Belinco (Pty) Ltd v Bellville Municipality and Another

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson JA, Holmes JA, Jansen JA, Trollip JA and Muller AJA
• Judgment Date: 03 September 1970
• Citation: 1970 (4) SA 589 (A)
• Hearing Date: 20 August 1970
• Court: Appellate Division

D Holmes, J.A.:

The appellant company owns certain land within the Municipality of Bellville. Wishing to add to the business premises thereon by the erection of a new shop, it lodged the required building E plans in 1966. It is common cause that these comply with the building regulations. However, the Municipality notified the appellant that approval of the plans would be granted only if the appellant undertook to give immediate transfer to it, without compensation, of a strip of land at the back of the proposed shop. This strip of land, 37' 6?142? wide and 3,750 square feet in area, was said to be required for the F purposes of a street to be built in the future.

In making this stipulation, the Municipality relied on clause 8 (A) (i) of its Town Planning Scheme, which is awaiting approval. It is 1 of 1965, and the clause reads -

'8. Density control:

The following regulations apply to the zone as indicated in table B and G on the map.

(A)

Central business area:

(i)

Street boundary:

No building may be erected in this zone unless that portion of the site falling within the street boundaries shown on the map is made available to the Council for street purposes free of charge . . .'

H 'Map' is defined in clause 1 of the scheme to mean the map or plan indicating the town-planning provisions in force. 'Building' includes any erection whatsoever; and 'erection' includes the alteration of or addition to a building.

It is common cause that, according to the Municipality's town-planning scheme, the appellant's land falls within the specified zone; and that the relevant strip of land, at the back of the proposed shop, falls within the depicted boundaries of a proposed street in that zone, as

Holmes JA

shown on the map. In other words, the strip of land is ear-marked for the purposes of a future street.

The appellant had no objection to transferring the land in question A immediately, subject to receiving compensation for its value; but the Municipality persisted in its claim to the land free of charge, as a condition of its passing the building plans.

The appellant accordingly applied to the Cape Provincial Division for an order (a) declaring clause 8 (A) (i) of the Municipality's town planning scheme to be ultra vires of the Townships Ordinance, 33 of 1934 (C), as B amended; and (b) directing the Municipality to pass the plans. There was also an alternative prayer that the Municipality be directed to consider the question of passing the appellant's building plans without regard to irrelevant considerations. The application was dismissed by a single Judge. An appeal to the Full Bench failed. Leave to appeal was granted by this Court.

C The Townships Ordinance, 33 of 1934 (C) as amended, deals in the main with -

(1)

Townships and sub-divided estates, which are defined as

'any land sub-divided or laid out . . . for residential, industrial, occupational or similar purposes'.

(Minor sub-divisions are excluded).

(2)

D Town-planning schemes. These are dealt with in Chap. 4, comprising secs. 28-57. (It is common cause that the provisions of this Chapter have been applied to the respondent local authority in terms of sec. 30).

E The present case does not concern a township or sub-divided estate. It concerns a town-planning scheme; and the relevant provisions of the Ordinance are to be found in Chap. 4 thereof.

A local authority which prepares a town-planning scheme must submit it to the Administrator for approval. (Sec. 36 (1)). As to the general purpose of a scheme, sec. 35 (1) provides -

'Every town-planning scheme shall have for its general purpose a F co-ordinated and harmonious development of the area of the local authority to which it relates (including where necessary the reconstruction of any part thereof which has already been sub-divided and built upon) in such a way as will most effectively tend to promote health, safety, order, amenity, convenience and general welfare as well as efficiency and economy in the process of such development.'

G The Administrator is empowered to prescribe provisions for a scheme. Sec. 35 bis (1) reads as follows -

'Nothwithstanding any other provisions of this Chapter, the Administrator may on application, by or after reference to a local authority, prescribe provisions for a scheme to be prepared by such local authority or for such local authority's scheme in the course of preparation or awaiting approval.'

In the present case the Administrator, purporting to act under the foregoing section, did prescribe a provision for the respondent H Municipality's scheme, namely, clause 8 (A) (i) aforesaid. The crucial question in this case is whether that clause of the scheme is intra vires of the Administrator's powers under the Ordinance.

Pending final approval under sec. 41 (2), a local authority's scheme, including any provisions prescribed by the Administrator, is described as a scheme in the course of preparation or awaiting approval. (Secs. 35 bis (2) and 57 (1)). In the present case the Municipality's scheme is awaiting approval. Consequently, contrary to the contention on behalf

Holmes JA

of the respondents, clause 8 (A) (i) thereof is not presently operative, save to the extent provided for in sec. 57 (2) of the Ordinance, to which I shall refer later.

Once a scheme has been approved and proclaimed, various sections of the A Ordinance make provision for the acquisition of land required for it. Thus, sec. 42 (2) empowers the local authority to acquire by agreement or expropriation any land if it is satisfied that the acquisition is necessary for or ancillary to the proper carrying out of the scheme.

B Sec. 46 (c) (and, I repeat, this is only after a scheme has been approved) empowers a local authority to call upon the owner of land affected by the scheme to effect any transfer which may be rendered necessary.

Sec. 48 (1) provides for compensation to be paid to any person having an C interest in any land taken for the purposes of a scheme. The section also provides for compensation to be paid to any person having an interest in land injuriously affected by the coming into operation of any provision contained in a scheme or by the execution of any work under a scheme. (The right to claim compensation is expressed in sec. 49 to be subject to certain exceptions; but these are not relevant to the present enquiry).

D There follow several sections dealing with the assessment of the compensation. And sec. 56 (1) provides for the source of the necessary moneys.

'Any expenditure incurred by a local authority for the purpose of preparing a scheme or giving effect to the requirements thereof may be met from its revenue or a loan or partly from revenue and partly from loan.'

E This obviously includes expenditure...