Morrison v City of Johannesburg

• Jurisdiction: South Africa
• Judge: JR Murphy J
• Judgment Date: 25 December 2013
• Docket Number: 66324/12
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 27 November 2013
• Citation: 2014 JDR 0205 (GNP)

Murphy, J

1.

Mr AW Morrison ("Morrison"), the applicant in this application, seeks an order reviewing and setting aside the decision of the City of

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Johannesburg, the first respondent, ("the City") to approve the building plans submitted to it by the third respondent, Mr GJ Marx ("Marx") and remitting the decision back to the City for reconsideration.

2.

The application follows upon an urgent application in which Spilg J on 22 October 2012 interdicted Marx from continuing with building operations at his property pending the final determination of an appeal in terms of section 139 of the Town-Planning and Townships Ordinance 15 of 1986 ("the Ordinance") or a review of the decision of the City to approve the building plans submitted by Marx.

3.

Morrison is the owner of Unit 6, San Chiara Estate, being Portion 10 (a Portion of Portion 4) of Erf 39, Lonehill Ext 5, Calderwood Rd, Lonehill, Johannesburg. Marx is his neighbour, being the owner of unit 5 (Portion 9).

4.

During 2010 Marx decided that he wanted to extend portions of his house and instructed his architect to prepare a plan, Annexure RA3 to the founding affidavit. It is evident from the plan that Marx proposed to build a double story structure adding additional floor area of 85,026 square metres to his house. The ground floor consists of an extended TV area and a new "Hollywood carport/double garage", and the first floor comprises a new gym or bedroom of 27,286 square metres.

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5.

The Site Development Plan ("SDP"), Annexure RA4, reveals that the estate contains 17 units built on stands of approximately 500 metres. It is evident from the SDP that each property was placed in such a way as to give the adjacent properties a corridor of open space to allow for light and some outlook. Morrison has annexed photographs to his founding affidavit, including a photo shopped version, depicting the situation if the double story structure is built, and has submitted that the proposed structure will significantly obstruct sunlight from reaching his outside entertainment areas, consisting of a swimming pool and adjacent patio-style porch. Whereas presently the outlook from his garden and porch is an open view facing north, if the structure is built, the view will be obscured by a pitched tile roof which he claims will over-shadow and disturb his enjoyment of his garden and porch-area. Moreover, as the structure will impede the north-facing aspect of his property, it will diminish the amount of sunlight capable of entering the ground floor of his home. He maintains that the impact of the proposed new structure will reduce the value of his home by an amount of about R500 000.

6.

The City's attitude to Morrison's concerns is that Marx's property already casts a shadow over Morrison's entertainment area, and that such should be expected in an urban environment where densification is approved, properties are smaller and people have to live in close proximity. Marx adds that the SDP in fact contemplated a double garage, denies that the structure will have the impact alleged, maintains that Morrison should appreciate that one of the impediments of high-

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density housing is restricted views and contends that the structure will give them both greater privacy.

7.

Marx lodged the building plans for consideration and approval by the City in December 2010. These plans could not be approved because they showed parts of the building within the building restriction area on Marx's property which building line had not been relaxed. The City accordingly invited an application for relaxation of the building line.

8.

The property falls within the scope of the Sandton Town-Planning Scheme ("STPS"). Section 18 of the Ordinance provides for the preparation by local authorities of town-planning schemes for land situated within their jurisdiction for the purpose of ensuring co-ordinated and harmonious development of the area to which it relates. In terms of section 58(2) of the Ordinance any person who contravenes or fails to comply with a provision of an approved scheme of an authorised local authority shall be guilty of an offence. Clause 11(1) of the STPS provides that no building other than boundary walls or fences or temporary structures erected in connection with building operations shall be erected in the "building restriction area". Clause 1 (xi) defines the building restriction area to mean an area of uniform width, unless otherwise stated in the scheme, upon which no building, save that which is allowed elsewhere in the scheme, may be erected. The definition must be read with the definition of "building line" in Clause 1 (x) of the STPS which means a line indicating the furtherest boundary of a building

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restriction area from a street, a proposed street, street widening, or any other boundary of a property and which is a fixed distance from the boundary of an erf. Clause 11(2) of the STPS provides that unless otherwise stated on the map, building lines shall apply to properties according to use zones as indicated in Table B. It is common cause that the property has been zoned as "Residential 2", which according to Table B requires building lines along a street boundary of 5 metres and one of 3 metres along other boundaries.

