Anton Luiting and Duane Alexander at the launch of LAMTA.
Thursday, 31 May 2018
The District Manager, Table Bay District
Development Management, Transport & Urban Development Authority
City of Cape Town
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
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.
Ward councillor Shayne Ramsay says homeless people, drawn to the Atlantic Seaboard by the many tourists there and the high possibility of hand-outs could be earning as much as R5 000 a day.
Saturday, 26 May 2018
Thursday, 17 May 2018
Monday, 7 May 2018
A special welcome to our guest speaker tonight, Jaco Boshoff of the Iziko Museum. Also welcome to our local ward councillor, Shayne Ramsay. She will give a short address tonight but maybe it should be more of an opportunity for you to address her on issues that are of concern to you, the ratepayers of Camps Bay.
Tonight we give you a report back on the various matters that are being dealt with by your Association and also hear Jaco Boshoff’s fascinating research into the slave ship shipwreck off Clifton, many years ago.
So, please let me introduce you to Jaco Boshoff, who will enlighten you with an interesting piece of history, that still has social consequences, that occurred on our own beach.
Shayne Ramsey – councillor’s report
Byron Herbert - MOP on Camps Bay beach
The suburbs of Camps Bay and Clifton are seriously under threat by the City of Cape Town on 3 fronts at the moment:
The first is the Maidens Cove development. This prime piece of relatively unspoilt public open space, which also has huge socio-historical value, was sold off to a private developer for just over R1b at the end of last year.
This despite the fact that there was complete opposition to this development by Capetonians from Camps Bay to Mitchells Plain and from Scarborough to Belhar.
By law, the City had to provide public participation meetings on the proposed development. This it did, but having attended all the meetings, it was clear that the City was ticking the boxes again and not actually paying any attention to the opinions and sentiments of the people of Cape Town. Sadly, the civics of Cape Town – including the CBCRA – are used to this. When it comes to serving its friends in the development industry, the DA-led City has no interest in the ratepayers of Cape Town. And you will hear this from far and wide: For instance, the group attempting to stop de Lille and her cabal from expropriating the Philippi Horticultural Area for housing, will tell of a 10-year battle for sanity vs greed.
This area produces over 55% of Cape Town’s fresh supply of vegetables. The Cape Flats Aquifer, which lies under this area and is an incredibly important water resource, will also be negatively affected by development. The Bo-Kaap has major problems with the City planners, as does the Deep South areas like Kommetjie and Noordhoek.
However, there is good news. The Clifton Bungalow Owners Association has lodged an application with the Western Cape High Court to have this decision reviewed and set aside.
That Association has submitted a voluminous application and has raised many strong points, especially the environmental issue that this is a proclaimed scenic reserve, protected by law.
I think that it is imperative that we support the CBOA in this matter but obviously we need to be suitably funded to do so.
I would like this meeting to mandate the CBCRA to pursue the matter of the Maidens Cove development with a view to stopping it.
Byron has already given you the background on the MOP, which is the second threat to our community. The fact that the City is happy to dump millions of litres of raw effluent into Marine Protected Bay area is unconscionable. Besides the immediate health hazard, there are very sinister long-term affects that will haunt future generations.
Not only that, but the City stealthily tries to over-densify Camps Bay at the same – with no increase in infrastructure such as sewerage, electricity and roads! This is simply disgraceful.
And this brings us to the third threat: The development at 96 Camps Bay Drive.
This has been raised at our previous meeting but a bit of history to bring all up to speed:
This erf is zoned GR2, as are many erven in Camps Bay, which allows for multiple dwellings and taller buildings. However, the title deed restrictions do not allow for this type of development.
Up until now, the many court cases to establish and maintain the praedial servitutal nature of these restrictions, that have been fought and won by this Association in particular, and many others in general have kept the lid on this type of over-densification.
Then in 2015, planning legislation changed in the country with the the enactment of SPLUMA, at national level, LUPA at provincial level and the MPB at local level.
At the same time, the Removal of Restrictions Act was repealed and planning decisions at local level devolved upon something called a municipal planning tribunal. This is effectively, a tribunal of private planning professional appointed by the executive mayor and paid for by the City.
It didn’t take long before the City and its planners, and those in private practice, started exploiting the situation by entertaining applications that removed all relevant title deed restrictions from the deeds thus allowing single dwellings to be converted into multiple units.
The argument from the City and the MPT is that all case law protecting property rights fell away with the new laws and they had total discretionary powers in deciding such matters.
However, the CBCRA strongly disagreed and was closely tracking the first case of this kind, the one at 96 Camps Bay Drive.
Basically, the MPT rejected all the objections from the CBCRA and surrounding neighbours and approved the development. We appealed that decision to Mayor de Lille and, unsurprisingly, this appeal was refused. You have to understand that planning decisions by this administration are very predictable and always in favour of developers at any cost. But it is important – and a legal requirement – that an aggrieved party exhausts all administrative options before taking a matter before a court of law. So we, too, tick boxes.
The CBCRA filed an application with the Western Cape High Court to review and set aside the MPT decision and de Lille’s rejection of our appeal.
In this matter, the CBCRA is represented by Adv Deon Irish SC, Adv Dale Lubbe and our attorney is Leon van Rensburg. This is a very formidable legal team.
The matter has been set down for hearing on the 28th May 2018.
So far, the City, after initially strongly opposing the application, have folded and agreed to abide by the decision of the court. The developer, now basically up the creek with the City’s withdrawal, is trying to settle but not pay costs.
The CBCRA is not interested in anything but a High Court ruling which sets out clearly how such matters must be dealt with and whether the City has the right to remove or amend our constitutional property rights as enshrined in the Constitution.
If you look at the Zoning map on the screen, you will quickly realize that if we don’t win this case, then Camps Bay is doomed. Given the number of GR2 erven, Camps Bay could densify by at least 5 or 6 times in the next few years.
The developers are licking their lips and the City cannot wait for all the rates to come in! And from the City’s point of view, the current services can easily manage this – so no expense for it. Maybe we should take the Mayor (if she still is) and the senior DA politicians for a walk in Hove Road when it experiences its regular sewerage overflow – or maybe the Little Glen when the raw sewerage flows down the embankments into the Blinkwater River.
In any event, all the court documents are on the CBCRA website for those who wish to read through about 2000 pages of legal argument!
We will also update the site regarding progress in this matter.
As a final note on this court case, the MPT is not making any decisions on title deed restrictions until the case is settled. This after the CBCRA pointed out to it that it would be unethical, if not irregular, to make decisions that it knew to be compromised.
I would just like to alert you to a few issues that will be of interest:
Firstly, all applications that are received by this Association will be advertised (or posted) on the BlogSpot, added to that, all letters of objection or support by the CBCRA will also be posted.
So, visit the site regularly and keep up to date with what is being planned for Camps Bay. If you know of an application that isn’t posted on the blog, please advise us immediately – as we are meant to receive all Camps Bay, Clifton and Bakoven planning applications from the City.
There are many applications so one needs to be watchful.
We had a very concerning occurrence a few months back: Contractors erected a large Telkom cellphone mast on the property of the service station in Rontree Ave.
It was done unannounced and without any planning permission, based on Telkom’s contention that, as a SOE, they didn’t require permission.
The neighbours were outraged and lead by the immediate neighbour – and with the support of the CBCRA – a case was brought against Telkom. All went quiet for a while and then, as quickly as it went up, it was taken down.
This is clearly a great victory for the community but also underlines the constant threat that communitys’ face on a daily basis. Not to mention the costs involved in standing up for your rights against organs of state and local authorities that are shameless in spending our tax money on their fantasies.