appeal in terms of against mpt decision IRO erf 294 10 Berkley RD

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The City Manager                                                                                                             

C/o The Table Bay District Manager

City of Cape Town                                                                                                                                                                

Per    appeals.tablebay@capetown.gov.za

Your ref: MPTNW12/04/19                                                                                              

Case ID # 70371328

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 02 APRIL, 2019 TO APPROVE THE AMENDMENT OF A TITLE DEED RESTRICTION AND TO GRANT DEPARTURES IN RESPECT OF ERF 294 CLIFTON AT 10 BERKLEY RD, CAMPS BAY

The CBCRA hereby registers its appeal against the decision of the MPT as set out in the MPT ruling of 02 April, 2019 (“the MPT decision”), ref. ID 70371328 on the grounds set out herein.

It is clear from the record, especially p333, the Locality Map, that the application was not advertised in terms of the Western Cape High Court ruling by Binns-Ward, J, in the Optimal matter. Here the court clearly set out the parameters for the advertising of applications for the removal, amendment or suspension of a restrictive title deed condition and declared that such applications must be advertised to all owners of property in the subject property’s township by registered mail. On this basis alone, the appeal must succeed.

The amendment of the restrictive title deed restriction 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 further erred, in the opinion of the CBCRA, in finding that the application does not materially or adversely affect the rights of surrounding properties. An objector, who is a neighbouring property owner, has cogently argued that the application does indeed negatively affect him.

The MPT failed to consider the import of the recent Concourt decision, which has made it abundantly clear that s7(b)(ii) of the NBR&S Act applies, in its entirety, to all applications. This includes the trigger of the derogation of value of a neighbouring property, which the MPT did not consider in its deliberations.

As the losing appellant in this matter, the City must now abide by the ruling of the Court and properly consider all applications in terms of the law. The City must also refrain from “silo” type thinking and not simply approve land use applications, knowing full well that the Building Control Officer will be faced with an impossible task when final plan approval takes place.

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

Regards

CHRIS WILLEMSE

CHAIRPERSON

Please see attached notice for our attention.

Kindly note that the new closing date for response is  5 August 2019.