Gerstle and Others v City of Cape Town and Others (A484/2015) [2016] ZAWCHC 102; [2016] 4 All SA 533 (WCC); 2017 (1) SA 11 (WCC) (15 August 2016)

Gerstle and Others v City of Cape Town and Others (A484/2015) [2016] ZAWCHC 102; [2016] 4 All SA 533 (WCC); 2017 (1) SA 11 (WCC) (15 August 2016)

The court held that the approval of double storey dwellings in the front row of Mill Row was lawful and complied with the National Building Regulations and Building Standards Act as well as the applicable zoning scheme. The concept of 'harmonious architectural entity' does not prohibit variation in height or design, and no legal mechanisms were put in place to restrict development to single storey dwellings. The decision-maker considered all relevant reports and objections, and exercised the required level of scrutiny. The appellants' attempt to extend the concept to create rights to view, privacy, and light was unsupported by law. There was no substantive legitimate expectation...

Citation
[2016] ZAWCHC 102
Parties
Appellant: June Elaine Gerstle; Appellant: Sandro Bernardi; Appellant: Louis Mathys Burger; Appellant: Tracy Lee Brown; Appellant: Ellen Elizabeth van der Merwe; Appellant: Malcolm Edgar Brooks; Appellant: Adriana Lucia van Dyk; Appellant: Bruce Andrew James; Appellant: Johann Jurgens Schoeman; Appellant: Jennifer Ann Schoeman; Appellant: Mofasi Prop Developers CC; Respondent: The City of Cape Town; Respondent: Gavin Michael Brown; Respondent: Betty Genofeva Brown
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 August 2016
Case Number
A484/2015
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Review Application
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Davis, Baartman, Boqwana
Legal Topics
Building Plan Approval, Legitimate Expectation, Harmonious Architectural Entity, Derogation of Value, Group Housing Scheme, Judicial Deference
Administrative Law Land and Property Civil Procedure Building Plan Approval Legitimate Expectation Harmonious Architectural Entity Derogation of Value Group Housing Scheme +1 more

Case Brief

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Parties

June Elaine Gerstle

Appellant

Sandro Bernardi

Appellant

Louis Mathys Burger

Appellant

Tracy Lee Brown

Appellant

Ellen Elizabeth van der Merwe

Appellant

Malcolm Edgar Brooks

Appellant

Adriana Lucia van Dyk

Appellant

Bruce Andrew James

Appellant

Johann Jurgens Schoeman

Appellant

Jennifer Ann Schoeman

Appellant

Mofasi Prop Developers CC

Appellant

The City of Cape Town

Respondent

Gavin Michael Brown

Respondent

Betty Genofeva Brown

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Review Application

Legal Issues

  1. 1 Whether the approval of building plans for double storey dwellings in the front row of Mill Row was lawful under the National Building Regulations and Building Standards Act.
  2. 2 Whether the concept of 'harmonious architectural entity' in the zoning scheme prohibits double storey development in the front row.
  3. 3 Whether the appellants had a substantive legitimate expectation that the front row would remain single storey.

Ratio Decidendi

The court held that the approval of double storey dwellings in the front row of Mill Row was lawful and complied with the National Building Regulations and Building Standards Act as well as the applicable zoning scheme. The concept of 'harmonious architectural entity' does not prohibit variation in height or design, and no legal mechanisms were put in place to restrict development to single storey dwellings. The decision-maker considered all relevant reports and objections, and exercised the required level of scrutiny. The appellants' attempt to extend the concept to create rights to view, privacy, and light was unsupported by law. There was no substantive legitimate expectation...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • Appellants are ordered to pay the costs of the appeal, including the costs of two counsel.