Ruck v Makana Municipality and Others (2628/2010) [2010] ZAECGHC 111 (24 November 2010)

Ruck v Makana Municipality and Others (2628/2010) [2010] ZAECGHC 111 (24 November 2010)

The court held that the Grahamstown Zoning Scheme Regulations require the side building line to be determined as at least 4 metres or half the height of the building, whichever is greater. The statutory definition of 'building' includes the roof, and thus the total height for regulatory purposes must include the roof. The Municipality erred in approving the plans based only on storey height, excluding the roof, which resulted in a side building line that did not meet the statutory minimum. The court found that the Municipality's decision was unlawful and irrational, as it failed to comply with the zoning regulations and did not properly consider the impact on neighbouring property rights....

Citation
[2010] ZAECGHC 111
Parties
Applicant: Prudence Jane Ruck; Respondent: Makana Municipality; Respondent: Sydney William Fitzhenry N.O.; Respondent: Penelope Lynne Fitzhenry N.O.; Respondent: Harold Richard Glennie N.O.
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
24 November 2010
Case Number
2628/2010
Procedural Posture
Review Application / Final Judgment on Urgent Review
Outcome
Application for review succeeded; Municipality's approval of building plans declared invalid and set aside.
Judges
Mageza
Legal Topics
Promotion of Administrative Justice Act, Building Regulations, Zoning Scheme Interpretation, Judicial Review, Municipal Powers, Side Building Line
Administrative Law Land and Property Civil Procedure Promotion of Administrative Justice Act Building Regulations Zoning Scheme Interpretation Judicial Review Municipal Powers +1 more

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Parties

Prudence Jane Ruck

Applicant

Makana Municipality

Respondent

Sydney William Fitzhenry N.O.

Respondent

Penelope Lynne Fitzhenry N.O.

Respondent

Harold Richard Glennie N.O.

Respondent

Procedural Posture

Review Application / Final Judgment on Urgent Review

Legal Issues

  1. 1 Whether the approval of building plans by the Municipality complied with the statutory requirements for side building lines under the zoning scheme.
  2. 2 Whether the height of the building for purposes of the side building line includes the roof.
  3. 3 Whether the Municipality acted lawfully and rationally in approving the plans without considering the roof height.

Ratio Decidendi

The court held that the Grahamstown Zoning Scheme Regulations require the side building line to be determined as at least 4 metres or half the height of the building, whichever is greater. The statutory definition of 'building' includes the roof, and thus the total height for regulatory purposes must include the roof. The Municipality erred in approving the plans based only on storey height, excluding the roof, which resulted in a side building line that did not meet the statutory minimum. The court found that the Municipality's decision was unlawful and irrational, as it failed to comply with the zoning regulations and did not properly consider the impact on neighbouring property rights....

Court Disposition

Application for review succeeded; Municipality's approval of building plans declared invalid and set aside.

Orders

  • The decision of the First Respondent in approving the plans submitted for the development of Erf 9455 is declared invalid and set aside.
  • Respondents are to pay the Applicant's costs, including costs of 21 November, jointly and severally, the one paying the other to be absolved.