IN THE HIGH COURT OF SOUTH AFRICA 
[WESTERN CAPE HIGH COURT, CAPE TOWN]
CASE NO. 23827/2010
REPORTARBLE

In the matter between:

HOUT BAY & LLANDUDNO ENVIRONMENT
CONSERVATION GROUP						APPLICANT

And
MINISTER OF LOCAL GOVERNMENT, 
ENVIRONMENTAL
AFFAIRS & DEVELOPMENT PLANNING, 
WESTERN CAPE							FIRST RESPONDENT

HEAD OF THE DEPARTMENT OF 
ENVIRONMENTAL AFFAIRS & DEVELOPMENT 
PLANNING IN THE PROVINCIAL 
ADMINISTRATION OF THE WESTERN CAPE				SECOND RESPONDENT

PREMIER OF THE WESTERN CAPE					THIRD RESPONDENT

CITY OF CAPE TOWN							FOURTH RESPONDENT

MINISTER OF HUMAN SETTLEMENTS, 
WESTERN CAPE							FIFTH RESPONDENT

JUDGMENT DELIVERED ONTHURSDAY, 22 MARCH 2012

DLODLO, 

INTRODUCTION

[2] That there is a pressing need for further development of Imizamo Yethu to be undertaken without further delay cannot be doubted at all. The ECG asserts that the land use authorisations obtained by the City in respect of the development of Imizamo Yethu are unlawful, and thus liable to be reviewed and set aside. It asked the Court to review and set aside the authorisations obtained in respect of the entire proposed development, on all three sites, on three grounds, namely:
"(a) The layout plan envisages a "service road", with a width of 19.8 metres, running parallel to Main Road, Hout Bay. The alignment of this road violates conditions attached to a pre-existing environmental authorisation granted by the First Respondent ("the Minister") in April 2010 under the National Environmental Management Act 107 of 1998 ("NEMA"). The environmental authorisation was required because the proposed development of IY will entail various activities listed in terms of NEMA. This environmental authorisation required that the development had to accommodate a broad band of pine trees between Main Road and IY, and the remnants of the historic Kronendal Furrow. The trees are the successors to those planted in the seventeenth century by early settlers and the VOC, and farmers in the eighteenth and nineteenth centuries. The proposed road will decimate these environmental and heritage resources, explicitly protected in terms of the environmental authorisation.
(b) The environmental authorisation provided for processes to shape the proposed development including a specialist arbourculturalist report. The layout plan was however finalised before this took place. The proposed development and all the permissible land uses for every square metre has thus been framed without any consideration of the need to retain trees (as required by the environmental authorisation). This cannot be corrected once an arbourculturalist's report is eventually finalised.
(c) The applicable development parameters were unlawfully imposed. In respect of land parcel 7a in site 3 (which is subject to LUPO), the rezoning and departures were granted without complying with the requirements under LUPO. In respect of land parcel 6a in site 1, the requirements of LUPO were ignored completely (even though they should have been applied). In respect of the rest of the area regulated under LEFTEA (but not yet subject to LUPO), the impugned decision introduced development parameters which had not been tested in a fair procedure (as required in terms of PAJA)."

BACKGROUND FACTS

[11] The housing conditions in Imizamo Yethu are intolerable, and result in the breach of the rights of residents. Imizamo Yethu is overcrowded, and adequate services are not provided. There is an acute housing crisis in Cape Town generally, and in Hout Bay in particular. The proposed development will provide approximately 1 100 housing units. It is a key step in addressing the City's constitutional obligation to provide housing, to improve the living conditions of the poor, and to improve service delivery in in Imizamo Yethu. It provides for residential development, community facilities and economic opportunity. It is the product of extensive and rigorous community engagement and public participation during a process which has taken many years. The views of all interested and affected parties were taken into account. It is however not possible to satisfy all of the needs and points of view. I accept that it is and shall never be possible to satisfy all of the needs and points of view which must have been expressed within the constraints imposed by the availability of resources and the realities of the situation in Imizamo Yethu.

