Sanderlings Home Owners Association v Module Controls CC
| Jurisdiction | South Africa |
| Judge | Hlophe JP, Dlodlo J and Boqwana J |
| Judgment Date | 19 March 2014 |
| Docket Number | A365/2013 |
| Court | Western Cape High Court, Cape Town |
| Hearing Date | 29 January 2014 |
| Citation | 2014 JDR 0624 (WCC) |
Boqwana, J
Introduction
This is an appeal against the judgment of Yekiso J dated 31 January 2013 in which he gave an order setting aside the decision of the first appellant, taken through its executive committee, purportedly refusing to approve the respondent's amended building plans or refusing to recommend the approval of such amended
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building plans by Bitou Municipality ('the municipality'); and directing the municipality to consider a matter of approval of such amended building plans in terms of Section 7 of the National Building Regulations and Building Standards Act, 103 of 1977; and lastly ordering the first appellant to pay the respondent's costs, on a party and party scale, duly taxed or as approved. The court a quo granted the first appellant leave to appeal on certain limited grounds.
Background Facts
The first appellant is an association with a constitution established at the instance of the Plettenberg Bay Municipality in terms of Section 29 (1) of the Land Use Planning Ordinance 15/ 1985 ('LUPO'). It has the capacity to sue and to be sued in its own name. The management and administration of the association vests in the executive committee. The second and third appellants were members of the executive committee. In the proceedings before the court a quo the appellants were respondents.
The respondent (applicant in the court a quo) is the owner of the immovable property known as Erf 555 Keurboomstrand in the Bitou municipality, Division of Knysna, Western Cape Province situated in the Sanderlings Estate, a development on the banks of the Keurboom River, Plettenberg Bay, Western Cape ('the property'). Such property is the subject of this appeal. The respondent lodged the application in the Eastern Circuit Local Division.
The municipality is a local authority in whose jurisdiction the property is situated. It was cited as the fourth respondent in the application before the court a quo but did not participate in the proceedings.
On 29 November 2010, the municipality approved a building plan submitted by the respondent's architect for the construction of a house and outbuildings ('Plan 1').
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When Plan 1 was originally submitted to the municipality it was referred back to the respondent's architect for amendment of the building lines to bring them in line with those listed in the Sanderlings Architectural Guidelines. The building lines were accordingly corrected and re-submitted.
The respondent was however informed by the municipality that a formal departure application in terms of LUPO was required in respect of building lines on the plans. The respondent submitted an application for departure from the section 8 of the Zoning Scheme Regulations ('Scheme Regulations') to permit the relaxation of the Southern Lateral building lines restriction from 3.0m to 1.5m in terms of LUPO.
During late August 2010 the respondent's architect was advised by the municipality that the Sanderlings Estate had its own special development parameters stipulated in their Design Manual as well as additional development restrictions imposed by the Mayoral Committee in a meeting held on 31 March 2010. Evidence shows that the year reflected in the Council letter to the respondent is incorrect. The Mayoral Committee resolution was adopted on 31 March 2005. The respondent was advised to obtain the necessary information regarding these restrictions from the body corporate or responsible trustees of the first appellant.
During September 2010, the respondent submitted a revised plan to the municipality for departures to permit the relaxation of the northern, eastern and southern lateral building line restrictions from 4.5m to 1.5m in terms of LUPO and to relax the permissible bulk from 0.75 to 0.77. This building plan was approved in November 2010 as indicated in paragraph 5 above.
In January 2011, the respondent and its architect came to a conclusion that it would make sense to add two bedrooms and a bathroom on top of the garage within the 'permissible' height of 8.5m. An amended building plan ('Plan 2') was drawn and submitted to the first appellant by the respondent for approval. In terms of section 18 of the first appellant's constitution no member shall submit plans to
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the municipality unless the plans have first been submitted to the first appellant and approved by it, in accordance with the procedures set forth in the Design Manual. The Design Manual is defined as the Architectural Guidelines annexed to the first appellant's constitution.
Trustees of the first appellant refused to approve Plan 2 based on the following reasons:
'Sanderlings originally had a limitation on the size of homes erected. This appeared to be 175m2 as the coverage with a loft of 50m2. A departure application was approved in order to allow development to occur in accordance with the following parameters:
Coverage: 50%
Bulk: 0.75
Height: 8.5m above natural ground level.
After careful consideration and discussion on the above points, the Trustees have taken a decision not to approve the additions that you have requested, due to bulk exceeding over the limit to 0.86. The Trustees and your neighbours have already compromised in the relaxation of the building guidelines on your property. A number of large dwellings, including this one, have altered the character of the complex considerably.
Also, the Trustees wish to point out that the existing infrastructure regarding electricity supply, water and sewerage is already under severe pressure, especially during the holiday season.
In the light of all of the above, your application for the additional 2 bedrooms and bathroom has been turned down.' (Own emphasis)
As can be seen from the above the respondent's Plan 2 was declined on the basis of three reasons, which are that: the bulk would increase to 0.86; the proposed alterations would negatively impact on the character of the estate ('the aesthetic reason') and the proposed alterations would negatively impact on the electricity supply, water and sewerage supply ('the electricity reason').
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It is this decision of the first appellant's trustees that the respondent took on review...
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