PR 22 Mar '10: Supreme Court of Appeal Ruling in the Harrison Matter

FOR IMMEDIATE RELEASE

22 March 2010

Supreme Court of Appeal Ruling in the Harrison Matter


Regrettably, the CBRRA lost its appeal to the Supreme Court of Appeal in Bloemfontein in the Harrison matter. After the Cape High Court dismissed the application to review and set aside the City’s planning approval for Yvonne Harrison’s building on the corner of Geneva Drive and Blinkwater Rd, the CBRRA appealed the matter to the Appellate division. This was heard in August 2009 and the judgement was only handed down last month – February 2010.

Clearly, the committee is extremely disappointed at this outcome and after much soul-searching and deliberation, it has been decided to petition the Constitutional Court to reconsider the matter on appeal. One can quite logically ask why, after two reversals, the CBRRA is continuing. To put this into perspective, the CBRRA notes the following:

Firstly, the SCA appeared to accept that this case is simply a dispute between neighbours. The fact that the community through its Association has been involved from the outset was ignored. Also ignored was that the City had joined on the side of the developer – with our rates money. The City claimed that important planning principles were involved. No matter what – this was clearly not a mere dispute across the boundary fence.

But on the legal side, both our Senior and Junior Counsel are of the opinion that there are a number of issues that the Concourt needs to consider. Without going into the complicated legal arguments, our case rests on the following points:

• We submit that the City failed to properly consider all the objections prior to plan approval. CBRRA is of the opinion that these objections were well reasoned and valid.
• The building exceeds the 10m height restriction and is indicated as such on the plans.
• There is a retaining wall along the Blinkwater Rd boundary that contravenes the Title Deed restrictions.
• The building is not set back from the boundary as per the Zoning Scheme regulations. Although the Cape High Court rejected this point on a discretionary basis, the SCA did agree with us. However, they decided to condone the contravention, based on what our legal team believes is a misconstruction of the PAJA Act. Interestingly enough, this was the only bit of “planning principle” ruled upon by the Court and it confirmed that the City had incorrectly passed the plans in the first place. So much for the City’s purported reasons for supporting the developer!!

The Court also needs to clearly define how the Zoning Scheme Regulation 98 rule regarding the measurement of the height of a building is made. The City seem to think that there are three possible ways of doing this but have chosen one that CBRRA considers illogical and not in terms of the Zoning Scheme. The recent appeal judgement did not address this issue and therefore the City’s announcement that CBRRA has “lost” the appeal must be tempered with the fact that this matter was not finalised and will continue to be an issue in its new appeal.



This is the basis of CBRRA’s case and we await the Concourt’s decision as to whether they will hear the matter.

To find out more, please contact the following:

Chris Willemse, Chairman of the CBRRA Planning Committee
Mobile 083 653 6363 or email cwpm@pcnetwork.co.za

OR

Camps Bay Ratepayers and Residents Association
Tel 021 438 8782 or email campsbayratepayers@gmail.com
Blog campsbayratepayers.blogspot.com