Townships Board's decision on Checkers DC - Midrand Estates

Department of Economic DevelopmentPrivate Bag X091, Marshalltown, 2107Economic and Development Planningpment PlanningTel No: (011) 634 7048Fax No: (011) 634 7091/3Email: sakkied@gpg.gov.zaENQUIRIES:REF:MR S. DE NYSSCHENGO15/3/2/2/4/3/59Adv. S MitchellSirAPPEAL IN TERMS OF THE PROVISIONS OF SECTION 139 OF THE TOWN PLANNING AND TOWNSHIPS ORDINANCE,1986 (ORDINANCE 15 OF 1986: ERF 906, LOUWLARDIA EXTENSION 25 TOWNSHIPA. RESOLUTIONThe <strong>Townships</strong> Board resolves that-(1) in terms of the provisions of section 139 of Ordinance 15 of 1986 (the Ordinance), the appeal be upheld;(2) in terms of section 139(6), the <strong>decision</strong> by the first respondent pursuant to section 139(1)(a)(ii)(bb) of the Ordinance onappeal before the Board, approving of an application for permission in terms of Clause 26(1)(b) of the Tshwane Town-Planning Scheme of 2008, to increase the height of the building(s) on Erf 906 Louwlardia Extension 25, be set aside;(3) in terms of the provisions of section 139(7) of the Ordinance the expenses incurred by or on behalf of the GautengProvincial Government be paid by the first respondent; and(4) in terms of the provisions of section 139(8) of the Ordinance no order be made with regard to costs (party and partycosts).Kindly acknowledge receipt of this letter.Yours faithfullyI. de NysschenCHIEF EXECUTIVE OFFICERDATE: 22/04/2010ID5650(0004)Economic and Development Planning, Matlotlo Extension, 31 Simmonds Street, Marshalltown, 2107

hearing of the merits of the appeal, the review application to the High Court in respect of the Board’s <strong>decision</strong> to reject thepoint in limine regarding the locus standi of the appellant, had not been set down. 7 In the appeal before the Board, theMidstream Home Owners’ Association was the appellant, the City of Tshwane Metropolitan Municipality (CoT) the firstrespondent and Shoprite Checkers (Pty) Ltd the second respondent.(2) The rights granted in terms of Amendment Scheme 945 of the Centurion Town-Planning Scheme of 1992 (alsoreferred to as Schedule 1287) form the basis of and need to be evaluated to adjudicate the height increment<strong>decision</strong> of the first respondent of 15 September 2009 (paragraph (1.7) above). A copy of A/S 945 is annexed tothese reasons, as perpetual reference will be made to this amendment scheme. 8 When this amendmentscheme became part of the TTPS, Schedule 1287 was described as Annexure T. Annexure T is defined in theTTPS. This amendment scheme emerged from the establishment of the township Louwlardia Extension 25 andwas adopted in terms of section 125 of the Ordinance. 9(3) Amendment Scheme 945 in Column 1 describes the township as Louwlardia Extension 25, the erven as 904 and905, as they were at the time of the establishment of the township, and the use zone as “Industrial 2”. UnderHEIGHT in Column 6 the following appears “2, but may be increased with approval of the local authority”. It wascommon cause that the figure 2 referred to two storeys. The other important columns for the purposes hereofare discussed individually below.(4) The TTPS was prepared in terms of section 18 of the Ordinance and was adopted on 23 April 2008 by virtue ofPremier’s Notice No. 497/2008. It represents a consolidation of a number of other town-planning schemes whichseparately regulated town-planning within the area of jurisdiction of the CoT, inter alia, the Centurion Town-Planning Scheme of 1992.(5) Clause 4 of the TTPS contains the transition clause.(5.1) The premise upon which the Board approaches the transition clause is:- That A/S 945 is the approved town-planning scheme in respect of the site. That A/S 945 contains a provision that the height may be increased with the “approval of thelocal authority”. (Accent added). That some action (application/application for permission) on the part of the owner was requiredto obtain such approval.(5.2) The appellant relied on Clause 4.1 which, paraphrased, reads:-“Any consent, permission or approval granted in terms of the provisions of a Town-Planning Scheme inforce for the erection or use of buildings or for the use of land, or any rights legally exercised in terms ofsuch scheme, before 23/4/2008, shall be deemed to be a consent, permission or approval in terms ofthe provisions of this Scheme.”The Board does not in detail deal with the proviso (not quoted above), because no party alluded to it. Suffice tosay that section 43 of the Ordinance deals with the so-called non-conforming uses when a scheme is proclaimed,i.e. where an owner “looses” his rights. In the matter before the Board, there is no conflict with the TTPS. Theowner retains its rights together with the condition of increase.7 The reasons why the Board was prepared to proceed with the hearing of the merits prior to that set down date are contained in the <strong>decision</strong>of the Board when granting an application by the second respondent for the postponement referred to above.8 3 pages are annexed.9 See paragraph (1.4) above.

