Stadsraad van Vanderbijlpark v Administrateur, Transvaal, and Others

• Jurisdiction: South Africa
• Judge: McEwan J and Franklin J
• Judgment Date: 03 March 1982
• Court: Transvaal Provincial Division
• Citation: 1982 (3) SA 166 (T)

McEwan J:

This is an application to review a decision of the first respondent in which he approved an amendment to the second respondent's (Vereeniging Municipality's) town planning scheme, known as

McEwan J

amendment 1/110. The relevant prayers in the notice of motion read as follows: A

'(1)

Dat die beslissing van die eerste respondent dat die Vereeniging-wysigingskema 1/110 goedgekeur word, tersyde gestel word;

(2)

dat Administrateurskennisgewing 1723 in die Provinsiale Koerant van 29 Oktober 1980 tersyde gestel word;

(3)

dat die eerste respondent se beslissing in 1 hierbo vervang word B met die volgende beslissing:'Dat die Vereeniging-wysigingskema nr 1/110 verwerp word;'

(4)

dat die eerste en tweede respondente (en die derde respondent indien hy die ondersoek opponeer) gesamentlik en afsonderlik die koste van hierdie aansoek betaal;.....'

C During the course of the hearing the following further prayer was added by consent:

'(2 bis ) Dat Administrateurskennisgewing 687 in die Provinsiale Koerant van 17 Junie 1981 tersyde gestel word.'

The history of the matter is briefly as follows. In about 1973 Pick 'n Pay Stores Ltd, a retail selling organisation (which I shall call 'Pick D 'n Pay') conceived the idea of establishing a hypermarket to serve the socalled Vaal Triangle, which comprises mainly the municipalities of Vereeniging, Vanderbijlpark and Sasolburg. A site which was considered suitable was found in the township of Bedworth Park.

E That township had been proclaimed on 23 August 1972. It lies in the south-west corner of the Vereeniging municipal area and is contiguous to the boundary between Vereeniging and Vanderbijlpark. It is mainly a residential township. Two erven, Nos 431 and 434, were acquired in the name of the third respondent, which is a subsidiary company of Pick 'n F Pay. Those erven were zoned under the Vereeniging town planning scheme for use for business purposes and garage purposes respectively.

It may be mentioned that the applicant itself took part in an attempt to interest the Pick 'n Pay organisation in certain sites within the Vanderbijlpark municipal area. It was arranged for Pick 'n Pay's representatives to inspect those sites, but nothing came of that.

G The type of scheme that Pick 'n Pay had and has in mind consists of a large building on a single level surrounded by an extensive parking area. For that purpose a much larger area of land than that comprised in erven 431 and 434 would be required. An adequate area could be obtained by acquiring a number of neighbouring erven presently zoned for special H residential use and consolidating them with Nos 431 and 434 and at the same time closing portions of the intermediate streets. (The position appears clearly from the plans appearing on pp 81, 82 and 83 of the papers.) The scheme would necessitate, inter alia, the amendment of the Vereeniging town planning scheme. To that end approaches were made to the second respondent.

The result of the negotiations was that the second respondent's management committee recommended that a scheme be prepared and the Council at its meeting held on 27 June 1974 adopted the recommendation. The draft amendment scheme was known as 1/110.

McEwan J

During the period April to September 1975 certain articles in the press gave publicity to the proposed scheme.

On 28 August 1975 the second respondent's Council resolved to proceed A with the amendment scheme 1/110 and simultaneously to initiate the procedures required for closing the roads or portions of roads involved.

The amendment scheme was prepared in the name of the local authority (the second respondent) as at the time one erf (No 433) and the portions of streets involved were vested in it.

B Sections 26 and 27 of the Town-Planning and Townships Ordinance 25 of 1965 (T) require a local authority which had prepared a draft scheme (including an amendment scheme) to give notice thereof. The sections read:

'26 (1) A local authority shall, as soon as possible after it has prepared a town-planning scheme (hereinafter referred to as a draft C scheme), give public notice thereof in the following manner:

(a)

By means of an advertisement once a week for two consecutive weeks in the Provincial Gazette and in a newspaper as contemplated in s 110 of the Republic of South Africa Constitution Act 1961 and such advertisement shall contain such particulars as may be prescribed;

(b)

by posting and maintaining a like notice in a conspicuous D position on a notice board of such local authority during the two consecutive weeks referred to in para (a); and

(c)

where such town-planning scheme is an amendment scheme, by posting up and maintaining in a conspicuous position on each separate portion of land included in such scheme for a period of not less than four consecutive weeks calculated from the date of E the first advertisement in the Provincial Gazette referred to in para (a), a like notice of such size as may be prescribed;

..........

