Esquire Consulting and Marketing CC and Others v Sea Glades Holdings (Pty) Ltd and Others

The appellants were owners of properties, or trustees of trusts owning properties, in Marina Village, St Francis Bay. The first respondent was the developer and owner of erf 3306 within the same development. In 2001 the developer simultaneously applied under the Land Use Planning Ordinance 15 of 1985 (LUPO) for subdivision and rezoning of agricultural land to create Marina Village. Subdivision was approved, but the rezoning of two erven, including erf 3306, to Business Zone II was deferred pending further information. In 2004 the municipality approved the rezoning of erf 3306 to Business Zone II. Years later, when the developer commenced construction of a restaurant on erf 3306, the appellants sought an interdict, alleging that the business zoning had lapsed under s 16(2)(a) of LUPO because the land had not been utilised for business purposes within two years of rezoning. They contended the erf was therefore zoned residential and the restaurant was unlawful.

The appeal was dismissed with costs, confirming the dismissal of the application for an interdict.

The case clarifies the interpretation of rezoning and subdivision under LUPO, particularly the distinction between standard rezonings and simultaneous rezoning-and-subdivision applications. It confirms that deferred rezoning decisions may still form part of an original application and that the two-year lapse provision does not automatically apply. The judgment also provides authoritative guidance on what constitutes 'utilisation' of land for zoning purposes.