About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 98
|
|
Du Toit v Knysna Municipality and Another (2954/2014) [2015] ZAWCHC 98 (26 June 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 2954/2014
DATE: 26 JUNE 2015
In the matter between
ANDREAS G de M DU
TOIT
............................................................................................
APPLICANT
And
KNYSNA
MUNICIPALITY
..............................................................................
FIRST
RESPONDENT
BERKEL AFRICA (PTY)
LTD
....................................................................
SECOND
RESPONDENT
Coram
:
ROGERS J
Heard:
9 JUNE 2015
Delivered:
26 JUNE 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
This is an application
launched in February 2014 to set aside the approval of building plans
in February 2009 for a building completed
(at the latest) in December
2006. Unsurprisingly the first point, and main point, taken in
opposition to the application is delay.
That the approval of the
building plans was irregular is clear though the precise extent of
the irregularities is open to debate.
[2]
The building plans
relate to a house erected at No 9 Eagles Way in Knysna. The second
respondent (‘Berkel’) owns No
9 and an adjacent property
No 7.
[1]
Berkel is controlled by Mr and Mrs Palmer. They lived in the United
Kingdom until relocating to South Africa in November 2010.
The first
respondent is the Knysna Municipality which approved the building
plans (‘the Municipality’). The applicant
(‘Du
Toit’) owns No 8 Eagles Way. A Mr de Swardt owns No 10. Nos 7
and 9 lie on a slope below Eagles Way and look out
towards the Knysna
lagoon. Nos 8 and 10 are situated above Eagles Way.
[3]
Mr E Bruwer appeared
for Du Toit and Mr DL van der Merwe for Berkel. The Municipality
abides the court’s decision but filed
brief explanatory
affidavits.
The facts
[4]
When Berkel bought Nos
7 and 9 (this appears to have been in the late 1990s or early 2000s)
there already existed a double storey
house on No 7. In October 2003
Berkel obtained building plan approval for a double storey house on
No 9 (‘the 2003 plans’).
I was told by Mr van der Merwe
from the bar that the idea was for the Palmers to live in one of the
houses and Mr Palmer’s
parents in the other.
[5]
During 2004 Nos 7 and 9
were consolidated into a single erf. This had the unintended
consequence that the proposed dwelling at No
9 would be in conflict
with the Zoning Scheme, which allowed only one dwelling per erf in
respect of properties zoned Single Residential.
[6]
In September 2004,
prior to beginning construction, Berkel submitted plans for a
three-storey dwelling on No 9 (‘the 2004
plans’).
Although this application was described as being in respect of an
‘addition’ to the dwelling approved
on 16 October 2003,
the 2004 plans were not truly an addition; they were in substitution
of those previously approved.
[7]
The Zoning Scheme
imposes the following height restriction in respect of properties
zoned Single Residential:
‘
at
most 8m above the natural ground level directly below a given
point or portion of the building with a maximum of 2 storeys;
provided that a departure from
the 2 storey limit may be considered due to the slope of the site;
provided further that the
8m restriction is maintained and that the additional storey is
added to the building on the lower
side of the slope.’
[8]
A ‘storey’
is defined as meaning
‘
a
single level of a building, including a basement, which does not
exceed a height of 4m, measured from finished floor level to
finished
floor level or to the ceiling in the case of the top storey’.
[9]
A ‘basement’
is defined as meaning
‘
that
portion of a building, the finished floor level of which is at least
2m below a level halfway between the highest and lowest
natural
ground levels immediately contiguous to the building; provided that
only one basement per structure will be permitted and
in any case
such basement shall comply with the definition of a storey’.
[10]
The expression ‘natural
ground level’ is defined as meaning
‘
the
natural ground height as depicted on an approved contour map, ie
prior to any earthworks or landscaping’.
[11]
Due to inefficiency or
lack of capacity within the Municipality, no decision on the 2004
plans was made until February 2009. In
the meanwhile, apparently
during 2005, Berkel began construction. Although Du Toit alleged and
Berkel admitted that the house was
completed by December 2006, it
appears from documents in the record that the building must have been
finished by December 2005.
In particular, on 9 December 2005 De
Swardt wrote to the Municipality complaining about the ‘new
house… recently completed’
at No 9.
[2]
Furthermore an occupation certificate in respect of No 9 was issued
on 7 December 2005 (though it incorrectly stated that the constructed
house was in accordance with the 2003 plans).
[3]
[12]
Du Toit, who had
knowledge of the 2003 plans but not the 2004 plans, says that when
building began on No 9 he assumed it was the
approved two-storey
house which was under construction. He then noticed that a third
storey was being added (he says this was in
2006 but it must have
been in 2005). He alleges that over the period 2006 to 2010 he spoke
with a municipal building inspector,
a Mr Kakora (‘Kakora’),
who assured him that a third storey had not yet been approved and
that he would have an opportunity
to object.
[13]
Mr Maughan-Brown, who
made an explanatory affidavit on behalf of the Municipality, was
appointed as the Municipality’s Director
of Planning &
Development during 2008 (he was previously its Manager of Town
Planning and Building Control). He says that after
his appointment
the Municipality made a concerted drive to deal with the backlog in
the approval of building plans. Berkel’s
application of
September 2004 was one of the long outstanding applications dealt
with. They were approved on 20 February 2009,
purportedly in terms of
s 7(1) of the National Building Regulations and Building
Standards Act 103 of 1977 (‘the NBR
Act’). At that time
the Municipality’s Building Control Officer (‘BCO’)
was a Ms Fick. Whether she was
involved at all in the process of
approving Berkel’s plans is in doubt. if she was, it is clear
that she did not produce
a recommendation complying with
Walele
v City of Cape Town
[2008] ZACC 11
;
2008
(6) SA 129
(CC), a judgment delivered by the Constitutional Court on
3 June 2008. The official who finally approved the plans was Ms
Kruger,
the Acting Manager: Town Planning & Building Control.
[14]
In approving the 2004
plans, the Municipality stamped on each page the following caveats:
‘Building height may not exceed
height indicated on plan.
Registered surveyor to certify height on completion’; and:
‘This approval does not absolve
the applicant from compliance
with any applicable title deed restriction, zoning scheme restriction
or any similar restriction
which may be applicable to the
property.’
[4]
[15]
It is the approval of
20 February 2009 that Du Toit wants to have reviewed and set aside.
He says he only learnt of the approval
in late January 2012. The
grounds of review can be summarised thus: (i) Ms Kruger did not
have delegated authority to approve
the plans. (ii) Ms Fick, the
BCO, did not make a recommendation at all, alternatively not in
accordance with
Walele
.
(iii) Because Nos 7 and 9 were a consolidated erf, a second dwelling
was in violation of the Zoning Scheme. (iv) The Municipality
did
not follow the prescribed process for granting a departure from the
two-storey limit in the Zoning Scheme, such process being
the one
laid down in s 15(2) of the Land Use Planning Ordinance 15
of 1985 (‘LUPO’). (v) In any event,
the departure
could not lawfully have been granted because the 8m height
restriction was not maintained and because the additional
storey was
added on the higher side rather than the lower side of the slope, and
no departure had been sought in respect thereof
in terms of s 15
of LUPO. (vi) The Municipality failed to take into account the
factors mentioned in s 7(1) of the
NBR Act, in particular the
adverse effect of the three storey building on Du Toit’s lagoon
view.
[16]
During 2010 Berkel did
certain work on the house at No 7, including the erecting of a
covered pergola above the second storey and
the replacement of an
existing balustrade. In October 2010 the Municipality instructed
Berkel to cease work, to submit as-built
plans for the alterations
and to apply for the necessary departures.
[17]
During March 2011
Marike Vreken Town Planners CC (‘MVTP’) submitted an
application for various approvals in respect
of Nos 7 and 9 (‘the
relaxation application’). At this stage Nos 7 and 9 were still
consolidated but MVTP seems to
have been under the misapprehension
that they had been subdivided. MVTP referred to No 7 and No 9 as Erf
16319 and Erf 13913 respectively.
[5]
The approvals sought were: (i) the removal of No 9’s title
deed restriction requiring a building set-back of 1,52m in
respect of
lateral boundaries, and a departure from the Zoning Scheme’s
lateral building line of 2m, so as to permit the
construction of a
covered walkway linking No 7 and No 9; (ii) a departure from the 8m
height restriction imposed by the Zoning
Scheme in respect of No 7 so
as to permit the pergola and balustrade; (iii) permission for an
encroachment onto the municipal
road reserve in respect of a linking
balustrade from Eagles Way to the garage on No 9.
[18]
In regard to the first
of these approvals, Berkel had already constructed a garden wall
stretching from the one house to the other,
so as to create privacy
and security in respect of the parts of the adjoining properties
below the wall. Berkel wanted to convert
this into a covered walkway.
[19]
In regard to the second
of these approvals, Berkel was seeking a departure in respect of that
which had already unlawfully been
built. In the application MVTP said
that the houses on Nos 7 and 9 both exceeded two storeys but that the
dwelling at No 9 complied
with the 8m restriction whereas the
house at No 7, with the addition of the pergola and balustrade, did
not. Although the
approvals identified in para 2 of the application
did not include a height departure in respect of No 9, the text in
para 9.2 of
the application said that a departure for the third
storey was required.
[20]
The Municipality gave
notice of the relaxation application. Both Du Toit and De Swardt
lodged objections. In his objection, dated
7 April 2011, Du Toit
expressed doubt about the claim that the house on No 9 did not exceed
the 8m restriction. He said that the
house at No 11 was built on a
higher natural elevation and only marginally met the restriction, yet
was significantly lower than
the house at No 9. He said that an
independent surveyor should be commissioned to check this. In regard
to the third storey on
No 9, he said that the existing buildings in
the area with three storeys (to which MVTP had made reference in
motivating the departure)
were built some years ago before the
two-storey limit was introduced. Du Toit submitted inter alia that
the application was flawed
because the houses were located on a
consolidated erf. He objected to all the requested approvals but said
that his main concern
was the contravention of height restrictions,
which applied both to No 7 and No 9.
[21]
Du Toit, it should be
recalled, says that at this stage (April 2011) he did not know about
the approval of the 2004 plans in February
2009. In his objection he
bemoaned the culture of non-compliance with building regulations in
Knysna, culminating (in Berkel’s
case) in the illegal addition
of a third storey to the building on No 9, ‘apparently without
the submission of plans for
approval by the Municipality.’
[22]
On 30 November 2011 the
Municipality’s council made the following decisions on the
relaxation application: The council (i)
refused to relax the lateral
building line imposed by the Zoning Scheme and noted that
relaxation of the lateral building
line imposed by the title deed
could not be considered until No 7 and No 9 were subdivided;
(ii) refused to relax the 8m height
restriction in respect of No
7; (iii) directed that No 9’s encroachment on the road
reserve be negotiated between Berkel
and the Directorate: Corporate
Services; (iv) instructed Berkel ‘to rectify the illegal
structures to comply with the [Zoning
Scheme] as per approved
building plans’ within 21 days of receipt of the notification
letter, failing which the council might
do so at the owner’s
cost.
[23]
On 10 January 2012 the
Municipality notified Du Toit of the decision. Berkel lodged an
administrative appeal, a development which
came to Du Toit’s
notice on 14 February 2012. According to Berkel, its administrative
appeal was confined to the refusal
to relax the height restriction in
respect of No 7.
[24]
Du Toit says that he
telephoned the Municipality in January 2012 and spoke with an
official who told him that building plans for
the three-storey house
on No 9 had been approved several years previously. Du Toit engaged
an attorney, Mr Ross (‘Ross’)
of ED Ras Attorneys, who
wrote to the Municipality on 31 January 2012, seeking clarity about
the ‘illegal structures’
which Berkel had to remove and
stating that these should include the entire third storey added to
the house on No 9, this being
of a ‘much more serious and
invasive nature’ than the illegal structures on No 7 with ‘a
far greater adverse
impact on [Du Toit’s] view and on the value
of his property’. Ross recorded that according to Du Toit’s
investigations
the approval for the additional storey had been
improperly given by an official whose services were subsequently
terminated,
‘
and
that our client was furthermore deliberately misinformed as to the
true nature of such approval for a period of more than 2
years,
thereby preventing him from exercising his rights to object thereto.’
[25]
On 14 February 2012 the
Municipality’s Municipal Manager responded, stating that the
illegal structures to be removed were
those which did not appear on
approved building plans. The Municipality denied that the 2004 plans
had been improperly approved.
The Municipal Manager said that,
following thorough investigation, it appeared that the approval of
the plans had been ‘unusual’
in that they were submitted
in 2004 but only approved in 2009. The reason for the delay was said
to be certain errors which had
to be corrected before the plans could
be approved. Although one section of the house had three storeys,
this was legitimately
accepted by the official who approved the plans
as being in accordance with the Zoning Scheme:
‘
The
finished floor levels are shown on the second set of plans and they
indicate that the level of the lowest floor was marginally
lowered
[6]
and the heights of the internal rooms were adjusted during
construction
[7]
so that the house would fit within the 8 metre height restriction
line.’
[26]
Ross wrote again to the
Municipality on 15 May 2012. By this stage he and/or Du Toit had
examined the 2004 plans. He stated that
they related to a ‘completely
different building’ to the one approved in 2003. He questioned
whether the 2004 plans
had in fact been approved in 2009, stating
that they bore no approval stamp. He said that apart from the 8m
height restriction,
compliance with which was not conceded (visual
evidence, he said, indicated an encroachment), the third storey had
been constructed
on the highest side of the slope, not the lower side
as required by the Zoning Scheme. Ross complained that, despite the
supposed
2009 approval, the Municipality’s building department
had continued to inform Du Toit throughout 2009 and 2010 that the
third
storey had not yet been approved and that he would be given an
opportunity to object. On his client’s behalf he continued
to
assert that the most serious illegality was non-compliance with the
height restriction on No 9. Ross concluded by stating that
Du Toit
reserved all his rights and that he would consider his position
further once the outcome of the administrative appeal was
known.
[27]
On 28 May 2012 the
Municipality’s Municipal Manager replied, stating that Ross
must have looked at the wrong set of plans
because the 2004 plans
definitely bore the Municipality’s approval stamp. She said
that the approved plans clearly showed
that there were only two
storeys on the higher part of the slope.
[28]
In a letter dated 5
July 2012 Ross acknowledged that upon further inspection it appeared
that the 2004 plans did bear an approval
stamp though it was very
faint. He again reserved Du Toit’s rights ‘at least until
such time as the outcome of the
present appeal is known’.
[29]
During October 2012 the
MEC dismissed Berkel’s appeal. The effect of the dismissal was
that Berkel would have to remove the
balustrade and pergola added to
No 7. The Municipality informed Berkel of the decision on 7 November
2012 and instructed it to
rectify the illegal structures within 21
days. (Whether Berkel complied does not appear from the papers and is
not an issue in
this case.)
