– Lia Snijman. Above: Mountains with first snow in Stellenbosch. Photo: Francois Lombaard.

Questions have been raised by the Lovell Homeowners Association (LOHA) about the development on 84 Lovell Street by Francois Dercksen. LOHA has complained that he did not respect the spatial restrictions by building five units instead of three on the property, and that their appeal was dismissed by Gesie van Deventer, Stellenbosch’s Executive Mayor.

“On 16 August 2018 the Executive Mayor (EM) dismissed an appeal by the LOHA and approved the development. The development comprising five town houses was approved despite a recommendation by the Manager, Spatial Development of the Municipality, that no more than three units should be permitted on the 1112m² property. Similar representations by other Interested and Affected Parties (IAP’s) were also ignored. The principal objections related to the additional parking that will be generated and the total loss of open space,” reads a statement by Bruce van Rensburg and Heidi Prozesky from LOHA on the Stellenbosch Rate Payers’ (SRA) website on 16 June.

They explained that no more than three units should have been allowed because of common open space that is required for each unit by the Town Planning Scheme Regulations.

Development of 84 Lovell Street
Dercksen took issue with his development being used as an example for the disagreement on the mayor’s power as appeals authority by the SRA and LOHA. He pointed out on Facebook that the initial zoning of his property was General Residential which he then attempted to rezone to Group Housing, as he did not think a block of flats was appropriate in Die Boord. He obtained the rezoning certificate in 2016.

“The initial planning approval was granted for 6 units, against which the [Homeowners Association] and one other appealed,” he said. “The mayor as appeals authority did not dismiss the appeal, but rather upheld such in part by approving only 5 units, and not the initial 6.”

He said that he met with the neighbours and LOHA for the public participation process where he agreed to reduce his six units to five. He also said that Van Rensburg had agreed to the reduction from six to five units and withdrew his previous objection in a signed letter that was dated 1 August 2016. The SRA contended that Van Rensburg reinstated his objection to the five units and that it was the five units’ approval that the LOHA appealed.

Dercksen said that his building plans were submitted in November 2018, approved on 1 March 2019 and the construction completed on 13 December 2019. His first occupants moved in on 8 January 2020.

The LOHA expressed their regret at the loss of “the communal open space that it was entitled to”. Dercksen called this statement misleading, saying that the property on which his development was built was never “zoned ‘communal open space’, and therefor ‘communal open space’ is not something the LOHA was entitled to or could have lost”. He said: “If the group housing zoning was not approved, a next developer might have built the block of flats in terms of the established general residential zoning. And seeing that traffic and parking were the appellants’ main objections, that would have been bad news indeed.”

The SRA said to StellenboschNews.com that “communal open space” is in fact not a zoning, but a requirement of group housing zoning. They stated that “the constitution of the Lovell HOA (as approved by the Municipality) required that this property should fall under the jurisdiction of the Lovell HOA”. They added that by removing the remainder of erf 5343, on which Dercksen’s development was built, from LOHA’s control and considering it in isolation, “the manner in which certain municipal officials dealt with the matter, became fatally flawed”.

Dercksen stated that he did not and still does not see the process and decisions taken as “controversial”.

The mayor as appeals authority
“In arriving at her decision to dismiss the appeal, the EM, who is an advocate, relied on the advice of an attorney. The latter apparently considered the site in isolation and indicated that there is no clause in the title deed of the property requiring the owner to be a member of the LOHA. Membership of the LOHA was and is, however, a requirement of the Municipality in terms of the Land Use Planning Ordinance (LUPO),” said LOHA in their article on the SRA website. They added that many Stellenbosch properties are members of a homeowners’ association but do not show the conditions in the relevant title deeds.

They explained that the EM addressed Ward 22 on 17 October 2018 but did not do anything about the matter as she had already dismissed the appeal. “The fact that the planning directorate persists in using outdated and often undeliverable Registered Post also contributed to the unfortunate decision,” they said and elaborated that eight letters by the IAPs were ignored.

They raised the question of whether or not the EM is the appropriate authority and has enough capacity “to consider appeals relating to planning matters”. They said that previous appeals were dealt with by the provincial minister in charge of planning. “In the interests of democracy, how appeals are dealt with clearly needs to be revisited.”

Van Deventer said to StellenboschNews.com: “Planning processes in all municipalities across South Africa are governed by national legislation – the spatial planning and land use management act (SPLUMA). The perception that Stellenbosch Municipality has its own set of planning and appeals processes is incorrect. As in all other municipalities, all planning and appeals procedures are handled in terms of SPLUMA. This specific case of the development in Lovell Avenue was therefore also handled in terms of this legal framework.”

“When a matter is approved or rejected by an official, the appeal firstly goes to the municipal manager. If the parties involved are not happy with the decision of the municipal manager, they can appeal to the mayor. Applications to the planning tribunal can also be appealed to the mayor,” she said.

She explained that she is fortunate to have a strong legal background as the applications tend to be “very complex” and require “in-depth legal research”. “Due to the technical nature of the specific case referred to, various inputs and a formal legal opinion from a legal expert was obtained to ensure legal and planning compliance and correctness,” she said.

“The perception that these appeals are discussed with other councillors or politicians is incorrect. It is an independent process that is actually a kind of mini court case. The appeal documents and representations are submitted by the planning department and legal representatives to the mayor alone and any personal appearance by any of the parties of legal representatives also takes place with only the mayor and one recording official present. All oral representations are recorded and transcribed as official record.”

She claimed that her years of court experience make her prioritise independent thought and hearing both parties’ side of the matter. “My independence is evident from the fact that I sometimes differ from planning officials. I always ensure that everyone involved has the opportunity to provide inputs and or representations.

“It is open to any aggrieved party who disagrees with my decision to lodge a review to the High Court. I need to reiterate that this is a purely legal and administrative process that does not involve any other councillor or politician,” she said. She added that every decision is reported to the council on a quarterly basis.

When asked to provide the reasoning behind the decisions made, Van Deventer said that she stands by her explanation of the processes and once again invited any individuals who take issue with her decisions to lodge a review to the High Court.

The SRA said to StellenboschNews.com: “The Mayor already has a very onerous job. Dealing [with] very voluminous appeals is surely beyond the capacity of a single individual. As applications are submitted to the municipality in the first place, it is also questionable whether the municipality could be considered to be impartial in deciding on appeals. There are also shortcomings in the process of providing appellants with access to the information that is to serve before the mayor as the appeal authority. A body similar to the municipal planning tribunal (MPT) which has wider representation might be more appropriate to deal with appeals.”