Tavakoli and Others v Phase III Development Company (Pty) Ltd and Another (22026/2015) [2015] ZAWCHC 188 (11 December 2015)

Tavakoli and Others v Phase III Development Company (Pty) Ltd and Another (22026/2015) [2015] ZAWCHC 188 (11 December 2015)

The court found that the applicants have a strong prima facie right to review the approval of the building plans, as the plans arguably contravene item 40(c) of the Development Management Scheme regarding road reserve width. The servitude granted by the developer does not clearly resolve the legal requirements for a public street or road reserve, as ownership and proper declaration by the City are required. The servitude only covers part of the boundary, and the approval appears to be an evasion of the intent of the DMS. The building line requirements may also be violated if the servitude area is declared a public street. The applicants face irreparable harm if interim relief is not...

Citation
[2015] ZAWCHC 188
Parties
Applicant: Allen Targhi Tavakoli; Applicant: DLX Property (Pty) Ltd; Applicant: Jennifer Lynn Haris; Applicant: Richard Neil Harris; Respondent: Phase III Development Company (Pty) Ltd; Respondent: The City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 December 2015
Case Number
22026/2015
Procedural Posture
Urgent Application / Interim Interdict Pending Review
Outcome
Interim interdict granted pending review; first respondent interdicted from further building work.
Judges
Rogers
Legal Topics
Municipal Planning by Law, Building Plan Approval, Interim Interdict, Servitude Right of Way, Review of Administrative Action, Development Management Scheme
Administrative Law Land and Property Civil Procedure Municipal Planning by Law Building Plan Approval Interim Interdict Servitude Right of Way Review of Administrative Action +1 more

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Parties

Allen Targhi Tavakoli

Applicant

DLX Property (Pty) Ltd

Applicant

Jennifer Lynn Haris

Applicant

Richard Neil Harris

Applicant

Phase III Development Company (Pty) Ltd

Respondent

The City of Cape Town

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the approval of building plans by the City was lawful under the Municipal Planning By-law and Development Management Scheme.
  2. 2 Whether the servitude granted by the developer lawfully increased the width of the road reserve for compliance with zoning restrictions.
  3. 3 Whether the approval of the plans constitutes an evasion of the intent of the DMS and whether the building line requirements are contravened.

Ratio Decidendi

The court found that the applicants have a strong prima facie right to review the approval of the building plans, as the plans arguably contravene item 40(c) of the Development Management Scheme regarding road reserve width. The servitude granted by the developer does not clearly resolve the legal requirements for a public street or road reserve, as ownership and proper declaration by the City are required. The servitude only covers part of the boundary, and the approval appears to be an evasion of the intent of the DMS. The building line requirements may also be violated if the servitude area is declared a public street. The applicants face irreparable harm if interim relief is not...

Court Disposition

Interim interdict granted pending review; first respondent interdicted from further building work.

Orders

  • The applicants' non-compliance with the time periods, forms and processes set out in the Uniform Rules of Court is condoned and the hearing of the Part A relief on an urgent basis is authorized.
  • The first respondent is interdicted from carrying out any further building work on its property at Erf 118 Fresnaye, Cape Town, pending the final determination of the relief set out in Part B.