[30]
Ross wrote to the
Municipality on 28 October 2012, 4 December 2012, 8 March 2013 and 7
February 2013, asking to be informed of progress
in the appeal. The
Municipality had addressed a notification letter to Ross on 14
November 2012 but unfortunately it was sent to
the incorrect postal
address (PO Box 1254 instead of PO Box 1253). The result was that
Ross and Du Toit only learnt of the decision
by way of a further
letter from the Municipality dated 11 February 2013.
[31]
Ross wrote to the
Municipality on 14 February 2013 recording that although Du Toit was
happy at the outcome, the concerns raised
in his letter of 15 May
2012 had still not been properly addressed. Ross noted that Du Toit’s
right to deal with these aspects
further, once the outcome of the
appeal was known, had been reserved. He recorded that Du Toit ‘now
intends doing exactly
this, and you will hear from us further shortly
in this regard’.
[32]
At some stage,
apparently during 2012, the consolidated Erf 13913 was subdivided so
that the houses on No 7 and No 9 now stood on
separate erven.
[33]
On 8 April 2013 Ross
wrote to the Municipality setting out the history of the matter. He
contended that Berkel could not lawfully
have been permitted to
construct a third storey on No 9 without a departure duly granted in
terms of s 15(2) of LUPO. Since
the Municipality had not
followed the s 15(2) procedure, the approval of the 2004 plans
stood to be set aside. The Municipality,
in its correspondence with
Ross, had wrongly insisted, despite the concession in MVTP’s
relaxation application, that no departure
had been needed. Ross
invited the Municipality’s ‘comments and positive
reaction’ on what it was going to do
‘to rectify the
situation’. He stated that if the Municipality did not revert
by 30 April 2013 his instructions were
to proceed with a review
application.
[34]
Ross send a copy of
this letter to Berkel by registered mail. (As far as I can see, this
is the only relevant communication which
Du Toit or Ross had with
Berkel over the period 2005-2014.)
[35]
The Municipality,
through its Manager: Legal Services, replied on 17 April 2013,
stating that it was in the Municipality’s
best interests to
obtain an external legal opinion. Ross was requested to grant the
Municipality an indulgence until the opinion
was received. Ross
responded by granting an extension to 20 May 2013. There having been
no developments by that date, Ross contacted
the Municipality but was
told that the opinion was still awaited. There was a suggestion that
Ross meet with the Municipality’s
external attorney, Mr Andre
Swart (‘Swart’). A meeting took place and there were
various discussions off the record.
There was some uncertainty as to
precisely what plans had been approved. Swart promised to obtain the
approved plans and show them
to Ross. In a letter to Swart dated 3
September 2013 Ross complained that five months had passed since his
letter of 8 April 2013.
He had still not received the approved
building plans. In any event, the building plans were not the only
issue. The matter could
not be allowed to drag on indefinitely. In
the absence of a positive response within 14 days, Ross’
instructions were to
proceed. On 13 September 2013 Swart delivered
the approved plans to Ross; they turned out to be the same as those
which Du Toit
and Ross had all along had.
[36]
On 9 October 2013 Swart
emailed Ross to say that he had consulted with the relevant municipal
officials. His instructions were that
the Municipality viewed the
2004 plans as duly approved.
[37]
Du Toit says that he
decided at this stage to approach a land surveyor to determine
whether the house on No 9 complied with the
8m height restriction. He
engaged a Mr David Friedman (‘Friedman’) but the latter
was not able to deal with the assignment
immediately. Friedman
submitted his report on 31 January 2014, concluding that it could be
stated with certainty that parts of
the house on No 9 exceeded the 8m
height restriction. In the meanwhile, Ross wrote to the Municipality
on 22 November 2013, disputing
that the 2004 plans had been validly
approved and recording his instructions to proceed with litigation.
On 27 January 2014 Ross
wrote a final pre-litigation letter to the
Municipality, complaining that the Municipality had failed to respond
meaningfully to
the issues raised in the letter of 8 April 2013. Ross
called upon the Municipality to respond fully by 12 February 2014,
failing
which the review application would be issued. The
Municipality’s legal department replied on 10 February 2014,
stating that
the Municipality had instructed external attorneys and
that Ross’ letter had been forwarded to them.
[38]
The review application
was issued on 20 February 2014.
Delay –
the legal position
[39]
The approval of the
2004 plans constituted ‘administrative action’ within the
meaning of the Promotion of Administrative
Justice Act 3 of 2000
(‘PAJA’) (see
JDJ
Properties CC & Another v Umngeni Local Municipality &
Another
2013 (2) SA
395
(SCA) paras 11-22).
[40]
Proceedings for
judicial review in terms of s 6(1) of PAJA must, in terms of
s 7(1), be instituted without unreasonable
delay and not later
than 180 days after the applicant has exhausted any applicable
internal remedies or, in the absence of such
remedies, not later than
180 days after the applicant became aware of the action and the
reasons for it or might reasonably have
been expected to have become
aware of the action and the reasons for it.
[41]
Section 9(1) of PAJA
provides that the said period of 180 days may be extended for a fixed
period by agreement between the parties
or, failing such agreement,
by the court on application. The court has jurisdiction to grant such
an application ‘where the
interests of justice so require’
(s 9(2)).
[42]
In
PricewaterhouseCoopers
Inc & Others v Van Vollenhoven NO & Another
[2010]
2 All SA 256
(SCA) it was said, with reference inter alia to
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA
472
(CC), that in assessing the interests of justice a court should
have regard to the extent and cause of the delay, the effect of
the
delay on the administration of justice and other litigants, the
reasonableness of the explanation for the delay (which must
cover the
full period thereof), the importance of the issues raised in the
review and the applicant’s prospects of success
(paras 6-7).
See also
Camps Bay
Ratepayers and Residents Association & Another v Harrison &
Another
2010 (2) SA
519
(SCA) para 54.
[43]
In
Gqwetha
v Transkei Development Corporation Limited & Others
2006
(2) SA 603
(SCA), which was a pre-PAJA case, Nugent JA (who delivered
the majority judgment) explained, with reference to authority, that
the rule that review proceedings must be brought within a reasonable
period of time rested on two main considerations: (i) Firstly,
the failure to bring review proceedings within a reasonable time may
cause prejudice to the respondent. (ii) Second, and more importantly
in the view of the learned judge of appeal, ‘there is a public
interest element in the finality of administrative decisions
and the
exercise of administrative functions’, this being embodied in
the maxim
interest
rei
pub
l
icae
ut sit finis litium
.
For this latter reason, proof of actual prejudice to the respondent
is not a precondition for refusing to entertain review proceedings
by
reason of undue delay although the extent to which prejudice has been
shown is a relevant consideration that might even be decisive
where
the delay has been ‘relatively slight’ (paras 22-23).
[44]
In
Opposition
to Urban Tolling Alliance & Others v The South African National
Roads Agency Limited & Others
[2013]
4 All SA 639
(SCA) Brand JA in para 25 regarded the above purposes as
being equally applicable to s 7(1) of PAJA. Regarding the
approach
to applications for extension in terms of s 9, he said
the following (para 26):
‘
At
common law application of the undue delay rule required a two stage
enquiry. First, whether there was an unreasonable delay and,
second,
if so, whether the delay should in all the circumstances be condoned
(see eg
Associated
Institutions Pension Fund and others v Van Zyl and others
2005
(2) SA 302
(SCA) para 47). Up to a point, I think, s 7(1) of
PAJA requires the same two stage approach. The difference lies, as I
see
it, in the legislature’s determination of a delay exceeding
180 days as
per
se
unreasonable. Before the effluxion of 180 days, the first enquiry
in applying
s 7(1) is still whether the delay (if any) was unreasonable. But
after the 180 day period the issue of unreasonableness
is
pre-determined by the legislature; it is unreasonable
per
se
.