(5.3) The second respondent, after questions by the Investigating Committee, relied on Clause 4(3) whichreads:-“Where any application is on the date of commencement of this scheme pending before the local authority interms of a scheme substituted by this scheme, it shall be dealt with as if this scheme has not been promulgatedand be finalised accordingly.”The Board holds the view that no application was pending on the date of adoption of the TTPS. A/S 945 existedas the town-planning scheme in operation. Any action that was needed was clearly required in terms of Clause4(2) of the TTPS which, paraphrased, reads:-“Any annexures or schedules (such as Schedule 1287) promulgated in terms of the former Centurion TownPlanning Scheme shall be deemed to be granted (sic) in terms of this scheme”, for which conversion tables wereprovided.(6) The Board endeavours to ascertain what the action was for the second respondent to acquire the increase inheight authorised by A/S 945.(6.1) Fact is that the second respondent’s representative, PQ Le Roux, signed an application form titled“Application for Permission for a Height Restriction Relaxation” on 15 July 2009, 10 approximately 15months after adoption of the TTPS. That application was approved on 15 September 2009. 11Paragraph (3) above recorded that the height could be increased with the approval of the firstrespondent.(6.2) The TTPS distinguishes between Permissions and Consents (Clauses 15 and 16 respectively). Thisdistinction is important because, as will become evident, the first respondent in its <strong>decision</strong> to adopt theTTPS, decided on procedures and formulated working documents indicating that Permissions could bedelegated to either the Planning Committee or the Building Control Section for a <strong>decision</strong> whileConsents had to be decided by the Planning Committee.(6.3) The applicant (second respondent) equated approval with Permission and elected to go the permissionroute. 12 The Board will in due course examine the Permission route, but have to state upfront that theBoard holds the view that the applicant should have applied for consent. Clause 16(1)(b) of theTTPS requires an owner of land to apply for consent for the erection of a building to a height greaterthan that permitted in Table D or Annexure T. It authorises the matter before the Board in specificterms.(6.4) Clause 15 (providing for Permissions) on the contrary provides in general and in wider terms forpermission to relax conditions stipulated in the scheme, its schedules and annexures where suchpermission is explicitly stated. It should be reminded that A/S 945 required the approval of themunicipality. The Oxford Dictionary lists both consent and permission as synonyms of approval.Furthermore, Clause 26(1)(d) dealing specifically with height requires Permission in listedcircumstances, none of which is as specific as the consent require by Clause 16(1)(b) mentioned in theprevious sub-paragraph.10 The letter by Ella du Plessis to which reference will be made later was part of that application.11 The approval indicated that it was approved pursuant to Clause 26(1)(c) of the TTPS. All parties, including the first respondent, agreed thatthe letter of approval should have referred to Clause 26(1)(b).12 Paragraph (6.1) above.

(7) If the Board is incorrect in making the distinction refered to in paragraph (6) above, the Board now in thealternative proceeds to examine whether the first respondent followed the correct procedures pursuant to therequirements for Permissions in the TTPS.(7.1) Clause 15 of the TTPS deals with Permissions and requires “an application procedure as required bythe municipality”. That Application requires “documents as prescribed by the municipality”. TheApplication for Permission-form furnished by the first respondent to Shoprite Checkers is, according tothe first respondent, such a document prescribed by the municipality.(7.2) The Investigating Committee made enquiries from the first respondent regarding the prescribeddocuments to which the representative referred to as “our manuals”. 13 It appeared that the prescribeddocuments were contained in a Report to Council when the TTPS was adopted and the Councilresolution in doing so. The representative conceded that those documents were not “prescribed” in anylegal fashion and the Board notes that the concept of “prescribed” is not defined in the TTPS. Therepresentative reported that the complete Council report consists of more than 700 pages and that she,with the assistance of the author of the report, extracted some 57 pages dealing with what she regardedas the manuals for this matter, which she undertook to provide to the Board. That bundle constitutedExhibit 6. The extracts contained working explanatory documents divided into two vertical columns, thefirst of which contained extracts from the TTPS, being references to clauses in the Scheme, and thesecond column “Procedures to be followed by applicant”. It appeared that certain applications weredelegated to City Planning and other applications to the Building Control Section. She lateracknowledged that the application for permission in this matter was delegated to the Building ControlSection. 14(7.3) Under the heading “Clause 26 : Height of Buildings”, the under-mentioned extracts applied (according tothe first respondent) to the matter before the Board and are repeated verbatim:Permission of the Municipality in terms of the TshwaneTown-Planning Scheme of 2007.Clause 26:Height of Buildings(1) No building shall be erected so as to exceed theheight or number of storeys specified in thefollowing Table D:(b) In an “Industrial 2” zone themunicipality may grant permission to anincrease in height in respect of anybuilding, which requires additional heightfor a manufacturing process or storagepurposes.Procedure to be followed by the applicant.Written application must be submitted to City Planning,Building Control Section, and shall contain thefollowing:a) A motivating memorandum.b) Power of attorney if the applicant is not theowner.c) Copy of the title deed.d) Building plans indicating the additional heightrequired.e) Application fee.Advert not necessary. (Accent added).13 The female representative was the Deputy Director: Southern Region of the Department: City Planning, Development and Regional Services.14 A matter that was criticised by the appellant, in the Board’s view with justification, as will appear later in these reasons.

