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Subscribe to our
bi-monthly
HPASA newsletter. |
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October 2011
IS YOUR
ZONING REALLY IN ORDER?
Long usage
cannot condone zoning contravention |
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In the hospitality industry, zoning
issues are a real concern. Whether you are
running a restaurant, bed and breakfast,
hotel or other business from a premise,
the property must be zoned for such use.
Incorrect Zoning
If it is not correctly zoned, then
your hard-earned profits will be applied
towards penalty payments and the business
may be ordered to discontinue activities
until (and if) the re-zoning application
has been successful. And do not acquiesce
in appearance: long usage of premises in
contravention of zoning regulations remain
unlawful and open to penalty.
CITY OF JOHANNESBURG V AMPCOR CONSULTING
This principle was
recently confirmed by our Courts in
the matter of City of Johannesburg
v Ampcor Consulting CC.
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Ampcor had been
using premises contrary to the
applicable zoning provisions
for quite a while. |
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The premises were
situated in an area where the
land was zoned for agricultural
and residential dwelling use
only, but had openly, over some
30 years, been used more and
more for business purposes.
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When the municipality
took them to task on the contravention,
Ampcor argued that the municipality
had waived its rights through
its acquiescence and otherwise
could not enforce compliance
with the zoning provisions because
of its undue delay in enforcement.
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Rejected
The Court rejected these arguments
because they were irrelevant in the context
of the municipality’s obligations
to enforce zoning provisions.
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The municipality, as
a statutory body, is by law obliged
to observe and enforce the provisions
of zoning schemes that are applicable
in its area of jurisdiction. |
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The municipality has
no power to act outside these obligations
and must observe and enforce the provisions
of the zoning scheme. |
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It therefore has no choice to exercise
discretion in such matters and cannot
acquiesce in any contraventions of
the scheme. |
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Put differently, the
municipality cannot by virtue of acquiescence
be prevented from or excused from
the performance of its statutory duty.
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Conclusion
Therefore check up on your zoning allowances
and where necessary, approach a professional
at STBB Smith Tabata Buchanan Boyes on info@stbb.co.za
to apply for the rezoning of the property,
or to apply for consent to use property
in a specific manner, after removing any
restrictive conditions that may be applicable.
Sourced from STBB |
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