(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Reportable Case No: 10278/2006

In the matter between:

and

THE LANGEBAAN COUNTRY ESTATE 

OF TRANSPORT AND PUBLIC 

OF ENVIRONMENTAL AFFAIRS

			JUDGMENT DELIVERED ON 24 JULY 2008

[1] The applicant in this matter (to which I shall henceforth refer as "CML") is Club Mykonos Langebaan Limited, a property development company carrying on business at Langebaan in the Western Cape Province.

[2] The first respondent, the Langebaan Country Estate Joint Venture, is afso a property developer. It was formed by the second and third respondents, which were the owners of a large tract of land described as portion 1 of the farm Oliphantskop No. 191 at Langebaan {"Oliphantskop"). The purpose of the joint venture was to develop Oliphantskop, in six phases, and to establish what is now known as the Langebaan Country Estate.

[3] The first three respondents were represented by one set of attorneys and counsel and were referred to collectively in the proceedings as "the developer". I shall continue to describe the first three respondents in this manner.

[5] The remaining respondents were cited only because of their potential interest in the matter. No relief was claimed against them and they played no part in the proceedings. No more need be said about them.

[7] So much for a brief outline of the parties and the main point of contention between them. It is necessary now to examine the facts in closer detail.

[The developer] said that the meeting was ananged because of a query from [CML] that the planning for the Langebaan Country Estate does not take his rights (approval for a Subdivisional area) as neighbour into account The aim of the meeting is therefore to discuss the issue and try to find a solution that will benefit both patties and in doing so facilitate the approval process.
The roads under discussion are the following:
(a)		Existing Leentjiesklip road/street (Minor Road 45) between Langebaan and Ciub Mykonos
(b)		The road as shown on both of the Structure Plans for the area, finking Main Road 233 from the Golf Club House intersection with Club Mykonos
(c)		Main Road 559 (partly proclaimed also known as the Ofiphants Kop road.)

A lengthy and detailed discussion followed on each of the roads as mentioned as well as ail aspects finked to that. The consensus was that
Main Road 559 is the preferred road for access to Club Mykonos. The following decision was then agreed upon by all parties present: 
DECISION

(2) The developer] to supply [CML] with a plan showing:

(a)	their concern regarding the ignorance of the future road linking Main Road 	233 with the existing Minor Road 45 to the east of Club Mykonos, as 	included in the section 4 (6) Structure Plans of Langebaan and 	Verdenburg-Saidanha and Environment
(b)	endorsing the solution as proposed for the re-alignment of Minor Road 45 	through phases 1 and 6 of the proposed development (Goif Estate) up to 	the existing intersection with the MR 233 at the road from the Goif Cfub 	House.
(4) [The developer} to respond to [CML'sj fetter of objection to [the
Municipality} by stating that
(a)	the link Road between Main Road 233 and Club Mykonos as currently 	planned in the Golf Estate is not in line with the approved Structure Plans 	as applicable, but will be re-atigned to accommodate the future link road as indicated in the Structure Plans
(b)	the section of this road within the first phase of the development of the Langebaan Country Estate conforms to the standards required for such a 	link road should it be implemented in the future."

[10] On 10 March 2003, as foreshadowed In the minute, CML's town planner wrote to the Municipality to object to the application stating that the application to rezone and subdivide Oliphantskop did not take account of the link road The relevant portion of the letter read as follows:
"We are acting on behalf of Cfub Mykonos Langebaan Ltd., the registered owner of erf 2802 Langebaan. The postal address of our client is P.O. Box 6140, ROGGEBAAf 8012.
Our client is not against the development of the Langebaan Golf Estate, as fong as such development is earned out in a responsible and desired manner and without being prejudicial to the existing zoning rights appficabfe to erf 2802. it is important that afi interested and affected parties, the Council and the applicant are not prejudiced by wrong and inadequate planning decisions. With this in mind we would like to raise the following objection.
The Vredenburg-Safdanha and environment Urban Structure Plan as well as the Langebaan Local Structure Plan (both approved in terms of Section 4(6) of LUPO) indicate a future road finking Main Road 233 from the Golf Club House intersection with Minor Road 45 to the east of Club Mykonos. The proposed rezoning and subdivision as advertised, unfortunately do not take cognizance of the link road as required in terms of the two structure plans (Attached please find extracts A and B from these plans showing the future road). Please note that the proposed rezoning and subdivision (phase 1} will affect the southern section of the Mure link road (Annexure C), close to the intersection with Main Road 233. After discussions were held between the applicant, the Department of Transport & Public Works and our client on 5 March 2003, we were issued with an amended plan (Annexure D, Diagram No.358/4000 J - no date) showing a link road between Minor Road 45 and Main Road 233 and described as Alternative Route 2, This proposed road is in line with the requirements of the 2 Section 4(6) Structure plans and therefore acceptable to our client. If Council resotved to support this proposed link road, our objection will automatically lapse."

