Cape Town City and Another v Da Cruz and Another

• Jurisdiction: South Africa
• Judge: Hlophe JP, Fortuin J and Sher J
• Judgment Date: 02 February 2018
• Citation: 2018 (3) SA 462 (WCC)
• Docket Number: A 313/17
• Hearing Date: 02 February 2018
• Counsel: SP Rosenberg SC (with EF van Huyssteen) for the first appellant. G Budlender SC (with HJ de Waal) for the second appellant. JG Dickerson SC (with D Baguley) for the respondents.
• Court: Western Cape Division, Cape Town

Sher J (Hlophe JP and Fortuin J concurring): G

[1] This is an appeal against a judgment and order which was handed down by this court [1] in terms of which it set aside the approval by the City of Cape Town (the first appellant) in February 2015 of certain building plans which were submitted to it by the Simcha Trust (the second appellant) in respect of Erf 5284, Cape Town, and remitted such plans H for reconsideration. This was the second occasion on which such building plans were set aside on review. The first occurred in August 2013.

[2] The matter concerns the application of s 7(1) of the so-called Building Standards Act, [2] which regulates the conditions under which a local authority shall either grant or refuse approval in respect of building I

Sher J (Hlophe JP and Fortuin J concurring)

plans, A which the Act requires [3] must be submitted to, and approved by, it before any building may be erected.

[3] As the court a quo remarked in the introductory paragraph of its judgment, s 7 has been a fertile site for litigation and its interpretation has been the subject of divergent reported judgments of the Supreme B Court of Appeal [4] and the Constitutional Court. [5] That it concerns a somewhat vexed area of the law is evident from the fact that in two of these matters it took the Supreme Court of Appeal and the Constitutional Court in the order of seven months before judgment was handed down, [6] with the former describing the structure of the provision as C 'confusing' [7] and the latter as the subject of much contestation. [8] Furthermore, an offshoot of the present dispute has also been the subject of two reported judgments, one by this court [9] and one by the Supreme Court of Appeal. [10]

The D background

[4] The respondents are the owner of a residential unit in, and the body corporate of, the Four Seasons sectional title scheme which manages the Four Seasons building which is situated in Buitenkant Street, Cape Town. The building was erected between 2005 and 2007 and occupies some 17 storeys.

[5] E The Simcha Trust is the owner of an adjoining property on erf 5284 which it acquired in October 2006 and which is situated on the corner of Buitenkant and Commercial Streets. At the time when the Trust acquired the property, there was an old four-storey office block on

Sher J (Hlophe JP and Fortuin J concurring)

it. The Trust's intention was to redevelop the property into an upmarket A hotel complex which was to be known as the 'Oracle'.

[6] In terms of the City's zoning scheme the area in which the two buildings are situated is zoned for mixed use, thereby permitting both commercial and residential buildings to be erected. This zoning allows for so-called 100% coverage, ie property owners have the right to build B over their entire erf and, unlike areas which are zoned residential, there is no stipulation in respect of any setback, in terms of which building works may not extend up to a common boundary and may only go up to a set building line. However, although there is no legal prohibition to this effect, as a matter of common practice in such mixed-use areas, habitable C spaces with windows or balconies are not usually constructed along common boundaries, and, in the case of two adjoining erven with such coverage rights, façades on the common boundary are ordinarily reserved for non-habitable utility areas such as lifts, stairwells, passages or storerooms. As these spaces are non-habitable, they do not require windows for light and ventilation in terms of the National Building D Regulations.

