The proposed development on the corner of Breë and Strand Streets falls in a so-called urban conservation area in terms of the regulations of the Cape Town zoning scheme and special permission for the development had to be obtained from the city’s division of planning.

The Cape Town city council’s land use management committee, Spelum, rejected plans for the proposed development of the packing shed and the erection of a parking deck and offices on top of the existing structure on 13 April 2011, following which the developer, Gera Trust, appealed to the MEC for local government affairs and development planning. Minister Anton Bredell decided in favour of Gera Trust. In reaction to this the Habitat Council, a non-profit organisation, and the Evangelical Lutheran Church approached the Supreme Court to set aside Bredell’s decisions, on the basis, among others, of the unconstitutional provisions of Article 44 of LUPO.

Bredell’s defence was that he had acted in accordance with Article 44 of the Ordinance on Land Use Planning No. 15 of 1985. He later conceded that certain provisions of section 44 of LUPO may be unconstitutional because he, in effect, could interfere with decisions by Municipalities (which, in certain cases would be unconstitutional).

According to Corlie Smart, heritage lawyer and deputy chairman of SES, the court indeed found that certain sections of 44 of Lupo, that are applicable to the Western Cape and parts of the Eastern and Northern Cape, were unconstitutional and some interim changes had been made to article 44.

In future, the MEC (referred to as the Administrator in LUPO) will not be able to replace a decision by a municipality regarding municipal planning with his/her own decision. Only if he/she is of the opinion that a decision had been wrongly taken, the decision could be referred to the municipality for reconsideration. The municipality would then have the choice between changing the decision and upholding the original decision.

Article 44 (2) and (3) of the Lupo now determine that any appeals to the Administrator have to be maintained by him/her in whole or in part or be referred back for further consideration. The Administrator may only refer back an appeal if it is necessary for the government of the Western Cape to ensure that the relevant municipality acts effectively. Such an order must contain reasons for the Administrator’s decision. Further appeals to the Administrator once he has considered it, will not be accepted.

Any appeals currently before the minister about which no decision has been taken yet, should be judged in accordance with the new Article 44.

If a party is unhappy with the decision taken by a municipality (after the MEC had referred it back for the municipality’s reconsideration), such party may approach the Supreme Court for an application to set aside the decision taken by the municipality.