Rochville Properties (Pty) Limited and Another v City of Tshwane Metropolitan Municipality and Another (82807/2016) [2018] ZAGPPHC 496 (15 June 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

CASE. NO: 82807/2016

15/6/2018

In the matter between -

ROCHVILLE PROPERTIES (PTY) LIMITED

First Applicant

ROCHELLE PHElFFER

Second Applicant

And

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

First Respondent

CLAUDIA HLAISE

Second Respondent

JUDGMENT

DODSON AJ

[1] This is, a dispute regarding the use of a property in conflict with a zoning scheme.

[2] The property constitutes a piece of farmland some 12 hectares in extent in Pretoria East.

[3] The property is currently zoned “undetermined" in terms of the Peri Urban Areas Town Planning Scheme, 1975 read with clause 4(1) and 4(2) of the Tshwane Town Planning Scheme as revised in 2014, together with Schedule 21 of the 2014 Scheme.

[4] It is common cause that the effect of the zoning as "undetermined" is that the property and buildings on it may only be used for the erection and use of agricultural building, . a farm stall and one dwelling house .

[5] Notwithstanding this zoning, the first applicant, whose sole director is a practising attorney, the second applicant, proceeded to establish the Monte De Dios Equestrian Wedding and Conference Venue on the property. It consists of a lodge with a wedding hall, conference venue, 10 guest rooms a chapel (as part of the main structure), associated infrastructure, parking, a restaurant, tea garden, a children's play area, events area, staff accommodation and a stall area.

[6] Since its establishment, it is common cause that the venue has been used on, an ongoing basis for weddings and conferences in breach of the zoning scheme.

[7] In order to seek to legitimise its unlawful use, Rochville app lied to the municipality on 17 February 2016 for a consent use . It did not simultaneously cease it unlawful use of the property. On the contrary, it continued to do so.

[8] The upshot of this was the service on the applicants of a "Notice of Contravention of the Tshwane Town Planning Scheme" on 13 September 2016.

[9] The unlawful uses on the property were Identified in the notice as:

"Place of entertainment

Wedding venue

Stables.··

[10] Notwithstanding service of the notice, which callt3d on the applicants to discontinue their unlawful use, the unlawful use persisted. Instead of stopping the unlawful use, the applicants launched proceedings in the High Court in which they sought, in Part A, to have the contravention notice suspended and in Part B, reviewed end set aside.

[11] On 23 February 2017, the municipality’s municipal planning tribunal considered, but refused to grant, the consent use applied

for by Rochville.

[12] On 13 March 2017 , the applicants filed an appeal in terms of section 20 of the City of Tshwane Land Use Management By-Law of 2 March 2016, against the municipal planning tribunal's refusal to grant the consent use application.

[13] On 26 July io11. the municipality filed Its answering affidavit.

[14] On 16 February 2018, the municipality launched a counter-application in which, it sought wide ranging declaratory relief including a declarator to the effect that pending the finalisation of the consent use application submitted by the applicants, the applicants were prohibited from using the subject property in contravention of a range of legislative instruments governing town planning, spatial planning and land use, land use management, building, the sale of liquor and noise control.

[15] The respondents then proceeded to have the matter set down for hearing.

[16] Shortly before the hearing, the appellants launched an application for postponement on the grounds that-

[16.1] the respondents needed to amend the relief sought in their counter application because it was too broadly framed and amounted to the seeking of legaI advice from the court (no request of this nature had been forthcoming from the respondents); and

[16.2] the ruling if the municipal appeal tribunal on the consent use was imminent and. having regard to the manner in which the hearing of the appeal tribunal had proceeded. likely to result in the consent use being granted..

[17] In the answering affidavit in opposition to the postponement application, the respondents admitted that the decision of the municipal municipal appeal tribunal was imminent but the respondents persisted in insisting on the adjudication of the matter on the basis of the principle, supported by judgments, that the court could not condone a continuing illegality merely because the applicant had taken steps that might at a future date render the unlawful conduct (prospectively) legal.

[18] I called on the parties to argue the review application in respect of the contravention notice, the respondent's counter-application and the postponement application together.

[19] It was common cause during the hearing that in the event that the municipal appeal tribunal were to decide the matter in favour of the applicants, the matter would in all respects become moot, This much was expressly conceded by counsel for the respondents in response to a question from the court. The parties were therefore requested to inform me in the event that the municipal appeal tribunal handed down Its decision before my judgment was ready, judgment having been reserved at the end of the hearing.