[12] The parties made three stops at which observations of particular areas as depicted on the layout plan were made. The first stop was at the highest point of the Mount Rhodes area, off Victoria Road (known as the Suikerbossie Hill). The parties observed the Imizamo Yethu area as a whole across the Hout Bay valley, and this was photographed. The parties observed the following areas as marked on the photograph: The proposed development area known as "site 1", between Imizamo Yethu and Hugheden Estate, which is currently used for informal housing; the proposed development area known as "site 3", between Imizamo Yethu and Penzance Estate, which is currently treed; the proposed development area known as "site 2", in the middle of Imizamo Yethu, in which the following aspects were observed: The new primary school which is currently under construction; the Main Road, running at the base of Imizamo Yethu; and the band of pine trees referred to in the environmental authorization, at the bottom of the primary school site adjacent to the Main Road.
The second stop was on the site of the new primary school. The parties walked over the construction site to a point near the eastern boundary of the primary school, overlooking the band of pine trees adjacent to the Main Road. The point at which the parties stopped was identified on the diagrams and photographs in the record:

plan" and dated 2 March 2010 (with reference 05.1537/CAD/SUBD/REV
2). This was the "layout plan" approved by the First and Fifth
Respondents, on which the following aspects are noted:
The primary school property; the point at which the parties made
observations;
The Main Road; and the treed area between the observation point and the Main Road.

The point at which the parties stopped, being at the apex of a retaining wall which supports filled material forming part of a playground/field for the primary school; the Kronendal Furrow, at the base of the retaining wall; and the treed area through which the proposed service road would pass.

THE DECISIONS/ APPROVALS UNDER ATTACK
[13] An impression must not  be  created that there  was  only  one decision/approval.
(a) there was an approval, in terms of section 3A(a) of LEFTEA, of an amendment of a condition of an earlier designation of land in in Imizamo Yethu under LEFTEA - in terms of which a condition limiting residential development to 18 hectares of the total designated area was replaced with a condition which provided that a total of 21 hectares could be used for residential development (and the remaining 13 hectares for roads (including reserves), open spaces, roadside fringes, thoroughfares, public spaces, and/or public-service facilities; (b) there was an approval, in terms of section 3(1) read with section 3(3) and section 4(1) of LEFTEA, of an amendment of an approved layout plan on Portion 1 of the Remainder of Erf 6355, Hout Bay (a portion of land adjacent to Hughenden Estate); and (c) there was the approval of new layout plans for two portions of the Remainder of Erf 2848 (a portion of land abutting Penzance Estate and the Main Road) and the Remainder of Erf 7309, Hout Bay (a portion of land occupied by the Old Fire Station). 
Those approvals related, in total, to the land referred to as parcels 4a, 4b, 4c, 4d and 4e, 6a, 6b and 7b. The land in question, and the position of the various parcels, can be seen on a map ("RW2"), annexed to the City's Answering Affidavit. That map indicates:
The Imizamo Yethu area as a whole; the phases which have already been developed (i.e. phases 1, 2 and 3); the three sites to which this application relates (i.e. sites 1, 2 and 3) and the different parcels of land which comprise those sites.
Both the approval of the Minister of Environmental Affairs and Development Planning and the approvals of the Minister of Human Settlements ("the impugned approvals") were granted subject to comprehensive conditions.

THE LEGISLATIVE FRAMEWORK
[14] A development of this kind is regulated by a number of legislative instruments.
LEFTEA

LAYOUT PLANS
[15] While LEFTEA does not explicitly require this, the practice in the Western Cape is to require a layout plan for the proposed development as one of the conditions of designation of land in terms of LEFTEA. A layout plan indicates the outlines of the proposed development in general terms. It is similar to the subdivision plan which is required for more formal developments. Upon approval of a layout plan by the competent authority, development parameters for the development - such as zoning, permissible erf sizes, erf coverage, building height, etc., may be imposed. These parameters are imposed in terms of LEFTEA, although they may be similar to the parameters which are created by the land use planning legislation to which I refer below.
GENERAL PLANS
Section 5 of LEFTEA provides that after land has been designated, the developer must cause a general plan to be prepared and submitted to the surveyor-general for approval. After the general plan has been approved by the surveyor-general, it must be filed at the deeds registry for registration by the registrar of deeds. The general plan is more detailed than, and follows on, the layout plan.