(4) Where the height of a building isspecified in storeys only, then a storey shall beequivalent to a height of 3,0m measured fromthe floor to the floor above, except where asingle storey is designed as a double volume, inwhich case the height of such storey shall not bemore than 6,0m floor to ceiling withoutpermission of the municipalityWritten application must be submitted to the CityPlanning, Building Control Section, and shall containthe following:a) A motivating memorandum.b) Power of attorney if the applicant is not theowner.c) Copy of the title deed.d) Building plans indicating the additional heightrequired.e) Application fee.Advert not necessary. (Accent added).The Board returns to these documents when dealing with the question of advertisement in the next paragraph.(8) The Board returns to the requirements of Clause 15 of the Scheme: Permission of the Municipality. Clause15(2) reads:-“The prescribed advertisement procedure shall be complied with and the Municipality may waive this requisite wholly orpartly if its (sic) satisfied that such non-compliance is not of such a material nature that it is likely to effect (sic) anyonedetrimentally”.(8.1) In the absence of any clause in the TTPS authorising regulations or rules or procedures to beprescribed, the “prescribed advertisement procedure” referred to in Clause 15(2) can only mean theprovisions of Clauses 16(2), (3) and (5). These clauses not only apply as advertisement procedure for aconsent use application (Clause 16(1)(a)), but also for various other purposes not only of the Schemebut also in respect of the Ordinance. The rule of interpretation requiring to take cognisance of provisionsof the law as a whole, applies. The advertisement procedure is required for:- The extension of the period provided in the Ordinance for the validity of the non-conforming usesreferred to in paragraph (5.2) above. (Section 43(5) of the Ordinance). The land-uses mentioned in Clause 14(6) of the Scheme, such as refuse tipping or the removal of sand,clay, gravel or stone. The use of Schedule 9 which refers to Home Enterprises,but more importantly and as stated before:- The erection of a building to a height greater than that permitted by Table D orapplication in this instance. (Clause 16(1)(b)).Annexure T, the(8.2) The representative of the municipality conceded that Clauses 16(2), (3) and (5) were not complied withdue to the manuals indicating that advertisement was not necessary. (Paragraph (7.3) above).

(8.3) Clause 15(2) of the TTPS enjoins the municipality to exercise a discretion before waiving or partlywaiving the requirement of advertisement. The municipality has to be satisfied that the non- complianceis not of such a material nature that it is likely to affect any one detrimentally. That discretion can onlybe exercised once the application is received. The draftsmen of the manuals consequentlymisinterpreted the Scheme by stating upfront, even before an application is received, that advert is notnecessary. That effectively negates the opportunity and right of the municipality to exercise a discretionwith reference to a specific application.(8.4) The first respondent relies on the fact that no negative comments were received from adjoining owners(Exhibit 5, paragraph 12). The Board regards such a process as far short of the advertisementprocedure prescribed by the TTPS. A case in point is the consent by the township owner of Heritage Hillsituated to the north of Brakfontein Road. Many of the owners of erven in Heritage Hill may haveobjected either if the advertisement requirements of the scheme were followed (which, in the Board’sview is required) or if the Home Owners’ Association of Heritage Hill (HOA) was approached instead ofthe township owner (which proves that the method of neighbours’ consents is suspect). A townshipowner who has sold an erf in a township has no interest in such an erf any more. The rights of thepurchaser are then protected by the HOA. The criticism of the appellant in this regard is justified. 15(8.5) The second respondent contends that, as far as the appellant is concerned, the matter is cured by thethree day hearing that the appellant has had. The Board does not agree. The appellant of its ownvolition objected without having been notified and that is a matter which can still be upset on review.Who knows how many objectors would have come forward if the proper and pre-describedadvertisement procedures of Clause 16(2), (3) and (5) were embarked upon?(9) Finally, Column 8 of A/S 945 specifically excluded the consent use procedure of Clause 15 of the CenturionScheme for the increase of the FAR.(9.1) That specific exemption in respect of FAR is a indication that the intention was that prescribedprocedures (whatever they were) should be followed for an approval of extra height. The firstrespondent’s reliance on the exclusion of the Clause 15 procedure in Column 8 of Amendment Scheme945 (Schedule 1287) in respect of the FAR is rejected with regard to the height contained in Column 6 ofthat schedule (Exhibit 5, paragraph 3). The fact that the applications in respect of the FAR and theheight were equated in paragraph 5 of Exhibit 5(first respondent’s Heads of Argument) is consequentlyalso rejected.(9.2) Now that the TTPS applies, Clause 15(2) should be complied with for an increase in height.The Board consequently comes to the conclusion that the first respondent erred in not having complied with theprescribed advertisement procedure of Clause 15(2) of the TTPS with regard to the second respondent’sapplication for permission for additional height. The implications of this error have been discussed above. The<strong>Townships</strong> Board must stress that its reason for reaching for this conclusion is based on the Board’s opinion thatthe first respondent could not consider the full merits of the application, because it failed, or was unable, toexercise its discretion in terms of Cluase 15(2) of the TTPS properly.15 Exh.12, p.2, paragraph 4 and sub-paragraphs 4.1 to 4.3.6.

(10) The appellant critizises the fact that the Planning Department of the CoT did not consider the application, statingthat the general principles of a town-planning scheme (that requires co-ordinated and harmonious development)was ignored. The Board shares that view. The Board had a closer look at the extracts (the manuals) referred toin paragraph (7) above, received from the first respondent’s representative. 16(10.1) The report that served before the CoT for the approval of the TTPS contains 7 annexures, the last threeof which are:-5. Permission Procedure.6. Revised delegations in terms of the TTPS.7. The TTPS itself. 17This resolution to approve the TTPS created the manuals according to the representative of the CoT.(10.2) Annexure 5 of the report contained the delegations to City Planning and to Building Control to whichreference was made in paragraph (7.2) above. 18(10.3) Annexure 6 commenced on p.481 of the report that served before the CoT. Annexure 6 contained:-“POWERS DELEGATED TO THE SECTION 79 CITY PLANNING COMMITTEE”The City Planning Committee was mandated to sub-delegate the powers and it appeared that delegation couldtake place to the Mayor with further powers of delegation. 19(10.4) Annexure 6 contains 76 items with regard to the TTPS that delegated the powers of <strong>decision</strong> tothe City Planning Committee. Those 76 items refer to many of the clauses to which reference weremade in this appeal, such as Clause 14 (Item 24), Clause 15(Item 27) and Clause 26(4) [Item 47].(10.5) More importantly is Item 42 that reads:-“To grant or refuse permission in terms of clause 26(1)(b) to increase height in respect of any buildingwhich requires additional height for a manufacturing process or storage purposes in an „Industrial 2‟use zone”. 20This requirement should be read in conjunction with Clause 16(8) of the TTPS which reads:-“(8) The consent shall be null and void if the requirements imposed in considering the application have notbeen complied with”.Those requirements can only be the <strong>decision</strong> of the CoT dealing with the delegations contained inAnnexure 6 of the report that served before the CoT when the TTPS was approved. Paragraph(10.7) below records that the delegations were approved by the CoT in paragraph 9 of the CoTresolution approving of the TTPS.16 Extracts made by the first respondent handed up as Exh.6.17 The page where the annexures appear is not paginated, but it is the page on which the word “Resolved” appears for the taking of theresolution to approve the TTPS.18 Annexure 5 constituted pages 466 to 480 of the report that served before the CoT.19 P.481 of the report to the CoT for approval of the TTPS.20 P.485 of the report to the CoT for approval of the TTPS.