[20] It was a reed that in the event that a decision was forthcoming from the municipal appeal tribunal before judgment the parties would have the opportunity to make further submissions to me in order to address how the matter, having become moot, should then be disposed of.

[21] Sure enough, on 17 May 2018. the applicants ' attorneys were informed that the municipal appeal tribunal had handed down a decision in the applicants' favour on 11 May 2018, the same day that the matter had in fact been argued before me.

[22] In the applicants' written ,submission made in response to these development, it was contended that the review application should be granted with costs on .the basis that the reference in the contravention notice to "stables · was irrational because agricultural uses were permitted by the existing zoning.

[23] As far as the postponement application was concerned, although this had become moot, costs should be awarded in favour,. of the applicants because the respondents should have consented to the postponement in view of the fact that the decision of the municipal municipal appeal tribunal was imminent.

[24] As far as the counter application was concerned the applicants contended that they had essentially been successful in resisting the application and there too they should be awarded their costs.

[25] The respondents in their further submission pointed out that the appeal tribunal' decision was a conditional one which read as follows:

"That the appeal succeeds with regard to the application for consent use for a lodge and ancillary uses including 10 rooms, i.e. that the lodge be limited to 10 bedrooms, subject to the following directive :

a. That the application be referred back to the rnunicipal planning tribunal (“MPT”) for the sole purpose of determining the conditions referred to in section 7(3) of the Peri-Urban Town Planning Scheme 1975...

b. In determining the conditions attached to the grant of the consent use as decided by the MAT, the MPT shall consider the written evidence submitted to the MAT, including the record of proceedings before the MAT and any other written technical evidence deemed necessary by the MPT to arrive at a just and Equitable decision concerning the conditions to be attached to the consent use.''

[26] With reference to the conditional grant of the appeal, the respondent contends that :

“A consent use without any conditions pertaining to town planning controls, such as height of buildings, coverage of buildings, parking

provisions, limitations on seating for restaurant and chapel etc is unheard of, Is meaningless and ought to be considered null and void.''

and

"A consent without conditions attaching thereto is so meaningless as to constitute no consent at alI, alternatively a nullity.''

[27] On this basis, the respondents contend in their submission (in conflict with the concession made by counsel at the hea1ring) that the applicants' use remains unlawful, the matter is not moot and the interdictory relief sought in the counter-application should be granted. They contend that the application for a postponement should be dismissed with costs, as should parts A and B of their review.

[28] The respondents misconstrue the effect of the decision of the municipal appeal tribunal in favour of the applicants and overlook well. established Supreme Court of Appeal and Constitutional Court authority. The effect of the appeal tribunal’s decision is that the consent use is granted and specifically provides that the consent pertains to "use for a lodge and ancillary uses including 10 rooms".

[29] I agree with the applicants that the municipal planning tribunal, in considering the conditions that it attaches, cannot undermine the decision of the appeal tribunal by imposing conditions that serve to exclude the uses for which the consent was sought and ultimately granted by the municipal appeal tribunal.

[30] Moreover, it is trite that it is not open to the first respondent to argue that a decision of one of its own decision .making structures is void or invalid and may OM that basis be ignored.[1]

[31] There Is nothing in the appeal tribunal's decision to suggest that it is suspended pending the determination of the conditions to be imposed by the municipal planning tribunal. Section 7(5) of the Peri-Urban Area, Town Planning Scheme, 1975, provides in effect that the appeal tribunal's decision comes into force 28 days after the appeal has been finalised. The appeal was finalised on 11 May 2018 and more than 28 days have passed since then.

[32] In the circumstances the concession originally made by the respondents' counsel when the matter was heard, that the effect of a decision in favour of the applicants by an appeal tribunal would render the entire matter moot, was correctly made. The respondents' attempt to walk away from this concession was inappropriate and should not have been allowed by their counsel. It had the unfortunate consequence of generating unnecessary and substantial further written submissions from both sides.

[33] Because. the matter has become. moot, the only remaining live issue relates to the question of costs.

