doing had failed
to
give proper attention to Booth’s appeal.
[15] The City adopted the KRP on 5 June 2007. In
formulating the KRP the City was assisted by CN de V Africa Urban &
Environmental
Planners, a firm of town planners. The adoption of the
KRP was preceded by a process of public participation.
[16] Kenilworth Road runs at a modest incline from the
east (Rosmead Avenue) to the north (Main Road). Roughly halfway up
Kenilworth
Road one reaches the southern suburbs railway line. The
railway crossing is controlled by booms which are closed during peak
hours.
Kenilworth Station is immediately to the south of the booms
(to the left as one travels up Kenilworth Road). Thomas Road (to the
south) and Harfield Road (to the north) run parallel with, and just
above (ie to the west of), the railway line.
[17] The KRP, in a section on the historical background,
stated that Kenilworth Road and the Kenilworth Main Road had faced
development
pressure for a long period. The local authority had
produced policy statements in 1992 and 1993 for these roads. Both
roads carried
high volumes of traffic, though Kenilworth Road was a
narrow street of residential proportions. The essence of the
1992/1993 policies
was that no further rezoning, temporary departures
or consents would be granted for Kenilworth Road properties. This was
so as
to ‘prevent further intrusions of business and
non-residential uses into the residential character of the area; to
prevent
increased traffic and parking problems; and to prevent the
removal of trees and vegetation from the kerbside for the purposes of
providing further parking’. Despite these policies, there
continued to be pressure for land use changes along Kenilworth
Main
Road and Kenilworth Road.
[18] The KRP then reviewed the current land uses in the
area. Kenilworth Road was said to operate as two distinct sections,
to the
east (below the line) and to the west (above the line). Above
the line (this is the stretch of Kenilworth Road on which the BFTs
property is situated) the land uses abutting the street were
‘predominantly residential in historic buildings’
(Victorian
and Edwardian). The ‘Arcadian appearance’ of
the street had survived to a large extent. There was only one block
of
flats (in contrast to Kenilworth Road below the line, where blocks
of flats were more numerous). The study done in preparing the
KRP
revealed that since the drafting of the 1992 policy the number of
properties used for non-residential purposes had actually
declined,
suggesting that this part of Kenilworth Road remained highly
desirable for residential purposes. Although applications for land
use changes had been received (often in an attempt to regularise
unlawful use), the local authority had, generally speaking and
in
line with previous policies, not supported the conversion of
properties to non-residential use.
[19] The matters primarily considered in formulating the
KRP were identified in section 5.1 as being:
[a] loss of well-located housing stock (demand for
residential accommodation was high and the erosion of housing stock
should be
avoided);
[b] impacts on the residential character of the area
(the protection and enhancement of the unique residential character
of the
residential sections of the roads was of great importance –
the illegal use of the BFT’s property was cited as one of
two
specific examples of the adverse effects of unlawful use);
[c] impacts on heritage concerns;
[d] impacts on surrounding properties (for example noise
and odours and the absence of people on the property outside of
working
hours, with resultant security concerns – ‘decreased
surveillance’);
[e] impacts on the existing business areas (the existing
business nodes were recognised as being of great importance, and
changes
to business use outside of these areas could contribute to
decline within the business nodes, resulting in urban blight [for
example,
because people within the business nodes relocate into
residential areas – reference was made to a recent article on
this
phenomenon which spoke of ‘a frenzy of decentralization,
aided in part by reckless rezoning’]);
[f] impacts relating to increased traffic, parking and
noise;
[g] cumulative impact and precedent.
[20] The ‘vision’ for the area was set out
in section 5.2 of the KRP. The first two components of the
vision were
the following:
‘
1)
Encourage the intensification of residential activities on Main road
between the Wynberg CBD, the Kenilworth Village node and
the
Claremont CBD.
2) Re-affirm Kenilworth Road as
an historic mixed use strip restoring its landscape quality,
retaining residential uses and considering
non residential uses
compatible with and appropriate in residential zones. Uses which are
not directly supportive of residential
activities should move to the
proposed Kenilworth Village node, or the Claremont and Wynberg CBDs.’
[21] The policies for the relevant parts of the Main
Road, for the Kenilworth Village Node (the precinct around the
intersections
of Kenilworth Road and Summerley Road with the Main
Road) and for Kenilworth Road itself were then set out in sections
5.3 to 5.5.
The policy for Kenilworth Road, which is the area
relevant in present case, was stated to be the following:
‘
KR1
For
land use planning purposes Kenilworth Road shall consist of two
sections and two nodes between Main Road and Rosmead Avenue.
One node
is at the intersection of Kenilworth and Main Road. The other is
between the railway line and Wessels Road.
KR2
Non residential and residential activities, with residential located above the
commercial
or retail uses, should be concentrated on these nodes.
KR3
No further
applications for non-residential uses should be supported outside the
nodes except for the following:
Home industries (i.e. work from home in the context described in the Zoning
Scheme Regulations);
Guest
houses and bed & breakfast establishments;
Places of instruction (from crèches to language schools) and community residential
buildings (ie orphanages, home
for the aged, vagrants, battered women, or for indigent,
handicapped or disabled people, or people otherwise socially or
physically disadvantaged)
in the Zoning Scheme Regulations.
