CBCRA RESPONSE TO COURT DECISION & CITY OF CAPE TOWN OPEN LETTER ON THE BEACHFRONT HOTEL CASE

THE BEACHFRONT HOTEL CASE: 

CBCRA RESPONSE TO COURT DECISION & CITY OF CAPE TOWN OPEN LETTER

CBCRA is disappointed by the High Court's dismissal of its case against the Camps Bay hotel development. 

Historically, the association has successfully held the City accountable for unlawful or inappropriate planning decisions. 

CBCRA challenged this development over reduced parking, height violations, and missing loading bays. 

The High Court ruled against CBCRA, questioning the community’s right to object to dubious planning decisions. 

The City’s favouritism toward developers threatens community interests, property values and rational development. 

The City circulated an unsigned letter to the press which contained threats and falsehoods. 

CBCRA remains committed to appeal, confident in protecting community rights. 

The Camps Bay & Clifton Ratepayers Association (CBCRA) is disappointed by the recent High Court judgement delivered by Ms. Justice CMJ Fortuin, which dismissed our case against the ongoing hotel development on the Camps Bay beachfront. The handing down of the judgment took almost seven months, allowing construction to continue. Most municipalities throughout the country find ratepayer associations to be a nuisance, as they offer the only real oversight to Executive performance, or lack thereof. The CBCRA has successfully held the City accountable for its planning decisions over many a decade, with the effect of protecting Camps Bay from the worst excesses of uncontrolled development.

If the City can destroy ratepayer associations, using public funds to fight against the very people who pay the rates, then the ideal of property ownership will become a dystopian march into the abyss of not knowing when rampant development and a rapacious City will destroy your prime asset with non-conforming development. Ratepaying citizens will find themselves isolated without ratepayer associations and it is essential that these organisations be fully supported by their communities. 

 The CBCRA took the matter to Court after any meaningful interaction with the City proved fruitless – and primarily because of the following: 

Parking Concerns 

The hotel development was initially required to provide 120 off-street parking bays, as per City regulations. Despite community objections, the developer sought to reduce this number to 58. In August 2021, the Mayor supported our stance, affirming the need for 120 parking bays. However, in January 2023, we discovered that building plans had been approved with only 49 bays, following a secret meeting between the City and the developer of which the CBCRA was unaware. The City opposed our court challenge, arguing that the CBCRA and other residents had no standing to challenge the parking bay requirements. The City offered no cogent reason for this but the High Court sided with it, dismissing our concerns. 

Building Height Violations 

Camps Bay is protected by an overlay zone that limits building heights to three storeys and facades to 10m. This development approved by the City, exceeds these limits, with five storeys and facades far above the allowable height. The City justified this by claiming that if the façade includes a small “kink” every 10m, the height limit is satisfied. This interpretation, however, undermines the intent of the overlay zone and sets a dangerous forerunner for future inappropriate planning approval.
Further, the City claimed that it could approve 5 storeys instead of the 3 allowed because the previous building on the site was at the same height. However, the previous building’s top floor was illegal (no planning approval) and covered a tiny portion at the rear of the site. The controversial approval for the new building allows such height over 60% of the entire site! As there is no precedent allowed in planning law, such rationalisation is irrelevant.
Our concerns that the development would block mountain views and create an unattractive structure on the beachfront were dismissed by the Court, which inexplicably ruled that we lacked standing to challenge the building's bulk. One only has to stand on the beachfront, in front of this massive edifice, to see the detrimental visual impact. 

Loading Bays 

The new hotel, a large facility requiring extensive daily deliveries, was approved without the necessary loading bays as required by City planning laws. When we challenged this in court, the City argued that the CBCRA had no standing to object to the absence of proper loading bays, even claiming that a hotel is not considered a business premises. The court upheld the City’s argument. 

