Hout Bay & Llandudno Environment Conservation Group v Minister of Local Government, Environmental Affairs & Development Planning, Western Cape and Others (23827/2010) [2012] ZAWCHC 22 (22 March 2012)

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[2012] ZAWCHC 22
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Hout Bay & Llandudno Environment Conservation Group v Minister of Local Government, Environmental Affairs & Development Planning, Western Cape and Others (23827/2010) [2012] ZAWCHC 22 (22 March 2012)

IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE HIGH COURT, CAPE TOWN]
CASE NO. 23827/2010
REPORTARBLE
In the
matter between:
HOUT
BAY & LLANDUDNO ENVIRONMENT
CONSERVATION
GROUP
…...............................................................................................................
APPLICANT
And
MINISTER
OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS
& DEVELOPMENT PLANNING,
WESTERN
CAPE
….................................................................................................................
FIRST
RESPONDENT
HEAD
OF THE DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS & DEVELOPMENT
PLANNING
IN THE PROVINCIAL
ADMINISTRATION
OF THE WESTERN CAPE
…......................................................
SECOND
RESPONDENT
PREMIER
OF THE WESTERN CAPE
…...........................................................................
THIRD
RESPONDENT
CITY
OF CAPE TOWN
….................................................................................................
FOURTH
RESPONDENT
MINISTER
OF HUMAN SETTLEMENTS,
WESTERN
CAPE
…................................................................................................................
FIFTH
RESPONDENT
JUDGMENT DELIVERED
ONTHURSDAY, 22 MARCH 2012
DLODLO,
INTRODUCTION
[1] This application concerns
the lawfulness of planning approvals for the development of land on
the edges of the existing community
in Imizamo Yethu, Hout Bay. The
impugned approvals were purportedly granted by the First and Fifth
Respondents ("the Provincial
Ministers") in accordance with
various provisions of the
Less
Formal Township Establishment Act
113
of 1991 ("LEFTEA") and the
Land
Use Planning Ordinance
15
of 1985 ("LUPO"), and were conveyed to interested people in
a letter from the Second Respondent of 5 May 2010. The
impugned
planning approvals were sought by the Fourth Respondent ("the
City"), which owns the development land and is
the main
proponent of the development. The Applicant ("the ECG") is
an umbrella body representing a range of civic, ratepayers,
heritage
and environmental organisations in Imizamo Yethu and the greater Hout
Bay community. The ECG and its constituent organisations
(as I am
told) support the desperate need to appropriately develop and extend
Imizamo Yethu, so as to provide much needed housing,
community
services and schools. The ECG, however, opposes aspects of the
proposed development which are, according to it, both
inappropriate
and unlawful.
[2] That there is a pressing
need for further development of Imizamo Yethu to be undertaken
without further delay cannot be doubted
at all. The ECG asserts that
the land use authorisations obtained by the City in respect of the
development of Imizamo Yethu are
unlawful, and thus liable to be
reviewed and set aside. It asked the Court to review and set aside
the authorisations obtained
in respect of the entire proposed
development, on all three sites, on three grounds, namely:
"(a) The layout plan
envisages a "service road", with a width of 19.8 metres,
running parallel to Main Road, Hout
Bay. The alignment of this road
violates conditions attached to a pre-existing environmental
authorisation granted by the First
Respondent ("the Minister")
in April 2010 under the National Environmental Management Act 107 of
1998 ("NEMA").
The environmental authorisation was required
because the proposed development of IY will entail various activities
listed in terms
of NEMA. This environmental authorisation required
that the development had to accommodate a broad band of pine trees
between Main
Road and IY, and the remnants of the historic Kronendal
Furrow. The trees are the successors to those planted in the
seventeenth
century by early settlers and the VOC, and farmers in the
eighteenth and nineteenth centuries. The proposed road will decimate
these environmental and heritage resources, explicitly protected in
terms of the environmental authorisation.
(b) The environmental
authorisation provided for processes to shape the proposed
development including a specialist arbourculturalist
report. The
layout plan was however finalised before this took place. The
proposed development and all the permissible land uses
for every
square metre has thus been framed without any consideration of the
need to retain trees (as required by the environmental

authorisation). This cannot be corrected once an arbourculturalist's
report is eventually finalised.
(c) The applicable
development parameters were unlawfully imposed. In respect of land
parcel 7a in site 3 (which is subject to LUPO),
the rezoning and
departures were granted without complying with the requirements under
LUPO. In respect of land parcel 6a in site
1, the requirements of
LUPO were ignored completely (even though they should have been
applied). In respect of the rest of the
area regulated under LEFTEA
(but not yet subject to LUPO), the impugned decision introduced
development parameters which had not
been tested in a fair procedure
(as required in terms of PAJA)."
[3] In the alternative to the
above, the ECG contended that the Provincial authorities did not have
the constitutionally permissible
power to determine development
parameters for Imizamo Yethu. According to the ECG such development
parameters constitute an element
of
"municipal
planning"
in
terms of schedule 4B to the Constitution, and as such could only be
lawfully considered and imposed by the City. The application
is of
cause resisted by the Provincial Ministers and the City. Mr Borgstrom
(assisted by Ms Adhikari) appeared for ECG - whilst
Mr Farlam
(assisted by Ms Bawa) and Mr Budlender SC (assisted by Ms Van
Huyssteen) appeared for the Provincial Ministers and the
City
respectively.
BACKGROUND
FACTS
[4] When Imizamo Yethu was
established in February 1991, promises were made that services would
be supplied and that measures would
be put in place to avoid the
further
"influx"
of people into the
area. At first the community comprised 2000 people on 445 plots, on 8
hectares. They were promised title to their
properties and community
facilities. On 17 July 1992 the first 8 hectares were designated for
development under the
Black
Local Authorities Act
102
of 1982 and LEFTEA. On 25 September 1992 the area designated under
LEFTEA was extended to 21.5 hectares. This included what
is now site
1 and most of site 3. At this early stage the Hout Bay community was
promised that the
"stone
pine forest and other treed areas and existing screening"
would
remain. On 23 July 1993 the area designated under LEFTEA was extended
to 34 hectares, with the conditions that only 18 hectares
could be
developed for residential purposes; and that a layout plan had to be
submitted for approval for the imposition of land
usage controls.
This included what is now site 2. The imposition of these controls
was necessary as, under section 3(5) of LEFTEA,
normal planning laws
(including LUPO) did not apply.
[5] As indicated above, layout
plans were approved in 1993 and 1994 for the 18 hectare area which
could be developed for residential
purposes. No layout plan was
approved for the remaining 16 hectares of designated land. This
included the sites which the City
now seeks to develop. By 1997 there
were 1882 structures in Imizamo Yethu, many of which lacked basic
services. By January 2000
this had escalated to 2200 structures,
accommodating 2400 families; and in 2002 Imizamo Yethu accommodated
almost 16000 people.
In 2001-2002 the City attempted to take action
to interdict people from invading land outside of the 18 hectares of
land which
could be used for residential purposes. However, by 2004
the City indicated that it planned to allow the 16 hectares set aside
for non-residential use to be utilised as a
"relocation
site".
This
caused local community bodies in Imizamo Yethu and Hout Bay to seek
an interdict preventing the City from felling trees or
allowing
people to occupy the protected areas.
[6] By 2006 the Imizamo Yethu
community had grown to approximately 30000 people, with informal
dwellings in the buffer zones with
Hughenden and Penzance Estates,
and above Imizamo Yethu (known as Dontse Yakhe). These areas were
unserviced and resulted in pollution
and health hazards. In 2008 the
City counted 2083 informal structures in Imizamo Yethu. In order to
deal with the crisis, the IJR
process was initiated. By mid-2008 four
development options were presented to the Hout Bay community by the
City, proposing different
combinations of housing and community
facilities. Having received comment from the community, the City
presented a fifth option
("option 5") in late 2008. This
provided for 46 single residential units; 1000 apartments (of 40m
2
each). It included
a primary school but excluded a high school. Option 5 was considered
an unacceptable compromise. Of particular
relevance for the current
case, the plan retained a service road adjacent to Main Road leading
to an informal trading area and
taxi-rank. The Imizamo Yethu
community (led by SANCO, Hout Bay) favoured a circular drive leading
to the centre of the community.
A circular drive would not only
promote orderly traffic flow, but would avoid commuters having to
walk up and down the mountain
side to get to the taxi-rank. This
would also maintain the belt of trees along Main Road, as indeed
required by the applicable
environmental authorisation.
[7] In February 2009 the ECG and
other community organisations prepared an alternative plan, known as
option 6. In the same period
community organisations met with the
City's executive mayor (then Ald. Zille), who confirmed that the IJR
principles would be ratified
by the City's Council; everything would
be done to avoid losing trees; and lower densities would be
encouraged on sites 1 and 3.
Despite these indications that the City
took the consultative process seriously, in May 2009 the City
prepared a planning application,
which included an updated draft of
the layout plan. This substantially reflected the City's preferred
development (option 5) -
particularly in relation to the alignment of
the proposed service road parallel to the Main Road. The application
documents noted
that the type of buildings to be provided was not yet
clear, but that it was
"proposed
to apply"
for
several
"departures"
on a blanket basis.
The
"departures"
related to set-backs,
coverage, subdivision sizes, frontages, height and density
requirements, and were explained in relation to
the extent to which
they differed from permissible land uses in the applicable zoning
scheme under LUPO. The use of this word
"departures"
also appeared to
relate to section 15(1) (a) of LUPO, which specifically relates to
applications for
"departures"
from the usual
strictures of the applicable zoning scheme. This would have required
a separate process to be followed in terms of
section 15(2) of LUPO,
which required notice of the particular departures to affected
neighbours and a period for filing objections.
[8] In August 2009, the City
issued notice which set out the planning approvals it sought in
formal terms; and invited comment on
its planning application -
copies of which were available at public buildings. The
advertisements listed the approvals which would
be sought. These
referred to,
inter
alia,
the approval of
amended and extended layout plans in such a manner as to allow for
the creation of approximately 1100 residential
units and community
facilities. However, these notices did not contain any reference to
any immediate application for the proposed
"departures".
On 2 October 2009 the
City's officials placed an internal report before its own Spatial
Planning Evaluation and Land Use Management
Committee ("SPELUM")
for recommendation, which in essence accorded with its option 5. This
report now states that
"departures"
are applied for in
terms of the applicable zoning scheme (under LUPO). A document
attached to the report, entitled
"annexure
A",
set out the
approvals which would be sought. Unlike the notices of August 2009,
this document now explicitly added several
"departures"
which were sought in
terms of the zoning scheme and section 15 of LUPO. The City now
acknowledges that the language used in this
report and annexure A was
confusing. This is because the
"departures"
were not actually
sought in terms of LUPO, in that LUPO did not apply to the bulk of
the development area. The
"departures"
were in fact merely
"development
parameters"
designed
to give effect to the layout plan under LEFTEA, which for the sake of
convenience were compared to the usual development
rights as
expressed in the zoning scheme applicable to the rest of Hout Bay.
The importance of this distinction is that as the
"development
parameters"
were
not subject to LUPO, they did not have to be advertised in terms of
section 15 of LUPO before being approved. The City further
appears to
suggest that the process by which the approval of these
"development
parameters"
was
introduced was fair, in that any interested person would have been
aware of them if he or she studied the planning application;
and that
some interested people did object to aspects of the development
parameters.
[9] The matter came before
SPELUM on 14 October 2009. At this meeting SPELUM refused to grant
the ward councillor or objectors an
opportunity to speak. SPELUM
recommended the approval of all the planning approvals sought in
terms of LEFTEA (relating to the
amendment of the designation
conditions and the approval of the new layout plan) and LUPO
(relating to the rezoning of land parcel
7a in site 3). It also
recommended the approval of the
"departures"/"
development" parameters"
in
respect of the entire area designated under LEFTEA. SPELUM forwarded
the matter to the Provincial authorities at this point,
but noted
that the matter would also be considered by the City's Council. In
particular, the Council could decide whether it wished
to deal
finally with the approval under LUPO relating to land parcel 7a in
site 3, which the City was empowered to consider under
a delegation
in terms of LUPO. The Council did not, however, have power to decide
the approvals sought under LEFTEA, which the
provincial authorities
could consider immediately. At the same time as pressing on with the
planning approvals, the City conducted
a parallel process to obtain
the required environmental authorisation under NEMA. The City
explains that this was necessary as
the development triggered a
number of identified activities necessitating a "basic
assessment" under the (then applicable)
regulations in
Government Notice R386 of 21 April 2006 under NEMA. In a record of
decision ("ROD") of 18 November 2009,
the delegated
authority granted this authorisation subject to conditions. The
"executive summary" of the application
for environmental
approval is attached as annexure "CJH48", to the Founding
papers. The environmental authorisation was
upheld on appeal by the
Minister on 4 May 2010.
[10] One of the conditions of
the environmental authorisation was that the recommendations in a
Heritage Assessment Report ("HAR")
"must
be implemented".
These
recommendations, as endorsed by Heritage Western Cape ("HWC")
in a letter dated 27 February 2009, supported the
development in
option 5 in principle, provided that: (a) A substantial number of the
stone pine trees along Main Road and in the
old forestry station
(i.e. site 2) must be retained. They were recognised as a
"key
heritage resource".
The
HAR referred to the
"wooded
character"
of
the area as part of its
"genius
locus"
(viz. its
defining characteristic), and that part of the
"rural
illusion"
of the
valley was the
"Main
Road corridor with its heavily lined edges".
The
ROD itself recognised that the reason for retaining these trees was
to
"reduce the
impact of the cultural sense of place associated with the current
road"
and to
maintain the
"visual
intactness of the general area".
(b)
A
"detailed tree
survey"
be
undertaken by an arbouriculturalist relating to the health of trees
on sites 2 and 3 and their viability, and that this be a
"key
informant of the site
development plan".
The
arbouriculturalist also had to prepare a
"tree
management plan"
to
allow for the succession of trees along Main Road. (c) The remnants
of the Kronendal Furrow must be retained. (d) The "key
heritage
resources"
(being
the Kronendal Furrow and the trees) be listed in the heritage
register in terms of section 30 of the National Heritage Resources

