Departure & Removal of Restrictive Title Deed Conditions applications - ERF 1230 SEDGEFIELD
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ERF 1230
SEDGEFIELD
Departure & Removal of Restrictive
Title Deed Conditions applications
Lundikazi Khuphiso
www.vpmsa.co.za
4/12/2021
TABLE OF CONTENTS
1. INTRODUCTION ............................................................................................... 1
2. BACKGROUND ................................................................................................. 1
3. PROPERTY INFORMATION ................................................................................ 1
3.1 LOCALITY ................................................................................................................................... 1
3.2 BIO-PHYSICAL SITE CONDITIONS ................................................................................................ 2
3.2.1 Topography ........................................................................................................................................................ 2
3.2.2 Vegetation .......................................................................................................................................................... 2
3.3 PROPERTY DETAIL ...................................................................................................................... 3
4. PROPOSAL ...................................................................................................... 3
4.1 TITLE DEED RESTRICTIVE CONDITIONS ........................................................................................ 4
4.1.1 Condition E (9) .................................................................................................................................................... 4
4.1.2 Condition E (8) .................................................................................................................................................... 5
4.1 DEPARTURE ............................................................................................................................... 6
5. FACTORS TO CONSIDER .................................................................................. 6
5.1 DESIRABILITY OF THE PROPOSED UTILISATION OF LAND ............................................................. 6
5.2 CONSIDERATION OF SECTION 33 (5) OF THE KNYSNA MUNICIPAL BY-LAW .................................. 7
5.3 APPLICABLE PROVISIONS OF THE ZONING SCHEME .................................................................... 8
5.4 ANTICIPATED IMPACTS OF THE PROPOSAL ................................................................................. 8
5.4.1 Impact on the character of the area .................................................................................................................. 8
5.4.2 Impact on property value ................................................................................................................................... 9
5.5 CONSIDERATION OF KNYSNA MUNICIPAL SPATIAL DEVELOPMENT FRAMEWORK (KSDF) 2020 ... 9
5.6 POLICIES, PRINCIPLES AND PLANNING AND DEVELOPMENT NORMS AND CRITERIA SET BY THE
NATIONAL AND PROVINCIAL GOVERNMENT .................................................................................... 9
5.6.1 Spatial Justice: .................................................................................................................................................. 10
5.6.2 Spatial Sustainability: ....................................................................................................................................... 10
5.6.3 Spatial Efficiency: ............................................................................................................................................. 10
5.6.4 Spatial Resilience and Good Administration: ................................................................................................... 10
6. SUMMARY OF APPLICATION ...................................................................... 11 LIST OF PLANS Diagram 1: Locality Plan Diagram 2: Aerial Photo Diagram 3: Zoning Map Diagram 4: Site Plan and Elevations LIST OF ANNEXURES: Annexure A: Power of Attorney Annexure B: Title Deed Annexure C: General Plan Annexure D: Approved Building Plans
INFORMATION REQUIRED IN TERMS OF SECTION 38. OF THE BY-LAW
COMPULSORY INFORMATION AND DOCUMENTATION REQUIRED
OF
REMOVAL, SUSPENSION OR
RESTRICTIVE CONDITIONS;
ANNEXURE REFERENCE
AMENDMENT
DEPARTURE
Completed & signed application form √ √ T2
Power of Attorney / Owner's consent (1) √ √ Annexure A
Resolution (2) √ √ N/A
Proof of registered ownership (3) √ √ Annexure B
Bondholder's consent (if any) √ √ N/A
Written motivation (4) √ √ Main document
S.G. diagram / Extract of general plan √ √ Annexure C
Locality plan √ √ Diagram 1
SDP / conceptual layout plan √ √ Diagram 4
Subdivision plan [incl street name(s) &no] − − Not required
Proof of payment of application fees √ √ Attached
Copy of title deed √ √ Annexure B
Conveyancer certificate (7) √ √ Not required
Minutes of pre-application meeting (8) √ √ Not available
SUPPORTING INFORMATION AND DOCUMENTATION REQUIRED
Zoning plan − − Diagram 3
Phasing plan − − No Phasing required
Consolidation plan − − Not required
Proof of lawful use right − − Not required
Proof of failure of HOA (9) − − Not required
Copy of original approval letter (s) − − Not required
ADDITIONAL INFORMATION
Approved Building Plans √ √ Annexure D1. INTRODUCTION
VPM Planning has been appointed by Jesse Joseph Peery, the owner of Erf 1230 Sedgefield, to prepare and
submit the following applications in terms of Section 15(2) and Chapter IV of the Knysna Municipality: Standard
Municipal Land Use Planning By-Law, to the Knysna Municipality (See Power of Attorney attached as Annexure A).