LUPO

THE PLANNING PROCESS UNDER LEFTEA

[18] The Housing Act of 107 of 1997 obliges every Provincial Government to

PRESENT APPLICATION

DATE	EVENT / DOCUMENT	REFERENCE	
17.07.1992	Designation of a portion of Erf 2848, Hout Bay, ± 8 ha in extent, for less formal establishment, by Administrator of Cape Province [PN351/1992]	"CJH7"	
25.09.1992	PN 465/1992 establishes an "informal zone" in all zoning scheme regulations	538 par 46	
25.09.1992	Designation of a portion of Erf 2848, ± 21.05 ha in extent, a portion of Erf 1830, ± 0.230 ha in extent, and a portion of Erf 1833, ± 0.2686 ha in extent, for less formal establishment, by Administrator of Cape Province [PN 468/1992]
[Designation of land subject to following condition: the submission of the proposed layout plan to the Administrator for approval, and the imposition of land usage control measures.]
[Designated land includes what is now sites 1 and 3: p537 par 43.2]	"CJH8"	
Oct. 19992	Layout plan approved, containing 550 plots	21 par 34	
23.07.1993	Designation of portions of Erf 2848 and 1830, 12.5309 ha in extent, for less formal establishment, by Administrator of Cape
Province [PN 383/1993]
[Designation of that land, together with the land designated in PN 468/1992, subject to following conditions: (1) that only 18 ha of the total area shall be used for residential purposes; and (2) submission of the proposed layout plan to the Administrator for approval and the imposition of land usage control measures]
[Designated land includes what is now site 2: p537 par 43.3]	"CJH9"	
19.11.1993	Layout plan approved for phase 1 (in terms of s4 of LEFTEA) [residential zones to be informal zones]	22 par 38,
"RW3" & 537 par 44	
21.07.1994	Layout plan approved for phases 2 and 3 (again in terms of s4 of LEFTEA) [residential zones to be informal zones] [Layout plan as approved in June 1994 at "RW5"]	22 par 38,
"RW4" & 537 par 45	
17.02.2004		"CJH13"	
17.05.2004	Final order (per Allie J) under Case No. 1094/04		
30.05.2007	IJR Consensus Principles (on Greater Hout Bay Housing Crisis)	"CJH15"	
30.04.2008 & 04.06.08	City sought comments on the various development options	29 par 63	
Late 2008	City proposes a fifth development option	29 par 67	
12.02.2009	SANCO comments on fifth option	"CJH21"	
24.02.2009	ECG and other community organisations propose sixth development option	"CJH22" & 32 par 71	
Jan. 2009	Final Heritage Impact Assessment by Aikman Assocs.	"CJH50" & 222 par 27	
26.02.2009	Letter from Residents' Association of Hout Bay to Chand Env. Consultants re Draft Basic Assessment Report	"CJH51" & 223 par 32.1	
27.02.2009	Heritage Western Cape endorses recommendation in Heritage Impact Report, and comments that it in principle supports Option 5, subject to the results of public participation and various conditions	150 ["A"to "CJH28"]	
May 2009	Visual Impact Assessment (VIA) by H van der Hoven	"CJH49" & 221 par 21	
May 2009	Land use application prepared by CNdV Africa on behalf of City	"RW10" &	
	[Attached as annexure I is a Traffic Impact Assessment dated 18 September 2009. Layout plan attached at Figure 5.3]	"RW11", &
549 par 72	
19.06.2009	Final Basic Assessment Report (BAR) by Chand	"CJH48" & 221 par 21	
31.07, 01.08, 03.08 &
06.08.2009	Advertisements in regional and local newspapers re planning approvals to be sought for Hout Bay (i.e. amendment of condition of designation; designation of new land; rezoning and subdivision; and street names) in terms of LEFTEA and LUPO
[Advert refers to Final BAR for EIA being out for review prior to consideration by DEA&DP]	"CJH66" & 231 par 49	
05.08.2009	Letter from City to I&APs re (i) proposed amendment of a condition of designation of land under LEFTEA, (ii) approval of new layout plans (conditional upon amendment of condition of designation), (iii) proposed rezoning and subdivision, and (iv) approval of street names	"CJH25" & 33 par 74	
07.08.2009	Notice in Provincial Gazette referring to planning application for Imizamo Yethu and in particular (i) the amendment of the condition of designation, (ii) the designation of additional land for less formal township development (in accordance with a proposed layout plan) under s3 of LEFTEA, and (iii) proposed rezoning and subdivision in terms of ss17 and 24 of LUPO [Objections to be lodged by 8 September 2009]
[Notice refers to Final BAR for EIA being out for review prior to consideration by DEA&DP]	"CJH65" & 231 par 47	
11.08 &
13.08.2009	Letters from Hout Bay & Llandudno Heritage Trust and Residents' Association of Hout Bay to Chand re Final BAR	"CJH52" &
"CJH53", &
224 par 32	
03.09.2009	Comments on planning application from Hout Bay & Llandudno Heritage Trust	"RW13" & 551 par 78	
06.09.2009	Comments on planning application from Sinethemba Civic Association	"RW13" & 551 par 78	
08.09.2009	Comments on planning application from Residents' Association of Hout Bay	"RW13" & 551 par 78	
08.09.2009	Comments on planning application from Tommy Brummer Town Planners	"RW13" & 551 par 78	
08.09.2009	Comments on planning application from Penzance Assoc.	"RW13" & 551 par 78	
08.09.2009	Memorandum of objection from Hout Bay Ratepayers Association and Sinethemba Civic Association	"RW13" & 551 par 78	
02.10.2009	Report submitted by City officials to SPELUM referring to objections, comments etc, and responding thereto	"CJH67" & 552 par 80	
04.11.2009	Application for planning approvals submitted by the City (Planning & Building Development Management) to DEA&DP (with copies of press adverts, notices etc)
[City states that Council will only be dealing with the LUPO aspects, and that the LEFTEA issues can be addressed now]	463 (in
"CJH70"), & 554 par 84 &
"RW15"	
18.11.2009	DEA&DP granted environmental authorisation to the City re Imizamo Yethu (the "ROD")
[Condition 7 provides that the "recommendations in the Heritage Assessment Report [HAR] dated January 2009 that was compiled by Aikman Associates ... and endorsed by Heritage Western Cape ('HWC') must be implemented] (attached as Appendix A)"]	"CJH28" & 34 par 78	
10.12.2009	Appeal by Tommy Brummer (on behalf of residents of surrounding areas)	372-373 (in
"CJH55") &
546	
17.12.2009	Appeal by Hudson, on behalf of Hout Bay & Llandudno Heritage Trust against the ROD	373 & 546	
23.12.2009	Appeal by Hout Bay Ratepayers Association against the ROD	373	
28.12.2009	Appeal by Residents Association of Hout Bay against the ROD	373	
18.01.2010	Good Hope Sub-Council considers planning application	"CJH34", 38 par 92 & 556 par 90	
21.01.2010	Report on Sub-Council meeting prepared for SPELUM	"CJH35" & 556 par 91	
21.01.2010	SPELUM considers Sub-Council report and report of 13.01.2010 and makes recommendations to Mayor	"CJH36", 40 par 95 & 557 par 92	
25.01.2010	Recommendation from Mayor	"CJH37" & 557 par 93	
27.01.2010	City Council accepts recommendation by SPELUM and Mayor:	"CJH38", 41	
	namely, to proceed with option 5, as amended by "Amended Annexure A"	par 99 & "CJH36"	
08.02.2010	Letter from City (Director: Planning & Building Development Management) to DEA&DP confirming that planning application duly advertised in terms of LEFTEA and LUPO and objections were received; and that the full Council resolved to recommend that the applications be approved, subject to the conditions on Amended Annexure A (attached)	"CJH70" & 234 par 60, & 557 par 95	
12.03.2010	Letter from City (Director: Planning & Building Development Management) to DEA&DP attaching amended layout plan ["RW18"] (reflecting changes approved by City on 27.01.2010)	"CJH71" & 234 par 6162, & 558
par 96, & "RW18"	
22.04.2010	Memorandum submitted by DEA&DP to Minister of EA&DP and Minister of Human Settlement re planning approvals	"CJH72" &
235 par 65, & 558-560
par 98-99	
22.04.2010	Memo from DEA&DP to Minister of EA&DP outlining appeals against the environmental authorisation	"CJH55" & 225 par 35	
28.04.2010	Approval by Minister of EA&DP of rezoning and subdivision of parcel 7a (under LUPO)	"CJH72", & 560 par 100	
28.04.2010	Decision by Minister of EA&DP dismissing appeals against the environmental authorisation (i.e. the ROD)	"CJH55" & 225 par 35	
03.05.2010	Approval by Minister of Human Settlements of amendment of conditions of designation, an amended layout plan for parcel 6a, and new layout plans for parcels 6b, 4a-4e, and 7b (under
LEFTEA)	"CJH72", &
560 par 100	
04.05.2010	Letter from Minister of EA&DP to Hudson (as representative of Hout Bay & Llandudno Heritage Trust), confirming dismissal of appeal against the environmental authorisation, and the amendment of the authorisation in two respects (to deal with changed buffer zones in sites 1 and 3)
Amended ROD	"CJH46" & 218 par 10, & 547 par 70
"RW9"	
05.05.2010	Letter from DEA&DP to City re City's application in terms of LEFTEA and LUPO	"CJH2", & 560 par 101	
26.05.2010	Letter from ECG to Minister of EA&DP and City re approval in letter of 5 May ("copied to the community organisations and individuals who submitted comments")	"CJH39" &
41 par 101	
06.07.2010	Letter from Minister of EA&DP to Chairman, ECG	"CJH4"	
20.07.2010	Letter from ECG to Minister of EA&DP and City	"CJH40" & 43 par 104	
23.07.2010	Response from City to ECG	"CJH41" & 43 par 105	
08.09.2010	Letter from ECG to Minister of EA&DP and City	"CJH43" &	
43 par 107	
15.09.2010	Letter from Minister of EA&DP to ECG	"CJH44" & 43 par 107	

