LAW HAMMERS WESTERN CAPE PLANNERS
| Noseweek Issue # 135 January, 2011 Things are far from well in the Mother City's Planning Department. In noses127&133 we reported on how a group of Bantry Bay residents successfully opposed the construction of an eight-storey, 39-unit apartment block slap-bang in the middle of their lovely suburb. Now, in a recent letter to the Atlantic Sun, Dr Patrick Morton says that the Camps Bay Residents & Ratepayers Association has brought no fewer than eight successful cases against the City's Planning Department, and is currently involved in a further three cases. Morton speaks passionately of a "recurrent failure of the Planning Department of our City Council to provide the protection that all residential communities in our town not only deserve, but actually pay handsomely for with their rates". Morton says it's incumbent on councillors "to grasp the nettle and take up the challenge of addressing the chronic and dire situation that prevails, where developer after developer succeeds in attempts to maximise their profits at the expense of the whole community, by being granted approval of plans that are, quite frankly, illegal". He ends colourfully: "Alarm bells are sounding as loud as the Mouille Point foghorn. Can anyone up there in council hear them? And if you can — do you have what it takes to do something about the situation? The ratepayers are calling for a clean, competent and effective administration for their city." The judgment in one of the cases launched by the the association was handed down by Judge Binns-Ward of the Western Cape High Court on 16 November. The case pitted the association against David and Susan Hartley who were seeking to build a double dwelling on a single dwelling property in Camps Bay. The association sought an order setting aside a City Council approval for the building, and the Hartleys opposed the application. On the day before the hearing, the City Council submitted an affidavit explaining that the approval had in fact been subject to certain conditions or "departures". As these conditions had clearly not been complied with, the Hartleys' opposition fell away, and the only issue was whether they should have to pay the association's legal costs, which were no doubt significant as the court record ran to some 700 pages. So why should the Hartleys, the losing parties in the case, not be liable for costs? The couple argued that they were in no way to blame for having needlessly opposed the application, and that it was all down to the City's incompetence. They said that they made various attempts (using town planning consultants) to find out whether there were in fact any conditions attached to the approval, but that they got nowhere because the file was missing and because letters were ignored. The judge accepted that, although each local authority is obliged to keep a "register of departures", the word "register", certainly in the case of Cape Town, is a complete misnomer – far from being an easily accessible record, it consists of thousands of files at any number of locations. And, said the judge, as for the "zoning maps" that councils are obliged to keep, in the case of Cape Town these seem to be next to useless. Although the judge had sympathy for the couple's plight, he held that they were liable for the association's costs. The reason – the conditions had in fact been communicated to the Hartleys' agent (the architect) in the standard "final notification letter", but unfortunately he had failed to pass this information on to the couple, with the result that the architect who replaced him knew nothing of conditions and proceeded with something quite different to what had been approved. Judgments dealing with planning issues are generally turgid affairs – you have to familiarise yourself with terms that are understood by only the few who cultivate the dialect, but are incomprehensible to anyone possessed of a life. Terms like LUPO (Land Use Planning Ordinance) and SPELUM (Spatial Planning, Environment and Land Use Management). So a big hand for Judge Binns-Ward for doing an admirable job of making very tedious subject matter comprehensible. Well done for applying the one thing that's so often missing in court judgments: common sense (if things don't work out on the bench, or perhaps Hlophe becomes a bit much, a job awaits you at noseweek). Now you might say that if God had wanted judges to tell government officials how to run their departments, he would never have created management consultants. That may well be so, but clearly the consultants aren't doing their jobs. So here's what Judge Binns-Ward had to say to those at the City of Cape Town, and indeed to planning types throughout the land. He started off with some generalities: "I consider it to be appropriate... to highlight some of the pertinent shortcomings in the administrative process and draw to the attention of the relevant organs of state certain measures which require attention if cases similar to this are to be avoided." Making the point that zoning schemes "regulate land use and development so as to promote the co-ordinated and harmonious use of land", he said that clarity is all-important: "The public, and most certainly the owners and occupiers of land in the close proximity... have a cognisable legal interest in compliance with, and the enforcement by, the local authority with the provisions of the applicable zoning scheme. It is a basic tenet of the rule of law that law cannot be effective if its content is not clear and readily accessible." Then on to the register that should record the departures – dealing with its "abstruse nature", the judge described it as "illusive... not only to the public, but also to professionals engaged in the field of land use and development and even the local authority's own officials". And the zoning map: "It was remarkable that none of the witnesses, whether they be municipal officials or professional town planners or architects, made any mention of having had reference to the zoning map. I think it may safely be inferred from this common omission that the map also does not fulfil an effective role in informing anyone of the existence or the nature of departures applicable to any land unit. It is furthermore not clear how accessible the zoning map is to the public." As to whether sending a "final notification letter" to the owner and putting a copy in a musty old file notifies the public of departures: "The duty could be carried out by publishing the conditions in the Provincial Gazette, or, even more effectively, by requiring them to be registered against the title deed of the affected land unit. Had the conditions been registered in the current case, the unlawful and invalid approval of building plans would in all likelihood not have occurred." Next. the issue of the delegation of authority by a municipal council of its functions: "The respondents [the Hartleys]... pointed to the difficulties they and their representatives had had in trying to obtain a copy of the record of delegations. They averred that they had been pushed from pillar to post by various officials of the municipality during their endeavours to obtain the relevant information. They had eventually been informed that they were required to make a formal application for the information in terms of PAIA. I consider that a local authority's system of delegations is something that, by its nature, should be available to the public without the formality of a request, as defined in the Promotion of Access to Information Act." The final issue for the judge was "the unwholesome situation of a partly completed building standing unattended for months while litigation took its course". This, according to his Lordship, could've been avoided if the City had heeded earlier advice from the Constitutional Court to invite comment from neighbours. "This would significantly reduce the chances of approval of plans in cases where some of the disqualifying factors exist but were not discovered by a local authority." A timely reminder of why lawyers run the world. Will this advice be heeded? The judge did order the registrar of the court to send his judgment to the Western Cape Minister responsible for development planning, as well as to the City Manager. At least the "Nuremburg defence" will no longer be available. |
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| Last Updated ( Monday, 10 January 2011 09:23 ) |
Posted on 10/01/2011 by Administrator