It follows that the court is only empowered to entertain the review
application if the interest of justice dictates an extension
in terms
of s 9. Absent such extension the court has no authority to
entertain the review application at all. Whether or not
the decision
was unlawful no longer matters. The decision has been ‘validated’
by the delay (see eg
Associated
Institutions Pension Fund
para 46). That of course does not mean that, after the 180 day
period, an enquiry into the reasonableness of the applicant’s
conduct becomes entirely irrelevant. Whether or not the delay was
unreasonable and, if so, the extent of that unreasonableness
is still
a factor to be taken into account in determining whether an extension
should be granted or not (see eg
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010]
2 All SA 519
(SCA) para 54).’
[45]
Applicants for review
are expected to be vigilant in protecting their rights. They may not
be supine in the face of decisions adversely
affecting them but must
investigate the reviewability thereof as soon as they are aware of
the decision (
Associated
Institutions Pension Fund & Others v Van Zyl & Others
2005 (2) SA 302
(SCA) paras 50-51).
The 180-day
period here
[46]
The impugned decision
in the present case was taken on 20 February 2009. On Du Toit’s
own version he was told by the Municipality
in late January 2012 that
as-built plans for the house on No 9 had been approved. It is clear
from Ross’ letter of 31 January
2012 that the official told Du
Toit that the plans had been approved several years previously,
because Ross recorded his client’s
complaint that municipal
officials had been misinforming him for more than two years. Du Toit
and/or Ross obtained copies of the
2004 plans shortly after learning
of the approval. By 5 July 2012 Du Toit and Ross had satisfied
themselves that the said plans
in fact bore the Municipality’s
approval stamp. Any attempt to place the date of Du Toit’s
actual knowledge of the
approval later than 5 July 2012 is contrived.
[47]
Du Toit at no stage
formally sought reasons for the Municipality’s decision to
approve the 2004 plans. His attorney did, however,
write letters
alleging various deficiencies in the Municipality’s decision.
In my view, the Municipality’s replies
of 14 February 2012 and
28 May 2012 constituted a sufficient statement of the Municipality’s
reasons for approving the plans.
Du Toit evidently thinks (and still
thinks) that the reasons are bad. However, the question is not
whether the reasons were good
or would withstand attack on review.
The question is whether they were sufficient to allow Du Toit to
formulate a review application.
In my view they were. Indeed, in
regard to the grounds of review which have always represented Du
Toit’s core complaint,
namely the approval of a third storey
and of a structure allegedly violating the 8m height restriction, Du
Toit did not require
reasons in order to make the case that these
restrictions had been violated and that the procedure laid down in
s 15(2) of
LUPO had not been observed.
[48]
It follows that by
early January 2013 at the latest the 180 days prescribed in
s 7(1) lapsed. The review application was
launched more
than a year later in February 2014. As Brand JA said in the
Urban
Tolling
case, the
delay was ‘unreasonable per se’.
[49]
The above conclusion
represents, in my view, a best-case scenario for Du Toit, since it is
based on actual knowledge. In truth,
I think that Du Toit could
reasonably have been expected to have become aware of the decision
and the reasons for it well before
5 July 2012. This will be apparent
from my discussion under the next heading.
Extension
of time in the interests of justice?
[50]
I shall discuss whether
an extension of time is in the interests of justice under subheadings
derived from the factors listed in
the
PricewaterhouseCoopers
case supra.
Extent of
delay and explanation for delay
[51]
Du Toit’s attempt
to explain the delay focuses on the period after 20 February 2009 and
can be summarised thus: (i) As
a fact, he did not know of the
approval of the 2004 plans until late January 2012. (ii) Although
he knew, well before that
time, that the house at No 9 incorporated
what he regarded as an illegal third storey and violated by his
assessment the 8m height
restriction, he duly objected to the
relaxation application of March 2011. (iii) When Berkel appealed
against the council’s
decision of 30 November 2011, he
reasonably awaited the outcome of the appeal before taking further
action. He was only notified
of the appeal decision on 14 February
2013. (iv) Thereafter his attorney wrote to the Municipality on
8 April 2013. At the
Municipality’s request, he held his hand
to afford the Municipality a chance to obtain an external legal
opinion. (v) The
Municipality’s final position was only
conveyed to Ross on 9 October 2013. (vi) Du Toit thereafter
needed to verify
that the 8m height restriction was in fact
contravened, for which purpose he engaged a land surveyor. Friedman
was only able to
furnish Du Toit with his report at the end of
January 2014. (vii) In the meanwhile, and because the
Municipality had never
responded meaningfully to Ross’s letter
of 8 April 2013, Du Toit through his attorney on 27 January 2014
reasonably gave
the Municipality one final chance to give a
substantive reply.
[52]
In assessing the
explanation offered for the delay after 20 February 2009, I do not
think it is right, in the particular circumstances
of this case, to
ignore what happened prior to the approval of the plans. Du Toit’s
review application is not concerned with
the abstract question
whether the plans were lawfully passed. Du Toit’s ultimate aim
is to have part of the house on No 9
demolished so that it will be a
two-storey house complying with the 8m height restriction. This is
foreshadowed in para 1.7 of
the notice of motion, in which Du Toit
asks to be given leave to approach the court, on supplemented papers,
for consequential
relief for demolition in the event of his being
successful in the review relief. In the absence of approved plans,
the doctrine
of legality would require demolition (
Lester
v Ndlambe Municipality & Another
[2014]
1 All SA 402
(SCA).
[53]
Du Toit saw the house
No 9 being built during 2005/2006. On his version the three-storey
structure was complete by December 2006
though the true date seems to
be December 2005. Du Toit was aware that plans for a two-storey house
had been approved and knew
nothing of an approved three-storey house.
Despite this, he did not seek an interdict during 2005/2006 to
prohibit the completion
of the third storey. He did not write to the
Municipality to insist that it enforce the NBR Act and the Zoning
Scheme or ask on
what basis it was allowing a three-storey house to
be erected. He did not do what the neighbours in
Lester
did, which was to
apply for an interdict as soon as they realised that the house which
Mr Lester was constructing did not accord
with the approved plans.
[54]
Du Toit claims to have
been told by municipal officials over the period 2006 to 2010 that
the third storey had not yet been approved
and that he would be given
a chance to object to it. His allegations in that regard are vague.
In the founding affidavit he said
he was told this by ‘officials’
from the Municipality’s building department ‘from about
2006 to 2010’.
[8]
In the replying affidavit he says the assurance came from ‘the
building inspector’ (ie Kakora) ‘from about the
time that
the third storey went up’ and that this was repeated to him ‘on
several occasions up to and including 2010’.
[9]
He did not write a single letter to the Municipality during that
period. It would be unfair to expect the Municipality, in response
to
a review application launched in February 2014, to be able to respond
meaningfully to the evidence of informal communications
between Du
Toit and one or more of its officials a number of years earlier. From
the Municipality’s letter of 14 February
2012 it appears that
Kakora had by that date left the Municipality’s employ. It was
not reasonable for Du Toit to sit back
and do nothing over the period
2005-2010. On the facts as he knew them, there was a patent
illegality, one which he says has had
a materially adverse impact on
his property. If one or more municipal officials fobbed him off by
saying that he would have a chance
to object in due course, he should
have known that their attitude was completely unacceptable and that
action on his part would
be fully justified. Yet the earliest
document from Du Toit in any way relating to the houses on No 7 and
No 9 is his objection
of 7 April 2011 in response to the relaxation
application. By that time the three-storey house on No 9 had been
standing for more
than for five years.
