Mamede v The Strategic Executive: Department of Housing, City Planning, Land and Environmental Planning of The City of Tshwane

• Jurisdiction: South Africa
• Judge: Molopa J
• Judgment Date: 25 February 2009
• Docket Number: 10864/02
• Hearing Date: 25 February 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 0128 (T)

Molopa J:

The applicants have launched a review application in terms whereof, initially, they sought the following relief:

1.1

That the decision of the Third Respondent taken in approximately September, 2000, in terms whereof it approved building plans and the site development plans pertaining to a dwelling house to be built on Portion 2 of Erf 2026, Faerie Glen Extension 3, Pretoria, be and is hereby reviewed and set aside;

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1.2

That the Fourth Respondent be and is hereby ordered to cause all and any structures or buildings erected on Portion 2 of Erf 2026, Faerie Glen Extension 3, Pretoria, to be altered and/or demolished so as to comply with the Pretoria Town Planning Scheme 1974 within 30 [thirty] days hereof;

1.3

Alternatively to the above paragraph, an Order compelling the First, Second and Third Respondents to ensure compliance by the Fourth Respondent of the Pretoria Town Planning Scheme 1974, by altering or demolishing in whole, or in part, the structures and/or buildings erected on Portion 2 of Erf 2026, Faerie Glen Extension 3;

1.4

That Third Respondent, alternatively Fourth Respondent, alternatively Third and Fourth Respondents, jointly and severally, pay the Applicants' costs;

1.5

Further and/or alternative relief.

All the respondents noted their intention to oppose. Subsequent thereto the first to third Respondents (hereinafter referred to as "The Third Respondent") served a copy of the record on the applicants in terms of Rule 53 (3) of the Uniform Rules of the Court ("The Rules"). The applicants then filed a supplementary affidavit in terms of Rule 53 (4) of the Rules, incorporating a report of Mr. J.D.R. Bryant, an expert in the field of architecture. The third and fourth Respondents respectively filed their Answering Affidavits on 13 December 2002 and 11 October 2002 to which the Applicants filed their replying Affidavits on 5 June 2003.

During April 2005, I guess due to the lapse of time with the Applicants not setting the matter down, the Fourth Respondent set the application down on the opposed motion roll for hearing on 17 August 2005. Prior to the hearing of the application aforesaid, the Applicants, during June 2005 served and filed a notice of application for amendment in terms of Rule 28 of the Rules.

The relief sought in the amendment aforesaid is as follows:

"1.

That the decision of the Third Respondent taken in approximately September 2000 in terms whereof it approved building plans and site development plans pertaining to a dwelling house to be built on Portion 2 of Erf 2026 Faerie Glen Extension 3, Pretoria, be and is hereby reviewed and set aside;

2.

That it is hereby declared that the building on the property of the Fourth Respondent (hereinafter referred to as "the building")

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offends against the provisions of section 7 of the National Building Standards and Regulations Act, No 103 of 1977, in that it encroaches upon the applicants; properties to such an extent that:

2.1

The building was erected in such a manner and is of such an appearance that the area in which it was erected is disfigured thereby and/or

2.2

The building is in fact unsightly and objectionable and/or

2.3

The building has already derogated from or will in future derogate from the value of the applicants' neighboring property; and/or

2.4

The building will probably or in fact be dangerous to the life and property of the applicants;

3.

That the Fourth Respondent be and is hereby ordered to cause all and any structures or buildings erected on Portion 2 of Erf 2026 Faerie Glen Extension 3, Pretoria to be altered and/or demolished within thirty days thereof so as to comply with the Pretoria Town Planning Scheme, 1974 and the National Building Regulations and Standards Act, No 103 of 1977;

4.

Alternatively to paragraph 3 herein, an order compelling the First, Second and Third Respondents to ensure compliance by the Fourth Respondent of the Pretoria Town Planning Scheme, 1974 and the National Building Regulations and Standards Act, No 103 of 1977, by altering or demolishing in whole or in part structures and/or buildings erected on Portion 2 of Erf 2026 Faerie Glen Extension 3;

5.

That the Third Respondent alternatively Fourth Respondent alternatively Third and Fourth Respondents, jointly and severally, pay the applicants' costs;

6.

Further and/or alternative relief."

The First and Second Applicants, who are husband and wife, the Third Applicant herein and the Fourth Respondent are neighbours, all residing at portions 3, 1 and 2 respectively of Erf 2026 Faerie Glen Extension 3. The Applicants and Fourth Respondent duly built houses on their respective stands.