Note: Many of these
activities can operate in terms of existing rights. Where
applications are required they will be evaluated in
terms of, inter
alia, compatibility with the existing residential environment.
KR4
Residential
densification – by means of subdivisions, second dwellings
(“granny flats”), double dwelling houses
and rezonings to
General Residential to permit blocks of flats – is supported.
Any such application will need to be appropriate
and evaluated by
Council in terms of the impact and on its own merit.
KR5
No temporary
departures are to be permitted, unless in exceptional circumstances
and where the proposed activity is genuinely of
the temporary
nature.’
[22] In advancing his argument, Mr Burger referred to
the way in which the KRP had featured in the MEC’s reasons for
his refusal
of the appeal and in the departmental report authored by
Mr Andre Lombard, to which report the MEC had paid regard in reaching
his decision.
[23] The relevant part of the Departmental report is
section 10.2, which contained in summary the following ‘planning
comments’:
[a] The precinct in which the BFTs property was situated
was still ‘residential in nature’, though this character
could
not be described as rustic or quiet, given the traffic carried
by Kenilworth Road.
[b] The difficulty in evaluating land use applications
‘on an
ad hoc
basis’ was one of the main reasons
why the City had adopted the KRP, the purpose of which was to ‘give
guidance’
in regard to future development in the area. Booth
was entitled to give his opinion as to what policy should apply.
However, the
KRP was a ‘coherent set of guidelines’ for
the area and might not align with Booth’s views. Booth’s
argument
that his property should be included in an abutting
developmental node, an argument that ‘ignored’ the
principles,
concepts and guidelines in the KRP, was ‘totally
unacceptable’: ‘Until such time as the need is felt that
this
policy document should be updated, the policy should be adhered
to.’
[c] Section 36 of LUPO utilized the criterion of
‘desirability’. Many of Booth’s arguments were not
based
on this criterion (for example, procedural complaints that a
particular planning report had not been shown to him or that a
particular
person should not have been heard in opposition to the
rezoning).
[d] Booth’s unlawful use had dragged on for 16
years. He should have realized that following the lapse of the
two-year departure
a fresh application for rezoning would not be
entertained – the view of the authorities as to the lack of
desirability should
have been clear to him from the limited departure
granted in December 2005.
[24] In his letter of reasons the MEC
stated that the reasons he was giving were ‘essentially a
summary of’ the content
of the departmental report. He stated
that he accepted and supported the departmental recommendation. He
was of the opinion that
the ‘proposed development’ of the
property was undesirable. (The quoted phrase was attacked in Booth’s
founding
affidavit as indicating that the MEC had misapprehended the
nature of the rezoning application. The MEC explained in answer that
this was the standard phrase used in respect of rezoning.
2
In this context, he was simply
referring to the use which Booth wished to regularize, namely the use
of the property for a law practice.)
[25] The MEC proceeded to state that he had dismissed
the appeal for reasons he summarized as follows:
[a] He stated that the precinct was ‘predominantly
residential’ in nature and should be preserved and protected as
such.
He did not support Booth’s contention that the property
and the abutting area were ‘in a transitional precinct which
is
reflecting a change in character’.
[b] The MEC largely repeated what the departmental
report said about the guidance afforded by the KRP, Booth’s
right to state
his view and the unacceptability of Booth’s
argument that his property should be included in an abutting
developmental node.
The MEC said: ‘Although the applicant’s
views were considered and evaluated, [the KRP] should be adhered to,
until
such time as the need is felt that this important policy
document should be updated or amended.’
[c] Regarding the desirability criterion in s 36 of
LUPO, the MEC said that Booth ‘could not sufficiently
demonstrate
that there is not a lack of desirability’, instead
relying on unrelated procedural complaints.
[d] The MEC stated, in summary, that he had refused the
appeal as it ‘contradicted’ the City’s vision for
the
area as contained in the KRP, namely a vision of maintaining the
residential character of the area. He could not find a convincing
motivation in the appeal to support the rezoning.
[26] The MEC did not, in his letter of reasons, repeat
what the departmental report had said concerning the long history of
unlawful
use.
[27] Since the MEC stated that his letter was a summary
of the departmental report, I do not think a close comparison of the
different
formulations in the two documents is warranted. The
differences appear to me to be minor in nature. The MEC in essence
adopted
the reasoning in the departmental report. If there is a
reviewable flaw in the departmental report, it would taint the MEC’s
reasons. If there is no such reviewable flaw in the departmental
report, there is nothing in the MEC’s summary of his reasons
which would justify a conclusion that he, unlike the authors of the
departmental report, committed a reviewable error.
[28] Blind or rigid adherence to
pre-existing policy was, in our common law of review, viewed as a
circumstance showing that the
decision-maker had failed properly to
exercise the discretion vested in him by the empowering provision.
This ground of review
is not expressly enumerated in PAJA but could
be accommodated, depending on the circumstances, under s 6(2)(e)(iii)
(taking
into account an irrelevant consideration), s 6(2)(f)(ii)
(absence of rational connection between the decision and the purpose
for which it was taken
3
)
or s 6(2)(i) (action that is ‘otherwise unconstitutional
or unlawful’).
