Agenda: Planning 2016-04-05 (Part 2)

Transcription

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Page 324
STELLENBOSCH
STELLENBOSCH • P N I EL • FRANSC HHO E K
M UNICIPALITY• UMASIPALA • MUNISIPALITEIT
Department: Planning and Economic Development
Department: Beplanning en Ekonomiese Ontwikkeling
APPENDIX 11
REPLIES FROM
DU PLESISS, HOFMEYR, MALAN LAND AND LAW
SPECIALISTS
DATED 10 FEBRUARY 2015
AND
FRANSCHHOEK VALLEY TRUST
AND
WERKSMANS ATTORNEYS
Confidential
Page: 26
Page 325
du plessis • hofmeyr · molon
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.,.
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land law special ists
l OFebruary 20 15
ATTENTION : MR D LOMBAARD
The Director: Planning & Economic Development
Stellenbosch Municipality
Per Telefax 021 886 6899
Dear Sir
PORTION 1 OF TH E FARM NO 1353 FR ANSCHHOEK (DE LAVANDE): BRASHVILLE
PROPERTIES (PTY) LTD
l.
Thank you for your letter doted 2 1 Ja nuary 20 15.
2.
In term s of our instructions we hereby apply on behalf of Brashvil le Properties
(Pty) Ltd for the determination of a contravention levy under section 40( I ) (a)
of the Land Use Planning Ordinance, 1985 ("LUPO").
3.
We submit that the fo llowing facts and circumstances should be token into
consideration when deciding on the appropriate quantum o f the
con travention levy.
3.1 .
The mistake that our client made was that it commenced with
construc tion of some of the p roposed 14 guest-suites, which both your
municipality and the provincia l au thority at the time regarded (and still
regard) as a "desirable" land use w ithin t he context of LUPO, before
obtaining formal approval of the building plans in respect thereof.
3.2.
As was confirmed in the Court papers, our client's "mistake" (i .e.
constructing buildings without prior approved building plans)
continued for a period of sixteen days only.
3.3.
Our c lient has undertaken all construc tion (i.e. the bulk of construction
work) afterwards in reliance on the Municipal approvals that it hod
obtained .
3.4.
Broshville has a fundamental cons titutional right to administrative
action which is lawful. It was entitled to rely on the Municipal
approvals.
DU PLESSIS HOFMEYR MALAN IN C (Regislration Number: 2011/134862/21)
ATTORNEYS• CONVEYANCERS• NOTARIES
DIRECTORS : JP du Plessis B luris LLB (UNISA), BPhil & MPhil Sustainabilily (US) •
CJ Ho1meyr BA LLB (US), LLM (HU-Berlin). LLM Public Law (UCT) • NMalan BA Industrial Psych (US). LLB (UNISA)
Unit No 12, Paardevlei Specialisl Medical Centre, Gardner Williams Avenue, De Beers Precinct. Somerset Wes!. 7130 • PO BOX 70, Somerset Mall. 7137 • Tel: 021 851 0359 • Fax: 021 851 4852
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3.5.
This matter has a sad history of maladministration on the port of the
authorities. The public administration acted unlawfully and in breach of
Brashville's aforementioned constitutional right. We do not intend to
deal with all aspects of the maladministration in fine detail. Suffice it to
say the following:
3.5. l.
3.5.2.
The first is the decision of Mr Mupariwa to approve the
amendment of the condition of approval imposed by the then
Minister in conflict with the provisions of section 42(3) of LUPO,
to which Deportment of Environmental Affairs and
Development Planning ("DEAD&P") never raised any objection.
•
Both authorities seemed to have laboured under the
mistaken believe that the Municipality was empowered
to approve such amendment. Brashville was none the
wiser and relied on the decision, believing and trusting
the municipal authority.
•
This municipal mistake contributed to the first interdict
application (Case No. 1343/2010) and the second
interdict application (Case No. 17446/2011) in the
Western Cape High Court (the High Court").
•
In terms of a recent notice of taxation the court
applicants intend holding our c lient liable for payment
of R90 333,57 plus costs o f taxation and so forth, in
respec t of the first interdict application and R161 646.50
in respect of the second interdict application.
•
It is noteworthy that when the first interdict application
was launched, our client had already stopped all
construction work on the property.
The court applicants brought an application for the judicial
review and setting aside of th e municipal decisions in terms of
whic h a contravention levy have previously been determined
and our client's building plans had been approved.
•
The decision relating to the contravention levy was set
aside by the High Court (Case No. 19119/20 11) on the
basis of a finding that the Municipality had a c ted under
the unlawful dictation of the Provincial Authority, and in
instructing Brashville to apply for contravention levy, it
had executed an instruction from the Provincial
Authority.
•
This was con firmed on appeal to the Supreme Court of
Appeal ("SCA"). The SCA concluded that the provincial
directive in respect of the contravention levy was
unlawful.
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In terms of a recent notices of taxation the court
applicants intend holding our client liable for payment
of R417 867,32 plus costs of taxation and so forth in
respect of Case No. 19119/201 l in the High Court and
R169 971.87 plus costs of taxation and so forth in respect
of the SCA appeal.
3.5.3.
It bears repeating tha t a judicial review is not concerned wi th
the correctness of a decision made by a functionary but with
whether he performed the function with which he was
entrusted. The important fac t is that the judgments were based
purely on procedural grounds and did not concern the merits
of the objections lodged and/ or any action on the part of our
client . The judgment were entirely concerned with how the
authorities dealt w ith the relevant applications.
3.5.4.
Our client' s representative, Mr Maingard. upon receiving word
that litigation was in the offing, were in regular contact with
municipal offic ials to enquire whether due process had been
followed in relation to the b uilding plan approvals and
con travention levy. The municipal officials concerned
repeatedly assured him that all administrative action taken was
lawful, reasonable and procedurally fair. It is in reliance upon
those repeated assurances that our client participated in the
court proceed ings. In addition to Brashville ' s own substantial
legal costs, the court applicants intends to recover some
R839 819 .26 from Brashville in respect of their legal costs as will
be clear from the foreg oing.
3.5.5.
In terms of section 152( l) (a) of our Constitution it is an object of
local government to p rovide democratic and accountable
government for local communities. whilst the public
administration is enjoine d in terms of section 19 5 [ l ) (f) o f the
Constitution to b e accountable.
•
The purpose of accountability includes redress and
correction.
•
Any attempt at this stage to hold our client liable for a
contravention levy in respect of the construction work
undertaken in reliance upon municipal approvals that
have since been set aside. would mean that the
authority is attempting to punish our client for (and
enrich itself at our client's cost out of) the mistakes
which the authorities made themselves.
•
Our courts will not tolerate such an approach. Suffice it
to say that such an approach would fly in the face of
the constitutional requirement that the local au thority
and public administration must b e a ccountable .
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3.6.
We need to stress that it is not only within the municipal sphere that
maladministration occurred. In addition to the provincial directive
which the courts held to be unlawful, we have shown in earlier
correspondence that the Minister's refusal of the 20 l O rezoning
application was unlawful. If he had approved the rezoning application
(as he was by law required to do once the proposed development
was found to be desirable) and did not allow alternative punitive
purposes to unduly influence him, the need for dealing wi th this matter
by way of a contra vention levy would not have arisen in the first
instance.
3.6.1.
We have previously attached a copy of the report datedl8
Morch 2011 {the "Report") which the Head of DEAD&P
submitted to Minister Bredell, to correspondence which we
have directed to you.
3.6.2.
It is that Report that gave ri se to the Minister's refusal of
Brashville's applications for rezoning and amendment o f
conditions of approval.
3.6.3.
We have dealt in some detail with the contents of the Report in
previous correspondence and do not consider it necessary to
yet again deal with it in the same detail. We record below
some of the noteworth y p ortions of that Report.
3.6.4.
The sub-directorate Planning of DEAD&P recommended the
application for rezoning for approval (Par 8.2.17 of the Report).
3.6.5.
The real reason for the Minister's refusal of the new rezoning
application appears from the following comments of the
Directorate: Land Management of DEAD&P:
3.6.6.
•
Par 9.3 of the Report: " .. . although this Directorate is in
favour of the new layout ... , this application cannot be
granted sin ce the construction work commenced prior to
proper approval and is therefore considered to be illegal.
(1) [Our underlining].
•
Par 9 .4 of the Report: "It is for this reason that this
Directorate recommends that the applications, as
submitted, be refused .. ." . [Our underlining]
We maintain that the Minister exercised his power for an ulterior
punitive purpose and that the dec ision rea ched was manifestly
not correct. The decision rea c hed was exclusively aimed at
Applications o f this nature may solely be re fused on the g rounds described in
sec tion 36 (1) of LUPO . Th e fac t that construction work comm enced " prior to
proper approval" is not one of th e grounds listed in section 36( l ) of LUPO .
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punishing Brashville for building 16 days without prior approved
plans.
3.7.
We know that most local authorities in the Western Cape as a matter
of policy calculate contravention levies on the basis of 20% of the
actual cost of the illegal building word. In our experience the
municipal officials that we have dealt with in recent times do not know
how such policy came about . We will below provide some
background to the policy and give our reasons why in the given set of
facts good grounds exist for deviating from that policy.
3.7. l .
Whilst the writer served as chairperson of lhe provincial
committee tasked with hearing appeals lodged in terms of
LUPO, the provincial d irector concerned instructed the
committee in terms o f section 43(2) (c) of LUPO to consider the
basis on which contravention levies should be determined,
using the 1963 Diemont-Commission rep ort as point of
departure. The committee's instruction included to suggest an
appropria te form ula tha t could be used as o ffic ial policy for
calcula ting such levies in the Western Cape.
3.7.2.
The Appeal Committee's report dated 4 November 1997 was
accepted by the provincial authority and gave rise to the
provincial c ircular dealing with the matter that was
subsequently issued. The adoption of policy w ithin the
municipal sphere followed.
3.7.3.
The Appeal Committee at the time pointed out that the
determina tion of the amount o f the contravention levy could
not be a mechanical application of pre-determined measurements or standards to a given set of fac ts.
•
The Appeal Committee recommended that, amongst
o ther things, all relevant factors must be take n into
account whe n determining the amount of the
contravention levy payable, including how it came
about that the contravention occurred in the first
instance.
•
We quote from the report: "Die beweegrede vir
strydighede is gewoonlik ekonomies van aard, naamlik
dot die oortreder een of ander q eldelike voordee/
daardeur probeer bekom. Daarom word tans bv., waar
die toe/aatbare vloerruimte-verhouding in 'n bepaalde
geva/ oorskry w ord, by be paling van die strydigheidsheffing, gelet op hoeveel grater die be trokke perseel sou
moes wees om die bestaande dekking te wettig en wot
die koste daaraan verbonde sou wees om die
bykomende grondge d eelte teen morkwoorde oon te
koop . ... Die mees praktiese benodering blyk te wees om
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eenvoudig te werk met 'n standaard gemiddelde
boukoste, in die ope mark, va n die betrokke verbeterings
vir die bep aalde area, soos jaarliks deur die plaaslike
owerheid bepaa/ word. Boukoste is re/atief goedkoper
bepaalbaar en deur 'n standaard gemiddelde boukoste
jaarliks te bepaal, word die moontlikheid van
manipulering om individue te bevoordee/ asook dubbele
standaarde, beperk. Ons stet voor dot stydigheidsheffings
gelykstaande moet wees aan 20% van die standoard
gemiddelde boukoste, in die ope mark, van daardie
gedeelte van die gebou wot strydig is, soos deur die
road bepaa/."
3.7.4.
It is noteworthy that the contra ven tion (i.e . construction for
sixteen days without approved building plans) d id not occur
because our client attempted to encroach upon building lines
o r to exceed the permissib le bulk or covera ge. Our client
a lready knew that the authorities had accepted the amended
development proposal. As such o ur c lient w as not to derive any
rea l financial benefit for the time period tha t construction took
place before building plan approval was obtained. In o ther
words, our clie nt's situation is comple te ly d ifferent to the
situation tha t the Appeal Committee intended to address with
the "20%" recomme ndation. We submit that it would be wrong
to inflexibly apply policy in the g iven set o f facts and that there
are goo d reasons fo r deviating fro m policy.
3.7 .5.
Our client laboured under the mistaken impression that, once
b o th the authorities concerned have indicated their support for
the amended development proposal, further approvals were a
me re formality and that it could p roceed with implementa tion
of the proposal. It now realises that it was a very se rious
mistake, some thing for which it has been severely punished to
d ate.
4.
In view of the setting aside of the e arlier municipal decision concerning the
contravention levy, the amount which our clien t previously paid as a
con travention levy should ha ve been refund ed to our client. It has not yet
been refunded and it would b e appreciated if you would arrange for the
re fu nd to take place without furth er d elay.
5.
As regards the contravention levy whic h now needs to be dete rmined we
submit that, having regard to the history of the matter as set out above, the
severity of the punishment that our client has received to date and the
maladministration o n the part of the authorities, a contravention levy of
Rl 00 .00 in settlement of the matter would be appropriate in the
c ircumstan ces.
6.
We look forward to he aring from you.
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Kind regards.
DU PLESSIS HOFMEYR MALAN INC
Page 332
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.J~tal Ail,ln:ss: Tlw Gardt•n H@ ,;,,' 29 U c'. ~Vt'! Stri>i:' t, Fnirts, ltlznek 76:10.
Tel: 083 441 8280 Email: ;r,111~, 1.1-b· r ~t,u.,:...'fS~!i~il . ,_''!.:
PruPincial Heritage Re:gistratit'n Nwnl'er; I-ltVC/RCB/f.15/!J5
Vfiliatiow Wildlift· and Enuir,.mmt!nt S,icit.'f!J uf St1uH1 A/r1ca (~-Vb SA)
nning & Economic Development
Stellenbosc h ' nicipa!ity
By email only t duore.lomboard:g's1e!lenbosch.g ov.zc
LA LAVANOE: P RTION 1 OF THE FARM NO 1353 STELLENBOSCH MUNICIPALITY
SITUATED O FF
RDUN ROAD, FRANSCHHOEK:
We refe to yo ur letter a ddressed to trie Trv st d ated 2: ,, JonL:ary 20 l 5 (··vo·Jr
!e n e r" ) s nt in an envetope regis•e re,j at the ;:, ost O ffic e on 23·c J:inuory :20 ' 5.
2. If is assu ,ea th :J t
;:J
le tier in the m rre terrtis m yovr ie:-er w as a lso ·:l'.'.)d re sseo
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.!I
:t tr,e rel vont port of vo ur ietter to Srmhvii11:: 1:, tne SO 'YJe os o orog rooh IO o·
vour lett ,, . your ins :r ...:c:t ion to Brostw:!le to apply fo r the cJe terr1ina tion o f o
cdn trov ~n tion levy w a s not g iven 1n c ompi1once wi1n section 4() of L:J PO.
S. Th e lrus· is p ro founci:v concerned bv thf:: de c·)io r; y o L. h Ov'e now rno d e [ " VOl:I
,j e c isior '') as recordeo in paragra ph 9 o f vov !1;;1 te , .
6. Yo u say n poragrapr: 6 o f your lett er tha t yo u na ve "sruared . .. wr•tre n
.sub m issl ns ma de by the parties ... " and in parag ra p h 9 yo u g ive " the main
re osons' fo r your d ecisio ns but do not exp la ifl w hy y o u reje c ted the d etailed
and reci oned argumen ts given in the letter from the Trust and the
i
re prese tations o f Werksmans da ted 17m and 19it> Decemb er 201 4
ely as to why a further instruction to BroshvHle to apply for the
ntio n levy is irrationa l and the only ra tiona l ora e r you should hove
m ode i . terms of sec tion 40 of LUPO is a n order torrectifi c a i ion.
7. The Trus ·s righ ts end those of its members w hose rig hts ha ve bee n materially
and a
B.
erse ly o ffec ted b y your d e c ision are fvify reserved .
roph
IO of your le tter you gave the Trusi the opp ortunity +o ma ke
~1bm issio ns to you conc e rning the faci s o nd d rc umsi arce s th a t you
sh oula t Hee in\o c onsid era tion w rien decid wig en tne a p p ropria te o von !urr, ot
!n e c o n ,ave n tio n levy . shou,d Broshv111e a pply tsr YJC""l
g i-. '9'0 b
·j )'N .
a oel ermino t o n
1
to b -2
Page 334
"in deer ·;ng wl,etner to ocler rectitic a';o., o• no t .. .
J,o ve re 'Or(i to the d c..'Qre:.::, o f cu!p;JtJ1!t f't· o f In f.• offer:CJ,=:r rn~<J th-5 socie tal
ne ed to the reg uloror lo be seen to act forc efully iri enforcing tn£: zoning
scheme o nd the buiicJing regulations [a nd that] the cono'uct by Bro shville and
its repre, e·-i to tives . mosr oert,ne ntl'y' t,N Mo,ngorc . ti, e g u id ing rn:nci o e h1no
Brost1vm ?·s unlawful ac tivi tie s. was in flo grom disregarcJ o f tn e ru!e of low o nci
tt,e mu 1cipoii ty's oulho rity a nd can n o t b e sonc tioned by a s1op on ine wrist
which is wh a t a contra vention levy wo uld o mount to . This would se-Kt ou t o
signal t o il unscrupulous de velop ers that it is easier {and more cost effec tive
I
consid~ ·ng Brosh ville has con tin ued to o p era te its g ues t house with impunity)
" t9 sin
w and ask for fo rgiveness later. " "
I
: l . While
tJ is a rg ument w a s mode in rela tion to the de cision as to whether or not
the res 1 " uld be an orde r for rectifica tion w e sub mii tha t it is equally if no !
re a p p lic a ble in d ecidi ng the q uantum o f the c ontraven tion le vy.
l 2 As this · rg umen t must be consid ered in th e con text ot the kno wingly wilful
arid /or e glig ent d isregora s by Brashville and/or fis directors employees.
ogen1s . nd consu!tanh o f applic a ble 101,vs. c o nditio ns o f opprovol b uilding
~r re gula fions, c ourt o rd e rs e tc .. the y are set o ut below . They are:n 1rnhol. con1in0ing a nd c urr ent fo ilure to n o rify rlent oge Westerr"'
· 2. 1
r--
a r1o nal He rita g e Reso u rces Act:
Page 335
l 2.4
F Ii ··Ne!i knowing 11 w as 1iiega1-:.ina o c rrrP r.0 1ofbnce to o o so .
omrnencing building works on Decernber 8 th 2009 withou t ha ving
s Jbrnitted building p lans tor app rovo : to .-
Th e Planni ng Adviso ry C o('nr-ni!+ee :i s rec "wed b v the .A.pri! opprovol:
and
!he mun;c1po11ty m required oy
uJr-o and
P·1e l\lalional BJil1J1ng
Regulations Acl.
