Herewith the APPLICANTS' HEADS OF ARGUMENT 8.11.23 on THE CAMPS BAY & CLIFTON RATEPAYERS’ ASSOCIATION & ANOTHER / THE CAMPS BAY BEACH HOTEL (PTY) LTD AND SIX OTHERS HIGH COURT CASE NO: 8640/2023
https://drive.google.com/file/d/1sNKaxtAyzaOQ3_2ZgikVyIN2ZnOvLhny/view?usp=sharing
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Herewith the legal communication regarding the pending litigation challenge pertaining to the development of the proposed beachfront hotel:
Published on this blog 5 October 2023
Dear Sirs / Mesdames
THE CAMPS BAY & CLIFTON RATEPAYERS’ ASSOCIATION & ANOTHER / THE
CAMPS BAY BEACH HOTEL (PTY) LTD AND SIX OTHERS
HIGH COURT CASE NO: 8640/2023
1. We refer to the above and the pending litigation, wherein the Camps Bay & Clifton
Ratepayers’ Association challenges the legality of the City’s approval/s pertaining to
the development of a new hotel and restaurant building on the property known as Erf
3349 Camps Bay. This letter is addressed to you, at your specific request, to express
an opinion about your prospects of success in the pending litigation.
2. Firstly, we believe that you have a very good prospects of success. We are of the
respectful view that you should succeed to set aside the approval of the aforesaid
development. We shall proceed to set out, in short version below, some of the
primary reasons why we respectfully believe that you should succeed in Court.
3. The formal approval of the development was done on the basis that there should be
at least 120 (one hundred and twenty off-street) off-street parking bays provided for
the hotel and the restaurant. That approval went to the highest level and was also
the decision of the Executive Mayor of Cape Town (which is the highest planning
appeal authority in the City). Thereafter, in what appears to have been a form of
improper “off the record” (secret) meeting between the developer’s architect and 3
(three) planning officials of the City, they decided that the 120 (one hundred and
twenty) off-street parking bay requirement would not apply to this development. One
of these planning officials proceeded to recommend to the department dealing with
building plans that a building plan which only provided for 49 (forty-nine) parking
bays would suffice for the development. The building plan was approved on that
basis. Such approval was clearly unlawfully manipulated. To be lawfully approved, a
building plan must meet the requirements of the underlying planning approvals and
the law as it existed at the time that application was originally made for the planning
approval.
4. The municipal spatial development framework (“the MSDF”) of Cape Town
determines that a general height restriction of 10 (ten) metres applies to all buildings
across Camps Bay (since the imposition of that limitation). Item 190 of the City’s
Development Management Scheme (i.e. the zoning scheme regulations) stipulates
that no facade of any building in Camps Bay may exceed a height of 10 (ten) metres
above any specific point on the ground. The approved development of the hotel and
restaurant exceeds these limitations:
4.1 No height departure was granted to allow for a building which is higher than
10 (ten) meters.
4.2 The facades of the new building will be approximately 15 (fifteen) metres at
several points along the perimeter thereof, once constructed.
4.3 The Spatial Planning and Land Use Management Act, 16 of 2013 prohibits a
Municipal Planning Tribunal (“the MPT”) from approving any development
which is in conflict with the MSDF of a municipality. The MPT clearly breached
this statutory prohibition when it approved this development.
4.4 When the MPT approved the development, it set a maximum heights above
mean sea level for the new building. The approved building plans show that
this height limitation is exceeded.
4.5 A building plan cannot be approved which conflicts with existing law and/or the
underlying planning approvals for the development, as granted by the
Municipal Planning Tribunal (“the MPT”) and the Executive Mayor (as the
planning appeal authority).
5. Because the development is one for a hotel and restaurant, there are minimum
requirement applicable for loading bays to be provided. Such loading bays must be
of a minimum specific width and the headroom must also meet specific requirements
(to allow delivery vehicles which need larger bays to park). The approved building
plans show that only one loading bay is provided which does not meet either the
width or the headroom requirements. It is incomprehensible how a building plan for a
development of this nature could be approved, without proper provision being made
for deliveries. Hotels and restaurants require large numbers of deliveries on a daily
basis.
