IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:
THE NOORDHOEK ENVIRONMENTAL

And

THE DEPARTMENT OF 
ENVIRONMENTAL AFFAIRS 

    Introduction

[1]    The applicant has applied for a final interdict in which relief of a mandatory nature is sought.   The essence of the relief is that first respondent should be ordered to restore erf 453 Noordhoek to the condition that it was before the undertaking of a construction of a parking lot, as well as a large brick and mortar signpost so as to
comply with title deed conditions pertaining to erf 453, as well as conditions pertaining to the subdivision of the mother erf and zoning of erf 453.

[2]	It is trite law that in order to succeed in this application for a final interdict in motion proceedings, the applicant must establish a clear right, an injury actually committed or reasonably apprehended and the absence of any suitable alternative relief.

The factual matrix

[4]	It would appear from the papers that a number of facts are not, in any substantive form, disputed between the parties. First respondent is a trust in whose name erf 453 (portion of erf 270) Chapman's Peak, Noordhoek (erf 453), is registered. Subject to what follows, first respondent was the registered owner of erf 270 Chapman's Peak in Noordhoek, the original mother erf which was subdivided pursuant to approval granted during 1993, into six erven with separate title. Prior to its subdivision, the rezoning of certain of the subdivided erven with formerly comprised erf 270, was zoned public open space in terms of the local authority's applicable zoning scheme.

[5]	Although first respondent has noted that he objected to the original zoning of erf 270 at the time and the rezoning application of erf 270 Chapman's Peak, applicant brought no application to review or set aside either the original zoning of the mother erf or the zoning of erf 453 after the subdivision and the conditions pertaining to the subdivision of erf 270 and the current zoning of erf 453 are accordingly common cause.
[6]    Approval was granted for the rezoning and subdivision of erf 270 by the relevant provincial authority in  1993, although it does appear from the papers that the process of subdivision may only have been completed in 1998; hence the averment of the date 1998 by first respondent in his answering affidavit.   First respondent's application for rezoning and subdivision of erf 270 emphasised that a

[7] The application for rezoning and subdivision emphasised that the site was the most important under-developed site in the context of the developing environment of Noordhoek. The application also emphasised that the site was relatively flat with a fairly high water table and that the site was "buildable" but careful control had to be
exercised to ensure the retention of its many natural attributes.   The application for subdivision or rezoning further proposed that:
1.	All parking must be provided on site and in accordance 	with the requirements of the rezoning scheme.
2.	A committee be established which would include 	members nominated by the local civic association which 	would be involved in the process of formulating an 	acceptable development plan and building design manual 	in respect of the land in question and which would 	ensure its satisfactory implementation. It was suggested that the community would remain involved in the process of the development of the site in that manner.

An Annexure (F) to the application for rezoning and subdivision contained the following regarding the development:

2.	that in terms of section 2(b) of the Scheme Regulations, the site be reserved as "open space for public use" and that no permanent structure be erected thereon without the Administrator's consent
3.	That a title condition be imposed restricting the use of the land for open space purposes only".

The   approval   for  rezoning   of  a   portion   of erf  270 Noordhoek   from   public   open   space   to   commercial, special  residential,  general   residential  and  civic and community   purposes   was   granted    subject   to   the conditions which are contained in the schedule.   One of the conditions was condition 10 which stated:
"All parking to be on site and in accordance with the requirements of the zoning scheme".
It would  appear that the word  "site" referred to the portion of erf 270 which fell to be rezoned as described in the top of the condition relating to the rezoning of the remainder of the subdivided erven, excluding erven 453 and 454.

[9]	The conditions were incorporated as title deed restrictions in the certificate of registered title in respect of the subdivided erven. During 1995, first respondent applied to the then relevant local authority for an extension of the said rezoning approval for a further period of two years and for approval of its development plan and design manual for the six erven. The design manual indicated that the development of erven 493, 455 and 457 would occur in three phases. The design manual made no reference to the utilisation of erf 453 for parking and specified that the area comprising erf 453 would be used as "farmland/open space". The manual also positively asserted that "this area will be retained as open space and used for grazing or growing produce".

[10]   On   26   June   1995   the   local   authority's   executive committee granted the extension of the rezoning approval and approval of the development plan and design manual on the basis that:

	[11]First respondent later applied for a further rezoning of erf 455 from "civic and community" to "general residential" to enable first respondent to consolidate erven 455 and 457 for the purposes of the construction of a 31-room hotel on   the   erven.     Although  this   application  was   later withdrawn by first respondent, the issue of parking now came to a head. Construction of the brick and mortar structure for the signage on erf 453, which is set out in photographs annexed to the founding and replying affidavits, occurred during early 2005. It appears to be common  cause that the local  authority approved the structure, provincial authority (being second respondent) had not.

Material Disputes

[13] I now turn to the material issues in dispute, It would appear that by the time this matter was argued before me, the material issue had crystalised into a dispute about the condition pertaining to the subdivision and rezoning of erf 453, namely that erf 453 was reserved in terms of section 2(b) of the Scheme  Regulations as "open space for public use" and whether this included the use by the public for parking their vehicles on such open space.