DISCUSSION
[21] Mr Borgstrom preceded his submissions with the following rather bold statement:
"The City and the Provincial Ministers make the gratuitous allegations that the ECG is 'bent on delaying the proposed development' or imposing its own will. The insinuation also appears to be made that the ECG represents a retrogressive elite. These allegations are as unfortunate as they are incorrect. The ECG accepts and supports the City's constitutional duty to provide access to adequate housing. In particular, the ECG supports the City's efforts to improve access to housing in IY, where there is a severe backlog of adequate 'housing opportunities'. This duty does not, however, excuse or elevate decisions which are otherwise unlawful."

The consequence of this would clearly be to prohibit any further residential development at Imizamo Yethu at all, not just the particular aspects to which the ECG has raised objection in this application.

"Even now, the ECG attempts to stop this development on the extraordinary ground that proper notice was not given of the proposed development parameters - even though the proposed parameters did come to its attention, and it did make representations in that regard. Again, one is driven to ask: what is the reason why ECG raises this ground of review? - even if there was a defect in the process (which is disputed), it plainly has not affected the ECG at all."

CONFLICT BETWEEN LAND USE AUTHORISATION AND THE ENVIRONMENTAL ROD (RECORD OF DECISION)
[24] In undertaking this development, the City will have to comply with the conditions of two approvals which have been granted: the environmental approval (the ROD), and the land use authorizations. Each authority makes its own decisions, and the City must comply with each of them. The chief complaint is focused on the proposed service road. This road was approved as part of the approval given by the relevant Provincial Ministers in the environmental ROD. In January 2009, the Heritage Management Consultant reported in his "Final Heritage Assessment" that stated that "the layout as depicted in Option 5 makes provision for the conservation of the key heritage resources identified viz. the band of trees along the Main road boundary and the remnants of the Kronendal Furrow". He accordingly recommended "That Option 5 as depicted in Annexure 1 be supported in principle as the key heritage resources of the site viz. the band of trees along the Main road boundary and the remnants of the Kronendal Furrow are conserved". He recommended, too that a "detailed survey to establish the health and viability of retention of the trees on Portions 2 should be undertaken and be a key informant of the site development plan". On 27 February 2009 Heritage Western Cape "endorsed the recommendations in the Heritage Impact Report". It stated that in principle it supported Option 5, as depicted in Annexure 1 of the HIA report, subject to the conditions which were stated. The environmental ROD requires that the recommendations in the heritage assessment report, endorsed by Heritage Western Cape, be implemented. A distinction must always be drawn between a layout plan and a site development plan. The existing layout plans are consistent with and take express account of the ROD. It is not disputed that the development plans must comply with conditions contained in the ROD and once the more detailed site development plans are developed (a process I am told is currently underway) those will also have to comply with the conditions contained in the ROD.