6. Also, there are minimum requirements which apply to a development of this nature
insofar as a refuse room is concerned. The amount of refuse produced by a hotel
and restaurant of this nature, will be enormous. The refuse room provided for this
development is far too small to accommodate the requirements of a hotel and
restaurant of this scale. There is no provision made for the sorting of refuse; only 24
(twenty-four) wheely bins can be accommodated; and the placing of the refuse room,
which is on a different level to the street, does not provide easy access to the street,
from which refuse removal is supposed to take place by the City. The Solid Waste
Department of the City did not support the approval of the building plans. Yet the
department responsible for the approval of building plans was informed, incorrectly,
that there was no objection to the draft building plans. Had the correct facts been
known, the building plans would not have been approved.
7. Victoria Road, which is the road onto which the hotel and restaurant will primarily
face, is a provincial main road. There is a 5 (five) meter building line set-back
applicable to that road. Only the Premier of the Western Cape can approve a setback
from the building line on Victoria Road. The Premier can legally do so, only
after plans are submitted to the Premier which show the purpose of the set-back and
the development. A relaxation of the building line was done by officials of the
provincial Department of Transport, who had no authority to do so, but even that
approval (on which the developer relies) lapsed years ago. Notwithstanding, the
building plan was approved with the support of the planning department of the City.
The department responsible for the approval of building plans was not made aware
of this legal requirement.
8. There are numerous other smaller technical requirements with which the building
plans and the planning approvals for the development did not comply. All these
issues are in the Court papers and will be argued when the matter does come before
the High Court for judicial review.
9. In short, based on the above, we are of the respectful view that you should succeed
before the High Court and that the development of the hotel and restaurant building
on Victoria Road, Camps Bay will not be allowed to proceed. The approval thereof
should be set aside and we are very positive about your prospects of success.
10. Please advise if you have any further questions.
Yours faithfully
VAN RENSBURG & CO
Per:
L J VAN RENSBURG
ATTORNEYS, NOTARIES, CONVEYANCERS, ADMINISTRATORS OF ESTATES
_____________________________________________________________________
PROKUREURS, NOTARISSE, AKTEVERVAARDIGERS, BOEDELBEREDDERAARS
Tel: (021) 713-2100 PO Box 249
Cell / Selfoon: 082-872-6340 BERGVLIET
7864
E-pos / E-mail: Leon@vrlegal.co.za 127 Main Road
BERGVLIET, 7945
Website: www.legalassistance.co.za /
www.vrlegal.co.za Datum / Date: 10/08/23
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Director/Direkteur: Leon Jansen van Rensburg B.Juris, LLB, LLM, LLD (PU vir CHO)
Professional Assistants/Professionele Assistente: Vanessa Dean LLB (UNISA), Cornelia Jansen van Rensburg BA LLB (US)
Consultant/Konsultant: Sheila Camerer BA LLB (UCT)
U verw / Your ref:
Ons verw / Our ref: LJVR/pk/VRC0510
The Camps Bay & Clifton Ratepayers’ Association
CAMPS BAY
Via email: campsbayratepayers@gmail.com
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Below are links pertaining to the proposed beachfront hotel in Victoria Road. Please click on the links to access the pdf files:
BFH- Attorney Van Rensburg Letter to CBCRA re High Court prospects 2023-10-08.pdf
BFH- Founding Affidavit 2023-05-29.pdf
BFH- Founding Affidavit Supplementary1.pdf
BFH- Founding Affidavit Supplementary2.pdf
BFH- Answering Affidavit Developer MAS SAM 7th Respondent.pdf
BFH- Answering Affidavit Mayor Hill-Lewis 3rd respondent and CCT Mr Marx Mupariwa 2nd respondent.pdf
BFH- Answering Affidavit Minister Rural Development and Land Reform 6th Respondent.pdf
BFH- Replying Affidavit to 6th respondent Min Rural Dev and 7th respondent Developer MAS SAM.pdf
APPLICANTS' HEADS OF ARGUMENT 8.11.23
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