12.5
isregarding a ··cease works " orde r served on December l 8"1 2009
nd continuing to build in d e fiance thereof until on applica tion was
ode for on interdict on 251r. January 20 10.
ontinuing to build in breac h o t the condition in the fina l p aragraph c t
l 2.6
1e
l 2.7
m unic ip ality's le tter dated l 81h December 2014:
S bmitting build ing p lans for '·re-approva l" o n 20'" July 20 10 knoYJing
f ,ey d id not comply with the A p ril ap prova l in tha t a significant port o t
t· e p roposed building wos b e low the i :.50 year flo od line c ontrary to
e cond ition prescribed bv the Direc tor· Technic a . and Engineering
rvices.
i 2.8
~
-commencing t )1.ilding w or ks or· 25'· J A 2C ' \ ir: t:>reO(:i1 of e n orde'
c f the Weste· n Cop e High Cou' 1·
'')
0
,L. • •
Page 336
,2 :1
·a ,1i:1g re, irN ) lo m en t o ·-. e tte:-; ::: t ,, ,.:, to 1~js.:: or::--1ng s~-~·1err1e · t·J soften or
s:r2er: ti~e vis uoi irnooc r -~A the ;:Y orx 1se.J o .iii<.."J·n,;;s · v11 h:c i··, w ,)s th,=:
a sis on wh1c n your Dire clorate recommencie-o cipprovoi ot a sc heme
t ;a t w as otherwise imp!iciliy a ck now!ed g=:;d os being unacceptable
n d 0 11 w tw.::h you rei,e cj H, n:c r.:1n g yo •.:r C1 :::::,s1on.
ar,d co -,i e m ptuous d isre gard a nd ci srespect for o pplicc:b ie iaw s. regu:o~io ns
ord ers. ·onditions ana insti u c t:ons to dote· from 8 ecernber 2009 (or e a r:ier
ha ving egard to its failure to no tify Heritage West ern Cap e o f the proposed
de velq ment in terms o f sec tion 38 ot the Nat,onai Heritage Resources Ac!) is
s
a very g nific ont fact a nd circumsta nce tho ! you should take into account
w he n qi c 1d1 ng the appro p riate q uon tun1 o f the c o n travention le vy .
a lso submits that the extent to which Broshvi//e has p ro fi ted from its:
ille g oi
e of the 6 cottag es is a no ther very signifi c a nt fa c t a nd c irc umstance
thar yo1., sh ou!d to ke irito accou nt w hen dec id ing th e appropria te q uantum
of the
o ntroven tio n levy.
: 5. ii o ppe rs fro m the v.eb sile to r La ve nder Fo rm tt"1ot the curren t ra te 5, for !he IO
s:.. ftes in th e 6 co tta ges are frorn R 149 5 to R l 850 per nig ht Assum ing a ra te of
R l 600 i: er sune p er ni;irit o nd o n o ccuponc y ro·e ot 50% the gross ,,,come
frorr 5 ' M0y 20 i 4 t o
v
Ar
o n< :he re
'N1 t1
o o te w iF !1'.J-1e bee": i.r.c . ?2. Sr'""\ Ti,;~ •,;iure
w ·1\1iri,:.L:d t'
hove b een opera l;ng c osts o ut :• r-.,oy oe c on-servot:vef·r
.
: ~ ,""':; ~:
: ·-~
;
Page 337
i 7. l"h 2r,2 or - 21 0 Coys 1r1 o :;eosun ji i~ runs ·r,.:;n ' · ')c ooo:;r tn JD' A~;ril /:..; ine
ro l e~ rn r,tioned in poroQropn 15 above
!r,.::: g ross inc ome msurr.ing o
occ upo cy rate tor ril e last th ree season~ and tt-ie c vren t season
10
l )cc,;;,
date
could h ve been over R l 2m.
l 8. A:t1100g 1 the ocru a 1occupancy ro;e rnoy nove ceen less t•·1on i 00% trier::.
wo•Jld h
o n tne
Ye
been cddrionol income d,H'l"'-9
i rie
r':'.:'n oir·,-::.:er ot eoch year anci
os1s ot what is known of 1ne occupar c y i oies
1r
otner guest t:ouses 1n
Fransc t't oek th e occupancy ra te for the 10 suites in season is very likei1 ro
t~ave b e n closer to 90%.
's net profit in the period o f its illegai use o f the cottages is, therefore.
ave been well over R5m.
20. There vJ 1s therefore a powerful incentive for Broshville to oc t in a lawless
manne~ and the penalty for doing so m u st be comm ensurate wit h th e profit ii
is [ike ly f< have made by doing so .
2 l . A lso . a s g nal must b e sent out tho! tl'le pen a lty for flo u ting proper proc eciures
win be · t suc h o \evel tnat it ,Nil! no• b e cost e ffecti ve to do so .
22. h') te rrns Jf Annexure "B .. of the City o f Cope
~O \t\tn 's
Land Us.e fntorcen1ent
Polic y a toc hea os Ar.nexure "E" !'J Werksrro ..s' s recre;e nio tio r,·; ''The levy is
Page 338
s!ructur
b u t c.i oes nor soy there shou:.j oe on upper !,rn11 nor (M e:i LUPO .
25. In paro,~rooh 104 of Werksmans represen~at1ons as !,:; whe th e r there sho1J'c
:.-i
conho v ,,n1ion levy it w os submitted tha t "it w,'JS n2ver t h e ;, ,fentior. o f ;he i-. 1w
m c ker rl ct a contrcvent;ori lev/ woul-:..1 bE' ovoikJO/e o s o s,:mction i!,
~oses o f
serious z ning and builciing contraven tio ns such as tr. e presen t. :nis view wos
supp ort d
111
obiter comments to th .:s etfecr mode by W1 J;is, A J ;n the SCA
nd is supported furthermore b y the City o f Cope Town' s Lorid Use
e nt Policy" attached as Annexure " E" to their represen ta tions.
gly, the Trust submits that in this case the suggestio n made in
I Circular 4/2008 that the con travention le vy- sh ould b e 20% of
build ing cmts is inappropriate having regard to the scale o f the
c a n tra v ntio n a nd th e c on tinuing and wilfully il!ega1 c onduct o f Brashville in
H1is ma~ er.
27. A furthe tac t and circurnsfance tno t the Trust sub mits sho uld be to ke n into
canside ation in dec id ing the q ua ntum o f lne con travention le vy is H1e fact
tnor w , n 8ra sl'wi1le re-c ornmenced build ing works on 2s:· Avgvst 20 l l arid
a t a ;i m terio t tirnes sir,ce th e n ir 'NOS or., no fo: e a nd ¥J'\E",.,
rvt· weH tha t:-
o } o n o )pi1cot1on woulci b e m o d e tor 1ud;..:::1sJ , n=
: view o l :!'e cec 1si0ns by thi:.J
rn.:n c ipa'. 1ly or: w hic h it reiieci
Page 339
?9 . i-10 1.·ing r gord
to a !. me toc!s onCJ orcurnsra r,ces o · tnis matter (nd for tne
rea sons 1entioned in 11,is fe ll e ~ t•,e Tru s: suon,:ts t'. .. o t th~ q-..;on;u:s-, c-f
n--,e
conr rovE ·,:·on levy sr1ou d be f~.S 558 000 b u t vvim out o ny admissit) " rt10 1 ycv
d e cision
·as. \Nil r, respect. rational enc wi:r,c -.: r P'ejJO -=:e •c or"v ccntentiG:1
tha t lh e rus t or anyone e!se may ma ke in an aop!ica t:on tor )'.Jd1c1oi re vie w
on tne g ound that your d e c ision is irra tiona l.
30. !f th e Cd travention le vy is less than R5m Broshv:11e s d isregard for H,e lo w and
d ue pr : ess will have been cost effective.
Yours sin erely,
The Fran chhoek Volley Conservation Trust
Page 340
Hedre Dednam
From:
Sent:
To:
Cc:
Subject:
Attachments:
Mervin Williams
03 November 2015 09:39 AM
Hedre Dednam
Dupre Lombaard; Nomie Tshefu
RE: CONSIDERATION OF THE AMOUNT FOR THE CONTRAVENTION LEVY PAYABLE
BY THE OWNER OF FARM NO 1352/1 PAARL DIVISION
werksmans.pdf
Dear Hedre
The above matter refers.
The contravention levy decision of the Director: Planning and Economic Development ("the Director") stands until it
is reviewed and set aside. We note that the 180 days period in terms of the Promotion of Administrative Justice Act,
in which the contravention levy decision is to be reviewed and set aside has passed . Coupled with this qualification
is our view that the reasons provided by the Director to Werksmans (on behalf of the AG Stone, JP Colmant and La
Bourgogne Trust) on 15 July 2015 seems prima facie to be adequate.
Notwithstanding the above, we note the following in respect of the item which deals specifically with quantum of
the contravention levy to be determined by Council:
•
Appendix 11 should also contain the representations of Werksmans dated 13 February 2015 in respect of its
representations in respect of the determination of the quantum of the contravention levy, a copy of which is
annexed hereto for ease of reference. These would be important considering the nature of the item is for
Council to take a decision in respect of the quantum of the contravention levy. This letter was not included
in the item, probably as a result of an oversight and should be distributed to the respective councillors for
consideration.
Yours faithfully
Mervin Williams
Senior Legal Advisor
Stellenbosch Municipality
Tel: (021) 808 8991
1
,,...
Page 341
WERKSMANS
ATTORNEYS
DELIVERED BY EMAIL
Cape Town Office
THE DIRECTOR: PLANNING AND ECONOMIC DEVELOPMENT
STELLENBOSCH MUNICIPALITY
Pleln Street
Stellenbosch
18th Floor 1 Thibault Square
Cape Town 8001 South Africa
P O Box 1474 Cape Town 8000
Docex 15 Cape Town
Tel +27 21 405 5100
Fax +27 21 405 5200
7600
www.werksmans.com
enquirles@werksmans.com
FOR ATTENTION: MR DUPRE LOMBAARD
By Email: Dupre.Lombaard@stellenbosch.gov.za
YOUR REFERENCE :
OUR REFERENCE: Mr JJ Truter/nj/COLM13072.l/#3491789v1
DIRECT PHONE:
DIRECT FAX:
EMAIL ADDRESS:
+27 21 405 5231
+27 11 535 8600
njoubert@werksmans.com
13 February 2015
Dear Mr Lombaard
UNLAWFUL STRUCTURES ON LA LAVANDE, PORTION 1 OF THE FARM NO 1353,
STELLENBOSCH MUNICIPALITY, SITUATED OFF VERDUN ROAD, FRANSCHHOEK
RESPONDENTS'
REPRESENTATIONS
IN
RELATION
TO
THE
QUANTUM
OF
THE
CONTRAVENTION LEVY TO BE IMPOSED UNDER SECTION 40 OF LUPO
1
We refer to th e above matter and to your letter, dated 21 January 201 5 and registered on
23 January 2015, in which you conve y your decision to Invite Brashvill e to apply for th e
determination of a contravention levy In terms of Section 40(1)(a){li) of the Land Use
Planning Ordinance 15 of 1985 ("LUPO").
W etk sm ans I n c. Reg . No. 1990/007215/21 Reg ist e re d Office 155 5th Street Sandt on 2196 Sou th Arrl ca
Directors OG Williams (Chairman) Al Armstrong BA Aronoff DA Artelro T Bata AR Berman NMN Bhengu L Bick GT Boss, Tl Boswell MC Bronn W Brown
PF Burger PG Cleland JG Cloete PPJ Coetser C Cole- Morg an D Corbett JN de Vllllers GW Driver U du Pre ez RJ Feenstra S Fodor SJ Gardiner O Gewer
H Gaolam R Gootkln ID Gouws GF Grlessel D Hertz J Hollesen MGH Honlball VR Hoslosky B!l Hotz HC Jacobs TL Janse van Rensburg N Jansen van Vuuren
G Johannes s July J Kallmeyer SLG Kayana A Kenny BM Kew N Kirby HA Kotze S Krlge PJ Krusche P le Roux MM Lessing E Levenstein JS Lochner JS Lubbe
BS Mabasa PK Mabaso PM Madala MPC Manaka H Masondo C Moraitis KO Motshwane J Nlckig JJ Niemand BPF Olivier WE Oosthulzen M Pansegrouw CP Pauw
AV Pillay T Potter BC Price AA Pyzikowsk l RJ Raath L Rood BR Ro<>thman W Rosenberg NL Scott TA Sibldla LK Siiberman JA Smit JS Smit Cl Stevens
PO Steyo J Stu,kwell W Str~chan JG Theron JJ Truter Kl Trudgeon ON van den Berg HA van Nlekerk FJ van Tonder JP van Wyk A Vatalldls RN Wakefield
DC Walker D Weglerskl M Wlehahn DC Wlll ans E Wood BW Workman-D avies Consultan t JM Berti
101-1,\NN ES~URG , C APE TO\VN , STELLENBOSCI I , TYGER VALLEY
Page 342
COLM13072. l/#3491789vl
13022015
occupation of the Illegal structures . As a result of your municipality's failure, Brashvllle has
been permitted to continue Its unlawful activities with impunity and for considerable
financial gain. This amounts to a gross dereliction by your munlclpality of Its constitutional
duty to uphold the rule of law and a failure to enforce the zoning scheme and conditions of
Brashvllle's zoning approval as contemplated In section 39 of LUPO.
6
As you are aware, Section 39 read with Section 46 of LUPO, Imposes a statutory obllgatlon on
the Municipality to enforce compliance with LUPO and the Zoning Scheme Regulations
promulgated In terms of LUPO and a reciprocal obligation on all people to comply with the
provisions of LUPO. The purpose of Section 39(2) of LUPO Is to ensure that any unlawful uses
cease until such time as the appropriate land use rights are In place. A similar duty Is Imposed
on your Municipality in terms of the NBRBSA which compels your building control officer to act
against any persons who unlawfully erect, occupy or use structures without the necessary
building plan approval and occupancy certificate or In contravention of conditions attached to
such approvals.
7
Your Municipality's Inaction in taking steps to enforce compliance with the conditions attached
to the Minister's zoning approval and to ensure compliance by Brashvllle with the zoning
scheme and NBRBSA, is patently in conflict with your statutory obligations under LUPO and the
NBRBSA.
8
In your letter under reply, you invite our clients to make written submissions within 21 days
concerning "the facts and circumstances that (should be taken) Into consideration when
deciding on the appropriate quantum of the contravention levy, should Brashvifle apply for
such determination to be made."
3
Page 343
COLM 13072 . I/ 113491789> 1
13022015
"The calculation of the amount must only be based on the portion of the building that
exceeds and not the structure as a whole. 11
15
"Exceeds" Is not defined in either the governing legislation or the Provincial Circular and must
therefore be given its ordinary, literal meaning l.e to go beyond what is allowed or stipulated.
16
Should the structure as a whole be shown to "exceed", as we maintain It does, the
contravention levy must be capitalised on the construction cost of the structure as a whol~.
17
The very purpose of the Provincial Circular in 2008 is set out In paragraph 2 as follows:
II
numerous requests were received from different Municfpalitles that the amount be
increased considerably due to the fact that it was not aligned with Inflation or
development costs. Practice has also shown that transgressors of the law prefer
to rather pay the contravention levy than to follow the normal prescribed
procedures. 11
18
Brashvllle Is one such tran sg ressor and has flouted LUPO and the NBRBSA, along with a
number of other laws, In the course of constructing and occupying the illegal structures.
Regrettably, your Municipality, through Its Inaction and failure to enforce the rule of law
generally and Its own notices specifically, coupled with Its Irrational election of a contravention
levy as a sanction, has enabled Brashville to continue with Its ongoing, unlawful conduct with
impunity. In the process, Instead of seizing th e opportunity to create a significant deterrent for
other unscrupulous developers by ordering rectification of the unlawful structures and
interdicting Brashville's continuing unlawful occupation and use of the structures In the interim,
your Municipality has sent a clear message to all unscrupulous developers that it does Indeed
pay to "sin now and ask forgiveness later".
5
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COLM1J072, 1/ #3491789vl
13022015
illegality. Brashvllle should therefore not now be allowed, as audaciously Implied in their
representations, to place any reliance on the illegal building works carried out to date. As we
have motivated In our previous representations, the sequence of events also shows that
Brashvllle's suggestion that it has been the innocent victim of "maladministration" ls
disingenuous and patently false.
We submit that Brashville has orchestrated the situation In
which it now finds Itself. Brashville was aware at the outset that Its construction was unlawful
and that any further construction and occupation/use of the unlawfully constructed structures
was at Its own risk.
The objectors made repeated reference in correspondence to the
possibility of demolition and, notwithstanding the fact that, as the court proceedings evolved,
the spectre of demolition loomed increasingly larger, Brashville elected to continue with Its
activities. Brashvllle's actions were carried out wilfully and fully cognisant of the risks and it
would have been. the architect of Its own (alleged) prejudice If the municipality resolved, as we
maintain it should have, to order rectification in terms of section 40 of LUPO and similarly If
the Municipality now imposes the maximum contravention levy available, capitalised against
the full construction costs of the completed structures.
23
Brashvllle's contravention is clearly not minor in nature or scale (as contemplated in the City's
Land Use Enforcement Policy referred to In our earlier representations) and, according to Prof.
Todeschinl the Impacts will be significant and considerably more widespread than simply in
relation to neighbours and cannot be mitigated by conditions such as landscaping.
Furthermore, we maintain that the Minister has already found the structures and their use to
be undesirable/to affect existing rights In refusing Brashvllle's zoning application and this
decision stands until set aside by a court of law.
24
It must be common cause, based on the uncontested facts, that Brashvllle has committed
major contraventions of LUPO and the NBRBSA. Its activities were (and remain) In
contravention also of the NHRA and NEMA. The objectors, which include all of the adjoining
neighbours, are vehemently opposed to Brashville's activities and have incurred significant
7
Page 345
{
COLM13072, l/#3491789v I
13022015
worked on a Saturday afternoon. Worked continued, beyond the commencement of the
traditional builders' holidays, until 23 December 2009.
25 .6
On 4 January 2010, construction continued without approved building plans, In continued
defiance of the cease works order and In contravention of Brashvllle's LUPO approval.
This was the sixteenth day of unlawful construction.
25.7
At 16h07 on 4 January 2010, Brashville's Director, Louis Malnguard, addressed an email
to the Director: Planning and Development Services of the Municipality, Marx Muparlwa
undertaking to stop building until plans were approved.
25.8
Brashvllle submitted building plans for approval to the Municipality on 6 January 2010.
They were approved on 12 January 2010, less than four working days after submission.
One of the conditions of approval prohibited any construction within the 1: 50 year flood
line. Considering the fatal flaws In the approval of the plans, It Is evident that, in Its haste
to approve the plans, the building control officer failed to properly apply his mind to the
relevant considerations and constraints, Including relevant conditions contained in
Brashvllle's LUPO approval, material title deed restrictions that had not been met and a
condition of approval that prohibited any construction within the 1: 50 year flood tine. As
we recorded In our earlier representations, the approval was also unlawful In the absence
of the relevant heritage authority's consent In terms of Section 38 of the NHRA and in the
absence of environmental authorisation In terms of Section 24 of the NEMA.
25.9
Brashvllle's building plans were not submitted to the FAC or any other similar body
nominated by the Municipality, as required In condition 2.11 of Brashville's LUPO approval.
