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Thursday Nov 21, 2013

Court turns down Garden Route property development

The controversial Lagoonbay Lifestyle Estate planned for the Garden Route, which has led to three court battles, has finally been dealt a body blow by the Constitutional Court and the proposed R5-billion golf course and housing estate will not go ahead.

The farmland between Mossel Bay and George.

The development, planned to be built on several farms between Mossel Bay and George, divided local residents, with some fiercely opposed to the big development while others, including those who stood to gain financially from a trust linked established by developers, were in favour.

As the land was zoned agricultural the developers, Lagoonbay Lifestyle Estate (Pty) Ltd, needed to apply for the land to be rezoned before they could build. The George Municipality approved the rezoning, and then referred the matter to the Western Cape MEC of Local Government, Environmental Affairs and Development Anton Bredell for further authorisation.

Bredell refused the rezoning application.

The developers then challenged Bredell's decision in the Western Cape High Court, arguing that the provincial minister did not have the power to involve himself in rezoning. They also argued that Bredell's refusal had failed to meet the standard for just administrative action. The developers lost the case. The high court found that the provincial government did have a right to be involved in the rezoning decisions, because the huge size of the proposed development would have a significant regional impact.

The developers then took the matter to the Supreme Court of Appeal, which overturned the high court decision, and ruled that the constitution prevented the province from making rezoning decisions, which rested with municipalities.

The provincial government then took the appeal court decision to the Constitutional Court. In a unanimous judgement yesterday the court found that under the Western Cape's Land-use Planning Ordinance, the municipality was not the competent authority to decide the rezoning application.

The Constitutional Court said it accepted that zoning was generally a municipal competence. However, it found that there was a category of cases where land-use planning decisions exceeded the bounds of municipal planning because of the scope of the interests they affected, and therefore required provincial oversight. The Lagoonbay development proposal fell into that category.

'In sum, the provincial minister refused the rezoning application because he considered the proposed development to have many adverse and uncertain consequences and therefore to be undesirable. This determination was based on his consideration of information provided by Lagoonbay and by relevant municipal functionaries, as well as information sourced from relevant provincial planning policies,' the judgment said.

The Constitutional Court agreed with the high court that Lagoonbay has failed to set out a proper basis on which it could interfere with Bredell's decision.

The Constitutional Court did not make a finding on whether the constitution conferred competence on municipal or provincial authorities to decide on rezoning and subdivision of land. This was because the constitutionality of the relevant sections of the Land-use Planning Ordinance were not challenged in this application.

Cape Times


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