Jack and Others v Saldanha Bay Municipality and Others (15284/2023) [2024] ZAWCHC 291 (9 October 2024)

Jack and Others v Saldanha Bay Municipality and Others (15284/2023) [2024] ZAWCHC 291 (9 October 2024)

The Municipality's approvals of Jacobs' building plans for stand 53 at Leentjiesklip Caravan Park were unlawful and must be set aside. The Municipality failed to comply with mandatory procedures under the lease agreement and municipal resolution, specifically by not obtaining written consent from all immediate neighbours and not properly considering whether the proposed cellar was a temporary or permanent structure. The Municipality did not provide evidence that it considered relevant factors under PAJA or the Building Act, and its lack of opposition did not imply acceptance of the merits. The applicants did not establish that the approved building derogated from the value of neighbouring...

Citation
[2024] ZAWCHC 291
Parties
Applicant: Peter Jack; Applicant: Elsa Fourie; Applicant: Eben Fourie; Applicant: Donald de Beer; Applicant: Ronel Stander; Applicant: Johan van der Merwe; Applicant: Mike Russon; Respondent: Saldanha Bay Municipality; Respondent: Johan Jacobs; Respondent: Leentjiesklip Chalet Owners Association
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 October 2024
Case Number
15284/2023
Procedural Posture
Review Application / Judgment After Hearing and Further Submissions
Outcome
The Municipality's approvals of building plans for stand 53 are reviewed and set aside. The matter is remitted to the Municipality for reconsideration. The demolition relief sought by the applicants is refused. Costs are awarded to the applicants on a party and party basis, with counsel's costs taxed on scale A.
Judges
P Farlam
Legal Topics
Promotion of Administrative Justice Act, Municipal by Laws, Building Plan Approval, Standing, Procedural Fairness, Lease Agreement Compliance
Administrative Law Land and Property Civil Procedure Promotion of Administrative Justice Act Municipal by Laws Building Plan Approval Standing Procedural Fairness +1 more

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Parties

Peter Jack

Applicant

Elsa Fourie

Applicant

Eben Fourie

Applicant

Donald de Beer

Applicant

Ronel Stander

Applicant

Johan van der Merwe

Applicant

Mike Russon

Applicant

Saldanha Bay Municipality

Respondent

Johan Jacobs

Respondent

Leentjiesklip Chalet Owners Association

Respondent

Procedural Posture

Review Application / Judgment After Hearing and Further Submissions

Legal Issues

  1. 1 Whether the Municipality's approvals of building plans for the house occupied by the second respondent were unlawful and should be reviewed and set aside.
  2. 2 Whether the second respondent's construction of a cellar constituted a permanent structure in contravention of the applicable municipal resolution and lease agreement.
  3. 3 Whether the Municipality failed to comply with mandatory procedures, including obtaining written consent from immediate neighbours as required by the lease agreement.

Ratio Decidendi

The Municipality's approvals of Jacobs' building plans for stand 53 at Leentjiesklip Caravan Park were unlawful and must be set aside. The Municipality failed to comply with mandatory procedures under the lease agreement and municipal resolution, specifically by not obtaining written consent from all immediate neighbours and not properly considering whether the proposed cellar was a temporary or permanent structure. The Municipality did not provide evidence that it considered relevant factors under PAJA or the Building Act, and its lack of opposition did not imply acceptance of the merits. The applicants did not establish that the approved building derogated from the value of neighbouring...

Court Disposition

The Municipality's approvals of building plans for stand 53 are reviewed and set aside. The matter is remitted to the Municipality for reconsideration. The demolition relief sought by the applicants is refused. Costs are awarded to the applicants on a party and party basis, with counsel's costs taxed on scale A.

Orders

  • Condonation is granted to the second respondent for the late delivery of his answering affidavit.
  • The Municipality's decisions on 26 September 2019, 7 October 2020, and 18 August 2022 to approve building plans for stand 53 are reviewed and set aside.