Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoonbay Lifestyle Estates (Pty) Ltd and others
November 20, 2013 at 12:00 am
Case number citation: (CCT 41/13)  ZACC 39 (20 November 2013)
Date of judgment: 20 November 2013
Judges: Mhlantla AJ (Moseneke DCJ, Froneman J, Jafta J, Madlanga J, Nkabinde J, Skweyiya J, Van Der Westhuizen J and Zondo J concurring)
Type of application: Review application and declarator
Legislation considered: Land Use Planning Ordinance, 1985
Today the Constitutional Court handed down judgment in a matter regarding municipal and provincial responsibilities in relation to land-use approvals.
Lagoonbay Lifestyle Estate (Pty) Ltd (Lagoonbay) applied to the George Municipality and to the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape Provincial Government (Provincial Minister) for certain land-use approvals in order to undertake a large-scale property development in the Southern Cape. Acting in terms of its powers under the Cape Land Use Planning Ordinance (LUPO), the George Municipal Council granted Lagoonbay approval for the subdivision and rezoning of the land. It then referred the approvals to the Provincial Minister for further authorisation. The Provincial Minister refused both applications.
Lagoonbay challenged the Provincial Minister’s refusals in the Western Cape High Court, Cape Town (High Court). It argued that the Provincial Minister did not have the power to involve himself in rezoning and subdivision decisions, and that, in any event, the refusals failed to meet the standard for just administrative action prescribed by the Promotion of Administrative Justice Act (PAJA). The High Court dismissed Lagoonbay’s arguments, reasoning that the scale of land use contemplated by the intended development had such significant effects on the surrounding region that any approval implicated not only municipal planning functions, but also regional and provincial planning as contemplated in Schedules 4 and 5 of the Constitution. The High Court dismissed the PAJA challenges.
On appeal, the Supreme Court of Appeal overturned the High Court’s decision and held that, the Constitution precluded the Provincial Minister from making rezoning decisions. The Court concluded that the approval by the Municipal Council was the final authorisation required by Lagoonbay.
In a unanimous judgment authored by Mhlantla AJ, the Constitutional Court held that, under LUPO, the Municipality was not the competent authority to decide the rezoning application. While the Municipality was the competent authority to decide the subdivision application, it could only do so after the necessary rezoning approvals had been granted. The Constitutional Court did not decide the issue of whether the Constitution conferred the competence to decide on the rezoning and subdivision of land to provincial or municipal authorities. This was because the issue was not properly pleaded in this Court. Finally, the Court dismissed the challenges brought in terms of PAJA, finding that the Provincial Minister had a broad discretion to grant or refuse Lagoonbay’s applications on the basis of their “desirability”. Accordingly, the Constitutional Court dismissed the challenge to the Provincial Minister’s rezoning decision and remitted Lagoonbay’s subdivision application to the Municipality for reconsideration.
Supreme Court of Appeal
Case Number/Citation: 320/12  ZASCA 13
Date of Judgement: 15 March 2013
Judge/s: NUGENT, PONNAN, TSHIQI and MAJIEDT JJA and SALDULKER AJA
Type of Application: Appeal
Legislation Considered: Land Use and Planning Ordinance 15 of 1985 (LUPO), Environment Conservation Act 73 of 1989 (ECA) and the National Environmental Management Act 107 of 1998 (NEMA)
Download this judgment in PDF here.
Western Cape High Court
- Lagoon Bay is history, George Herald, 28 November 2013
- Final hole in Lagoon Bay golf course, Cape Times, 31 August 2011
- Decision on Lagoon Bay upheld, IOL Property, 1 September 2011
- Appeal court rules in favour of George estate developers, Business Day, 19 March 2013
- Lagoon Bay wins Supreme Court action, Cape Argus, 19 March 2013
- Court rules in favour of Lagoon Bay, George Herald, 21 March 2013