CONSTITUTIONAL COURT OF SOUTH AFRICA
Trevor Turnbull-Jackson v Hibiscus Coast Municipality and Others
CCT 104/13 Date of hearing: 4 February 2014 ___________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday 4 February 2014 at 10h00 the Constitutional Court will hear an application for leave to appeal against the judgment and order of the KwaZulu-Natal High Court, Pietermaritzburg. The High Court dismissed Mr Turnbull-Jackson’s application to review and set aside the decision of the Hibiscus Coast Municipality to approve building plans submitted by Pearl Star Investments 14CC (Pearl Star).
Mr Turnbull-Jackson and Pearl Star are landowners whose properties are situated next to each other in Margate, KwaZulu-Natal. In 2003 Pearl Star submitted building plans to develop a block of flats. These plans were approved by the Municipality and Pearl Star began construction. Mr Turnbull-Jackson successfully appealed against the approval, but construction only ceased after an interdict was granted in his favour. Pearl Star’s revised plans, submitted in 2005, were approved. Again, Mr Turnbull-Jackson appealed successfully against the approval. In 2006, Pearl Star submitted a third set of plans which were approved in 2007. He unsuccessfully appealed against this approval and then instituted proceedings in the High Court to review and set aside the Municipality’s approval.
In the High Court, Mr Turnbull-Jackson primarily challenged the impartiality of the Building Control Officer (BCO) and the alleged failure of the BCO to adhere to various provisions of the National Building Regulations and Building Standards Act (the BSA). He argued that the BCO did not make a valid recommendation in terms of the BSA. He further submitted that he was deprived of an opportunity to make representations before the plans were approved and argued that it is unclear who must prove the presence or absence of disqualifying factors in terms of the BSA. The High Court dismissed all of the grounds and held that the objector to the plans must prove the presence of disqualifying factors. Mr Turnbull-Jackson was denied leave to appeal by the Supreme Court of Appeal.
In the Constitutional Court, Mr Turnbull-Jackson relies on the same grounds argued before the High Court. In addition, he contends that the decision-maker was not entitled to refer to external sources of information when making a decision to approve or decline the plans. The Municipality argues that the recommendation in this case complies with the law. The Municipality contends that it is inevitable that the decision-maker will take into account a variety of factors which are not limited to information contained in submitted documents.
The Municipality acknowledges potential uncertainty as to who must prove the disqualifying factors, but argues that this makes no difference and that the appeal should still be dismissed.
