In a judgment that will no doubt be welcomed by Cape Town’s property developers and land surveyors, the Western Cape High Court last week ruled in favour of a valued client concerning a key Single Residential 1 (‘SR1’) zoning dispute.
In this matter, a Constantia residents’ association (‘the applicant’) sought to review and set aside approved building plans granted by the City of Cape Town in respect of two adjacent SR1-zoned Constantia properties owned by our client, a prominent property developer.
Our client intends to develop the properties, which are notarially tied and located within the CRG precinct, by constructing a single, integrated security estate comprised of six 3-4 bedroom houses. Indeed, it is common practice – particularly in Constantia and surrounds – to open two- or three-unit sectional title schemes on SR1-zoned properties in accordance with the City’s densification policy.
Pursuant to the challenge, the applicant further requested the court to declare our client’s proposed development on both erven contrary to the zoning of the properties provided for in the Development Management Scheme (‘the DMS’) and to interdict it from establishing a sectional title scheme.
At the centre of the dispute are amendments to the City of Cape Town’s Municipal Planning By-law to increase the number of dwellings on SR1-zoned erven. In 2016, item 21(b) of the DMS was amended to permit a second dwelling on such properties. In 2019, it was again revised to allow for the construction of a third dwelling as an additional use right.
Critical of the implications of sectional title development on the character of the Constantia Valley, the applicant contended that these legislative amendments have unintentionally enabled an ‘inappropriate’ pattern of sectional title development inconsistent with the prevailing zoning scheme, planning instruments, and the City’s densification policy. Essentially, the applicant averred that the City failed to properly consider the building plan applications in light of SR1 zoning provisions.
Although the City and our client conceded that building plan approval in respect of one erf should be remitted to the City for reconsideration – due to a procedural oversight by Council and through no fault of our client – the court firmly dismissed the remainder of the applicant’s contentions.
In a careful evaluation of the evidence, the court confirmed that the City’s approval of the building plans in respect of the other erf was consistent with both the DMS and its policy of stimulating densification. In compiling their report and formulating recommendations, the Building Control Officer thus duly considered all relevant requirements and factors prescribed by law.
Crucially, the court confirmed that the amendments to the DMS authorise the establishment and registration of a sectional title scheme on SR1-zoned properties. The court further clarified that the notarial tie agreement, which was designed to facilitate the registration of the sectional title scheme, has no impact on the use rights or planning status of the properties.
Undoubtedly, the decision is a win for property developers across Cape Town. Given the implications of the case, many of our developer clients had worryingly informed us that the City had paused building plan approvals for such developments pending the court’s judgment.
For further information or to consult with a development law specialist, contact us at developmentlawunit@stbb.co.za.
Need expert legal assistance resolving a property-related matter? Contact our litigation and dispute resolution experts at litigation@stbb.co.za.
This content is the property of STBB. We encourage the sharing of our content for informational purposes. However, if you wish to copy or reproduce our content on your own platform or website, please ensure that proper credit is given to STBB.
