Court backs Sea Point residents’ setback challenge, but development stays - IOL

29 and 31 St John’s Road namely Erven 1056 and 1057, where two buildings older than sixty were standing.

Sea Point residents have described a Western Cape High Court judgment as a “pyrrhic victory” after the court found that the City of Cape Town’s approval of a five-storey development in St John’s Road was non-compliant, but declined to set aside the building plans.

Acting Judge Ashley Kantor said the decision not to set aside the plans was made “in the exercise of the discretion of the court”. This would mean that construction may continue under the existing approvals, subject to any further legal action. 

The dispute involved the Save Our Sea Point Residents Association (SOS), SBG Real Estate, the trustees of the Sky Trust and the City of Cape Town.

In April, residents launched legal action against the development at 29 and 31 St John’s Road, where two buildings more than 60 years old were standing. In May, the City confirmed that the development was being constructed legally.

Following the City’s decision, residents launched a crowdfunding campaign under the SOS banner to fund their legal challenge.

The residents’ legal review centred on the City’s approval of building plans under the Development Management Scheme (DMS) of the City’s Municipal Planning By-law.

The court extended the 180-day period in section 7(1) of the Promotion of Administrative Justice Act (PAJA), in terms of section 9(1), to the date on which the application was instituted.

Judge Kantor reviewed the City’s decisions of 3 June 2024 to approve building plans submitted by SBG Construction for erven 1056 and 1057, Sea Point. He declared that the plans did not comply with Item 41(e)(i) of the DMS.

However, the plans were not set aside.

The judgment states that, in terms of the DMS, no building may be erected closer than 4.5 metres to a common boundary that does not intersect a street boundary.

A building line of 0.0 metres may be allowed for a common boundary that intersects a street boundary, up to 18 metres from that street boundary. Where the two provisions conflict, the 4.5-metre requirement applies to a common boundary that does not intersect a street boundary.

The court ordered SOS to pay the wasted costs of 11 June, while SBG Real Estate and the trustees of the Sky Trust must pay the costs of the current application.

In December, the Cape Argus reported that the final appeal against the City’s approval of the plans had been upheld, with Mayor Geordin Hill-Lewis acting as the final appeal authority.

In response to the judgment, the City’s deputy mayor and mayoral committee member for Spatial Planning and Environment, Eddie Andrews, said: “The City is still studying the judgment and its implications. The City will comment further in due course and advise on the appropriate course of action once this process has been concluded.”

Weekend Argus also approached SBG Real Estate for comment but had not received a response at the time of publication. The company had previously said that the plans were approved.

SOS said it was disappointed by the judgment.

“To be clear, SOS is acutely disappointed with the outcome of this judgment, which we consider to be yet another merely pyrrhic victory, as ‘winning’ the case has brought with it zero relief,” the association said.

SOS said the judgment followed the mayor’s decision in December to uphold its appeal by finding the consolidated single-block structure non-compliant, while failing to prevent construction based on alternative plans for a building of identical proportions.

The association said the court had affirmed its argument on the interpretation of the setback rules for common boundaries, but had declined to set aside the building plans.

“We feel that, when faced with the more difficult task of enforcing the law according to his finding, Judge Kantor lacked the required courage and instead elected not to set aside the incorrectly approved, non-compliant building plans,” SOS said.

The association said the decision meant that residents living near the development would continue to experience its impact.

SOS said it was considering whether to pursue further legal action.