Public Representation in Planning Decisions 

The CBCRA has long advocated for public representation in municipal planning decisions, a role removed from city councillors by national legislation in 2015. Our current case highlighted the need for such representation. Before going to court, we sought support from the Mayor, who had, at the CBCRA AGM in 2022, indicated he would back our position. However, once in court, the Mayor opposed us. The City’s resources were overwhelmingly used to support the developer’s case, while the CBCRA was painted as anti-development and unreasonable. 

The City's Response 

(Read the letter here) On 24 August 2024, the City issued an open letter, triumphantly stating that the High Court's costs order against the CBCRA would be enforced to its full extent. This letter was intended as a warning to any ratepayers’ association challenging the City or developers on planning issues that they will be financially punished. Every ratepayer in Cape Town should take note of this abuse of power by the City.
Further, the City's call for "positive engagement" with its planning process rings hollow given its disregard for the community's concerns. Despite the CBCRA and 94 individual residents submitting well-reasoned objections, all were rejected by City officials and the Municipal Planning Tribunal. Not one comment or objection was upheld! 

Moving Forward 

The CBCRA remains committed to appealing the High Court's decision, believing that our rights and those of the community will ultimately be upheld. The City’s current approach, which prioritizes development at the expense of community interests, threatens the value of property ownership. We urge the City to engage meaningfully with its citizens and administer planning decisions which reflect the needs and rights of all stakeholders, not just developers. We look forward to pursuing this matter further in the Appeals Court, confident that justice will prevail in the end. 

Chris Willemse 

Chairman: CBCRA

BEACHFRONT HOTEL CASE JUDGMENT: City of Cape Town Open Letter

Dear members of the Camps Bay and Clifton Ratepayers Association (CBCRA),

This week the Western Cape High Court dismissed the application by the CBCRA (and one

other) to overturn the City of Cape Town’s approval of the Camps Bay Beach Hotel

development.

The Court found no basis for the application, “no reviewable action by the City”, and found

the City’s decision to have been “lawful and reasonable”. The Court also ordered the

applicants - the CBCRA - to pay the costs of three Counsel. (The full Court judgement is

available here, and is recommended reading for those interested)

The City appreciates an open and frank relationship with all ratepayers’ organisations, and

particularly appreciates residents who are involved and interested in their communities.

These engagements should be conducted with mutual respect, professionalism, on a truthful

basis, and with appreciation of context.

However, in March 2024, the CBCRA distributed a newsletter to residents about this case

which went beyond mere criticism, stretching to impugning the integrity and motives of the

City’s decision making processes.

The intemperate and inflammatory language used by the leadership of the CBCRA in the

newsletter in question, especially when read against the findings made by the High Court, has

led to us deciding to take this step to publicly correct the record:

 The City receives and processes thousands of land use and building applications a

month. Our processes have been tried and tested many times, and (as in this case)

have overwhelmingly stood up to scrutiny. Of course there is always the potential for

error, and the regulation of development in Cape Town is increasingly a very litigious

space. Nevertheless, our processes have been developed to ensure integrity,

community participation, and balance the interests of current residents and those who

wish to be future residents in proposed developments.

 The City does not “support development at any cost”, as evidenced by the many

development applications which we do not support, which decisions are also often

litigated.

 The City considers each application on its merits, without fear or favour, and

processes these in terms of transparent policy and legislation.

 Camps Bay and Clifton are amongst the most desirable places to live in all of South

Africa, even in the world. It is not unexpected or surprising that there would be great

interest in development in this desirable part of the city, and residents should expect

that and plan for it.

 The Court found no substance to the claims of contempt or malicious delay.

 The Court did express the view that the constitutional challenge raised by the CBCRA

appeared an “afterthought”, was “very disconcerting”, and that this kind of challenge

“should not be encouraged”.

In the circumstances, the City intends to fully enforce the judgement and will recover costs in

full from the CBCRA and co-applicants, as these are ultimately public funds being expended

on unnecessary litigation.

We urge the leadership of the CBCRA to adopt a more temperate and constructive approach

in future, and we commit to continuing to work together in the spirit of shared passion for our

city.

