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Saturday, 20 August 2011

CBRRA comment on Appeal Erf 1565, 5 Theresa Ave

18 JULY 2011
The Director: Integrated Environmental Management
Dept of Environmental Affairs and Development Planning
PGWC
1 Dorp Street
Cape Town 8001
FAX: 021 483 3098

Dear Sir/Madam
APPEAL ito of LUPO 15/85 : APPLICATION FOR SUBDIVISION & CONSENT USE

FILEREF : LM 4737
APPLICANT : TOMMY BRUMMER TOWN PLANNERS
OWNER : AJ MILES
ERF : 1565
LOCATION : 5 THERESA AVE
SUBURB : CAMPS BAY

The CBRRA strongly supports the City of Cape Town’s decision to refuse this application.
As a preamble, it must be noted, with great concern, that both the Section Head and District Manager of the City’s Land Use Management Branch signed off on the recommendation for approval of a double dwelling on the one sub-divided erf, to the Good Hope Sub Council (GHSC), despite the fact that the Provincial Minister had expressly forbidden it. The letter from the Directorate Integrated Environmental Management dated 07 October 2010 clearly states that the condition E.(5).(b) – the single dwelling restriction – be removed, to be re-imposed again on the newly created erven (the Department’s emphasis). Not only does this letter occupy a prominent position in the application document and shouldn’t have been missed, but the Minister’s decision is recorded on page 1 of a 2-page letter that is in double spaced type and abundantly clear.

The CBRRA requests that the circumstances surrounding such dereliction on the part of the LUM of the City and an experienced architect in private practice be investigated as this could be a case of a condoned irregular application.

That this application was incorrect has been conceded repeatedly by the Applicant in his submission. However, the Applicant appears to now blame the GHSC for making a fatally flawed decision rather than look at the actual situation: The Provincial Minister’s decision not to remove the single dwelling restriction meant that this application needed to be re-advertised to reflect the new reality of the amended title deed restrictions applicable to the erf. To argue that this becomes a de facto lesser application (2 units in lieu of 3), and therefore legitimate, is trite and not supported by any legislation. Applications must be advertised for what is applied, not for what might be an eventual outcome. Clearly, it is impossible to apply one’s mind to an inaccurate application and this process must now be considered fatally flawed. If circumstances change during the application period, especially if this is due to administrative action, then the revised application must be advertised ab initio.

It was established at the GHSC meeting convened to hear this matter that the sub-division would result in too much densification and that the concerns of the Environmental Management Branch regarding green corridors, space for planting and the urban edge were not adequately addressed. The City has every right and is, indeed, mandated to consider and protect the built environment from over densification that results in the loss of a proper urban edge. The Applicant’s argument, that the Minister gave this point detailed examination, in terms of the broad ambit of the Removal of Restrictions Act, is fanciful. In fact, the Applicant concedes that he is only “of the opinion” that the Minister gave “adequate consideration” to this aspect.

The Applicant further argues against the “too much densification” by referring to the various policy guidelines currently in place viz. the MSDF and the MuniSDF which are claimed to support densification. It is common cause that these documents are in favour of densification but it must be borne in mind that these are merely broad brush-stroke policies that encourage densification along established transport corridors to maximize existing infrastructure. This very argument was placed before the WC High Court in the CBRRA vs RBC Subeleven matter. Mr Justice Bennie Griesel ruled that to equate the goals of such policy documents with the financial rewards of an owner increasing the rights on his property in an upmarket area such as Camps Bay was untenable. The argument was rejected in its entirety. The Province and the City are bound by this judgement.

The Applicant also refers to the Provincial Urban Edge Guidelines requiring that such developments must highlight any compatibilities between the proposed use and the existing urban edge. It is then suggested that the result of the sub-division will be a low density single dwelling development. However, the plans submitted with the application are no longer valid (the double dwelling is not permitted by right) and are reference plans only in the first instance. When pressed to supply a proposed a new development plan/envelope by the CBRRA, the Owner refused. It may well be that plans for two massive, inappropriate buildings, on the urban edge, be submitted if the sub-division is approved prior to formal plan submission and there will be no recourse for the City or the community.

This clearly puts the GHSC decision in its correct perspective: The Owner must submit a new application for the sub-division that includes accurate and binding plans. The Removal of Restrictions phase has been completed and the situation that now exists is not that contemplated by the original application – especially in terms of the Zoning Scheme.

The Western Cape High Court judgement (Case 6866/04 Bloubergstrand) handed down by Mr Justice Yekiso has established that applications must conform with all applicable law before the relevant Authority may consider them. Clearly this application does not comply and as such cannot be considered until all affected parties have waived their rights to the concessions sought. This ruling was not simply about a height restriction, as incorrectly stated by both the original Applicant and the City planners.

The Supreme Court of Appeal (in the True Motives vs Madhi case # 543/07) has also added that such a proposal must be considered ito s7 of the National Building Regulations and Standards Act, when the application does not conform with all applicable law. In this specific instance, the building will derogate from the value of affected neighbours’ properties and of the urban edge if the sub-division is granted and therefore planning permission must be denied.
The above two reported cases represent established case law in this country. However much a local authority might feel that such rulings undermine their competence or independence in terms of LUPO, the fact remains that planning officials have to respect such case law. It is clear that in this case the officials have ignored case law and that the GHSC has been presented with an application for approval that is ultra vires.

Given the prominence of this erf on the urban edge and bordering the National Park, it is suggested that the City also advertise this application in terms of s7 of the NBR.
In conclusion, the Provincial Minister dealt with the application in terms of the Removal of Restrictions Act and the City must now deal with the results of that administrative action. Following from that, it is clear that the GHSC has exercised its powers correctly in terms of the competency of the City and its decision is sound and should stand. It is a non sequitur that the City must simply reach the same decision as the Minister regarding a sub-division. Each Authority is assessing the application against different parameters, one being the Zoning Scheme and the other being the Removal of Restrictions Act.

Regards

CHRIS WILLEMSE
CHAIRPERSON
CBRRA contact: Chris Willemse Mobile 0836536363 Fax 021 4380703
cc The Director: Planning & Building Development Management Cape Town Region
Box 4529
Cape Town 8000
Attn Mr Kajabo Ngendahimana

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