i. Section 15 (2) (b): Application for a Departure from the provisions of the Knysna Zoning Scheme regulations
to relax street building line from 4.5m to 2.27m in order to allow the planned encroaching second dwelling
structure as indicated on Site Plan Nr. S1230CP attached as Diagram 4.
ii. Section 15 (2) (f): Application for removal of Restrictive Title Deed Condition E (8) which relates to building
lines.
iii. Section 15 (2) (f): Application for amendment of Restrictive Condition E (9) which restricts the property to
only one dwelling house.
2. BACKGROUND
• Erf 1230 Sedgefield was created in 1956 when Sedgefield Extension 1 was established (Sedgefield Island) -
see General Plan attached as Annexure C.
• Recently, building plans were submitted and approved for a dwelling house and an outbuilding. The construction
of a dwelling house and outbuilding is currently in progress, as per the approved building plans (see Annexure
D).
• The owner intends to convert the approved outbuilding into a second dwelling.
3. PROPERTY INFORMATION
3.1 LOCALITY
The subject property is situated in
Sedgefield Island, on the corner of Johan
and Jan Van Riebeeck Streets. It is located
adjacent to the Island Retreat (See Locality
Plan attached as Diagram 1).
Figure 1: Extract indicating locality of the subject property.
13.2 BIO-PHYSICAL SITE CONDITIONS
3.2.1 Topography
• The site has an even gradient and not prone to flooding.
• In terms of topography, the site entire is suitable for development.
3.2.2 Vegetation
• In the eastern corner of the property there is a wild fig tree that will not be affected by the development.
• The site has no conservation value and does not serve a corridor function.
• Moreover, Erf 1230 has not been identified as a Critical Biodiversity Area (CBA) or an Ecological Support Area
(ESA).
Figure 2: Picture indicating existing fig tree on site.
23.3 PROPERTY DETAIL
Title Deed Description: Erf 1230 Sedgefield, in the Municipality & Division of Knysna, Western Cape.
21 Digit code C03900100000123000000
Title Deed Number: T000006460/2020 (Attached as Annexure B)
GP Diagram No.: GP 5088/1955 (attached as Annexure C)
Title Deed Restrictions: Conditions E (8) and (9)
Property Size: 1125 (One thousand one hundred and twenty-five) m²
Property Owner: Jesse Joseph Peery
Bonds: None
Land Use Residential
Zoning: Single Residential Zone I
4. PROPOSAL
Erf 1230 consists of a single storey dwelling house that is still under construction. The owner also wishes convert
the approved and half constructed outbuilding into a a second dwelling unit of 58m².
The subject property is zoned Single Residential Zone I, in terms of the Knysna Zoning Scheme By-Law that applies
to the Sedgefield area. This By-Law only allows for one dwelling unit per stand in the Single Residential I zone. The
primary right in this zone includes a second dwelling unit of not more than 60m² on a land unit, provided that the
units shall remain on the same cadastral unit as the main dwelling house. It may be a separate structure or attached
to an outbuilding or may be contained in the same structure as the dwelling house. It must be constructed in a style
that is similar to the architecture of the main dwelling house. A second dwelling unit that is contained within the same
building as a dwelling house must be designed so that the building appears to be a single dwelling house. Moreover,
the main dwelling and the additional unit may both have a ground floor, or one unit may be on the ground floor and
the other unit above.
Renovations to the garage will include the addition of a covererd
veranda along the northern and western sides of the garage,
which will result in a minor building encroachment of the roof
overhang as illustrated on Figure 3. The veranda will however
improve the aesthetic quality of the building and make it feel more
like a home than a garage. Covered verandas are not included in
the calculation of floor space, but will create a more spacious feel
by the addition of an outdoor living area.
Figure 3: Extract illustrating roof overhang.
3Figure 4: Extract illustrating veranda elevations.
Presently, there is an existing deck that is encroaching over the lateral building line but is permitted in terms Knysna
Zoning Scheme By-Law as decks lower that 500mm from the ground level in height are allowed by the document.