Act 25 of 1999 ("NHRA") - i.e. the City had to ensure that
the resources were appropriately listed by HWC in the Provincial

heritage register. The ROD also recorded that the proposed
development would
"conserve
these key heritage resources".
The
layout plan came before SPELUM again on 14 January 2010. At this
stage an internal report from the City recognised that the
"proposed
departures"
(or
"development
parameters"
as
they are now called) had not been advertised and the details of the
development had not been provided. A revised version of the
"annexure
A"
document was
thus provided - which excluded the departures/development parameters.
This was confirmed by the responsible director
in the City (Mr
Richard Walton) who stated that the departures would be dealt with in
a separate process. SPELUM deferred consideration
and referred the
matter to the Good Hope sub-council in whose jurisdiction the Hout
Bay area falls. On 18 January 2010 the sub-council
interviewed
objectors, and recommended several recommended amendments to SPELUM.
These included a recommendation that the proposed
development in site
2 should not be supported, based primarily on the undesirability of
the proposed alignment of the service road
and taxi rank; and the
failure to include a high school. The sub-council favoured a road
leading into the centre of the community
(as suggested by the
community), using an extension of the existing NR Mandela Road. The
sub-council also recommended that the
proposed development in site 3
should not be supported. Instead, a 10 metre wide buffer zone should
be provided next to Penzance
Estate, lined with single residential
dwellings. The sub-council further recognised the need for a tree
survey. The matter returned
to SPELUM on 21 January 2010. SPELUM
elected to recommend that all the required planning approvals should
be approved as shown
in a document entitled
"amended
annexure A".
This
essentially approved the layout plan favoured by the City, subject to
amendments. These included that the service road, taxi
rank and
informal trading area would not continue until a traffic assessment
report ("TIA") had been conducted of NR
Mandela Road as an
alternative. If this resulted in changes to the layout plan, these
would be submitted to SPELUM for recommendation
to the provincial
authorities. This slightly amended layout plan was in turn
recommended by the City's executive mayor (then Ald.
Plato), and the
City's Council. On 8 February 2010 the City informed the provincial
authorities of developments and that the applications
had been
"duly
advertised".
The
changes required under amended Annexure A were expressed in a revised
layout plan provided by the City on 12 March 2010. (It
was this same
plan which was ultimately approved in the decision under review.)
[11] The housing conditions in
Imizamo Yethu are intolerable, and result in the breach of the rights
of residents. Imizamo Yethu
is overcrowded, and adequate services are
not provided. There is an acute housing crisis in Cape Town
generally, and in Hout Bay
in particular. The proposed development
will provide approximately 1 100 housing units. It is a key step in
addressing the City's
constitutional obligation to provide housing,
to improve the living conditions of the poor, and to improve service
delivery in
in Imizamo Yethu. It provides for residential
development, community facilities and economic opportunity. It is the
product of
extensive and rigorous community engagement and public
participation during a process which has taken many years. The views
of
all interested and affected parties were taken into account. It is
however not possible to satisfy all of the needs and points of
view.
I accept that it is and shall never be possible to satisfy all of the
needs and points of view which must have been expressed
within the
constraints imposed by the availability of resources and the
realities of the situation in Imizamo Yethu.
THE MINUTE RE INSPECTION
IN
LOCO
[12] The parties made three
stops at which observations of particular areas as depicted on the
layout plan were made. The first
stop was at the highest point of the
Mount Rhodes area, off Victoria Road (known as the Suikerbossie
Hill). The parties observed
the Imizamo Yethu area as a whole across
the Hout Bay valley, and this was photographed. The parties observed
the following areas
as marked on the photograph: The proposed
development area known as "site 1", between Imizamo Yethu
and Hugheden Estate,
which is currently used for informal housing;
the proposed development area known as "site 3", between
Imizamo Yethu
and Penzance Estate, which is currently treed; the
proposed development area known as "site 2", in the middle
of Imizamo
Yethu, in which the following aspects were observed: The
new primary school which is currently under construction; the Main
Road,
running at the base of Imizamo Yethu; and the band of pine
trees referred to in the environmental authorization, at the bottom
of the primary school site adjacent to the Main Road.
The second stop was on the site
of the new primary school. The parties walked over the construction
site to a point near the eastern
boundary of the primary school,
overlooking the band of pine trees adjacent to the Main Road. The
point at which the parties stopped
was identified on the diagrams and
photographs in the record:
Annexure "RW18"
being a diagram
entitled "proposed subdivision
plan" and dated 2 March
2010 (with reference 05.1537/CAD/SUBD/REV
2). This was the "layout
plan" approved by the First and Fifth
Respondents, on which the
following aspects are noted:
The primary school property; the
point at which the parties made
observations;
The Main Road; and the treed
area between the observation point and the Main Road.
Annexure "RW 21b"
being an aerial
photograph of Imizamo Yethu forming part of a tree survey from 2008,
on which the following aspects are noted:
The point at which the parties
made observations; the Main Road; and the treed area between the
observation point and the Main Road.
Annexure
"A"
being a
composite diagram by Mr. Dodds containing a cross-sectional diagram
at the top of the page and a layout diagram on the rest
of the page.
With reference to the cross-sectional diagram the following aspects
were noted:
The point at which the parties
stopped, being at the apex of a retaining wall which supports filled
material forming part of a playground/field
for the primary school;
the Kronendal Furrow, at the base of the retaining wall; and the
treed area through which the proposed
service road would pass.
The observations made from the
viewing point are recorded in photographs attached as
"Photograph
2"
to
"Photograph 3",
which I have made
part of the record of proceedings and they depict the following:
In
"Photograph
2",
the band of
pine trees between the school site and the Main Road, through which
the proposed service road would pass; and In
"Photograph
3"
portions of
Kronendal Furrow at the base of the retaining wall, partly obstructed
by building material and partly unobstructed.
The third stop took
place on Hout Bay Main Road, adjacent to "site 2" and the
new primary school site, this was also
photographed. The following
features were pointed out by the parties: The band of pine trees; the
proposed site for the construction
of the service road; the road
reserve adjacent to Main Road.
THE DECISIONS/ APPROVALS
UNDER ATTACK
[13] An impression must not be
created that there was only one decision/approval.
(a) there was an approval, in
terms of section 3A(a) of LEFTEA, of an amendment of a condition of
an earlier designation of land
in in Imizamo Yethu under LEFTEA - in
terms of which a condition limiting residential development to 18
hectares of the total designated
area was replaced with a condition
which provided that a total of 21 hectares could be used for
residential development (and the
remaining 13 hectares for roads
(including reserves), open spaces, roadside fringes, thoroughfares,
public spaces, and/or public-service
facilities; (b) there was an
approval, in terms of section 3(1) read with section 3(3) and section
4(1) of LEFTEA, of an amendment
of an approved layout plan on Portion
1 of the Remainder of Erf 6355, Hout Bay (a portion of land adjacent
to Hughenden Estate);
and (c) there was the approval of new layout
plans for two portions of the Remainder of Erf 2848 (a portion of
land abutting Penzance
Estate and the Main Road) and the Remainder of
Erf 7309, Hout Bay (a portion of land occupied by the Old Fire
Station).
Those approvals related, in
total, to the land referred to as parcels 4a, 4b, 4c, 4d and 4e, 6a,
6b and 7b. The land in question,
and the position of the various
parcels, can be seen on a map ("RW2"), annexed to the
City's Answering Affidavit. That
map indicates:
The Imizamo Yethu area as a
whole; the phases which have already been developed (i.e. phases 1, 2
and 3); the three sites to which
this application relates (i.e. sites
1, 2 and 3) and the different parcels of land which comprise those
sites.
Both the approval of the
Minister of Environmental Affairs and Development Planning and the
approvals of the Minister of Human Settlements
("the impugned
approvals") were granted subject to comprehensive conditions.
THE
LEGISLATIVE FRAMEWORK
[14] A development of this kind
is regulated by a number of legislative instruments.
LEFTEA
First, the land concerned must
be designated for such a development in terms of LEFTEA. According to
the long title of LEFTEA, its
purpose is to
"provide
for shortened procedures for the designation, provision and
development of land, and the establishment of townships,
for less
formal forms of residential settlement..."
To
that end, section 3(1) of LEFTEA provides for the designation by the
competent authority of land for less formal settlement when
the
authority is satisfied that
"in
any area persons have an urgent need to obtain land on which to
settle in a less formal manner".
The
authority may impose conditions on the designation. The
administration of LEFTEA was assigned to the Provinces by
Proclamation R159 in GG 16049 of
31 October 1994. On 7 November 2007 LEFTEA was amended by the Western
Cape Less Formal Township
Establishment Amendment Act 2007 (PG 6479
of 12 November 2007).That Act inserted section 3(3A), to provide for
the amendment of
a notice of designation if it is a condition of such
a notice that
"any
part of the designated land may be used for certain purposes only or
may not be used for certain purposes".
Section
3(5) of LEFTEA exempts designated land from the provisions of a range
of laws. They include laws on physical planning, town
planning, and
building standards. This is consistent with the underlying purpose of
LEFTEA, which is to ensure that designated
land may be developed and
settled in an expedited and less formal manner in order to meet an
urgent need for settlement and housing.
The exemption is subject to
section 3(6), which provides that the competent authority may declare
a provision of such legislation
applicable to designated land.
LAYOUT PLANS
[15] While LEFTEA does not
explicitly require this, the practice in the Western Cape is to
require a layout plan for the proposed
development as one of the
conditions of designation of land in terms of LEFTEA. A layout plan
indicates the outlines of the proposed
development in general terms.
It is similar to the subdivision plan which is required for more
formal developments. Upon approval
of a layout plan by the competent
authority, development parameters for the development - such as
zoning, permissible erf sizes,
erf coverage, building height, etc.,
may be imposed. These parameters are imposed in terms of LEFTEA,
although they may be similar
to the parameters which are created by
the land use planning legislation to which I refer below.
GENERAL PLANS
Section 5 of LEFTEA provides
that after land has been designated, the developer must cause a
general plan to be prepared and submitted
to the surveyor-general for
approval. After the general plan has been approved by the
surveyor-general, it must be filed at the
deeds registry for
registration by the registrar of deeds. The general plan is more
detailed than, and follows on, the layout plan.
LUPO
[16] Section 6 of LEFTEA
provides that, after the general plan has been filed at the deeds
registry, the registrar of deeds must
open a township register in
respect of the designated land concerned. The consequence of opening
the township register is that
the designated land
"shall,
subject to the provisions of this Act, be deemed to be a township
established in accordance with the law governing
the establishment of
townships in force in the area in which the designated land is
situated".
The
law which governs the establishment of townships in the Western Cape
is LUPO. Accordingly, once a general plan has been filed
and a
township register opened in respect of designated land in the Western
Cape, the area is deemed a township established in
accordance with
LUPO. The provisions of LUPO then become applicable to that area,
subject to the provisions of LEFTEA and any conditions
imposed by
that designation. LUPO does not apply to that land until the general
plan has been filed and the township register opened.
Thereafter,
LUPO applies subject to any conditions imposed by the competent
authority (such as the zoning imposed on the area by
the competent
authority and any other development parameters which have been
imposed, for example as to permissible erf sizes,
erf coverage and
building height in the area). It is only once the general plan has
been filed and the township register has been
opened, that the
designated land consists of separate erven which are legally
recognized as such.
Environmental
authorization
A
development of this nature is also subject to environmental
legislation, particularly the National Environmental Management Act

107 of 1998 ("NEMA") and regulations thereunder. If the
development includes activities which require authorization from
the
competent authority in terms of NEMA, environmental authorization for
those activities must be obtained.
THE
PLANNING PROCESS UNDER LEFTEA
[17] As has already been
indicated, the ordinary LUPO planning and approval processes do not
apply where a development takes place
under LEFTEA. That does not
mean, however, that the development of less formal residential
settlements takes place in an unregulated
and incoherent, haphazard
way. First, the Administrator may attach conditions to his or her
designation of land under LEFTEA. See
Section 3 (1) of LEFTEA. (In
the Western Cape, the administration of LEFTEA has been assigned to
the Minister of Human Settlements
- he is the "Administrator".)
Those conditions may be designed to ensure compliance with sound town
and land use planning
requirements. (For example, when the land in
issue in this review was designated under LEFTEA, one of the
conditions of designation
was that a layout plan be submitted to the
Administrator for approval and for the imposition of
"land
usage control measures".)
Secondly,
the planning and development of designated land must take place in
accordance with requirements considered necessary by
the
Administrator
"to
make the speedy and orderly settlement of persons ... possible",
as well as in
accordance with any conditions attached to the land designation. See
Section 4 (1) of LEFTEA. Thirdly, the Administrator
must ensure that
the planning and development of the land takes place in a way which
takes account of future service needs in that
area. He must ensure
that the planning and development takes place in such way that "the
subsequent upgrading of the service"
on the land is possible.
See: Section 4 (2) of LEFTEA.
Public
participation under LEFTEA
Because
applications for rezoning, departures and subdivision in terms of
LUPO are not required where a development takes place
on land
designated under LEFTEA, the obligation to comply with the public
participation processes prescribed in LUPO does not arise.
LEFTEA
was, as submitted, designed
inter
alia
to achieve that
consequence. Parliament has permitted the ordinary processes to be
by-passed so that housing can be developed more
quickly. Section 29
of LEFTEA supports the argument that the by-passing of ordinary
processes was one of the key reasons for promulgation
of the Act. It
reads -
"Except where the
provisions of this Act expressly make provision therefor, the
Administrator shall not, in applying this Act,
be compelled, in
respect of a proposed step or act or the consideration of an
application, to give notice thereof in public or
otherwise, or to
hear or consider any objection or representation in connection
therewith."
Section
3 (3A) is an example of a provision which does expressly provide for
a public participation process. Importantly, land may
be designated
as land for less formal settlement only where
"the
Administrator is satisfied that in any area persons have
an
urgent need
to
obtain land on which to settle in a less formal manner" .
(Emphasis supplied)
[18] The Housing Act of 107 of
1997 obliges every Provincial Government to
"do everything in its
power to promote and facilitate the provision of adequate housing in
its province within the framework
of national housing policy"
(Section 7 (1)) and
also imposes specific housing-related obligations on municipalities
(Section 9). LEFTEA provides an accessible
form of land tenure and
makes provision for the development of less formal settlements and
townships and provides among other things,
"for shortened
procedures for the designation, provision and development of land,
and the establishment of townships [and]
for less formal forms of
residential settlement" (Section 3 (5) (e)). It provides that
laws regulating townships development
and planning are not
applicable. In the case of less formal townships it provides for the
exclusion of such laws if their application
"will have an
unnecessary dilatory effect on the establishment of the contemplated
township or will otherwise be inappropriate
in respect of the
establishment of the township" (Section 19 (5) (a)). See also WC
Prov. Govt.: In re
D
v B Behuising (Pty) Ltd v NWProv. Govt.
2001(1)
SA 500 (CC) at paras [66] - [67].
[19] The attempted and expedited
process for establishing townships and less formal settlements which
is contemplated by LEFTEA
is critical to enable the State to provide
land for housing or less formal settlements at short notice, as well
as to regularize
or ameliorate situations where land invasions have
occurred. It was intended by the legislature that the legislative
framework
of LEFTEA should serve to provide urgent powers, necessary
to deal expeditiously with the plight of the homeless - by the very
nature of these powers implementation of decisions cannot be allowed
to be delayed forever. See
Modderklip
Boerdery (Edms) Bpk v President van die Republiek van Suid-Afrika en
Ander
[2003] 1
ALL SA 465
(T) at 507-508;
Diepsloot
Residents' and Landowners' Association v Administrator, Transvaal
[1994] ZASCA 24
;
1994 (3) SA 336
(A) at 348 H-349D. The present application as shown above under
background facts was preceded by an extensive process which included