4
[29] The formulation and adoption of
policy documents, particularly after a process of public
participation and with external expert
assistance, is a valuable tool
of government.
5
This is especially true in the sphere
of land use and planning. A properly researched and formulated policy
aids rational, coherent
and consistent decision-making. It provides a
large measure of useful predictability to the public. It avoids the
need for time-consuming
investigations into the history and character
of an area each time a planning application is made –
‘reinventing the
wheel’ as Prof Hoexter puts it.
6
In
Kemp
NO v Van Wyk
2005
(6) SA 519
(SCA) Nugent JA summarised the position thus (para 1):
‘
A
public official who is vested with a discretion must exercise it with
an open mind but not necessarily a mind that is untrammelled
by
existing principles or policy… [G]enerally, there can be no
objection to an official exercising a discretion in accordance
with
an existing policy if he or she is independently satisfied that the
policy is appropriate to the circumstances of the particular
case.
What is required is only that he or she does not elevate principles
or policies into rules that are considered to be binding,
with the
result that no discretion is exercised at all.’
[30] The adoption of the KRP and its use by the City
(and on appeal by the MEC) should thus not be viewed with distrust.
It was
legitimate for the City to adopt the KRP and it was entirely
proper for the City (and for the MEC on appeal) in general to apply
the KRP. A policy would not be of much use if it was not generally
applied. One cannot infer, from the fact that the KRP was applied,
that the decision-maker was not aware of his discretion and of his
duty to consider the circumstances of the case. Compliance with,
rather than departure from, the KRP is what one would generally
expect.
[31] The departmental report, and the MEC in agreement
with that report, considered that the precinct in which the property
is situated
was residential in character and that it was desirable to
preserve that character. This was a view in keeping with, and
probably
inspired by, the KRP. The department and the MEC were
evidently satisfied that the policy was appropriate to the
circumstances
of the case. The department and the MEC criticized
Booth’s contentions not on the mere basis that Booth was
seeking something
not exactly in line with the KRP but because
Booth’s contentions (so they believed) disregarded the KRP and
the value of
the guidance it afforded.
[32] An applicant seeking a
favourable decision which departs from a known policy may, while
acknowledging the value of the policy,
explain why a departure in his
particular case should be allowed and why the overall objectives of
the policy will not thereby
be impaired. In such a case the
decision-maker must consider whether there are any circumstances
which render the application of
the policy to the applicant’s
particular case undesirable or improper
7
or, to express the same essential
point differently, which makes the applicant’s case an
exceptional one.
8
In
Britten
& Others v Pope supra
Innes
CJ put the matter thus in relation to a decision by a statutory
committee relating to the acquisition of retail liquor interests
by
liquor wholesalers (at 158-159, my underlining):
‘
[T]he
Committee adopted the general view that, save under special
circumstances, companies of the class referred to, should not
be
allowed to acquire the ownership of retail businesses because it
tended to promote monopolies and other abuses. They did not
exclude
such companies from the acquisition of retail interests, but they
regarded their applications with disfavour,
and
only consented if, upon investigation, special circumstances in
support were found to exist
.
Such an attitude was not, in my judgment, illegal or improper. It
certainly involved the exercise of discretion in each instance;
and
if it imposed a fetter upon that discretion (whatever that may mean),
so in varying degree, would every application of general
principles
to the facts of a particular case. Yet it could surely not be
contended that each set of facts should be considered
without
reference to policy or principle lest the resulting decision should
be invalidated.’
[33] It is a very different matter to make an
application which disregards the policy or attacks it as a bad
policy, which is what
Booth did. In the latter situation it is, in my
view, a permissible response for the decision-maker to say that since
he regards
the policy as sound, a proposed use which disregards its
values and vision is undesirable. I think it is acceptable for a
decision-maker
to reason that
prima facie
a land use which is
inconsistent with the policy is undesirable, since the policy itself
set out to determine, for consistent future
land use planning, what
is and is not desirable for the area. Of course, if the applicant
nevertheless puts up something to show
that there are particular
reasons why the policy should not be applied to his case, those must
still be considered. (In the present
case Booth’s motivation in
support of the rezoning alleged that the whole of Kenilworth Road,
from the Main Road down to
Rosmead Avenue, was ‘literally full
of business premises’ (which he listed), that Kenilworth Road
had ‘clearly
become business orientated’ and that the KRP
was ‘outdated as it refers to a situation that existed years
ago and has
not kept abreast of developments in and along Kenilworth
Road’. In response to objections Booth then contended that the
KRP
should be amended by extending the business node which existed
immediately below the line down to Wessels Road so as to include
the
properties above the line up to Greenfield and Richmond Roads, with
the new portion of the business node being reserved for
‘low
impact medical and office uses’. Accordingly, Mr Burger’s
submission that Booth wanted his rezoning application
considered and
was not asking for the KRP to be reviewed is not accurate. Booth’s
motivation involved an attack on the content
of the KRP.)
[34] In
Kemp NO supra
Nugent JA (in para 10)
cited with approval the following passage from
R v Port of London
Authority; Ex parte Kynoch Ltd
[1919] 1 KB 176
(at 184, my
underlining):
‘
There
are on the one hand cases where a tribunal in the honest exercise of
its discretion has adopted a policy, and, without refusing
to hear an
applicant, intimates to him what its policy is, and that after
hearing him it will in accordance with its policy decide
against him,
unless
there is something exceptional in his case
…(I)f
the policy has been adopted for reasons which the tribunal may
legitimately entertain, no objection can be taken to
such a course.
