A number of significant amendments to the City of Cape Town’s Municipal Planning By-laws of 2015 were promulgated this month (3 February), impacting both home owners and property owners in the hospitality industry who offer short-term and holiday accommodation.
Claude McKirby, Southern Suburbs Co-Principal for Lew Geffen Sotheby’s International Realty says: “For the most part it’s good news and certainly beneficial to property owners, but it’s imperative that people ensure they understand the criteria of the applicable by-laws and what is required of them in terms of compliancy.”
Single Residential Zoning now allows for three dwellings
“Traditionally, this zoning has allowed for two dwellings per erf if the property met the specified requirements,” says McKirby.
“Developers have been utilising sectionalisation and subdivision for some time to meet the growing demand for housing in areas where development is limited by lack of available land, but we have increasingly been seeing private owners sectioning off their properties for a number of reasons.
“There are discernible financial advantages to be gained, including a cash injection to ease financial burden, creating an additional source of income, considerably reduced maintenance costs and rates and taxes as well as the potential to achieve a higher return on investment when selling.”
Maryna Botha, Attorney, Notary Public and Conveyancer with STBB, explains the amendment: “The By-Law now allows for the erection of a third dwelling as an additional use right and the owner may do so without the obligation to obtain prior approval from the City, subject to the normal development rules of the property and specified additional conditions.
“But the construction of a third dwelling will still be subject to the City Directors’ confirmation that there is sufficient service capacity (water, sanitation and electricity) to support the additional dwelling and the owner must submit a building plan to the City for approval before construction may commence.”
She adds that the City may require a third dwelling to have the same architecture as that of the main dwelling house.
McKirby cautions that many properties, unfortunately, have conditions in their title deeds stating that no more than one dwelling despite its municipal zoning of single residential allowing for three dwellings, and the condition would then first have to be uplifted.
Short-term letting provisions
“Cape Town’s popularity as a world-class tourist destination has resulted in a spike in the number of homes available for holiday lets and fuelled investor demand for sectional title units with short term rental potential,” says McKirby.
“However, there has always been a bit of a grey area regarding whether short term let properties should fall under the same regulations as guesthouses and B&Bs and even what the exact definition of short-term letting is in terms of the rental act.”
According to Botha, this has now been clarified: “Short-term letting from a house or flat for a period not exceeding 30 consecutive days is no longer controversial and the By-Law now makes specific allowance for such use of premises and adds a definition of a “transient guest” who may make use of short-term letting.
“A transient guest is defined as someone who ‘is provided temporary accommodation on a land unit that is not their permanent place of residence, for a continuous period not exceeding 30 consecutive days at a time’.
“However, this does not prevent organisations like body corporates and homeowners’ associations from implementing regulations controlling or even prohibiting the use of property for short-term letting and these rules will trump the zoning allowance.”
Minimum off-street parking requirements
Minimum parking requirements have been reduced for the following land use categories: flats, boarding houses, guest houses, backpacker’s lodges, hotels, retirement homes, orphanages, crèches, places of instruction, gyms and health clubs, clinics, medical consulting rooms, veterinary practices, shops, supermarkets, restaurants and motor showrooms.
However, parking requirements have been increased for third dwellings and self-storage as well as for the following land use categories: motor repair garage, service stations and motor fitment centre.
McKirby says: “With Cape Town’s traffic congestion at an all-time high, more people – especially tourists and millennials – are relying on Uber and MyCiti buses to get around or are car-pooling to work, so it makes sense to lower the minimum parking requirements.”
Height of structures
“There is now a new method for determining the height of structures which will no longer be measured from a base level as an imaginary plane,” says Botha, “but rather from all points above the existing ground level.
“A specified height above existing ground level can be seen as a ‘parallel’ plane to the existing ground level so all references to base level have therefore been changed to refer to existing ground level and the definition of ‘existing ground level’ has been amended.
“And the approval of an application for a departure to alter the development rules relating to permitted floor space or height that does not exceed 10% of the maximum height or floor space of the existing subzone, does not trigger the minimum threshold requirement.”
She adds that minor departures from sub-zonings can now be made without the necessity to rezone and a transitional clause confirms that amendments to the by-law cannot be applied retrospectively to applications made after 3 February.
Increase of validity period for approvals of land use applications
The default validity period for approvals granted in respect of land use applications has increased from two to five years is now standardised to be 5 years (and not two).
Botha says that this also applies to the extension of the validity period for land use applications, but excludes temporary land use departures.
Boundary walls
Under the amendment, the height and visual penetrability of boundary walls are now regulated and the Council’s approved policy remains in force in respect of the type of permitted materials for walls and fences.
