Berg River Municipality v Zelpy 2065 (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Rogers J
• Judgment Date: 08 April 2013
• Citation: 2013 (4) SA 154 (WCC)
• Docket Number: 7715/12
• Hearing Date: 28 February 2013
• Counsel: J Newdigate SC ( with EF van Huyssteen) for the applicant. A Erasmus for the respondent.
• Court: Western Cape High Court, Cape Town

Rogers J:

Introduction G

[1] The respondent company (Zelpy) is the owner of property within the area of jurisdiction of the applicant municipality (the Municipality). The Municipality seeks a final interdict preventing Zelpy from occupying or using certain buildings on the property constructed in violation of s 4 of the National Building Regulations and Building Standards Act 103 of 1977 H (the Act) until an occupancy certificate has been issued by the Municipality in terms of s 14(1) of the Act.

[2] Zelpy opposes the interdict application and has filed a counter-application in which it seeks an order directing the Municipality to take a decision on Zelpy's request for permission to use the buildings in I question in terms of s 14(1A), alternatively reviewing and setting aside the Municipality's refusal of such permission.

[3] The property in question is the Remainder of Portion 5 of the farm Rietfontein, about 4 km south of Piketberg. As at 1986 there existed on the property a large Victorian house known as Dunn's Castle, and three J

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A chalets (converted stables). The owner ran the property as a commercial guest facility. Zelpy acquired the property in 2003. It has continued to run the business under the name Dunn's Castle Guest House. The property is just under 35 ha in extent. Most of the property is covered with indigenous vegetation. The property has apparently never been B farmed.

[4] Early in 2004 Zelpy began construction of a double-storey conference centre and four freestanding double-storey residential structures, each structure containing four self-catering apartments. Zelpy did not obtain approval of building plans as required by the Act, though it claims C to have received oral permission from a municipal engineer whose name Zelpy's deponent is unable to recall, and to have been brought under the impression that plans did not need to be approved. [1] The unlawful building activity was discovered by the Municipality's building inspector in March 2004. At this stage the work was only at the foundation phase. The inspector also ascertained that the unapproved building plans would D not be able to be approved unless the property were rezoned. Pursuant to the Land Use Planning Ordinance 15 of 1985 (LUPO) the property was at that time zoned Agricultural Zone 1. The Municipality would not be able to approve the building plans, unless the property were rezoned Resort Zone 1.

E [5] Zelpy ignored a notice to cease work. In May 2004 the Municipality sought an interdict in the Piketberg Magistrates' Court (the PMC), which Zelpy opposed. On 14 May 2004 the PMC made an order by agreement that Zelpy could continue building, provided that by 10 June 2004 it supplied evidence to the Municipality that it had lodged a rezoning F application and provided further that if the rezoning were not granted the Municipality could apply for demolition of the unlawful structures. In other words, Zelpy was permitted to continue building at its own risk.

[6] Zelpy failed to lodge a rezoning application by the specified date. In July 2004 the Municipality renewed its application for demolition. By G this stage the construction of the unlawful buildings was, according to Zelpy, complete. Zelpy opposed the demolition application, alleging that it had instructed a firm of land surveyors to prepare a rezoning application. On 26 July 2004 the PMC ordered that the building work could continue (though it was apparently already complete), but that the Municipality could apply for demolition if the rezoning application H failed.

[7] In September 2004 Zelpy lodged its rezoning application in which it sought to rezone the areas covered by the new buildings as Resort Zone 1, the rest of the farm to remain Agricultural Zone 1. This application, I though lodged with the Municipality, was ultimately required to be

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adjudicated by the Department of Environmental Affairs and Development A Planning in the Western Cape Provincial Government (the DEA). The DEA advised Zelpy that it would need also to make application for approval in terms of s 24G of the National Environmental Management Act 107 of 1998. These processes occupied several years. On 3 October 2007 the DEA informed Zelpy that an environmental impact assessment B would have to be undertaken. This assessment was submitted in mid-2008. On 28 August 2009 the DEA refused the rezoning application. Upon request the DEA furnished its reasons on 7 December 2009. It appears from these reasons that the DEA's approach was not to permit a rezoning of this kind, unless the agricultural property in question possessed a unique recreational resource which set it apart from C surrounding agricultural properties. Zelpy's property, in the DEA's view, did not qualify. The new structures also exceeded the height and density guidelines for Resort Zone 1. Accordingly, only the structures which existed as at 1986 would be permitted to function as a resort.

