Warren v Member of the Executive Council Eastern Cape, Department of Housing Local Governement and Traditional Affairs (EL220/07, ECD520/07) [2008] ZAECHC 113 (10 July 2008)

FORM A

FILING SHEET FOR EASTERN CAPE

DIVISION JUDGMENT

PARTIES: SOPHIA-MARE WARREN

vs

THE

MEMBER OF THE EXECUTIVE

COUNCIL EASTERN CAPE, DEPARTMENT

OF

HOUSING LOCAL GOVERNMENT

AND TRADITIONAL AFFAIRS AND 3 OTHERS

Case Number: EL220/07 (ECD 520/07)

High Court: EAST

LONDON CIRCUIT LOCAL DIVISION

Date heard: 3 March 2008

Date delivered: 10 July 2008

JUDGE(S): A.R. Erasmus J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): Adv. T. Paterson

for the Respondent(s): Adv.E.A.S. Ford and Adv. Boswell

Instructing attorneys:

Applicant(s): Bate Chubb & Dickson Inc

Respondent(s):

State Attorney

CASE INFORMATION -

Nature of proceedings: Application

Topic:

Key Words: Appeal i.t.o. Land Use Planning Ordinance 15 of

1985 – Principles – Applicability of Development

IN

THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

Case no: EL220/07

ECD520/07

Date heard: 3.3.2008

Date delivered: 10.7.2008

In the matter between

SOPHIA-MARE

WARREN APPLICANT

THE MEMBER OF THE EXECUTIVE

OF

HOUSING LOCAL GOVERNEMENT

AND TRADITIONAL AFFAIRS First respondent

BUFFALO CITY MUNICIPALITY Second respondent

JOHAN ADRIAAN VENTER Third respondent

DEBBIE VENTER Fourth respondent

JUDGMENT

A.R. ERASMUS J:

[1] The third and fourth respondents are the joint owners of Erf 7710 situate in a residential area of East London. The property is subject to restrictive conditions registered against its title deeds, inter alia '(t)hat not more than one dwelling, together with the necessary outbuildings and appurtenances be erected on this lot' and '(t)hat not more than one-fourth of the area be built upon'.

[2] The respondents submitted an application to the second respondent for the subdivision of the erf in terms of the Land Use Planning Ordinance 15 of 1985 ('LUPO'). At the same time they applied to the first respondent for the removal in terms of the Removal of Restrictions Act 84 of 1967 ('the Act') of the restrictive conditions. The applicant lodged a fully motivated objection to both the applications. The second respondent approved the subdivision application in terms of LUPO, but dismissed the application in terms of the 1967 Act, solely on procedural grounds.

[3] The applicant thereupon appealed to the first respondent in terms of s 44(1)(a) of LUPO against the decision of the second respondent. In terms of s 44(2) of LUPO the first respondent may in his discretion dismiss an appeal contemplated in ss (1)(a) or make a decision relating thereto which the council concerned could have made.

[4] The appeal under LUPO is in the nature of a reconsideration of the application by the first respondent in the exercise of the discretion vested in him in terms of 44(2). Counsel for the third respondent submit that the discretion is wide as opposed to narrow, with LUPO being silent on the precise factors to be taken into account and the weighting to be given to each such factor. They submit that where discretionary powers are not narrowly prescribed by the empowering legislation, it is for the administrative authority to determine what is and what is not relevant. They, further, submit that the weight to be given to each such factor falls within the discretion of the functionary, and that the court will not interfere with the exercise of that discretion merely because it disagrees with the factors taken into account by the functionary and the weighting given thereto by him (Minister of Law and Order v Dempsey 1988 (3) SA 19 (AD) 35C-F. These submissions accord with the law and are not challenged by counsel for the applicant.

[5] In a letter dated 19 January 2007 the Superintendent-General of the Department of Housing, Local Government and Traditional Affairs, Eastern Cape ('the department') notified the applicant’s husband that the first respondent had resolved to dismiss the applicant’s appeal, 'subject to the successful removal of the restrictive title deed conditions'. He indicated that the reasons for the decision were:

'(i) The application for the subdivision meets the requirements of the Development Facilitation Act, 1995 in that it allows for higher residential densities, more compact cities and more efficient use of existing services; and

The application meets the Council’s erf size requirements.'

[6] The applicant now seeks a review of the first respondent’s dismissal of the appeal and, in the event of the review succeeding, a further order either setting aside the approval by the second respondent of the third and fourth respondents’ application for the subdivision of the erf, alternatively remitting the appeal to the first respondent.

