Application for the removal of title deed restrictions ito s82 & s83 15 the Meadway

The District Manager, Table Bay District

Development Management, Transport & Urban Development Authority

City of Cape Town

Cape Town

8000

ATTN   Ms Juliet Leslie

Dear Ms Leslie

APPLICATION FOR THE REMOVAL OF TITLE DEED RESTRICTIONS ito s82 & s83 of THE CAPE TOWN MUNICIPAL BY-LAW

CASE ID         70371487

APPLICANT      TOMMY BRUMMER TOWN PLANNERS

ERF                   207

LOCATION         15 THE MEADWAY

SUBURB           CAMPS BAY

The CBRRA strongly objects to this application.

Insofar as the basic, generalized merits of the application are concerned, please note the following:

The CBRRA has met with the affected neighbours and their opposition to the proposed building was strongly registered. It is therefore clear that this application fails the test for being in the interests of the community, in terms of applicable law.

Specifically, this application is opposed on the following grounds:

·       The proposed structure, with its many contraventions of the Title Deed, is clearly inappropriate to the area and is merely an attempt to over-bulk the site to the exclusive benefit of the applicant.

·       The application, if successful, will result in a loss of privacy, views and the amenities of living in a generally single dwelling neighbour for the surrounding property owners, which is unconstitutional.

·       The City of Cape Town’s Densification Policy encourages erven in areas such as this to be extended from single to double dwellings – there is certainly no mention of increasing the density from one to five units. Further, the Policy requires concomitant increase in infrastructural services to accommodate such densification. It is common cause that both the overloaded road system and inadequate sewerage system will not be upgraded by the City. The application is therefore non-compliant with policy.

·       The deletion and amendment of so many title deed conditions (9 in total) raises constitutional issues. It is well known that the City considers that the enactment of new laws such as SPLUMA, LUPA and the MPBL give it tremendous powers over the real rights conferred on property owners through the restrictive title deed conditions in the various Deeds of Transfer applicable to the township. It is the legal advice of the CBCRA that this is simply wrong in law and that the City is expropriating real, constitutional rights of citizens without proper due process or, importantly, compensation. This is in clear conflict with s25 of the Constitution of South Africa. It is trite to contend that a benefit to one owner (the applicant) will result in a similar benefit to an affected party who enjoys rights which this application proposes to nullify. It is clear that the benefit to that one party (the applicant) invariably, as in this case, is prejudicial to the rights of affected parties in the township. The CBCRA reserves its rights to lead legal argument in this regard at the appropriate forum.

·       Further, the restrictive title deed conditions applicable to the subject Erf were registered in favour of the owners of property in this township and, as such, may not be summarily removed without the express permission of those affected parties. The various divisions of the High Court of South Africa have exclusively - and repeatedly – ruled that title deed restrictions, applicable to any property in a township, are praedial servitudinal rights and may not be amended or expunged by mere executive action if, inter alia, a positive benefit to that community is not shown. In this case, no positive benefit to the area has been established by the applicant.

·       In general, the number of contraventions of applicable law for which this proposal is applying is evidence enough of an inappropriate development, which is only in the short-term financial interests of the applicant – and totally prejudicial to the rights of the adjoining property owners and the area in general. This proposal is one to destroy the rightful amenities of the owners of property in Camps Bay in favour of the financial benefit of a developer, amongst other negative issues.

The Western Cape High Court ruled, in the Camps Bay Ratepayers vs. RBC Sub Eleven matter, that the Minister may not remove or amend restrictive title deed conditions if it is not in the interests of the community (Griesel, AJ, as he was then). The learned judge went further and ruled that the test must also be a positive one – in other words, the applicant must show a positive benefit for the community when submitting such an application. Other divisions of the High Court have handed down similar rulings. The applicant has failed to show any benefit, of any kind, to the community and this is clearly a case where such removal is actually only in the narrow financial interests of the developer, which, the Court ruled, could not sustain an application such as this.

The case law so established devolves upon the MPT in terms of legal precedent, as this is not simply a planning law issue but a constitutional property issue, as more fully described above.

The Supreme Court of Appeal (in the True Motives vs. Mahdi 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 to all applicable law. S7 reads as follows:

7 Approval by Local Authorities in Respect of Erection of Buildings

(1) If a local authority, having considered a recommendation referred to in section 6(1)(a)-

(a) is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof; [Para. (a) substituted by s. 4 (a) of Act 62 of 1989.]

(b)       (i) is not so satisfied; or

(ii) is satisfied that the building to which the application in question relates-

(aa) is to be erected in such manner or will be of such nature or appearance that-

(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb) it will probably or in fact be unsightly or objectionable;

(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;

(bb) will probably or in fact be dangerous to life or property, such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal:

It is noted that the City has consistently held that the provisions of s7 are not in question at this stage of an application – and that once granted, the departures actually trump the provisions of s7 in the first instance! The CBCRA has always contended that this “smoke and mirrors” approach by the City is legally challengeable and, in effect, a disingenuous approach of favouring development at all costs.

Recently, in case 6561/2015 out of the Western Cape High Court, the Honourable Mr Justice Binns-Ward ruled that the local authority must consider s7(1)(b)(ii) even if it has been found that the planning application complies with all applicable law. The CBRRA contends that this regulation will render the application fatally flawed, if properly assessed.

In this specific instance, the unjustifiable increase in the number of units, loss of amenities and resultant traffic increase, which, in fact, does not comply with applicable law, will derogate from the value of the affected neighbours’ property and the public amenity of protected views and privacy and, accordingly, must be denied. Professional opinion as to such derogation of value will be presented to the MPT if required.

The CBRRA requests an interview at the MPT committee meeting, which will be convened to decide this application.  

Regards

CHRIS WILLEMSE

CHAIRPERSON