4.1 TITLE DEED RESTRICTIVE CONDITIONS
In addition to the development restrictions contained in the Knysna Zoning Scheme By-Law, the property is also
encumbered by another set of development parameters contained in the Title Deed of the property.
4.1.1 Condition E (9)
Title Deed condition E (9) stipulates that the property is restricted to only one dwelling house and no flats or tenement
houses may be erected on the property.
Figure 5: Extract indicating title deed restrictive condition E (9).
The Zoning Scheme By-law defines a “Dwelling house“ as a building containing only one dwelling unit, together
with such outbuildings as are ordinarily used with a dwelling house, and includes a second dwelling unit, with a floor
area which does not exceed 60 m²:
4Strictly speaking, the Zoning Scheme By-law, therefore, defines a dwelling house as 2 dwelling units. It is therefore
questioned if it is even necessary to amend this condition since the inclusion of a 60m² unit forms part of the
description of a dwelling house, which is allowed in terms of the restrictive condition.
On the advice from the Town Planning Department, in order to permit the proposed second dwelling unit of not more
than 60m² that is allowed as a primary right, the above condition needs to be removed or amended. Thus, an
application for amendment of Condition E (9) is being made to the Council. It is therefore proposed to amend
Condition E (9) to read as follows “no flats or tenement houses may be erected on any lot".
Amendment of Condition E (9) is only being made to accommodate the planned second dwelling unit. It is not the
intention to build any flats or tenement houses. It should be noted that at the time when Sedgefield X1 Township
was established in the 1950ties, there was no Town Planning (or similar) Scheme in operation. Title Deed Restrictive
conditions were the only mechanisms available to ensure land use control.
The proposed second dwelling unit measures approximately 58.2m² in extent, which is 1.8m² less of what is allowed
as a primary right. It will remain on the same cadastral unit as the main dwelling unit. In terms of design, the unit will
be built in a similar architecture as the main dwelling house. The additional unit will be a separate structure.
Furthermore, the Council has approved a garage where the second dwelling unit is planned as depicted on Approved
Building Plans attached as Annexure D.
With reference to the specifics, the proposed additional dwelling unit is not in conflict with the second dwelling
provisions set out in Knysna Zoning Scheme By-Law. Moreover, it complies with Single Residential Zone I
development parameters as set out in paragraph 5.3 (except for the 4.5m street building line restriction).
The purpose of this application is to bring two pieces of conflicting legislation in line.
4.1.2 Condition E (8)
Condition E (8) relate to the positioning of buildings within the property.
Figure 6: Extract indicating title deed restrictive condition E (8).
5In order to allow the planned encroaching veranda of the second dwelling unit on street building line, the above
condition needs to be removed. Therefore, it is requested that the Council remove this condition.
It should be kept in mind that at the time when Sedgefield X1 Township was established in the 1950ties, there was
no Town Planning (or similar) Scheme in operation. Title Deed Restrictive conditions were the only mechanisms
available to ensure land use control. However, with the introduction of Town Planning Schemes, and in particular
with the approval of the current Knysna Zoning Scheme By-Law, the need for Title Deed control has not only
effectively become superfluous, but in fact presents a major stumbling block to land use management.
4.1 DEPARTURE
Recently, building plans for the existing structures which are currently being constructed were submitted and
approved (see Annexure D: Approved Building Plans). The approved building plans indicate that the existing
structures are within building lines. However, the covered veranda encroaches over the 4.5m street building line on
the western side of the property, as indicated on Site Plan Nr. S1230CP attached as Diagram 4. Since the planned
second dwelling unit is going to be situated where the garage is being built, an application for a departure is required as
the covered veranda encroaches over the street building line.
Therefore, an application for a Departure from the provisions of the Knysna Zoning Scheme By-Law (2020) is being
submitted to the Council to relax the street building line from 4.5m to 2.27m in order to allow the planned encroaching
second dwelling unit.
5. FACTORS TO CONSIDER
5.1 DESIRABILITY OF THE PROPOSED UTILISATION OF LAND
Desirability refers to the place, i.e., is the land suitable for the type of land-use/activity being proposed and how will
it fit in and impact the surrounding environment. The desirability of this proposal can be listed as follows:
• The proposed additional dwelling unit will be situated where a garage has been built.
• The proposal will result in one additional dwelling and it will not impact negatively on the surrounding
properties since the area is characterised by residential homes and the proposed second dwelling is a
primary right.
