Lagoon Bay golf estate developer Werner Roux’s case against the provincial minister of Local Government, Environmental Affairs and Development Planning was dismissed in the Cape High Court.
Minister Anton Bredell in April this year turned down Roux’s rezoning and subdivision application of Hoogekraal near Glentana. The development proposal for the land included two 18-hole golf courses, a 198 ha residential housing section as well as a commercial node and hotel.
Roux sought to turn aside Bredell’s decision. In the application, Roux’s legal team alleged that the minister’s decision was unconstitutional in that he did not have the "functional competence" to decide on zoning and subdivision applications. The applicant purported that the George Council’s decision last year to approve the rezoning and subdivision was the legally required approval of the application.
The development had gone through a number of approval processes before being submitted to Minister Bredell. The first of these was the approval of the amendment of the George Urban Structure Plan from agriculture/forestry to township development. This was granted by the former Environmental Affairs Minister Tasneem Essop, but on the condition that her decision was still subject to a future rezoning approval by Provincial Government. The applicant argued that LUPO (the Land Use Planning Ordinance) did not grant authorisation to the minister to impose such conditions in her approval. Judge Ben Griesel dismissed this argument on the grounds of provisions in LUPO that specifi-cally authorise the minister to do exactly that.
Larger region affected
The developer also argued that Minister Bredell’s decision was unconstitutional, because the Constitution dictates that applications for rezoning and township approval fall within the exclusive ambit of municipalities. However, Judge Griesel said in his pronouncement that he agreed with Minister Bredell’s argument that Lagoon Bay will have an impact beyond the George municipal area and will affect a larger region. It therefore falls within the ambit of regional planning and develop-ment. Referring to a number of sections in the Constitution, the judge said it was "abundantly clear" that the Constitution entrusts provinces with extensive powers of supervision and monitoring of local government. He concluded that the developer’s argument could not be accepted and dismissed the application with costs.
Commenting on the outcome of his application, Roux said, "We are studying the pronouncement and will then take advice from our legal team.
"We are dumbfounded and of course very disappointed. We will probably appeal against the ruling."
By Alida De Beer