Developer succeeds in appeal bid
The Western Cape High Court has awarded developer Cape Estates Properties its appeal in a long-running zoning dispute with the George Municipality over an old sawmill site on the eastern outskirts of the city.
The process leading to the appeal started in 2001 when the land was originally zoned.
However, A Cape Argus report says at the centre of the appeal was the adoption of a new zoning scheme map by the George municipal council in August 2017.
That map came into effect in September 2017 and split-zoned the extent of the erf into two categories, industrial zone II and agricultural zone.
The developers contested the extent and the nature of the zoning the municipality allocated to the erf through the 2017 zoning map and said in their arguments that the municipality had made a mistake.
They argued that the land was zoned industrial and that there are therefore already urban use rights and had approached the court for confirmation.
They lost the original case in which they had made an application for review, and were also refused leave to appeal, forcing them to approach the SCA, which gave leave to the High Court to hear the appeal.
Western Cape High Court Judge Constance Nziweni – who presided together with Judges Tandazwa Ndita and Chantel Fortuin – said in her ruling: ‘If the zoning of a land unit is incorrectly indicated on the zoning map, the municipality must amend the zoning map.’
According to the Cape Argus report, Nziweni said the municipality acted ‘capriciously and arbitrary’ in refusing to admit its error and rectify the split zoning. She said the developer had not lodged a dispute, ‘but simply wanted a patent error to be rectified’.
‘In this case it is reasonable to infer from the conduct of the municipality that it deliberately chose not to recognise any of the evidence offered by the appellant in support of its allegation of an error. There is no evidence to show that the split zoning was ever informed by the original decision of 2001,’ she said.
The court ordered the entire extent of the erf be zoned industrial zone II without any restrictions as to the use of the property for sawmill purposes only.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