THE POSITIONING OF THE SERVICE ROAD
[25] What emerges from this is the following:
(a) Option 5, which includes the service road, is not inconsistent with the requirements of the Heritage Report. To the contrary, the Report found that it makes provision for the conservation of the band of tress along the Main Road and the remnants of the Kronendal Furrow. That is why the Report recommended that Option 5 be supported in principle. (b) The heritage consultant, and Heritage Western Cape, had seen the layout, which included the road. They were satisfied with it. They required that an arbouriculturalist's survey be undertaken, and that it be a key informant of the site development plan. They could not have thought that the site development plan was the layout plan. The layout had already been completed, and they knew that was the case. The site development plan was yet to be prepared. The land use authorizations require the City to undertake a Traffic Impact Assessment with regard to the alignment of the service road. It is correct, as the ECG contends, that the TIA does not consider compliance with the ROD. That is not its function: it is a transport enquiry, to consider the possible road alignments. It may lead to the conclusion that the desired road alignment will require that the layout plan should be changed in order to comply with the ROD. If that is the result, then application will need to be made for amendment of the layout plan. The Minister was aware of this when he granted the land use authorization. He said that:
"Subsequent possible amendments to the attached layout plan ... as a result of the findings of the TIA, will be dealt with by the Provincial Government on application by the Municipality."

[29] The repeated refrain that the service road contemplated in the layout plan "does not fit" the space available in terms of the ROD therefore takes the matter no further. But it is in any event not shown on the papers, for two reasons:
(i) First, the question whether the service road "fits" depends in part on how wide it is. If a road which is 19.8 meters wide "will not fit", a simple solution is to make it less wide - for example, by removing the cycle lanes which flank it. This can be considered when the site development plan is prepared. (ii) Second, the question whether the road "fits" in the available land depends on what the boundaries of the available land are - between the school site on the one side, and the Main Road on the other. There is no evidence as to the status of the perimeter fences on both sides, which Mr Dodds used as markers for his measurements. On the school side, it is presumably a fence put up for construction purposes:   there is no evidence that the site has been properly surveyed and demarcated on that side. The same applies to the fence on the other (road) side. These are matters which would have to be determined in the preparation of the site development plan. If this evidence of Mr Dodds had been introduced in the founding or supplementary founding papers, as it should have been, the City would have had the opportunity to deal with it in its Answering Affidavit.

IS THE REMEDY MISCONCEIVED?
[30] If the authorizations cannot both be complied with as they currently stand, that does not make either of them invalid. It means that to the extent of the inconsistency, the City may not proceed with the development as currently conceived. If there is evidence that the City nevertheless intends to proceed with the development in breach of a condition of the environmental ROD, then the remedy is to interdict the City from acting in breach of that condition - not to set aside the land use authorizations. The City has stated in terms, and repeatedly, that it will comply with the conditions which have been imposed. It has undertaken to do so. It has stated that it remains committed to the undertaking which Mayor Zille gave. If the ECG believes that it can prove that the City is lying, and intends to act unlawfully, then it can apply for an interdict to prevent the City from acting unlawfully. In this respect I agree with the contention advanced by Mr Budlender.

THE COMPLAINT ABOUT THE TREE SURVEY

[32] The Environment Minister knew that the site development plan was different from the layout plan. It was when he granted environmental authorization on the basis of the layout plan which was before him, that he imposed the condition that an arbouriculturalist's report must be a key informant of the site development plan. He could hardly have intended that the arbouriculturalist's report must inform the layout plan - he already had that. He knew that the site development plan was still to come. As mentioned earlier on Heritage Western Cape also had no doubt about this when it proposed this condition. It recommended approval of the Option 5 layout, which it had before it - and it recommended that the arbouriculturalist's report should inform the site development plan, which was still to come. It is only when the site development plan has been prepared, that it will be possible to say whether the City will implement the development in a manner which is consistent with this requirement of the ROD. The arboriculturalist's report has not been completed, and the site development plan has not been prepared. This ground of challenge is self-evidently premature. I do not understand the City to have suggested that the 2008 tree survey constitutes adequate compliance with the condition of the 2010 environmental authorisation, as the ECG appears to believe.

