Save Our Sea Point Residents Association (SOSRA) is awaiting the Western Cape High Court’s decision on its application for leave to appeal a judgment that found building plans for a five-storey block of flats in St John’s Road, Sea Point, were unlawfully approved but declined to set them aside.

It said if the application which was filed late last month, is unsuccessful, it intends to take the matter to the Supreme Court of Appeal.

The dispute centres on the Development Management Scheme (DMS) requirement for a 4.5m setback from rear property boundaries, which SOSRA says is intended to protect neighbouring properties and preserve the character of residential areas.

The judgement

Last month, Acting Judge Ashley Kantor ruled in favour of SOSRA in its legal challenge against the City’s approval of the St John’s Road building plans.

The court found that the City had incorrectly approved the plans because they did not comply with the City’s DMS, which governs building setbacks from common boundaries.

However, the judge exercised the court’s discretion not to set aside the plans, citing the prejudice to the developer as outweighing that to homeowners affected by the development.

SOSRA chair Lindsay Rodgers said the association is not challenging the original judgment, instead, it is appealing the decision not to grant a remedy, which allows construction to continue despite the plans being declared unlawful.

Rodgers said the common-boundary setback was not a technical nicety but existed to preserve residential amenity, maintain adequate space between properties and ensure developments respected their neighbours’ rights.

Rodgers said the association cannot accept the absence of relief for affected residents and believed an appeal was necessary to challenge the decision not to set aside the plans.

“We are waiting now on a decision from the same court whether or not leave to appeal will be granted. Should that not happen… we will consider petitioning directly to the Supreme Court of Appeal.”

He said the association’s concerns extended beyond a single development, with modern apartment blocks increasingly being built close together across parts of Sea Point.

“We would like the city to enforce its own regulations, and we would like the developers to adhere to constructing within the permissible parameters of existing regulations.”

Residents took to social media to express their dissatisfaction with the construction of several developments adding that it is “replacing the character of the area”.

One resident said traffic congestion is already an issue.

“The roads are already heavily congested, parking is becoming increasingly difficult and the existing infrastructure is under enormous pressure. Yet development continues at an incredible pace, without any apparent consideration for whether the area can actually cope with the additional population, vehicles and demands on services.”

The resident further stated that the heritage of the Atlantic Seaboard is also being “seriously compromised”.

City comment

Asked what steps the City would take following the court’s finding that the plans were unlawfully approved, and whether remedial action would be considered while construction continues, Deputy Mayor and Mayco member for spatial planning and environment Eddie Andrews said the City had reviewed the judgment and withdrawn an earlier advisory to align with the latest guidance.

“The revised development rule is also included in a set of critical amendments to the Municipal Planning Bylaw that came into effect last month,” said Andrews.

He said the City will monitor the situation since the judgment has been appealed by SOSRA.

Andrews was also asked how the City intends to address concerns about enforcing the DMS’s 4.5m setback requirement, particularly where developments are approved closer to neighbouring properties than regulations permit.

He said: “The judgment provides guidance on the interpretation of the Development Management Scheme going forward and does not retrospectively affect building plans approved before the judgment was delivered.”

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