The height of a building in the TTPS is the height of any part of the building as measuredvertically from the ground level of the footprint of the building to the highest point of the buildingas indicated in the diagrams in Clause 26. 23 The letter/application then came to the conclusion:-“Therefore for the buildings to comply with the definition of height as described in the TTPS theheight in respect of these properties should be increased to a maximum of 26m.”The Investigating Committee held the view that the above quoted conclusion went over a hurdle withoutexplaining how the application came to the 26m applied for.(11.2) The second respondent’s Heads of Argument (Exhibit 10) did not assist the Board to overcome theproblem the Board had with the conclusion in the immediate preceding sub-paragraph. The secondrespondent with regard to the existing rights stated that the second respondent, having regard to theCenturion Scheme, was entitled to construct the wall structure to a height of 10,5m, i.e. a two storeyheight. When the first respondent granted its approval for an increase in height to 25m, so said thesecond respondent, the first respondent wished to dovetail the second respondent’s rights with theTTPS and merely reconfirmed the existing rights which the second respondent previously acquired. 24That conclusion did not bring clarity because three different parties had three different views whatthe height of the building should have been if they all had the dovetail requirements of the secondrespondent in mind. Ella du Plessis on behalf of the second respondent applied for 26m. A report that served before the Building Controls Section that (according to the first respondent)had delegated authority as indicated earlier, stated:-“In terms of the Tshwane Town Planning Scheme 2008 the height is restricted to 18,0m andthe exercised is 21,0m”. 25 (Accent added). The first respondent in possession of all the above information granted 25m.(11.3) The Investigating Committee in an attempt to get clarity asked Ella du Plessis during examination wherethe balance of 14,5m (25m -10,5m = 14,5m) were to be found. Her answer was:-“In the roof”.This reply differs from what the representative of the first respondent replied to the same question. Shesaid that part of the 14,5m was in the landfill. The second respondent holds a different view. The secondrespondent explained that where a platform is constructed by excavating a portion of higher laying landand using the same material to fill up the lower laying area, the platform will have been constructed atground level being the average between the highest and the lowest laying area. The platform inquestion, explained the second respondent, was constructed as aforesaid, with the result that groundlevel equals the level of the platform. 2623 The diagrams in Clause 26 clearly shows that the height of a building in terms of the TTPS is measured to the top of the roof.24 Exh. 10, p. 7, paragraph 14.25 Exh. 12, p.25, paragraph 2, report by Building Control.26 Exh. 10, p.7, paragraph 14.

(11.4) Finally, with regard to the letter of Ella du Plessis, the photograph annexed to Exhibit 12 as AR7 27shows the difference in height that the parties mentioned above have encountered. The new building isin fact higher than the existing building. That difference in height negates:- Ella du Plessis’ statement in the letter that the new building will be the same height as the previousbuilding. The second respondent’s submission that by granting an increase in height to 25,0m, the firstrespondent merely converted to meters the erstwhile applicable height. 28The Board does not believe that Table D of the TTPS (on which the second respondent relies) appliesto this matter. What is significant to the Board in regard to Table D is the fact that Table D describeswhat height the TTPS has in mind for an “Industrial 2” building where Table D does apply. Thestandard/benchmark is 18m, the height that also featured in the report that served before the structurethat improved the increase in height. If Table D did apply the height would have been 18,0m and thephotograph referred to above would (if correctly applied) shown that the extension of the building wouldhave been lower than the existing. There is nothing in the TTPS that requires an extension of a buildingto be as high as the existing, if the new scheme is correctly applied to a building constructed pursuant tothe repealed scheme, as both respondents seem to suggest.(11.5) The Board’s own investigation of the building plans handed up did not assist the Board to clear up theconfusion:(11.5.1) Exhibit 9 was handed up by the second respondent after the evidence of Ella du Plessis inresponse to a request by the Investigating Committee for copies of the plans that accompaniedthe application.(11.5.2) Drawing 2250 prepared by architects and titled Dry Goods Centre : South and West Elevationsand Section, dated 15 November 2009 (original date), shows:- The height of the wall: 13,5m (as opposed to the 10,5m). The total height of the buildings: 22m as opposed to the measurements of the threeother parties referred to in paragraph (11.2) above.The Board does not find a stamp of approval of that plan on the document itself, but refers to itas a record of what accompanied the application. It would have at least recorded the existingposition.(11.5.3) Drawing 502/06/204, dated 18 May 2009, prepared by consulting engineers titled Fire Plan andapproved by the Council on 3 September 2009, was handed up by the appellant as part ofExhibit 11, being part of the information gathered from the first respondent during the visitreferred to in paragraph (14.4) below. The Board investigated that plan and found:- The height of the wall: 14m The total height of the building: 24,5m(11.5.4) Not one of the plans inspected by the Board confirms Ella du Plessis’s statement that 14,5mare to be found in the roof.27 Exh, 12, p.29 (paginated).28 Exh. 10, p.8, paragraph15.