[8] Zelpy lodged an appeal to the relevant provincial Minister. On D 8 February 2011 the Minister dismissed the appeal. Zelpy did not thereafter take any steps to have the rezoning decision brought under judicial review.

[9] In refusing the rezoning application on 28 August 2009, the DEA had E requested the Municipality to determine an appropriate zoning for the areas occupied by the buildings which had existed as at 1986. [2] On 17 November 2009 the Municipality determined the zoning of the said areas to be Resort Zone 1, the rest of the property remaining Agricultural Zone 1.

[10] In the meanwhile, in June 2007 Zelpy commenced further unlawful F building work in the form of another double-storey structure containing four apartments. (I note that the proposed use of this additional building as part of the guesthouse was not covered by the rezoning application which was still pending at that time.) Again, Zelpy claims that its builder was told by a municipal official that Zelpy could build at its own risk. On G 13 June 2007 the Municipality's building inspector gave an oral instruction for the unlawful work to cease. This was followed up by a letter from the Municipality's attorneys. Zelpy continued construction despite these demands, though again it relies on discussions with other municipal officials. There was considerable correspondence between the attorneys. H On 30 August 2007 the Municipality's attorneys informed Zelpy's attorneys that the new building work was unlawful and should cease. On 13 September 2007 Zelpy's attorneys advised the Municipality's attorneys that the new structure was complete and that Zelpy merely wanted permission to put in windows and doors. The Municipality refused such permission. On 9 October 2007 the Municipality's attorneys rejected a I suggestion for a site inspection, saying that an inspection was unnecessary and that Zelpy simply ignored all instructions.

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A [11] For reasons which do not appear from the papers, the Municipality then seems to have allowed the matter to be held in abeyance for many months, perhaps in the expectation that the PMC would not order demolition while there was a pending rezoning application. The Municipality only took up the cudgels again late in 2011, some months after the B rejection of Zelpy's appeal against the dismissal of its rezoning application. In response to the Municipality's intimation that it would seek a demolition order, Zelpy in November 2011 requested further discussions, an invitation which the Municipality rejected as pointless. On 6 February 2012 Zelpy's attorneys informed the Municipality's attorneys that Zelpy intended to lodge a new rezoning application in which it C would seek to extend the Resort Zone 1 zoning (as determined by the Municipality on 17 November 2009) so as to include the area covered by the new structures. On 2 March 2012 the Municipality's attorneys replied that the Municipality nevertheless intended to proceed with court action. On 20 March 2012 Zelpy lodged its new rezoning application.

D [12] The Municipality launched the current interdict application on 20 April 2012. Because a new rezoning application had been lodged, the Municipality decided not to seek an immediate demolition order (which is what it originally had in mind), but an interdict to prevent the use or occupation of the new structures, with a right to apply on the same E papers for demolition if the new rezoning application failed. (The new rezoning application has to date not been decided.)

[13] The events giving rise to Zelpy's counter-application took place after the launch of the interdict application. On 1 June 2012 Zelpy applied to the Municipality in terms of s 14(1A) of the Act for F permission to occupy the new structures prior to the issue of an occupancy certificate, such permission to endure pending a decision on the new rezoning application. On 12 June 2012 the Municipality advised Zelpy that its application could not be granted because s 14(1)(a) stated that an occupancy certificate could only be issued in respect of buildings constructed in accordance with approved plans. The Municipality G proceeded to quote what it regarded as the relevant sections applicable to Zelpy's application, namely s 14(1)(a) and s 7(1)(a). The Municipality concluded by stating that because no approved building plans existed for the new structures, Zelpy's request could not be granted. The Municipality added that plans could not lawfully be approved since they H would be in conflict with the zoning of the property.

[14] This letter was understood by Zelpy's attorneys as meaning that because s 14(1)(a) referred to a building erected in accordance with approval granted under the Act, s 14(1A) was similarly limited. Zelpy's attorneys in a letter dated 12 June 2012 argued that this interpretation of I s 14(1A) was wrong and that because of...