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Wednesday, 12 June 2019

Appeal in terms of against mpt decision iro erf 3265 17 Theresa AVE


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The City Manager                                                                                                             
C/o The Table Bay District Manager
City of Cape Town                                                                                                                                                                

                                                                                                        
Case ID # 70379958

Dear Sir

APPEAL IN TERMS OF S108(1) OF THE CITY OF CAPE TOWN MUNICIPAL BYLAW 2015 (“MPBL”) AGAINST THE MUNICIPAL PLANNING TRIBUNAL (“MPT”) DECISION OF 07 MAY 2019 TO APPROVE THE RELAXATION OF TITLE DEED RESTRICTIONS AND TO REFUSE TO GRANT DEPARTURES IN RESPECT OF ERF 3265 CAMPS BAY AT 17 THERESA AVE


The CBCRA hereby registers its appeal against the partial decision of the MPT to approve the relaxation of a title deed restriction relating to the single dwelling condition, as set out in the MPT ruling of 07 May 2019 (“the MPT decision”), ref. ID 70379958, on the grounds set out herein.

The CBCRA fully concurs with the Planners’ report and the MPT decision to refuse to grant certain departures and title deed relaxations, based upon the fact that the proposal is for an excessively large and inappropriate building on the urban edge of the Table Mountain National Park. This would be completely undesirable and have an adverse affect on the biophysical environment.

However, the approval of the relaxation of the restrictive title deed restriction relating to the single dwelling cannot be considered as anything but arbitrary, as there is no reciprocity or uniform basis for the decision. This renders the decision as unconstitutional in terms of s25 of the Constitution, which clearly states that nobody may be deprived of property in an arbitrary manner. The Court has also held that property includes such rights as praedial servitudes, such as a restrictive title deed condition.

The MPT erred, in the opinion of the CBCRA, in finding that the application does not materially or adversely affect the rights of surrounding properties. Many objectors, who are neighbouring property owners, cogently argued that the application does indeed negatively affect them.

Further, the MPT failed to consider that, at a recent meeting of this same Tribunal, it resolved not to approve a similar application for the relaxation of a title deed restriction based upon the fact that it had refused to grant departures required for the proposed Site Development Plan. In essence, once the SDP was no longer possible due to the refusal of the departures, it ceased to exist. The CBCRA argued, in that matter (which incidentally was for the adjoining erf at 19 Theresa Ave), that absent the SDP, no removals/amendments or relaxations to title deed conditions could be considered, as the decision would be of an arbitrary nature. In that matter, the MPT agreed and refused the relaxations for which application had been made. It is nonsensical that the MPT now takes another stance in this application.
Clearly, the decision is arbitrary and the CBCRA submits that the appeal is bound to succeed on this ground alone.

The CBCRA respectfully requests that this appeal against the MPT decision be upheld.  
Regards

CHRIS WILLEMSE
CHAIRPERSON

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