Colmant and Others v Brashville Properties 51 (Pty) Ltd and Others (19119/2011) [2012] ZAWCHC 393 (11 October 2012)

Colmant and Others v Brashville Properties 51 (Pty) Ltd and Others (19119/2011) [2012] ZAWCHC 393 (11 October 2012)

The court found that the municipality failed to comply with mandatory conditions imposed by the Minister when approving Brashville's building plans, specifically the requirement to refer plans to the Franschhoek Aesthetics Committee or its successor. The municipality's instruction to Brashville to apply for a contravention levy was unlawfully dictated by the provincial authority, violating the principle that discretionary powers must be exercised independently by the local authority. The court held that both the approval of the building plans and the instruction to apply for a contravention levy were susceptible to review and should be set aside. Condonation for delay in instituting...

Citation
[2012] ZAWCHC 393
Parties
Applicant: Jean-Phillippe Colmant; Applicant: Anne Gillian Stone; Applicant: La Bourgogne Farm (Pty) Ltd; Respondent: Brashville Properties 51 (Pty) Ltd; Respondent: The Stellenbosch Municipality; Respondent: The Department of Environmental Affairs & Development Planning
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 October 2012
Case Number
19119/2011
Procedural Posture
Review Application / Final Judgment After Opposed Motion Proceedings
Outcome
Application for review granted; impugned administrative decisions set aside; matter remitted for reconsideration; costs awarded to applicants.
Judges
N J Yekiso
Legal Topics
Promotion of Administrative Justice Act, Land Use Planning Ordinance, Building Plan Approval, Unlawful Dictation, Contravention Levy, Procedural Fairness
Administrative Law Land and Property Civil Procedure Promotion of Administrative Justice Act Land Use Planning Ordinance Building Plan Approval Unlawful Dictation Contravention Levy +1 more

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Parties

Jean-Phillippe Colmant

Applicant

Anne Gillian Stone

Applicant

La Bourgogne Farm (Pty) Ltd

Applicant

Brashville Properties 51 (Pty) Ltd

Respondent

The Stellenbosch Municipality

Respondent

The Department of Environmental Affairs & Development Planning

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion Proceedings

Legal Issues

  1. 1 Whether the approval of building plans by the municipality on 12 January 2010 complied with mandatory conditions imposed by the Minister.
  2. 2 Whether the municipality's instruction to the owner to apply for a contravention levy was unlawfully dictated by the provincial authority.
  3. 3 Whether the applicants are entitled to review and set aside the administrative decisions in terms of PAJA.

Ratio Decidendi

The court found that the municipality failed to comply with mandatory conditions imposed by the Minister when approving Brashville's building plans, specifically the requirement to refer plans to the Franschhoek Aesthetics Committee or its successor. The municipality's instruction to Brashville to apply for a contravention levy was unlawfully dictated by the provincial authority, violating the principle that discretionary powers must be exercised independently by the local authority. The court held that both the approval of the building plans and the instruction to apply for a contravention levy were susceptible to review and should be set aside. Condonation for delay in instituting...

Court Disposition

Application for review granted; impugned administrative decisions set aside; matter remitted for reconsideration; costs awarded to applicants.

Orders

  • The decision of the second respondent to approve the first respondent’s revised site development plan on 12 January 2011 is set aside.
  • The decision of the second respondent to instruct the first respondent during June 2011 to apply for a contravention levy is set aside.