Hayes and Another v Minister of Finance and Development Planning, Western Cape, and Others

• Jurisdiction: South Africa
• Judge: H J Erasmus AJ
• Judgment Date: 18 July 2001
• Citation: 2003 (4) SA 598 (C)
• Docket Number: 1222/2000
• Hearing Date: 18 July 2001
• Counsel: A G Binns-Ward SC for the applicants. J A le Roux SC (with him W de Haan) for the first respondent.
• Court: Cape Provincial Division

H J Erasmus AJ:

The relief sought

In their notice of motion, the applicants seek the following relief:

(a)

Reviewing and setting aside and/or correcting the decision of first respondent made on 6 May 1998, purportedly in terms of the J

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Removal of Restrictions Act 84 of 1967, to remove certain title deed restrictions affecting erven 2375 and 2376, A Stellenbosch;

(b)

reviewing and setting aside and/or correcting the decision by first respondent made on 12 November 1999 to uphold the appeal by third respondent, alternatively by third and fourth respondents, against the decision by second respondents to refuse the applications in terms of s 15 of the Land Use Planning Ordinance 15 of 1985 (Cape) by third and fourth respondents for B certain departures from the Stellenbosch Municipality Zoning Scheme Regulations in respect of erven 2375 and 2376, Stellenbosch;

(c)

granting applicants further and/or alternative relief;

(d)

directing that applicants' costs of suit be paid jointly and severally by any of the respondents who might oppose C the application.

The parties

The applicants are husband and wife, married in community of property. They are the registered owners of erf 2402, Stellenbosch, D situate at 39 Bosman Street, Stellenbosch. They reside in the single dwelling house on the property. They are also the registered owners of erf 2374, Stellenbosch, situate at 24 Bosman Street, Stellenbosch.

The first respondent is the provincial Minister of Finance and Development Planning for the Western Cape. The first respondent was E at all material times the 'competent authority' referred to in the definition of 'Administrator' in s 2 of the Land Use Planning Ordinance 15 of 1985 (Cape) (the ordinance) and s 1 of the Removal of Restrictions Act 84 of 1967 (the Act).

The second respondent is the Municipality of Stellenbosch, a body corporate in terms of s 3 of the Municipal Ordinance 20 of 1974 (Cape). F

The third respondent is the registered owner of erf 2375, Stellenbosch, situate at 22 Bosman Street, Stellenbosch.

The fourth respondent is the registered owner of erf 2376, Stellenbosch, situate at 20 Bosman Street, Stellenbosch. G

The properties

The second respondent developed the township Universiteitsoord in two separate parts. The first part, named New Universiteitsoord, was developed and sold in 1923. The second part, named Universiteitsoord, was developed and sold in 1939/1940. The erven which are the subject of H the current proceedings, erven 2375 and 2376, are situated in this second part. The Universiteitsoord township as proclaimed comprises 40 residential erven, a hospital site and public area. The township is bounded on the south by Merriman Avenue and on the west by Bosman Street. The University of Stellenbosch is to the south of Merriman Avenue which forms the northern boundary of the main campus. I

Merriman Avenue is also the northern boundary of the identified historical core of Stellenbosch. In the Kruger/Roos report entitled 'Stellenbosch Conservation Strategy - Development Guidelines' (January 1997), which has been adopted by the second respondent as an J

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official policy document, Merriman Avenue is identified as part of a so-called 'special area' which is described A as follows:

'Special area, which is important because of its relationship to the Historical Core, and in which some development control - particularly relating to height, bulk and material - should be implemented in order to protect the context of the historical core.' B

The properties owned by the applicants and the third and fourth respondents are situated in close proximity to each other in Bosman Street. Erf 2402 (39 Bosman Street) where the applicants reside, is on the western side of Bosman Street and about 100 m to the north of the second property of the applicants and the erven owned by the third and fourth respondents. These three erven are on the eastern side of Bosman Street; that is, within the Universiteitsoord township. Erf C 2374, the applicants' second property, shares a lateral boundary with the third respondent's property (erf 2375) and is situate immediately to the north thereof. Fourth respondent's property (erf 2376) is on the corner of Bosman Street and Merriman Avenue and is situate adjacent to and shares a lateral boundary with third D respondent's property.