[33] The complaint based on the fact that Mr Walton will approve the site development plan is also without foundation. If Mr Walton approves a site development plan which is inconsistent with the conditions of the environmental ROD, and the City seeks to implement it, it will act unlawfully. It may be interdicted from doing so. It is the courts, not Mr Walton, which will decide whether the City has acted lawfully - in the proper proceedings in which the proper relief (an interdict) is sought. On behalf of the ECG it was argued that it "makes no sense" to have the arbouriculturalist's report after the layout plan has been approved. But that is what the Minister decided in the environmental ROD. If that "makes no sense", then the ECG should have challenged the environmental ROD, which imposed that requirement. The claim that a provision in the environmental authorisation "makes no sense" does not provide a basis for asserting that the land use authorization should be set aside. Even if the complaint about the arbouriculturalist's report is valid, the ECG has misconceived its remedy. If the City is about to implement the development in a manner which is inconsistent with the environmental authorization (ROD), the remedy is not to set aside the land use authorization. That would be entirely illogical. The remedy is to interdict the City from acting in breach of the environmental authorization.

FAILURE TO GIVE PROPER NOTICE OF DEVELOPMENT
PARAMETERS OR "DEPARTURES"

(a) specifying the place where and the hours during which particulars of the matter will be available for inspection, and
(b) stating that objections may be lodged with a person specified in the notice before a date likewise specified, being not less than 21 days after the date on which the notice is so served or is so published, and 'advertisement' has a corresponding meaning;..."
As explained above, it is correct that the departures proposed in terms of LUPO were not mentioned in the press advertisements which invited comments from interested and affected parties. LUPO currently applies only to parcel 7a in site 3. This is the only part of the land in respect of which a general plan has been approved and a township register has been opened. As a result, LUPO applies because of section 6(a) of LEFTEA. The ECG asserts that LUPO also applies to parcel 6a, because of the conditions imposed by the Minister in the LEFTEA designation. That, however, is not correct. Section 3(5)(a) of LEFTEA states that laws relating to township establishment and town planning shall not apply to designated land. Section 3(6) states that the Minister may, by notice in the Official Gazette, declare those laws to be applicable to designated land. No such notice has been published.

[35] I ask myself a question rhetorically what the ECG hopes to achieve by the claim that LUPO is applicable to parcel 6a. If LUPO is applicable, the residential land has been zoned "informal" in terms of Provincial Notice 465/1992. The effect would be to remove the careful LEFTEA development parameters which the Minister has imposed in the interest of residents, in the interests of neighbours, and in the public interest. LUPO requires that where application is made for a departure from the town planning scheme, and in the opinion of the town clerk or secretary any person may be adversely affected thereby, the application must be advertised. I cannot faulter Mr Budlender's submission that LUPO has been complied with in that the press advertisements invited public comment on the land use application which lay open for inspection and that the departures and development parameters were apparent from that application. I gather from the papers in any event that members of the ECG did in fact inspect the land use application and commented on the departures and development parameters. The most that could be said in support of the Applicant's case is that there was what one can call a technical procedural defect in relation to parcel 7a in that, although the application for the rezoning and subdivision of parcel 7a was advertised, as required, the advertisements did not expressly state in relation to parcel 7a that the application included an application for departures in terms of LUPO. Notably, the Provincial Respondents argue that that is a technical, formal defect and not a substantial or substantive defect. I agree.

[36] The ECG's complaint is not that it was prejudiced. The ECG does not also dispute that its members were aware of the exact nature of the approvals being sought and commented in respect thereof. Advertising is not an abstract, procedural requirement. Its purpose is to alert interested and affected parties to the proposed application. The harm caused by the failure to advertise is that interested and affected parties do not find out about the proposed application and therefore lose the opportunity to object to or comment on it. The fact of the matter is that interested and affected parties (including the Applicant) were not prejudiced by the failure to advertise or by what was contained or omitted from the advertisements. Interested and affected parties, including members of the Applicant, had ample opportunity to - and did in fact - consider the development parameters (including the departures in respect of parcel 7a) contained in the application.

