Cape Town forks out for Four Seasons’s four-floor fight
Council's legal bills mount over 'objectionable' Cape Town building
The City of Cape Town’s legal bills continue to mount in its determination to allow four extra “intrusive” floors on a city centre building.
After losing a Cape Town High Court case with costs a year ago, the city council appealed to a full bench of three judges, and last week it lost again — also with costs.
The appeal judges were just as scathing as the judge in the first case about the decision by the council’s former head of building development management, Peter Henshall-Howard, to give the go-ahead for development of the Oracle in Buitenkant Street.The body corporate of the neighbouring building, Four Seasons, applied for a judicial review of the council decision after obtaining an interdict to halt work in 2012.
In the first High Court case, Judge Ashley Binns-Ward ordered the council to reconsider the planning application by the Oracle’s owners, the Simcha Trust, and to ensure that neither Henshall-Howard nor the council employee who drew up the report recommending approval were involved.The city council and Simcha Trust appealed, but Judge Mark Sher, Judge President John Hlophe and Judge Chantal Fortuin said on Friday that Henshall-Howard had undertaken little more than a “rubber-stamping exercise” when he approved the recommendations of a building control officer.
The two officials “laboured under a mistaken apprehension as to the relevant legal principles and erred in numerous respects in regard to their application thereof”, said the appeal judgment, written by Sher.
The Four Seasons body corporate complained in their court application that the Oracle extension — which has remained incomplete — had the effect of turning eighth-floor balconies into courtyards “confined between towering walls”. For flats on the ninth and 10th floors, it meant their view was replaced by a blank wall 3m from their windows.
Binns-Ward, who inspected the site before hearing the case, said the case was not about the loss of a view or the appearance of the Oracle building.
Instead, it was about something “so exceptionally intrusive and objectionable that it would not reasonably have been foreseen” by anyone buying a Four Seasons flat.Henshall-Howard had displayed a “fundamentally misguided belief that [the law] allows an unco-ordinated and potentially disharmonious approach” to planning applications, he said.The appeal judges said: “Local authorities are required to strike a balance between the rights of the owner of the subject property for which building plan approval is sought, and the rights of the owners of neighbouring properties.
“This cannot be done by the simple expedient of having regard only for the building plans under consideration, in isolation, and without any regard for what exists ... on neighbouring properties.
“And whether of not a proposed building will disfigure an area, be unsightly or objectionable, or derogate from the value of adjoining properties requires a judgment call that can only properly be made if it has regard for the area concerned and the neighbouring buildings in it.”