Kind Regards,

CITY OF CAPE TOWN

THE BEACHFRONT HOTEL CASE: JUDGMENT

Below is a partial typed copy  of the judgment on the case 8640/23:

Please download the full judgment: JUDGMENT: 00206B0D1F0D240821132606.pdf

Also here you can read the CBCRA's response to the judgment as well as to the City of Cape Town's open letter: 

IN THE HIGHT COURT OF SOUTH AFRICA 

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 8640/23

THE CAMPS BAY & CLIFTON RATEPAYERS' ASSOCIATION 

1st Applicant

MARY PENELOPE JOAN LLOYD

2nd Applicant

v

CAMPS BAY BEACH HOTEL (PTY) LTD

1st Respondent

THE CITY OF CAPE TOWN

2nd Respondent

THE EXECUTIVE MAYOR OF THE CITY OF CAPE TOWN

3rd Respondent

THE REGISTRAR OF DEEDS, CAPE TOWN

4th Respondent

THE WESTERN CAPE PROVINCIAL MINISTER OF ENVIRONMENTAL AFFAIRS

5th Respondent

THE MINISTER OF RURAL DEVELOPMENT AND LAND REFORM

6th Respondent

MAS SAM HOLDING (PTY) LTD

7th Respondent

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

JUDGMENT DELIVERED ON THIS 21st DAY OF AUGUST 2024

____________________________________________________________

FORTUIN, J:

A.     INTRODUCTION

[1]    This is an application to review and set aside several decisions of the second respondent (the City) and the third respondent ("the Mayor"). The seventh respondent, Mas Sam Holding (Pty) Ltd, bought the site, which is at the centre of this application, from the first respondent, Camps Bay Beach Hotel (Pty) Ltd.

[2]     The application had its genesis in January 2023. The impugned decisions collectively permit the construction of a five-storey, 98-bedroom hotel ("the Hotel") on the site at the corner of the Fairway Avenue and Victoria Road, Camps Bay and running through from the Fairway Avenue to Van Kamps Street, on what were previously erven 2542 and 258 Camps Bay. These erven are now renumbered under the consolidated title as erf 3349 Camps Bay ("the consolidated erf").

[3]    The demolition of the previous buildings on the erven commenced in January 2023 and construction of the new building was underway at the hearing of this matter. The previous building on the same erf was also a hotel.

[4]     The application is twofold. Firstly, the application to review the decisions by the city, and secondly, the applicants also brought a constitutional challenge to certain legislative provisions.

B. THE PARTIES

[5]     The parties to this dispute is the Camps Bay and Clifton Ratepayers Association (CBCRA), the first applicant. This is a voluntary association, which has as one of its objectives the safeguarding of the property rights and the associated interests of its members, who are property owners in the above-mentioned suburbs of Camps Bay and Clifton. On the first applicant's own version it has for many years played a 'watchdog role' in respect of monitoring compliance with, and enforcement of the legislative provisions that regulate building developments in the residential suburbs of Camps Bay and Clifton. The focus, on their version, is due to the enormous impact of building developments that do not respect the area's particular characteristics, and the impact it may have on its members' interests, in terms of the loss of enjoyment of their own properties, loss of amenities and, pertinently, loss of value of their own individual properties as a result of the above. The first applicant's standing to litigate on behalf of its members in respect of their property interests is common cause.

[6]    The second applicant, Ms. Lloyd, resides at 12 Van Kamp Street, Camps Bay, and address which is in close proximity to the proposed development. Ms. Lloyd was notified of, and was an objector to the proposed development. Her standing in this review is challenged on the basis that she did not appeal the Municipal Planning Tribunal ("MPT") decision and has accordingly not exhausted internal remedies, as required by section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