(12) The under-mentioned matters relating to the height of the building(s) should be addressed:(12.1) The second respondent was, with the approval of two storeys in terms of the Centurion Town-PlanningScheme, entitled to erect a building of 10,5m high (excluding structures that formed part of the roof).The Building Control Section that also approved the increase in height came to the conclusion that theexisting building was 21m high.(12.2) The definition of a storey in the TTPS does not refer to meters like the Centurion Scheme did.(12.3) The appellant argues that AS/945 expressed the height of the original building as 2 storeys and that interms of Clause 26(4) of the TTPS the height of a 2 storey building may not exceed 6, 0m 29 ; and thatany increase in height had to be expressed in storeys and not in meters. 30 The second respondentcriticises this approach and states that it would result in absurd consequences.(12.4) The representative of the first respondent found a way to overcome these two conflicting contentions(Exhibit 5, paragraphs 8 and 11). The first respondent interprets the TTPS by applying Clause 26(4) toresidential building only and does so in view of the opening words of Clause 26(5): “In the case ofindustrial buildings....”. The first respondent took the initiative to make these two clauses work inpractice. The word “building” in Clause 26(4) is, however, defined and does not relate to residentialbuildings only, with the result that the scheme will have to be amended to suit that interpretation. TheBoard does not believe that the appellant is correct in stating that the increase in height had to beexpressed in storeys and not in meters. Clause 26(5) reads:-“In case of industrial buildings, light industrial buildings, warehouses, wholesalers and distribution centreswhere the height is expressed in storeys then the height of a single storey may be equivalent to the totalheight of all the storeys converted to meters and the maximum height of such building shall exclude theheight of the roof”. (Accent added).(12.5) The second respondent, after the submissions made in paragraphs 14-17 of Exhibit 10 (to whichreferences were made in the previous clauses dealing with the height of the extension(s)) states (in thealternative, in the view of the Board although not stated to be in the alternative) that even if the aforesaidapproach (paragraphs 14-17) is not correct, the building constructed does not offend the TTPS(paragraph 18 of Exhibit 10). The motivation for that conclusion is, inter alia, based on the submissionthat the roof structure can be used to increase the total height of the building. The appellant, on thecontrary, comes to the conclusion that the first phase of the development (the old building(s)) did notcomply with the provisions of the Centurion Town-Planning Scheme. 31 That conclusion is supported bythe Board’s own investigation regarding the height of the wall that was supposed to be 10,5m. Asindicated above, architects’ drawings found the wall to be 13,5m and engineering drawings found 14m.The Board’s finding in regard to the issue of height will be made in due course as part of a concise findingsubstantiating its resolution.29 Clause 26(4) of the TTPS reads: “Where the height of a building is specified in storeys only, then a storey shall be equivalent to a height of3,0m measured from the floor to the floor above except where a single storey is designed as a double volume, in which case the height of suchstorey shall not be more than 6,0m floor to ceiling without the permission of the Municipality.”30 Exh. 1, p.8, paragraph 29.3.31 Exh. 12, p.12, paragraph 37.

(13) The Board returns to an A/S 945, the subject of the appeal before the Board.(13.1) Column 7 determines coverage. It is 40%. There is no dispute in this regard. The appellant inreply indicated that the total coverage at present approaches the 30% mark.(13.2) Column 8 determines the FAR. It was common cause that the FAR was 0, 21 intended for the firststage of the development and that Column 8 provided that the FAR “can be increased to a maximum of0,4 with the written consent of the local authority” and that the Clause 15 consent use procedure of theCenturion Town-Planning Scheme was excluded. Ella du Plessis applied for the increase to 0, 4 toaccommodate the second phase. 32 The letter of approval, dated 9 October 2008, from CityPlanning, Development and Regional Services to Ella du Plessis provided specifically that “therequirements of the Centurion Town- Planning Scheme remain applicable.” It should be noted that thereference to the Centurion Town- Planning Scheme applied to the FAR only. There was also adisclaimer in the letter of approval itself with reference to “any application that may follow”. There was nodispute in this regard. 33 The second respondent in its presentation agreed on this score much morepertinently than what was recorded in paragraph 7 of its submissions (Exhibit 10).(14) Column 12 of A/S 945 requires attention.(14.1) It was already established that A/S 945 originated from that part of the Conditions of Establishment thatrecords, as the heading indicates:-“CONDITIONS TO BE INCORPORATED INTO THE TOWN PLANNING SCHEME IN TERMS OFSECTION 125 OF ORDINANCE 15 OF 1986 IN ADDITION TO THE PROVISIONS OF THE TOWNPLANNING SCHEME IN OPERATION”Those conditions at the time amended the Centurion Town-Planning Scheme. The manner inwhich A/S 945 found its way into the TTPS was discussed above. Column 12 repeated conditions whichcould not, according to the Conditions of Establishment, all be ascribed to the EnvironmentalManagement Plan (EMP). Column 12 reads:-GENERAL121) An engineer must before building plans are submitted, be appointed and submit a certificatetogether with the building plans wherein he certifies that he studied the geological report and thathe implemented the necessary measures of the buildings and the site and the installation of wetservices, and that the whole development, as far as possible from a geological point is safe. Oncompletion of the building he must certify that all his specifications have been met.2) The development should comply to the development guidelines for development along the AcitivitySpine of the Centurion N1 Area to the satisfaction of the Chief Town Planner.32 The extensions to the building now on appeal before the Board is part of the second phase.33 The Board deals separately in this regard with the appellants’ contention that the manner in which these buildings are constructedeffectively increases the FAR.