On the other hand there are cases where a tribunal has passed a rule,
or come to a determination, not to hear any
application of a
particular character by whomsoever made. There is a wide distinction
between these two classes.’
[35] The MEC’s approach in the
present case was, in my view a legitimate one. Although the KRP was a
policy which the City
as the primary decision-maker in this field had
adopted, the MEC regarded the policy as a sound one. It was right,
furthermore,
that he should display a measure of deference to the
City’s policy, since municipal planning is a municipal rather
than a
provincial executive competency
(see
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal & Others
2010 (6) SA 182
(CC) paras 49-57). He was satisfied that the
stretch of Kenilworth Road in which the BFT’s property is
located was of a residential
character and that this character should
be preserved in line with the KRP. Booth had, in the MEC’s
view, put up nothing
convincing to show that the KRP should not be
applied to his application. The MEC did not refuse to entertain the
appeal, just
as the City had not refused to entertain the
application; he indeed exercise his discretion, albeit by applying
the guidance afforded
by a policy he regarded as sound and by finding
that there was nothing exceptional in Booth’s application to
warrant a departure
from the policy.
[36] I have thus far confined myself to the facts as
they appear from the departmental report and the MEC’s
statement of reasons.
The MEC in his answering affidavit denied that
he had applied the KRP as a fixed rule or legal prescript, stating
that he had taken
it into account as a relevant consideration. He
also stated that he considered all the material produced as part of
the rule 53
record. While assertions of this kind might in other
circumstances be shown to be incompatible with the contemporaneous
documents,
it will be clear that I do not regard the present matter
to be such a case.
[37] In developing this part of the case Mr Burger also
submitted that the MEC’s reasons did not suggest that WBA’s
proposed use of the property was visually unacceptable, ie that the
property’s external appearance would impair the residential
atmosphere of the precinct. The MEC, so Mr Burger argued, condemned
the application on the ‘abstract’ or ‘conceptual’
basis that business use should not be allowed because this is what
the KRP said. I do not agree with this criticism.
[38] Firstly, the business use of
premises inevitably has some visual effect, even if it is not
substantial. There would usually
be (as there is in WBA’s case)
a signboard. The property frontage would be adapted to accommodate
parking (for example, there
are seven bays on WBA’s premises).
It would normally be obvious that the premises are not in fact being
used as a residence
and that they will thus be unoccupied at night.
This inevitably affects the residential character of an area,
particularly if it
occurs on a large scale. The effect on the area of
a change in use of a single property may be minor but it would be
impossible
to achieve the objective of preserving the residential
character of an area if it were not permissible to block each such
proposed
change in use, since the approval of
ad
hoc
separate applications would have a
cumulative effect of degrading the residential character of the area.
This type of thinking clearly
forms part of the KRP and was mentioned
in the departmental report as one of the City’s concerns (see
paras 6.3 and 6.4).
The fact that the MEC followed the guidance of
the KRP and thought it desirable to retain the residential character
of the area
does not mean that his objection to Booth’s
application was at a purely abstract or conceptual level.
[39] Second, Booth was seeking to have the property
rezoned as Special Business Use, which is a zoning permitting a wide
range of
activities including retail trade, café, restaurant,
bar or laundrette. The rezoning would be permanent. These were points
highlighted by the MEC in his answering affidavit. It is true that in
terms of s 42 conditions could be imposed by which some
uses
could perhaps be prevented. However, I doubt whether conditions under
s 42 were intended as a means whereby practically
everything
permitted by the requested zoning would be prohibited. The need to
qualify the decision so drastically would tend to
confirm that the
proposed rezoning is undesirable. Even conditions which restricted
the use of the property to use as a law practice
would not ensure
that the future use of the property had the exact character of WBA’s
current practice. The short point is
that a rezoning is not a
decision which merely permits what an applicant currently wishes to
do. The assessment of the rezoning
application can thus legitimately
take into account the notional impacts of activities which will be
permitted by the rezoning,
even though they are not impacts of what
the specific applicant for rezoning currently has in mind.
[40] The first ground of attack thus fails.
The second ground: wrong onus placed on Booth
[41] Mr Burger’s second contention was that the
MEC had misconstrued s 36 of LUPO and thus incorrectly put a
wrong onus
on Booth. He argued that the MEC had approached the case
on the footing that Booth could only succeed by proving that the
rezoning
would be positively desirable whereas the MEC could only
refuse the application if he found it to be positively undesirable.
Two
questions arise in this regard: [a] In law, what is the test
which s 36 imposes in the adjudication of a rezoning
application?
[b] If the test is as Mr Burger contends, did the MEC in
fact apply the wrong test.
[42] Mr Newdigate SC for the MEC submitted that Mr
Burger’s second ground was not open to him on the papers as the
point had
not been taken in the founding or even in the replying
affidavit. I may add that the point was not even mentioned in the
heads
of argument filed by Mr Burgers’’ predecessor. I
think Mr Newdigate’s contention is sound: the MEC was simply
not called upon to meet a case that he had misconstrued s 36(1)
in the way contended for by Mr Burger. Nevertheless, and in
case the
point is open to him, I shall address it on its merits.
