eThekwini Municipality v Tsogo Sun KwaZulu-Natal (Pty) Ltd

Tsogo Sun KwaZulu-Natal (Pty) Ltd was developing a casino complex at the Village Green site in Durban, zoned as Special Zone No 84 under the Durban Town Planning Scheme (in preparation). The zoning required compliance with an approved Integrated Development Plan (IDP). In November 2004 Tsogo Sun submitted building plans for, inter alia, a multi-level parking facility (parkade). The eThekwini Municipality did not approve the parkade plans within the statutory 60-day period under s 7(1) of the National Building Regulations and Building Standards Act 103 of 1977. On 31 January 2005 the Municipality informed Tsogo Sun that the plans did not comply with the July 2002 IDP and would not be considered unless amended or the IDP itself was amended. Tsogo Sun approached the High Court under s 8(1) of the Act, contending that the Municipality had failed to grant or refuse approval timeously and seeking an order compelling approval or a decision. The High Court granted relief, including declaratory relief regarding the interpretation of the IDP. The Municipality appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the High Court was set aside, and Tsogo Sun’s application was dismissed (with the consequence that Tsogo Sun was required to pursue the statutory appeal remedy under s 9(1)).

The case clarifies the meaning of a ‘refusal to approve’ under s 7 of the National Building Regulations and Building Standards Act and distinguishes it from a mere failure or postponement to decide. It affirms the principle that parties must exhaust internal statutory remedies before approaching the courts. The judgment also confirms that an Integrated Development Plan, where incorporated into a town planning scheme, has legal force and is a mandatory consideration in building plan approvals.