Town planning scheme

In Educated Risk Investments 165 (Pty) Ltd v Ekurhuleni Metropolitan Municipality (308/2015) [2016] ZASCA 67, the Supreme Court of Appeal dealt with the interpretation to be given to a town planning scheme. More specifically, the court was required to decide what constitutes a dwelling house.

The Ekurhuleni Municipality intended to allow residents of an informal settlement on the outskirts of Springs to move to another piece of land, pending the upgrading of both areas. In the interim, the residents would be permitted to erect informal housing.

The owners of an adjacent township applied for an interdict to prevent the Municipality from allowing the land to be occupied as an informal settlement. The application was refused.

On appeal, the owners argued that informal housing was not permitted in an area that had been zoned as Residential 1under the Springs Town Planning Scheme. The housing would be informal in character, materials and design and would be of a temporary nature. The resulting structures would not qualify as dwelling houses, required in terms of the applicable zoning.

The SCA held that there was nothing to preclude informal housing structures from being treated as dwelling houses, as contemplated in the Scheme. To disqualify the structures, in which a vast number of poor citizens are compelled to live, would not be in accordance with the spirit, purport and objects of the Bill of Rights. Furthermore, the Scheme empowered the Municipality to authorise the use of land in a manner other than that stipulated, provided that it was satisfied that it would be beneficial to the community.

The appeal was dismissed with costs.

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