[37] Importantly, an extensive public participation process was followed in relation to the environmental authorisation sought under NEMA (Annexure "CJH48"). The authorisation was appealed against (including by members of the Applicant) (Annexure "CJH55"). Issues raised in the appeal included concerns about retention of the trees and the layout of the proposed service road: these appeals were dismissed, but concerns raised by objectors were taken into account in the revised ROD that was issued. Therefore, the Minister of Environmental Affairs and Development Planning was satisfied that the granting of the approval had been preceded by an extensive public participation process, albeit not labelled as a LUPO process and that in substance all persons, including the Applicant and its members were afforded an opportunity to comment on the development proposals that served before the Minster of Environmental Affairs and Development Planning. The Minister of Environmental Affairs and Development Planning was satisfied that all interested and affected parties, including the constituent members of the Applicant had been afforded a fair opportunity to make submissions in relation to the application pertaining to parcel 7 (a).

"[21] The second attack on the notices was that they were flawed because they did not set out the 'general purport' of the resolutions as required by s 10G(7)(c)(i). It was submitted that they should have given clear, full and specific details of the resolutions and their nature and effect, and that it was not sufficient to have stated simply that the budget had been adopted and that it contained the new property rates and to invite the public to inspect the detail at the municipality's offices.

[22] It is clear that the section does not require details of the resolution and assessment to be published. Contrary to the submission by the association that the notice must set out, amongst others, the rates, areas affected, rebates applicable and the real and true effect of the increases of the rates, I hold the view that this does not accord with the ordinary grammatical meaning of the phrase 'general purport.'

"general purport" then involves an intimation that what
follows broadly covers a specific topic. If I may expand the notion it would be tantamount to the Board having to say this: We are not providing you with all the details in this Notice but they relate to a rezoning of the La Mercy Township....'
The learned judge proceeded (at 37I-J) to elucidate in terms pertinent to the notices with which this case is concerned: „I think the point is made because the section specifically adopts the more practical course of directing inquiries to the Town Offices. In this sense the actual mechanics of the proposed scheme, if I may so describe it, are not to be specified in the Notice, but can be scrutinised at close range elsewhere. The section thus interpreted would support the meaning advanced by the applicants: Let the Notice give us some indication that we are the ones affected by the proposals and then it is up to us to take a closer look at them.'

[25] This interpretation is sound, practical and accords with common sense and logic..."

PROCEDURAL FAIRNESS
[43] The complaint seems to be that there was no public participation and that the interested and affected parties were confused by the "appearing and disappearing" of development parameters. Procedural fairness is dealt with in Section 3 of PAJA which provides as follows in relevant part:
"3 Procedurally fair administrative action affecting any person
(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances of each case.
(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1)-

"[41] In determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively (a principle well recognized in our common law and that of other countries). As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the Executive to act efficiently and promptly."
Whilst the proposed development parameters were not mentioned in the press advertisements which invited public comment on the development proposal, details of the proposed development parameters were contained in the land use application which lay for inspection and on which the public was invited to comment by means of press advertisements and notices sent to interested and affected parties. The members of the ECG did inspect them and did submit comments thereon. It remains difficult to comprehend the assertion by the ECG that details of the development parameters were "not contained in any publically accessible documents". The complaint of "confusion" about development parameters is tellingly not raised in neither the Founding papers nor the Supplementary Founding papers. I am in full agreement with Mr Budlender that it could not conceivably be just and equitable to stop this entire development on the basis of what after all may be technical defects in the process. Public interest, pragmatism and practicality dictate otherwise.

THE POWER OF THE MINISTER: "MUNICIPAL PLANNING"

"In any event, as the cases (including the Kyalami Ridge case) demonstrate, dual authorisations by different administrators, serving different purposes, are not unknown, and not objectionable in principle -even if this results in one of the administrators having what amounts to a veto. In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another, Kroon AJ made the point that there is no reason why 'two spheres of control cannot co-exist' and that where, as in that case and this case, one operates from 'a municipal perspective and the other from a national perspective' they each apply their own 'constitutional and policy considerations'. "

[48] I am of the view, based on the above that this application has not merits and is doomed to failure.

ORDER

In the result I make the following order:

DLODLO, J