Townships Board's decision on Checkers DC - Midrand Estates

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(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.
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Townships Board's decision on Checkers DC - Midrand Estates

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