[7] The developers of the Four Seasons building did not follow this architectural convention and, as it was somewhat euphemistically put, in order to extract 'maximum value' from their development from the eighth floor upwards (the levels below that were reserved for parking), E provided in their building plans for apartments which faced towards the common boundary with Erf 5284. In order to comply with the requirements of the Building Regulations in relation to the risk of fire spreading to or from an adjoining building, [11] and sufficient light and ventilation, [12] these apartments were required to be stepped back a distance of F approximately 3 metres from the common boundary. The plans made provision for the erection of balconies for the eighth-floor apartments (over the roof of the garage level underneath), which extended over the 3 metre set-back up to the common boundary. Although (as an architect and a former Head Principal Planner of the City's central zoning section who deposed to supporting affidavits on behalf of the Trust pointed G out) [13] the plans were thus contrary to well-established practice and 'out of kilter' with the rest of the buildings in the area, they were approved by the City's planning department without demur. The court a quo commented that, from the aerial photographs which were annexed to the parties' affidavits, the Four Seasons building thus constitutes a 'striking exception to the rule' in relation to buildings in the area. [14] H

[8] The Trust delivered its plans for the Oracle development to the City in October 2007. By that time the adjoining Four Seasons development was complete. The plans provided for the renovation of the existing four-storey building and the erection on top of it of a further four storeys, I

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with A a terrace on the roof. In essence, the plans, if implemented, would result in the top three storeys of the Oracle building virtually 'abutting', as a blank and solid wall, against the apartments on the eighth to tenth storeys of the Four Seasons building, along the common boundary. As is customary in such matters, copies of the plans were not provided to the B owners of any of the neighbouring buildings, and the affected owners of units in the Four Seasons building were thus unaware of what was envisaged. After the plans were approved by the City in September 2008, the Trust commenced preliminary construction work, but the project was called to a halt shortly thereafter following the global economic C downturn.

[9] Building work only resumed some four years later, in May 2012. The affected owners of units in the Four Seasons building were initially unconcerned by the construction that was taking place, until or about September, when they noticed that the adjacent building works were D being erected flush on the common boundary and at zero setback, 'hard-up' against the balconies on the eighth floor. They pointed out in a letter of objection from their attorneys that they were unaware that the City had approved plans which allowed for this and that they had expected that the Trust's building would be stepped back once construction E reached the residential part of the Four Seasons building.

[10] A request to cease work pending a review of the approval of the building plans was not acceded to, and consequently in November 2012 an application for an interdict preventing any further building work pending the outcome of such review was launched. After hearing argument and conducting an inspection in loco, Dolamo J granted the F interdict, and the review was launched soon thereafter.

[11] The state of construction at the time when the building works were interdicted can best be seen and understood from the photographs [15] at pp 48 – 60 of the record, which the court a quo said amply illustrated the G 'confining effect' on units in the Four Seasons building of the construction on the common boundary, an effect which was most striking at the eighth-floor level, where the balconies had effectively been converted into 'small courtyards confined between towering walls'. [16]

[12] The review was eventually conceded by the City and the Trust, and H by agreement between the parties an order was taken in August 2013 whereby the City's approval of the plans was set aside. The concession followed upon the fact that, contrary to the injunction by the Constitutional Court in its judgment in Walele[17] (which was handed down some four months before the plans were approved), the functionary I who made the decision to approve the plans did so on the basis of a

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simple endorsement from the City's building control officer, [18] instead of A a properly considered and motivated recommendation.

[13] It is not necessary to say much more about the first review application, other than to point out that, apart from the grounds on which they eventually succeeded, the affected owners and the body B corporate also averred, in their papers, that the plans were liable to be set aside on the basis that if implemented they would result in a derogation of value to affected units, within the meaning ascribed to that term in s 7. But more about that later.

[14] After conceding the review, the Trust made application for an order C that the City should compensate it [19] for the legal costs it had incurred in the interdict and review proceedings and in respect of certain building expenses and related costs which it alleged flowed from the City's failure to give proper effect to the judgment in Walele. The claim was dismissed by Rogers J in November 2013 and a subsequent appeal to the SCA was dismissed in February 2015. D

[15] In the absence of any further building works, and on the understanding that the review court had set aside the plans for the Oracle development and no new plans had been submitted to the City for approval, during October 2014 the Four Seasons body corporate E launched an application for an order directing that the partially constructed building works on Erf 5284 be demolished. In response the Trust indicated that a new application for approval of building plans had been submitted to the City during June 2014. In this regard it appears that the...