The Director: Integrated Environmental Management (B2)
Dept of Environmental Affairs & Dev Planning
Provincial Government of the Western Cape
Private Bag X9086
Cape Town
8000
FAX: 0214833098
Dear Sir / Madam
REMOVAL OF RESTRICTIONS ACT, ACT 84 of 1967, and APPLICATION FOR DEPARTURES ito LUPO
FILE REF LM 9148 (236824)
APPLICANT THOMAS GEH ARCHITECTS
ERF 590
LOCATION 12 GENEVA DRIVE
SUBURB CAMPS BAY
The CBRRA strongly opposes and objects to this application.
The brief summary of the facts of this matter is that the WC High Court upheld an interim application by the community to set aside the City-approved plans for this erf in 2005 (Meer, J). After a consequent successful appeal in terms of s62 of the MSA by the community, the City withdrew its planning approval for the plans. The owner then modified the plans by omitting certain of the illegal structures in an attempt to evade the restrictive title deed conditions – thus rendering the building built in accordance therewith effectively unusable and unworkable. For example, by removing the entrance stairs thereto, anyone accessing the front door would have to jump down over a metre from the street level to the entrance level! In addition, the originally proposed swimming pool and raised ground levels between what were originally illegal site boundary structural retaining walls and the house structure were omitted at that stage to achieve City approval.
The City, extraordinarily, approved these “dummy” plans.
Thereafter followed years of protracted litigation, which ultimately led to the validity of the planning approval being upheld (but without the conveniently omitted items mentioned above), although the SCA found that the building did contravene s47 of the (then) CT Zoning Scheme.
The developer then applied to the WC High Court to have the restrictive title deed conditions, which are the subject of this application, expunged from her deed, based purely on the prior litigation. The Court rejected this application in 2013 (Rogers, J).
The developer has now applied to the relevant authorities to condone this incremental and deceptive planning process that she visited on the Camps Bay community and require the Authorities, with the stroke of a pen, to expunge the praedial rights enjoyed by the community and enshrined in their title deeds. The Courts are extremely reluctant to deprive people of their praedial rights and will only do so in exceptional circumstances and where it is established beyond reasonable doubt that this is in the public interest and for the benefit of the township. These praedial rights are in favour of all property owners in the township and the Roger's judgement emphasizes this.
It must be borne in mind that the Western Cape High Court ruled, in the Camps Bay Ratepayers vs. RBC Sub Eleven matter (reported), that the Minister shall not remove restrictive title deed conditions if it is not in the interests of the community (Griesel, AJ, as he was then). This is clearly a case where such removal is only in the narrow financial interests of the developer. Other divisions of the High Court have handed down similar rulings.
The developer has shown no benefit or advantage to the community and this application must fail on this ground alone. Further, it is the minimum requirement of the LUPO that applications must be desirable. The fact that the Camps Bay community has opposed this inappropriate development for such length of time and so strenuously, clearly shows the undesirability of the proposal in the public mind.
The fact that this proposed structure does not fit on the property and therefore requires so many departures and removals evidences the inappropriateness of the design. This is simply a means to enable the developer to over-develop for profit at the expense of the community, which, also, has been held by the Western Cape High Court to be sufficient reason for the Authorities to refuse planning permission.
It must also be noted that the test for the removal of a restrictive title deed condition by the Minister is a positive one: It is not sufficient for the presumed effect to be neutral – the applicant must show a positive benefit to the community or area that will arise from such removal. In this case the applicant has failed to do so and, as such, the application must fail.
The WC High Court judgment (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. Clearly this application does not comply and as such cannot be considered until all affected parties have waived their rights to the concessions sought, given that it is effectively an as-built situation.
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. In this specific instance, the building will derogate from the value of affected neighbours’ properties if the departures and removal/amendment of restrictions are granted and therefore planning permission must be denied. The derogation from value of a neighbouring property has been incontrovertibly established by an experienced, respected sworn valuer (see attached affidavit deposed to by Mr JP van der Spuy). Although it will no doubt be argued that the building already exists, many of the currently applied for elements have already been illegally constructed, such as the retaining boundary walls -or at least the building is dependent on this application being successful. Further, this over-bulked building has no place at the entrance to the largely conserved, historic village area of Camps Bay and the built fabric of the area will be compromised.
Should the Authorities approve this cynical application, it will be setting a very dangerous precedent that will be eagerly copied by other developers, thus causing untold damage to this extremely beautiful suburb, which really needs protection from such abuses. It is the Province-, City- and CBRRA's duty to protect the built environment from being damaged in such a manner, particularly when in contravention of the law and praedial rights.
In summary, this application is not sensitive to the surrounding area and, due to the many non-complying aspects and illegalities, must be rejected by the Authorities.
CBRRA requests an interview at the appropriate Sub-council / SPELUM meeting that will convene to consider this application.
Regards
CHRIS WILLEMSE
CHAIRPERSON
CBRRA contact: Chris Willemse Mobile 0836536363 cnwillemse@gmail.com
cc
Ms Joy San Giorgio: District Manager, Table Bay District, Planning & Building Dev Management, City of Cape Town
FAX: 021 4194694
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