[7] The first respondent filed opposing affidavits by the following persons: Benjamin Gericke, a town planner employed as chief town planner in the department; Riaan Strauss, employed as an assistant manager in the Land Use Management Section of the department; Brian Henry Von Der Decken, an attorney and member of the Planning Advisory Board ('the board') of the department; Ncedani Samson Kweleta, the incumbent at the relevant time of the office of first respondent.

[8] Gericke describes the procedure followed in the department where an appeal in terms of LUPO is lodged against the grant of a subdivision. The notice of appeal is sent to the department directly, with a copy to the local municipality concerned, in this case the Buffalo City Municipality, the second respondent. The appeal documents are received by the Land Use Section within the department, which then formally refers the appeal to the municipality concerned for their comment. Once the municipality’s comments are received, the entire file is forwarded to the Special Planning Division of the department (in which section he works) for a report. The Special Planning Division then prepares a report, in which it either does or does not support the appeal. Once the report is completed and has been signed by the head of the section, it is returned to the Land Use Management Division. The appropriate official in that division then places the appeal, including the report, before the Planning Advisory Board (the 'board'). The board, after considering the appeal, then forwards its own recommendation to the first respondent.

[9] He further states that because of the nature of the objections received from the applicant, he visited the area where erf 7710 is located. That was necessary in order to assess the merits of the applicant’s objections relating to the impact of the proposed subdivision on the surrounding area. From his visit and taking into account the fact that the two proposed portions would meet the municipality’s minimum erf size requirement, he came to the conclusion that this subdivision would not result in a significant departure from the single residential character of the area. He observed a very low traffic volume in the street and formed the view that the subdivision would not lead to a significant increase in traffic volume. He drafted the report on behalf of the Special Planning Division which was placed before the board.

[10] In the report he summarized the position as follows:

'Subdivision of large residential properties has become common place and is part of the trend to densify urban areas. In this case, the application implied the creation of another erf by using the vacant portion of a fairly large erf. The proposal meets the minimum erf size and the 50% coverage requirements as prescribed by the zoning scheme. …

The arguments based on perceived impact on the character of the area, increased traffic flow and devaluation of property value are equally not supported. The urban environment is a dynamic one and it cannot be expected that this should remain the same forever. Furthermore, the DFA principles ushered in a new approach to spatial planning and today the densification of urban areas is one of planning’s guiding principles.

Densification of established urban areas can only be done through subdivision and the Buffalo City zoning scheme was amended to allow for smaller residential erven. The argument that the proposal will be to the detriment of the area’s character is not supported as this is not determined by erf size only. Consequently the arguments about loss of value and compensation are also not supported. Densification will lead to an increase in traffic, but in this instance only one additional erf is created. It is not believed that this would lead to a marked increase in traffic.

The appeals are not supported from a town planning perspective.'

[11] Strauss states that he placed the appeal, including Gericke’s report before the board. The board referred the record of the appeal to one of its members, Von Der Decken, who prepared a report and recommendation for the board. When the board sat, each member thereof was furnished with a copy of the record of the appeal. The preliminary report by Von Der Decken was debated and considered, and the board then brought out it own recommendation. This was that the appeal be dismissed and the approval of the application for subdivision be confirmed for the reasons given by the chief town planner, subject to the successful removal of the restrictive title deed conditions. A complete record of the appeal and the various recommendations were then forwarded to a number of heads of department. All the officials supported the recommendation. The reports and recommendations were then referred to the first respondent.

[12] Kweleta confirms the procedure for dealing with appeals described by Gericke and Strauss. He describes his modus operandi in considering the material placed before him. He was not, he says, in the habit of blindly following the memoranda by the land use section or the recommendations of the board. He is satisfied that his decision on the applicant’s appeal was properly taken, for the correct reasons.

[13] The applicant does not fault the manner in which the first respondent and the officials dealt with the appeal. Quite clearly, they gave the matter full consideration in a comprehensive and effective procedure. The applicant’s review is directed at the reasons furnished by the officials for their recommendation and by the first respondent for his decision. Counsel submits the reasons furnished for the dismissal of the appeal, as amplified in the affidavits filed on behalf of the first respondent, are flawed in material respects. I deal with these aspects under the headings used by counsel.

THE MINIMUM SIZE OF THE ERF

[14] It is submitted on behalf of the applicant that the minimum size of an erf as defined by the zoning scheme is not by itself good reason for its subdivision.

[15] This fact is not however irrelevant to the subdivision of the property. Gericke makes it clear that the minimum erf size did not play an overriding role in his recommendation. He explains that the question whether or not a property can properly be subdivided depends not only on its size, but also on its shape and the position of the existing dwelling on the property. In the particular case, the fact that the existing dwelling was located on one side of the erf, which would leave a regularly sized portion conforming to the minimum size requirements of subdivision, was relevant. I find that neither Gericke nor the first respondent erred in having regard to this aspect.