In fact, at no point for the entire duration of the construction were the plans submitted to
the FAC or any other similar body as required in term s of condition 2.11.
In the
circumstances Brashville's construction was unlawful and in contravention of, inter a/ia, Its
9
Page 346
COLM13072, 1/#3491789vl
13022015
25.15
The effect of this decision was that the partially constructed elements of the buildings
remalneq In contravention of the Agriculture 1 zoning of the property, let alone In
contravention of materi" I conditions In Brashville's earlier LUPO approval. It was also
illegal and in contravention of its building plans approved on 12 January 2010, the NHRA
and NEMA.
25.16
Furthermore, it Is now trite (considering the Western Cape High Court and Supreme Court
of Appeal's findings to this effect) that the Municipality's conduct In instructing Brashville
to apply for a contravention levy, which Brashvllle did In due course, was unlawful, as
were the building plan approvals. The contravention levy was calculated In the sum of
;,
R51,910.08. Considering the nature and scale of the unlawful structures, extent to which
Brashvllle's unlawful construction "exceeded" the relevant statutory prescripts, and the
flagrant and wilful manner In whlch Brashvlfle continued with Its unlawful construction
(partly in the face of a cease works order but unlawfully for want of various statutory
permits at all material times) and use of the unlawful structures (again unlawfully and In
the face of a directive from the Municipality) for Its considerable financial gain, the original
contravention levy was appallingly Inappropriate and would certainly not serve as either a
punishment to Brashvllle nor as a deterrent to other unscrupulous developers.
25.17
On 20 July 2011 the building plans were "re-Instated" and the Municipality informed
Brashville that they could continue with building work.
25.18
Brashville recommenced building on 25 July 2011. This was In contravention of paragraph
5 of an earlier Court Order between the parties which required, Inter al/a, that the
Applicants be given 30 days' notice before building resumed. No such notice had been
given by Brashville. After we informed Brashvllle's attorneys of the fact that Its client was
In contravention of the Court Order, Brashville agreed to cease and furnish our clients
with the required notice.
11
Page 347
COLMJ3072.1/IIJ49 l 789v l
13022015
25.25
After a short adjournment in which Brashville's counsel took Instruction-from Mainguard,
who was in court, counsel for Brashville responded to the request in open court with
words to the following effect:
"My client declines the Invitation to stop building, I have explained the risks
to my client, but he Is still not prepared to accept the Invitation."
25.26
During the course of the ensuing week the building work continued at pace.
Approximately halfway through the week, the Applicants considered that the work had
progressed so far that the energies and energies of their legal team (and the concomitant
costs) would be better devoted to proceeding as soon as possible with the review
application rather than pursuing the second Interdict application.
25.27
Accordingly It was agreed with Brashville's legal team th~t the second interdict application
would be postponed sine die with costs to stand over for later determination.
25.28
On 9 September 2011 an order was taken to this effect by agreement with Brashville, and
with the Municipality (through their legal representatives).
25.29
The r eview appllcation was heard on 7 May 2012 and In a judgment dated 11 October
2012, the Western Cape High Court upheld the appllcatlon with costs and set aside the
following decisions by the Municipality:
25.29.1
The approval of Brashvllle's building plans on 12 January 2010;
25.29.2
The decision to impose a contravention levy;
25.29.3
The decision to reapprove the building plans In July 2011.
13
Page 348
COLM 13072.1/113491789v l
13022015
do. Rectification was the only rational and appropriate sanction In the circumstances.
Similarly, we now submit that Brashvllle's conduct should not be countenanced further
through the Imposition of an inappropriate levy which does not serve a punitive role or act as
a deterrent to other unscrupulous developers.
THE RE~CONSIDERATION OF BUILDING PLANS FOR APPROVAL:
27
For the reasons already expressed In our previous representations, we maintain that your
decision to lsol_ate and separate the determination of the sanction under section 40 of LUPO
from the consideration of building plans under the NBRBSA is flawed and will amount to
impermissible, piecemeal decision making.
28
Our clients' reserve the right to make further submissions in respect of the building plans
when your Municipality will be req uired to reconsider those plans In terms of section 7 of the
NBRBSA.
29
for the present purposes, we draw your attention to the fact that, by operation of section
7(1)(a) of the NBRBSA, it is unlawful for your Building Control Officer to approve any plans for
structures and uses which require authorisation terms of any other laws. For the reasons
already motivated In our earlier representations, we record that Brashvllle requires heritage
approval In terms of the NHRA and environmental authorisation In terms of section 24G of
NEMA before the building plans can be approved. In the Interim, Brashville's occupation and
use of the unlawful structures Is an ongoing criminal offence and your Mun icipality has a
const!tutional and statutory duty to enforce Its 24 October 2014 directive that Brashville cease
the unlawful use and occupation of the structures.
15
Page 349
COLM13072. l/ 11349 l 789vl
13022015
Yours faithfully
WERKSMANS ATTORNEYS
JUSTIN J TRUTER
17
Page 350
7.
I have noted the unmotivated request from the provincial authority that Brashville
should be instructed to apply for the determination of a contravention levy. In the
absence of proper motivation I have not attached any weight to the provincial
request.
8.
I have studied the contents of all the municipal files relating to the matter, including
amongst others the previous reports, building plan processes, written submissions
made by the parties, court papers and judgments, the report by the Manager: Land
Use Management and the report by the Head of the Department of Environmental
Affairs and Development Planning submitted to Minister Bredell dated March 2011
(to which I will refer as the Bredell Report). The following is particularly noteworthy.
8.1.
The Directorate in a submission to the municipal committee concerned during
July 2010 concluded that "The proposal will not detract from the natural
beauty, tranquillity, character of its surrounding environment and the rural
ambience of Franschhoek. It is the opinion of the Planning and Development
Directorate, that notwithstanding the objections against this application, the
proposed rezoning and amendment of condition of approval is desirable and
would in all probability not have a detrimental effect on the aesthetic quality of
surrounding properties, the character of the area, will not adversely affect any
person or the environment if sufficient landscaping is implemented to screen
the proposed structures from the surrounding properties and roads." I have
conducted an inspection of the property and concur with that conclusion.
8.2.
9.
The provincial government had all along been in support of the revisions
proposed in the revised site development plan. It has to date not withdrawn
such support. To me it is clear from the Bredell Report that the provincial
decision to refuse Brahsville's application for rezoning was not based on any
of the grounds set out in Section 36 of LUPO. It was seemingly taken to
punish the owner I Brashville for commencing with construction prior to
obtaining building plan approval.
After due consideration of all the relevant facts, the available options and applying my
mind to the matter, I have decided to instruct Brashville Properties in terms of Section
40(1 )(a)(ii) of LUPO to apply for the determination of a contravention levy. The main
reasons for my decision include, amongst others, the following :
9.1.
The development concerned is not undesirable within the context of Section
36 of LUPO. That was the earlier finding of the Directorate and the provincial
government - a view that I have arrived at after independently acquainting
myself with all the relevant facts, conducting an inspection of the property and
consideration of the matter. No good reason exists for requiring the demolition
of a desirable building. It is noteworthy that others in the immediate same area
have similar uses and developments and there is no good reason why
Brashville should be treated differently.
Page 351
REGISTERED LETIERS: FARM 1353/1, PAARL DIVISION
Du Plessis, Hofmeyr, Malan Land Law Specialists
PO Box 70
Somerset Mall
7137
Werksmans Attorneys
PO Box 1474
Cape Town
8000
JP Colmat
PO Box602
Franschhoek
7690
(Farm 1447/1)
AG Stone
PO Box279
Franschhoek
7690
(Farm 1643/3)
La Bourgogne Farm (Pty) Ltd (Farm 1106)
PO Box96
Franschhoek
7690
Franschhoek Valley Conservation Trust
The Garden House
29 De Wet Street
Franschhoek
7690
Bo La Motte Farming and Tourism (Pty) ltd
PO Box 521
Franschhoek
7690
WE Koch
(Farm 1643/2)
Klein Dauphine
PO Box 151
Franschhoek
7690
D & SJ Lemmer
PO Box 79
Franschhoek
7690
(Farm 1388)
MG Lotter
(Farm 1108/115)
PO Box 29023
Danhof
9310
' .~
\
:
Page 352
.
REGISTERED LETTERS: FARM 1353/1 1 PAARL DIVISION
Munisipaliteit Stellenbosch Municipality
Posbus IP O Box 17
STELLENBOSCH
7599
Du Plessis, Hofmeyr, Malan Land Law Specialists
PO Box 70
RE01srERE o LETTER
(with• domHtle lns:ur.tnc• option)
Somerset Mall
'WW't~'j 'i'iVn&·".l A"
7137
CUSTOMER COPY
Werksmans Attorneys
PO Box 1474
Cape Town
I
,~;CJ ISTEREO LETTER
/::,tC./1 8:J~~~1 t~ura.nc• Option)
R D 873 177
8000
62'i.i'zX·"
CUSTOMER COPY
JP Colmat
301028P
(Farm 1447/1)
PO Box 602
REGISTERED LETTER
(wW, • domutfc ln~vtanu opt ion)
Franschhoek
5
7690
AG Stone
PO Box279
Franschhoek
301028R
'Jt'iJ''l!<lfj Tio/ 'rS"t' iX·"
CUSTOMER COPY
301028R
CUSTOMER COPY
301028R
(Farm 1643/3)
7690
La Bourgogne Farm (pty) Ltd (Farm 1106)
PO Box 96
REG ISTERED LETTER
(with, domestic In surance oprlon)
Sh•r,C,11 0160 111 502 WW-N. •apo.c::o.u
Franschhoek
. RD 873 17 7 74 8 l.A
7690
CUSTOMER COPY
Franschhoek Valley Conservation Trust
The Garden House
29 De Wet Street
Franschhoek
I
REG1STEREO LETTER
(with• dom•• Uc lnsur.nc• option)
sit'If'§'lf'.f '{7'' ffi'fi\°''•
CUSTOMER COPY
7690
Bo La Motte Farming and Tourism (Pty) Ltd
PO Box 521
Franschhoek
301028R
REOISTEREO LET.TE~
s'r.'i::,~,fg:A~'l:1 t~u=::1"/r/~°o"J,
RD 8 73 l i7 1122 ZA
7690
CUSTOMER COPY
WE Koch
(Farm 1643/2)
Klein Dauphine
PO Box 151
Franschhoek
7690
D & SJ Lemmer
301028~
,
301028R
.
REGISTERED LETTER
(with• domullc Jnsur•n c• optfor,)
$h
c.arr OHO 111 !02 www.u p o.c o. za
j{°D 87 3 1 77 805 Zi\
\
CUSTOMER COPY
30102aR
(Farm 1388)
PO Box79
REG ISTERED LETTER
(with • domutlc ln,ur•nc11 ntttlon)
Franschhoek
s"trff"~lf~ "i N"ifllf-'1.~·t "
7690
CUSTOMER COPY
MG Lotter
(Farm 1108/115)
PO Box 29023
Danhof
9310
301028R
I
S.A. POST OFFICE
STELLENBOSCH 7599
'L J JAN 2015
FCLIO 7
Page 353
TAX INVOICE
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SPEED SERVICES ENO - 0860--023 -133
Enqu ir-i es:
POST OFFICE
TRACK ANO TRACE :
0860- 111-502
To t race an item visit www.sapo.co.za
SPEED SERVICES COURIERS
fRACK 1\NO TRACE:
0860--023- 133
Item ldent if1er(s)
fl0873177646ZA
RD873 177 782ZA
RD873177765Z1\
RD8?3 1777 48ZA
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RD873 177505ZA
Page 354
"',JI'""
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••••
•••
••
•
STELLENBOSCH
S TELLE NB O SCH • PNTEL • FRANSCHHOEK
MUNICIPALITY• UMASIPALA • MUNISIPALITE IT
APPENDIX 12
REQUEST FOR REASONS, DATED 9 APRIL 2015
AND 13 JULY 2015 FROM WERKSMANS
ATTORNEYS
Confidential
Page: 22
,,.,,
Page 355
WERKSMANS
ATTORNEYS
EMAIL & FAX
The Municipal Manager, Stellenbosch Municipality
Attention: Christa Liebenberg
And to :
Dupre Lombaard
Email: municipal.manager@stellenbosch.gov.za &
Dupre.Lombaard@stellenbosch.gov.za
Cape Town Office
Cape Tow n 8001 South Africa
PO Box 1474 Cape Town 8000
Docex 15 Cape Town
Tel +27 21 405 5100
Fax +27 21 405 5200
www.werksmans.com
enquiries@werksmans.com
Fax: 021 886 6749
YOUR REFERENCE: Portion 1 of the Farm 1353 Franschhoek (La Lavande) / REF: PL 1353/lP
OUR REFERENCE: Mr JJ Truter/sn/ La Lavande /REF: PL 1353/lP
DIRECT FAX:
+27 21 405 5232
+27 11 535 8593
EMAIL ADDRESS:
jtruter@werksmans.com
DIRECT PHONE:
9 April 2015
Dear Madam
REQUEST FOR REASONS - CONTRAVENTION LEVY DETERMINATION - PORTION 1 OF THE
FARM 1353 FRANSCHHOEK (LA LAVANDE} / REF: PL 1353/lP
1
We refer to the above matter and confirm that we represent the followin g part ies, Mr JeanPh ili ppe Co lm ant, Ms Anne Gillian Stone and La Bourgogne Farm (Pty) Ltd ("our cli ents").
Background:
2
In a letter dat ed 21 January 20 15, Dupre Lombaa rd , Director: Planning and Economic
Development of the Stellenbosch Mu nici pality, in formed of the deci sion to invite Brashville
Propert ies (Pty) Ltd ("Brashville ") to apply for the determin ation of a contravent ion levy in
terms of section 40(1)(a)(ii) of t he Land Use Pl anning Ord inance of 1985 (" LU PO" ). A copy of
this letter is attached hereto for your ease of reference (Annex 1).
Werksma n s Inc. Reg. No. 1990 / 00 7 21 5/2 1 Regi st e r ed Office tSS 5th Stree t Sandton 2196 South Africa
Di rectors DG Wi lli ams ( Cha irman) AL Arm stron g DA Arteiro T Bata AR Berman NMN Bh engu L Bick GT Bossr Tl Boswell MC Bronn W Brown PF Burger
PG Cleland JG Clo ete PPJ Coet ser C Cole- Morg a n D Corbet t D Cu nard JN de Villiers GW Dr iver LJ du Preez RJ Feenstra S Fodor SJ Gardiner D Gew er
H Goolam R Gootki n ID Gouws GF Griessel D Hertz J Hollesen VR Hosiosky BB Hotz HC Jacobs TL Ja nse van Rensburg N Jansen van Vuuren G Johannes
S July J Ka llmeyer SLG Kayana A Kenny BM Kew N Kirby HA Kotze S Kr ige P le Roux MM Lessing E Levenstei n JS Lochne r L Louw JS Lubbe BS Ma basa
PK Mabaso PM Mad ala MPC Manaka G Mari nus PJG Mason H Masond o C Moraitis KO Motshwa ne TA Mt hiya ne J Nickig JJ Nlern and GA Not t BPF Olivier
WE Oosthuizen M Pansegrouw CP Pauw AV Ptllay T Potter BC Price AA Pyzikowski RJ Raath L Rood BR Roothman W Rosenberg NL Scott LK Silber man
JA Smit JS Smit Cl Stevens PO St ey n J Stockwell JG Theron JJ Trut er Kl Trudgeon DN van d en Ber g HA van Niek erk FJ v an Tonder JP van Wyk A Vatalidis
RN Wak efi eld DC Wa lker D Weg ierski M Wiehahn DC Wlllans E Wood BW Workman- Davies Co ns u lt a n t JM Bortz
IO H 1\N'J l'SfJ LRC , C .·\PF TOW\J , STELI..El'-:llOSC !-1 . l'YCER Vi\ U .LY
Page 356
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Legal framework:
3
Section 1 of the Promotion of Administrative Justice Act, 2000 ("PAJA") defines administrative
action to incl ude any decision taken or failure to take a decision by an organ of state when
exercising a public power or performing a public function in terms of any legislation. It is
subm itted t hat the decision taken to impose a contravention levy on Brashville fa lls within the
scope of this defin ition .
4
Section 5 of PAJA provides that any person whose rights have been materially and adversely
affected by an administrative action and who has not been given reasons for such action may,
within 90 days after the date on wh ich that person became aware of the action or might
reasonably have been expected to have become aware of the action, request that t he
administrator concerned furnish written reasons for the actio n.
Request for reasons:
5
Reference is made to represe ntations su bmitted to the m unicipality on behalf of our cli ents on
18 December 2014 and 13 Feb ruary 2015 wherein a number of g rounds of objectio n were
raised against allowing Brashville to apply for a contravention levy. We noted that in t he
correspondence of 21 January 2015, the concerns expressed in ou r grounds of objection were
not adequately addressed, with the d ecision-maker merely provid ing general and vag ue
reasons for the decision.
6
It is sub mitted that our client s' rights have been materia lly and adve rsely affected by th is
decision a nd ou r cli ents have not been provided with sufficient reason s as to why the decisionmaker has determ ined that it is appropriate to impose a contra vent ion levy .
7
In light of t he above, our clients requi re written reasons explaining the justification fo r allowing
Brashv ille to apply for a contravention levy determination under the circumstances. The
informatio n provided should address, however not be lim ited to, the following:
2
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7 .1
Apparent from the history of the matter, Brashvil le was instructed by the local authority to
cease development and occupation of unlawful structures on the property on numerous
occasions ; these instructions were ignored by Brashville, who continued with the unla wful
development. The matter was then taken to the Western Cape High Court and t hen the
Supreme Court of Appeal. During this time Brashville was to have ceased all unlawful
activities, however Brashville confirmed , in open court, that it would continue with the
unlawful activities. In light of its blatant disregard for the numerous directives to stop the
illegal construction and occupation of the development, we require reasons as to why the
decision-maker appears to have given weig ht to the claim of prejudi ce submitted by
Brashville and has motivated for the determination of t he contravention levy, particularly
in light of t he rulin gs hand ed down by the Western Cape High Court and the Suprem e
Court of Appeal clea r ly dism issing any allegations of prejudice ;
7 .2
We require reasons as to why the decision-maker motivated for the determination of the
contravention levy in light of the development being contrary to the Western Cape
Provincial Spatial Development Fram ewo rk and the Rural Land Use and Management
Guidelines published there under;
7.3
We require rea sons as to why the decision -maker motivated for the determinatio n of the
contra vention levy in light of the property being inco rrectly zoned for the development;
7.4
We require reasons as to why the decision-maker motivated for the determin ation of the
contravention levy in light of the develop ment being contrary to the provisions of Circular
8 of 2009 ;
7.5
We require reasons as to why the decision -maker motivated for the determination of the
con travention levy in light of the deve lopment being contrary to the provisions of the
National Heritage Resources Act of 1999 and taki ng into consideration the sig nifica nt
3
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detrimenta l impact of the development on the surrounding heritage and cultura l heritage
resources of the area;
7.6
We require reasons as to why the decision-maker motivated for the determination of the
contravention levy in light of there being no decision as to what building plans will be
approved and the approva l process to be followed. Furthermore, no occupancy certificate
may be awarded to allow the use of the buildings, failing building plan approval. This
would render the occupation and use of the buildings unlawful. We note that the "as built"
plans cannot be approved in light of there being noncompliance with section 39 of LUPO
(as the plans were never considered by the Franschhoek Planning Advisory Committee)
and are contrary to the recommendations of the municipal Engineering Services
Department and Building Control Officer as the development falls w ithin the 1: 50 year
flood line;
7. 7
We require reason s as to why the decision-maker motivated for the determination of the
contravention levy in light of the development being in contravention of the National
Environmental Management Act,
1998 ("NEMA") and the activities undertaken by
Brashville being illegal in terms of NEMA, read with GNR 544 of 18 June 2010 wh ich came
into force and effect on 2 August 2010; and
7.8
We require reason s as to why the decision-maker motivated for the determination of the
contravention levy in light of the blatant disregard for the appli cable laws; the zoning
scheme reg ul ations; the applicable guidelines, policies and frameworks; the directives
issued by the local authority to cease development and occupation; the court judgements
handed down by t he Western Cape High Court and the Supreme Cou rt of Appeal; and title
deed restrictions, as perpetrated by Brashville and discussed in detail in our previous
correspond en ce of 18 December 20 14 and 13 February 20 15 .
