Shelfplett 47 (Pty) Ltd v MEC for Environmental Affairs and Development Planning and Another

• Jurisdiction: South Africa
• Judge: Rogers AJ
• Judgment Date: 28 February 2012
• Citation: 2012 (3) SA 441 (WCC)
• Docket Number: 16416/10
• Counsel: SP Rosenberg SC (with PS van Zyl) for the applicant. AM Breitenbach SC (with S Mahomed) for the first respondent.
• Court: Western Cape High Court, Cape Town

Rogers AJ: A

Introduction

[1] The applicant is the owner of Portions 19 and 27 (portions of Portion 4) of the Farm Ganse Vallei No 444. These properties, which are 18,9714 ha in extent, are contiguous. They are located about five B kilometres to the northeast of the Plettenberg Bay central business district. To the east of the properties is the Bitou River estuary. In between the properties and the estuary is a sliver of land that lies below the estuary's high-water mark. The properties are within the area of the Bitou Municipality (the Municipality), which is the second respondent. The first respondent is the MEC for Environmental Affairs and C Development Planning in the Provincial Government of the Western Cape (the MEC).

[2] There currently exists on Portion 27 (13,8322 ha) a single residence and some outbuildings. The property has been used as a single residence for many years. Portion 19 (5,1392 ha) is vacant. The applicant, D which purchased the properties in 2006, wishes to undertake a development on them comprising a retirement village of 150 units, a townhouse development of 50 units, 26 single residential units, 25 lagoon-site residential units, private open space and private access roads.

[3] As a step towards undertaking this development the applicant on E 28 September 2007 submitted to the MEC an application for the amendment of the Knysna-Wilderness-Plettenberg Bay Regional Structure Plan ('the KWP RSP' or 'the RSP'). This application was prepared by the applicant's town planning consultants Wendy Floyd and Associates (WFA). The RSP designates the applicant's properties for 'Recreation' use. In the application the applicant sought to have this designation F changed to 'Township Development'. The Municipality supported the application. On 1 December 2009 the MEC refused the application in accordance with the recommendation of his departmental officials. In response to a request the MEC furnished reasons on 19 February 2010.

[4] On 27 July 2010 the applicant launched the present application G wherein it sought the review and setting aside of the MEC's refusal on various grounds, including that he had based his decision on considerations that involved an impermissible intrusion into the Municipality's exclusive executive competence in respect of municipal planning. After receiving the MEC's record in terms of rule 53(l)(b) the applicant H delivered supplementary papers and amended its notice of motion. In these supplementary papers the applicant asked for an order declaring that the KWP RSP was invalid because it was based upon and informed by race-based separate development planning principles. The applicant also added a further ground of review, namely that the MEC (so it was alleged) did not have the RSP before him at the time of considering the I matter and was thus not in the position properly to have considered the application for the RSP's amendment.

[5] The MEC opposes the application and has filed answering papers to which the applicant has replied. At the hearing the applicant was represented by Mr SP Rosenberg SC and Ms PS van Zyl and the MEC by J

Rogers AJ

A Mr AM Breitenbach SC and Ms S Mahomed. The Bitou Municipality did not file a notice of opposition and did not participate in the hearing.

[6] At the commencement of the hearing Mr Rosenberg drew to my attention that the applicant had omitted, when filing its supplementary filing papers, to cause a notice to be posted in terms of rule 16A. He and B Mr Breitenbach were agreed that it would be in the interests of justice for the argument to proceed on the basis that a notice would immediately be placed on the court's notice board, affording any interested party 20 days to seek admission as an amicus curiae. The court would be asked to reserve its judgment for 20 days. If an amicus emerged, the court would C then be asked to give directions for the further conduct of the matter. In terms of rule 16A(9) I agreed to this course, briefly for the following reasons. First, the applicant gave timeous notice to the three other municipalities whose areas are affected by the RSP (these are, in addition to the Bitou Municipality, the Municipalities of George and Knysna and the Eden District Municipality). They would be the parties with the D most immediate and obvious interest in an order declaring the RSP invalid. Second, a postponement would have entailed considerable expense and convenience without any certainty that an amicus would emerge. Third, the reserving of judgment for 20 days would substantially achieve the objects of the rule. Although an amicus would not have had E the advantage of being present to hear the submissions of the parties, full heads of argument would be available. The oral argument was also recorded. In the event nobody sought permission to be admitted as an amicus.

