YOUR ZONING REALLY IN ORDER? LONG USAGE CANNOT CONDONE ZONING CONTRAVENTION
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. 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!
This principle was recently confirmed by our Courts in the matter of City of Johannesburg v Ampcor Consulting CC. Ampcor had been using premises contrary to the applicable zoning provisions for quite a while. 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. 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.
The Court rejected these arguments because they were irrelevant in the context of the municipality’s obligations to enforce zoning provisions. 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. The municipality has no power to act outside these obligations and must observe and enforce the provisions of the zoning scheme. It therefore has no choice to exercise a discretion in such matters and cannot acquiesce in any contraventions of the scheme. Put differently, the municipality cannot by virtue of acquiescence be prevented from or excused from the performance of its statutory duty.
Therefore check up on your zoning allowances and where necessary, approach a professional at STBB Smith Tabata Buchanan Boyes, via email: firstname.lastname@example.org to apply for the rezoning of the property, or to apply for consent use, after removing any restrictive conditions that may be applicable.