Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Yacoob J and Brand AJ
• Judgment Date: 04 November 2010
• Citation: 2011 (4) SA 42 (CC)
• Docket Number: CCT 18/2010
• Hearing Date: 05 August 2010
• Counsel: DF Irish SC (with IC Brembridge) for the applicants. HP Viljoen SC (with JC Marais) for the first respondent. G Budlender SC (with K Pillay) for the second respondent.
• Court: Constitutional Court

Brand AJ (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and D Yacoob J concurring):

[1] This is an application for leave to appeal against the judgment of the Supreme Court of Appeal. [1] It is the culmination of a legal wrangle between the parties that dates back close on five years. It has its origin in a decision by the Municipality of the City of Cape Town (the City) to E approve a set of plans for the building of a house on the property of the first respondent, Ms Harrison, on the corner of Geneva Drive and Blinkwater Road, Camps Bay. The City is cited as the second respondent. The first applicant, the Camps Bay Ratepayers' and Residents' Association, is a voluntary association. Part of its objects is to safeguard F the rights and interests of the residents of the rather affluent suburbs of Cape Town on the Atlantic Seaboard, including Camps Bay. The second applicant, PS Booksellers (Pty) Ltd, is also the owner of property on Blinkwater Road, Camps Bay, which is situated more or less diagonally behind the property of Ms Harrison. Though the property of the second applicant is described as its principal place of business, it is in G reality the family home of its director, Mr Anthony Herman, who is a partner in the firm of attorneys who represented both applicants throughout the litigation history between the parties, to which I now turn.

Litigation history H

[2] A convenient starting point for the chronicle is when Ms Harrison acquired her property in September 2004. At that time the only building on the property was a modestly styled single-storey cottage. But, soon after taking occupation, Ms Harrison applied to the City for the approval of a set of plans which would authorise the construction on her property I of a three-storey house. These plans were approved by the City on

Brand AJ (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A 24 February 2005 and became known throughout the proceedings as 'the original plans' or 'the February 2005 plans'. Once Ms Harrison had obtained this approval she caused the cottage on the property to be demolished, and the construction of the new building to commence on 17 March 2005. Shortly thereafter, she advertised the property, with the improvement of the new three-storey house, for resale at a price of B R12,75 million.

[3] When the building activities became apparent, the applicants viewed the plans at the City's offices and made their objections to the proposed building known to both Ms Harrison and the City. As a result of these C objections, Ms Harrison submitted substantially revised plans. The revised plans, described in town planning parlance as 'rider plans', were approved by the City on 8 September 2005, 'the September 2005 plans'. Despite the approval, the applicants were not satisfied that the revision of the plans met their concerns. In November 2005 they thus instituted an application in the Western Cape High Court, Cape Town (High D Court), for an order interdicting Ms Harrison from proceeding with the building operations in accordance with the September 2005 plans, and from selling or otherwise alienating the property, pending the proceedings specified in the order. The proceedings specified an internal appeal to be launched by the applicants, under s 62 of the Local Government: E Municipal Systems Act [2] (Systems Act), against the approval of the September 2005 plans, and a proposed application for the demolition of any construction which contravened the restrictions in the title deed conditions of the property.

[4] In spite of opposition by the respondents, Meer J granted an interdict F in the terms sought. Her judgment has been reported as PS Booksellers (Pty) Ltd and Another v Harrison and Others. [3] As appears from the reported judgment, the applicants' objections against the September 2005 plans — which thereafter became a recurring theme throughout the various proceedings that were to follow — were essentially twofold. Their first objection [4] was that the building authorised by the plans would G contravene the restriction imposed by the then Administrator of the Cape, [5] as is reflected in clause D(d) of the title deed conditions of the property. It provides:

'That no building or structure or any portion thereof, except boundary walls and fences, shall be erected nearer than 3,15 metres to the street H line which forms a boundary of this erf.'

[5] The applicants' second objection [6] was that the building as reflected in the approved plans relies on the manipulation of natural ground levels by means of structures erected in contravention of the restriction, in

Brand AJ (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

order to evade the prohibition contained in s 98(2) of the Zoning A Scheme Regulations applicable to Camps Bay. [7] The part of s 98(2) relied upon provides that:

'No point on the facade of any building . . . shall be more than 10 m above the level of the ground abutting such facade immediately below such point.' B

[6] In the event, Meer J was persuaded to grant the interdict sought essentially on the basis that some of the structures indicated on the plans as 'boundary walls' were in truth retaining walls, in that they not only supported a swimming pool and a so-called 'planter', but also retained a substantial amount of compacted fill material behind them. In the light C of this, Meer J held, these walls constituted 'structures' other than boundary walls or fences, as envisaged by clause D(d), that were nearer than 3,15 m from the street lines bounding the property. In consequence, Meer J held that they constituted contraventions of the title deed restriction in that clause. [8]

[7] In order to steer clear of confusion later, it is necessary to identify the D boundary walls of the property that were of prime concern to Meer J. Broadly speaking, to avoid entanglement by detail, the property slopes rather steeply from its Blinkwater Road boundary in the east to Geneva Drive on its northern and western sides. The offending walls that supported the swimming pool, the planter and the compacted fill, which E Meer J consequently identified as contravening clause D(d), were those on the Geneva Drive boundaries where the property is higher than street level. These walls should be distinguished from the wall on Blinkwater Road which features later in this application.

[8] Meer J also found some merit in the applicants' objection based on F s 98(2) of the Zoning Scheme Regulations. In keeping with her findings on the clause D(d) issue, she held that it had also been established by the applicants, at least on a prima facie basis, that the ground level from which the height of the proposed façade of the building was measured had been artificially manipulated by the use of the unlawful retaining G walls on Geneva Drive, and the compacted fill behind them, thus concealing an infringement of the 10 m height restriction imposed by s 98(2). [9]

[9] The applicants' internal appeal under s 62 of the Systems Act was also decided in their favour, again on the basis that the Geneva Drive H boundary walls on the September 2005 plans were in fact 'structures' in

Brand AJ (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

A the form of retaining walls, which contravened title deed condition D(d). In the light of this decision on appeal, the parties proceeded on the basis that the September 2005 plans had been duly set aside, and arranged their affairs accordingly. [10] On this assumption, Ms Harrison submitted for approval yet a further set of plans on 30 May 2006, as another rider B to the February 2005 plans. The most significant amendment brought about by the new plans was that the swimming pool, the planter and the compacted fill behind the Geneva Drive walls were removed so that these became free-standing boundary walls.

[10] The City informed each of the applicants about the submission of C the new plans, and invited them to advance representations as to why it should not be approved. Mr Herman, acting as attorney for both applicants, availed himself of this opportunity by writing two comprehensive and rather prolix letters of objection, first on 27 October 2006 and then again on 15 January 2007. These objections notwithstanding, the plans were approved by the City in September 2007, and D hence became known in the proceedings as 'the September 2007 plans' or, since it turned out to be the subject of the present litigation, 'the impugned plans'.

[11] On 23 October 2007 the applicants launched an application in the High Court to review and set aside the approval of the September 2007 E plans. [11] When that application proved to be unsuccessful, they appealed to the Supreme Court of Appeal. The dismissal of that appeal, in turn, gave rise to the present application for leave to appeal to this court.

In the High Court F

[12] Like the earlier interdict application, the review application relied on the grounds that the September 2007 plans still contravened the 3,15 m setback requirement (from the street boundaries) required by G title deed condition D(d), as well as the 10 m height restriction imposed

Brand AJ (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring)

by s 98(2) of the Zoning Scheme Regulations. Apart from these, the A applicants relied on the procedural ground that the officials of the City had failed to give due consideration to their objections, raised in the two letters by Mr Herman, and that they had consequently...