4
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Conclusion:
8
We ask that this request for reasons be considered favou rably and that comprehensive reasons
be provided.
Yours faithfu lly,
w~
JUSTIN TRUTER
5
Page 360
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S'TP
STE :..-LIH !l3 0SC H • l' N! EL" F':U ,N ~C:i!HOE K
M UN I S I PALl TSI T • U M A Si?A L A ~ iv11JN lCif A L!TY
1NNO VA TI ON CAP ITA L • IS !XEKO E SI ZA NEN GU OV • IN N(N AS IESTAD
2.1 .jc1nuary 2015
-
Our f~13f: PL 1353/1 P
We1"ksmans Attorneys
PO Box "1474 ·
Ccipe Tcwn
8000
Dear Sir I Madam
PORTION 1 OF THE FARM 1353 FRANSCHHOEK (LA LAVANDE): APPLICANT
BRASHVILLE PROPERTIES (PTY) LTD
1.
This letter is further to the correspondence sent to you as registered interested and I
or affected party by registered mail on 18 November 2014.
· 2.
As a result of the setting aside of my predecessor's earlier decision to instruct
Brashville Properties to apply for the determination of a contravention levy, the matter
must be considered afresh in terms of Section 40 of the Land Use Planning
Ordinance, 15 of 1985 (LUPO).
3.
Section 40(1 )(a) of LUPO gives three options for the decision-maker, namely to
instruct the offender to:
3.1.
Rectify the contravention before a date specified in the instruction, i.e. to
demolish the illegal structures; or
3.2.
Apply for the determination of a contravention levy; or
3.3.
Apply for a departure in terms of Section 15 of LUPO, before a date specified
in the instruction.
'4.
The power to choose from amongst the three options mentioned and to direct
rectification of a contravention or one of the other options is the sole competence of
the local authority.
5.
In terms of Delegation 62 of the Stellenbosch Municipality Systems of Delegations I
am empowered, where a building or any part thereof was erected in contravention of
Section 39(2)(a) of LUPO, to independently consider and rationally choose between
those three options.
6.
I have carefully considered what the Honourable Judge Rogers had to say
concerning the exercise of discretion in the Western Cape High Court matter of
William Booth Attorneys vs City of Cape Town (Cases 2046/12 and 22990/11).
Tel: +27 2180880 25 I Fax: +27 21886 6749
Physica l Address: Plein Stree t, Stel!enbosch, 7600 I Post al Address: PO Box 17, Stellenbosch, 7599
I
Website: www.stellenbosch.gov.za
Page 361
·.. . f . :
I,.
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:
,.
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7.
I have noted the unmotivated· request from the provincial authority that Srashville
should be instrl!cted .t9 apply for the determination of a contravention le\,y.: !n the
absence of proper motivation 1 have not attached any weight to the 'provincial
··
request.
8.
l have studied the contents of all the municipal files relati·n~
the ~atter, including
amongst others the previous reports, building plan processes, written submissions
made by the parties, court papers and judgments, the report by the Manager: Land
Use Management and the report by the Head of the Department of Environmental
Affairs and Development Planning submitted to MinisteF :$~e9_eU: ¢~fed March 2011
(to which I will refer as the Bredell Report). The following is,par;ticularly noteworthy.
\ci ·
8.1.
The Directorate in a submission to the municipal committee concerned during
July 2010 concluded that "The proposal will not detract ' from the natural
bec,wty, tranquillity, character of its surrounding environment and the ·rural
ambience '·ofPranschhbek. If is the opinion of the-fJlanRir,,_g and Development ..
Dkectorate, that notwithstanding the objections :against this application, the.
proposed rezoning and amendment of condition of approval is desirable and
would in all probability not have a detrimental effect on the aesthetic quality of
surrounding properlies, the character of the area, will not adversely affect any
person or the envi(onment if sufficient landscaping is implemented to screen
the proposEJd structures from the surrounding properties and roads." I have
condu~ted ~n _
insp_
ection of_
t lie property and concur with that conclusion.
8.2.
9.
The provincial government had all along been in SUl:)port of the revisions
proposed in the revised site development plan. It has to date not withdrawn
such support. · To me it is clear from the Bred ell Report that the provincial
decision to refuse Brahsville's application for rezoning was not based on any
of the grounds set out in Section 36 of LUPO. It was seemingly taken to
punish the .-owner I Brashville for commencing with construction prior to
obtaining building plan approval.
After due considerahon' of all the relevant facts, the available options and applying my
mind to the matter, 1have decided to instruct Brashville Properties in terms of Section
40( 1)(a)(ii) of LUPO to apply' for the determination of a contravention levy. The main
reasons for my decision include, amongst others, the following:
9.1.
The development concerned is not undesirable within the context of Section
36 of LUPO ." That was the earlier finding of the Directorate and the provincial
government - a view that I have arrived at after independently acquainting
myself with all the.relevant facts, conducting an inspection of the property and
consideration of the matter. No good reason exists for requiring the demolition
of a desirable building. It is noteworthy that others in the immediate same area
have similar uses 'and developments and there is no . good reason why
Brashville should be treated differently.
. ·,, .
·.
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10.
9.2.
Moreover, in all previous decisions the development was found to be
desirable, but the official decisions were made through incorrect procedures
and thus overturned on review. The Courts did not find that the use was
undesirable, only that the processes were not correctly administered.
9.3.
A contravention levy serves as a means of punishment for the offender. The
authorities should actively discourage construction without prior approved
building plans. Allowing for the offender to apply for a departure would mean
a decision on the desirability and likely approval, based on the relevant facts
and hence no punishment for building without approved building plans. The
regularization of the buildings concerned by means of a contravention levy is
therefore considered appropriate.
The purpose of this letter is three-fold. Firstly it serves to notify you of the
decision that I have reached under delegated authority and my main reasons for
taking the decision. Secondly it serves as an instruction to Brashville Properties
to apply for the determination of a contravention levy. Thirdly it is to afford you
the opportunity to make written submissions to me concerning the facts and
circumstances that I should take into consideration when deciding on the
appropriate quantum of the contravention levy, should Brashville apply for such
determination to be made. Such submissions should reach me within 21 days
from date of this letter.
Yours faithfully
~\~
(\ bi~
Loihliaa
DIRECTOR: PL
Page 363
'''Y
WERKSMANS
ATTORNEYS
DELIVERED BY EMAIL
THE DIRECTOR: PLANNING AND ECONOMIC DEVELOPMENT
STELLENBO SCH M UNICIPALITY
Plein Street
Stellenbosch
Ca pe To w n Office
Cape Town 8001 South Africa
P O Box 1474 Cape Town 8000
Docex 15 Cape Town
Tel + 27 21 405 5100
Fax +27 21 405 5200
www.werksmans.com
enquiries@werksmans.com
7600
FOR ATTENTION : MR DUPRE LOMBAARD
By Email : Du ore.Lombaard@stellenbosch.gov.za
YOUR REFERENCE :
OUR REFERENCE:
Mr JJ Truter/nj /COLM 13 07 2.1/#3489234v l
+ 27 21 405 5231
DIRECT PHO NE:
DIRECT FAX :
EMAIL AD DRESS:
+27 11 535 8600
njou bert@werksmans.com
13 July 201 5
Dea r Mr Lombaa rd
UNLAWFUL STRUCTURES ON LA LAVAND E, PORTION
1 OF THE FARM NO 1 353,
STELLENBOSCH MUNICIPALITY, SITUATED OFF VERDUN ROAD, FRANSCHHOEK
1
We refer to the above m atter and t o our previous correspondence herein, includi ng ou r
cl ients' com prehensive represent at ions dat ed 18 Decembe r 2 01 4 and 13 Febru ary 20 15,
our clien t s' request for reasons in terms of secti on 5 of t he Promotion of Administra tive
Justice Act, 2000 ("PAJA") and to ou r clients' application for access to information in ter ms
of t he Promotion of Access t o Information Act, 20 00 ("PAI A").
Wer ksman s Inc. Reg. No. 1990 / 007215/ 2 1 Registered Office 155 5th Street Sandton 2196 South Africa
Di rectors DG Williams (Chairman) AL Armstrong BA Aronoff DA Arteiro T Bata AR Berman NMN Bh engu L Bick GT Bossr TJ Boswell MC Bronn W Brown
PF Burger PG Cleland JG Cloete PPJ Coetser C Cole-Morgan D Corbett JN de Villiers GW Driver U du Preez RJ Feenstra S Fodor SJ Gardiner D Gewer
H Goolam R Goot kin lD Gouws GF Griessel D Hertz J Hollesen MGH Honiball VR Hosiosky BB Hotz HC Jacobs TL Janse va n Rensburg N Jansen van Vuuren
G Johannes S July J Kallmeyer SLG Kayana A Kenny BM Kew N Kirby HA l<otze S Krlge PJ Kr usche P le Roux MM Lessi ng E Levenstein JS Lochner JS Lubbe
BS Mabasa PK Mabaso PM Madala MPC Manaka H Masondo C Moraitis KO Motshwane J Nickig JJ Nicmand BPF Olivier WE Oosthuizen M Pansegrouw CP Pauw
AV Pillay T Potter BC Price AA Pyzi kowskl RJ Raath L Rood BR Roothman W Rosenberg NL Scott TA Slbldla LK Siiberman JA Smit JS Smit Ci Stevens
PO Steyn J Stockwell W Strachan JG Theron JJ Truter KJ Trudgeon ON van den Berg HA van Niekerk FJ van Tonder JP van Wyk A Vatalldis RN Wakefield
DC Walker D Wegl erski M Wlehahn DC Wlllans E Wood BW Workman-Davies Consultant )M Bortz
JOI LAN NESBURG , CAPETOWN , STELLF.N flOSC H, TYGER VAi.LEY
COLM13072. l / #3469234vl
7 July 20 L5
2
Page 364
In your letter dated 21 January 2015, having (we submit unlawfully and irrationally)
resol ved that another contravention levy be Imposed on Brashville, you invited our clients
to make furt her representations in respect of the quantum of the contravention levy. Our
clients' comprehensive representations were delivered on 13 February 2015 and we still
await your Municipality's decision in respect of t he quantum of the offende r's contravention
levy.
3
The purpose of this letter is, firstly, to record that, more than 90 days after our request for
reasons in respect of your decision to impose another contravention levy on the offender,
thereby rejecting our clients' representations calling for rectification, we have yet to receive
proper reasons for your decision. In the circumstances we record that, in accordance with
section 5 of PAJA, it must be presumed that your decision w as taken without good reason.
4
Furthermore, we record that, having been granted access, pursuant to our PAIA request, to
the municipal record in respect of this matter and hav ing received copies of the record on
24 June 2015, a number of alarm ing discoverie~ were made.
5
The summary of r epresentations contained at pages 4-8 of the Planning Report dated 16
January 2015 contains an enti rely inaccurate and inadequate su mmary of our clients'
representations and reflects a wholesale failure by the author to properly consider our clients'
representations and present the substantive responses by our client to each of the grounds
motivated by the appl icant and listed in the summary. For example, in response to the
applicant's motivations in respect of prope rties that fall wi t hin and outside the 1:50 and 1:100
year floodlines, the pl an ning report ma kes no refe rence whatsoever to the following relevant,
cogent and detai led motivations in our clients' representations:
"As far as the activities unlawfully undertaken by Brashville below the 1 :50 year flood/ine,
their submission is that the test for whether these structures should be permitted to
2
Page 365
COLM 13072 . l / lt3t18923'1vl
7July20 15
remain depends on whether the location of these units within those flood line areas "may
potentially pose a threat to live (sic) or limb". This point of departure by Brashvi/le is
fundamentally flawed. The need to avoid constructing within the 1: 50 year f/oodline is
recognised as sound planning and environmental policy which exists apart from any
alleged absence of harm to "life or limb".
Brash ville relies for its (flawed) contention in rela tion to the structures within the 1: 50
year floodline on a flood line study but fail to point out that this study itself recommended
that there be no construction within the 1: 50 year floodline. Brash vii/e's contention that
"all those authorities (who were presented with a copy of the f/oodline study) were
satisfied,
on the basis of the findings made during the study that allowing the
development would not endanger life or limb" is entirely speculative, but in an y event
irrelevant. Ha d this been the test, and assuming the assertion is correct, as contended by
Brashvil!e, the author of the floodline study and the technical director in the Municipality
would not have recommended that there be no development within the 1: 50 year
f/ood/ine."
6
It Is also very disconcerting t hat on 7 January 2015, Brashville's legal represe ntative
addressed an e-mai l, containing further represen tations and ca lling for a meeting with you to
discuss the matter, Ironically because he felt that the manner in which the Municipality were
dealing with the mat ter would expose his client to a risk of further jud icial review.
7
In a subsequent e-mail to Ms I lze Couvaras dated 12 Jan uary 2015, you direct he r to " ... get
the file on [your] desk for a meeting with the client's attorney before 12h00 on 15 January
2015."
8
If the meeti ng you are referring to in your e-ma il of 12 January 2015 is in fact a meeting that
was to be held with Brashvil le's attorney, pursuant to hi s 7 January 2015 request for such a
3
Page 366
COLM13072 . 1/ #3489234v 1
7 Ju ly 2015
meeting, we po int out that both you and Brashvil le's attorney appea r to have lost sig ht of the
fact that a st atu tory adjudication process was still underway in which you, as the decisionmaker,
were
requ ired
to
act
impartially and
independently,
in accordance with
the
adm inistrative j ustice impera tives set out in the Constitution and entrenched in PAJA and with
due regard t o the audi a!terem partem legal principle.
This would have required that the
objectors, including our clients, were present at any meetings tha t were held with the applicant
and we re afforded an opportunity to make representations in response to any of the
applicant's furth er representa tions, wheth er oral or written.
9
We ask that yo u con firm by return whethe r any meetings or discussions, telephonic or
otherw ise, were held with the applica nt or h is representatives, including his town pla nner
and/or attorney, subseque nt to the submission of the applicant's representa tions on 19
November 2014 and further that you furnish us with copies of any additional representations
and/or correspondence exchanged between any of the aforementioned parties and your
municipality, to w hich our clients have not been privy.
10
In respect of any such meetings we ask further that you confirm:
10.1
How, when and w hy the meeting was arranged;
10.2
Who else was present at the meet ing;
10.3
At w hat time did the meeti ng begin and end;
10.4
Did you or any other official present at such meeting make any notes at t he meeting or
subseque ntl y;
10.5
What representations were made by o r on behalf of the applicant and by whom;
10.6
Wha t was sa id by you or any official at the meeting in respo nse to those representations;
4
COLM 13072 .1/ #3489234v 1
7 J uly 2015
10.7
Page 367
At the conclusion of the meeting what final request or statement was made by or on
behalf of the app licant and what assurances or other stateme nts were given or made by
you or any other official in attendance;
11
We record that, in the event that there was any further exchange of correspondence or
meetings between your municipality and the applicant and/or its representative, without ou r
clients being afforded an opportunity to respond or attend, apart from being administratively
unjust, this creates, at the very least, a presumption of bias in favour of the applicant. This
presumption is supported by the fact that you expressly refused to engage directly with our
client or its representatives while the legal adjudication process under section 40 of LUPO , read
with PAJA, was underway and is further supported by your apparent reference in your e-mail
to Ms Couvaras on 12 January 2015, to Brashville as your "client".
12
Needless to say, all our clients' rights remain strictly reserved and we cal l on your municipality,
once again, to carry out its statutory mandate under LUPO and the NBRBSA and thereby to
uphold the rule of law by interdicting Brashville from continuing with its unlawful occupat ion
and use of the unl awful structures until such time as it has rectified its unlawful activities in
terms of LUPO, the NBRBSA and NEMA. We note that then:'! is no reference to the NEMA
contraventions by Brashville in any of the p lanning reports presented to you befo re you arrived
at your decision and ou r clients' arguments in resp ect of NEMA and the timing of your decision
appear to have been entirely disregard ed by you in arriv ing at yo ur decision to impose another
contravention levy .
13
As a result of your municipal ity's co ntinuing failure to uphold the rule of law, Brashvill e has
been permitted to co ntinue its unl awful activities with impunity and for consid erable
financial gain .
14
We awa it your urgent r esponse.
5
COLM 13072. l/1"3489234v l
Page 368
7 July 2015
Per:
JUS
6
Page 369
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••••
•••
••
•
STELLENBOSCH
STELLENBOSCH • PNIEL • FRANSCHHOEK
MUNICIPALITY• UMASIPALA • MUNISIPALITEIT
APPENDIX 13
CORRESPONDENCE FROM DU PLESISS,
HOFMEYR, MALAN LAND AND LAW SPECIALISTS
DATED 8 JULY 2015
Confidential
Page:23
Page 370
P
Charlene Williams
\3 ~\l
To:
Johan Du Plessis <jp @dhmlaw.co.za>
08 July 2015 03:02 PM
Dupre Lombaard
Subject:
DRING EN D: LA LAVANDE (COLMANT EN ANDERE/ BRAsviLE PROPERTIES)
From:
Sent:
(3
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Ek merk in 'n artikel wot onlangs in die Tatler verskyn h ,
·iv :~smans e ·dii§ Franschhoek Valley
Conservation Trust almal voorleggings gemaak het. Dit bekommer my at afskrifte daarvan nie no ons
verwys is vir kommentaar nie. Ek weet nie of dit 'n oorsig was en of door goeie rede voor bestaan nie.
Graag verneem ek van jou in die verband.
