Republic of South Africa
			In the High Court of South Africa 
			Western Cape High Court, Cape Town

							Case No: 4841/2010
In the matter between:

The Trustees for the Time being of the 
Triple Eight Trust No. T2645/2004 				First Applicant

Patrick Christopher George Morton 				 Second Applicant

Tweed Heads Prop Investments (Pty) Ltd 			 Third Applicant

DLX Properties (Pty) Ltd 					 Fourth Applicant

Allen Targhi Tavakoli 						 Fifth Applicant

Tailorbird (Pty)Ltd 						 Sixth Applicant

Ruth Friedman 							 Seventh Applicant

Berenice Wolman 						 Eight Applicant

Steven Jossel							Ninth Applicant

The Trustees for the Time Being of The Barfin Trust 		Tenth Applicant
Michael Coles							Eleventh Applicant

And

Midnight Feast Properties 24 (PTY)				First Respondent
Juan Pera							 Second Respondent
Rene Pera							 Third Respondent
Gilda Vernier							 Fourth Respondent
John Anthony Vernier						 Fifth Respondent
The City of Cape Town						 Sixth Respondent
ECO Ventures Property Development				Seventh Respondent

Louw J

[3] At present there are improvements on the subject properties but neither the demolition of the existing structures nor the building works in respect of the development have at present commenced.

[4] Once erected, the building will be in excess of 20 metres in height and because it is to be erected on a consolidated piece of land, the setbacks from the erstwhile internal common boundaries between the separate erven will no longer apply resulting in a solid wall stretching for 60 meters from East to West along and below Kloof Road. It will dominate its surroundings in the manner depicted on 'Annexure 'LF7'. The applicants contend that this will constitute an overbearing development of an inappropriate nature.

[6] The City is the sixth respondent and abides the decision of the court. Eco Venture Property Development (Pty) Ltd is cited as the seventh respondent on the basis that the applicants believed it to be the developer of the project. Since the first respondent has stated that it is the developer, no relief is sought against the seventh respondent who does not oppose the relief sought.

[7] The applicants are the owners of properties in the neighbourhood of the proposed development and the majority of them have their permanent homes at these properties. Their standing to bring the application is not in dispute.

[8] The subject properties are subject to the Zoning Scheme Regulations of the Municipality of the City of Cape Town Zoning Scheme, (the scheme regulations), as published in Provincial Gazette 4649 dated 29 June 1980, corrected by Provincial Gazette 4684 of 1 March 1991 and amended by annexure "A2" to Provincial Notices 134 in Provincial Gazette 6438 of 18 May 2007.

[9] The subject properties have been zoned General Residential Use, sub-zone R4, permitting the construction of a building with 7 storeys together with basement storey/s. Once consolidated, the consolidated property will remain subject to the scheme regulations and continue to be zoned General Residential Use sub-zone R4.

[10] The applicants, who are represented by Mr. Bremridge attack the approval of the plans on a broad front. In outline, the applicants contend that:
1. The plans are unlawful in that it contravenes the NBR Act and other applicable, laws namely, the scheme regulations and section 17 of the Roads Ordinance, 19 of 1976;
2. The City's officials failed to apply their minds to the preceps of section 7 (1)(b)(ii) of the NBR Act by failing to undertake a proper sensitivity assessment and by failing to find that the negative factors listed in the section obtained;
3. The building control officer ('the BCO'), in this case Mr Moir, failed to make a proper recommendation as required by section 6 (1) of the NBR Act and failed to provide the decision maker, in this case Mr Theron, with sufficient information and in effect usurped the authority to make the decision under section 7 of the NBR Act.

[11] The relevant provisions of the NBR Act are section 4 (1), section 6 and section 7 (1). The relevant portions read as follows:

"4 (1) No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to be drawn and submitted in terms of this Act".

