The High Court SA sets aside decision ‘Paarl Waterfront’

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN

On XXX

Before the Honourable M XXX

   Case no: 19822/2013

In the matter between:

THE DRAKENSTEIN HERITAGE FOUNDATION     First Applicant

ANYTIME INVESTMENTS 14 (PTY) LTD           Second Applicant

SYCOM PROPERTY FUND    Third Applicant

DENNIS MINITZER  Fourth Applicant

TREVOR HARRIS     Fifth Applicant

JAN PHILLIPS    Sixth Applicant

GROOT PARYS ESTATES (PTY) LTD          Seventh Applicant

and

DRAKENSTEIN MUNICIPALITY           First Respondent

THE REGISTRAR OF DEEDS      Second Respondent

THE PROVINCIAL MINISTER FOR LOCAL           Third Respondent

GOVERNMENT ENVIRONMENTAL AFFAIRS

AND DEVELOPMENT PLANNING

PAARL WATERFRONT DEVELOPMENT        Fourth Respondent

COMPANY (PTY) LTD

BERG RIVER BOULEVARD (formerly CIVINIX) PTY LTD           Fifth Respondent

BERG RIVER BOULEVARD TWO (PTY) LTD         Sixth Respondent

HERITAGE WESTERN CAPE     Seventh Respondent

ORDER

By agreement between the Applicants and the First Respondent (the remaining Respondents not opposing the application save for the Fourth Respondent which opposed the application but did not file opposing papers), it is ordered as follows:

  1. The Applicants’ non-compliance with the time period of 180 days stipulated in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), in respect of the decisions set out in paragraphs 2 to 5 below, is condoned;

  1. The decision of the First Respondent (“the Municipality”), taken on 8 May 2008, to award the tender entitled “Sports Facility and Berg River Development, Tender No Prop 01/2007” to Queensgate Property Group (Pty) Ltd and Evening Star Trading 745 (Pty) Ltd (“the successful tenderers”), is set aside;

  1. Consequent upon the relief in paragraph 2 above, any contracts concluded between the Municipality and any other party (including the successful tenderers and the Fourth to Sixth Respondents), pursuant to the tender award, are set aside;

  1. The decisions of the Municipality, taken on 31 October 2012 and 29 January 2013, to approve revisions to the “site development plan” (“SDP”) in respect of the proposed development of the property known as portions of erf 8431 Paarl (“the Property”), are set aside;

  1. The decision of the Municipality, taken on 20 September 2013, to continue with the sale of the Property to the Fourth Respondent, is set aside;

  1. It is recorded that the Applicants withdraw the relief sought challenging:

    1. The Third Respondent’s decision, taken on or about 14 November 2011, to rezone the immoveable property known as portions of erf 8431 Paarl (“the Property”) from “land reserved for recreational purposes and pump station” to “subdivisional area” (“the Provincial Zoning Approval”) (paragraph 5.1 of the Notice of Motion); and

    1. The decision of the Municipality, dated 11 May 2012, to inter alia approve a SDP in respect of the proposed development of the Property (“the Municipal Land Use decision”) (paragraph 5.2 of the Notice of Motion);

  1. Accordingly, the Provincial Zoning Approval referred to in paragraph 6.1 above, and the Municipal Land Use decision referred to in paragraph 6.2 above, remain valid and applicable, together with all conditions attached thereto.

  1. It is recorded that the conditions to the Provincial Zoning Approval currently include the following:

    1. Clause 2.2, which provides that only development (building, structures and basement parking- for the purposes of clarity basement parking shall mean any parking below the level of the 1:50 floodline) which is above the current 1:50 year floodline (as marked on the drawings in the approval application) is approved; and further that no raising of the site currently below the 1:50 floodline is permitted. It is recorded that the parties agree that the above allows for the provision of basement parking underneath buildings situated outside of the 1:50 year floodline area, with the floor level of such basements which may be lower than the 1:50 year floodline level. It is further recorded that the parties agree that the provision of surface parking within the 1:50 year floodline area will be permissable.

    1. Clause 2.4, which provides for adherence to the conditions laid down by the Environmental Authorization dated 28 April 2010 including, inter alia, clause 21 of the Conditions of Authorization which provides that any changes to, or deviations from, the project description set out in the authorization must be approved before such changes or deviations may be effected.

    1. Clause 2.6, which provides for adherence to the conditions laid down by the Department of Transport in terms of its letter of 08 March 2011, inter alia, in clause 3.2 that any changes to the basket of rights will require a re-assessment of the Traffic Study to determine the impact on the required roads infrastructure and bulk release; and

    1. The SDP together with all conditions attached thereto, remains valid and applicable, until a new SDP is approved in terms of paragraph 8.2 and 8.3 above, and paragraph 9 below.

  1. The public participation process for any further rezoning and/or sub division and/or SDP Amendment of the Property shall require, at a minimum:

    1. Notice to the Applicants’ attorneys by registered post;

    1. Notice to interested and affected parties in accordance with the Municipality’s policies; and

    1. Advertisements in one edition of the Cape Times, Die Burger and the Paarl Post newspapers.

  1. The municipality shall require that any development of the Property, or part thereof, substantially accords with an SDP approved by the Municipality

  1. The interim relief granted in paragraphs 1 to 4 of the order of this Court (per Mr. Justice Le Grange) on 31 October 2013 in case number 17421/13, and extended in paragraph 5 of an order (per Mr. Justice Yekiso) on 26 February 2014 in the current case, is uplifted.

  1. The costs of the Applicants up until the order of this Court of 26 February 2014 shall be borne by the Municipality on a scale as between Party-and-Party and any of the other Respondents who opposed the application up until that stage, jointly and severally. It is agreed between the parties that Mr Tommy Brummer and Mr Aubrey Withers be declared as expert witnesses and that the Respondents shall pay their costs and qualifying expenses/costs as taxed or agreed. It is further agreed between the parties that the Respondents shall pay the costs of two counsel, as taxed or agreed.

  1. Each party shall bear its own costs incurred since the order of 26 February 2014.

BY ORDER OF THE COURT

_______________________

COURT REGISTRAR

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