[43] On the first of the questions I have mentioned, Mr
Burger recognised that he needed to confront what HJ Erasmus AJ (as
he then
was) said in
Hayes & Another v Minister of Finance and
Development Planning, Western Cape, & Others
2003 (4) SA 598
(C). At 624J-625A the learned judge said the following with reference
to s 36(1) of LUPO:
‘
The
test of desirability is conclusive – in terms of s 36(1) a
departure application “shall be refused solely on
the basis of
a lack of desirability”. Though the test is phrased in the
negative, it lays down a positive test: the test
is a presence of a
positive advantage which will be served by granting the application.’
This passage was quoted with apparent approval in
Lagoon
Bay Lifestyle Estate (Pty) Ltd v Minister of Local Government,
Environmental Affairs and Development Planning of the Western
Cape &
Others
[2011] 4 All SA 270
(WCC) (paras
22-23).
[44] Mr Burger submitted, without elaboration, that the
passage I have quoted from
Hayes
was not part of the
ratio
.
In the alternative, and more forcefully, he argued that
Hayes
was
clearly wrong and that I should not follow it.
[45] Section 36 as a whole, which applies to
applications for departures and rezoning (under Chapter II) and
applications for subdivision
(under Chapter III), is not easy to
construe. Among the aspects creating ambiguity are the phrase ‘shall
be refused solely
on the basis of’ in s 36(1) and the
phrase ‘in considering the relevant particulars’ in
s 36(2). One
might read s 36(1) as compelling the
decision-maker to refuse the application if there is a lack of
desirability or an adverse
effect on existing rights, with s 36(2)
setting out the further bases on which a discretionary assessment of
the refusal or
grant of the application must be adjudicated. On this
reading, s 36(1) sets out mandatory grounds of refusal while
s 36(2)
sets out discretionary grounds if the application does
not fail at the first hurdle. There are several difficulties with
this interpretation.
Firstly, such a view would surely require the
grounds in s 36(1) and s 36(2) to be different (since
otherwise there would
always be a refusal under s 36(1)) yet
there is an almost complete overlap between the grounds specified in
s 36(1) and
s 36(2): the safety and welfare of the
community and the preservation of the natural and developed
environment (the factors
mentioned in s 36(2)) are surely at the
heart of a desirability assessment (the criterion mentioned in
s 36(1)); while
effect on existing rights features in both
sub-sections. Second, the criteria of desirability and effect on
existing rights are
too general and varying in their intensity to
serve as a sensible basis for mandatory refusal. Third, a reading of
s 36(1)
as laying down mandatory grounds of refusal is
incompatible with the Afrikaans text, which states that applications
under Chapters
II and III ‘mag slegs op grond van…’
[46] The section as a whole thus make more sense if
s 36(1) is read as providing that the only grounds on which an
application
may be refused (though refusal is not mandatory in these
circumstances) are lack of desirability and effect of existing
rights,
with s 36(2) then meaning that if the application is not
refused (but instead granted), the terms of approval (for example,
the extent and duration of a permitted departure or the conditions
imposed under s 42 in respect of a departure or rezoning
or the
detailed content of a subdivision decision) must take into account
only the matters specified in s 36(2) (which are
in essence,
once again, matters going to desirability and effect on existing
rights). It must be conceded that s 36(2) does
not expressly
state that it is dealing with the case where an application is
approved, and the phrase ‘in considering the
relevant
particulars’ is hardly the most natural way to refer to the
conditions or terms of an approval. Nevertheless, the
overlap between
the criteria in s 36(1) and s 36(2) and the other matters I
have mentioned make it difficult to avoid
the conclusion that in
context s 36(2) is dealing with the case where the
decision-maker has decided not to refuse the application
but to grant
it.
[47] Be that as it may, and whatever s 36(2) may
mean, I do not think the purpose of s 36(1) is to compel a
refusal of
the application if certain prescribed circumstances exist.
The function of s 36(1), in my view, is to make lack of
desirability
and effect on existing rights the only bases on which a
decision-maker may refuse an application. He is not compelled to
refuse
an application merely because there is some element of
undesirability or some adverse effect on existing rights –
whether,
with reference to these criteria, the application should be
refused or granted is a matter for the decision-maker’s
judgment
and discretion. But what he may not do is refuse the
application with reference to any other criteria.
[48] Since the purpose of s 36(1) is to identify
the relevant criteria which the decision-maker may take into account
in deciding
whether to refuse an application, the decision-maker acts
lawfully provided his decision to refuse or allow the application is
based on desirability and effect on existing rights. I respectfully
doubt whether the abstract noun ‘desirability’ and
the
phrase ‘lack of desirability’ are apt concepts to which
to apply an onus or a distinction between a positive or
negative
test. If the decision-maker finds that a rezoning would bring about
certain identifiable disadvantages, he could naturally
find a lack of
desirability. But the same is true if he finds that, while there are
no identifiable disadvantages, there are also
no identifiable
advantages; in that situation the element of desirability (positive
advantage) is lacking – a ‘lack
of desirability’. I
think this latter form of ‘lack of desirability’ is what
the learned judge had in mind in
Hayes
. I would, though, with
respect differ from him to the extent that his judgment implies that
the decision-maker cannot grant an
application unless the applicant
establishes a positive advantage. He
may
refuse it on that
basis but whether a lack of desirability in this form (absence of
positive advantage) should lead to refusal
is a matter for the
decision-maker’s judgment and discretion on the facts of the
particular case.