The legal instruments F

[7] To understand the issues in this case it is necessary to identify and briefly describe the main legal instruments that feature in the parties' contentions.

The Physical Planning Act of 1967

G [8] In terms of s 6A(1) of the Physical Planning Act 88 of 1967 (the 1967 PPA) the national Minister to whom the administration of the Act was assigned could cause a 'guide plan' to be compiled containing guidelines for the future spatial development of an area defined by him. A procedure for obtaining comment was prescribed. In terms of s 6A(11) the Minister could, after compliance with this procedure, give notice in H the Gazette that the guide plan had been approved by him. Section 6A(12) set out the legal effect of such approval. Among these were that no town planning scheme could be amended or introduced which made provision for the zoning of land for a purpose which in the Administrator's opinion was inconsistent with the guide plan and that no I permission could be given in terms of any town planning scheme or other law for land to be used for a purpose which in the Administrator's opinion was inconsistent with the guide plan. In terms of s 6A(19) the Minister could on application amend or withdraw an approved guide plan.

J [9] The KWP RSP was compiled as a guide plan in terms of s 6A of the 1967 PPA. It was approved in September 1982 by the then Minister of

Rogers AJ

Constitutional Development and Planning and notice thereof was A published in the Gazette. In terms thereof the town of Plettenberg Bay, including areas extending to the southwest and north, were designated for 'Township Development'. A corridor of land running northwards from the town on the western margin of the lagoon was designated for 'Recreation' use, with 'Township Development' land lying immediately B to its west. At a point about 30 metres south of the southern boundary of the applicant's properties the area marked 'Recreation' broadens in a westerly direction.

The Physical Planning Act of 1991

[10] Various provisions of the 1967 PPA, including s 6A, were repealed C with effect from 30 September 1991 by the Physical Planning Act 125 of 1991 (the 1991 PPA). In terms of s 4(2) of the 1991 PPA the 'Administrator' can cause a policy plan known as a 'regional structure plan' (an RSP) to be prepared for a 'planning region'. Section 5 states that the object of an RSP is to promote the orderly physical development of the D area in question to the benefit of all its inhabitants. In terms of s 6 an RSP must consist of 'broad guidelines for the future physical development' of the area and may provide that land shall be used only for a particular purpose or (with prescribed consent) also for other purposes as provided in the plan. After the following of prescribed procedures (ss 7 – 14) an RSP may be approved by the 'Planning Authority'. Such approval must E be made known by notice in the Gazette (s 15). Section 27 sets out the effects of the approval of an RSP. These are broadly similar to those laid down in the repealed s 6A(12) of the 1967 PPA.

[11] In terms of s 19 of the 1991 PPA the 'Planning Authority' may amend an RSP if he is of the opinion that such amendment is in the F interest of the future physical development of the area or is for any other reason desirable. This may be done mero motu or on application brought in terms of s 18.

[12] An approved RSP under the 1991 PPA is thus broadly similar in nature, purpose and effect to an approved guide plan under the repealed s 6A of the 1967 PPA. G

[13] Section 37(1)(c) of the 1991 PPA provides that a guide plan approved under the 1967 PPA continues in force as if the repeal of the relevant provisions of the previous Act had not been effected. However, in terms of s 37(2)(a) of the 1991 PPA the Minister may by notice in the H Gazette declare that such guide plan should instead be deemed to be an RSP prepared under the 1991 PPA.

[14] On 9 February 1996 the Deputy Minister of Land Affairs, by notice in the Gazette published in terms of s 37(2)(a) of the 1991 PPA, declared that the KWP guide plan was deemed to be an RSP prepared under the I 1991 PPA. The effect of this notice was that as from 9 February 1996 the legal effect of the former KWP guide plan (now the KWP RSP) was as set out in s 27 of the 1991 PPA and that its amendment was henceforth governed by ss l8 and 19 of the l991 PPA.

[15] The power to amend an RSP is by s 19 of the 1991 PPA vested in the 'Planning Authority'. This expression is defined in s 1 as meaning, in J

Rogers AJ

A relation to an RSP, 'the Administrator concerned'. The word 'Administrator' is in turn defined as the administrator of the province acting in consultation with the other members of the executive committee for the province. Because the 1991 PPA is 'old order legislation' as defined in item 1 of Sch 6 to the Constitution, item 3(2)(b) of the said schedule B requires that the term 'Administrator' be construed as a...