3) The potential floor area should be approximately broken up into separate buildings, which doarchitecturally complement each other.4) The larger buildings should be placed in such a way that its visual impact be minimised.5) The building facade and roof structures should be visually articulated in terms of colour, shape anduse of material to the satisfaction of the Chief Town Planner.6) Intensive landscaping should be provided to the satisfaction of the Chief Town Planner by anappointed professional consultant in all open areas, the sidewalks, edge of buildings as well as onthe parking areas, which shall at least consist of trees planted at a ratio of 1 tree for every threeopen parking bays.7) All aspects listed in the Environmental Management Plan (EMP) should be implemented to thesatisfaction of the local authority and the Gauteng Department of Agriculture, Conservation andEnvironment. In this regard an Environmental Control Officer should be appointed before anyearth works may be done. The Environmental Control Officer should oversee the constructionphase and before final occupation should certify that all conditions of the EMP were fullyimplemented.(14.2) Uncontested evidence showed that Condition 12(1) has not been complied with. No engineer has giventhe certificate which was required “before building plans are submitted”. The Board regards this as anomission on the part of the first respondent.(14.3) Buildings have not been placed in such a manner that their visual impact is minimised. In this regard,the Goods Return Warehouse is a case in point. The building is however complete and the Board’sview is that rehabilitation will have to be looked at afresh.(14.4) Intensive landscaping was required. There is evidence that consultants were appointed, but there is noevidence that a landscape development plan was ever approved and prepared by “an appointedprofessional consultant”. The following evidence is before the Board:During the second day of the three-day hearing an arrangement was made of which theInvestigating Committee had knowledge that a delegation of the appellant will visit therepresentatives of the first respondent, present at the appeal hearing, in their offices to inspectfiles to ascertain to what extent the requirements of Column 12 have been executed. Theappellant reported to the Board on the third day in the presence of the other parties.A copy of a minute found in the municipal files titled: Requirements for the Drafting ofLandscape Plans for approval, was presented to the Board. 34 That minute, dated 27November 2000, indicated that the landscape development plan was not approved and that “amore detail design” was required.Two landscape development proposals prepared by Gary Bartch International were found, butnot one of them approved. The delegation of the appellant came to the conclusion that alandscape development plan was not approved.34 Exh. 12 : The appellant’s reply to the first respondent’s submissions, p.30, Annexure 8 (copy of the minute).

(14.5) The second respondent contends that rehabilitation such as the planting of trees only takes place aftercompletion of the buildings. The Board accepts that, but if a landscape development plan has not beenapproved eight years after A/S 945, the Board cannot accept that this condition of Column 12 has beenfulfilled, another omission on the part of the first respondent. The appellant on the contrary, and in thepresence of the first respondent, reported to the hearing on the third day that the employees of the firstrespondent could not indicate to the delegation how they evaluated and signed off therequirements of Column 12. 35(15) A debate ensued in regard to the primary rights attaching to the site. This related to Clause 14(7) of the TTPS.The history in this regard evolved as follows:(15.1) Table B (Clause 14) of the Centurion Town-Planning Scheme described the primary rights for an“Industrial 2” zoning as:-“Light industries as approved by the local authority, cafeteria, wholesale trade, warehouses, distributioncentre”.(15.2) Amendment Scheme 945 (Schedule 1287) consequently described the use rights as:-“Warehousing, distribution centre and related offices”.(15.3) Table B (Clause 14) of the TTPS lists the primary rights for an “Industrial 2” zoning as:-“Cafeteria, car wash, commercial use, light industries and parking garage/site subject to Schedule 10”.(15.4) Commercial Use in the TTPS is, inter alia, defined as:-“Land and buildings used for distribution centres, wholesale trade, storage, warehouses”,and other uses that are not material to the matter before the Board.(15.5) Distribution centre is defined in the TTPS as:-“A warehouse or other building from which goods are distributed and includes a transport depot”.The definition in the Centurion Town-Planning Scheme was exactly the same.35 The appellant referred to the EMP requirements. It is clear from Exh. 12 that the appellant holds the view that all the conditions in Column12 are requirements of the EMP. The Board is not certain that that is so. The contents of the requirements of Column 12 are, however, clearand not in dispute; their execution is.

