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Tuesday 25 June 2019

CBCRA Lob Erf 3298 20A Fulham Rd


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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