THE

RESTRICTIVE CONDITION

[16] It is submitted on behalf of the applicant that because restrictive conditions take precedence over zoning provisions, the subdivision application in terms of LUPO should not have been considered before the removal application in terms of the 1967 Act had been completed.

[17] The existence of the restrictive conditions is however not in itself a bar to the granting of the application for subdivision. There is no provision to that effect. The subdivision was approved subject to the removal of the restrictive conditions. The merits of the removal of those restrictions was irrelevant in the appeal before the first respondent. The proper time to address that issue will be when the first respondent considers the application for the removal of the restrictions in terms of the 1967 Act.

THE EFFECT ON THE NEIGHBOURHOOD

[18] It is submitted on behalf of the applicant that her concerns with regard to the subdivision setting a precedent and leading to the alteration of the character of the neighbourhood are all in accordance with good reason and are not to be rejected as suggested by the first respondent.

[19] It is clear from the affidavits of the first respondent and Gericke that this aspect was fully considered and given its proper weight.

THE DEVELOPMENT FACILITATION ACT 67 OF 1995

[20] The long title of the Act sets out its purpose, and includes the following:

'To introduce extraordinary measures to facilitate and speed up the implementation of reconstruction and development programmes and projects in relation to land; and in so doing to lay down general principles governing land development throughout the Republic; … to provide for nationally uniform procedures for the subdivision and development of land in urban and rural areas so as to promote the speedy provision and development of land for residential, small-scale farming or other needs and uses.'

[21] Chapter 1 of the Act sets out 'GENERAL PRINCIPLES FOR LAND DEVELOPMENT (s 2-4)'. Section 2 states that the general principles set out in s 3 applied throughout the Republic. Section 3(1)(c) declares that policy and administrative practice should promote efficient and integrated land development in that they -

'(i) – (iii) …

(iv) optimise the use of existing resources including such resources relating to agriculture, land, minerals, bulk infrastructure, roads, transportation and social facilities;

promote a diverse combination of land uses, also at the level of individual erven or subdivisions of land;

discourage the phenomenon of 'urban sprawl' in urban areas and contribute to the development of more compact towns and cites;

contribute to the correction of the historically distorted spatial patterns of settlement in the Republic and to the optimum use of existing infrastructure in excess of current needs; and

encourage environmentally sustainable land development practices and processes.'

[22] Counsel points to s 1 of the Act which states that ' ”land development” means any procedure aimed at changing the use of land for the purpose of using the land mainly for residential, industrial, business, small-scale farming, community or similar purposes...' (the emphasis is that of counsel). Counsel refers to the interpretation of the Act adopted by Melunsky J in Port Elizabeth Municipality vs Rudman and another 1999 (1) SA 665 (SE) 667G-678B. The learned judge held that the definition of land development does not cover land that has already been developed according to a town planning scheme.

[23] This finding of the court must be viewed in its context, namely the question whether the pre-existing municipality’s zoning laws were invalid in that they did not accord with the principles contained in the Facilitation Act. I do not think that Melunsky J intended to hold that the principles of the Act were irrelevant to the impact of any proposed subdivision of already developed property. His interpretation of the Act does not render the goals identified in s 3 irrelevant as guidelines to that issue.

[24] I can see nothing wrong in the first respondent having regard to those guidelines, provided of course that he and the functionaries did so in a proper manner. Kweleta states that appeals are considered within the general framework of the governing legislation, including the Facilitation Act, LUPO and the Buffalo City Zoning Scheme Regulations. He emphasises that all other relevant considerations were taken into account, including the applicant’s objections.

[25] Gericke states that insofar the application for subdivision is concerned, the procedure is governed by LUPO although the decision is influenced by the principles enunciated in the Facilitation Act, including the drive towards densification of urban areas; as well as by the provisions of Buffalo City Zoning Scheme. He submits that his report shows that all other relevant considerations were taken into account, including the applicant’s objections. He did not, he says, adopt an approach that the provisions of s 2 and 3 of the Facilitation Act were requirements used to sweep away all other considerations.

CONCLUSION

[26] I find that the first respondent, as advised by the functionaries and the board, applied his mind properly to the applicant’s appeal and that his decision to dismiss the appeal was rational and properly reasoned.

In the result, the application is dismissed with costs.

_____

A.R.

ERASMUS

JUDGE

OF THE HIGH COURT

DATE: _______