Developers outside George win appeal against Local Government

01 Feb 2016 | Admin Author

The developers of the R5b Lagoon Bay lifestyle estate outside George have won their appeal to have a decision by Western Cape Local Government, Environmental Affairs and Development MEC Anton Bredell to prevent the development overturned.

The ruling by the Supreme Court of Appeal on Friday found that Bredell acted "unlawfully" and did not have the necessary authority to take this decision, as an application for rezoning for the Lagoon Bay development lay with the George municipality and not the Western Cape government.

The appeal application was brought by the developers in early 2011.

The ruling puts an end to the saga that has been ongoing since 2007, when Lagoon Bay's application was approved by then Local Government MEC Tasneem Essop. This was followed by the same approval by her replacement, Pierre Uys, in 2009.

However, Bredell put a stop to the development in April 2011 after objections had been lodged by a small group of local residents and environmental lobbyists the Cape Windlass Environmental Action Group. In the same year Judge Bennie Griesel found that Bredell was authorised to reject the development, but allowed leave to appeal.

Developer Dr Werner Roux had argued that the development had been through a thorough statutory process over the best part of a decade and had been met with approval for each decisive step along the way from all the authorities concerned.
The development on the farm Hoogekraal 238, which is situated within the George municipality, envisages a gated community spanning some 65 hectares.
It includes two 18-hole golf courses, residential housing, a hotel, wellness centre and spa and a private nature reserve.
Given the land on which the proposed development was to be undertaken was zoned agriculture and forestry, Lagoon Bay had to secure approval for the project in four different phases: an amendment of the George and Environs Urban Structure Plan, an environmental impact assessment, rezoning and subdivision of the farm and approval of building plans.

In his judgment on Friday, appeal court Judge Visvanathan Ponnan said the decision by Bredell to refuse the application was "constitutionally unlawful and a nullity".

He said the decision taken the by the George municipality on July 17 2010 to approve Lagoon Bay's rezoning and subdivision was a decision taken "by the correct designated functionary".

"The authority to regulate the use of land within a municipal area is conferred upon a municipality, while the authority to regulate the use of land within a particular region is a provincial competence," he said.

Ponnan said both Essop and later Bredell did not have the requisite authority to approve or disapprove Lagoon Bay's application.

"The George Municipality resolved to approve Lagoon Bay's rezoning and subdivision application. The municipality ... in the erroneous belief that that application was subject to approval by the provincial government ... referred it to the present incumbent of that office, Mr Bredell, who, without an appreciation that his predecessor had misconceived her powers, proceeded to deal with the matter."

Ponnan ruled that the successful application would be upheld with costs to be carried by the Department of Local Government, Environmental Affairs and Development, the George municipality and the Cape Windlass Environmental Action Group.

Roux said yesterday the developers were "relieved" by the judgment.

"I cannot confirm yet what our plans will be from here, but hopefully this judgment is the end of our battle and we can move on," he said.

"What I cannot understand is that the government wants to halt developments that ultimately will benefit a large part of the community and will attract outside investment. It is crazy to see how the DA-led Western Cape government has acted in this case."

Article John Harvey