• The property is situated within the urban edge of Sedgefield where soft densification is encouraged.
• The approval of the second dwelling will have no environmental impact.
6• The planned second dwelling unit complies with second dwelling provisions stipulated in Knysna Zoning
Scheme By-Law and it is allowed as a primary right.
• In general, street building line relaxations are not regarded as desirable, especially if it involves garages as
it may result in unsafe road conditions due to poor sight distances when cars reverse out of garages straight
into the street. The encroachments only involves a roof overhang which is unlikely to cause any traffic or
visual impacts.
5.2 CONSIDERATION OF SECTION 33 (5) OF THE KNYSNA MUNICIPAL BY-LAW
The Title Conditions date back to the 1950ties when Sedgefield X1 Township was established. At the time, title
deed conditions were the only statutory control mechanism available. Today, the older neighbourhoods in towns and
cities are restricted by two sets of legally binding (and in this case, conflicting) parameters. This is not in the public
interest as it often causes confusion among the public and also creates an unnecessary administrative burden for
the local authority. With the introduction of the Sedgefield Zoning Scheme Regulations in 1980 and the more recent
Zoning Scheme By-law, the need for this type of land use control has become redundant.
The personal benefit to the owner of Erf 1230 is that it will be able to construct an additional dwelling from the
premises, in line with his primary rights. Moreover, the planned second dwelling unit can provide economic benefits
to the homeowner as it supports the flexible housing needs of youth, young families, and pensioners.
We do not believe that there will be any social benefit in keeping the restrictive conditions. Removal of condition E
(8) and amendment of Condition E (9) will allow the property to have a dwelling house and a second dwelling unit,
like any other Single Residential property in town. The proposed second dwelling unit will create additional
accommodation opportunities that could be seen as beneficial to the large community.
By removing and amending the restrictive conditions, the land use will not change, and it will fit in with the
surroundings since the area is characterised by residential homes.
We believe that the removal and amendment of restrictive conditions will be in the public interest for the reasons
mentioned above.
75.3 APPLICABLE PROVISIONS OF THE ZONING SCHEME
SINGLE RESIDENTIAL ZONE I
DEVELOPMENT RESTRICTION COMPLIANCE
PARAMETERS
Coverage Erf size greater than 500m² shall not The site measures 1125 m².
exceed 50% of the area of the erf. Existing area: 204.4 m²
Covered Patio: 32.7 m²
Second Dwelling: 58.2 m²
Covered decks: 45.1 m²
Total additions: 103.3 m²
Total areas: 307.7 m²
Existing footprint: 204.4m²
New footprint: 307.7 m²
Coverage:
307.7m² ÷ 1125m² × 100 = 27.35%
Height At most 8.5m above natural ground The development will not exceed 8.5m height
level directly below a given point of the restriction.
building with a maximum of 2 storeys.
Building Front building line The development does not comply with 4.5 street
Lines 4,5 metres building lines restriction. Street building line
relaxation is part of the proposal.
Side and rear building line Lateral and rear building lines of 2m are complied
2 metres with.
5.4 ANTICIPATED IMPACTS OF THE PROPOSAL
5.4.1 Impact on the character of the area
As can be seen on the Zoning map (attached as Diagram 3) the area is characterised by residential zonings. Erf
1230 is zoned Single Residential Zone I; second dwellings of not more than 60m² are allowed in this zoning. Second
dwellings can therefore be regarded as part of the character of the area. The proposed second dwelling unit
measures 58.2m² in extent, which is 1.8m² less of what is allowed as a primary right. Therefore, we do not believe
that it will have any significant negative impact to the neighbourhood.
85.4.2 Impact on property value
Although restrictive title conditions had its origin in protecting the character of the neighbourhood and protecting
property values, it is not foreseen that these restrictive conditions will add any value to the property. In fact, they
restrict the property from achieving its full potential. A property with a second dwelling has a higher value according
to most estate agents. Additional dwelling units can provide important community benefits such as safe, affordable
rental housing. Furthermore, second dwelling units can also provide economic benefits to homeowners and they
support the flexible housing needs of youth, young families, and pensioners.
5.5 CONSIDERATION OF KNYSNA MUNICIPAL SPATIAL DEVELOPMENT FRAMEWORK
(KSDF) 2020
According to the KSDF, the property is situated within the urban edge of the Sedgefield area. The SDF stipulates
that formal or informal second dwelling accommodation should be legitimised as a form of soft densification and
means of responding to housing demand. The recently approved new Knysna Zoning Scheme By-law supports the
densification policies contained in the SDF by allowing small “granny flats” as part of the primary rights of Single
Residential I properties. Unfortunately, the archaic Title Conditions are not in line with the provisions of the KSDF.