Wat wel kommerwekkend is, is dot door 'n versoek vir redes vir die munisipale besluit aan julle gerig is en,
_r olgens die berig in die koerant, moet julle teen 18 Julie daarop antwoord, anders sol door in 'n aansoek
om geregtelike hersiening van die besluit, aanvaar word dit sander goeie rede geneem is. Ek glo jy is
bekend met die betrokke artikel in die Wet wot daardie strekking het. Dit is dus uiters belangrik dot die
gevraagde red es vir Werksmans moet bereik voor die "verval datum". Ek sol bly wees indien jy my sol
skakel sodra jou program toelaat sodat ons kortliks die kwessie kan bespreek.
Ek wag om van jou te verneem.
Vriendelike groete.
JOHAN DU PLESSIS
rnu lcr1
DU PLESSIS HOFMEYR MALAN INC (Registration Number: 2011/134862/21)
JP du Plessis B luris, LLB (UNISA), BPhil & MPhil Sustainability (US)
CJ Hofmeyr BA LLB (US), LLM (HU-Berlin), LLM Public Law (UCT)
N Malan BA Industrial Psych (US) , LLB (UNISA)
Unit 12, Second Floor, Paardevlei Specialist Medic al Centre,
Gardner Williams Avenue, De Beers Precinct, Somerset West.
P O Box 70 Somerset Mall 7137
Tel: (021) 851 0359 I Fax: (021) 85 1 4852 I E-mail: jp@dhmlow.co.za
Website : www.dhmlaw.co.za
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1
Page 371
""t'""
,JI""'
••••
•••
••
•
STELLENBOSCH
STELLENBOSCH • P N I EL • FRANSC HHO EK
APPENDIX 14
REASONS FOR DECISION OF DETERMINATION
FOR CONTRAVENTION LEVY CONVEYED TO
WERKSMANS ATTORNEYS, DATED 15 JULY 2015
Confidential
Page:24
STELLENBOSCH
Page 372
STELL EN BOSC H • PN!EL • FRANS CHHO EK
MUNICIPALITY • UMASIPALA • MUNISIPALITEIT
Planning and Econom ic Deve lopment
15July2015
Our Ref: PL 1353/1 P
Werksmans Attorneys
PO Box 1474
CAPE TOWN
8000
Attn:
J Truter
E-mail:jtruter@werksmans.com
Dear Sir
REASONS FOR CONTRAVENTION LEVY DETERMINATION FOR PORTION 1 OF THE
FARM 1353 FRANSCHHOEK (LA LAVANDE): APPLICANT BRASHVILLE
1)
Your recent letters refer.
2)
Time co nstraints do not permit a reply to your letter of 13th July 2015 at this stage. I
do intend to reply to that letter shortly.
3)
Webber Wentzel in its letter to you of 17 October 2014 confirmed that the delay in
responding to your correspondence was as a result both of internal reorganisation
within the municipal administration and the need to carefully consider the implications
of the court judgments. Since then key staff members have resigned (some of their
positions have not been filled after months) and th e Directo rate's capacity to deal with
the ever-increasing workload (including repeated dealing with administrative matters,
co mplaints and submissions) has deteriorated.
4)
Your criticism concerning the Municipa lity's alleged "in action" in taking steps to
enforce compliance with conditions attached to the Minister's zoning approval is
noted. We briefly deal further with this aspect below. For the momen t it is sufficient to
, say th at the Directorate is taking its responsibilities seriously, but that it has bee n
flooded by a multitude of applications, newly introduced legislation, complaints about
co ntravention s and so forth. It is unable to deal as quickly with matters as it would like
to , but the officials are doing their leve l best under the circumstances to attend to
matters as quickly and correctly as possible.
5)
The La Lava nde matter is, as you are well aware, very complex. It has been co ming
through three managemen t changes in the Directorate, making it difficult to ensure a
continuous consiste nt approach. Refer amongst oth ers to the recent Clarison's court
case , where the MEC was reminded of similar responsibilities in the courts. There are
no easy readily available answers to the many questions wh ich I now have to
co nsider and answer. Due to th e Directorate's heavy wo rkload, time and other
Tel: +27 21 808 8676 1 Fax: +27 2 1 886 6899 I email: dupre. lombaard,fl'ste llenbosch .gov. za
Phys ical Address: Plein S tree t , Stell enbosch, 7600 I Posta l Add re ss: PO Box 17, Ste lle nbosch, 7599
We bs ite: \1.ww.strllenbosch.gov.za
Page 373
practical constraints we do not attempt to provide a complete list of all issues raised
and considered or all the reasons for my decision.
6)
I believe that the legislation does not require from me to list all the reasons for my
decision; only to provide adequate reasons . I consider my reasons below as
adequate for present purposes, but specifically reserve the right to amplify the issues
and more fully motivate the reasons for my decision if necessary later. What I say
below is the best that I can do in the circumstances.
7)
I have noted your strong view on the merits of my decision to instruct Brashville to
apply for a contravention levy and your incorrect assumption that I have disregarded
your arguments in arriving at my decision. Our difference of opinion seems to stem
mainly (if not exclusively) from the weight to be attached to the relevant
considerations and not from what is in issue and what not. There is no factual basis
for the allegation that I have disregarded any arguments, although (as I will point out
below) I have rejected some of the arguments. For the reasons already given I am
presently unable to deal with each and every averment made in your letters, but I do
reject as completely wrong the suggestion that I largely ignored or disregarded your
detailed representations in arriving at my decision.
8)
My decision involved the weighing up of various factors and circumstances; the
consideration of a number of issues, an extensive range of documents (e.g. planning
and policy documents), the views and representations of various parties, the interests
of the various parties involved; and an application of the principles reflected in NEMA.
I am aware to the fact that the NEMA principles apply alongside all other appropriate
and relevant considerations and serve as a guideline by reference to which I had to
exercise my function. I also know that particular efforts must be made to conserve
valuable high-potential agricultural land for agricultural purposes. Furthermore that
among the main attractions South Africa has to offer as a tourist destination are its
aesthetic qualities and the scenic beauty of the environment, assets that must also
be considered.
9)
I re-iterate that I have studied the contents of all municipal files relating to this matter,
including amongst others the previous reports, building plan process, written
submissions made by the parties, court papers and judgements, the Report by the
Manager: Land Use Management and the Report by the Head of the Department of
Environmental Affairs and Development Planning submitted to Minister Bredell of 21
March 2011 (the Bredell Report). I have studied all letters received and considered
the submissions made therein.
10)
Again I am not attempting to provide a complete list of everything that I took into
consideration. What I do say is that in taking my decision I was fully aware of all the
issues raised and I properly and fully considered all relevant issues (both alone and
in their overall context). I have pertinently considered all the factors I considerations
which you mentioned, together with all the other relevant facts and circumstances,
both on their own and in relation to the other issues impacting upon my decision. I
maintain that I had due regard to all relevant facts and circumstances and reject any
statement to the contrary as untrue.
11)
In my view I was required , when considering the desirability or rather potential lack of
desirability of the proposed land use, to strike a balance between the protection of
ownership and the exercise of ownership rights on the one hand , and the obligations
of Brashville to the comm unity on the other. I had regard to factors such as the
PL 1353/1 P r easons
15 July 201 5
Page 2 of 10
Page 374
significance of the resource in question. I took into consideration all relevant
principles in the performance of my functions and exercise of my powers in terms of
LUPO. A balanced approach in terms of my understanding, amongst others involves
the consideration of all the relevant policies in the context of the unique
circumstances of the proposed land use and consideration of the weight to be given
to each policy. I had to exercise discretion and strike a balance between the many
competing interests in the ecological, economic and social fields by making a choice
from amongst various options in arriving at a decision. I have exercised an
independent discretion honestly and to the best of my ability, following appropriate
consultation with the officials of the Directorate and the Municipality who have
previous experience of the matter.
12)
What I understand you to be saying is that you do not regard the reasons for my
decision, as recorded in earlier correspondence, to be adequate and that you require
a more detailed response. I am not prepared to get embroiled in "litigation by
correspondence", but will attempt to adequately address what appear to be the
issues on which you have placed the strongest emphasis. As far as my reasons for
the decision are concerned, I confirm that the main reasons (which were not intended
as an exhaustive list of reasons) have been recorded in my earlier letter. I do not
intend to re-iterate what have previously been stated. What I have to say in this letter
is in addition to statements made in earlier correspondence.
13)
The first issue that I will deal with relates to the Minister's decision to refuse the
application for rezoning of the property and more particularly whether (as you allege)
the Minister was of the view that the proposed land use was undesirable and/ or will
have a detrimental effect on existing rights as contemplated in s36(1) of LUPO.
a)
As you mentioned the fundamental premise of my finding , as expressed in my
main reasons, is my view that the development does not lack desirability as
contemplated in section 36(1) of LUPO. I will return to this aspect further
below.
b)
You attempted to motivate why my decision to this effect would be unlawful.
Your arguments in this regard (as I understand it) in essence are that the
Minister had already found the land use to be undesirable or to have an
unacceptable effect on existing rights, when he refused the LUPO application.
c)
According to you his decision to refuse the application shows clearly that he
accepted that the zoning was undesirable. You then argue that it must be
accepted that he acted lawfu lly, that his decision must be accepted on the
face of it and within the statutory constraints of section 36 of LUPO, and that
his finding stands and has legal force and effect until set aside on review
(based on authorities such as Oudekraal).
d)
I understand you to be saying in essence that as the Minister has made a
particular finding , namely that the proposed land use must be refused
"because it lacks desirability", I am bound by that finding when considering the
options under section 40. I do not agree that this is so.
e)
You also alleged that internal comments and recommendations of provincial
officials are irrelevant considering the Minister ultimately rejected those
comme nts and recommendations.
PL 1353/1 P r easo ns
15 Ju ly 2015
Page 3 of 10
Page 375
14)
I have rejected some of your arguments concerning the Minister's decision. In this
regard I say only the following for the moment.
a)
The lack of desirability (if any) of the proposed land use is a relevant
consideration that I am required to take into consideration when acting in
terms of section 40. See further below.
b)
All zoning decisions, no matter how big , are within the competence of
municipalities. The Municipality previously found the proposed land use not to
be lacking in desirability. I was able to form a clear understanding from the
available documents of the basis for the earlier municipal decision
recommending the rezoning application for approval. I have nevertheless not
permitted myself to be guided by the earlier views expressed by the
Directorate (which I now head), as I was mindful that by allowing myself to be
guided in this way it could be said that I have not exercised my discretion at
all. I have independently assessed the merits of the earlier municipal
recommendation based on such knowledge and with due regard to the views
expressed by interested and affected parties, my own observations when I
conducted inspections of the property and surrounding area, and so forth.
c)
The provincial government is not entitled to impermissibly usurp the functions
of local government. In terms of my limited understanding of recent judgments
it is constitutionally impermissible for the provincial government to refuse
rezoning applications under LUPO. It would appear that the Minister, in taking
a zoning decision, intruded impermissibly on the autonomous sphere of
authority that the Constitution accords municipalities. He failed to recognise
the distinctiveness of the municipal sphere. I maintain (even if only for
academic purposes at the moment, as the courts have not yet found section
16 of LUPO to be unconstitutional and invalid) that insofar as it purports to
empower the provincial government to take municipal planning decisions,
section 16 is not compatible (but in fact manifestly at odds) with the
Constitution's conferral upon municipalities of authority over municipal
planning.
d)
As no finding of constitutional invalidity of section 16(1) has yet been made I
have proceeded on the basis that the Minister's decision to refuse the zoning
application stands. Whether or not his refusal was indeed valid may or may
not be of any consequence. It is not necessary or competent for me to decide.
What his decision did achieve was to create a situation in terms of which the
Municipality was required to act in terms of section 40.
e)
In my mind the real question is whether I am bound by or should allow myself
to be influenced by the Minister's decision when exercising my discretion. My
concerns in this regard are manifold. The Minister failed to give any reasons
for his decision.
f)
I have noted your speculative arguments about what the Minister indeed
found and so forth. I have not deduced from the relevant memorandum and
contemporaneous utterances of the officials (e.g. that a contravention levy
was appropriate, which by necessary implication means that the structures
may be retained) the reasons for the Minister's decision , although there are
strong indications that in essence he merely adopted the reasoning in the
departmental report.
PL 1353/1 P rea sons
15 July 2015
Page 4 of 10
Page 376
15)
g)
It is not possible from the available documents to make a definitive finding as
to why the Minister refused the rezoning application. There is no express
finding that the rezoning application did not comply with section 36 of LUPO.
Even if one should assume for the moment that he made such a finding, it is
of no assistance to me. I do not know what the Minister's views are as he has
not expressed himself in clear terms. I am not prepared to work with
assumptions in this regard.
h)
But even if I was to allow myself to be guided by only his views , without
knowing how he arrived at those views, I would not be exercising my
discretion at all. In order to exercise an independent discretion (as I was
required to do) I must have been able to understand the basis for his decision
and to independently assess the merits thereof, based on such knowledge.
This was clearly not possible, since the Minister provided no motivation or
reasons for his decision.
i)
As previously recorded, the development I activity I land use is not
undesirable if measured in terms of section 36 of LUPO. This is supported by
the previous findings of the Directorate, the provincial government and all the
relevant facts. The property was first rezoned to Residential Zone V in 2006
and subsequently in 2009 by the relevant provincial minister. The area I
footprint used for development does not coincide with the area I footprint
which was rezoned, but portion of the property is zoned Residential Zone V, a
zoning which was generally used for the establishment of accommodation
facilities before the relevant amendment of the section 8 zoning scheme.
j)
As stated before, the rezoning approvals granted in 2006 and 2009 indicate
amongst others that the development I changing use is desirable and does
not pose a significant risk to or negatively affect the cultural landscape. It
creates opportunities for accommodation of tourists and employment in line
with a developmental approach required of local government.
I have considered your statements to the effect that the development is contrary to all
the relevant guidelines, policies and provincial circular. In this regard I say only the
following for the moment.
a)
I had regard amongst others to the relevant provincial guidelines and policies,
amongst others the Spatial Development Framework/ PSDF and including the
Rural and Resort Development Guidelines and related circular.
b)
It is not only planning policies and documents that I had to take into account.
Other factors and unique circumstances had to be (and were) considered ,
such as the constitutional requirement that the state must promote justifiable
social and economic development.
c)
The City of Cape Town's Land Use Enforcement Policy only applies within
(and not outside) the City's area of jurisdiction . It does not apply in the
Stellenbosch municipal area (WC024). But even if it would have applied, it
would have required of me to form the opinion th at the development will have
a major adverse impact on existing rights, on the general amenity of adjoining
properties or a material impact on the streetscape to trigger the rectification
option. That is not the opinion which I have formed. I believe that the opinions
PL 1353/1 P reasons
15 Ju ly 2015
Page 5 of 10
Page 377
expressed concerning the alleged impact of the development are totally
exaggerated, especially if regard is had to the appearance of existing
developments on properties in the area.
16)
d)
In terms of my reading of the PSDF it provides, as a structure plan, directives
and guidelines to help the decision-makers in the land use planning and
environmental field to consider whether or not proposed development would
be economically, socially and ecologically sustainable. It requires decisionmakers to consider which of the policies (plural) in the PSDF are relevant in
the unique circumstances and the weight that should be given to each
towards securing environmentally sustainable development and the use of
natural resources while promoting socio-economic development.
e)
None of the policy documents is binding in the sense that it has the force of
law. They are intended to guide, and not to be legally binding. They are in no
way decisive. Similarly the circular to which you refer was aimed at supporting
municipalities in the identification of suitable practical ways to deal with
applications for resort developments and guest houses. They may therefore
be departed from , where the relevant circumstances justify this.
f)
It is my opinion that the development is not contrary to any spatial
development framework. It might be a difference in interpretation of the
provincial spatial development framework, however the local spatial
development framework and strategic objectives of the municipality promote
economic development and diversification in agricultural areas subject thereto
that the development should fit with the natural landscape, which in this case
it does.
g)
I have evaluated the land use in terms of the overarching sustainable
development principles as set out in the policy guidelines for development. I
considered the objects sought to be achieved by the policies and other
planning documents. I do not believe that the overall objectives of the relevant
policies will be impaired by regularising the existing land use in terms of a
contravention levy.
have considered your statements to the effect that it is recognised as sound
planning and environmental policy (which exists apart from the alleged absence of
harm to "life or limb") to avoid constructing within the 1: 50 year flood line, that the
flood line study recommended that no construction should take place within the 1:50
year flood line, that Pieter Hartzenberg , municipal Deputy Director: Technical
Services on 5 January 2011 recommended that no development should take place
within the 1: 50 year flood line and so forth . In this regard I say only the following for
the moment.
a)
Large portion of the area that would have been occupied by buildings if the
earlier ministerial rezoning approval would have been implemented , fell within
the 1: 50 year flood line. The fact that the Minister, after consideration of the
flood line study, approved construction within the 1: 50 year flood line,
confirms that policy is intended to guide and is in no way decisive. I am
therefore not alone in my decision to con sider, but not be bound by the flood
line delineation. The decision-maker must have due regard to all relevant
facts and circumstances and exercise discretion.
PL 1353/ 1 P reaso ns
15 July 2015
Page 6 of 10
Page 378
17)
b)
The area of the developed portion of the property (under consideration for
purposes of section 40(1) of LUPO) that is affected by the 1: 50 year flood
line, is substantially smaller than the area that would have been affected if the
earlier approval of the Minister would have been implemented. From this
perspective the current land use is more acceptable and desirable than the
previously approved development.
c)
I was unable to form a sufficiently clear understanding from the available
documents of the basis for the abovementioned recommendations made by
Mr Hartzenberg and in the study. If Mr Hartzenberg did not know where the
flood line was situated, it raises the question whether he could have applied
his mind.
d)
I have decided not to be guided by those views which were of no real
assistance to me. I have independently assessed the merits of the
recommendations based on the findings made in the flood line study and with
due regard to the views expressed by interested and affected parties, my own
observations when I conducted an inspection of the property and so forth. (I
pause here to say that it may well be that, when the building plan application
is considered in due course, the Building Control Officer and I or relevant
decision-maker may arrive at a different decision than mine. My decision on
the merits of those recommendations is not binding on them).
e)
The site plan prepared by David Heilig & Abrahamse, professional land
surveyors, that accompanied the letter from OHM Attorneys of 10 November
2014 and to which reference was made in paragraph 11 of that letter, was
illuminating. It would appear from that plan (and I have no reason to doubt that
it is correct) that unit numbers 1, 2, 3, 4, 5, 6 and 7 clearly fall outside the 1:50
and 1:100 year flood line areas.
f)
In terms of the survey only unit numbers 8, 9 and 10 fall inside the 1:50 and
1:100 year flood line areas. According to the study previously undertaken it
was found that the flood depth for the 1 and 50 year flood line was a shallow
0.09m and the average flood velocity a slow 0.88 m/s. I have considered
whether the location of those units within the flood line areas may potentially
pose a threat to life or limb. Based on a consideration of the findings made in
the study, the land surveyor measurements and other available information , I
do not believe that the mere presence of three of the new units inside the
flood line areas will warrant refusal of any of the building plans. The effect of a
flood would be insignificant in terms of specialist reports in this regard.
The alleged visual impact of the structures has received prominence in the
submissions to date. I have carefully considered all inputs received in this regard,
including your statements as well as what prof. Todeschini had to say relating to the
visual and cultural significance of the property, the impact of the structures on this
view shed and landscape, and amongst others relating to the applicability of the
National Heritage Resources Act and so forth . In this regard I say only the following
for the moment.
a)
Aesthetics and visu al impact is a hugely subjective topic. In my view the
comments th at I have received concerning th e visual impact of the structures
mostly lack a sufficient measure of objectivity.
PL 1353/1 P reasons
15 July 2015
Page 7 of 10
Page 379
b)
When I considered the question whether the land use lacked desirability, I
considered amongst other things, the visual impact of the structures on the
view shed and landscape. In my view it does not have a major adverse impact
on existing rights or the general amenity of the adjoining properties. I believe
that, if anything, what have been constructed on nearby properties may have
such an impact.
c)
Before my appointment by Stellenbosch Municipality, the Directorate:
Planning and Economic Development, independently investigated the
proposed land use. After consideration of the objections lodged and an
assessment of the earlier land use application made a submission to the
Municipality's Planning and Development Services Committee during July
2010, concluding as follows:
"The proposal will not detract from the natural beauty, tranquillity, character of
its surrounding environment and the rural ambience of Franschhoek. It is the
opinion of the Planning and Development Directorate, that notwithstanding the
objections against this application, the proposed rezoning and amendment of
condition of approval is desirable and would in all probability not have a
detrimental effect on the aesthetic quality of surrounding properties, the
character of the area, will not adversely affect any person or the environment
if sufficient landscaping is implemented to screen the proposed structures
from the surrounding properties and roads."
18)
d)
I have independently assessed the merits of the Directorate's above
conclusion with due regard to the views expressed by interested and affected
parties and my own observations from an inspection conducted of the
property. I fully associate myself with th e above conclusion. In my opinion the
land use will not have a negative impact on the environment or on people's
environmental rights.
e)
I was required to consider the social, economic and environmental impact of
the proposed activity including its disadvantages and benefits. I had to
allocate a value to "sense of place". I could not consider it out of context with
the overall benefits of the development, such as tourism benefits. When
considering the sense of place, I amongst others had regard to the
developments that have been permitted to take place on properties in the
area. I do not consider the scale and nature of the structures as inappropriate
within the specific landscape, if regard is had to the character of the built
surrounding area.
f)
During my site visit I observed that tree-planting had taken place on the
Brashville property, adjacent to the private road giving access to the Brashville
property and a few others. It would appear that this was done to mitigate any
potential negative visual impact of the structures to an acceptable level. Be
mindful of the fact that other structures, e .g. agricultural buildings, could
replace the accommodation structures with no recourse whatsoever.
I have considered your statements to the effect that it is a pertinent consideration (in
order for me to come to a rational decision regard ing the sanction to be imposed
under section 40 of LUPO) whether bui ldin g plans are capab le of approval; that it is
wrong to adjudicate th e contravention levy argument without also taking into account
that the re is no plan approval for the bu ilding; that in you r opin ion the building plans
PL 1353/1 P r easo ns
15 July 201 5
Page 8 of 10
Page 380
cannot be approved; that a decision to isolate and separate the determination of the
sanction under section 40 from the consideration of the building plan under the
National Building Regulations and Building Standards Act is flawed and will amount
to impermissible, piecemeal decision-making; and so forth. In this regard I say only
the following for the moment.
a)
I agree that the Building Control Officer cannot simply re-issue the as-built
building plans and that due process will have to be followed in respect thereof.
b)
I have considered (but do not agree) with your statement that the building
plans are not capable of approval. I do not regard the potential problems to
which you have referred as insurmountable obstacles in the way of building
plan approval, but I need not speculate about this point. It may well be that in
time the building plans may be refused on the basis of disqualifying factors in
the said NBR Act to which no reference has been made until now.
c)
The important point is that even if the land use is regularised in terms of
section 40 by way of payment of a contravention levy it will not be the end of
the matter. Whatever my opinion may be of the prospects of success of
building plan applications, it may well happen that approval thereof is
subsequently refused (for reasons that none of us have contemplated until
now), in which event payment of the contravention levy will not cure the
"defects" and demolition of the structures may become an option. I also
cannot exclude the possibility that if building plan approval should be refused ,
that the refusal may be successfully challenged in court.
d)
Applications under LUPO and the said NBR Act are distinct and separate
processes. If I consider an application under LUPO, I do so from a townplanning perspective. It focuses, in particular, on what land uses will be
allowed on a particular piece of land and the decision is constrained by LUPO
to consider whether the proposed land use is desirable.
e)
Although the contravention levy provision is contained in chapter V of LUPO
and the basis of refusal set out in section 36 of LUPO expressly refers to
applications under chapters II or Ill of LUPO (not to chapter V), I believe that
the question whether a land use lacks desirability or not lies at the heart of the
decision whether to order rectification or not.
f)
By contrast the municipal decision-makers tasked with the administration of
the NBR Act are required to consider different criteria set out in the Act. One
cannot, for example, equate the desirability requirements of LUPO with the
requirements that must be considered in terms of the said NBR Act.
g)
If your argument were sound , it would imply that decision-makers would in
future not be able to approve rezoning applications if they have not yet
satisfied themselves that building plan approval would follow. To me it seems
as if I am required to put the cart before the horses. I am not the competent
authority within the municipal sphere concerning building plan decisions and I
am not prepared to ventu re into the premature speculative process which you
seem to believe should be introduced in con sidering the options under section
40.
PL 1353/1 P reasons
15 July 2015
Page 9 o f 10
Page 381
h)
I have noted your comments concerning the applicability of the Heritage
Resources Act and NEMA. If the approval of those authorities are required as
you say, it is my understanding that it will have to be obtained prior to lawful
occupation of the buildings.
19)
Section 40 of LUPO deals with rectification of contraventions and provides three
possible options of dealing with those . It requires a process to be followed , which
by itself is time-consuming. Given the previous procedural challenges , extra care
has been given to avoid further problems. All of this has taken up a considerable
period of time , but it is wrong to describe this as inaction.
20)
I can think of no good reason why "rectification" (that is demolition) of structures
should be required if the land use concerned does not lack desirability. A
departure is clearly not a sensible option and to my mind the only rational option
was regularisation by way of contravention levy. I took into account the interests,
needs and values of all interested and affected parties and considered , assessed
and evaluated the impact of the activities, including disadvantages and benefits. I
believe that my decision to instruct Brashville to apply for a contravention levy is
appropriate in the light of such consideration and assessment and stand by my
decision .
21)
The decision to opt for the payment of the contravention was also guided by the
opinion that a contravention levy is a means of punishment for the offender.
Authorities should actively discourage illegal construction and a contravention
levy would be an appropriate measure to achieve this goal.
22)
I will not determine the amount of the contravention levy that Brashville will be
required to pay. I do agree with you that in determination of the amount payable
the degree of culpability of the offender should be a relevant consideration.
Similarly it will be relevant that, to the extent that the earlier municipal approvals
were set aside on procedural grounds, Brashville was not to blame for those
errors. The Council will be asked to make the necessary determination in the
August 2015 cycle of meetings.
ombaard
DIRECTOR: PLANNING AND ECONOMIC DEVELOPMENT
PL 1353/1 P reasons
1 5 July 201 5
Page 10 of 10
Page 382
Charlene Williams
From:
Sent:
Ilze Couvaras
15 July 2015 12:12 PM
Charlene Williams
FW: COLMANT AND OTHERS/BRASHVILLE (PL 1353/1 P)
Brashville Lavande 1353, Ptn 1 response letter 20150715.pdf; DRINGEND: LA
LAVANDE (COLMANT EN ANDERE/ BRASVILE PROPERTIES)
To:
Subject:
Attachments:
Please print and file .
Ilze Couvaras
Head : Customer Interface & Administration
r
Planning & Economic Development
T: +27 21 808 8604 • F: +27 21 886 6899 • Email : ilze.couvaras@stellenbosch.gov.za
~1ein Street, Stellenbosch, 7600 • PO Box 17, Stellenbosch, 7599
www.stellenbosch.gov.za
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••
From: Dupre Lombaard
Sent: Wednesday, July 15, 2015 9 :58 AM
To: Justin Truter
Cc: Chanelle Williams; Sahndya Naidoo; Ilze Couvaras; Hedre Dednam
;ubject: RE: COLMANT AND OTHERS/BRASHVILLE (PL 1353/1 P)
Justin
Another letter in response to your latest, including a copy of t he last correspondence from Du Plessis Hofmeyr
Ma lan Inc as refer red in my letter.
Rega rds
Dupre Lombaard
Director: Planning and Economic Developm ent / Direkteur: Beplanning en Ekonomiese Ontwikkeli ng
Email: Dupre.Lombaard@stellenbosch.gov.za I Cell: + 27 82 895 63621 Tel: +27 21808 86761 Fax: +27 21886 68991 Website:
www.stellenbosch.g ov.za
Physical Address: Plein Street. Stellenbosch, 7600 I Postal Address: PO Box 17. Stellenbosch. 7599
1
Page 383
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From: Justin Truter [mailto :jtruter@werksmans.com]
Sent: 12 July 2015 21:27
To: Dupre Lombaard
Cc: Chanelle Williams; Sahndya Naidoo
Subject: COLMANT AND OTHERS/ BRASHVILLE
\A.'ERKSMf...NS RANKED TIER ·1 IN DISPUTE RESOLu-·,ot J
UY CHAMBERS CLOBAL 2015
This email and its attachments are private, c<mfidential, may be subject to leyal professional privilege and arc only for the
u•,1~ of the intended redpie,1t.
Dear Mr Lombaard
Please find our correspondence attached for your consideratio n and reply.
We look forward t o hearing from you.
Yours sincerely,
Justin Truter
...
~~
Director
T : +27 21 405 5232
WERKSMANS
•' I
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F: +27 11 535 8593
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jtruter@werksman s.com
Werksmans Attorneys
18th Floor, 1 Thibault Square, Cape Town, 8001
PO Box 1474, Cape Town, 8000, South Africa
T: +27 21 405 5100 I F: +27 11 535 8600 I www.werksmans.com
2
STELLENBOSCH
~t,..r ,.....,
Page 384
ST ELLENBO SC H • PNIEL • FRA NSC HHOEK
MUNICIPALITY • UMASIPALA • MUNISIPALITEIT
eo
••
oeo
¢!).
Planning and Economic Development
0
15 July 2015
Werksmans Attorneys
PO Box 1474
CAPETOWN
8000
Attn:
J Truter
E-mail:jtruter@werksmans.com
Dear Sir
PORTION 1 OF THE FARM 1353 FRANSCHHOEK (LA LAVANDE)
1)
Your letter of 13 July 2015 refers.
2)
I have already described the work situation in my Directorate in my most recent letter
to you . It explains why I do not intend dealing with each and every averment in your
aforesaid letter at this stage.
3)
As mentioned in my last letter the decision regarding the quantum of the offender's
contravention levy is one that the Council will be requested to take in the August
2015 cycle of meetings.
4)
My understanding is that (a) if I have not given reasons for my decision and (b) you
then requested reasons (c) which I afterwards failed to provide, the presumption to
which you refer comes into play. I have given you reasons for the decision in the
letter notifying you of my decision to instruct the offender to apply for a contravention
levy. I have since supplemented my reasons (letter by e-mail 15/07/2015).
5)
The contents of the Planning Report to which you refer is not a reflection of my
understanding of the factual situation. I have already written to you to explain how I
went about arriving at my decision and that, in the process, I have taken into
consideration the entire contents of all the municipal files (which include all your
letters).
6)
I met with Mr J P Du Plessis, Brashville's attorney on 15 January 2015 pursuant to
his e-mail to me of 7 January 2015.
a)
His email of the ?1h confirms that Craig Alexander, (now an ex municipal official)
informed him that "a decision" has already been taken and that a letter would be
forwarded to him after 15 January 2015. It is correct that I had already taken the
decision to instruct the offender to apply for a contravention levy before 7
January 201 5.
Tel: +27 2 1 80 8 8676 I Fax: +27 2 1 886 6899 I Email: dupre.lombaard@stellen b osch.gov.za
Physical Addre ss: Plein Street, Stellenbosch , 7600 I Postal Address: PO Box 17 , Stellen bosch , 7599
Website : www.s tellcnbo sch .gov.za
Page 385
b) Mr Du Plessis was of the opinion that, as the court cases had run their course
and I had already decided which option would apply, he could directly (and not
through the Municipality's attorneys) discuss with me the municipal requirements
that the offender had to comply with to give effect to the municipal instruction and
the procedure which I intended to follow in respect thereof.
c)
The purpose of the meeting was not to give him the opportunity (and I did not
give him the opportunity) to make representations or to discuss the merits of the
decision that I had already taken.
d) At the conclusion of the meeting no final request or statement was made by or on
behalf of the offender and no assurances or other statements were given or
made by me. No other official was in attendance.
7)
e)
I did not make notes of the discussion at the meeting or subsequently. It was not
necessary because I merely confirmed (a) that there was no prescribed forms to
be used for purposes of the application and there was no application fees
payable; (b) the offender only had to make and submit written motivated
representations concerning the quantum of the contravention levy; (c) that I
intended submitting comments received from one party to the other for comment;
(d) that once all the representations and comment thereon have been received , I
intended submitting the matter to the Council at the earliest opportunity for a
decision. I did not make a note of the time that the meeting began and ended,
but recall that it was a brief meeting.
f)
As I have already mentioned the Council will decide the quantum of the
contravention levy to be paid. I will not be the decision-maker, even though I
have the delegated authority to do so.
I attach a copy of a letter that Mr du Plessis sent to me by email on 8 July 2015. He
expressed concern that according to the Tattler both Werksmans and the Trust have
made representations, but that he had not been provided with copies for comments.
He further mentioned that, according to the Tattler, the Municipality would be
presumed not to have reasons for the decision if the Municipality failed to provide
such reasons by 18 July 2015.
a)
It was an oversight on our part not to make copies of your and the Trust's
representations available to Mr du Plessis for comment. I have since made a
bundle of documents containing the representations that I have received from
you and the Trust available to him for comment. I have not received his comment
yet, but when it is received, I will make a copy available to you.
b)
Mr Du Plessis also phoned me to set up an appointment for a further discussion
later this week, the sole aim of which (as I understood it) was to ensure that the
Municipality would not be late in giving its reasons for the decision. I provisionally
agreed to meet with him, but subsequently reconsidered and cancelled the
appointment, as I am confident that we are compliant with the legislative
prescripts.
c)
No additional representations and I or correspondence have been exchanged
between the Brashville, the Brashville town planner or attorney (on one side) and
the Municipality.
PL 1353/1 P respons e
15 July 20 15
Page 2 of 3
Page 386
8)
As soon as the Council's decision concerning the quantum of the contravention levy
is known, I will advise all parties concerned.
ombaard
PL 1353/ 1 P resp onse
15 July 2015
Page 3 of 3
Page 387
1'"'
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STELLENBOSCH
STE LL ENBOSCH• P NIEL • FR ANSCH HOEK
APPENDIX 14
REASONS FOR DECISION OF DETERMINATION FOR
CONTRAVENTION LEVY CONVEYED TO WERKSMANS
ATTORNEYS, DATED 15 JULY 2015
Confidential
Page : 14
STELLENBOSCH
Page 388
STEL L ENBOSCH • PN[EL • FRA NSC HI-I OEK
MUNI CIPALITY • UMAS IPALA • MUNIS IPALITE IT
Planning and Economic Development
15 July 2015
Werksmans Attorneys
PO Box 1474
CAPETOWN
8000
Attn:
J Truter
E-mail:jtruter@we rksmans.com
Dear Sir
REASONS FOR CONTRAVENTION LEVY DETERMINATION FOR PORTION 1 OF THE
FARM
1353 FRANSCHHOEK (LA LAVANDE): APPLICANT BRASHVILLE
1)
Your recent letters refer.
2)
Time constraints do not permit a reply to your letter of 13th July 2015 at this stage. I
do intend to reply to that letter shortly.
3)
Webber Wentzel in its letter to you of 17 October 2014 confirmed that the delay in
responding to your correspondence was as a result both of internal reorganisation
within -the municipal administration and the need to carefully consider the implications
of the court judgments. Since then key staff members have resigned (some of their
positions have not been filled after months) and the Directorate's capacity to deal with
the ever-increasing workload (inclu ding repeated dealing with administrative matters,
complaints and submissions) has deteriorated.
4)
Your criticism concerning the Municipality's alleged "inaction" in taking steps to
enforce compliance with conditions attached to th e Minister's zoning approval is
noted. We briefly deal further with this aspect below. For the moment it is sufficient to
' say th at the Directorate is taking its responsibilities seriously, but th at it has been
flooded by a multitude of appli cations, newly introduced leg islation , complaints about
contraventions and so forth. It is un able to deal as quickly with matters as it would like
to , but the officials are doing their level best under the circu mstances to attend to
matte rs as quickly and correctly as possible.
5)
The La Lavande matter is, as you are well aware, very complex . It has been coming
through three managem ent changes in the Directorate, making it difficult to ensure a
continuous consistent approach . Refer amongst oth ers to the recent Clarison's court
case, where the MEC was remin ded of similar responsibilities in the courts . Th ere are
no easy readily available answers to the many questions which I now have to
con sider and answer. Due to th e Directo rate's heavy workload , time and other
Te l: +27 21 808 8676 1 Fax: +27 2 l 886 6899 I Ema il: clu pre.lombaarchfl ste llenbosc h .gov.za
Physical .'\clclress: Plei n Stree t, Stellen bosch, 7600 I Postal Address: PO Box 17. Stellenbosch, 7599
Website: www. strllenbo scb .«ov.za
Page 389
practical constraints we do not attempt to provide a complete list of all issues raised
and considered or all the reasons for my decision.
6)
I believe that the legislation does not require from me to list all the reasons for my
decision; only to provide adequate reasons. I consider my reasons below as
adequate for present purposes, but specifically reserve the right to amplify the issues
and more fully motivate the reasons for my decision if necessary later. What I say
below is the best that I can do in the circumstances.
7)
I have noted your strong view on the merits of my decision to instruct Brashville to
apply for a contravention levy and your incorrect assumption that I have disregarded
your arguments in arriving at my decision. Our difference of opinion seems to stem
mainly (if not exclusively) from the weight to be attached to the relevant
considerations and not from what is in issue and what not. There is no factual basis
for the allegation that I have disregarded any arguments, although (as I will point out
below) I have rejected some of the arguments. For the reasons already given I am
presently unable to deal with each and every averment made in your letters, but I do
reject as completely wrong the suggestion that I largely ignored or disregarded your
detailed representations in arriving at my decision.
8)
My decision involved the weighing up of various factors and circumstances; the
consideration of a number of issues, an extensive range of documents (e.g. planning
and policy documents), the views and representations of various parties, the interests
of the various parties involved; and an application of the principles reflected in NEMA.