9.

The building plans submitted by Marx in December 2010, as I have said, indicated that the structure would encroach into the building restriction area. Clause 10(2)(d) of the STPS provides:

"The local authority may, upon receipt of a written application or the submission of a site development plan, allow the erection of a building in the building restriction area in the case of a corner erf or if, as a result of the topography of the property or of the adjacent land or of the propinquity of buildings already erected on the building restriction area, adherence to the building line requirements would unreasonably hamper the development of the property."

10.

During the course of the interaction by the parties with the City it became apparent, because of the proposed encroachment in the building restriction area, that Marx was required to make an application in terms of Clause 10(2)(d) of the STPS for a relaxation of the 3 metre building line between the two units. I have not been able to locate a

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copy of the written application in the inadequately indexed record of decision filed by the City, nor is it referred to in any of the sets of affidavits. It appears to be common cause though that such an application was made. Morrison's previous attorneys objected to the building plans submitted by Marx in December 2010 in a letter dated 11 February 2011. The basis of the objection was that Morrison had not consented to the proposed alterations and that they "disobeyed" the building lines defined in the STPS. This latter objection no doubt prompted the City to call for an application in terms of Clause 10(2)(d) of the STPS.

11.

On 1 June 2011, Morrison's current attorneys addressed a detailed letter of objection to the City on his behalf. They objected to the proposed structure's impact on the use and enjoyment of the property, and raised the additional point that the proposed additions and alterations to Marx's property would be inconsistent with the SDP and hence could not be approved until such time as the SDP has been amended. Reference was made in this regard to Clause 14(1) of the STPS, the relevant part of which reads:

"A site development plan, compiled to a scale of 1:500 or to any other scale as may be approved by the local authority, shall be submitted for approval to the local authority before the submission of any building plans. No buildings shall be erected on the erf until such site development plan has been approved by the local authority, and the entire development of the erf shall be in accordance

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with the approved development plan: Provided that, with the written consent of the local authority, the plan may be amended from time ...."

The attorneys accordingly requested the City to confirm that it would not consider the approval of any building plans that are inconsistent with the STPS and the SDP, and to return the plan to Marx with an instruction to initiate steps to have the SDP amended.

12.

Marx brought the application for a relaxation of the building lines subsequent to the delivery of this letter on a date and basis unknown (on account of the application not forming part of the record).

13.

It appears from a letter dated 2 February 2012, addressed by Morrison's attorneys to the City, that on 20 December 2011 the City notified Morrison's previous attorneys that a hearing was to be convened in terms of section 131 of the Ordinance. The notification is not annexed to the affidavits and does not form part of the City's record of decision. It is accordingly not possible to identify precisely the scope and purpose of the hearing. Morrison however annexed the heads of argument filed at the hearing which are headed:

"Application for consent: Relaxation of Building Lines in respect of Portion 9 of Erf 39 Lonehill Extension 5 in terms of the Sandton Town Planning Scheme, 1980."

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It is clear also from the content of the heads of argument that the application for which the hearing was scheduled was the application for the relaxation of the building lines.

14.

The hearing was convened on 16 February 2012. The argument advanced on behalf of Morrison was to the effect that in terms of the STPS the erection of the structure on the property could only take place in accordance with the SDP approved by the City which allegedly did not allow for the construction of the building proposed by Marx, and, as such, the relaxation of the building lines would be contrary to the SDP and...