public participation. Because this is of cardinal importance in the
determination of this application I deem it necessary to set
out
infra
such
activities in the form of a chronology - this despite the fact that
it may be a repetition of what has been said
supra.
[20]
CHRONOLOGY OF PROCESS
UNDERTAKEN PRIOR TO
PRESENT APPLICATION
DATE
EVENT
/ DOCUMENT
REFERENCE
17.07.1992
Designation
of a portion of Erf 2848, Hout Bay, ± 8 ha in extent, for
less formal establishment, by Administrator
of Cape Province
[PN351/1992]
"CJH7"
25.09.1992
PN
465/1992 establishes an "informal zone" in all zoning
scheme regulations
538
par 46
25.09.1992
Designation
of a portion of Erf 2848, ± 21.05 ha in extent, a portion
of Erf 1830, ± 0.230 ha in extent, and
a portion of Erf
1833, ± 0.2686 ha in extent, for less formal
establishment, by Administrator of Cape Province [PN
468/1992]
[Designation
of land subject to following condition: the submission of the
proposed layout plan to the Administrator for
approval, and the
imposition of land usage control measures.]
[Designated
land includes what is now sites 1 and 3: p537 par 43.2]
"CJH8"
Oct.
19992
Layout
plan approved, containing 550 plots
21
par 34
23.07.1993
Designation
of portions of Erf 2848 and 1830, 12.5309 ha in extent, for less
formal establishment, by Administrator of Cape
Province
[PN 383/1993]
[Designation
of that land, together with the land designated in PN 468/1992,
subject to following conditions: (1) that only
18 ha of the total
area shall be used for residential purposes; and (2) submission
of the proposed layout plan to the Administrator
for approval and
the imposition of land usage control measures]
[Designated
land includes what is now site 2: p537 par 43.3]
"CJH9"
19.11.1993
Layout
plan approved for phase 1 (in terms of s4 of LEFTEA) [residential
zones to be informal zones]
22
par 38,
"RW3"
& 537 par 44
21.07.1994
Layout
plan approved for phases 2 and 3 (again in terms of s4 of LEFTEA)
[residential zones to be informal zones] [Layout
plan as approved
in June 1994 at "RW5"]
22
par 38,
"RW4"
& 537 par 45
17.02.2004
Interim
order
(per
Bozalek
J) under Case No. 1094/04
"CJH13"
17.05.2004
Final
order (per Allie J) under Case No. 1094/04
30.05.2007
IJR
Consensus Principles (on Greater Hout Bay Housing Crisis)
"CJH15"
30.04.2008
& 04.06.08
City
sought comments on the various development options
29
par 63
Late
2008
City
proposes a fifth development option
29
par 67
12.02.2009
SANCO
comments on fifth option
"CJH21"
24.02.2009
ECG
and other community organisations propose sixth development
option
"CJH22"
& 32 par 71
Jan.
2009
Final
Heritage Impact Assessment by Aikman Assocs.
"CJH50"
& 222 par 27
26.02.2009
Letter
from Residents' Association of Hout Bay to Chand Env. Consultants
re Draft Basic Assessment Report
"CJH51"
& 223 par 32.1
27.02.2009
Heritage
Western Cape endorses recommendation in Heritage Impact Report,
and comments that it in principle supports Option
5, subject to
the results of public participation and various conditions
150
["A"to "CJH28"]
May
2009
Visual
Impact Assessment (VIA) by H van der Hoven
"CJH49"
& 221 par 21
May
2009
Land
use application prepared by CNdV Africa on behalf of City
"RW10"
&
[Attached
as annexure I is a Traffic Impact Assessment dated 18 September
2009. Layout plan attached at Figure 5.3]
"RW11",
&
549
par 72
19.06.2009
Final
Basic Assessment Report (BAR) by Chand
"CJH48"
& 221 par 21
31.07,
01.08, 03.08 &
06.08.2009
Advertisements in
regional and local newspapers re planning approvals to be sought
for Hout Bay (i.e. amendment of condition
of designation;
designation of new land; rezoning and subdivision; and street
names) in terms of LEFTEA and LUPO
[Advert
refers to Final BAR for EIA being out for review prior to
consideration by DEA&DP]
"CJH66"
& 231 par 49
05.08.2009
Letter
from City to I&APs re (i) proposed amendment of a condition
of designation of land under LEFTEA, (ii) approval
of new layout
plans (conditional upon amendment of condition of designation),
(iii) proposed rezoning and subdivision,
and (iv) approval of
street names
"CJH25"
& 33 par 74
07.08.2009
Notice
in Provincial Gazette referring to planning application for
Imizamo Yethu and in particular (i) the amendment of
the
condition of designation, (ii) the designation of additional land
for less formal township development (in accordance
with a
proposed layout plan) under s3 of LEFTEA, and (iii) proposed
rezoning and subdivision in terms of ss17 and 24 of
LUPO
[Objections to be lodged by 8 September 2009]
[Notice
refers to Final BAR for EIA being out for review prior to
consideration by DEA&DP]
"CJH65"
& 231 par 47
11.08
&
13.08.2009
Letters
from Hout Bay & Llandudno Heritage Trust and Residents'
Association of Hout Bay to Chand re Final BAR
"CJH52"
&
"CJH53",
&
224
par 32
03.09.2009
Comments
on planning application from Hout Bay & Llandudno Heritage
Trust
"RW13"
& 551 par 78
06.09.2009
Comments
on planning application from Sinethemba Civic Association
"RW13"
& 551 par 78
08.09.2009
Comments
on planning application from Residents' Association of Hout Bay
"RW13"
& 551 par 78
08.09.2009
Comments
on planning application from Tommy Brummer Town Planners
"RW13"
& 551 par 78
08.09.2009
Comments
on planning application from Penzance Assoc.
"RW13"
& 551 par 78
08.09.2009
Memorandum of
objection from Hout Bay Ratepayers Association and Sinethemba
Civic Association
"RW13"
& 551 par 78
02.10.2009
Report
submitted by City officials to SPELUM referring to objections,
comments etc, and responding thereto
"CJH67"
& 552 par 80
04.11.2009
Application
for planning approvals submitted by the City (Planning &
Building Development Management) to DEA&DP
(with copies of
press adverts, notices etc)
[City
states that Council will only be dealing with the LUPO aspects,
and that the LEFTEA issues can be addressed now]
463
(in
"CJH70"),
& 554 par 84 &
"RW15"
18.11.2009
DEA&DP granted
environmental authorisation to the City re Imizamo Yethu (the
"ROD")
[Condition
7 provides that the "recommendations in the Heritage
Assessment Report [HAR] dated January 2009 that was
compiled by
Aikman Associates ... and endorsed by Heritage Western Cape
('HWC') must be implemented] (attached as Appendix
A)"]
"CJH28"
& 34 par 78
10.12.2009
Appeal
by Tommy Brummer (on behalf of residents of surrounding areas)
372-373
(in
"CJH55")
&
546
17.12.2009
Appeal
by Hudson, on behalf of Hout Bay & Llandudno Heritage Trust
against the ROD
373
& 546
23.12.2009
Appeal
by Hout Bay Ratepayers Association against the ROD
373
28.12.2009
Appeal
by Residents Association of Hout Bay against the ROD
373
18.01.2010
Good
Hope Sub-Council considers planning application
"CJH34",
38 par 92 & 556 par 90
21.01.2010
Report
on Sub-Council meeting prepared for SPELUM
"CJH35"
& 556 par 91
21.01.2010
SPELUM
considers Sub-Council report and report of 13.01.2010 and makes
recommendations to Mayor
"CJH36",
40 par 95 & 557 par 92
25.01.2010
Recommendation
from Mayor
"CJH37"
& 557 par 93
27.01.2010
City
Council accepts recommendation by SPELUM and Mayor:
"CJH38",
41
namely,
to proceed with option 5, as amended by "Amended Annexure A"
par
99 & "CJH36"
08.02.2010
Letter
from City (Director: Planning & Building Development
Management) to DEA&DP confirming that planning application