[49] I thus reject Mr Burger’s argument that the
MEC could only have dismissed the appeal if he found that the
rezoning would
bring about identifiable disadvantages. I would agree
with him, though, that the MEC would have committed a reviewable
error of
law if he had interpreted s 36(1) as meaning that he
could not uphold the appeal (ie grant the rezoning) unless the
applicant
could establish positive advantage from the grant of the
application. To the extent that
Hayes
held otherwise, I think
it was clearly wrong.
[50] The second question is a factual one, namely
whether the MEC based his decision on the wrong legal view that he
could not uphold
the appeal unless Booth had established that the
rezoning would bring about positive advantages. I have already
mentioned that
the MEC was not called upon in his affidavit to answer
a contention that he had committed such an error. The question is
whether
his statement of reasons or his affidavit nevertheless show
that he did base his decision on a wrong interpretation of s 36(1).
[51] Mr Burger relied on the statement in para 4.3 of
the MEC’s reasons that Booth ‘could not sufficiently
demonstrate
that there is not a lack of desirability’ and on
statements in paras 10 and 53 of the MEC’s answering affidavit
that
the zoning application and appeal did not contain anything which
persuaded the MEC that the contemplated utilisation, which was
not in
keeping with the current residential character of the area, would be
desirable. These passages are altogether insufficient
to make good Mr
Burger’s criticism of the MEC. The relevant statements need to
be read in the context of the MEC’s
reasons as a whole and his
affidavit as a whole. I have already summarised the letter of
reasons. Its tenor is that the MEC found
the proposed use to be
undesirable since it would involve the business use of property in a
precinct where it was desirable to
maintain the residential character
of the area in line with the KRP; and that Booth had not put up
anything convincing, in relation
to the desirability criterion, to
show why this conclusion should not stand. Overall, the finding made
by the MEC was that the
proposed use was positively undesirable, a
finding influenced by his acceptance of the KRP as an appropriate
guide. The authorities
mentioned in paras 32–34 above show that
this was a permissible line of reasoning.
[52] The MEC’s answering affidavit is similar in
its overall tenor. This is clear when one reads para 10 in the
context of
paras 8 and 9; and para 53 in the context of paras 46-52.
[53] I thus reject Mr Burger’s second ground.
Other grounds of review
[54] I do not think it is required of a court to spend
much time on contentions which a party declines to press in oral
argument.
I shall, however, deal briefly with a theme which occurs
throughout Booth’s papers, namely that the MEC was wrong to
consider
that the relevant part of Kenilworth was predominantly
residential in character and that the MEC in particular had acted
irrationally
in rejecting Booth’s appeal in circumstances where
there were a number of business, particularly medical and health care
practices, operating in the area whose negative impact on the
residential character of the area were no less, and probably more,
than the impact of WBA’s two-man law firm.
[55] As to the residential character of the area, this
was the characterisation contained in the KRP and it was confirmed by
the
City’s PGAC in a site visit conducted on 14 July 2010 and
during a site visit by the department’s Mr Lombard on 10 June
2011 for purposes of the report to be placed before the MEC (see para
10.2.1 of the report). The departmental report went into
this
question at some length. Mr Lombard in the current proceedings made
an affidavit in which he confirmed his professional opinion
as being
that the area is predominantly residential character. This is not a
question of ‘hard fact’ which one could
impeach (as
Booth’s affidavits sought to do) as a material mistake of fact
in line with
Pepcor Retirement Fund & Another v Financial
Services Board & Another
2003 (6) SA 38
(SCA). It was a
matter of judgment. The view espoused by the KRP, the City and the
MEC was one to which they could properly have
come.
[56] The medical and health care practices in the area
fall into two categories: [a] the residential care facilities at
Kenilworth
Clinic (a 60-bed facility for persons with psychiatric and
psychological disorders) and Kenilworth House (a drug rehabilitation
clinic); [b] non-residential medical and dental practices. These
facilities are on properties zoned as General Residential. The
zoning
scheme permits, as a consent use of properties so zoned, their use as
‘Institutions’. An ‘Institution’
is defined
as including ‘a hospital, nursing home and a Clinic’. A
‘Clinic’ is defined as meaning ‘a
building or
portion thereof, not being a hospital or nursing home which is used
for psychiatric, dental, medical, veterinary or
other similar form of
consultation, examination or treatment’. The various facilities
to which Booth points have obtained
the requisite consent uses. The
MEC’s view as expressed in his answering affidavit is that
these do not detract from the
residential character of the area and
do not require a change in zoning (which is permanent and permits a
wide variety of business
uses and which would not be confined to a
two-man law firm such as WBA).