[55]
In part, Du Toit’s
inactivity over the period 2005-2010 is relevant to another question
(ie apart from delay) which arises
in review applications, namely the
discretionary nature of review relief. As I have said, Du Toit’s
ultimate aim is the partial
demolition of the house on No 9. An
application for an interdict to prevent the completion of the
construction or for its partial
demolition could have been brought at
any time during the period 2005 until February 2009. Indeed, on the
facts as Du Toit then
understood them, this remained the position
until January 2012, when he learnt of the approval of the 2004 plans.
His review of
the belated approval of the 2004 plans is simply
additional preparatory relief which he has to seek to clear the way
for his ultimate
object. Given Du Toit’s failure to take any
steps to protect his rights over the period 2005-2010, it is doubtful
whether
a court in the exercise of its discretion would grant review
relief on an application issued as late as February 2014.
[56]
But apart from the
effect of this delay on the aspect of discretion, it has implications
in assessing the reasonableness of the
delay after 20 February 2009.
The court would be more reluctant to condone an unreasonable delay in
launching review proceedings
if the review was a precursor to an even
more unreasonably delayed application for demolition.
[57]
Du Toit should have
been agitating with the Municipality on a regular basis. If he had
done so, matters would have been brought
to a head long before
February 2009. At any rate, regular correspondence with the
Municipality would have ensured that not long
after 20 February 2009
he would have been told of the approval of the 2004 plans. It was not
a matter for informal communication
with lesser officials. A single
letter to the Municipality in the first half of 2009 would almost
certainly have sufficed to elicit
a response that the plans had
recently been approved. The longer matters dragged on, the more
insistent he should have become.
[58]
It is also necessary to
make the point that the question of delay is not only relevant as
between Du Toit and the Municipality.
Berkel had a vital interest in
any attack on its construction activities. There is no evidence that
Du Toit at any stage over the
period 2005-2010 communicated with
Berkel. Indeed, even when Ross began corresponding on Du Toit’s
behalf in late January
2012, his communications were, apart from the
letter of 8 April 2013, solely with the Municipality.
[59]
Turning to the period
after the approval of the 2004 plans, the first written communication
by Du Toit objecting to the construction
work on No 7 and No 9 was in
April 2011 in response to the relaxation application. However, the
said application did not seek a
relaxation of the 8m height
restriction in respect of the house on No 9. Although the text of the
MVTP suggested that a relaxation
was required for the third storey on
No 9, this was not identified in para 2 as one of the
relaxations/departures sought. I do
not think it was reasonable for
Du Toit to assume that his height objections relating to No 9 would
be dealt with in the relaxation
application. He was thus not
justified in remaining passive during the period April 2011 to
January 2012 when he was informed of
the council’s decision on
the relaxation application.
[60]
At any rate, by the
time he received the council’s decision on 10 January 2012, it
must have been obvious to him that his
height objections in relation
to No 9 had not been dealt with as part of the relaxation
application. Du Toit must have been aware
that Berkel’s appeal
to the MEC related to the refusal of the requested height relaxation
in respect of No 7. The MEC was
not being asked to decide, and could
not properly have decided, whether a departure was needed or should
be granted in respect
of No 9. January 2012 was a critical milestone
for another reason: it was in that month that Du Toit learnt that
plans for the
three-storey house had been approved several years
previously. Given the limited scope of the relaxation application and
the council’s
decision thereon, and the limited scope of
Berkel’s administrative appeal, it was not reasonable for Du
Toit to sit back
until 11 February 2013 (when the outcome of the
administrative appeal was communicated to him). There was no point in
reserving
his rights pending the outcome of the administrative
appeal, since the appeal could not have yielded a favourable outcome
for him
in respect of No 9.
[61]
Du Toit’s failure
to have taken any action in the period 2005-2010, coupled with his
discovery in late January 2012 that building
plans for the
three-storey house had been approved several years previously, made
it imperative for him to act swiftly in January
2012. Although Ross
wrote a letter on 31 January 2012 which threatened legal action, he
and Du Toit only examined the 2004 plans
in the first half of May
2012 (see Ross’ letter of 15 May 2012). This inspection, with a
view to potential legal action,
should have been undertaken in
February 2012.
[62]
Following Ross’s
letter of 15 May 2012 (which expressed uncertainty as to whether the
2004 plans had in fact been approved)
and the Municipality’s
reply of 28 May 2012 (confirming that the plans had definitely been
approved), more than a month was
allowed to go by before Ross
confirmed on 5 July 2012 that the 2004 plans indeed bore the
Municipality’s approval stamp.
Had Du Toit acted with
reasonable vigilance after January 2012, this stage could have been
reached by mid-March 2012 at the latest.
(I should add that on the
original plans forming part of the record supplied by the
Municipality the approval stamps are clearly
visible, albeit somewhat
faint.
[10]
)
[63]
After 5 July 2012 Du
Toit allowed matters to drift until the outcome of the administrative
appeal was notified to Ross on 14 February
2013. I have already said
that this inaction on his part was not justified.
[64]
By 14 February 2013
four years had passed since the approval of the plans and one year
had passed since Du Toit learnt of such approval.
Even if the delay
up to this point was not unreasonable, urgent action was now clearly
required. In Ross’ letter of 14 February
2013 he said his
client intended taking further action and that the Municipality would
hear shortly from him in that regard. The
next development came
nearly two months later, by way of Ross’ letter of 8 April
2013. That letter set out the history of
the matter and concluded
with an invitation to the Municipality to say how it was going to
rectify the situation in relation to
No 9. A deadline of 30 April
2013 was set, failing which a review application was to be
instituted. It is not apparent to me how
the Municipality could have
remedied the situation. It could not, without Berkel’s consent,
rescind the approval of the building
plans, since it was functus
officio.
[65]
Du Toit justifies the
delay from April to October 2013 on the basis that the Municipality
asked for an indulgence to obtain an external
legal opinion. This is
where Berkel’s interests again come to the fore. If the review
were simply a matter between Du Toit
and the Municipality, the fact
that Du Toit held back at the Municipality’s instance would
naturally be very material. But
as I have said, Berkel had an obvious
interest in the matter. Particularly in the light of the history of
the case, Du Toit could
not reasonably refrain from prompt action
just because the Municipality was seeking legal advice. The extent of
the indulgence
in any event went beyond what was reasonable. Du
Toit’s evidence is vague regarding precisely what was done in
the period
between the extended deadline of 20 May 2013 and Swart’s
letter of 9 October 2013.
[66]
Even after the letter
of 9 October 2013, there was an absence of swift action from Du
Toit’s side. The review application
was issued more than four
months later. Du Toit’s explanation for this further delay is
in part that he needed to obtain
a surveyor’s report. If he
considered that a surveyor’s report was necessary for purposes
of a proposed review, he
should in the light of the history of the
case have obtained this at a much earlier date.
[67]
Ross’ letter of
27 January 2014 seems to me to have been unnecessary in the light of
the long history. The Municipality had
already clearly conveyed that
it regarded the approval of the 2004 plans as valid.
[68]
To sum up, the extent
of the delay in this case was very substantial and the explanation
unsatisfactory and unconvincing.