I am aware to the fact that the NEMA principles apply alongside all other appropriate
and relevant considerations and serve as a guideline by reference to which I had to
exercise my function. I also know that particular efforts must be made to conserve
valuable high-potential agricultural land for agricultural purposes. Furthermore that
among the main attractions South Africa has to offer as a tourist destination are its
aesthetic qualities and the scenic beauty of the environment, assets that must also
be considered.
9)
I re-iterate that I have studied the contents of all municipal files relating to this matter,
including amongst others the previous reports, building plan process, written
submissions made by the parties, court papers and judgements, the Report by the
Manager: Land Use Management and the Report by the Head of the Department of
Environmental Affairs and Development Planning submitted to Minister Bredell of 21
March 2011 (the Bredell Report). I have studied all letters received and considered
the submissions made therein.
10)
Again I am not attempting to provide a complete list of everything that I took into
consideration. What I do say is that in taking my decision I was fully aware of all the
issues raised and I properly and fully considered all relevant issues (both alone and
in their overall context). I have pertinently considered all the factors I considerations
which you mentioned, together with all the other relevant facts and circumstances,
both on their own and in relation to the other issues impacting upon my decision. I
maintain that I had due regard to all relevant facts and circumstances and reject any
statement to the contrary as untrue.
11)
In my view I was required , when considering the desirability or rather potential lack of
desirability of the proposed land use, to strike a balance between the protection of
ownership and the exercise of ownership rights on the one hand , and the obligations
of Brashville to the community on the other. I had regard to factors such as the
PL 1353/1 P reasons
15 July 2015
Page 2 of 10
Page 390
significance of the resource in question. I took into consideration all relevant
principles in the performance of my functions and exercise of my powers in terms of
LUPO. A balanced approach in terms of my understanding, amongst others involves
the consideration of all the relevant policies in the context of the unique
circumstances of the proposed land use and consideration of the weight to be given
to each policy. I had to exercise discretion and strike a balance between the many
competing interests in the ecological, economic and social fields by making a choice
from amongst various options in arriving at a decision. I have exercised an
independent discretion honestly and to the best of my ability, following appropriate
consultation with the officials of the Directorate and the Municipality who have
previous experience of the matter.
12)
What I understand you to be saying is that you do not regard the reasons for my
decision, as recorded in earlier correspondence, to be adequate and that you require
a more detailed response. I am not prepared to get embroiled in "litigation by
correspondence", but will attempt to adequately address what appear to be the
issues on which you have placed the strongest emphasis. As far as my reasons for
the decision are concerned, I confirm that the main reasons (which were not intended
as an exhaustive list of reasons) have been recorded in my earlier letter. I do not
intend to re-iterate what have previously been stated. What I have to say in this letter
is in addition to statements made in earlier correspondence.
13)
The first issue that I will deal with relates to the Minister's decision to refuse the
application for rezoning of the property and more particularly whether (as you allege)
the Minister was of the view that the proposed land use was undesirable and/ or will
have a detrimental effect on existing rights as contemplated in s36(1) of LUPO.
a)
As you mentioned the fundamental premise of my finding, as expressed in my
main reasons , is my view that the development does not lack desirability as
contemplated in section 36(1) of LUPO. I will return to this aspect further
below.
b)
You attempted to motivate why my decision to this effect would be unlawful.
Your arguments in this regard (as I understand it) in essence are that the
Minister had already found the land use to be undesirable or to have an
unacceptable effect on existing rights, when he refused the LUPO application.
c)
According to you his decision to refuse the application shows clearly that he
accepted that the zoning was undesirable. You then argue that it must be
accepted that he acted lawfully, that his decision must be accepted on the
face of it and within the statutory constraints of section 36 of LUPO, and that
his finding stands and has legal force and effect until set aside on review
(based on authorities such as Oudekraal).
d)
I understand you to be saying in essence that as the Minister has made a
particular finding , namely that the proposed land use must be refused
"because it lacks desirability", I am bound by that finding when considering the
options under section 40. I do not agree that this is so.
e)
You also alleged that internal comments and recommendations of provincial
officials are irrelevant considering the Minister ultimately rejected th ose
comments and recommendations.
PL 1353/1 P r easons
15 Ju ly 2015
Page 3 of 10
Page 391
14)
I have rejected some of your arguments concerning the Minister's decision. In this
regard I say only the following for the moment.
a)
The lack of desirability (if any) of the proposed land use is a relevant
consideration that I am required to take into consideration when acting in
terms of section 40. See further below.
b)
All zoning decisions, no matter how big, are within the competence of
municipalities. The Municipality previously found the proposed land use not to
be lacking in desirability. I was able to form a clear understanding from the
available documents of the basis for the earlier municipal decision
recommending the rezoning application for approval. I have nevertheless not
permitted myself to be guided by the earlier views expressed by the
Directorate (which I now head), as I was mindful that by allowing myself to be
guided in this way it could be said that I have not exercised my discretion at
all. I have independently assessed the merits of the earlier municipal
recommendation based on such knowledge and with due regard to the views
expressed by interested and affected parties, my own observations when I
conducted inspections of the property and surrounding area, and so forth.
c)
The provincial government is not entitled to impermissibly usurp the functions
of local government. In terms of my limited understanding of recent judgments
it is constitutionally impermissible for the provincial government to refuse
rezoning applications under LUPO. It would appear that the Minister, in taking
a zoning decision, intruded impermissibly on the autonomous sphere of
authority that the Co nstitution accords municipalities. He failed to recognise
the distinctiveness of the municipal sphere. I maintain (even if only for
academic purposes at the moment, as the courts have not yet found section
16 of LUPO to be unconstitutional and invalid) that insofar as it purports to
empower the provincial government to take municipal planning decisions,
section 16 is not compatible (but in fact manifestly at odds) with the
Con stitution's conferral upon municipalities of authority over municipal
planning.
d)
As no finding of constitutional invalidity of section 16(1) has yet been made I
have proceeded on the basis that the Minister's decision to refuse the zoning
application stands. Whether or not his refusal was indeed valid may or may
not be of any consequence. It is not necessary or competent for me to decide.
What his decision did achieve was to create a situation in terms of which the
Municipality was required to act in terms of section 40.
e)
In my mind the real question is whether I am bound by or should allow myself
to be influenced by the Minister's decision when exercising my discretion. My
concerns in this regard are manifold. The Minister failed to give any reasons
for his decision.
f)
I have noted you r speculative arguments about what the Minister indeed
found and so forth. I have not deduced from the relevant memorandum and
contemporaneous utterances of the officials (e.g. that a contravention levy
was appropriate, wh ich by necessary implication mean s that the structures
may be retained) the reasons for th e Minister's decision, although there are
strong indications that in essence he merely adopted the reasoning in the
departmental report.
PL 1353/1 P reasons
15 Ju ly 2015
Page 4 of 10
Page 392
15)
g)
It is not possible from the available documents to make a definitive finding as
to why the Minister refused the rezoning application. There is no express
finding that the rezoning application did not comply with section 36 of LUPO.
Even if one should assume for the moment that he made such a finding, it is
of no assistance to me. I do not know what the Minister's views are as he has
not expressed himself in clear terms. I am not prepared to work with
assumptions in this regard.
h)
But even if I was to allow myself to be guided by only his views, without
knowing how he arrived at those views, I would not be exercising my
discretion at all. In order to exercise an independent discretion (as I was
required to do) I must have been able to understand the basis for his decision
and to independently assess the merits thereof, based on such knowledge.
This was clearly not possible, since the Minister provided no motivation or
reasons for his decision.
i)
As previously recorded, the development I activity I land use is not
undesirable if measured in terms of section 36 of LUPO. This is supported by
the previous findings of the Directorate, the provincial government and all the
relevant facts. The property was first rezoned to Residential Zone V in 2006
and subsequently in 2009 by the relevant provincial minister. The area I
footprint used for development does not coincide with the area I footprint
which was rezoned, but portion of the property is zoned Residential Zone V, a
zoning which was generally used for the establishment of accommodation
facilities before the relevant amendment of the section 8 zoning scheme.
j)
As stated before, the rezo ning approvals granted in 2006 and 2009 indicate
amongst others that the development I changing use is desirable and does
not pose a significant risk to or negatively affect the cultural landscape. It
creates opportunities for accommodation of tourists and employment in line
with a developmental approach required of local government.
I have considered your statements to the effect that the development is contrary to all
the relevant guidelines, policies and provincial circular. In this regard I say only the
following for the moment.
a)
I had regard amongst others to the relevant provincial guidelines and policies,
amongst others the Spatial Development Framework/ PSDF and including the
Rural and Resort Development Guidelines and related circular.
b)
It is not only planning policies and documents that I had to take into account.
Other factors and unique circumstances had to be (and were) considered,
such as the constitutional requirement that the state must promote justifiable
social and economic development.
c)
The City of Cape Town 's Land Use Enforcement Policy only applies within
(and not outside) the City's area of jurisdiction. It does not apply in the
Stellenbosch municipal area (WC024). But even if it would have applied, it
would have required of me to form the opinion that the development will have
a major adverse impact on existing rights, on the general amenity of adjoining
properties or a material impact on the streetscape to trigger the rectification
option. That is not the opinion which I have formed. I believe that the opinions
PL 1353/1 P reasons
15 July 20 15
Page S of 10
Page 393
expressed concerning the alleged impact of the development are totally
exaggerated, especially if regard is had to the appearance of existing
developments on properties in the area.
d)
In terms of my reading of the PSOF it provides, as a structure plan, directives
and guidelines to help the decision-makers in the land use planning and
environmental field to consider whether or not proposed development would
be economically, socially and ecologically sustainable. It requires decisionmakers to consider which of the policies (plural) in the PSDF are relevant in
the unique circumstances and the weight that should be given to each
towards securing environmentally sustainable development and the use of
natural resources while promoting socio-economic development.
e)
None of the policy documents is binding in the sense that it has the force of
law. They are intended to guide, and not to be legally binding. They are in no
way decisive. Similarly the circular to which you refer was aimed at supporting
municipalities in the identification of suitable practical ways to deal with
applications for resort developments and guest houses. They may therefore
be departed from, where the relevant circumstances justify this.
f)
It is my opinion that the development is not contrary to any spatial
development framework. It might be a difference in interpretation of the
provincial spatial development framework, however the local spatial
development framework and strategic objectives of the municipality promote
economic development and diversification in agricultural areas subject thereto
that the development should fit with the natural landscape, which in this case
it does.
g)
16)
I have evaluated the land use in terms of the overarching sustainable
development principles as set out in the policy guidelines for development. I
considered the objects sought to be achieved by the policies and other
planning documents. I do not believe that the overall objectives of the relevant
policies will be impaired by regularising the existing land use in terms of a
contravention levy.
have considered your statements to the effect that it is recognised as sound
planning and environmental policy (wh ich exists apart from the alleged absence of
harm to "life or limb") to avoid constructing within the 1: 50 year flood line, that the
flood line study recommended that no construction should take place within the 1:50
year flood line, that Pieter Hartzenberg, municipal Deputy Director: Technical
Services on 5 January 2011 recommended that no development should take place
within the 1: 50 year flood line and so forth. In this regard I say only the following for
the moment.
a)
Large portion of the area that wou ld have been occupied by buildings if the
earlier ministerial rezoning approval would have been implemented, fell within
the 1: 50 year flood line. The fact that the Minister, after consideration of the
flood line study, approved construction within the 1: 50 year flood line,
confirms that policy is intended to guide and is in no way decisive. I am
therefore not alone in my decision to consider, but not be bound by the flood
line delineation. The decision-maker must have due regard to all relevant
facts and circumstances and exercise discretion.
PL 1353/1 P reasons
15 July 20 15
Page 6 of 10
Page 394
17)
b)
The area of the developed portion of the property (under consideration for
purposes of section 40(1) of LUPO) that is affected by the 1: 50 year flood
line, is substantially smaller than the area that would have been affected if the
earlier approval of the Minister would have been implemented. From this
perspective the current land use is more acceptable and desirable than the
previously approved development.
c)
I was unable to form a sufficiently clear understanding from the available
documents of the basis for the abovementioned recommendations made by
Mr Hartzenberg and in the study. If Mr Hartzenberg did not know where the
flood line was situated, it raises the question whether he could have applied
his mind.
d)
I have decided not to be guided by those views which were of no real
assistance to me. I have independently assessed the merits of the
recommendations based on the findings made in the flood line study and with
due regard to the views expressed by interested and affected parties, my own
observations when I conducted an inspection of the property and so forth. (I
pause here to say that it may well be that, when the building plan application
is considered in due course, the Building Control Officer and I or relevant
decision-maker may arrive at a different decision than mine. My decision on
the merits of those recommendations is not binding on them) .
e)
The site plan prepared by David Heilig & Abrahamse, professional land
surveyors, that accompanied the letter from OHM Attorneys of 10 November
2014 and to which reference was made in paragraph 11 of that letter, was
illuminating. It would appear from that plan (and I have no reason to doubt that
it is correct) that unit numbers 1, 2, 3, 4, 5, 6 and 7 clearly fall outside the 1:50
and 1: 100 year flood line areas.
f)
In terms of the survey only unit numbers 8, 9 and 10 fall inside the 1:50 and
1:100 year flood line areas. According to the study previously undertaken it
was found that the flood depth for the 1 and 50 year flood line was a shallow
0.09m and the average flood velocity a slow 0.88 mis. I have considered
whether the location of those units within the flood line areas may potentially
pose a threat to life or limb. Based on a consideration of the findings made in
the study, the land surveyor measurements and other available information, I
do not believe that the mere presence of three of the new units inside the
flood line areas will warrant refusal of any of the building plans. The effect of a
flood would be insignificant in terms of specialist reports in this regard .
The alleged visual impact of the structures has received prominence in the
submissions to date . I have carefully considered all inputs received in this regard ,
including your statements as well as what prof. Todeschini had to say relating to the
visual and cultural significance of the property, the impact of the structures on this
view shed and landscape, and amongst others relating to the applicability of the
National Heritage Resources Act and so forth . In this regard I say only the following
for the moment.
a)
Aesthetics and visual impact is a hugely subjective topic. In my view the
comments that I have received concerning the visual impact of the structures
mostly lack a sufficient measure of objectivity.
PL 1353/1 P reason s
15 July 2015
Page 7 of 10
Page 395
b)
When I considered the question whether the land use lacked desirability, I
considered amongst other things , the visual impact of the structures on the
view shed and landscape. In my view it does not have a major adverse impact
on existing rights or the general amenity of the adjoining properties. I believe
that, if anything, what have been constructed on nearby properties may have
such an impact.
c)
Before my appointment by Stellenbosch Municipality, the Directorate:
Planning and Economic Development, independently investigated the
proposed land use. After consideration of the objections lodged and an
assessment of the earlier land use application made a submission to the
Municipality's Planning and Development Services Committee during July
2010, concluding as follows:
"The proposal will not detract from the natural beauty, tranquillity, character of
its surrounding environment and the rural ambience of Franschhoek. It is the
opinion of the Planning and Development Directorate, that notwithstanding the
objections against this application, the proposed rezoning and amendment of
condition of approval is desirable and would in all probability not have a
detrimental effect on the aesthetic quality of surrounding properties, the
character of the area, will not adversely affect any person or the environment
if sufficient landscaping is implemented to screen the proposed structures
from the surrounding properties and roads. "
18)
d)
I have independently assessed the merits of the Directorate's above
concl usion with due regard to the views expressed by interested and affected
parties and my own observations from an inspection conducted of the
property. I fully associate myself with the above conclusion. In my opinion the
land use will not have a negative impact on the environment or on people's
environmental rights.
e)
I was required to consider the social, economic and environmental impact of
the proposed activity including its disadvantages and benefits. I had to
allocate a value to "sense of place". I could not consider it out of context with
the overall benefits of the development, such as tourism benefits. When
considering the sense of place, I amongst others had regard to the
developments that have been permitted to take place on properties in the
area. I do not consider the scale and nature of the structures as inappropriate
within the specific landscape, if regard is had to the character of the built
surrounding area.
f)
During my site visit I observed that tree-planting had taken place on the
Brashville property, adjacent to the private road giving access to the Brashville
property and a few others. It would appear that this was done to mitigate any
potential negative visual impact of the structures to an acceptable level. Be
mindful of the fact that other structures, e.g. agricultural buildings, could
replace the accommodation structures with no recourse whatsoever.
I have considered your statements to the effect that it is a pertinent consideration (in
order for me to come to a rational decision regarding the sanction to be imposed
under section 40 of LUPO) whether building plans are capable of approval; that it is
wrong to adjudicate the contravention levy argument without also taking into account
that there is no plan approval for the building; that in your opinion the building plans
PL 1353/1 P reasons
15 July 2015
Page 8 of 10
Page 396
cannot be approved; that a decision to isolate and separate the determination of the
sanction under section 40 from the consideration of the building plan under the
National Building Regulations and Building Standards Act is flawed and will amount
to impermissible, piecemeal decision-making; and so forth . In this regard I say only
the following for the moment.
a)
I agree that the Building Control Officer cannot simply re-issue the as-built
building plans and that due process will have to be followed in respect thereof.
b)
I have considered (but do not agree) with your statement that the bu ilding
plans are not capable of approval. I do not rega rd the potential problems to
which you have referred as insurmountable obstacles in the way of building
plan approval, but I need not speculate about this point. It may well be that in
time the building plans may be refused on the basis of disqualifying factors in
the said NBR Act to which no reference has been made until now.
c)
The important point is that even if the land use is regularised in terms of
section 40 by way of payment of a contravention levy it will not be the end of
the matter. Whatever my opinion may be of the prospects of success of
building plan applications, it may well happen that approval thereof is
subsequently refused (for reasons that none of us have contemplated until
now), in which event payment of the contravention levy will not cure the
"defects" and demolition of the structures may become an option. I also
cannot exclude the possibility that if building plan approval should be refused ,
that the refusal may be successfully challenged in court.
d)
Applications under LUPO and the said NBR Act are distinct and separate
processes. If I consider an application under LUPO, I do so from a townplanning perspective. It focuses, in particular, on what land uses will be
allowed on a particular piece of land and the decision is constrained by LUPO
to consider whether the proposed land use is desirable.
e)
Although the contravention levy provision is contained in chapter V of LUP O
and the basis of refusal set out in section 36 of LUPO expressly refers to
applications under chapters II or Ill of LUPO (not to chapter V), I believe that
the question whether a land use lacks desirability or not lies at the heart of the
decision whether to order rectification or not.
f)
By contrast the municipal decision-makers tasked with the administration of
th e NBR Act are required to consider different criteria set out in the Act. One
cannot, for example, equate the desirability requirements of LUPO with the
requirements that must be considered in terms of the sa id NBR Act.
g)
If your argument were sound, it would imply that decision-makers would in
future not be able to approve rezoning applications if they have not yet
satisfied themselves that building plan approval wou ld follow. To me it seems
as if I am required to put the cart before the horses. I am not the competent
authority within the municipal sphere concerning building plan decisions and I
am not prepared to venture into the premature speculative process which you
seem to believe should be introduced in considering the options under section
40.