[57] I am inclined to agree with Booth that the use of a
house as a medical practice or dental surgery (where the
practitioners
do not also use the house as their home) is unlikely to
have a lesser impact on the surrounding area than a small law firm in
regard
to noise, traffic, parking and visual appearance. However, the
zoning scheme’s thinking, in allowing such practices to
function
as a consent use of General Residential zoning, is
presumably that these practices serve their immediate communities and
are not
out of place in the heart of residential areas. People,
particularly families with children, tend to consult doctors and
dentists
who are located near where they live. Since consent use is
needed before a residential property may be so used, the local
authority
retains a significant element of control and oversight: the
number of such practices may be limited, the extent of the consent
may be circumscribed, and the consent is presumably temporary,
revocable and personal. Other forms of commercial activity are viewed
by the zoning scheme in a different light and can only be conducted
if the property is rezoned. This is a rational distinction
which the
scheme is entitled to draw. For example, WBA’s law practice is
most unlikely to draw its clientele from Kenilworth
and its immediate
environs.
[58] I may add that it is by no means clear to me that
there are numerous medical practices in the residential precinct of
the area
under consideration in this application (ie above the line).
The largest practice seems to be Knighton Surgery, which is just
below
the Main Road on a property zoned Special Business. As far as I
can tell from figure 5.2 of the KRP, this property is located in
the
proposed Kenilworth Village Node, which is one of the two nodes in
which certain types of non-residential use were in terms
of the KRP
to be supported. There is a physiotherapist apparently practising in
Murray Road (which runs parallel with Kenilworth
Road on the north
side) but the evidence does not show that the practitioner does not
also reside at the house (work-from-home
use is one of the business
uses which was, as an exception, to be permitted in terms of the KRP
and is in any event also permitted
under certain conditions in terms
of clause 22 of the zoning scheme). The only relevant practice above
the line seems to be the
dental practice of Dr Hefer on Erf 64401,
which looks onto Harfield Road and the railway line.
[59] Kenilworth Clinic and Kenilworth House are
facilities where patients reside temporarily. While Kenilworth Clinic
in particular
is a substantial operation, the fact is that the
property is used for the care of residential patients and this is a
use expressly
contemplated by the zoning scheme as a consent use for
properties zoned General Residential. The MEC stated in his affidavit
that
he did not regard Kenilworth Clinic as detracting from the
residential character of the area. I may add that the extensive
building
housing Kenilworth Clinic has existed for very many years.
Its lawful use as a residential psychiatric facility predated the
formulation
of the KRP. The KRP was anxious to avoid further
degradation of the residential character of the area. One should not
assume, from
the fact that Kenilworth Clinic exists, that this use
would necessarily be approved now (subsequent to the adoption of the
KRP)
if the property were currently used as a private residence.
[60] Booth gives other examples of non-residential use.
Some, like the two properties he mentions in Braeside Road, are too
distant
to bear on the residential character of Kenilworth Road.
Others are below the railway line. The shop Art of Glass is part of
Kenilworth
Station (it is in a building which used to form part of
the station). At least one of Booth’s examples above the line
(the
financial services business just below Knighton Surgery) is an
unlawful use. The guest houses he mentions (only one is on Kenilworth
Road, the other two on Cumnor Avenue are some distance away) are of a
different character, being essentially residential in nature,
with
the owners in all probability also residing on the properties. It is
unsurprising that the KRP permits use as a guest house
or bed and
breakfast establishment as an exception to the general policy of not
supporting further business intrusion into the
residential precinct
of Kenilworth Road.
[61] I thus do not consider that the MEC committed a
reviewable irregularity in his assessment of the character of the
area or in
declining to treat Booth’s rezoning on the same
footing as a medical practice.
Conclusion on the review
[62] It follows for all the above reasons that the
review application fails.
The interdict application
[63] Mr Burger conceded that if the review failed there
was no defence to the interdict application.
[64] I raised with counsel the question whether the
operation of the interdict could and should be suspended for a short
period
to prevent prejudice to WBA’s clients. No request for a
suspension (if the review were to fail) was made by Booth in his
affidavits and no facts to support a suspension were put up. I
nevertheless think that common sense dictates that some prejudice
to
WBA’s clients would inevitably be caused if, from the moment my
order is made, the property could no longer be used as
a law practice
except on pain of a finding of contempt. Consultations and other
preparations for pending cases could be seriously
jeopardised. Mr
Burger suggested a suspension of two to three months.
[65] Mr A Katz SC, who appeared with Ms M O’Sullivan
for the City, submitted that because the use of the property contrary
to its zoning is a criminal offence in terms of s 39(2) read
with s 46(1)(a) of LUPO I did not have the power to suspend
the
operation of the interdict (even if the review succeeded). He cited
as authority for this view the judgment of Fourie J in
Bitou
Municipality v Timber Two Processors CC and Another
2009 (5) SA
618
(C) paras 32-33 but drew my attention to the contrary opinion of
Binns-Ward J in
410 Voortrekker Road Property Holdings CC v
Minister of Home Affairs
[2010] 4 All SA 414
(WCC) paras 43-49.
It so happens that the view expressed in the latter case accords with
my own more briefly stated conclusion
in
Intercape Ferreira
Mainliner (Pty) Ltd & Others v Minister of Home Affairs &
Others
2010 (5) SA 367
(WCC) para 184 (the
Bitou
case had
not yet been reported and it was not addressed in my judgment).