[7]     The first respondent is Camps Bay Beach Hotel (Pty) Ltd, who is the registered owner of erf 3349, Camps Bay. The second respondent is the City of Cape Town and has local government jurisdiction over the neighbourhood of Camps Bay, which includes the area in which erf 3349 is situate. The third respondent is the Executive Mayor of the City of Cape Town, and is the appeal authority in respect of all planning decisions taken y the City's MPT in terms of section 51 of Spatial Planning and Land Use Management Act 16 of 2013 ("SPLUMA"), read with section 114(3) of the Planning By-Law. The fourth respondent is the Registrar of Deeds, Cape Town. The fifth respondent is the Western Cape Provincial Minister of Environmental Affairs, who is the competent authority tasked with granting or refusing environmental authorisations pursuant to the Provisions of NEMA. The sixth respondent is the Minister of Rural and Land Development and Land Reform, who is responsible fo the administration of SPLUMA. The seventh respondent is MAS SAM (PTY) LTD, who purchased the property on 2 March 2023 for an amount of two hundred and thirty million rand (R230 000 000), and took over the construction activities.

C. RELEVANT LEGISLATION

[8]     For ease of refrence I will quote the relevant provisions of sextion 6 and 7 of PAJA upfront as it will becoe relevant in deciding this application.

"Section 6(2):

...

(f)    the action itself – [...]

(ii)    is not rationality connected to -

(aa)    the purpose with which it was taken;

(bb)    the purpose of the empowerig provision;

(cc)    the information before the admininstrator; or

(dd)    the reasons given for it by the administrator."

"Section 7

(1)     Any proceedings for judicial review in terms of section 6 (1) must be instituted without unreasonable delay and not later than 180 days after the date––

(a) subject to subsection (2) (c), on which any proceedings instituted n terms of internal remedies as contemplated in subsection (2) (a)have been concluded; or 

(b)    where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.

... / to be continued reading on downloading the full judgment.

CBCRA’s objectives for Camps Bay

CBCRA’s objectives for Camps Bay are:

To SERVE the community in all civic matters

To CONSERVE the beauty of the natural environment

To PRESERVE the built fabric of the suburb in order to protect and enhance the asset value of the homeowner

To SERVE the community in all civic matters, the CBCRA 

• assists all ratepayers with property valuation queries where possible
• advises ratepayers on the valuation objection process
• recommends suitable professional valuers in establishing relative property values
  
  
• liaises with the City of Cape Town (CoCT) and organizers regarding event permit applications evaluate the impact of local events on the community and environment
• comment and advise to commercial event permits
• ensures that deposits are utilized to repair any damages to surfaces and fixtures
• ensures that nose control permits are adhered to
• finding a balance between community interests and event benefits

• assists with the control and cleanup of litter on the beachfront
• liaising to install attractive large litter bins on the beachfront (branded by sponsorship) to encourage and educate on the scourge of litter
• communicates anti-littering messaging to beachgoers
  
  
• communicates matters of concern and interest to the community from the CoCT and other organizations
• road closures
• fires
• hazards
• stormwater damage
• sewage spills
  
  
• showcase the benefits of CBCRA membership and community involvement
• providing volunteer opportunities for community members
• fostering a sense of unity and collaboration for positive change
  
  

To CONSERVE the beauty of the natural environment, the CBCRA 

• actively assists the CoCT and the Camps Bay CID in maintaining the greenbelts, parks and streams of Camps Bay
• ensures that environmental and heritage laws are properly enforced
• is the only registered conservation body in this area
• responses to environmental and heritage impact assessments
• liaises with the Heritage Western Cape
• fights for the improved quality of ocean water by opposing the current use of Marine Outfall Plants (MOPs) – this is critical for the survival of our marine life and beach usage
  
  

To PRESERVE the built fabric of the suburb in order to protect and enhance the asset value of the homeowner, the CBCRA

• liases with the CoCT applicants and developers regarding property planning matters relating to applications to the CoCT for departures, title deed removals, consent uses etc
• will remain the watchdog on all development and represents the community when inappropriate development is approved by the CoCT
• liases agreements between property owners and developers in line with property planning laws
• secures finance for the efforts to enforce planning laws
• comments and advises on liquor license applications