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

DATE:								21 APRIL 2008
In the matter between:

THE NOORDHOEK ENVIRONMENTAL 
ACTION GROUP							Applicant
and

THE DEPARTMENT OF ENVIRONMENTAL

JUDGMENT 
(Application for Leave to Appeal)

DAVIS, J

This is an application for leave to appeal against the whole of the judgment of this Court which was delivered on Tuesday 19 February 2008. I do not intend to traverse the essential facts of the case which was set out in that judgment. However it is necessary to commence with two preliminary points.

In my view, the judgment which was delivered, pursuant to which the order was granted, rests on two foundational findings: firstly that erf 453 was reserved in terms of Section 2(3) of the Scheme Regulations "as open space for public use" and accordingly, in terms of the finding of this Court, this could not include the employment of such space as a permanent tarred parking site for vehicles. That finding turned on the interpretation of the conditions which were attached to erf 453, as a result of the rezoning of erf 270.

Hence the case on appeal, and indeed a central plank of the case as argued in the principal matter, was whether legal permission had been granted to construct a permanent parking lot on erf 453. In short, once tt is accepted that there is a permanent structure, namely that the present parking on erf 453, together with the other construction on the site, constitutes a permanent structure, there can be no possible success in an argument that the zoning condition have not been breached.

I should again point out that the far more expeditious avenue for first respondent, as was debated in argument before this Court, is that legal permission should be sought and granted, and if that was the case this dispute would no longer be live. That is not an issue before this Court at present.

In summary;
1.	The present construction which was the subject of the dispute is a permanent structure. That is now an uncontested finding on which another Court would have to work;
2.	The provincial authorities' consent, which was expressly required as a condition in respect of rezoning and subdivision, had not been shown to have been procured insofar as erf 453 was concerned;
3.	

I mentioned earlier that the prohibition is against permanent parking. The reason for that finding is clear: on the papers a Court cannot be certain that, from time to time informal parking did not take place on the open space. Since a finding about temporary parking will not alter the nature of the open space, occasional parking of such a nature may well be possible. That is not an issue which is relevant to the determination as to whether a permanent structure was constructed on what was intended to be open space, save where permission was granted to alter that condition.

DAVIS, J