MEDIA RELEASE: PLANNING APPEALS: IS THE PROCESS FAIR? FIVE TOWN
HOUSES ON ERF 5343, STELLENBOSCH, 84 LOVELL AVENUE, DIE BOORD
On 16 August 2018 the Executive Mayor (EM) dismissed an appeal by the Lovell Homeowners Association (LOHA) and approved the above development. The development comprising five town houses was approved despite a recommendation by the Manager, Spatial Development of the Municipality that no more than three units should be permitted on the 1112m² property. Similar representations by other Interested and Affected Parties (IAP’s) were also ignored. The principal objections related to the additional parking that will be generated and the total loss of open space.
In the opinion of the LOHA and from a practical and planning perspective no more than three units should have been permitted on the site because 40m² of common open space for each unit is required in terms of the Town Planning Scheme Regulations. This means that 520m² of common open space is required for the ten existing units (previously Telkomhof) and three additional units, leaving 592m² for the erection of three new units. In arriving at her decision to dismiss the appeal the EM, who is an advocate, relied on the advice of an attorney. The latter apparently considered the site in isolation and indicated that there is no clause in the title deed of the property, requiring the owner to be a member of the LOHA. Membership of the LOHA was and is, however, a requirement of the Municipality in terms of the Land Use Planning Ordinance (LUPO). In addition, there are many properties in Stellenbosch that are subject to membership of a homeowners’ association, but such condition is not reflected in the relevant title deeds.
On 17 October 2018 the EM addressed the Committee for Ward 22 about the issue, at the request of the Ward Councillor. Unfortunately, as she had already dismissed the appeal nothing was done about the matter. The fact that the Planning Directorate persists in using outdated and often undeliverable Registered Post also contributed to the unfortunate decision. At least eight letters by IAPs addressed thereafter to the Municipality, drawing attention to the negative consequences of the decision remain unanswered. Apparently, the Legal Advisor of the Municipality is speechless or dumbfounded.
Apart from the unfortunate consequences of dismissing the appeal, a more general question arises as to whether the EM is the appropriate authority and/or has enough capacity, to consider appeals relating to planning matters. Previously appeals were dealt with by the provincial minister responsible for planning. In the current dispensation, however, where politicians must tow the party line, fairness and justice might also not be served if appeals were to be considered by the provincial government. In the interests of democracy, how appeals are dealt with clearly needs to be revisited.
Bruce van Rensburg and Heidi Prozesky: Lovell Homeowners Association