"Interesting case to watch - (possibly?) the first contestation of a municipal bylaw under SPLUMA" - A Post on the SACPLAN LinkedIn Group

[Alka Ramnath]

This was posted on the SACPLAN LinkedIn group.

"Interesting case to watch - (possibly?) the first contestation of a municipal bylaw under SPLUMA"

Stuart Denoon-Stevens
Junior Lecturer at University of the Free State

Interesting case to watch - (possibly?) the first contestation of a municipal bylaw under SPLUMA

Tavakoli and Others v Phase III Development Company (Pty) Ltd and Another (22026/2015) [2015] ZAWCHC 188 (11 December 2015) - interdict focused on the issue of the legality of permitting a group housing development on a road with a reserve less than 9m (and a related issue to building line departures).

http://www.saflii.org/za/cases/ZAWCHC/2015/188.html

 

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[Gert Roos]

The City of Cape Town's planning By-law is not contested in this case.  It would be more correct to state that it is probably the first case in which applicants to court are using provisions of a planning By-law in support of their court application and a municipality is using other provisions of the same planning By-law to defend its conduct.  The lawfulness of the provisions of the By-law are not questioned by any party.  

[John Forbes]

I suspect this application to the Courts has absolutely nothing to do with the points being argued, viz.  a road width of less than 9 metres, access off of same,  a rezoning of a donated road servitude to Road from General Residential and a relaxation of the boundary line below 4.5 metres to the widened road, but is rather all about protecting the sea view of the properties up slope!  A pictorial poster of the proposed structure on fence in Google Street View shows a multi-storey building.

The arguments in the judgement I found rather difficult to follow.

• The respondent (applicant) seems to want to build in terms of the land use scheme and is supported by the municipality, but technicalities have been brought up to frustrate him by the applicant (objector).  For one the judge sees a declaration of a road by the administrator/MEC as being a necessary requirement.  Is this not interference in municipal planning as defined in the SA Constitution?
  
• The issue of whether it is a road servitude or road subdivision seems irrelevant, at least in this province (KZN).  Many roads are road servitudes, including Main Roads! 
• The municipality may always grant a relaxation of the building line to the new road following donation.
  
• The municipality may also rezone the road servitude from General Residential to Road.  In Cape Town's case it seems a formality.
  
• A total preclusion on exercising zoning rights where existing roads are less than 9 metres without a special consent provision, is harsh.

Cape Town have probably had a far better chance than most municipalities in getting their planning by-law sorted out as they have been working on them for years, but loop holes have been found by the legal fraternity to frustrate the scheme intentions. 

........ and nowhere does the judge query the rationale by the applicant (objector) in bringing the action.  Only alluding to it as not being argumentative or vexatious!

Sadly, it seems planning issues are being decided by judges and where, apparently in this case, he is struggling to understand the jargon. 

Where the appeal authority is to be the executive authority, as required in Section 51 of SPLUMA and municipal by-laws, we will likely see many more such cases.