All the properties are zoned for residential use in terms of the Stellenbosch Municipality Zoning Scheme Regulations (the zoning scheme regulations). Erf 2402 (where the applicants reside) and all the other erven on the western of Bosman Street are zoned for single residential use. The erven on the eastern side of Bosman Street, which include the E applicants' second property and the erven owned by the third and fourth respondents, are zoned 'general residential'.

In terms of para 9.1 of the zoning scheme regulations, 'normal development' on land zoned 'general residential' is defined as 'general residential building and an existing dwelling house'. All the properties in Bosman Street and those in the close vicinity of F Bosman Street are characterised by single dwelling residential development. The single residential character of the neighbourhood has been maintained by reason of restrictive conditions of title imposed when the township was established.

The relevant restrictive conditions applicable to the erven in Universiteitsoord are set out as follows in the title deed of erf 2375: G

'C. Verder onderhewig aan die voorwaardes ten gunste van enige eienaar van 'n erf in "Township of Universiteitsoord" en onderworpe aan wysigings of veranderings deur die Administrateur kragtens die bepalings van art 18(3) van Ordonnasie 13 van 1934, soos vervat in transportakte No T 5635/1941, naamlik: H

Dat hierdie erf slegs vir bewoningsdoeleindes gebruik word.

1. Dat net een woonhuis of 'n woongebou, tesame met die nodige buitegeboue op hierdie erf opgerig word.'

The application of third and fourth respondent

In March 1997, an application entitled 'Erven 2375 and 2376 I Stellenbosch: Application for removal of restrictions, encroachment of the building line and departure' was submitted to the second respondent by a firm of architects, town and regional planners on behalf of third and fourth respondents. The relief sought is set out as follows in the application: J

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'The following applications are made pertaining to Erven 2375 and 2376, Stellenbosch: A

(i)

departure from the Stellenbosch Town Planning Scheme in terms of the Land Use Planning Ordinance 15 of 1985 to permit an additional storey; to increase the floor area ratio from 0,75 to 0,84; to reduce the area required for gardening purposes from 25% to 20%;

(ii)

encroachment over the building line to accommodate a refuse storage area; and B

(iii)

the removal of restrictive conditions pertaining to the abovementioned erven, in terms of the Removal of Restrictions Act 84 of 1967 to permit the establishment of apartments.'

As is apparent from a 'motivation report' submitted in support of the application, it was proposed, should the application be granted, C to erect a four-storey block of flats, comprising 33 dwelling units on the two erven.

The application attracted 75 letters of objection from 67 property owners in the Universiteitsoord and adjacent suburbs, including the owners of all the other properties in Bosman Street, with the exception D of the University of Stellenbosch, which owns erf 2409. The gist of the objections was that the proposed development would adversely affect the character of the neighbourhood, thereby compounding the negative effects of a prior development, known as Merriman Square, to the east of erven 2375 and 2376. E

On 7 October 1997, a technical services committee of the second respondent, acting by virtue of delegated powers regarding planning and development matters, recommended that the application for removal of the restrictive conditions be refused by the first respondent. It furthermore exercised its power in terms of ss 15 and 46 of the ordinance to refuse the required departures from the zoning scheme regulations and the application for encroachment of the building line F to accommodate a refuse storage area. It recommended that the proposed development on erven 2375 and 2376 be refused as a whole.

The third respondent lodged an appeal, in terms of s 44(1) of the ordinance, against the decision of the second respondent. The first respondent on 6 May 1998 upheld the appeal subject to G certain conditions relating to the proposed development. At the same time and simultaneously with the upholding of the appeal, the first respondent granted the application for the removal of restrictive conditions (the decision upholding the appeal and granting the application for the removal of restrictive conditions was in fact taken H by the first respondent's predecessor who was then the 'competent authority' for the administration of the ordinance).

The first review application

The present applicants brought an application for an order reviewing I and setting aside the decision of the first respondent upholding the appeal. The application for review did not include any prayer for relief in respect of the review and setting aside of the decision by first respondent granting the application for the removal of certain of the title deed restrictions affecting erven 2375 and 2376. J

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The review was upheld on the ground that the determination of the A appeal without requiring notice thereof to be given to the objectors or affording them an opportunity to make representations in the appeal, constituted a breach of the objectors' constitutional right to just and fair administrative action. The Court...