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From the papers it appears that the Site Developments Plans ("SDP") for the First and Second Applicants' property were approved by the Third Respondent on/or about 29 September 1994 under reference no 4941/94/2 and the building plans were approved on or about 1 June 1995 under plan reference number 2459/95/2. Refer "ALVDM2" and "ALVDM3" on pages 545 and 546 of the pleadings bundle.

The SDP of the Third Applicant's property were approved by the Third Respondent on 23 March 2000 under reference number 319/99, and the building plans were approved on 05 July 2000 under reference number 4156/99. Refer Annexure "ALVDM5" and "ALVDM6" on pages 552 and 555 of the pleadings bundle.

The SDP and the building plans of the Fourth Respondent were approved by the Third Respondent on 11 October 2000 under reference number 456/00 and 5213/00 respectively. Refer Annexure "ALVDM6" and ALVDM7 on pages 555 and 564.

The Fourth Respondent's house was built and completed during on about August 2001. From the correspondence contained in the record it clearly appears that from around June 2001 when the Fourth Respondent had almost completed the structure on his property, his neighbours had some problems with the appearance of such structure (calling it a monstrosity), as a result of which the first Applicants and/or the son Paulo Mamede engaged the third Respondent's officials through correspondence, refer record pages 50 to 74, and Annexure SPM 11, pages 121, 122 and 123 of the pleadings bundle. The Applicants further instructed their attorneys, FRIEDLAND HART INCORPORATED to take issue with the Third and Fourth Respondents in this regard. Refer record pages 62, 64 71, 74 and Annexure SPM 9 and SPM10, pages 116 to 119 of the pleadings bundle.

As seen from the correspondence filed of record, (refer pages 41 to 74, 213 to 254 of the record), and as appears from the Answering Affidavit of the Respondents read with the Applicants' Replying Affidavits, the Third Respondent through correspondence and various meetings held with interested parties, i.e. the Applicants, the Fourth Respondent and their representatives (Attorneys, Architects and land Surveyors) as well as from inspecting the Fourth Respondent's house/structure tried to get the parties to reach an amicable solution.

The Third Respondent, amidst complaints by the Applicants, found that on the various complaints by the Applicants, the Fourth Respondent had complied with the legislation, by laws and regulations governing building, in that on the inspection of the fourth Respondent's property by the Third Respondent's official(s) it was found that the main structure was in fact constructed in strict compliance with the approved building plans, however it

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was established that the Fourth Respondent, in conflict with the approved Building plans, had constructed a lower level which does not comply with the definition of basement as defined in the scheme (on the South Western garage portion), therefore, technically, this rendered the Fourth Respondent's building as a 3 storey building in contravention with the provisions of the scheme.

The Third Respondent issued a contravention notice to the Fourth Respondent on 24 October 2001, (refer page 218 of the record) to rectify the deviations and/or the contravention of the scheme and regulations aforesaid.

The Fourth Respondent had three (3) options in so far as the height of the building is concerned:

• To rezone the subject property in order to obtain rights for an additional store; or

• To demolish the top storey of the building; or

• To excavate the floor level of the bottom storey and fit a ceiling at the correct level in order for the bottom storey to qualify as basement so as to comply with the double storey.

The Fourth Respondent apparently opted for the Third option, i.e. to excavate the floor level of the bottom storey, refer pages 194-195 of the pleadings bundle.

The Third Respondent was apparently satisfied with the construction work (to excavate). After completion of the excavation aforesaid, the Third Respondent was satisfied that the building now complies with the Town Planning scheme and constitutes a two storey architecturally designed building

Apparently, amongst others, the Applicants were not amenable to the third option (excavation of the floor level) proffered by the Fourth Respondent and subsequently approved by the Third Respondent, hence the review application herein which was launched/issued on 17 April 2002( six months after the contravention notice aforesaid was issued).

The crux of the main contentions by the Applicants is as follows [I shall deal with the headings as tabulated by the Applicants]:

•

That the structure erected by the Fourth Respondent on Portion 2 fails to comply with the provisions of the

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•

Scheme in that the structure constitutes a three storey building;

The Applicants contend that the Fourth Respondent's house comprises three storeys, on the other hand the Third and Fourth Respondents contend that the Fourth Respondent's house comprises two storeys and a basement.

In terms of...