The School Governing Body (SGB) of Die Hoërskool Menlopark (SGB) failed in its legal bid to halt the proposed high-density residential development, earmarked to be erected across the school in Menlopark, Pretoria. FILE
The School Governing Body (SGB) of Die Hoërskool Menlopark (SGB) failed in its legal bid to halt the proposed high-density residential development, earmarked to be erected across the school in Menlopark, Pretoria.
The school turned to the Gauteng High Court, Pretoria, for an order reviewing and overturning the decision by the City of Tshwane to give the green light to the developer to have the area zoned for residential purposes.
The school is extremely concerned about the safety of its learners if the already traffic congested Rosemary Street and surrounding streets become even more congested if a high-density residential development sees the light there.
The governing body told Judge Elmarie van der Schyff that it has a duty to ensure the safety of the learners. This is especially important when they are dropped off at school in the mornings and fetched later in the day.
It said not only will the morning peak traffic emanating from the high-density development coincide with the pupils arriving for school, but the increased flow of traffic along Rosemary Street will further endanger school pupils at all times of the day.
It raised concerns regarding the City’s decisions regarding the rezoning of the property located opposite the school premises.
The governing body said it has been mandated to conduct the day-to-day operations of the Hoërskool Menlopark and to take the necessary steps to ensure that the rights and safety of the learners of the school are at all reasonable times protected.
The body raised arguments that the City did not properly consider the impact the increased traffic will have when it gave the green light for the rezoning in light of the development.
While the developer - Optimprops - disputed the school’s legal standing in bringing this application, Judge Van der Schyff said the school was well within its rights to raise these concerns.
She said while a school governing body’s primary task is governance, this is wide enough to include the control of external factors that affect a school and the safety of the pupils.
The SGB took the municipality to task for not conducting their own independent traffic assessment when it became apparent that the results of the traffic assessment reports provided by the SGB and Optimprops were not aligned.
Judge Van der Schyff commented that although it is a matter of common sense that heavy vehicle traffic poses an inherent risk to pedestrians, the pupils in question are secondary school learners, and the users of Rosemary Street expect young pedestrians to be around and to cross the road. These factors contextualise the risk, she said.
According to her, the SGB failed to explicitly define the manner in which the rezoning approval granted by the City would “have a significant impact on the rights of the pupils .. for generations to come,” as claimed by the school.
The governing body argued that the City turned a blind eye to the impact the development will have on the rights of the pupils to health, education, a clean environment, and protection from harm.
In this regard, the judge said, the SGB does not provide a clear basis for the court to understand how the approval will negatively impact the learners' rights to health, education, a clean environment, and protection from harm.
She noted that the 2013 City of Tshwane Regional Spatial Development Framework (2013 RSDF) called for a drastic change in the building environment and, among other things, introduced higher density and intensity land uses.
The area under consideration is considered to form part of a “concentration zone” within which high-density development is promoted. Densities of more than 200 units per hectare are promoted for properties less than 500 meters from proposed bus rapid transit (BRT) stations. The proposed development, which formed the subject of this application, falls within this category.
Optimprops, meanwhile, argued that the school has parking bays next to the road where parents drop off and fetch their children. It also said that the obligation rests on the school to provide a safe drop-off and collection point on the school property.
The municipality respondents, among others, submitted that the SGB glossed over the conditions for the approval provided by it for the rezoning.
These conditions, they said, were imposed because it was considered that traffic would increase in Rosemary Street and mitigating factors needed to be employed.
The conditions for the rezoning included that the Rosemary Street and Sussex Avenue intersection be converted to a traffic circle and that the traffic signal at the Atterbury Road and Rosemary Street intersection be optimised by including turning phases and vehicle detection by camera.
Another condition is that occupation of the development will only take place when all the required road upgrades have been constructed.
Apart from finding that the SGB did not launch these proceedings within the legal timeframe, the judge was of the view that it did not substantiate the grounds of review.
“I fail to identify any mandatory and material procedure or condition prescribed by an empowering provision that was not followed. The same should be said for the contention that the decision to grant the rezoning application itself contravenes a law or is not authorised by the empowering provisions,” she said.
The judge added that the City did not, as alleged by the SGB, pay lip service to the public participation process. “The public participation process rendered 29 objections. These were considered… It is evident that the municipality is aware of the extent of the current traffic issues that present themselves in Rosemary Street,” the judge said in turning down the review application.
Pretoria News
zelda.venter@inl.co.za
Related Topics: