CBRRA Erven 749 & 750 Application for removals, subdivision and departures

CBRRA Erven 749 & 750 Application for removals, subdivision and departures


8 March 2013
The Director: Land Management (Region2)
Dept of Environmental Affairs & Dev Planning
Provincial Government of the Western Cape
Pvt Bag  X9083
Cape Town
8000
FAX:  0214833098

Dear Sir / Madam

REMOVAL OF RESTRICTIONS ACT, ACT 84 of 1967, SUBDIVISION & DEPARTURES ito LUPO 15/1985

APPLICATION      LM6006 (220971)
APPLICANT          FRANCIS CONSULTANTS
OWNER                PETER MATS KLIPE
ERVEN                 749 & 750
LOCATION           2 ATHOLL RD
SUBURB               CAMPS BAY

The CBRRA strongly objects to this application.

Firstly, this application is only in the narrow financial interests of the Applicant. It is common knowledge that his attempts to sell the Erf and improvements thereon have been unsuccessful to date. Clearly, this is an attempt to achieve the same sale price by altering what is on offer to include the same house plus an additional plot. In fact, this option was specifically on sale at the “show day” held at the property on 10th March 2013.

Unfortunately, this subdivision will have an extremely negative effect on the area and the affected neighbours in terms of increased density without the concomitant statutory setbacks from the lateral boundary which will destroy the sightlines from the rear properties.

It must be pointed out that this applicant has not approached the community to discuss the future usage of the property and measures that will possibly improve the currently unacceptable situation – he simply hopes to head off the legal rights of the community in order that he may continue to abuse their rights for his own financial gain. It is our legal advice that this is unachievable in terms of case law, a point which will be dealt with later.

The Western Cape High Court ruled, in the Camps Bay Ratepayers vs RBC Sub Eleven matter, that the Minister may not remove restrictive title deed conditions if it is not in the interests of the community and especially if it is only in the narrow financial interests of the developer (Griesel, AJ, as he was then). This is clearly a case where such removal is, in fact, only in the narrow financial interests of the applicant and also not in the interests of the community. Other divisions of the High Court have handed down the similar rulings. The fact that so many property owners in the precinct have objected to this application confirms that the removals will not be in the interests of the community. Further, the CBRRA has been mandated by the community to resist this development in its present form. The Court also ruled that this is a positive test and that the Minister may not expunge conditions if the result is merely neutral ie there must be a positive outcome for the community. The Applicant has not even attempted to show any such positive result, clearly because there is not any. It may be argued that such densification serves the aims of various spatial development plans and whereas this point may appear convincing, the actual reading of the Act states that it must be in the interest of the community of which it is in favour. This includes only Brighton Estate Ext No 3 (Section1) which was established in 1939. Any other interpretation is merely opportunistic.

The aforegoing is further reinforced by the Land Use Planning Ordinance (15/85) which holds that desirability is the only criterion for the assessment in terms of that particular piece of legislation and which is applicable to this application. There is, again, no attempt by the Applicant to show any desirable outcome from this application, other than his narrow financial interest – which is only implied.
The fact that this proposal does not fit on the property and therefore requires departures and Title Deed removals evidences the inappropriateness of the design. This is simply a means by which the applicants wish to gain approval for over-developing a site for his profit - at the expense of the community. This has also been held by the Western Cape High Court to be reason enough for the Minister to refuse planning permission.

The High Court judgement (Case 6866/04 Bloubergstrand) handed down by Yekiso, J, has established that applications must conform with all applicable law before the relevant Authority can consider them. It is common cause that this application does not comply and as such cannot be considered until all affected parties have waived their rights to the concessions sought. Clearly, no affected parties have indicated that willingness and will continue to resist this application.

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 Building 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 if the removal/amendments of restrictions and departures are granted and therefore planning permission must be denied in terms of s7 b (ii). Granting such rights will derogate from the value of the neighbouring dwellings, as there will be loss of amenities of certain affected properties. The community has a right to enjoy the amenity of their properties and also have a legitimate expectation of the Minister not interfering with those rights, especially given the many rulings handed down by the WC High Court in similar matters.
In summary, this application is not sensitive to the surrounding area, will seriously derogate from the value of adjoining neighbours, is unacceptable to the community in its current form and the CBRRA requests that the Minister rejects this application in its entirety.

If the Applicant wishes to engage with the community in this matter, the CBRRA is willing to facilitate such discussions and will withdraw this objection if there is a positive outcome to such engagement. In the alternative, the CBRRA requests an interview at the appropriate SPELUM or Subcouncil meeting that will be convened to consider this application.
Regards

CHRIS WILLEMSE
CHAIRPERSON

CBRRA contact:   Chris Willemse   Mobile 0836536363   Fax 0214380703

cc        
Mr Kajabo Ernest Ngendahimana  : The Director,  Planning & Building Dev Management, Cape Town Region, City of Cape Town
FAX : 021 4194694