DEP Investments (Pty) Ltd v City Council, Pietermaritzburg

• Jurisdiction: South Africa
• Judge: Kumleben J
• Judgment Date: 12 December 1974
• Hearing Date: 25 October 1974
• Court: Natal Provincial Division

Kumleben, J.:

During February 1973 applicant bought a one-third share in two portions of the farm New England No. 1462 situated in the City and County of Pietermaritzburg for R60 000. On 28 May 1973 it became the registered owner of this one-third F share. In terms of their agreement the applicant and the co-owner, Robert Edmid Skinner, agreed to the partition of the properties jointly owned in such a way that applicant would receive title to a specific portion. At the time of this application the necessary transfer had not been effected. The co-owner has, however, filed an affidavit supporting the G application and the relief claimed. The agreement was concluded by applicant with a view to township development on the portion of the property to be acquired by it. Applicant instructed Messrs. Tarboton, Holder, Ross and Partners, a firm of land surveyors and townplanning consultants in Pietermaritzburg, to draw up the lay-out plan of the proposed township and to apply to respondent for its approval. Mr. H Pettit, a partner of this firm and director of applicant, handled the matter and the attendant negotiations and correspondence.

In January 1973, before the agreement was concluded, Mr. Pettit discussed with Mr. Chapman, the deputy city engineer of respondent, the question of waterborne sewerage for the proposed township. Mr. Pettit was under the impression that the existing Darville Sewerage Works were 1,5 kilometres away from the property. (The actual distance is 2,3 kilometres measured along the line of a possible gravitational sewer). He hoped that

Kumleben J

the installation of an "interceptor sewer" would provide a waterborne sewerage system for the township. The deputy city engineer, however, explained that owing to the expense involved it would be five to ten years before this amenity would be A available. The applicant was then obliged to accept the less suitable alternative of a septic tank system for the proposed township or, alternatively, defer its development. The "Pietermaritzburg House Drainage and Sewerage By-Laws" require residential erven with septic tanks to be not less than 1 800 square metres in size. In the case of erven serviced by a waterborne sewerage system the minimum permitted size is 900 square metres. The applicant in due course on 23 January 1973 B submitted the lay-out plan with the larger erven to respondent for its approval and, it is to be assumed, in the realisation that for a considerable period of time a septic tank system would be in operation in the township. On 11 April 1973 respondent by letter gave its approval subject to certain conditions. Condition (5) stated:

C "That the owner shall make a cash deposit of an amount equal to the estimated cost of laying sewerage within the streets of the lay-out."

From the papers it appears that the amount was subsequently calculated to be R21 280 and this is not disputed.

Applicant objected to this condition on the ground that it imposed a financial burden for which applicant would not derive D any commensurate benefit. The detailed objections are set out in a letter, dated 24 April 1973, written by Mr. Pettit to the city engineer (annexure C. J. P. 4 to the founding affidavit). It concluded with a request

"that the Council either withdraw clause (5) of the conditions of approval or consent to the installation of the requisite truck sewer timeously to permit sub-division down to 900 square meters (sic) at this stage".

E Basically applicant objected to contributing towards a waterborne sewerage system after it had decided to proceed with the development of the township involving the larger erven and the use of a septic tank system. In a letter dated 10 August 1973 the respondent replied rejecting this proposal. F Correspondence followed in an attempt to resolve the problem created by condition (5). For instance, it was suggested on behalf of respondent that sub-divisions of 900 square metres might be permitted subject to their being sold in pairs. A further sub-division could then be allowed when waterborne sewerage was installed. Mr. Pettit replied rejecting this suggestion and pointing out, inter alia, that matters had "gone too far" for this suggestion to be acceptable.

G On receipt of the letter of 11 April 1973, containing the conditional approval, applicant was faced with a choice. It could have accepted the conditional approval, that is, the approval with all the conditions attached, and proceeded with the development of the township forthwith. Alternatively, it could have withdrawn the application for approval for the H reason that condition (5) did not find favour with it, in which event any question of sub-division for a township would have been deferred. No doubt because it was committed to the project, applicant chose the middle course of accepting the conditional approval whilst contesting the validity of condition (5). Its attitude is reflected in para. 9 of the replying affidavit of Mr. Pettit in which he says

"Applicant has accepted all of the said conditions save condition (5). If that condition is declared valid, then applicant accepts that it will be bound to comply therewith as well."

Kumleben J

The deponent, however, does not comment on the position in the light of the attitude adopted by applicant should condition (5) be declared invalid. In that event the main relief claimed in the notice of motion is for an order directing the respondent "to approve the said lay-out plan without the imposition of any A condition requiring applicant to make a cash deposit towards the estimated cost of laying sewerage." During the course of his argument it was put to Mr. Hu...