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The City
Manager
C/o The Table Bay
District Manager
City of Cape Town
Your ref:
MPTNW12/04/19
Case ID # 70371328
Dear Sir:
APPEAL IN TERMS OF S108(1) OF THE CITY OF CAPE TOWN MUNICIPAL
BYLAW 2015 (“MPBL”) AGAINST THE MUNICIPAL PLANNING TRIBUNAL (“MPT”) DECISION OF
02 APRIL, 2019 TO APPROVE THE AMENDMENT OF A TITLE DEED RESTRICTION AND TO
GRANT DEPARTURES IN RESPECT OF ERF 294 CLIFTON AT 10 BERKLEY RD, CAMPS BAY
The CBCRA
hereby registers its appeal against the decision of the MPT as set out in the
MPT ruling of 02 April, 2019 (“the MPT decision”), ref. ID 70371328 on the
grounds set out herein.
It is clear
from the record, especially p333, the Locality Map, that the application was
not advertised in terms of the Western Cape High Court ruling by Binns-Ward, J,
in the Optimal matter. Here the court
clearly set out the parameters for the advertising of applications for the
removal, amendment or suspension of a restrictive title deed condition and
declared that such applications must be advertised to all owners of property in
the subject property’s township by registered mail. On this basis alone, the
appeal must succeed.
The
amendment of the restrictive title deed restriction cannot be considered as
anything but arbitrary as there is no reciprocity or uniform basis for the
decision. This renders the decision as unconstitutional in terms of s25 of the
Constitution, which clearly states that nobody may be deprived of property in
an arbitrary manner. The Court has also held that property includes such rights
as praedial servitudes, such as a
restrictive title deed condition.
The MPT
further erred, in the opinion of the CBCRA, in finding that the application
does not materially or adversely affect the rights of surrounding properties.
An objector, who is a neighbouring property owner, has cogently argued that the
application does indeed negatively affect him.
The MPT
failed to consider the import of the recent Concourt decision, which has made
it abundantly clear that s7(b)(ii) of the NBR&S Act applies, in its
entirety, to all applications. This includes the trigger of the derogation of
value of a neighbouring property, which the MPT did not consider in its
deliberations.
As the
losing appellant in this matter, the City must now abide by the ruling of the
Court and properly consider all applications in terms of the law. The City must
also refrain from “silo” type thinking and not simply approve land use
applications, knowing full well that the Building Control Officer will be faced
with an impossible task when final plan approval takes place.
The CBCRA respectfully requests that this
appeal against the MPT decision be upheld.
Regards
CHRIS WILLEMSE
CHAIRPERSON
Please see attached notice for our attention.
Kindly note that the new closing date for response is 5 August 2019.