Fortified by the fuller reasoning in
Voortrekker Road
, I
remain of the view that there is the power to suspend an interdict,
even where the conduct in question is criminalised. I do
not think
that the criminalisation of the conduct detracts from the
jurisdiction to suspend though it may affect its exercise.
Even where
the unlawful conduct forming the basis of an interdict has been
criminalised, the court granting an interdict in civil
proceedings is
not determining that the respondent has committed a criminal offence.
The court deals with the matter in its civil
aspect only. Notionally
a respondent might be found to have committed a civil wrong and yet
escape a criminal conviction (because
of the higher burden of proof,
the issue of
mens rea
and so forth). A court which grants a
civil interdict but suspends the order no more condones the
potentially criminal conduct
than it does the civil wrong. The court
merely refrains from adding the immediate risk of contempt and
judicial execution in recognition
of the practical difficulty the
respondent may face in effecting immediate compliance or the harm
which may be suffered by third
parties.
[66] In the present case, and in the absence of evidence
on the matter from Booth, I do not believe a suspension of more than
one
month is needed to prevent serious harm to WBA’s clients.
Booth has been practising in unlawful breach of the zoning scheme
for
many years. He should not have put his firm and his clients in the
position they now find themselves. Having done so, he should
at least
have made some contingency plan in the event of the court finding
against him. He will need urgently to find other premises,
at least
as a temporary arrangement pending permanent relocation to another
site.
Conclusion and order
[67] The MEC is entitled to his costs in the review. The
City is entitled to its costs in both the review and the interdict.
In
regard to the review, Booth asked in his application that the
MEC’s decision be substituted with a decision granting the
rezoning. Although the City defended its refusal of the rezoning and
the MEC’s dismissal of Booth’s appeal on the merits,
its
primary reason for asking to be joined was to oppose the substitution
order which it saw as impermissible unless the City’s
decision
to refuse the rezoning was also attacked and set aside. It was only
in oral argument before me that Booth through counsel
abandoned the
request for a substitution order. In the interdict proceedings the
City asked for costs on an attorney and client
scale. While Booth’s
conduct in disregarding the zoning restrictions for so long is to be
deprecated, his conduct in the
current litigation has not been such
as to warrant a special costs order.
[68] I thus make the following order
In case 2046/12 (the review):
[a] The application is dismissed.
[b] The applicant shall pay the costs of the
respondents, in each case including the costs of two counsel.
In case 22990/11 (the interdict):
[a] It is declared that the operation of the attorney’s
practice that trades under the name and title of William Booth
Attorneys
on Erf 64403 Kenilworth, also known as 29 Kenilworth Road
Kenilworth (‘the property’), is in contravention of the
Municipality
of Cape Town Zoning Scheme Regulations (‘the
zoning scheme regulations’) and s 39(2) of the Land Use
Planning
Ordinance 15 of 1985 (‘LUPO’).
[b] It is declared that the use of the property for the
operation of the said attorney’s practice is in contravention
of the
zoning scheme regulations and LUPO and is unlawful.
[c] The respondents are interdicted and restrained from
using, or permitting the use of the property, or any portion thereof,
in
a manner which contravenes the General Residential use zone
applicable to the property and the provisions of LUPO.
[d] The order in para (c) is suspended for a period of
one month from the date of this order.
[e] The respondents shall jointly and severally be
responsible for paying the applicant’s costs, including the
costs of two
counsel. This shall include the costs of the appearances
on 12 December 2011 and 7 February 2012 which stood over for later
determination
______________________
ROGERS J
APPEARANCES
For Applicants in Case 2046/12
and
for Respondents in Case 22990/11 :
WG BURGER
SC (with MV COMBRINK)
Instructed by:
West & Rossouw Attorneys
Cape Town
For
First Respondent in Case 2046/12:
J
NEWDIGATE SC (with A DU TOIT)
Instructed by:
The State Attorney
Cape Town
For
Second Respondent in Case 2046/12 and for Applicant in Case
22990/11:
A KATZ SC (with M O’SULLIVAN)
Instructed by:
Fairbridges
Cape Town
1
In
the papers and in argument the parties used the more cumbersome
acronym ‘KRLUMP’.
2
The
rezoning application form requires the applicant to give a brief
description of ‘proposed development/intent of application’.
3
This
was the pigeon-hole used in
Foodcorp
(Pty) Ltd v Deputy Director-General, Department of Environmental
Affairs and Tourism & Others
2006
(2) SA 191
(SCA) para 10 and in
MEC for
Agriculture, Conservation, Environment and Land Affairs v Sasol Oil
(Pty) Ltd & Another
2006 (5) SA
483
(SCA) para 18.
4
Hoexter
Administrative Law in South Africa
2
nd
Ed at 319.
5
See,
for example,
Britten & Others v
Pope
1916 AD 150
at 158 (
per
Innes CJ) and at 172 (
per
De Villiers AJA) and the
Sasol
Oil
case
supra
para 19.
6
Hoexter
loc cit
at 319-320.
7
Johannesburg
Town Council v Norman Anstey & Co
1928 AD 335
at 342;
Pietermaritzburg City Council v Local Road
Transportation Board
1959 (2) SA 759
(N) at 774E-F.
8
See
Kemp NO v Van Wyk supra
paras
10.