Considering all the recent hype around the building at 317 Currie Road it may be helpful for the public to understand the simple and well established legal principles in town planning which have thus far not been emphasised. The present situation is governed by the National Building Regulations and Building Standards Act No 103 of 1977 (‘the Act’) and the Town Planning Ordinance No 27 of 1949 (‘the Ordinance’).
In terms of Section 47bisB of the Ordinance, an owner (“the applicant”) may apply to the municipality to rezone the land from General Residential 1 to General Residential 5, and, in doing so, “shall furnish the municipality with a full written explanation of why the rezoning applied for is considered to be necessary and desirable.” Section 74ter of the Ordinance obliges the municipality (or a third party who may have agreed to give the notice on behalf of the municipality) to serve notice of the rezoning on persons who ‘in the opinion of the municipality have an interest in the application.’
Once the municipality is satisfied with the explanation, and that the notice has, in its opinion, been served on ‘interested persons’, it will, quite simply, allow the rezoning in question. Ultimately though, and importantly in this particular matter, it is the municipality, not the applicant, which grants the rezoning.
Once the rezoning has been approved the developer is required, in terms of S 4 of the Act, to obtain approval for construction of the building from the municipality. Section 7(1) of the Act enjoins the municipality to approve the plans once it is satisfied that they comply with the provisions of the Act and with the provisions of the Town Planning Scheme, which compliance is achieved when the rezoning is passed.
Once the applicant is advised by the municipality that the rezoning has been granted and the developer’s plans have been approved, the developer would (or should) be entitled to act in reliance on that advice and build a structure in accordance with what has been authorised by the municipality.
But, if problems should later arise regarding the rezoning, the question then is whether the developer is obliged to question what the municipality has in fact authorised in order to establish whether the approval of the rezoning was procedurally correct or irregular. There is, however, a duty also on the developer to ensure that it follows the provisions of the Ordinance.
This article has been written by Megan Gedye an Associate in the Litigation Department at Garlicke & Bousfield Inc.
For more information contact Megan on tel : 031 570 5415
NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of construction law.