Effect
of delay on administration of justice
[69]
The effect of delay on
the administration of justice is concerned, as I understand it, with
the prejudicial effects which delay
can have on the ability of
litigants to furnish proof of relevant facts. In his explanatory
affidavit Maughan-Brown says that the
passage of time has necessarily
had an impact on the ‘institutional memory’ of the
Municipality and on the ability
of the parties involved to recall
relevant aspects. He records the process which Ms Fick and Ms Kruger
to the best of their recollection
believe was followed in the
approval of Berkel’s plans in February 2009. As I have
mentioned, the senior building inspector,
Kakora, had left the
Municipality’s employ by February 2012. He was involved in the
approval process in February 2009. He
is also the official who
allegedly gave Du Toit assurances over the period 2006-2010 and who
was involved in an exchange with another
building control official,
Mr Pierre Korsten, in the first half of 2006 to which Du Toit made
reference in his supplementary founding
affidavit.
[11]
Whether Korsten was still employed by the Municipality when the
review application was launched does not appear. Some of the events
with which they might have been expected to deal went back more than
eight years and were not recorded, or fully recorded, in documents.
[70]
The prejudicial effect
of delay on the administration of justice in the present case is a
relevant factor though I would not place
too much weight on it. I do
not understand the Municipality to say that documents relating to the
approval of the 2004 plans are
no longer available.
Effect
of delay on Berkel
[71]
Prejudice to other
parties in this context is usually concerned with action which a
party took on the strength of the administrative
action before the
institution of review proceedings. Prejudice in that sense is not
present here because Berkel built the house
on No 9 before the 2004
plans were approved.
[72]
Berkel would obviously
be prejudiced if the review were now granted and if, as a
consequence, it were required partially to demolish
the house on No
9. While Berkel may, in view of its unlawful construction of the
house, have had to suffer that prejudice if the
review had been
promptly instituted, the position has changed with the passing of
time. As I have said, Du Toit and his attorney
did not correspond at
all with Berkel over the period 2005-2014 except for sending Berkel a
courtesy copy of the letter of 8 April
2013. The Palmers relocated to
South Africa in November 2010. The house had been occupied by the
Palmers’ family for some
years by the time the review was
instituted in February 2014. The belated challenge to their settled
way of life would self-evidently
be prejudicial.
[73]
In any event, proof of
prejudice to Berkel is not necessary before an extension of time may
properly be refused. This is not a case
where the delay was ‘very
slight’ (cf
Gqwetha
supra) and where
prejudice is thus a decisive consideration.
Importance
of the issues
[74]
The grounds of review
do not strike me as of general public importance. They relate to the
particular facts of the case. In regard
to the process to be followed
for the approval of plans in terms of s 7(1) of the NBR Act, the
law has been laid down in
Walele
and several
subsequent judgments.
[12]
In his explanatory affidavit Mr Maughan-Brown says that the
Municipality had not been able by February 2009 to implement
procedures
to give effect to
Walele
.
There is no reason to believe that this deficiency has not
subsequently been put right.
[75]
The fact that Berkel
built the house on No 9 during 2005 at a time when building plans for
that structure had not yet been approved
is, needless to say, quite
unacceptable. The courts should do nothing to encourage a culture of
non-compliance with planning and
building controls. The
Municipality’s conduct was also deplorable. Even if Berkel was
frustrated by the Municipality’s
failure to process the
building plans expeditiously (and there is no evidence that this was
the reason it went ahead), Berkel was
acting illegally by building
without approved plans (see s 4 of the NBR Act). Berkel’s
remedy, if there was unreasonable
delay in the approval process, was
to institute an application in terms of PAJA to compel a decision
(‘administrative action’
in s 1 of PAJA includes a
failure to take a decision; see also s 6(2)(g) of PAJA and s 8
of the NBR Act). Be that
as it may, Berkel’s unlawful conduct
tainted the construction of the house rather than the approval of the
plans and was
something which could and should have been addressed by
the Municipality or Du Toit during the period 2005/2006 and at any
rate
well before February 2009.
Prospects
of success
[76]
Du Toit has good
prospects of success on the
Walele
issue (the absence
of a proper recommendation from the BCO).
[77]
I do not think it has
been proved that Ms Kruger did not have delegated authority to
approve the plans.
[78]
Although, because of
the consolidation, two dwellings were not permitted on the property
as at February 2009, the subsequent subdivision
renders this
objection academic. It is unlikely that a court would, in the light
of the subdivision, grant the discretionary remedy
of review on this
ground.
[79]
There are two aspects
to the height restriction: the two-storey limit and the 8m limit. In
both instances Du Toit’s complaint
is that, unless and until
departures were duly granted in terms of s 15 of LUPO, the
Municipality was precluded from approving
the 2004 plans. This is
because in terms of s 7(1)(a) of the NBR Act a local authority
cannot approve building plans unless
it is satisfied that the
application complies with the requirements of the NBR Act and any
other applicable law. LUPO and the Zoning
Scheme are ‘applicable
laws’. Berkel should have applied to the local authority in
terms of s 15(1) for the requisite
departures. Had Berkel done
so, Du Toit would have received notice thereof in terms of s 15(2)
and objected.
[80]
It is not altogether
clear that s 15 of LUPO needs to be complied with in relation to
a third storey complying with the qualifications
specified in the
Zoning Scheme. There may be a distinction between the relaxation
power contained in s 15 of LUPO and the
relaxation power
contained in the Zoning Scheme Itself. In the latter case one would
arguably not need to have recourse to s 15.
However, and even if
this were so, the Municipality’s discretion in terms of the
Zoning Scheme is subject to the qualification
that the additional
storey must be added to the building ‘on the lower side of the
slope’. A third storey added on
the higher side of the slope
would be outside the Zoning Scheme and thus require a relaxation in
terms of s 15 of LUPO.
[81]
In the present case the
third storey was added on the higher side of the slope. Mr van der
Merwe expressed puzzlement as to the
practical purpose and effect of
this qualification in the Zoning Scheme as applied to a house of the
kind depicted in the 2004
plans, namely a house stepped down with the
slope (the third storey ends about two-thirds down the slope). If one
accepts Friedman’s
depiction of the natural ground levels for
the south-west elevation, there are only two storeys (being the
second and third storeys)
on the highest side of the slope. The
ground floor (or ‘basement’, as Berkel calls it) starts
a little way down
the slope and is at first almost completely
below the natural ground level. The highest and lowest thirds of the
house are two
storeys (or less) above the natural ground level; only
in the middle third is there a part of the house which is about two
and
a half storeys above natural ground level.
[82]
Nevertheless, I do not
see any real difficulty in the practical and sensible application of
the Zoning Scheme’s qualification.
That qualification must be
understood in conjunction with the other condition for allowing a
third storey, namely observance of
the 8m height restriction. A third
storey added on the lower side of the slope and running through to
the back of the house (ie
ending on the higher side of the slope)
would have to comply at all points with the 8m height
restriction. In the nature of
things, the maximum height of the third
storey would thus be determined by a height 8m above the natural
ground level at the front
of the house (ie at the lowest point of the
slope). A third storey complying with this restriction would, if it
ran through to
the back of the house, inevitably be considerably
lower than 8m above natural ground level at the highest end of the
slope. It
is clear in the present case that if the third storey, as
actually constructed on the higher side of the slope, had extended
forward
to the front of the house (ie to the lower side which faces
the lagoon), the third storey would, at the front of the house, have
exceeded the 8m height by some distance. The only way in which a
third storey could have been added on the lower side of the
slope
while observing the 8m height restriction would have been to locate
the finished ground floor (or ‘basement’)
level at a
lower level (by further excavation) and reducing the internal heights
of the rooms. The result would have been a house
with a considerably
lower overall height.