6   Functions of building control officers

(1) A building control officer shall-

(b) ensure that any instruction given in terms of this Act by the local authority in question be carried out;
(c) inspect the erection of a building, and any activities or matters connected therewith, in respect of which approval referred to in section 4 (1) was granted;

7 (1) If a local authority, having considered a recommendation referred to in section 6 (1)(a)-
(a) is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;
(b) (i) is not so satisfied; or
(ii) is satisfied that the building to which the application in question relates -

(aa)   is to be erected in such manner or will be of such nature or appearance that-

(bbb) it will probably or in fact be unsightly or objectionable;
(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;
(bb) will probably or in fact be dangerous to life or property, such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal:

Provided ..."

[13] It is common cause and trite that the scheme regulations constitute an instance of 'applicable law' under section 7 (1)(a) of the NBR Act and that the respondents' application for plan approval must comply with the scheme regulations.

[14] The applicants contend that the approved plans provide for a building which contravenes the following provisions of the scheme regulations:
1. Section 30, which restricts the coverage for a building on the subject properties to 50%;
2. Section 60, which imposes certain building lines and set-backs;
3. Section 75 which prohibits the erection of a building on the subject properties if any portion of the street boundary is less than 8 metres from the central line of the street.

[15] The respondents who are represented by Mr. Rosenberg and with him, Mr. Baguley, submitted that:

1. the City properly exercised its discretion to approve the first respondent's plans as they comply with both the provisions of the NBR Act itself as well as other applicable law in that:

1. the ceiling of the basement level is below ground level as defined by the scheme regulations and accordingly, the basement is exempted from the calculation of coverage so that the coverage permitted by the scheme regulations is not exceeded;

2. the basement level of the development is wholly below the ground level as defined by the scheme regulations and accordingly, no set-backs are required at the basement level;
3. the City has relaxed the set-back required on the Queens Road boundary so that the boundary there is correctly set-back;
4. the roads authority has relaxed the set-back required on the Kloof Road provincial road so that the basement and ground floor on the Kloof Road side are correctly set back.

[16] In my view, this application can be decided on the basis of the objections to the approval based on the coverage and setback restrictions, both of which turn on whether the basement parking garage must be excluded from consideration. The meaning of 'ground level', as defined in section 2 of the scheme regulations when applied to the basement parking garage is relevant to:
1. The coverage restrictions in sections 30 and 31 (2) of the scheme regulations, since storeys of buildings, 'the ceilings of which are below ground level', are in terms of section 36(a) to be disregarded in the calculations to determine the coverage restrictions; and

2.     The setback provisions in section 60 of the scheme regulations do not apply to a storey which is 'wholly below the ground level'.

Coverage

[17] The applicants contend that part of the ceiling of the basement parking garage is above the ground level and that the basement parking garage as a whole is therefore a storey of the building that must be included in the calculation of actual coverage. The respondents contend that only that part of the basement, the ceiling of which is not below ground level, is to be included in the calculation. It is common cause, however, that if the whole of the basement parking garage is included, the building as approved exceeds the 50% coverage allowed by the scheme regulations.

[18] Under section 31 (2) of the scheme regulations the permissible 'actual coverage' for the building on the subject properties is 50%. This means that the building may not cover more than 50% of the area of the subject properties.

[19] 'Actual coverage in relation to a building' is defined in section 2 to mean 'the area which is covered by such building calculated in the manner hereafter prescribed'

[20] Under section 35 (1) 'actual coverage' includes the area covered by all parts of the building on the subject property but section 36 provides that:

The areas covered by the following buildings or portions of buildings shall be disregarded in the calculation of Actual Coverage:
(a) Buildings or storeys of buildings the ceilings of which are below ground level
(b) ...
(c) ...
(d) ...'

[21] I agree with the applicants' contention that the basement is a storey of the building for purposes of section 35 (1)(a) and that if part of the ceiling of the basement is not below ground level, the whole of the basement (the storey) must be included in the calculation.