duly advertised in terms of LEFTEA and LUPO and objections were
received; and that the full Council resolved to recommend
that
the applications be approved, subject to the conditions on
Amended Annexure A (attached)
"CJH70"
& 234 par 60, & 557 par 95
12.03.2010
Letter
from City (Director: Planning & Building Development
Management) to DEA&DP attaching amended layout plan
["RW18"]
(reflecting changes approved by City on 27.01.2010)
"CJH71"
& 234 par 61­62, & 558
par
96, & "RW18"
22.04.2010
Memorandum
submitted by DEA&DP to Minister of EA&DP and Minister of
Human Settlement re planning approvals
"CJH72"
&
235
par 65, & 558-560
par
98-99
22.04.2010
Memo
from DEA&DP to Minister of EA&DP outlining appeals
against the environmental authorisation
"CJH55"
& 225 par 35
28.04.2010
Approval by
Minister of EA&DP of rezoning and subdivision of parcel 7a
(under LUPO)
"CJH72",
& 560 par 100
28.04.2010
Decision
by Minister of EA&DP dismissing appeals against the
environmental authorisation (i.e. the ROD)
"CJH55"
& 225 par 35
03.05.2010
Approval by
Minister of Human Settlements of amendment of conditions of
designation, an amended layout plan for parcel 6a,
and new layout
plans for parcels 6b, 4a-4e, and 7b (under
LEFTEA)
"CJH72",
&
560
par 100
04.05.2010
Letter
from Minister of EA&DP to Hudson (as representative of Hout
Bay & Llandudno Heritage Trust), confirming dismissal
of
appeal against the environmental authorisation, and the amendment
of the authorisation in two respects (to deal with
changed buffer
zones in sites 1 and 3)
Amended
ROD
"CJH46"
& 218 par 10, & 547 par 70
"RW9"
05.05.2010
Letter
from DEA&DP to City re City's application in terms of LEFTEA
and LUPO
"CJH2",
& 560 par 101
26.05.2010
Letter
from ECG to Minister of EA&DP and City re approval in letter
of 5 May ("copied to the community organisations
and
individuals who submitted comments")
"CJH39"
&
41
par 101
06.07.2010
Letter
from Minister of EA&DP to Chairman, ECG
"CJH4"
20.07.2010
Letter
from ECG to Minister of EA&DP and City
"CJH40"
& 43 par 104
23.07.2010
Response
from City to ECG
"CJH41"
& 43 par 105
08.09.2010
Letter
from ECG to Minister of EA&DP and City
"CJH43"
&
43
par 107
15.09.2010
Letter
from Minister of EA&DP to ECG
"CJH44"
& 43 par 107
DISCUSSION
[21] Mr Borgstrom preceded his
submissions with the following rather bold statement:
"The City and the
Provincial Ministers make the gratuitous allegations that the ECG is
'bent on delaying the proposed development'
or imposing its own will.
The insinuation also appears to be made that the ECG represents a
retrogressive elite. These allegations
are as unfortunate as they are
incorrect. The ECG accepts and supports the City's constitutional
duty to provide access to adequate
housing. In particular, the ECG
supports the City's efforts to improve access to housing in IY, where
there is a severe backlog
of adequate 'housing opportunities'. This
duty does not, however, excuse or elevate decisions which are
otherwise unlawful."
This statement deserves some
attention. I deal with and consider same
infra.
In 2004, an interdict
was granted to enforce the then condition of designation of the land,
that only 18 of the 34 hectares of the
land in question could be used
for residential purposes. The ECG states that it supports the
2006/2007 IJR principles, which it
purportedly seeks to enforce in
this application. It is common cause that the IJR principles record
that the remaining 16 hectares
of the designated land is a zone of
opportunity for mixed use, including housing. It is also common cause
that in 2010 the conditions
of designation were amended, to permit
residential development on 21 hectares of the land. The ECG does not
challenge this decision.
Despite this, in October 2010 the ECG
launched this application in which it sought in effect to enforce the
2004 interdict.
The consequence of this would
clearly be to prohibit any further residential development at Imizamo
Yethu at all, not just the particular
aspects to which the ECG has
raised objection in this application.
[22] When the City contended
that the 2004 interdict had fallen away as a result of the subsequent
events, or (to the extent necessary)
should be set aside, the ECG
neither disputed this nor opposed it. This raises questions as to
what the true motive of the ECG
is in this application: Why did it
seek in effect to enforce the 2004 interdict, when the result of that
would be to prevent any
further residential development at all at
Imizamo Yethu - despite the fact that the designation now permits 21
hectares of the
land to be used for residential purposes? The
question becomes even more pointed when one has regard to the fact
that the ECG then
abandoned this ground of review. The question that
comes to mind is why it was raised at all, as Mr Budlender
concerningly asked
in his submissions. The question becomes yet more
pointed when one has regard to the fact that in June 2011 the ECG
demanded an
undertaking from the City that it would not call for,
consider or adjudicate
"any"
tender to provide
"any"
services for the
implementation of the disputed development plans. The ECG indicated
its intention to approach this Court for an
urgent interdict if the
City refused to give this undertaking. The ECG thus attempted to stop
the City even issuing a tender for
the appointment of a professional
team. Why did the ECG not want the City even to call for a tender for
the provision of professional
services for the development? What was
it trying to achieve? These are rhetoric and yet concerning questions
that are not only
troubling Mr Budlender, but they equally bother the
Court. Mr Budlender in this regard contended as follows:
"Even now, the ECG
attempts to stop this development on the extraordinary ground that
proper notice was not given of the proposed
development parameters -
even though the proposed parameters did come to its attention, and it
did make representations in that
regard. Again, one is driven to ask:
what is the reason why ECG raises this ground of review? - even if
there was a defect in the
process (which is disputed), it plainly has
not affected the ECG at all."
[23] The ECG has not brought
this application "without unreasonable delay", as required
by section 7(1) of PAJA. PAJA
requires that an application for
judicial review must be instituted without unreasonable delay, and
not later than 180 days after
the date on which the person affected
became aware of the decision and the reasons for it, or might
reasonably have been expected
to have become so aware. This is a
project which is an urgent necessity to address a dire situation, and
to meet the needs of thousands
of vulnerable people. In its Founding
Affidavit, the ECG stated that it had
"waited
until almost the 180
th
day to institute these
proceedings".
This
was pertinently raised in the City's Answering Affidavit. In reply,
the ECG still provided no explanation for its delay, except
to say in
general terms that it
"sought
to have the issues dealt with extracurially"
and
that it
"does not
enjoy the luxury of unlimited resources to embark on litigation"
and the fact is that
the ECG did embark on litigation. Again Mr Budlender contended as
follows:
"The
most reasonable inference from the ECG's course of conduct is that
notwithstanding its denials, it is in fact attempting
to delay the
development. As part of that course of conduct, it has delayed
unreasonably in bringing this application. It has not
shown any
reason why this unreasonable delay should be condoned."
It
is indeed tempting to consider the ECG as having been somewhat
obstructive. However, I make no finding in this regard. It is
always
best to consider the merits of the application. I do so hereunder.
CONFLICT
BETWEEN LAND USE AUTHORISATION AND THE ENVIRONMENTAL ROD (RECORD OF
DECISION)
[24] In undertaking this
development, the City will have to comply with the conditions of two
approvals which have been granted:
the environmental approval (the
ROD), and the land use authorizations. Each authority makes its own
decisions, and the City must
comply with each of them. The chief
complaint is focused on the proposed service road. This road was
approved as part of the approval
given by the relevant Provincial
Ministers in the environmental ROD. In January 2009, the Heritage
Management Consultant reported
in his "Final Heritage
Assessment" that stated that "the layout as depicted in
Option 5 makes provision for the
conservation of the key heritage
resources identified viz. the band of trees along the Main road
boundary and the remnants of the
Kronendal Furrow". He
accordingly recommended "That Option 5 as depicted in Annexure 1
be supported in principle as the
key heritage resources of the site
viz. the band of trees along the Main road boundary and the remnants
of the Kronendal Furrow
are conserved". He recommended, too that
a "detailed survey to establish the health and viability of
retention of the
trees on Portions 2 should be undertaken and be a
key informant of the site development plan". On 27 February 2009
Heritage
Western Cape "endorsed the recommendations in the
Heritage Impact Report". It stated that in principle it
supported Option
5, as depicted in Annexure 1 of the HIA report,
subject to the conditions which were stated. The environmental ROD
requires that
the recommendations in the heritage assessment report,
endorsed by Heritage Western Cape, be implemented. A distinction must
always
be drawn between a layout plan and a site development plan.
The existing layout plans are consistent with and take express
account
of the ROD. It is not disputed that the development plans
must comply with conditions contained in the ROD and once the more
detailed
site development plans are developed (a process I am told is
currently underway) those will also have to comply with the
conditions
contained in the ROD.
THE
POSITIONING OF THE SERVICE ROAD
[25] What emerges from this is
the following:
(a) Option 5, which includes the
service road, is not inconsistent with the requirements of the
Heritage Report. To the contrary,
the Report found that it makes
provision for the conservation of the band of tress along the Main
Road and the remnants of the
Kronendal Furrow. That is why the Report
recommended that Option 5 be supported in principle. (b) The heritage
consultant, and
Heritage Western Cape, had seen the layout, which
included the road. They were satisfied with it. They required that an
arbouriculturalist's
survey be undertaken, and that it be a key
informant of the site development plan. They could not have thought
that the site development
plan was the layout plan. The layout had
already been completed, and they knew that was the case. The site
development plan was
yet to be prepared. The land use authorizations
require the City to undertake a Traffic Impact Assessment with regard
to the alignment
of the service road. It is correct, as the ECG
contends, that the TIA does not consider compliance with the ROD.
That is not its
function: it is a transport enquiry, to consider the
possible road alignments. It may lead to the conclusion that the
desired road
alignment will require that the layout plan should be
changed in order to comply with the ROD. If that is the result, then
application
will need to be made for amendment of the layout plan.
The Minister was aware of this when he granted the land use
authorization.
He said that:
"Subsequent possible
amendments to the attached layout plan ... as a result of the
findings of the TIA, will be dealt with
by the Provincial Government
on application by the Municipality."
[26] Annexures "CJH28"
and "CJH55" make it clear that the impact of the service
road on the band of trees was
explicitly considered when the ROD was
issued and in the appeal process. Thus the impugned planning
approvals were granted with
full awareness of the service road, the
terms of the ROD and the possibility that the service road may need
to be repositioned.
The objection relating to the proposed service
road is not new at all and was raised even during the appeal process
and Annexure
"CJH55" records that the Applicant was
informed that
"the
preferred alternative proposes the retention of the majority of the
trees along Hout Bay main road, including trees along
the "service"
road running parallel to it. This parallel road was realigned in
order to avoid the majority of the mature
trees in the tree fringe.
The Applicant has committed itself to planting new trees along this
fringe and furthermore intends compiling
a landscape plan and
submitting it for approval before construction commences. This plan
will also address any visual impact the
proposed project might have"
. Perhaps one needs
to repeat that the actual impact of the development and of the
service road in particular, on the band of trees
referred to by the
Applicant cannot be categorically determined at this stage. It is
only when the more detailed site development
plan is prepared that
the precise layout of the service road will be known.
[27] It indeed does appear
though that the ECG was rather quick to launch this challenge, that
is, in respect of the routing of
the service road. If it emerges,
after the TIA and the arbouriculturalist's report have been
completed, that the development cannot
be implemented in a manner
which meets the requirements of both the environmental ROD and the
land use authorizations - in other
words that they are mutually
inconsistent - that does not make the land use authorizations
invalid. If that is the case, the result
will be that the development
may not be implemented unless either the land use authorizations or
the environmental ROD are amended.
That arises from the now trite
principle that each authority has to make its own decision according
to its own
criteria,
and each must be
complied with. An authority is, however, not permitted to take the
approach that another authority has already
decided the matter. That
is what the Province did in the
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province, and Others
2007
(6) SA 4
(CC) case. When it considered the application for
environmental authorization, it did not consider the need for and
desirability
of a filling station, because that had already been
considered by the local authority when it considered the land use
application.
The Constitutional Court held that the decision of the
Province had to be set aside, because it had not considered the need
for
and desirability of the filling station. It had to make its own
decisions, in accordance with the requirements of its own legislation

and criteria.
[28] The consequence of this was
demonstrated in
Wary
Holdings (Pty) Ltd v Stalwo and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC).
There,
permission for the subdivision of agricultural land had to be granted
by both the local government and the national government.
Again, the
Constitutional Court held that each had to make its own decision, in
terms of its own legislation and criteria - and
that it was quite
possible that one government would give permission, and the other
would refuse. In that event, the subdivision
could not take place -
because the owner had to comply with the requirements of both the
national and the local government in order
to be able to subdivide
the land. So the decision of one could "veto" the decision
of the other. The result is that in
order to implement the
development, the City has to comply with both the environmental
authorization and the land use authorization.
It may not act
inconsistently with either. If a condition of one of the approvals
makes compliance with the other approval impossible,
then the project
cannot be implemented. The only way to do so will be to apply for the
amendment of the conditions of one of the
authorizations. I thus
fully agree with Mr Budlender that the inconsistency between the two
approvals thus does not make one of
the approvals invalid. (In any
event, it is not clear which of the approvals should be considered
invalid - and particularly where
the two authorization processes are
run at the same time, as in this case.) The Constitutional Court has
clearly and repeatedly
said that mutually inconsistent decisions are
not objectionable: to the contrary, they are to be expected, as each
authority must
make its own decision in terms of its own legislation
and criteria.
[29] The repeated refrain that
the service road contemplated in the layout plan "does not fit"
the space available in
terms of the ROD therefore takes the matter no
further. But it is in any event not shown on the papers, for two
reasons:
(i) First, the question whether
the service road "fits" depends in part on how wide it is.
If a road which is 19.8 meters
wide "will not fit", a
simple solution is to make it less wide - for example, by removing
the cycle lanes which flank
it. This can be considered when the site
development plan is prepared. (ii) Second, the question whether the
road "fits"
in the available land depends on what the
boundaries of the available land are - between the school site on the
one side, and the
Main Road on the other. There is no evidence as to
the status of the perimeter fences on both sides, which Mr Dodds used
as markers
for his measurements. On the school side, it is presumably
a fence put up for construction purposes: there is no evidence that
the site has been properly surveyed and demarcated on that side. The
same applies to the fence on the other (road) side. These are
matters
which would have to be determined in the preparation of the site
development plan. If this evidence of Mr Dodds had been
introduced in
the founding or supplementary founding papers, as it should have
been, the City would have had the opportunity to
deal with it in its
Answering Affidavit.
IS
THE REMEDY MISCONCEIVED?
[30] If the authorizations
cannot both be complied with as they currently stand, that does not
make either of them invalid. It means
that to the extent of the
inconsistency, the City may not proceed with the development as
currently conceived. If there is evidence
that the City nevertheless
intends to proceed with the development in breach of a condition of
the environmental ROD, then the
remedy is to interdict the City from
acting in breach of that condition - not to set aside the land use
authorizations. The City
has stated in terms, and repeatedly, that it
will comply with the conditions which have been imposed. It has
undertaken to do so.
It has stated that it remains committed to the
undertaking which Mayor Zille gave. If the ECG believes that it can
prove that the
City is lying, and intends to act unlawfully, then it
can apply for an interdict to prevent the City from acting
unlawfully. In
this respect I agree with the contention advanced by
Mr Budlender.
THE
COMPLAINT ABOUT THE TREE SURVEY
[31] The condition relating to
the appointment of an arbouriculturalist to establish the health of
the trees and the viability of
their retention with reference to
option 5 as depicted on the plan clearly intended no more than that
the recommendations of the
arbouriculturalist be a key informant of
the site development plan. That stage has not been reached. The
environmental ROD requires
that an
arbouriculturalist's
report
is to be a key
informant of the
site
development plan
.
What has been approved so far is a
layout
plan
. This is a
high-level plan. A layout plan indicates the outlines of the proposed
development in general terms, on a large scale.
This includes, for
example, the zoning of different portions, which will come into
effect once the general plan is filed and township
register opened. I
am driven to accept that a
site
development plan
is a
much more detailed and specific three-dimensional plan of, for
example, the placement of buildings on erven. It contains detailed

terrain layouts. It can be termed
"a
comprehensive plan indicating structures, uses, access, parking etc".
It is on a different
scale to that of the layout plan. In
eThekwini
Municipality v Tsogo Sun Kwazulu-Natal (Pty) Ltd
2007
(6) SA 272
(SCA) at para 26 the Supreme Court of Appeal described a
site development plan as one which
"reflects,
according to scale, the scope and location of buildings which are to
be erected on the site".
The
site development plan has not yet been formulated, much less
approved. The arboriculturalist's report will indeed be a key
informant of the site development plan.
[32] The Environment Minister
knew that the site development plan was different from the layout
plan. It was when he granted environmental
authorization on the basis
of the layout plan which was before him, that he imposed the
condition that an arbouriculturalist's
report must be a key informant
of the site development plan. He could hardly have intended that the
arbouriculturalist's report
must inform the layout plan - he already
had that. He knew that the site development plan was still to come.
As mentioned earlier
on Heritage Western Cape also had no doubt about
this when it proposed this condition. It recommended approval of the
Option 5
layout, which it had before it - and it recommended that the
arbouriculturalist's report should inform the site development plan,

which was still to come. It is only when the site development plan
has been prepared, that it will be possible to say whether the
City
will implement the development in a manner which is consistent with
this requirement of the ROD. The arboriculturalist's report
has not
been completed, and the site development plan has not been prepared.
This ground of challenge is self-evidently premature.
I do not
understand the City to have suggested that the 2008 tree survey
constitutes adequate compliance with the condition of
the 2010
environmental authorisation, as the ECG appears to believe.
[33] The complaint based on the
fact that Mr Walton will approve the site development plan is also
without foundation. If Mr Walton
approves a site development plan
which is inconsistent with the conditions of the environmental ROD,
and the City seeks to implement
it, it will act unlawfully. It may be
interdicted from doing so. It is the courts, not Mr Walton, which
will decide whether the
City has acted lawfully - in the proper
proceedings in which the proper relief (an interdict) is sought. On
behalf of the ECG it
was argued that it "makes no sense" to
have the arbouriculturalist's report after the layout plan has been
approved.
But that is what the Minister decided in the environmental
ROD. If that "makes no sense", then the ECG should have
challenged
the environmental ROD, which imposed that requirement. The
claim that a provision in the environmental authorisation "makes

no sense" does not provide a basis for asserting that the land
use authorization should be set aside. Even if the complaint
about
the arbouriculturalist's report is valid, the ECG has misconceived
its remedy. If the City is about to implement the development
in a
manner which is inconsistent with the environmental authorization
(ROD), the remedy is not to set aside the land use authorization.

That would be entirely illogical. The remedy is to interdict the City
from acting in breach of the environmental authorization.
FAILURE
TO GIVE PROPER NOTICE OF DEVELOPMENT
PARAMETERS OR "DEPARTURES"
[34] There are indeed two
grounds of attack in the above regard, namely (i) a failure to comply
with the requirements of LUPO in
respect of the land which is
governed by LUPO, and (ii) a failure to act fairly in accordance with
PAJA, principally in respect
of land which is not governed by LUPO.
LUPO applies only to those parts of Imizamo Yethu in respect of which
general plans have
been registered and a township register opened,
namely land parcel 7a in Site 3. Section 15(2)(a) of LUPO provides
that an application
for departures must be advertised if, in the
opinion of the town clerk or secretary,
"any
person may be adversely affected thereby".
Section
2 of LUPO provides as follows in relevant part: "
'advertise',
in relation to a matter under this Ordinance, means to serve a notice
on every owner of land who in the opinion of
the director or a town
clerk or secretary has an interest in the matter and whose address he
knows or can obtain and, if the director
or the said town clerk or
secretary, as the case may be, so decides, to publish in the
Provincial Gazette and in the press a notice-
(a) specifying the place
where and the hours during which particulars of the matter will be
available for inspection, and
(b) stating that objections
may be lodged with a person specified in the notice before a date
likewise specified, being not less
than 21 days after the date on
which the notice is so served or is so published, and 'advertisement'
has a corresponding meaning;..."
As explained above, it is
correct that the departures proposed in terms of LUPO were not
mentioned in the press advertisements which
invited comments from
interested and affected parties. LUPO currently applies only to
parcel 7a in site 3. This is the only part
of the land in respect of
which a general plan has been approved and a township register has
been opened. As a result, LUPO applies
because of section 6(a) of
LEFTEA. The ECG asserts that LUPO also applies to parcel 6a, because
of the conditions imposed by the
Minister in the LEFTEA designation.
That, however, is not correct. Section 3(5)(a) of LEFTEA states that
laws relating to township
establishment and town planning shall not
apply to designated land. Section 3(6) states that the Minister may,
by notice in the
Official Gazette, declare those laws to be
applicable to designated land. No such notice has been published.
[35] I ask myself a question
rhetorically what the ECG hopes to achieve by the claim that LUPO is
applicable to parcel 6a. If LUPO
is applicable, the residential land
has been zoned "informal" in terms of Provincial Notice
465/1992. The effect would
be to remove the careful LEFTEA
development parameters which the Minister has imposed in the interest
of residents, in the interests
of neighbours, and in the public
interest. LUPO requires that where application is made for a
departure from the town planning
scheme, and in the opinion of the
town clerk or secretary any person may be adversely affected thereby,
the application must be
advertised. I cannot faulter Mr Budlender's
submission that LUPO has been complied with in that the press
advertisements invited
public comment on the land use application
which lay open for inspection and that the departures and development
parameters were
apparent from that application. I gather from the
papers in any event that members of the ECG did in fact inspect the
land use
application and commented on the departures and development
parameters. The most that could be said in support of the Applicant's