[12] On 29 April 2003 the Municipality wrote to notify the devefoper that its application for rezoning and subdivision approval had been conditionally granted by the council. At this stage it is sufficient to refer to conditions (c) and (e) of the approval, the latter incorporating a condition described as Special Development Condition: Civil 11.

Building Control that indicates the proposed linking of Main Road 233 from the Golf Club House intersection with Minor Road 45 to the east of Club Mykonos;".

"Council concurs with the objection of Club Mykonos Langebaan Limited to the ohginal layout not making provision for a suitable link road for the area to the north of the development with the area to the south of the development. As Club Mykonos has done. Council withdraws its objection provided that the layout is altered to make provision for a north/south link road as per the "Amended Plan received from Warren Simpson and Partners" dated 10 March 2003. The approved arterial link road is shown in bold on Annexure "E". This proposed link road shall run from the existing bend on Provincial Road DR45 adjacent to erf 4895 south towards the existing Langebaan Country Club and meeting Provincial Road MR233 at the existing access to the Country Club. This artehal link road shall have a road reserve width of at least 25 metres.
It is advisable that the number of roads within this development which mil intersect with this proposed arterial road should be restricted.
The spacing of ail proposed access roads from this proposed artenaf road shall be in accordance with the standards contained in the Provincial Guidelines on access roads."

[17] The plan shows the boundaries of the southern portion of a road in the position of the link road, where it intersects with the MR 233 at the Golf Club house intersection. It can be calculated from the scale that the plan reflects the road to be 25 metres wide. The part of the road reflected on the plan is adjacent to phase 1 of the development - it goes no further north. The road reflected on the plan is zoned transport zone, the same zoning description given to that part of Main Road 233 also shown on the plan. In terms of the Langebaan Scheme Regulations made in terms of section 7 of LUPO the primary use of a transport zone is as a public road. And the road depicted on the plan is allocated a separate erf number, namely erf 6968. Because this was a point of contention between the parties it must be mentioned that what the plan does not show is the entire length of the link road referred to in the structure plans.

On behalf of our client we object against the proposed securing and privatization of the future link road between Minor Road 45 and Main Road 233. No alternative link road has yet been proclaimed and built, and until this alternative future road has been proclaimed and constructed, the major north-south fink road through phase 1 may not be privatized and/or closed for the general public."

The extension to MR 45 was physically completed by December 2005. Thus the southern part of the link road, intersecting with the MR233 at the Golf Club house intersection and adjacent to Phase 1 of the Langebaan Country Estate development, was in place. Furthermore, the MR 45 had been extended by CML in compliance with the condition imposed in respect of its subdivision application, in a southerly direction to meet with the northern boundary of Oliphantskop.

[27] These are the important facts. To determine whether or not phase 1 condition (c), read with clause 11 of the civil conditions, and phase 2 condition (c), read with the same civil condition clause have been complied with by the developer, one must first establish what the conditions required. It is this question which lies at the heart of the dispute between the parties.

[30] An interpretation of the conditions in the manner contended for by CML had, according to it, far-reaching implications, such as the automatic vesting of the developer's land in the Municipality. In order to understand the argument it is necessary to examine how subdivisions come to be in terms of LUPO.

[34] CML contended that the provisions of section 28 of LUPO had the result that the southern portion of the link road reflected on the phase 1 revised subdivision plan vested in the Municipality. Had the entire length of the link road been reflected on the subdivision plans the entire length of the link road would have vested in the Municipality as opposed to simply the southern portion of the link road adjacent to phase 1 of the development. This would, so the argument went, have considerably facilitated the process by which a final decision to construct the link road would have been made, which is what CML's ultimate objective was.