Setback

[23] The applicants contend that the setback requirements do apply to the basement while the respondents contend that the restrictions do not so apply.

[24]   Section 60 (6) of the Scheme regulations provides:

60 (6) Every storey below ground storey, other than a storey wholly below the ground level, shall for purposes of this section be deemed to be the ground storey.

[25] It follows that unless the basement is 'wholly below the ground level' it shall be deemed to be the ground storey and will be subject to the setback requirement of 8,165metres.

[26] The current definition of 'ground level' in section 2 of the scheme regulations was introduced by way of an amendment on 18 May 2007 and reads as follows:

[27] At the same time, Section 11 of the scheme regulations was introduced on 18 May 2007. It reads as follows:

Raising the ground level
Any unsupported earthbanks, soil retaining structure, column, suspended floor or any other device which exceeds 2.1m in height or enables a ground floor or platform to be more than 2.1m in height above the existing ground level shall require the Council's consent. Where a series or number of such structures are used to achieve a raised floor or platform, these shall require Council's consent where the cumulative height of these structures or devices exceeds 2.1m when measured horizontally over a distance of 3m or less'.

[28] In essence the dispute between the parties is that the applicants contend that 'ground level' refers to an historical existing level, that is to the level of the ground as it exists at the time plan approval is being considered. The respondents contend, on the other hand, that 'ground level' refers to the level as it will exist once the building or other structures or devices have been constructed in accordance with plans for which approval is being sought.

[29]   Prior to the amendment on 18 May 2007, the definition read as follows:

[30] The meaning of ground level under the previous definition clearly referred to the position as it will be once the building is erected. This is common cause. The respondents contend that the new definition has not brought about any change in this regard.

1. by reference to data in City's records; or
2. by a Land Surveyor's certificate, or alternatively;
3. through interpolation of such data or by another method as determined by the City.

These methods, it is contended on behalf of the applicants can only have application to the determination of an historically existing ground level at the time plan approval is being sought.

[32] The respondents contend that the definition of ground level must be read in conjunction with section 11 which was introduced at the same time. They contend that the purpose of introducing section 11 was clearly to prevent vertical retaining walls of excessive height or pillars holding up ground floors at heights of say 10 or 20 metres above ground level. A system allowing the raising of such structures or devices incrementally by up to 2.1m every 3 metres was therefore introduced to allow ground levels to be raised in a sensitive manner instead of in a vertical manner. The provision requiring the determination of the ground level with reference to the records of the City or a land surveyor's certificate were inserted, so it is contended, in order to ascertain the ground level before it is increased in terms of section 11. Such determination is necessary because section 11 requires the City's consent for any increase above 2,1 metres. The respondents therefore contend the 'ground level' as defined is the finished level of the ground once the building works as set out in the plan, are complete and not the level of the ground at the time approval is being sought, that is as it existed prior to the commencement of the project.

[33] The respondents consequently contend, that section 11 allows a developer to raise the ground level by 2.1m every 3 metres as of right and that measurements from 'ground level' as defined must then be taken from the top of the device or structure by which the level has been raised (or the uppermost of such device or structure in series) rather than from the level before it was raised.

[35] Mr Moir, who was the BCO on this project, was employed in various capacities by the City since 1974. He moved to the City's Building Survey Department in 1981 as a plans examiner. In 1990 he was appointed Principal Building Control Officer ('the BCO'). He retired in 2008 but was thereafter employed on a contract basis by the City as its BCO until March 2008. He has for 30 years examined plans submitted to the City and during his 12 years as BCO he considered thousands of plans. Mr Moir's evidence regarding the manner in which the City interpreted and applied the definition of 'ground level' is as follows:

24. The City consistently interpreted and applied this construction of the applicable provisions of the zoning scheme from the date of the amendments of 18 May 2007 until relatively recently.