case is that there was what one can call a technical procedural
defect in relation to parcel 7a in that, although the application
for
the rezoning and subdivision of parcel 7a was advertised, as
required, the advertisements did not expressly state in relation
to
parcel 7a that the application included an application for departures
in terms of LUPO. Notably, the Provincial Respondents
argue that that
is a technical, formal defect and not a substantial or substantive
defect. I agree.
[36] The ECG's complaint is not
that it was prejudiced. The ECG does not also dispute that its
members were aware of the exact nature
of the approvals being sought
and commented in respect thereof. Advertising is not an abstract,
procedural requirement. Its purpose
is to alert interested and
affected parties to the proposed application. The harm caused by the
failure to advertise is that interested
and affected parties do not
find out about the proposed application and therefore lose the
opportunity to object to or comment
on it. The fact of the matter is
that interested and affected parties (including the Applicant) were
not prejudiced by the failure
to advertise or by what was contained
or omitted from the advertisements. Interested and affected parties,
including members of
the Applicant, had ample opportunity to - and
did in fact - consider the development parameters (including the
departures in respect
of parcel 7a) contained in the application.
[37] Importantly, an extensive
public participation process was followed in relation to the
environmental authorisation sought under
NEMA (Annexure "CJH48").
The authorisation was appealed against (including by members of the
Applicant) (Annexure "CJH55").
Issues raised in the appeal
included concerns about retention of the trees and the layout of the
proposed service road: these appeals
were dismissed, but concerns
raised by objectors were taken into account in the revised ROD that
was issued. Therefore, the Minister
of Environmental Affairs and
Development Planning was satisfied that the granting of the approval
had been preceded by an extensive
public participation process,
albeit not labelled as a LUPO process and that in substance all
persons, including the Applicant
and its members were afforded an
opportunity to comment on the development proposals that served
before the Minster of Environmental
Affairs and Development Planning.
The Minister of Environmental Affairs and Development Planning was
satisfied that all interested
and affected parties, including the
constituent members of the Applicant had been afforded a fair
opportunity to make submissions
in relation to the application
pertaining to parcel 7 (a).
[38] The alleged
"non-compliance" is that the advertisements did not state
that departures under LUPO were contemplated
and contained in the
land use application which members of the public were invited to
inspect. It is difficult to understand the
ECG's claim that details
of the development parameters were
"not
contained in any public accessible documents".
In
Nokeng Tsa Taemane
Local Municipality v Dinokeng Property Owners Association
(518/09)
[2010] ZASCA 128
(30 September 2010) the SCA dealt with a challenge
to the validity of Notices to the public in terms of
section 10G
(7)
(c) (i) of the
Local Government Transition Act 209 of 1993
, which
required that such notices must reflect the
"general
purport"
of a
resolution which has been taken by a municipal council. Of course, in
this case there is no such requirement that the
"general
purport"
of the
proposed administrative action must be advertised. In fact, the
requirement in this case is less onerous. In the
Nokeng
case
supra
the SCA held as
follows:
"[21] The second attack
on the notices was that they were flawed because they did not set out
the 'general purport' of the
resolutions as required by
s
10G(7)(c)(i).
It was submitted that they should have given clear,
full and specific details of the resolutions and their nature and
effect, and
that it was not sufficient to have stated simply that the
budget had been adopted and that it contained the new property rates
and to invite the public to inspect the detail at the municipality's
offices.
[22] It is clear that the
section does not require details of the resolution and assessment to
be published. Contrary to the submission
by the association that the
notice must set out, amongst others, the rates, areas affected,
rebates applicable and the real and
true effect of the increases of
the rates, I hold the view that this does not accord with the
ordinary grammatical meaning of the
phrase 'general purport.'
[24] The adjective 'general'
qualifies the noun 'purport.' The conjunction was not accidental but
deliberately intended to make
clear that specific details are not
required. In this case the requirement was satisfied because
interested parties were advised
that the resolutions were available
for inspection. This accords with what Alexander J stated about this
phrase in
Rampersad
v Tongaat Town Board
1990(4)
SA 32 (D) at 37G:
"general purport"
then involves an intimation that what
follows broadly covers a
specific topic. If I may expand the notion it would be tantamount to
the Board having to say this: We are
not providing you with all the
details in this Notice but they relate to a rezoning of the La Mercy
Township....'
The learned judge proceeded
(at 37I-J) to elucidate in terms pertinent to the notices with which
this case is concerned: „I
think the point is made because the
section specifically adopts the more practical course of directing
inquiries to the Town Offices.
In this sense the actual mechanics of
the proposed scheme, if I may so describe it, are not to be specified
in the Notice, but
can be scrutinised at close range elsewhere. The
section thus interpreted would support the meaning advanced by the
applicants:
Let the Notice give us some indication that we are the
ones affected by the proposals and then it is up to us to take a
closer
look at them.'
[25] This interpretation is
sound, practical and accords with common sense and logic..."
[39] To insist that the
development parameters and "departures" were not advertised
whilst the members of the ECG were
aware of them as shown above and
even commented on them amounts to an endeavor to elevate form over
substance. The need for flexibility
is well illustrated in the famous
dictum of US Supreme Court Justice Oliver Wendell Holmes, in a
passage often cited by courts
in the USA, India and elsewhere - not
least by two justices of the Constitutional Court - that the
machinery of government cannot
work if it is not allowed
"a
little play in its joints".
Some
flexibility as to form is necessary in order to enable the government
to give effect to the substance, and to do what the Constitution

requires of it. See
Bain
Peanut Co of Texas et al v Pinson et al
[1931] USSC 34
;
282
US 499
(1931) at 501, quoted by Mokgoro and Sachs JJ in
Bel
Porto School Governing Body and others v Premier, Western Cape and
Another
[2002] ZACC 2
;
2002 (3)
SA 265
(CC) para [154]. See also
State
of Haryana and others v Kashmir Singh and Another
[2010]
INSC 828.
Indeed I share the view that some flexibility as to form is
necessary in order to enable the government to give effect to the
substance,
and to do what the Constitution requires of it.
[40] In any event even if I am
wrong in this regard our Courts have repeatedly held that they have a
discretion whether to set aside
administrative action which is found
to be reviewable and that even when an administrative action is held
to be reviewable, a Court
may hold that it would not be just and
equitable for the action concerned to be set aside. Even under the
common law, all judicial
review remedies were discretionary. See
Baxter, Administrative
Law
712-713. This is
now reflected in the remedial provisions of Section 8 (1) of PAJA
which says that where a Court finds that there
has been a defect in
the administrative action, the Court may grant
"any
order that is just and equitable."
The
ECG insists there was no compliance but steps proved to have been
taken complied substantially with the requirements in that
as shown
earlier on in this judgment the object of the statutory prescriptions
was achieved; interested and affected parties were
informed of the
decisions to be taken, had opportunity to comment and did in fact
comment. It is well established that, as Baxter
puts it
"the
Courts will not grant relief where, although unlawfulness has been
established, the complainant has suffered no adverse
effects."
See
Baxter,
Administrative Law
page
718 and cases cited at footnote 323.
[41] In this regard guidance is
to be found in
Dinokeng
case
supra
where the Supreme
Court of Appeal held as follows:
"[14] It is important to
mention that the mere failure to comply with one or other
administrative provision does not mean that
the whole procedure is
necessarily void. It depends in the first instance on whether the Act
contemplated that the relevant failure
should be visited with nullity
and in the second instance on its materiality (see in general
Nkisimane v
Santam Insurance Co Ltd
1978
(2) SA 430
(A) 433H-434E). To nullify the revenue stream of a local
authority merely because of an administrative hiccup appears to me to
be so drastic a result that it is unlikely that the Legislature could
have intended it..."
In
Unlawful Occupiers,
School Site v City of Johannesburg
2005
(4) SA 199
(SCA), the Supreme Court of Appeal held as follows:
"[22]
... it is clear from the authorities that even where the formalities
required by statute are peremptory it is not every
deviation from the
literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defects,
the object of the statutory
provision had been achieved.
"
In
African
Christian Democratic Party v The Electoral Commission and Others
[2006] ZACC 1
;
2006
(3) SA 305
(CC), the Constitutional Court held as follows:
"[24] ... In construing
whether there has been compliance with these provisions, I am mindful
of the reasoning of Van Winsen
AJA in
Maharaj
and Others v Rampersad1964
(4)
SA 638
(A)
The
enquiry, I suggest, is not so much whether there has been ''exact'',
''adequate'' or ''substantial'' compliance with this injunction
but
rather whether there has been compliance therewith. This enquiry
postulates an application of the injunction to the facts and
a
resultant comparison between what the position is and what, according
to the requirements of the injunction, it ought to be.
It is quite
conceivable that a Court might hold that, even though the position as
it is not identical with what it ought to be,
the injunction has
nevertheless been complied with. In deciding whether there has been a
compliance with the injunction the object
sought to be achieved by
the injunction and the question of whether this object has been
achieved, are of importance.'
[25] The question thus
formulated is whether what the applicant did constituted compliance
with the statutory provisions viewed
in the light of their purpose. A
narrowly textual and legalistic approach is to be avoided.
"
[42] In
Moseme
Road Construction CC v King Civil Engineering Contractors (Pty) Ltd
2010 (4) SA 359
(SCA), the Supreme Court of Appeal held as follows:
"[21] ... The learned
judge, in reaching his conclusion, failed to have any regard to the
position of the innocent Moseme.
He also did not consider the degree
of the irregularity. He assumed incorrectly that King was entitled to
the contract and he underestimated
the adverse consequences of the
order. I therefore conclude that he erred in the exercise of his
discretion. This means that King,
in spite of the imperfect
administrative process, is not entitled to any relief. Not every slip
in the administration of tenders
is necessarily to be visited by
judicial sanction''
See
also
Minister of
Social Development v Phoenix Cash & Carry
2007
(3) SA 115
(SCA) Similarly in
The
Chief Executive of the South African Social Security Agency N.O. v
Cash Paymaster Services (Pty) Ltd
(90/10)
[2011] ZASCA 13
(11 March 2011) the Supreme Court of Appeal held as
follows:
"[29] In any event this
court in Moseme Road Construction [supra] ... held that '[n]ot every
slip in the administration of
tenders is necessarily to be visited by
judicial sanction' . Considerations of public interest, pragmatism
and practicality should
inform the exercise of a judicial discretion
whether to set aside administrative action or not."
footnotes
omitted) Also see
Millenium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province and Others
2008
(2) SA 481
(SCA) at para 23. Importantly, in the circumstances of the
instant case and in the light of the urgency presented by the
unfortunate
and untenable situation and plight of the community in
Imizamo Yethu which threatens the rights of that vulnerable
community, indeed
a compelling case is clearly made for such an
exercise of discretion by the Court not to set aside the decision
because such an
order would not be just and equitable in the light of
considerations of public interest, pragmatism and practicality.
PROCEDURAL FAIRNESS
[43] The complaint seems to be
that there was no public participation and that the interested and
affected parties were confused
by the "appearing and
disappearing" of development parameters. Procedural fairness is
dealt with in Section 3 of PAJA
which provides as follows in relevant
part:
"3 Procedurally fair
administrative action affecting any person
(1) Administrative action
which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally
fair.
(2) (a) A fair administrative
procedure depends on the circumstances of each case.
(b) In order to give effect
to the right to procedurally fair administrative action, an
administrator, subject to subsection (4),
must give a person referred
to in subsection (1)-
(i)
Adequate
notice of the nature and purpose of the proposed administrative
action;
(ii)
a
reasonable opportunity to make representations,..."
The question is thus whether
interested and affected parties were given "adequate notice"
of the proposed development
parameters, and whether such parties were
given a "reasonable opportunity to make representations",
within the meaning
of Section 3 of PAJA. Section 3 (2) of PAJA
provides that procedural fairness depends on the circumstances of
each case. Our Courts
have repeatedly held that the facts and
circumstances of each case must be considered in order to evaluate
the fairness of a particular
procedure, and that this evaluation must
be done in a flexible manner. See
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 45 and the case cited in the footnote thereto;
Du
Preez and Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997
(3) SA 204
(A) at 231 -232. In
Premier,
Mpumalanga v Executive Committee of the Association of State-Aided
Schools, Eastern
Transvaal
1999 (2) SA 91
(CC)
the Constitutional Court held as follows:
"[41] In determining
what constitutes procedural fairness in a given case, a court should
be slow to impose obligations upon
government which will inhibit its
ability to make and implement policy effectively (a principle well
recognized in our common law
and that of other countries). As a young
democracy facing immense challenges of transformation, we cannot deny
the importance of
the need to ensure the ability of the Executive to
act efficiently and promptly."
Whilst the proposed development
parameters were not mentioned in the press advertisements which
invited public comment on the development
proposal, details of the
proposed development parameters were contained in the land use
application which lay for inspection and
on which the public was
invited to comment by means of press advertisements and notices sent
to interested and affected parties.
The members of the ECG did
inspect them and did submit comments thereon. It remains difficult to
comprehend the assertion by the
ECG that details of the development
parameters were "not contained in any publically accessible
documents". The complaint
of "confusion" about
development parameters is tellingly not raised in neither the
Founding papers nor the Supplementary
Founding papers. I am in full
agreement with Mr Budlender that it could not conceivably be just and
equitable to stop this entire
development on the basis of what after
all may be technical defects in the process. Public interest,
pragmatism and practicality
dictate otherwise.
THE
POWER OF THE MINISTER: "MUNICIPAL PLANNING"
[44] The Applicant's attack on
the determination of development parameters of Imizamo Yethu on the
basis that such constitutes
"municipal
planning"
as
provided for in Schedule 4 B of the Constitution is not accompanied
by any constitutional challenge to the Provincial Minister's
powers
as set out in LEFTEA and LUPO. The importance of this is that the
substance of the Applicant's argument involves a direct
attack on
LEFTEA and LUPO, which legislations bestow the powers on the
respective Provincial Ministers. It is pursuant to these
laws that
the respective decision-makers granted the impugned approvals.
Neither the Constitutional Court in
Johannesburg
Metropolitan Municipality v Gauteng Tribunal Development and Others
2010 (6) SA 182
(CC) nor the Supreme Court of Appeal in
Johannesburg
Metro Municipality v Gauteng Development Tribunal
2010
(2) SA 554
(SCA) cases defined or gave a detailed description of the
content of "provincial planning". The Constitutional Court,

however, in the
Gauteng
Development Tribunal
case
supra
prefaced
its endorsement of the Supreme Court of Appeal's statement of the
meaning of
"municipal
planning"
by
referring to its judgment in
Ex
parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000
(1) SA 732
(CC) as well as embarking on a general discussion of the
"regional
planning and development"
constitutional
functional areas saying that although they share the word
"planning"
they are distinct
from
"municipal
planning"
and
"
[t]he distinctiveness lies in level at which a particular power is
exercised".
See
Gauteng Development
Tribunal
case
supra
at
paras [54] - [55].
[45] Importantly the ECG
asserted that the Province "does not have the constitutional
power to grant rezoning and departures".
Simply, LUPO confers on
the Province the power to grant rezoning and departures. See Sections
15, 16, 17 and 18 of LUPO. The development
parameters imposed through
LEFTEA are not the granting of rezoning and departures. In any event,
LEFTEA confers on the Minister
the power to decide that township
establishment laws, town planning laws, and laws requiring authority
for subdivision of land
will not apply to land in a municipal area.
It gives him the power to decide that notwithstanding designation, a
provision of one
of those laws (which govern
inter
alia
rezoning and
departures) will apply to such land. LEFTEA gives the Minister the
power to decide matters relating to zoning and departures
in an
indirect sense, in that he may decide that the laws which regulate
those matters will not apply at all - in other words,
that there will
be no zoning and no town planning restrictions in this area. In the
absence of a challenge to the validity of LUPO
and LEFTEA, the
complaint that the Province does not have the power to decide matters
of rezoning and departures plainly could
not survive any scrutiny. In
argument, the ECG changed tack. It then said that its complaint is
that the Minister imposes LEFTEA
conditions of designation. These
conditions re-impose some of the restrictions which the Ministers may
remove entirely, or re-impose
in
toto.
The power to remove
in
toto
is
not challenged, and the power to re-impose in
toto
is not challenged.
Both must therefore be regarded as valid and permissible. It is then
entirely illogical to say that the power
to re-impose only limited
restrictions is impermissible. The power to do the greater must
include the power to do the lesser. But
this is a complaint which was
never raised in the Founding or Supplementary papers. The ECG cannot
raise a new ground of review
in argument.
[46] It must be borne in mind
that the exercise of public power is only lawful when it is exercised
in accordance with its enabling
legislation. Parliament has the power
to enact overlapping authority for different Ministers. The
possibility of conflicting authorisations
granted by different
Ministers or even by the same Minister acting under a different
statutory regime would not in itself negate
the authority as provided
for in the empowering statutory provisions. See
South
African Angling Association and Another v Minister of Environmental
Affairs
2002 (5)
SA 511
(SE) at 517. As a general rule LEFTEA and NEMA are separate
statutory provisions, each with their own requirements and
applications
under them proceed along different statutory regimes.
The NEMA conditions in this matter resulted from the fact that the
proposed
establishment of the less formal township in terms of LEFTEA
would entail a great variety of activities, some of which fell within

the definition of certain listed activities contemplated in NEMA.
Where different statutes apply to the use which could be made
of land
the different legislative schemes need to be complied with
separately. See
City
of Cape Town v Maccsand (Pty) Ltd and Others
2010
(6) SA 63
(WC) at 74 G and 80 F-J. In the instant matter the fact
that the ROD and the LEFTEA and LUPO approvals were granted under
different
statutes in respect of the same project does not mean that
they conflict or are incompatible; it merely means that until all
required
approvals are not obtained the project cannot commence. In
Maccsand v City of
Cape Town
[2011]
ZASCA 141
at para
[34]
(handed down on 23 September 2011) the Supreme
Court of Appeal held:
"In any event, as the
cases (including the Kyalami Ridge case) demonstrate, dual
authorisations by different administrators,
serving different
purposes, are not unknown, and not objectionable in principle -even
if this results in one of the administrators
having what amounts to a
veto. In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another,
Kroon AJ made the point that there
is no reason why 'two spheres of
control cannot co-exist' and that where, as in that case and this
case, one operates from 'a municipal
perspective and the other from a
national perspective' they each apply their own 'constitutional and
policy considerations'. "
[47] Imizamo Yethu is and
remains a classic example in which LEFTEA was needed. The impugned
approvals were clearly taken against
the backdrop of the imperatives
of providing access to adequate housing as well as a basic level of
services, water and education
to all the people of Western Cape and
Hout Bay in particular. It was clearly intended by the legislature
that the legislative framework
of LEFTEA should serve to provide
urgent powers, necessary to deal expeditiously with the plight of the
homeless ­by the very
nature of these powers implementation of
decisions cannot be allowed to be delayed forever. See See
Modderklip
Boerdery (Edms) Bpk v President van die Republiek van Suid-Afrika en
Ander
[2003] 1
ALL SA 465
(T) at 507-508;
Diepsloot
Residents' and Landowners' Association v Adminstrator, Transvaal
[1994] ZASCA 24
;
1994
(3) SA 336
(A) at 348 H-349D.
[48] I am of the view, based on
the above that this application has not merits and is doomed to
failure.
ORDER
In the result I make the
following order:
(a)
The
Application to review, correct and set aside the decisions by the
Provincial Ministers and to declare same as unconstitutional,

unlawful and invalid is hereby dismissed with costs which are to
include:
(i)
the
costs occasioned by the employment of two (2) counsel
by the
Provincial Ministers; and
(ii)
the
costs occasioned by the employment of two (2) counsel
by the City.
(b)
An
order is hereby granted discharging and setting aside the
interdict
granted by this Court on 17 May 2004 under case number
1094/2004.
DLODLO, J