[34] Insofar as the applicants' review application is concerned, I do not agree with counsel for the applicants that the reference in the consent notice to was overbroad is in my view neither here nor there. It is clear what was sought to be achieved, ie the cessation of the unlawful use. Had the matter not become moot. Appropriately tailored relief could therefore have been granted under the prayer for further or alternative relief.

[38] This court has made it clear that It will not condone conduct in breach of a zoning scheme on the basis that application has been made for a consent use which has yet to be granted. Southwood J in City of Tshwane Metropolitan Municipality v Grobler and others[2] said the following in this regard;

“[9] The fact that the respondents have applied for the property to be rezoned does not legitimise the use of the property. Before the respondents commenced use of the property for the business of a funeral undertaker and morgue they should have made sure that this was permissible in terms of the scheme. While the respondents are in contravention of the scheme they are acting unlawfully and committing a crime and the applicant is duty-bound to prevent them from so acting. The respondents’ use of the property for the business of a funeral undertaking and morgue before the scheme was amended to permit such use is and was premature- not the applicant’s application to prevent such use

[10]… The applicant issued contravention notices to the respondent in terms of s 42 of Ordinance ... in each notice the applicant notified the respondents that the use of the property was a contravention of the scheme and they were directed to cease such use. At no stage did the respondent simply discontinue such use. Purporting to act on advice, the respondents continued to use the property for the business while apparently seeking to rectify the position. In Jun 2003 the respondents lodged an application for rezoning the property but the papers do not show to what extent the applicant complied with the Ordinance or whether the application was or has any realistic prospects of success ... However, whatever the respondents did, it did not legitimise the use of the property for the business. They continued to contravene the scheme and commit an offence. They also committed an offence by not complying with the applicant’s directives. The fact that they acted on the advice of a town planner Is no excuse,· certainly not for purposes of an interdict which is aimed at prohibiting unlawful conduct.

[11]...

[12] This deliberate flouting of the law in the face of a lawful attempt by the applicant to perform its statutory duty warrants a special costs order. To permit such conduct would result in anarchy, particularly in a city where it is notorious that contraventions of the scheme, in circumstances such as the. present, are widespread ... There is no good reason why the applicant should be out of pocket when it performs its statutory duty of enforcing the scheme. ..."

[39] Had the matter not become moot, I would have granted the relief sought by the respondents in the counter application against the applicants. In the circumstances., the applicants must pay the respondents' costs in relation to the counter-application or, the attorney and client scale.

[40] Finally, as far a$ the postponement application is concerned, there is some merit in the applicants' contention that in the particular circumstances of this matter, with the decision of the appeal tribunal imminent, the respondents were over-zealous in seeking to force the hearing of the matter on a fully opposed, live-dispute basis. The respondents ought also to have put the necessary communication mechanisms in place so that the matter was not being argued at length in the High Court whilst. simultaneously, the appeal tribunal was handing down its decision in favour of the applicants.

[41] The postponement application is similarly moot.

[42] Having regard to what I have said, each party should bear its own costs in relation to the postponement application.

[43] The parties will have incurred casts in relation to the submissions that followed the municipal appeal tribunal's decision, Here the conduct of the respondents was inappropriate in attempting to walk away from a concession correctly may by them. In relation to this component of the proceedings, the respondents should pay the applicants' costs on an attorney and client basis.

[44] I accordingly make the following order:

(1) The applicants mutt pay the respondents' costs up to and including 11 May 2018 in respect of Parts A. and B of the review application on the attorney and client scale .

(2) The applicants must pay the respondents' costs of the counter­ application up to and including 11 May 2018 on the attorney and

client scale.

(3) Each party must bear Its own costs in relation to the applicants' application for postponement.

(4) The respondents must pay the applicants’ costs after 11 May 2018 pertaining to the written submissions made to the. court regarding the consequences of the decision of the municipal appeal tribunal in favour of the applicants, on the attorney and client scale.

AC DODSON

Acting Judge of the High Court

Date of hearing: 11 May 2018

Date of judgment: 15 June 2018

For the applicants; C van der Merwe SC

Instructed by: Jacques Classen Attorneys

For the first respondents: A Liversage

Instructed by: Diale Mogashoa Attorneys

[1] Oudekraal Estates (Pty) Ltd v City of Cape Town and others 2004 (6) SA 222 (SCA) at para 37; MEC for Health, Eastern Cape and Ano v Kirkland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC) at para 40.

[2] 2005 (6) SA 61 (T).