[36] As I have intimated above, section 42 of LUPO empowered the Council to impose conditions when granting an application for rezoning and subdivision. Stripped of provisions irreievant to this case the section reads as follows:

(a) the community needs and public expenditure which in ... its opinion may arise from the...application... concerned and the public expenditure incurred in the past which in... its opinion facilitates the said ...application..., and
(b) the various rates and levies paid in the past or to be paid in the future by the owner of the land concerned,

5)	to the background circumstances which explain the genesis and purpose of the contract, ie to matters probably present to the minds of the parties when they contracted...;
6)	to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions ".

[46] In my view, then, phase 1 condition (c) and phase 2 condition (c), read with civil condition 11, required the subdivision plans to reflect the entire length of the link road. 1 think that one can arrive at this conclusion by having regard to the plain words employed by the framers of the condition without it being necessary to rely to any material degree on other tools of interpretation. This interpretation may or may not have the result of vesting the road in the Municipality in terms of section 28 or, perhaps, under section 42 (2) of LUPO, depending on whether the requirements of those sections were fulfilled. However, these are not questions which the Court can decide in this matter, and as I have said, I make no findings in this regard. What is clear is that the conditions, construed in this manner, have not been complied with.

[50] The real issue between the parties is what the conditions mean and it is to take too narrow a view of the Court's function and powers in regard to the resolution of disputes, particularly where the exercise of public law rights and the performance of public law duties are In issue, to avoid that issue because the declaratory relief initially sought had been unwisely formulated. CML, the developer and the Municipality are all interested parties upon whom a declaratory order will be binding. Moreover, the Municipality has a duty to the public it serves to enforce the conditions imposed and it is plainly desirable that any lack of clarity about their import and meaning is resolved. The depiction of the whole of the link road on the subdivision plan is of tangible utility to the parties in that it will give physical form, where none presently exists, to what was required when the conditions were imposed. It is therefore appropriate in my view, that a declaratory order, coupled with an enforcement order, be made.

[53] CML also sought an order directing the Municipality to do all things necessary to enforce compliance with the conditions imposed by Council in order to make provision for the link road. It based its entitlement to such an order primarily on the provisions of section 39 (1) (c) of LUPO, the material part of which provides as follows:

"39 (1) Every focal authority shall comply and enforce compliance with -...(c) conditions imposed in tenvsofthis Ordinance... and shall not do anything the effect of which is in conflict with the intention of this subsection."

[58] In the circumstances I do not think that is an unnecessary or undesirable duplication of a remedy if I were to order the Municipality to do what LUPO, and the conditions imposed by its Council, require of it. The Municipality is obliged to enforce compliance with the conditions, and it has available to it unique and effective tools to achieve such compliance, which go beyond the powers of the Court.

|59] Before concluding it is necessary to deal with a number of preliminary matters which engaged the parties and the Court when the matter was heard on 6 and 7 June 2007. At that hearing CML made application for condonation of the late filing of its replying affidavits (this was done because the Municipality insisted that it do so and would not agree to receive the replying affidavits out of time) and for leave to amend the relief it originally sought. The condonation application was opposed only by the Municipality. The application for leave to amend the relief sought was inextricably linked to applications made by both the developer and the Municipality to strike out much of the material contained in the replying affidavits', principally on the ground that new matter had been introduced in reply to support a new case not made out in the founding affidavit.

of these enactments had not been complied with any attempt to obtain an order - mandating the construction of the road was doomed.

[64] To this I must add that counsel for the developer conceded, correctly in my view, that no prejudice not remediable by an order for costs, a postponement and an opportunity to fife further affidavits woufd result if the amendment was allowed. Although a similar concession was not forthcoming from the Municipality I could not see that any such prejudice would eventuate. The developer and the Municipality have had every opportunity to deal with the content of CML's replying affidavit. In the end, the papers comprised more than one thousand pages of reading material. It can hardly be suggested that the real issue, namely the meaning of the relevant conditions, was not fully canvassed in the evidence, or in argument over a period of five days.

[67] I do not think that the developer and the Municipality could be faulted for having resisted what CML originally sought, namely an order compelling either or both of them to build the link road. But I do not think that they were justified in opposing the application for feave to amend, or in bringing the striking out applications. These issues took up most of the first two days of the hearing, save for about one fifth of one day taken up by the opposed application for condonation. I think that it is fair that they should each pay one half of the costs of opposition of the application for leave to amend and each should pay one half of CML's costs of the striking out applications.

[70] I therefore make the following order

					KOEN, AJ