Lurco Trading 189 (Pty) Ltd v Local Municipalitiy of Madibeng (55329/2007) [2008] ZAGPHC 211 (4 July 2008)

Lurco Trading 189 (Pty) Ltd v Local Municipalitiy of Madibeng (55329/2007) [2008] ZAGPHC 211 (4 July 2008)

The court found that the Respondent's decision to rezone Erf 3472 from 'general business' to 'residential' was procedurally unfair and unlawful. The Applicant, as the registered owner at the time of the rezoning, was not afforded an opportunity to make representations or object, as required by Section 56(4)(b) of the Town Planning and Townships Ordinance and Section 3 of PAJA. The Respondent's unilateral withdrawal of the site development approval and subsequent rezoning without notice or hearing violated the audi alteram partem rule and the Applicant's rights. The Respondent's reliance on the previous owner's waiver was misplaced, as the application for rezoning must be made by the...

Citation
[2008] ZAGPHC 211
Parties
Applicant: Lurco Trading 189 (Pty) Ltd; Respondent: Local Municipality of Madibeng
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 July 2008
Case Number
55329/2007
Procedural Posture
Urgent Application / Final Judgment on Review Application
Outcome
Application granted. The Respondent's decisions to rezone and publish the rezoning of Erf 3472 are reviewed and set aside. Costs awarded to the Applicant, except for the hearing dates of 11 December 2007 and 18 March 2008, for which each party bears its own costs.
Judges
K Makhafola
Legal Topics
Promotion of Administrative Justice Act, Town Planning and Townships Ordinance, Procedural Fairness, Audi Alteram Partem, Rezoning, Municipal Decision Review
Administrative Law Land and Property Promotion of Administrative Justice Act Town Planning and Townships Ordinance Procedural Fairness Audi Alteram Partem Rezoning Municipal Decision Review

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Parties

Lurco Trading 189 (Pty) Ltd

Applicant

Local Municipality of Madibeng

Respondent

Procedural Posture

Urgent Application / Final Judgment on Review Application

Legal Issues

  1. 1 Whether the Respondent's decision to rezone Erf 3472 from 'general business' to 'residential' was lawful and procedurally fair.
  2. 2 Whether the Applicant was entitled to be heard before the rezoning decision was made.
  3. 3 Whether the Respondent complied with the requirements of the Town Planning and Townships Ordinance and PAJA.

Ratio Decidendi

The court found that the Respondent's decision to rezone Erf 3472 from 'general business' to 'residential' was procedurally unfair and unlawful. The Applicant, as the registered owner at the time of the rezoning, was not afforded an opportunity to make representations or object, as required by Section 56(4)(b) of the Town Planning and Townships Ordinance and Section 3 of PAJA. The Respondent's unilateral withdrawal of the site development approval and subsequent rezoning without notice or hearing violated the audi alteram partem rule and the Applicant's rights. The Respondent's reliance on the previous owner's waiver was misplaced, as the application for rezoning must be made by the...

Court Disposition

Application granted. The Respondent's decisions to rezone and publish the rezoning of Erf 3472 are reviewed and set aside. Costs awarded to the Applicant, except for the hearing dates of 11 December 2007 and 18 March 2008, for which each party bears its own costs.

Orders

  • The Respondent's decision of 27 September 2007 to rezone Erf 3472, Brits, Extension 72 Township, from 'general business' to 'residential' is reviewed and set aside.
  • The Respondent's decision to publish the rezoning in the Provincial Gazette is reviewed and set aside.