26. When I considered the first respondent's basement, I was satisfied that it complied with the definition of a basement and that it was wholly below the ground level. I still hold that view unequivocally.
27. Section 11 of the zoning scheme regulations permits an applicant to raise the level of the ground by up to 2.1m without the consent of the City. The first respondent has done precisely this by erecting a retaining wall at 2.1m. There is no doubt that this legitimate and legislatively sanctioned device effectively raises the ground level and renders the basement wholly below ground level.

30. In my view the correct approach is the approach adopted in the present matter."

[37] The current definition of 'ground level' was introduced when the scheme regulations were amended on 18 May 2007. At the same time a new section 11 was inserted into scheme regulations. These new provisions, whether read together or on their own, are confusing, obscure and uncertain. 'Ground level' is defined in Section 2 as being both the existing and finished 'ground level'. Section 11 is headed 'Raising the ground level', but the body of the section does not in terms deal with the raising of the ground level itself.

[38] The surveyor, Mr Tony Vroom made calculations of the ground level on the subject properties which show, on the applicants' interpretation of 'ground level' namely ground level, though finished, as it existed at the time of plan approval, prior to the commencement of works, that the parking garage is not 'wholly below' that ground level and that the ceiling level of the parking garage is, in certain areas, above that ground level. His evidence is not disputed. It is therefore common cause that if the applicants' contention that ground level means the level of the ground as it exists at the time plan approval is sought, the basement is not wholly below ground level and that part of the ceiling of that the basement is above ground level and that the approved plan offends against the setback and coverage provisions of the scheme regulations and that plans should not have been approved.

[40] The case can in my view be decided, however, without making a choice between the two interpretations of the meaning of 'ground level'.

[41] I will accept in the respondents' favour (without deciding) that the level of the ground may legitimately be raised to constitute a new 'ground level', that is that the respondents' interpretation of the definition is correct and that the 'ground level' must be determined at the level of the ground at which it will stand upon completion of the works.

[43] The first question is therefore whether the retaining wall and soil fill will, once constructed, in fact result in an increase in the level of the ground. Only once it is found that the level of the ground will in fact be raised, the next question will arise, namely, whether the new level constitutes 'ground level' as defined in section 2 of the scheme regulations.

[45] The plain meaning of the words used in the definition of ground level indicates that it is the uppermost layer (surface) of the solid surface of the earth (ground) which may be above or below (the level) of a given point and which has been completed (finished) by giving it a surface appearance. The respondents contend that the retaining wall structure will result in the level of the ground being raised from the existing level to a new level which will then constitute 'ground level' as defined. For the top of the fill behind the retaining wall to constitute the new raised 'surface of the finished ground level' logically requires it to have a real connection to the existing ground, that is, to the solid surface of the earth before it was raised.

[47] This is not to say that the level of the ground cannot be raised by means of a device such as a retaining wall. However, in this case, all that will occur is that a relatively narrow band (given the dimensions of the project as a whole) of soil will be placed around a large part of the building. On the facts of this case, the ground level on the down slope sides of the building will not be raised at all.

[48] It follows that, assuming (without deciding) the respondents to be correct in their interpretation of the definition in section 2 read with section 11, the surface of the ground will not be raised if the building should be erected in accordance with the approved plan. The building erected according to the approved plan will consequently have a basement which is not be wholly below ground level and the whole of the ceiling of the basement will not be below ground level.

[49] It follows that the plans do not comply with the requirements of section 30 (relating to the coverage restrictions) and section 60 (relating to the setbacks restrictions) of the scheme regulations. It is not disputed that if this is the conclusion, the City should not have approved the plan and that the plan approval should be set aside.

[50] In the light of this conclusion, it is not necessary to consider the further points raised by the applicants.

[51]    It follows that the following order must be and is herewith made:

2. The First Respondent is ordered to pay the costs of this review application, such costs to include the costs occasioned by the employment of two counsel.

W.J. LOUW
Judge of the High Court