Townships Board's decision on Checkers DC - Midrand Estates

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.