15 February
2015
The District Manager
Table
Bay District, Planning & Building Development Management
City
of Cape Town
Cape Town
8000
ATTN Ms Asanda Solombela
Dear Ms Solombela
SECTION 42G - AMENDMENT, SUSPENSION OR DELETION OF A
RESTRICTIVE CONDITION
CASE ID 70255587
APPLICANT ANDREW
PRATT TOWN PLANNING
ERF 1169
LOCATION 96
CAMPS BAY DRIVE
SUBURB CAMPS BAY
The CBRRA strongly objects to this
application.
In the first instance, however, the
application is flawed in that it is for the sub-division of the parent erf, in
terms of Item 42(d) of the Municipal By-law, and the erection of (presumably,
double) dwelling units on each such sub-divided erf. But there is also an
application for the expungement of cl 1(c) from Title Deed T539/2000, which
will permit the erection of a block of flats on the property. This is also
confirmed in the application.
An application must be clearly and accurately
detailed to pass muster and, as in this case, cannot be for both scenarios.
Therefore, the application is accordingly
defective and needs to be re-advertised with the correct information. As such,
this administrative process is now void and must be re-advertised ab initio.
Please confirm that you are in agreement with
this.
Insofar as the basic, generalised merits of
the application are concerned, please note the following:
The CBRRA has met with the affected neighbours
and their opposition to the proposed building was strongly registered. It is
therefore clear that this application fails the test for being in the interests
of the community, in terms of applicable law.
Specifically, this application is opposed on
the following grounds:
- The proposal is over bulked and merely an attempt by the
applicant/owner to maximize profit at the expense of proper town planning
principles and, in fact, the law.
- There is no precedent that an Erf of this small size be used for
a block of flats, if indeed that is the purpose of the application. The
title deed restrictions were expressly worded to prevent this type of
abuse. The fact that this applicant is attempting to remove one of the
most important restrictions for financial gain speaks volumes.
- This massive block will result in a complete loss of privacy for
the surrounding property owners, which is unconstitutional.
- The increase in traffic generated from an additional 3 units will
only add to an already congested and dangerous area for traffic.
Further, the Title Deed restrictions
applicable to the subject Erf were registered in favour of the owners of
property in this township and, as such, may not be summarily removed without
the express permission of those affected parties. The various divisions of the
High Court of South Africa have exclusively - and repeatedly – ruled that title
deed restrictions, applicable to any property in a township, are praedial servitudinal rights and may not
be amended or expunged by mere executive action if a positive benefit to that
community is not shown. In this case, no positive benefit to the area has been established
by the Applicant.
This is supported by reported case law, where
the Western Cape High Court ruled, in the Camps Bay Ratepayers vs. RBC Sub
Eleven matter, that the Minister may not remove or amend restrictive title
deed conditions if it is not in the interests of the community (Griesel, AJ, as
he was then). The learned judge went further and ruled that the test must also
be a positive one – in other words, the applicant must show a positive benefit
for the community when submitting such an application. Other divisions of the
High Court have handed down similar rulings. The applicant has failed to show
any benefit, of any kind, to the community and this is clearly a case where
such removal is actually only in the narrow financial interests of the
developer, which, the Court ruled, could not sustain an application such as
this.
The Applicant has shown no real
benefit or advantage to the community that will result from this application
and it therefore falls to fail on this ground alone.
Further, it is the minimum requirement of the LUPO that applications must be
desirable. The fact that the Camps Bay community has opposed this development
and that major title deed removals and departures are required, clearly shows
the undesirability of the proposal – especially in the public mind.
The Supreme Court of Appeal (in the True
Motives vs. Mahdi case # 543/07) has also added that such a proposal must be
considered ito s7 of the National Building Regulations and Standards Act, when
the application does not conform to all applicable law. S7 reads as follows:
7 Approval by Local
Authorities in Respect of Erection of Buildings
(1) If a local authority,
having considered a recommendation referred to in section 6(1)(a)-
(a) is satisfied that the
application in question complies with the requirements of this Act and any
other applicable law, it shall grant its approval in respect thereof; [Para.
(a) substituted by s. 4 (a) of Act 62 of 1989.]
(b) (i) is not so satisfied; or
(ii) is satisfied that the
building to which the application in question relates-
(aa) is to be erected in
such manner or will be of such nature or appearance that-
(aaa) the area in which it
is to be erected will probably or in fact be disfigured thereby;
(bbb) it will probably or in
fact be unsightly or objectionable;
(ccc) it will probably or in
fact derogate from the value of adjoining or neighbouring properties;
(bb) will probably or in
fact be dangerous to life or property, such local authority shall refuse to
grant its approval in respect thereof and give written reasons for such
refusal:
In this specific instance, the building will
derogate from the value of affected neighbours’ properties and the public
amenity of protected sea-views and privacy, accordingly, must be denied.
The CBRRA suggests that the applicant enter
into discussions with it and the affected neighbours in an attempt to arrive at
a satisfactory compromise, which can then form the basis of an amended
application. As previously stated, a new application will have to be advertised
in any event.
The CBRRA requests an interview at any Sub
council, SPELUM or MTB committee meeting, which is convened to decide this
application.
Regards
CHRIS WILLEMSE
CHAIRPERSON
CBRRA