[14]	First respondent contends that erf 453 has been utilised for parking for more than 11 years and averrs that the construction of the parking lot to which the applicant has objected is merely an extension of an existing use of the erf. The question therefore which needs to be determined is whether first respondent contravened the restrictive title conditions of erf 453 and the conditions of approval of subdivision and rezoning pertaining to erf 453 by constructing a tar and kerbstone parking lot thereon and thereby restricting the greater part of the erf to the use of parking only and by the construction of the brick and mortar signpost on erf 453. This concerns an interpretation of both the title deed conditions and the conditions of approval for subdivision and rezoning.

following:

2.	First respondent's application for subdivision and rezoning clearly indicated that erf 453 would be retained as "open space" in the sense that it would be a paddock.
3.	The provincial authorities' conditions of approval and rezoning also indicated that the parking would be limited to the sites to be rezoned "special residential", "community and civil", "commercial" and "residential hotel only" which would comprise subdivided erven 494, 493, 456 and 457.
4.	The limitation was confirmed in express terms by the third respondent's predecessor in title in granting of approval for an extension of the rezoning and subdivision. This confirmation did not constitute a deviation of the existing restrictive conditions, but a confirmation thereof.

that the  second  respondent's  consent  had   not been obtained for the construction of a parking lot or the construction of a brick and mortar signpost.

In his view, it was "bizarre" to suggest that the construction of the kerbstone and the laying of the tar were neither constructions nor permanent. Similarly, it was incorrect to suggest that the large mortar and brick signage was not a construction of a permanent nature. Accordingly, he contended that the conduct of first respondent constituted a contravention of the restrictive title conditions pertaining to erf 453 and the conditions of subdivision and rezoning by the relevant respondents. The   conduct,   in   his   view,   of  first   respondent  was

therefore unlawful.

[18]	In addition, first respondent had averred that the use of erf 453 as an area for parking had been officially and formally recognised by the relevant authorities (insofar as formal approval was in fact necessary) starting with the Administrator in the 1993 rezoning in terms of the various development plans which have been approved.

at peak time, such as the Noordhoek County Fair on the nearby   Noordhoek   Avondrust   common   or   when   the Noordhoek   Farm  Village   was   busy  when   the   public parked their cars on erf 453.  There was no indication on the aerial photographs submitted by the applicant as to the day of the week or month in which the photographs were taken.

[20]   In his answering affidavit, Mr Wiley stated that the public

Evaluation

[21] Unfortunately there is no definition of open space that can determine this dispute with any measure of precision. Although not decisive (there is nothing equivalent in the applicable Divisional Council Zoning Scheme), the Zoning Scheme Regulations (revised December 1973) define open space as follows:
"Public open space or public place means any land used or reserved  in the Scheme for use by the public as an open space, park, garden, playground, recreation ground and ancillary facilities". 

"Although the concept of "structure" includes a building, it is a concept of much wider import...and, in   its   wide   sense,   means   anything   which   is constructed or put together, articles put together to form   one  whole   form  of  structure...or  anything which is constructed; and it involves the notion of something which is put together consisting of a number of different things which are not together or built together".   It is apparent from the photographs of the paved area annexed to the papers that it consists of building bricks of unequal size placed in a discernible pattern on levelled and (presumably compacted) ground and embedded in the mortar.In my view, the said paved area clearly falls within the everyday dictionary meaning of "structure"."

itself extremely instructive:
"I point out that the development plan and design manual   are   guideline   documents   and   are   not intended to be definitive or overly prescriptive.  It is by no means intended to cast the development in stone but rather to evolve over time to meet the reasonable practical needs of a growing local community in accordance with sound urban design, architectural town planning and traffic management principles".

[23] Although much was made of the letter of the DDG of Road Infrastructure of 21  November 2003 which, read together with the traffic impact statement of September 2003 as supporting first respondent's case regarding permission for parking on erf 453, it appears that the letter refers to erf 270 as a whole and not in any specific fashion to erf 453 and therefore the right to park on that
erf.   The very basis of this case turns on whether the protection of the open space on the subdivided erf 453 has been breached. If erf 453 was to be regarded as part of erf 270, what was the point of the specific condition pertaining to 'open space' on erf 453?

earlier version proffered by first respondent, indicated an absence of parking on that erf 453.   An examination of the  development  plans  proferred   by first  respondent indicates the intention to have open space in the area which is now erf 453.   Only on 14 September 2006 did a parking layout plan emerge which was supported by the City Engineers. For these reasons the papers did not reveal a dispute of fact sufficient to conclude that no finding can be made that no permission was ever granted for a permanent parking lot on erf 453.

No alternative remedy

1.     That   the   alternative    remedy   should    be adequate in the circumstances;
2.      that it should grant similar protection to the relief sought.

[28] After applicant had filed a complaint with third respondent, several months past during which the application received no response thereto. Applicant was advised of a site visit by second respondent during November 2006 and no further steps were taken by either respondent, nor was applicant advised that any steps
would be taken in future. Only after the present application was launched did a copy of a communication by second respondent to third respondent become available to the applicant.   The communication assumed that no development had taken place and described no timeframe within which any legal steps would be taken.
In my view, this is no basis for a contention that there was a satisfactory alternative remedy available.

 

[30]   For there reasons, therefore, the following order is made: