GEORGE NEWS - The Cape Estates group has won a drawn-out legal battle against George Municipality regarding zoning rights on its sawmill property at Kraaibosch on the eastern outskirts of town.
George Herald has learned that the litigation costs, awarded to the property development company by the Western Cape High Court, will require ratepayers to cough up to the tune of R6m, or even more.
Cape Estates, then known as Magnolia Ridge Properties, took the municipality to court after exhausting all avenues within the municipality.
In January 2018, the Deputy Director of Planning and senior management of Land Use Management refused the request to rectify an error on the municipality's zoning scheme map that had come into effect in 2017.
Following this, the company's appeal to the municipality's appeal authority was rejected on 1 November 2018.
At the time, the appeal authority confirmed the municipality's view that a split zoning was applicable to the sawmill site (11ha in total) where 4ha were zoned Industrial Zone I (a zoning that restricted the applicant to the existing sawmill activities) and 7ha as Agricultural Zone I. The remainder of the 259ha property is under plantation and is therefore zoned agricultural. This was not in dispute.
The company argued in court that the site already had urban use rights because of its industrial zoning, but it lost its court application and on top of this was refused leave to appeal.
This forced it to approach the Supreme Court of Appeal, which gave leave for appeal to the High Court.
Acted 'capriciously'
A full bench of the Western Cape High Court on 16 May this year ordered that Magnolia Ridge Properties' appeal to the municipal appeal authority be upheld. The three presiding judges, Judges Constance Nziweni, Tandazwa Ndita and Chantel Fortuin, furthermore granted Industrial Zone II rights on the entire 11ha, a declaration that the municipality's restrictions to the use of the property for sawmill purposes only, are set aside.
Nziweni in her pronouncement said the George Municipality "acted capriciously and arbitrarily" and "committed an error in refusing to rectify the split zoning".
According to court papers, the original zoning as Industrial Zone I of the complete sawmill site had been determined in 2001. Nziweni said the municipality "deliberately chose not to recognise any of the evidence offered by the appellant in support of its allegation of an error".
According to the pronouncement, when Magnolia Ridge Properties in 2008 applied to George Municipality for a subdivision of the site, industrial zoning was identified as such on the subdivision plan.
Mediclinic site
Mediclinic in 2015 announced its interest in building its new George facility on the sawmill property and Magnolia Ridge Properties launched a development application to the municipality.
It was during this lengthy process that it requested the rectification of the split zoning error on the 2017 zoning scheme map.
The municipality rejected the Mediclinic application and in 2022 approved a R1-billion Mediclinic hospital project on a site at Mount View Resort in York Street. The groundworks started at the beginning of this year.
Fred de Kock, a director of Cape Estates, did not want to comment on the outcome of their appeal. "The court's pronouncement speaks for itself. I am seeking legal advice and do not want to comment at the present time," he said.
The municipality's response to the newspaper's request for comment and questions regarding certain officials' position in light of the court decision reads as follows: "George Municipality is studying the court decision and will consider options thereafter."
George Councillor Gert van Niekerk, who is an advocate, said, "I am surprised, in studying the pronouncement by a full bench of the High Court appellate division, that the municipality had continued with this matter at all. The court highlighted the fact that the municipality acted one-sidedly in applying the split-zoning. It appears that the area concerned was earmarked by the developer for what is known as the Mediclinic development and this wrong decision by municipal officials might have contributed to the fact that the development never materialised. The judgment placed a big question over decision-making processes applied by certain municipal officials which inevitably is accompanied by a hefty cost order and I trust there will be repercussions for these officials."
George Herald has learned that the municipality had been warned three years ago not to proceed with litigation in this case.
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