(2) The advertisement and notice referred to in ss (1) shall state that the draft scheme will be open for inspection at a specified place and that any objection or representations in regard thereto shall be submitted in writing to the local authority within a period of six weeks F in the case of an original scheme or four weeks in the case of an amendment scheme, from the date of the first such advertisement in the Provincial Gazette.

27. As soon as possible after a local authority has prepared a draft scheme, it shall give written notice thereof in such form and to such person or body of persons as may be prescribed.'

G Regulation 6 (1) of the regulations made under the Ordinance read at the relevant time:

'The notices and advertisements referred to in s 26 of the Ordinance shall be in accordance with the form contained in the Second Schedule.'

At that time the Second Schedule as substituted by a notice published in the Provincial Gazette of 27 November 1974 required the following H particulars to appear in any such notice or advertisement (I omit those parts of the Schedule that are not relevant):

'This draft scheme contains the following proposal(s):

(Note: a clear indication of the proposals contained in the scheme must be given particularly in regard to the following:

(1)

a clear description of the property involved, stating designation as registered in the Deeds Office and address of street on which the property abuts and nearest intersection;

(2)

the existing and proposed zoning of the property involved and a brief indication of what effect the new zoning will have;

McEwan J

(3)

if the scheme is in respect of a number of properties or of all properties within the municipality a general description of the contents of the scheme and the effect hereof shall be given.)

A Particulars of this scheme are open for inspection at...... (indicate exact place) for a period of six/four* weeks from the date of the first publication of this notice, which is.............................. (state date of first publication).

Any owner or occupier of immovable property within the area of the abovementioned town-planning scheme or within two km of the boundary thereof has the right to object to the scheme or to make representations B in respect thereof and if he wishes to do so he shall, within six/four* weeks of the first publication of this notice which is................. (state date of first publication), inform the local authority, in writing, of such objection or representation and shall state whether or not he wishes to be heard by the local authority.'

Regulation 7 (1) required written notice in terms of s 27 of the Ordinance to be given (inter alia ) to: C

'(f)

the local authority of any contiguous municipality;

(g)

in the case of an amendment scheme and if such scheme comprises a map, the owner of any land shown on such map as being included in such scheme and the owner of any land contiguous to any land included in such scheme;

...........'

D Regulation 7 (2) provides that such written notices shall be in the form contained in the Third Schedule. The Third Schedule, as it read at the relevant time, is headed 'Form of written notice that a scheme has been prepared'. The relevant parts of the Schedule read:

'This draft scheme contains the following proposal(s) - (Give a clear indication of the proposals contained in the scheme, a clear description E of the properties involved and a brief statement of the existing and proposed zoning and of the effect the new zoning will have). Should you desire further information in respect of this draft scheme you are requested to communicate with the town clerk/secretary. Should you wish to object to this scheme or make representations in respect thereof you must do so in writing to the above before the...'

F An advertisement appeared in the Provincial Gazette published on 10 September 1975 and was repeated the following week. Similar advertisements were published twice in two local newspapers, namely in the issues of the Vereeniging and Vanderbijlpark News and the Vaal Weekblad dated 12 September 1975 and 19 September 1975.

G Evidence in the second respondent's affidavits to the effect that notices were posted and maintained in compliance with s 26 (1) (b) and (c) was not disputed. Save for one small point, which was resolved in the answering affidavits, it was not disputed that notices had been posted to the owners of the properties affected and of contiguous properties as required by reg 7 (1) (g) read with s 27.

H The second respondent failed, however, to comply with reg 7 (1) (f) by posting a copy of the notice to the applicant as a contiguous municipality. That, however, was rectified after the omission was brought to the attention of the Director of Local Government by the applicant...