(15.6) Warehouse is defined in the TTPS as:-“Land and buildings designed or use as a storage depot in conjunction with a wholesale tradingestablishment or any other storage depot”.The definition in the Centurion Town-Planning Scheme was:-“A building or ground that is used for the temporary storage of goods”.The above are all the definitions of the primary rights described in Column 3 of Amendment Scheme945, i.e. Warehousing and Distribution Centre.(16) Clause 14(7) of the TTPS reads:-“When application is made to the Municipality for any consent or permission in terms of this scheme theMunicipality may, in giving consent or permission, impose any condition it may deem fit or grant exemption fromthe provisions of the scheme or relax the requirements of the provisions: Provided that such exemption orrelaxation is stipulated in the scheme and that any application in terms of such exemption or relaxation may besubmitted simultaneously with the application for the Municipality‟s consent: Provided that such relaxation shallnot increase the FAR, or the maximum height, or the maximum coverage applicable to the primary use of theproperty”.(16.1) The appellant, correctly in the view of the Board, pointed out that an approved amendment schemeamends the general provisions of the scheme in operation. The appellant relies on section 18 of theOrdinance. The appellant submits that Amendment Scheme 945 is such an approved amendmentscheme that amends the general provisions of the TTPS and consequently represents the townplanningscheme in operation.(16.2) The appellant refers to certain concessions made by the first respondent 36 , but did not give the Board aspecific indication of what the height should be for the primary use of a distribution centre andwarehousing (apart from the appellant’s contention that two storeys of the Centurion Town- PlanningScheme translates into 6m).(16.3) The Board’s investigation resulted in two different heights that could be described as the height for aprimary use of “Industrial 2”, but not limited to distribution centres or warehouse only. Table D, Height Zone 6, plus footnote 2: 18m 37Table D, Schedule 17, Part D, p.147, Height Zone 7: 15m36 Exh. 12, p.7, paragraphs 14-17.37 The Board is of the opinion that Table D does not apply to this application due to the wording of footnote 2 of Table D. The Table is merelyenlisted to determine the maximum height applicable to the primary use.

(17) The second respondent did not deal with this issue in any depth. Dealing with the definitions as the Board didabove, the second respondent reminded the Board that a rose by any name will smell just as sweet. 38 Thesecond respondent draws a conclusion that the wording of Clause 14(7) loses sight of the specific provisions ofClause 26(1)(b) authorising additional height for storage purposes. 39(18) The Board does not make a definitive finding with regard to Clause 14(7) at this stage. The Board will in duecourse make a concise finding substantiating its resolution.(19) The Board agrees with the second respondent that the subject-matter of the appeal should be kept in mind whenevaluating the appeal. Issues have been raised that do not relate directly to the application for permission toincrease the height of the building(s). The second respondent has responded to some of those issues and theBoard will address them whether they were submitted by the appellant or the second respondent.(19.1) The appellant addressed traffic issues to substantiate a contention that in open volume warehouses,such as this, the use of the property effectively increases the FAR if floors are not deemed in the openvolume. The Board has taken note of the fact that a further appeal has been lodged by the appellantwith regard to access to the site. The Board consequently does not respond to traffic issues as they aresure to be addressed in the new appeal. 40(19.2) The second respondent again addressed the issue of authority. Reliance on that matter was soughtby the second respondent when arguing the matter of locus standi on the first set down date. The factthat that issue was not argued when it was supposed to be argued led the Board to a conclusion whichwas recorded in the reasons for rejecting the point in limine. The Board does not re-open that issue. Ifthe second respondent is not satisfied by the further resolution(s) handed up on the last day, the Boardassumes that the matter of authority will be raised at the review hearing.(19.3) In regard to the definitions of warehouse and distribution centre in both the Centurion Town- PlanningScheme and the TTPS, the Board understands the difference which the appellant draws between activestorage and passive storage, but the Board doubts whether that distinction emerges from the definitions.In the Centurion Town-Planning Scheme, the reference to temporary storage in the Centuriondefinition supports the appellant’s distinction. The definition of warehouse in the TTPS can in thisinstance identify “any other storage” only, because the second respondent is not a wholesale tradingestablishment, neither a manufacturer. The Board arrives at a <strong>decision</strong>, in respect of the matter before it,without embarking on the rational and lateral thought process which, according to the appellant, needsto be invoked where airspace is being utilised for purposes of active distribution space, so as to give thelimitations of height a purposive interpretation. 41(19.4) The appellant’s submissions regarding floor area as a function of volume was addressed in Exhibit 1and more comprehensively in Exhibit 12. The appellant submitted that the height increase approvedwas in increase of 400% (an additional six storeys), and came to the conclusion in Exhibit 12 that38 Exh. 10, p.12, paragraph 19.2.39 Exh. 10, p.14, paragraph 19.6.40 Exh. 10, p.16, paragraph 19.10 of the second respondent’s main submissions also refers to a High Court application in regard to roads andaccess.41 Exh. 1, p.16, paragraph 57.

(21.3) The Board does not attempt to give a <strong>decision</strong> that the first respondent was entitled to give. The Boardhas not made a definite finding in respect of the height of the building(s). The Board only after the hearinghad an opportunity to inspect the plans handed up as Exhibits 9 and 11. The confusion created by thesecond respondent’s own consultants, architects and consulting engineers shows that further investigationis required. The matter of the effect of Clause 14(7) of the TTPS is also undecided. Those two matterscan be fully debated together with matters such as:- Adjustment/recalculation of engineering services. Landscaping and rehabilitation that may require a fresh determination. Geological evaluation. Environmental issues flowing from the EMP. Conditions contained in Column 12 of A/S 945. Such other matters that may be required by the appellant or the first respondent or the secondrespondent.(22) The Board has to address certain issues raised by the second respondent in paragraphs 9 to 13 of Exhibit 10.Those paragraphs deal with:- The N1 Highway Corridor between Pretoria and Johannesburg (paragraph 9). Massive warehouse facilities “along the N1 Highway” (paragraph10). Midstream Development on land to the east of the Shoprite development “with no intended developmentthere at the time” (paragraphs11 and 12). Speculation with regard to the appellant’s intent with the appeal, a matter that was addressed elsewhereand does not require further comment (paragraph13).The Board does not have to make findings in regard to the above-mentioned issues to substantiate the Board’s<strong>decision</strong>. It is clear that the Board upholds the appeal on the grounds of the absence of the public participationrequirements that were not complied with. The information in this, the last paragraph, is recorded just to showthat there is another angle/approach to the planning matters relied on by the second respondent. With regard tothe first two bullets above (the N1 Highway Corridor):-(22.1) The second respondent’s town planner, Ella du Plessis, testified and handed up Exhibit 7. She correctlystated that in terms of the Gauteng Spatial Development Framework (GSDF) the area where the subjectsite is situated is located within the Provincial Economic Core and the N1 Development Corridor. 43(22.2) She correctly described the extent of the Provincial Economic Core with reference to the three sides ofthe triangle being well known roads in the Province, if compared with the GSDF (Phase 3) on p.52under the heading Existing Roads. She, again, correctly in view of the Board, did not attempt todescribe the extent of the corridor. The second respondent (on whose behalf Me du Plessis testified)referred to “massive warehousing facilities” that have been “constructed all along N1 Highway” and said43 Exh. 7, p.1, paragraph 5 (Not numbered). The May 2010 Version of the GSDF does not recognise the Provincial Economic Core any more. Elladu Plessis presumably referred to earlier versions such as the GSDF (phase 3).

that industries along the highway had “unrestricted access to and from the highway.” 44 The Board’sinvestigation shows that:- Not one of the distribution centres were constructed along the N1 Highway. Ella du Plessisexplained why Shoprite Checkers did not locate there:-“It would not have been economically viable due to the high price of freeway frontage land” 45 The representative of the Gauteng Provincial Government: Department of Roads and Transport(who is a member of the <strong>Townships</strong> Board) assured the Board that no access would be allowedfor properties alongside the N1. Ella du Plessis correctly explained that access was gained byvirtue of two interchanges in the vicinity. (See also the Functional Road Classification on p.36of the Southern SDF referred to below).(22.3) Much has been made of the submission that the appellant bought its land in a mixed-use area and that itshould, therefore, not complain what is happening around it. If one examines the planning documentsrelied on by the second respondent for the purposes of this and other applications, then a slightlydifferent picture emerges.A copy of the then Brakfontein Development Plan accompanied the 2000 Environmental Reportprepared by the second respondent’s environmental consultants. 46That plan showed that commercial/industrial developments were earmarked for the area to theimmediate east of the N1 Highway and the Old Johannesburg/Pretoria Road (K101) ending inthe alignment of Olievenhoutbosch Road. 47 Adjoining that proposed use to the east, wereoffices/industrial uses earmarked, which includes the area where the subject site is located.The plan, indicating the Shoprite development on Portion 71, clearly shows that thedevelopment was out of kilter with what was originally planned for the area as a buffer zone ofoffices. 48Paragraph 87 of Exhibit 12 deals sufficiently with the GDT <strong>decision</strong> in respect of Heritage Hilland the reason for having permitted industrial uses to move further east. The first respondentmisinterpreted the GDT’s <strong>decision</strong>. The Board does not address this issue any further in viewof the Board’s approach recorded immediately before paragraph (22.1) above.(22.4) The second respondent describes Midstreams’s presence in the area, inter alia, as follows:“At the time when Shoprite‟s development was rezoned and the development in question approved of ....theland to the east....was vacant with no intended development thereon at the time”. (Paraphrased and accentadded).44 Exh. 10, p.5, paragraphs 9 and 10.45 Exh. 7, p.3, pen-ultimate paragraph.46 Annexure AR 11 to Exh. 12, paginated p.34.47 This is corroborated by the later SDF for the southern region of the Tshwane Metropolitan Council, p.24 : “N1 route considered withOlievenhoutbosch Road known as the Centurion N1 area”.48 Exh. 12 deals more comprehensively with this in paragraph 88.

(22.5) It is clear from the record before the Board and from the evidence of Ella du Plessis that it was theintention of Shoprite Checkers to develop in two phases.A rezoning application established the rights for the Application for Midstream was lodged in 2001.first phase.Approved 15 June 2000.The rights of the second phase was established byvirtue of a township application.Approved 12 September 2001. Amendment Scheme 945 which amended theCenturion Town-Planning Scheme.Approved on 4 September 2002.Application for Midstream Township was approved in2002. Because of ROD delays proclamation only tookplace in 2003. Approval of increase in FAR: 30October 2008. Application for increase in height: 15 July2009.Objectors filed letter of objection: 25Approved 15 September 2009.August 2009.(22.6) It is clear from the above schedules that at the time when Midstream was mooted and developed onlythe first phase of Shoprite’s development was constructed. During that first phase of development the visual impact of the Shoprite development had littleimpact on the surrounding area, including the owners in Midstream. The two landscapingproposal plans prepared by Gary Bartch substantiates this statement (paragraph (14.4) above). The first plan (undated) shows the offices in the north western corner of the property, theFreshmark Distribution Centre, and the first phase of the Dry Goods Distribution Centre. Thearea were the Return Goods Centre now exists on Brakfontein Road is marked 1b, whichaccording to the legend of the plan represents “existing vegetation”. The section A-A at the topof that plan is indicative of what was visible at that time. It had minor visual impact. The second plan, dated 28/?/09, shows the present position with the increased negative visualimpacts. It was the second phase that created concerns regarding visual impacts.If one unemotionally look at the historical events one sees that the conclusions reached by the secondrespondent in paragraphs 11 and 12 of Exhibit 10 only applies to the first phase of the developmentwhen the FAR was 0, 21.(23) The cost order follows the result.

ID5650(0005)1