Therefore, the proposal to remove and amend the conflicting Title Conditions is in line with the provisions of the
Spatial Development Framework.
5.6 POLICIES, PRINCIPLES AND PLANNING AND DEVELOPMENT NORMS AND CRITERIA
SET BY THE NATIONAL AND PROVINCIAL GOVERNMENT
In considering the application, the decision-maker needs to be guided by the DEVELOPMENT PRINCIPLES
contained in (Chapter II) of Spatial Planning and land Use Management Act 2013 (Act no 16 of 2013) SPLUMA and
Chapter VI of the Land Use Planning Act, 2014 (Act 3 of 2014) (LUPA).
The Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) is a national Act that was passed by
Parliament in 2013. SPLUMA aims to develop a new framework to govern planning permissions and approvals, sets
parameters for new developments, and provides for different lawful land uses in South Africa. SPLUMA is a
framework law, which means that the law provides broad principles for a set of provincial laws that will regulate
planning.
9Section 7 of the Act describes a set of development principles that need to be considered when evaluating any
development application. These principles include the following:
5.6.1 Spatial Justice:
The principle of spatial justice requires that past spatial and other development imbalances must be redressed
through improved access to and use of land. The location of this property and the type of land use envisaged cannot
directly contribute to spatial reform. These matters are best addressed through Spatial Development Frameworks
and Zoning Schemes and other management systems. The idea of creating affordable accommodation within
existing built-up areas has an element of redress in the sense that it opens more opportunities for people.
5.6.2 Spatial Sustainability:
The proposal supports this principle of spatial sustainability in the sense that it facilitates densification within the
urban area and thereby limiting urban sprawl and encouraging the optimal use of existing urban land and services.
5.6.3 Spatial Efficiency:
The proposal supports the efficient use of existing resources and infrastructure where decision-making procedures
are designed to minimise negative financial, social, economic, or environmental impacts. The positive consideration
of the application will contribute to the efficient use of serviced urban land with minimal negative impact.
5.6.4 Spatial Resilience and Good Administration:
Resilience is the capacity and ability of a community to withstand stress, survive, adapt, bounce back from a crisis
or disaster, and rapidly move on. The Sedgefield area needs affordable accommodation. The proposed second
dwelling unit can create a solution to the challenge of inadequate affordable housing. It can also bring in a rental
income that may be required to shield a family against unforeseen circumstances such as loss of income.
By removing and amending the Restrictive Title Conditions, the property owner can exercise his primary right in
terms of the Zoning Scheme By-law. The removal and amendment of these restrictions can be regarded as good
administration.
106. SUMMARY OF APPLICATION
Council is humbly requested to favorably consider the following applications to allow construction of a second
dwelling unit on Erf 1230 Sedgefield:
• Section 15 (2) (b): Application for a Departure from the provisions of the Knysna Zoning Scheme By-Law to
relax the street building line from 4.5m to 2.27m in order to allow the planned encroaching second dwelling
structure as indicated on Site Plan Nr. S1230CP attached as Diagram 4;
• Section 15 (2) (f): Application for removal of Restrictive Title Deed Condition E (8) which relates to building
lines;
• Section 15 (2) (f): Application for amendment of Restrictive Condition E (9) which restricts the property to
only one dwelling house.
The reasons for approving the development are summarised as follow:
• Title Deed Condition E (9) conflicts with the primary right of the property in terms of the new Zoning Scheme
By-law.
• The Building line relaxation will allow the addition of a covered veranda to the existing outbuilding, which
will enhance its aesthetic value and create the opportunity for outdoor living.
• The removal and amendment of restrictive conditions will allow the construction of a second dwelling that
will allow flexibility to the owner to provide accommodation to a family member, or to generate an additional
income through long or short-term rental.
• The proposal will not impact negatively on any of the neighbours and will not change the residential character
of the area in any way.
• The proposal complies with the provisions of the governing Knysna Zoning Scheme By-law applicable to
the Sedgefield area.
• The proposal supports the densification aims contained in the Knysna Spatial Development Framework.
• The proposal is in line with the development principles set out in Section 7 of SPLUMA.
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