[83]
Du Toit would thus has
good prospects on his complaint that the third storey as depicted in
the 2004 plans should not have been
approved without a duly granted
departure in terms of s 15 of LUPO.
[84]
Quite apart from the
need for a departure in relation to the third storey, any relaxation
of the 8m height restriction requires
a departure in terms of s 15
of LUPO, since the Zoning Scheme itself does not confer any
discretion on the local authority
in that regard. In response to
Friedman’s report and affidavit, Berkel filed an affidavit by
its own land surveyor, Mr Rohan
Kohler (‘Kohler’).
Although he made some sniping attacks on Friedman’s
methodology, I do not think there is any
genuine factual dispute
regarding Friedman’s conclusions.
[85]
Berkel’s 2004
plans depicted natural ground levels which were derived from a
contour plan drawn by Kohler’s own firm
before construction
began at No 9
[13]
and which was submitted to the Municipality by Berkel’s
architects. Because of differences in the natural ground levels on
the north-east and south-west sides of the house (the right and left
sides as one looks out towards the lagoon), the height above
natural
ground level at any given point differs as one moves from the
north-east side to the south-west side. According to Friedman
the
highest part of the third storey parapet as constructed is (i) within
the 8m limit on the north-east side; (ii) 0,7m
above the
8m limit at a cross-section more or less midway through the
house, reducing to 8m over a distance of 2,35m; (iii) 1,01m above
the 8m limit on the south-west side, reducing to 8m over a
distance of 3,87m. If Kohler’s measurements are used, the
height encroachment may be about 0,2m less.
[86]
More difficult to
determine is whether the plans approved in February 2009 in fact
sought permission for a building which would
exceed the 8m limit.
Friedman pointed out in his affidavit that two dotted parallel lines
were depicted on the 2004 plans, the
lower one purportedly being the
natural ground level and the upper one the 8m limit. The plans show
the house as being within the
limit on both the north-east and
south-west sides. Friedman states that these lines do not correctly
reflect the height above natural
ground level immediately contiguous
to the building. If one compares Friedman’s south-west
elevation
[14]
with the south-west elevations forming part of the 2004 plans,
[15]
one will see that the two parallel lines on the 2004 plans should be
at a lower level. It seems that in the 2004 plans the parallel
lines
for the north-east elevation
[16]
and south-west elevation were depicted as practically identical
whereas in truth the natural ground level on the south-west side
of
the building is lower than on the north-east side. The error can also
be seen if one compares the south-west elevation in the
2004 plans
with the south-west elevation in the 2003 plans.
[17]
In both plans the finished floor level of the ground floor is given
as 95,5m above mean sea level yet the dotted line for the natural
ground level is significantly lower in the 2003 plan than in the
corresponding 2004 plan.
[87]
In one of the
south-west elevations forming part of the 2004 plans (this is where
the height above natural ground level would be
at its maximum), an
official appears to have marked a natural ground level of
97,8m vertically beneath the highest part of
the building and a
top height of 105,35m (excluding an additional parapet marked as ‘not
built’).
[18]
This would indicate a height above natural ground level at that point
of 7,5m.
[19]
Since the natural ground level line on this drawing is too high, the
conclusion that the building complied with the 8m limit was
factually
incorrect, but the notations support the view that in February 2009
the officials involved in the approval process regarded
the structure
as complying with the 8m limit.
[88]
The 2004 plans received
some attention from municipal officials in the first half of 2006,
probably following De Swardt's letter
of 9 December 2005. There is an
internal worksheet recording an exchange between a Mr Pierre Korsten
and Kakora.
[20]
Korsten asked where the original plans with his attached notes were.
The next note says that they are ‘Missing!!’.
Korsten
made a further note on 23 February 2006 that the roof exceeded the 8m
height restriction by 420mm. Kakora replied on 30
May 2006 that
Berkel had ‘cancelled the top bit’ (‘
die
boonste stukkie … gekanseleer’
).
Korsten responded on the same day, stating that the roof exceeded the
height restriction if Berkel had built according to the
plans:
‘
Dit
was nooit die stukkie wat hulle weggelaat het nie. Sien my 97.35 lyn
op die terrein plan
’.
The Municipality did not file explanatory affidavits by Kakora (who
had left the Municipality's employ some years previously)
or Korsten
(whether he was still in the Municipality's service does not appear).
It is difficult to tell whether Korsten was looking
at the 2004 plans
as approved in February 2009.
[21]
It is possible that Korsten, back in 2006, had detected the problem.
However, there is no indication that he was involved in the
approval
process which culminated in the decision of February 2009.
[89]
The Municipality thus
seems to have approved the plans in February 2009 under a
misapprehension that the three-storey house was
within the 8m limit.
In other words, the Municipality did not see itself as approving a
departure from the 8m limit. (This
is consistent with the
Municipality’s explanatory affidavits.) If the Municipality had
been aware that the structure as depicted
would exceed the 8m limit,
it would not have approved the plans unless a departure in terms of
s 15 of LUPO was sought
and obtained. Administrative action can
be set aside if the administrator, as here, made a material factual
mistake (
Pepcor
Retirement Fund & Another v Financial Services Board &
Another
2003 (6) SA
38
(SCA); Hoexter
Administrative
Law in South Africa
2
nd
Ed at 302-306). It would be idle to speculate whether, if Berkel had
brought a departure application in terms of s 15 of LUPO,
it
would have been granted or refused. Du Toit and other affected
parties would have been entitled to be heard before the decision
was
made. One knows that the Municipality refused to relax the height
restriction in respect of No 7, a decision upheld by the
MEC. A
departure application in respect of No 9 may well have suffered the
same fate.
[90]
On the merits,
therefore, Du Toit has favourable prospects on the
Walele
issue, on the third
storey issue and on the 8m height issue. It is unnecessary to
consider whether, independently of these
complaints, approval of the
plans should have been refused in terms of s 7(1) of the NBR Act
because of adverse effect on
the value of Du Toit’s property.
What can be said is that, but for non-compliance with the
qualifications in the Zoning Scheme
relating to third storeys and the
8m height restriction, the house on No 9 would have been
considerably lower than it actually
is, and the excess height
probably derogates from the value of Du Toit’s property.
[91]
However, in order to
conclude that Du Toit has good prospects of success in the review,
one would also need to find that the review
court would not in its
discretion refuse review relief. This discretion, in which
considerations of pragmatism and practicality
are relevant, exists
even where the applicant has not been guilty of culpable delay
(
Chairperson,
Standing Committee & Others v JFE Sapela Electronics (Pty) Ltd &
Others
2008 (2) SA
638
(SCA) paras 28-29). I have already observed that Du Toit’s
failure to take action in the face of the illegal construction
of the
house in 2005/2006 or to have done anything in that regard prior to
the approval of the plans in February 2009 would be
relevant to the
exercise of the review court’s discretion, quite apart from the
impact of such failure in assessing
the delay after February
2009. Even if there were a good explanation for Du Toit’s
failure to institute the review proceedings
earlier than February
2014, a review court might well regard it as inappropriate, so long
after the event, to grant relief. The
review relief would only be of
practical assistance to Du Toit if it led in due course to a partial
demolition of the house on
No 9. By February 2014, when the review
was launched, that house had been standing for more than eight years,
and now the period
is nine and a half years.
[92]
Ultimately, therefore,
Du Toit’s prospects of success in the review are fair but he
would be at significant risk of a discretionary
refusal of relief.
Conclusion
on extension of time
[93]
In this case, as no
doubt in many others, the ultimately decisive considerations are, in
my view, the extent of the delay and the
validity of the explanations
given for the delay. In my opinion, the extent was very significant
and the explanations unsatisfactory.
When one adds to this the
ultimate object of the review application (partial demolition) and
the length of time for which the completed
house has been standing,
this is a case where the interests of justice come down in favour of
a conclusion that the invalid administrative
act must, for the sake
of finality, be allowed to stand.
[94]
The present case is
distinguishable in many respects from the
Lester
decision supra, on
which Mr Bruwer placed some reliance. In
Lester
the neighbours
acted vigilantly and promptly, bringing no fewer than six
applications for interdicts and review as each unlawful
step
unfolded. By the end of an arduous judicial process, Mr Lester was
left with no approved building plans for an existing structure.
In
those circumstances the Supreme Court of Appeal, emphasising the
doctrine of legality as part of the rule of law, concluded
that there
was no discretion to refuse a demolition order. In the present case,
by contrast, the question is whether a potentially
impeachable
approval of building plans should be set aside. Our law recognises
that sometimes defective decisions must be allowed
to stand and
thereby be ‘validated’ (
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
2004
(6) SA 222
(SCA) para 27;
Sapela
supra para 28).
That is the position here, and the result is that Berkel’s
house on No 9 is not an illegal structure (unless,
to any extent, it
has not actually been built in accordance with the plans approved in
February 2009).
Conclusion
[95]
It follows from
everything said above that the prayer for an extension of time in
para 1.4 of the notice of motion and the prayer
for review in para
1.1 must be refused.
[96]
In para 1.5 of the
notice of motion Du Toit seeks an order that the Municipality give
him notice in terms of s 15 of LUPO of
any departure application
in respect of No 9. As I understand it, this concerns the departure
application which Berkel would have
to bring if the approval of the
2004 plans were set aside. Since the review relief has been refused,
para 1.5 falls away.
[97]
In para 1.3 of the
notice of motion, and in the alternative to the review relief, Du
Toit asks that Berkel be ordered to comply
with the approved plans
and that the Municipality be ordered to enforce compliance therewith
as well as compliance with the building
line restrictions. The
difficulty with this prayer is that the evidence does not satisfy me
that the structure as built is not
in accordance with the approved
plans. The plans may have been approved by the Municipality under a
misapprehension that the depicted
structure was within the 8m height
limit. It by no means follows that the structure as built is not the
one depicted in the plans
or that it was not located at the levels
indicated on the plans (ie with a finished ground floor level of
95,3m above mean
sea level and with storey heights as specified
in the plans).
[98]
Mr Bruwer submitted
that part of the approval of the 2004 plans was a condition that the
building height could not exceed the height
indicated on the plans
and that this was to be certified by a registered surveyor on
completion. It appears that the Municipality
has not obtained this
height certificate, an omission to be deprecated. I think that the
building height referred to in this condition
is the height from the
finished ground floor level indicated on the plans. I do not
understand it to be suggested that the building
was not located at
the finished ground floor level indicated on the plans (95,3m) or
that any of the storeys are higher than the
dimensions specified on
the plans. Although the Municipality was at fault in not obtaining
the certificate, I am not sure that
para 1.3 of the notice of motion
is sufficiently wide to include a prayer compelling the Municipality
now to obtain the certificate.
In any event, the grant of such relief
would be subject to the same discretionary considerations as apply to
the review relief.
[99]
In para 1.6 of the
notice of motion Du Toit asks that Berkel be interdicted from
effecting any building work on No 9 in conflict
with lawfully
approved plans and that Berkel be ordered to comply with the plans
and building line restrictions. In part, this
relief overlaps with
that sought in para 1.3. For the rest, there is no evidence that when
the application was launched in February
2014 Berkel was undertaking
or threatening to undertake any building work on No 9. The house had
been finished some years
previously. Although Berkel had wanted
to construct a covered walkway between the houses on No 7 and No 9,
its application for
a relaxation to allow this was refused. Mr van
der Merwe told me from the bar that the covered walkway was never
constructed. At
any rate, there is no evidence to indicate otherwise.
[100]
Para 1.7 of the notice
of motion sought leave for Du Toit to approach the court on amended
papers for consequential demolition relief.
This falls away with the
refusal of the other relief.
[101]
In regard to costs,
both Berkel and the Municipality have at times acted in a manner
worthy of censure. However, such conduct predated
by some time the
launching of the review application in February 2014. By the latter
date, delay loomed large as a litigation risk
for Du Toit. The
Municipality abided the court’s decision and Berkel opposed,
devoting most of its energy to the question
of delay. I do not think
in the circumstances that I would be justified in departing the from
general rule that costs follow the
result.
[102]
I thus make the
following order: The application is dismissed with costs.
ROGERS
J
APPEARANCES
For Applicant Mr ECD
Bruwer
Instructed by ED Ras
Attorneys c/o Abrahams & Gross Inc
1st Floor, 56 Short Market
Street
Cape Town
For Second Respondent Mr
DL van der Merwe
Instructed by Logan Martin
Inc
20 Woodmill Lane Centre
Main Street
Knysna
c/o BM Attorneys
Suite 203, 80 Strand
Street
Cape Town
[1]
No 7 was initially Erf 7436 and No 9 Erf 7435.
Upon consolidation in 2004 they became Erf 13913. A subdivision
application lodged
in 2007 would have resulted in No 7 becoming Erf
16319, a reference sometimes used in the papers. In terms of a later
approved
subdivision, No 7 became Erf 18265 and No 9 became
Remainder Erf 13913.
[2]
Record 202-203.
[3]
Record 444.
[4]
These caveats are not legible in the copy of the
2004 plans attached to the founding papers but can be seen on the
original plans
forming part of the record furnished by the
Municipality (rule 53 record pp 592-600).
[5]
See footnote 1 above.
[6]
It seems from the handwritten alterations on the
plans that the finished ground floor level was changed from 95,5m to
95,3m above
mean sea levels (see record 72, 73, 74 and 78).
[7]
The handwritten alternations on the elevations
and cross-sections at record 72-74 show that the heights of the
ground and first
storeys were changed from 3,4m and 3,2m to 3m each.
[8]
Para 47 record 31.
[9]
Para 6.1.2 record 294.
[10]
Rule 53 record pp 592-600).
[11]
See para 88 below.
[12]
See in particular
Turnbull-Jackson
v Hibiscus Coast Municipality & Others
2014
(6) 592 (CC).
[13]
See the site plan by Cecilia Architects at record
76, which has the same contours as the contour plan at record 68
produced by
VPM Surveys (Kohler’s firm).
[14]
Record 148.
[15]
Record 69, 72 and 74.
[16]
Record 73.
[17]
The comparison is between record 63 (2003) and
record 69 (2004).
[18]
Record 72.
[19]
The dimensions on the elevations (record 73 and
74) show a height between the finished floor level of the second
storey and the
parapet above the third storey of 6,72m (3200mm +
250mm + 770mm + 500mm). The natural ground level depicted (albeit
wrongly)
on the south-west elevation is, at the highest point of the
building, less than one metre below the finished floor level of the
second storey, which is another way of deriving the supposed
compliance with the 8m height restriction.
[20]
Record 194.
[21]
The plans attached to the founding affidavit, and
the originals forming part of the rule 53 record, do not reflect a
97,35m line.