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Thursday Sep 01, 2011

Decision on Lagoon Bay upheld

A far-reaching judgment was handed down in the Western Cape High Court yesterday which both put a stop to the controversial Lagoon Bay golf course development in the southern Cape and ruled that provincial governments - not only municipalities - could decide rezoning applications.

This ends another chapter in the battle of Lagoon Bay, which has been under way since 2005. The local community has been fiercely divided on the desirability of the massive development proposal with over 1 000 luxury housing units, a hotel, commercial centre and two golf courses. Three key findings were:

The provincial government had the legal authority to decide rezonings, which were not the exclusive right of municipalities.

The powers granted to the provincial government by the Land Use Planning Ordinance (Lupo) were not at odds with the constitution.

The authorities could turn down a rezoning application if they deemed a development undesirable because it was not sustainable.

Lagoon Bay Lifestyle Estate developer Werner Roux had asked the court to set aside the decision by Local Government, Environmental Affairs and Development Planning MEC Anton Bredell, who had turned down the application to rezone and subdivide 655ha of farmland between George and Mossel Bay. This had to be rezoned before the development could go ahead.

Bredell turned it down on various grounds, including that it would create urban sprawl, it would use 5 million litres of water a day in a waterstressed region, it would gobble up valuable farmland, and it did not comply with several planning policies.

Lagoon Bay developers argued that Bredell did not have the authority and the rezoning should have been decided by the George municipality - which was in favour of the development - as the constitution made rezoning a municipal function. Lagoon Bay also argued that Lupo, which gave the provincial government the authority to decide on rezonings, was defunct, as it was in conflict with the constitution. The minister therefore did not have the authority to make decisions in terms of Lupo.

Lagoon Bay also argued that Tasneem Essop, a former MEC, had acted beyond her powers when she had laid down that the rezoning application must be sent to the provincial authorities for a decision, instead of to the George municipality. She had made this a condition of approval when she agreed to amend the local structure plan to make the Lagoon Bay property fall inside the urban edge.

But Judge Bennie Griesel ruled that it was "abundantly clear" that the constitution entrusted provincial governments with extensive powers in support of local government. Different levels of government could legitimately exercise powers in relation to the same subject matter, and these government spheres were "not contained in hermetically sealed compartments". It was therefore permissible and appropriate for Essop to have reserved the right to decide on Lagoon Bay's rezoning application.

Judge Griesel found that Lagoon Bay's submission, that the sections of Lupo which gave Bredell the power to decide on rezonings, had been "implicitly" repealed by the constitution, was not correct. Lupo was not at odds with the constitution and was valid.

The most serious part of Lagoon Bay's attack on Bredell's decision was that he had taken "irrelevant and erroneous considerations" into account. The judge found no merit in this argument.

"The minister took the view that development is not desirable if it is not sustainable. He accordingly considered the cumulative factors why the development was not in his view sustainable. It is not for this court to decide whether his decision was right or wrong. It is sufficient to hold, as I do, that he was entitled to have regard to the factors considered by him in coming to his decision," the judge said.

Cape Times


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