PL 1353/1 P reasons
15 July 2015
Page 9 of 10
Page 397
h)
I have noted your comments concerning the applicability of the Heritage
Resources Act and NEMA. If the approval of those authorities are required as
you say, it is my understanding that it will have to be obtained prior to lawful
occupation of the buildings.
19)
Section 40 of LUPO deals with rectification of contraventions and provides three
possible options of dealing with those. It requires a process to be followed , which
by itself is time-consuming. Given the previous procedural challenges, extra care
has been given to avoid further problems. All of this has taken up a considerable
period of time, but it is wrong to describe this as inaction.
20)
I can think of no good reason why "rectification" (that is demolition) of structures
should be required if the land use concerned does not lack desirability. A
departure is clearly not a sensible option and to my mind the only rational option
was regularisation by way of contravention levy. I took into account the interests,
needs and values of all interested and affected parties and considered, assessed
and evaluated the impact of the activities, including disadvantages and benefits. I
believe that my decision to instruct Brashville to apply for a contravention levy is
appropriate in the light of such consideration and assessment and stand by my
decision.
21)
The decision to opt for the payment of the contravention was also guided by the
opinion that a contravention levy is a means of punishment for the offender.
Authorities should actively discourage illegal construction and a contravention
levy would be an appropriate measure to achieve this goal.
22)
I will not determine the amount of the contravention levy that Brashville will be
required to pay. I do agree with you that in determination of the amount payable
the degree of culpability of the offender should be a relevant consideration.
Similarly it will be relevant that, to the extent that the earlier municipal approvals
were set aside on procedural grounds, Brashville was not to blame for those
errors. The Council will be asked to make the necessary determination in the
August 2015 cycle of meetings.
ombaard
PL 1353/1 P reasons
15 July 20 15
Page 10 of 10
'""I~
fl'•••
'"'"'
••••
••
•
STELLENBOSCH
Page 398
STELLENBOSC H • P N I E L • FRA N SC H H O EK
M UNICIPALITY • U MASIPALA • MUNISIPALITEIT
APPENDIX 15
LETTER OF CONGER FROM OHM ATTORNEYS,
DATED 20 JANUARY 2016
Confidential
Page: 30
DHM
Page 399
du plessis • hofmeyr • malan
·-~-..-~~
la nd law specialists
STELLENBOSCH MUNICIPALITY
'PLJ,NNING AND DEVELOPMENT SERVICES
15 Januarie 2016
Die Direkteur: Beplanning en Ekonomiese Ontwikkeling
Stellenbosch Munisipaliteit
PER HAND
Geagte Mnr Lombaard
STRYDIGHEIDSHEFFING: GEDEELTE 1 VAN DIE PLAAS 1353 STELLENBOSCH ("LA
LAVAN DE")
1.
2.
Ek het verneem dot:
1.1.
die betrokke munisipale komitee 'n aanbeveling aan die
Burgemeesterskomitee gemaak het dot 'n bedrag van
R250 000,00 vasgestel word as strydigheidsheffing;
1.2.
die betrokke komitee se a an beveling gegrond was op 'n
aanbeveling wot deur die munisipale personeel gemaak is;
1.3.
die munisipale persone el se aanbeveling daarop gegrond was
dot die ontwikkeling wot uitgevoer is, nie ooreenste m met die
terrein-ontwikkelingsplan waarna die Minister destyds verwys het
in sy goedkeuring van die hersoneringsaansoek nie;
1.4.
die Burgemeesterskomitee die aangeleentheid terugverwys het
omdat bepaalde inligting ontbreek het en dot dit dus weer
voorgele moet word vir verdere oorweging.
My indruk, gegrond op die beperkte inligting beskikbaar, is dot die
betrokke komitee nie van volledige en akkurate inligting voorsien is nie.
U is verantwoordelik daarvoor om toe te sien dot die besluitnemer wel
volledig en akkuraat ingelig word en met die oog daarop bevestig ek
die volgende:
2.1.
Artikel 40 van die Ordonnansie op Grondgebruikbeplanning, 15
van 1985 ("die Ordonnansie"), waarkragtens die plaaslike
owerh eid gemagtig word om 'n strydigheidsheffing te bepaal
om die regstelling van strydighede te bewerkstellig, het 'n
beperkte toepassingsgebied .
2.2.
Artikel 40( 1) (a) van die Ordonnansie sit die omstandi ghede
uiteen waarin die bevoegdh eid ontstaan om 'n
strydigheidsheffing vas t e stel, naamlik "indien 'n gebou o f dee/
daarvan opgerig is in stryd met artike/ 39(2) (a )". lndien die
--·
-· ,,_ --
-
- -
-
DU PLESSIS HOFMEYR MALAN INC (Registration Number: 2011/134862/21)
ATIORNEYS •CONVEYANCERS• NOTARIES
DIRECTORS: JP du Plessis B luris LLB (UNISA), BPhil & MPhil Sustainability (US) •
CJ Hofmeyr BA LLB (US), LLM (HU-Berlin), LLM Public Law (UCT) • N Malan BA Industrial Psych (US), LLB (UNISA)
Unit No. 12, Paardevlei Specialist Medical Centre. Gardner Williams Avenue. De Beers Precinct, Somerset West. 7130 • PO BOX 70. Somerset Mall. 7137 • Tel: 021 851 0359 • Fax: 021 851 4852
Page 400
2 l 13 1a d sy
gebou nie in stryd met ortikel 39(2)(0) opgerig is nie, kan door
nie spra ke wees van 'n strydigheidsheffing nie.
3.
2.3.
Dit is gevolglik nodig om te bepaal of die betrokke geboue of
deel daarvan op La Lavande in stryd met artikel 39(2)(0)
opgerig is aangesien, slegs vir sover gese kan word d ot dit wel
die geval is, 'n strydigheidsheffing opgele kan word.
2.4.
Dieter sake gedeelte van artikel 39(2) (a) bepaal in wese dot
niemand die bepalings van 'n soneringskema of voorwaordes
kragtens die Ord onnansie opgele, mag oortree of versuim om
daoraan te voldoen nie, "behalwe in ooreenstemming met die
bedoeling van 'n plan vir 'n gebou soos goedgekeur en in die
mate dot sodanige plan uitgevoer is" . Met ander woorde, vir
sover dit in ooreenstemming is met d ie bedoeling van 'n plan vir
'n gebou soos goedgekeur en in die mate wot sodanige p lan
uitgevoer is, is die bouwerk nie in stryd met die bepalings van
ortikel 39(2)(a) nie en vind die bepalings van ortikel 40(1) nie
toepassing nie.
2.5.
Dit is gemene soak dot ons klient vir 16 doe bouwerk sonder
goedgekeurde bouplanne uitgevoer het, moor dat alle
bouwerk wot daarna uitgevoer is, gedoen is in ooreenstemming
met die bedoeling van goedgekeurde bouplanne. Gevolglik is
o ns kli ent slegs blaamwaardig vir die 16 doe wat bouwerk
sonder goedgekeurde bouplanne uitgevoer is.
'n Strydigheidsheffing is 'n vorm van stra ftoem eting en besluite
daaromtrent moet met die nodige aandagbesteding en met
inagneming van alle re levante feite gedoen word.
3.1.
Ons het reeds in vorige korrespondensie 'n uiteensetting verskaf
van die ongelukkige verloop van gebeure wat grootliks (indien
nie algeheel nie) toeskryfbaor is aan amptenary se knouwerk en
wat tot enorme regskostes vir ons klient se rekening aanleiding
gegee het.
3.2.
O ns beoog nie o m hierin weer 'n volledige uiteensetting van die
ter sake feite te verskaf nie, maar boekstaaf slegs die volgende
feite wot in aanmerking geneem moet word by oorweging van
'n geskikte "straf" .
3.3.
Die tersydestelling va n d ie vorige munisipale besluit rakende die
strydigheidsheffing, het uitsluitlik daorop berus dot (a) die
provinsiale gesag onbehoorlik aan die munisipale gesag wou
voorskryf hoe die munisipale besluitnemer diskresie ingevolge
ortikel 40 moes uitoefen; en (b) die munisipale besluitnemer nie
behoorlik 'n ona fhanklike diskresie uitgeoefen het nie. Met
ander woorde, die tersydestelling van daordie munisipale besluit
is nie toeskryfbaor aan enige op trede aan die kant van ons
klient nie en hydra geen bloom daarvoor nie.
du plessis • hofmeyr , molon
Page 401
3 l 13 1adsy
3.4.
Die daaropvolgende tersydestelling van die munisipale bouplan
goedkeuring is die direkte gevolg van die tersydestelling van die
munisipale besluit rakende die strydigheidsheffing . Weereens is
d ie tersydestelling van die goedkeuring van die betrokke
bouplanne, nie toeskryfbaar aan enige optrede aan die kant
van ons klient nie en hydra geen blaam daarvoor nie.
3.5.
Die resultaat waarmee ons ta ns sit (n aamlik onwettige geboue).
is direk en uitsluitlik toeskryfbaar aan die owerhede se optrede,
waarvoor ons klient redelikerwys nie strafbaar is nie.
4.
Kortom, die kritiese vraag by oorweging daarvan of 'n strydigheidsheffing betaalbaar is al don nie, is nie of die b ouwerk wat uitgevoer is
verskil van dit wot aongedui is op die terreinontwikkeli ngsplan waarna
die Minister verwys het nie, maar of gese kon word dot bouwerk sonder
goedgekeurde bouplonne uitgevoer is of, tot die mate wot daar wel
goedgekeurde bouplonne bestao n het, of die bouwerk nie in
ooreenst emming met die bedoeling va n daardie planne soos
goedgekeur, uitgevoer is nie.
5.
Ek sol bly wees indien u sol toesien dot wan neer die aangeleentheid
weer voor die munisipole besluitnemer geplaas word, laasgenoemde
volledig ingelig word rokende dieter sake feite.
Die uwe
DU PLESSIS HOFMEYR MALAN ING.
PER:
J P DU PLESSIS
du plessis • hofmeyr • matan
Page 402
18
AGENDA
PLANNING AND ECONOMIC DEVELOPMENT
COMMITTEE MEETING
2016-04-05
[Chairperson: Councillor JP Serdyn (Ms)]
[Portfolio: Planning and Land Use Management, Building Control, Air
Pollution, Spatial Planning/Environmental Heritage And Cultural Management]
5.2
DELEGATED MATTERS
5.2.1
APPLICATION FOR A WAIVER FROM THE BY-LAW RELATING TO THE
CONTROL OF BOUNDARY WALLS AND FENCES: ERF 1443,
FRANSCHHOEK
File number
:
1443 FH
Compiled by
:
Senior Town Planner (LS Ramakuwela)
Report by
:
Director: Planning and Economic Development
Delegated Authority :
Planning, Economic and Community Development
Committee
Strategic intent of item
Preferred investment destination
X
Greenest municipality
Safest valley
X
Dignified Living
X
Good Governance
______________________________________________________________
1.
PURPOSE OF REPORT
To enable the Committee to make an informed decision on the
proposed application to deviate from the By-law relating to the control
of boundary walls and fences. The application is recommended for
approval.
2.
BACKGROUND
There is no relevant background information that has a bearing on the
current application.
3.
APPLICATION FOR CONSIDERATION
Application is made for a waiver from the by-law relating to the control
of boundary walls and fences, in order to deviate from the condition
that 50% of the height of the street boundary wall on residential zoned
properties must consists of open decorative work, to construct a 9.5m
long solid boundary wall with a height of 1.8m on the street boundary,
bordering Paris Crescent on Erf 1443, Franschhoek. See APPENDIX 3
for the proposed boundary wall.
Page 403
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AGENDA
COMMITTEE MEETING
2016-04-05
4.
PROPERTY INFORMATION
Farm number
ERF 1443, Franschhoek
Location
Zoning/Zoning Scheme
The subject property is located in Franschhoek on Paris
Crescent. (APPENDIX 2)
Single Residential Zone /Franschhoek Zoning Scheme
Current Land Use
Property size
Residential
351 m²
Applicant
Patrick Douglas Lambson
NHRA Applicable
Title deed conditions
No
No
5.
DISCUSSION
5.1
Legal Requirements
Applicable laws and ordinances:


By-law Relating to the Control of Boundary Walls and Fences (30
October 2009).
Franschhoek Zoning Scheme
In the Single Residential zoning the following uses are permitted:
Normal
Development
 Dwelling house
5.2
Special Development


Educational building
Place of public worship
Public participation
No advertising to the surrounding property owners was deemed
necessary in accordance with Council’s Policy on Public Participation
for Land Use Management as the applicant submitted the letters of no
objection together with the application. An objection was received from
the Municipal Spatial, Heritage and Environment Section on the
proposal. However, the objecting department did not provide reasons
for not supporting the proposed boundary wall (APPENDIX 4).
5.3
Planning Assessment
All building plans submitted to Council for boundary walls must comply
with the promulgated By-law, unless a deviation from the By-law is
approved by Council.
The applicant proposes to build a boundary wall that does not comply
with the 50% transparency and 50% solid requirements of the By-law.
Page 404
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AGENDA
COMMITTEE MEETING
2016-04-05
The portion that is applied for covers a length of ±9,5m that will consist
of a 1,8m high solid boundary wall that forms part of the entrance gate
of the property.
The proposal is therefore not in line with section 5 of the subject
By-law, which stipulates the following;
“5. For residential zoned properties the height of any wall or fence
(including the entrance structure and columns) shall be regulated as
follows;
(a) on a street boundary: - 2.1m high, on condition that 50% of the
height of the wall or fence, including gates on residential zoned
properties must consists of open decorative work to create
transparency. The solid construction shall not interfere with sight lines
of vehicles entering or leaving the property, or passing traffic.”
The property is currently used for residential purposes without a
boundary wall. On the 19 February 2016, approval was granted by the
delegated authority for a departure to relax the street building line from
4.6m to 1.5m in order to construct a swimming pool
(APPENDIX 5). The applicant is therefore requesting approval from
Council to build a solid wall in order to screen the newly approved
swimming pool and garden for privacy reasons. The length of the
property on the street side is 13m, the proposed gate space will be
3.5m in length, and therefore the length of the wall will be only 9.5m.
Section 13 of the subject by-law allows Council to consider deviations
and stipulates the following;
“13. Council may grant a waiver to any of the provisions of this By-law
if in Council’s opinion; the specific site topographical conditions are
such that the granting of a waiver will not result in the erection of a wall
or fence that will materially detract from the character of the area. In
granting such a waiver, Council shall have due regard to the built form
that may result if abutting neighbours request similar waivers as well as
the impact such waiver may have on traffic safety (both pedestrian and
vehicular).”
No sight distances or the aesthetic appearance of the property or area
will be negatively affected by the proposal, as the property apposite the
subject property already has a solid wall of approximately 1.5m in
height. However, it must be noted that the two adjacent properties do
not have a boundary wall.
5.4
Concluding Planning Comments
The proposed boundary wall will be in line with the character of the
existing residential area and is setback off the street. For this reason
the proposed boundary wall should have no impact on the existing
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AGENDA
COMMITTEE MEETING
2016-04-05
streetscape. The height of the proposed boundary wall is in line with
the By-Law as it will not exceed 2.1m and has taken the cognizance of
the existing character of the street as similar wall exist on the opposite
property. The proposed deviation from the by-law is therefore
supported from a planning point of view.
RECOMMENDED
that approval be granted in terms of Section 13 of the By Law Relating to
Control of Boundary Walls and Fences, in order to deviate from Section 5 of
the by-law applicable to Residential Zoned properties, to construct a 1.8m high
solid wall on the street boundary for Erf 1443, Franschhoek, Paris Crescent,
as indicated on Drawing No: 301, dated September 2015, drawn by Oscar
Schmidt Architecture, attached as APPENDIX 3.
APPENDIXES
Appendix 1 : Conditions of Approval
Appendix 2 : Locality Map
Appendix 3 : Boundary Wall Plan
Appendix 4 : Comments from Spatial, Heritage and Environment
Appendix 5 : Departure Approval
Appendix 6 : Street View Photos of the Subject Property.
(DIRECTOR: PLANNING AND ECONOMIC
DEVELOPMENT TO ACTION)
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AGENDA
COMMITTEE MEETING
2016-04-05
APPENDIX 1
FILE NO: 1443, FRANSCHHOEK
In this approval document:
“Council” means the Stellenbosch Municipality
“the owner” means the registered owner of the property.
“the site” means ERF 1443, FRANSCHHOEK
EXTENT OF APPROVAL:
Waiver in terms of Section 13 of the By Law Relating to
Control of Boundary Walls and Fences, in order to deviate
from Section 5 of the by-law applicable to Residential Zoned
properties, to construct a 1.8m high solid wall on the street
boundary for Erf 1443, Franschhoek, Paris Crescent, as
indicated on Drawing No: 301, dated September 2015, drawn
by Oscar Schmidt Architecture t, attached as APPENDIX 3.
VALIDITY OF APPROVAL:
The above mentioned approval is valid for 1 year from the
date of final notification.
CONDITIONS IMPOSED THAT ARE APPLICABLE IN TERMS OF SECTION 42(1) OF
THE ORDINANCE 15 OF 1985 THAT:
1.
The approval applies only to the application for the waiver from the subject
By-law in question and shall not be construed as authority to depart from any
other legal prescription or requirements from council.
2.
Building plans must be submitted to this municipality for approval, prior to any
building work commencing on site.
3.
The building plans may not differ substantially from this approval.
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AGENDA
COMMITTEE MEETING
2016-04-05
5.2.2
DIRECTORATE PLANNING AND ECONOMIC DEVELOPMENT: MONTHLY
REPORT: FEBRUARY 2016
File number:
8/1/4/2/5
Compiled by:
Head: Customer interface and Administration
Report by:
Director: Planning & Economic Development
Delegated Authority:
Planning, Economic and Community Development
Committee
Strategic intent of item
Preferred investment destination
X
Greenest municipality
X
Safest valley
X
Dignified Living
X
Good Governance
X
______________________________________________________________
1.
PURPOSE OF REPORT
To provide feedback on the activities of the Directorate Planning and
Economic Development for the month February 2016.
2.
BACKGROUND
It is incumbent upon Directorates to report on the activities within their
respective Directorates on a monthly basis.
3.
DISCUSSION
The report of each Department within the Directorate Planning and
Economic Development is submitted as outlined in the Appendices
below:
Appendix 1
Community Development
Appendix 2
Building Development Management
Appendix 3
Customer Interface and Administration
Appendix 4
Spatial Planning, Heritage and Environment
Appendix 5
Land Use Management
Appendix 6
Local Economic Development
Page 424
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AGENDA
COMMITTEE MEETING
2016-04-05
4.
LEGAL IMPLICATION
None required
5.
FINANCIAL IMPLICATION
None required
6.
COMMENTS FROM OTHER RELEVANT DEPARTMENTS
None required
RECOMMENDED
that the report of the Directorate Planning and Economic Development for the
month of February 2016, be noted.
(DIRECTOR: PLANNING AND ECONOMIC
DEVELOPMENT TO ACTION)
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Agenda: Planning 2016-04-05 (Part 2)

Transcription

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