Questioning amendment in municipal by-law

Construction in Seapoint. Supplied image.

Oranjezicht resident Eldie Brink is unhappy with the City of Cape Town’s approach to a municipal by-law that he believes is of significance to Capetonians.

Mr Brink says residents’ property rights are being whittled down by the City by the recent promulgation of Section 49A to the Municipal Planning By-law.

This section would appear to exclude from the duty of the City to protect the property rights on properties that originated prior to 1934. The City Bowl area and most of the old Cape Town , through to Newlands, Muizenberg and Simon’s Town are apparently affected, Mr Brink says.

“Attempts by myself and others to obtain clarification from the City of Cape Town have been fruitless. The memorandum that accompanied the proposed section listed it without the required explanation. Concerns raised in comments fell on deaf ears.

“A subsequent attempt in a CoCT booklet, meant to explain the new section, among others, are in such general terms, that it merely confirms without explaining,” he says.

The promulgated amendment reads: The principal by-law is hereby amended by the insertion after Section 49 of the following section:

“49A Application for the use or development of land that would conflict with a restrictive condition or a servitude

(1) The City may not grant an application in terms of this by-law for the use or development of land that would conflict with a restrictive condition or a servitude which is a condition of approval imposed in terms of this by-law, the Ordinance or the Townships Ordinance 33 of 1934.

(2) The City may grant an application contemplated in subsection (1) if it simultaneously grants applications to –

(i) amend or remove such condition of approval; and

(ii) amend, suspend or remove such restrictive condition or servitude.

(3) The City may grant an application in terms of this by-law for the use or development of land that would conflict with a restrictive condition or a servitude which is not a condition of approval imposed in terms of this by-law, the Ordinance or the Townships Ordinance 33 of 1934.”

The Atlantic Sun asked the City to respond to Mr Brink’s concerns and they duly replied via the mayoral committee member for spatial planning and environment, Marian Nieuwoudt.

“The City has provided the submissions to council to Mr Brink. These explain and justify the amendment to include Section 49A of the Municipal Planning By-Law (MPBL). It is therefore not true that the City did not clarify or responded to the request,” Ms Niewoudt explained.

“Section 49A of the MPBL is not removing the protection a land owner has or enjoys with respect to title conditions predating the Townships Ordinance 33 of 1934. Those title conditions remain applicable and in force.

“In terms of Section 49A of the MPBL, the City may decide on a land use application that may be in conflict with a title condition that predates the Townships Ordinance 33 of 1934. The relevant provision in the MPBL does, however, not exempt an owner from complying with such title conditions,” Ms Nieuwoudt said.