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The City
Manager
C/o The Table Bay
District Manager
City of Cape Town
Case ID #
70379958
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
07 MAY 2019 TO APPROVE THE RELAXATION OF TITLE DEED RESTRICTIONS AND TO REFUSE
TO GRANT DEPARTURES IN RESPECT OF ERF 3265 CAMPS BAY AT 17 THERESA AVE
The CBCRA
hereby registers its appeal against the partial decision of the MPT to approve
the relaxation of a title deed restriction relating to the single dwelling
condition, as set out in the MPT ruling of 07 May 2019 (“the MPT decision”),
ref. ID 70379958, on the grounds set out herein.
The CBCRA
fully concurs with the Planners’ report and the MPT decision to refuse to grant
certain departures and title deed relaxations, based upon the fact that the
proposal is for an excessively large and inappropriate building on the urban
edge of the Table Mountain National Park. This would be completely undesirable
and have an adverse affect on the biophysical environment.
However, the
approval of the relaxation of the restrictive title deed restriction relating
to the single dwelling 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
erred, in the opinion of the CBCRA, in finding that the application does not
materially or adversely affect the rights of surrounding properties. Many objectors,
who are neighbouring property owners, cogently argued that the application does
indeed negatively affect them.
Further, the
MPT failed to consider that, at a recent meeting of this same Tribunal, it
resolved not to approve a similar application for the relaxation of a title
deed restriction based upon the fact that it had refused to grant departures
required for the proposed Site Development Plan. In essence, once the SDP was
no longer possible due to the refusal of the departures, it ceased to exist.
The CBCRA argued, in that matter (which incidentally was for the adjoining erf
at 19 Theresa Ave), that absent the SDP, no removals/amendments or relaxations
to title deed conditions could be considered, as the decision would be of an
arbitrary nature. In that matter, the MPT agreed and refused the relaxations
for which application had been made. It is nonsensical that the MPT now takes
another stance in this application.
Clearly, the
decision is arbitrary and the CBCRA submits that the appeal is bound to succeed
on this ground alone.
The CBCRA respectfully requests that this
appeal against the MPT decision be upheld.
Regards
CHRIS WILLEMSE
CHAIRPERSON
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