Brett Herron. Picture: Jason Boud/African News Agency (ANA)
The Western Cape High Court has ruled in favour of the application by the Camps Bay and Clifton Ratepayers’ Association (CBCRA) to have reviewed and set aside, a decision by the City to remove title deed restrictions applicable to 96 Camps Bay Drive and approve plans for a block of four apartments.
In his report, delivered at a public meeting of the CBCRA on May 7, chairperson Chris Willemse, explained that the erf was zoned GR2, which allowed for multiple dwellings and taller buildings. The title deed restrictions, however, did not allow for this type of development.
Mr Willemse explained that in 2015 existing legislation had changed, with the enactment of the Spatial and Land Use Management Act (SPLUMA) at national level, Land Use Planning Act (LUPA) at provincial level and the Municipal Planning By-Law (MPB) at local level.
The Removal of Restrictions Act was repealed and planning decisions at local level devolved upon a Municipal Planning Tribunal (MPT). Mr Willemse accused the City, its planners and those in private practice, of exploiting the situation by entertaining applications that removed all relevant title deed restrictions from the deed, allowing single dwellings to be converted into multiple units.
The argument from the City and the MPT was that all case law protecting property rights fell away with the new laws and that they had total discretionary powers in deciding such matters. CBCRA disagreed.
Mr Willemse said the MPT had rejected all the objections from the CBCRA and surrounding neighbours, and approved the development. The CBCRA then lodged an appeal with Mayor Patricia de Lille, but she dismissed their appeal in July last year.
“By this stage, inexplicably, the developer was already busy with construction on site,” said Mr Willemse.
It was then that the CBCRA filed an application before the Western Cape High Court to review and set aside the MPT’s decision, the City’s dismissal of the appeal and the planning approval, on November 18 last year. This initial application by the CBCRA for an urgent interdict was set down for November 22, but was postponed at the request of the developer.
The matter was heard by the High Court on Monday June 18, with Judge Siraj Desai ruling in CBCRA’s favour.
Mr Willemse said the City had submitted to the court that the CBCRA should pay the City’s costs, on the basis that the CBCRA had insisted that the matter be heard rather than being settled, but the counsel for the City could not explain why it had failed to file its notice to abide by the decision of the court until late April 2018.
The City was ordered to pay CBCRA’s costs incurred in bringing the application and the developer, Schaefer Partnership, was ordered to pay its own costs.
“In our opinion, this is damning of the conduct of the City, as, usually, costs are borne jointly and severally by all parties on the losing side. It has been established by the court that the City is entirely responsible for the whole mess. Will they hold anyone accountable or will they simply continue with business as usual?” asked Mr Willemse.
The City’s mayoral committee member for transport and urban development, Brett Herron said: “All parties involved in this matter agreed that this decision should be set aside and the City notes the order relating to costs.”
The director of the Schaefer Partnership, Friedrich Schaefer, declined to comment on the matter.Sinazo Mkoko
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NOTES FROM AN INTERVIEW WITH CHRIS WILLEMSE
In the Western Cape High Court this morning, 19 June 2018, Mr Justice Siraj Desai found in favour of the CBCRA’s application to have the decision by the City of Cape Town, to remove title deed restrictions applicable to 96 Camps Bay Drive and approve plans for a block of 4 apartments, reviewed and set aside. Therefore the current construction on this site is without approved plans and construction must cease.
The Judge further ordered that the City pay the legal costs of the CBCRA and that the developer, the Schaefer Partnership of Camps Bay, pay its own costs.
This costs order goes to the degree of culpability of the City in its deficient planning approval process - something that the CBCRA has complained of for many years and which the DA-led administration simply ignores.
Some questions posted to Chris Willemse, chair of the CBCRA, from Sinazo Mkoko, Reporter - Atlantic Sun:
1. The matter was first heard in court on May 28, 2018 and the ruling was delivered today the 18th of June?
- No, the matter was heard and decided on the same day. Judge Desai was not interested in hearing argument in the matter as it was common cause that the City’s application and planning approval process was fatally flawed. He only wanted to settle the issue of costs. The initial application by the CBCRA for an urgent interdict was set down for 22 Nov 2017 but postponed at the request of the developer. By agreement, the postponed case would then be heard in late February as an expedited review case, with certain guarantees put in place that would not allow the developer to claim prejudice for work completed after this date, if the review was successful. This might sound quite mundane, but developers always claim that they have suffered severe prejudice of the cost of completed work if their plans are set aside at a later date. In any event, due to the unavailability of a judge and then other legal delays, the matter came before the court yesterday.
2. The application was filed after the MPT rejected objections from CBCRA and the Association appealed to the City's mayor which was declined?
- Yes. The MPT decided in favour of the application on 6 Dec 2016 and the CBCRA subsequently appealed this decision to the Executive Mayor of Cape Town. After an incredible initial mismanagement of the appeal process, the mayor dismissed the CBCRA appeal in late July 2017. By this stage, inexplicably, the developer was already busy with construction on site.
3. Please assist with the exact dates when this application was filed?
- After initial representations to the developer, and appeals to the City, were rebuffed, the CBCRA filed its application for the review and setting aside of the MPT’s decision, the Mayor’s dismissal of the appeal and the planning approval before the WC High Court on 18 Nov 2017, for an urgent hearing on the 22 Nov 2017.
4. Reading through your report at the last public meeting, you were confident that you were going to win this case?
- Of course, it is never wise to first-guess the outcome of any case involving planning matters. However, the City planners had made so many fundamental procedural errors in the processing of the application - all in favour of the developer - and shown what the CBCRA considered incredible bias against the community in dealing with the application, that it did seem very likely that the court would grant the relief sought by the CBCRA. I must also add here that Ms Lana Stacey, an affected neighbour, took the responsibility of standing up for her rights and joined the application as a co-applicant. The CBCRA is indeed very grateful for her support and willingness to be involved in a matter that affects all ratepayers in Camps Bay - and, by implication, the ratepayers of Cape Town.
5. I understand you're briefing the association about the ruling today, how are the members taking it?
- Obviously, the members that have been briefed are both satisfied with the ruling and relieved that this is over. That the City is happy to force its ratepayers into continuous litigation to defend their rights is iniquitous.
6. Also, do you have an online link to the exact ruling by Judge Desai? It would be great to quote him.
- Three points to bear in mind:
The City will, in all likelihood, claim that this was just a minor technical oversight and that the review was based on a narrow procedural point. They would then be ignoring the voluminous set of papers citing chapter and verse of the shortcomings and bias of the City planners, which the City has refused to argue against in open court.
Then there are the merits of the case and the fact that this DA-led administration is quite content to expropriate citizens rights without compensation or agreement. Restrictive title deed conditions have been held by all divisions of the high Court of South Africa as praedial servitudinal rights and are, in effect, real property rights.
So it is quite bizarre that the political party, the DA, fighting all others against the introduction of EWC in the country, is completely in favour of such expropriation when it suits its agenda of development at any/all costs in the city of Cape Town!
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