AIRBNB OWNERS this is a nice read for you.

DISCUSSING WALKER V CITY OF CAPE TOWN AND OTHERS [2024] 2 ALL SA 612 (WCC)

The case of WALKER V CITY OF CAPE TOWN AND OTHERS [2024] 2 ALL SA 612 (WCC) emphasizes the responsibility of municipal officials and legal representatives to engage in meaningful discussions, share relevant information, and provide clear guidance to the public.

It highlights the importance of obtaining all the information, finding solutions rather than delaying the process with technical hurdles. By referencing this case, you can remind decision-makers and opponents of their duty to facilitate thoughtful and fair administrative processes that address the evolving needs of society.

Background

The case of Walker v City of Cape Town and Others deals with a dispute between historical title deed restrictions and evolving zoning regulations. The Bantry Bay Township Conditions, established when the township was created, limited the development potential of properties by stipulating that no more than a single dwelling could exist on an erf without municipal consent. As urban areas densified and more people moved to city centers, zoning regulations evolved to permit greater development flexibility. A gap arose between title deed conditions and zoning regulations. If the title deed conditions are removed, then Walker would in terms of zoning be allowed to have three dwellings and all of them could be used for Airbnb units. Such an application would invite objections as parking in this area was a problem. Walker accordingly applied for the relaxation of the title deed conditions allowing her two dwellings and a domestic worker quarter. The problem, however, was that the building was an existing structure where three units were advertised in the past for hire on Airbnb and the main use was not that of a residence with consent use for a bed and breakfast. The objectors required some kind of protection to ensure that all three units would not be used as Airbnb accommodation in the future and thus they used different strategies to stop the approval of the application.

Court’s Findings

The court criticized the Municipality’s Planning Appeals Advisory Panel for their failure to clarify the real intentions of Walker. A ruling was made based on what they perceived Walker would do in the future.

“My difficulty with the above is that it again assumes that the Applicant applied for three dwellings to be used as Airbnb units. This is not the case. She applied for two dwellings and domestic staff quarters and to the extent that there was a danger that the subject property was to be used in a different way, the obvious solution was to tighten the protective condition.”

What basically should have happened is that the application had to describe what the current use of the property was, an assessment of the factual implications since the 2019 amendment to the  Municipal Planning By-Law and the City officials had to investigate the current use of the property and the implications for parking and traffic.

City officials are there to in fact help and guide applicants with applications before the public participation process commences. The public participation process should not start afresh when objectors provide new and relevant information.

The subjective intentions of parties are irrelevant.

The Court referred the matter back to the City of Cape Town with its commentary.

Writer’s opinion

I understand that rules and processes are necessary, but they are often applied without addressing core issues, making the approval process within the Municipal framework cumbersome. All the parties to an application as well as the decision makers need to analyze the facts and issues at hand and move beyond a default “No you can’t” mentality. They should ask questions and seek solutions. The actual use of land or property forces lawmakers and decision makers to consider our evolving society. We face growing informal settlements, a demand for housing near workplaces, and insufficient employment opportunities, which push people to become entrepreneurial and work from home. Consequently, people use their properties to earn an income or create wealth. The complexity of township, municipal, homeowners’, and sectional title laws, along with town planning, compounds the issue.

As a lawyer I look at all the processes and think to myself, the process has become so complicated that we are missing the point and that is to serve the public. Yes, there must be balance but the process has become costly and too involved. Bylaws and policies make it extremely difficult for owners to legalize buildings developed over time with the aim to progress economically.

DE WAAL AJ summarized the problem encountered in township law so well, and I fully agree with his comments in this case,

“A developmental state such as South Africa can ill afford this kind of repeated bungling of administrative decision-making processes. Against this background, I do believe it is appropriate to kick off with a reminder that the duty to observe procedural fairness is ever flexible. Basic common-sense fairness to those affected is what is required from decision-makers. Adherence to administrative justice principles is certainly not a license for the endless stalling or repetition of processes, especially not at the slightest suggestion of impropriety.”

Written by Michelle Horn