25 June 2019
The District Manager, Table Bay District
Development Management, Transport &
Urban Development Authority
City of Cape Town
Cape Town 8000
ATTN: Mr Paul
Heydenrych
Dear Mr Heydenrych
APPLICATION FOR RELAXATION OF A TITLE
DEED RESTRICTION & DEPARTURES ito s82 & s83 of THE CAPE TOWN MPBL
CASE ID: 70431987
APPLICANT: JND PROPERTIES (PTY) LTD
ERF: 3298
LOCATION: 20A
FULHAM RD
SUBURB: CAMPS
BAY
The CBCRA objects to this application.
In the first instance, the advertising
is insufficient and the application needs to be re-advertised, ab initio, to all registered owners of
property in the township, being the Brighton Estate Extension No 3, Section 2
(1940).
The mere fact that this is a relaxation
of a title deed condition in no way leads to the subverting of the court-directed
requirement for the Local Authority to advertise such applications to all
registered owners of property in the township. The relevant restrictive title
deed condition, being one that enforces a reasonable setback from a street boundary,
is of material interest and value to such owners and therefore needs to be
advertised as per court ruling.
The authority for this is to be found in
the ruling of Binns-Ward, J in Ex parte
Optimal Property Solutions CC.
Here the court established that such
notification was in accord with the rights of property owners provided for in
the Constitution, which underlies the importance of property rights.
The laws of general application, such as
SPLUMA, LUPA and MPBL that govern planning derive their authority from the
Constitution, which remains the supreme law of the land. In any event, these
Acts are silent on notifications and no SOP from a local authority can usurp
constitutional imperatives, especially when a high court has ruled on such an
issue.
It is submitted that proper service, on
all owners of property in the township, is a prerequisite for this application
to be considered.
Secondly, there is the issue of the
legal requirements for the City to remove restrictive title deed conditions in
the first instance.
In terms of s25 of the Constitution, a
deprivation of a right in property (which includes a praedial servitude) can only be effected in terms of a law of
general application and cannot be arbitrary. Which, of necessity, means that no
removal/amendment/relaxation of a title deed restriction may be arbitrary in
its motivation or effect. The enabling legislation of general application is,
as previously mentioned, SPLUMA, LUPA and the MPBL, which all derive their
authority from s25 of the Constitution.
The very fact that this application offers
no reciprocity or uniformity in law, speaks to the arbitrary nature of the
current application. The CBCRA reserves its rights to supplement this legal
argument in the appropriate forum.
Thirdly, the application for a height
departure of 1,69m will negatively affect the sea views of neighbours to the
east of the subject erf and consequently derogate from the value of
neighbouring properties, which triggers s7(b) of the NBR&BS Act. The
Concourt recently found against the City, in the manner in which it considers
the said legislation.
It must also be added that land use
applications must be cognizant of the provisions of s7 and such applications
must not be dealt with in a “silo” manner by leaving the determination to the
Building Control Officer at some later planning stage. In fact, the land use
application informs the BCO’s decision.
Further, the application for the height
departure is completely inappropriate and therefore non-compliant with the
provisions of s99 of the MPBL and this application falls to be refused on this
ground alone.
Clearly, a relatively small amount of
excavation will allow this rather immense building to comply with the DMS
regulations.
We must, yet again, request that the
City does not favour a developer over the rights and legitimate expectations of
the rate-paying owners of property in the township.
The CBRRA requests an interview at the
MPT committee meeting, which will be convened to decide this application.
Regards
CHRIS WILLEMSE
CHAIRPERSON
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