Chris Mulder (Ex TIDC Director & Master Planner) steps into the fight. Read his letter to HOA Chairman here

December 28, 2018

A copy of Chris's email of today to Bill Cooper, Chairman of the HOA, was forwarded to me. I asked Chris for permission to put it on the blog so all homeowners can read his views. This was his reply:

Hi Ken

I have not problem in you sharing the mail because it is what it is and in my view we need to protect  the value what all of us as a team  created here through years and years of blood, sweat and guts. And protect what we promised and sold to our buyers. Regards, CM 

Here is his email:

From: Chris Mulder <chris@cmai.xx.xx>
Date: 28 December 2018 at 09:30:19 SAST
To: "Graham Power (Mailbox)" <gap@powergrp.xx.xx>, Admin - TIHOA <admin@tihoa.xx.xx>, Gina Oosthuizen <tihoa@tihoa.xx.xx>
Subject: TRUSTEES¹ EXPLANATION OF THE DECISION TO OFFER INCREASED  FAR (BULK) TO REGULARISE THE ESTATE

Hi Paul /Gina

Can you please pass this mail on to Bill Cooper.

I do not have his email address and I promised Graham Power I will send my mail this morning since we have a meeting scheduled there at the TIHOA offices at 12 noon  

CM

Dear Sir 

Allow me  some comments, as a member and Home Owner  on your IMPORTANT NOTICE TO MEMBERS which apart from some very general and fleeting statements are flawed in one major aspect of your  point of departure.

It took our office (CMAI) and a team of various professionals, coordinated by myself, all of 8 (eight) years 1990-1998  to get the Thesen Islands Development approved, including ALL of the Design Guidelines, Regulations Plans, Urban Regulations and every single site plan  for all the stands to be sold on Thesen Islands. Barlows then still owned the Island.

This level of detail planning and design, where every single erf to be sold was regulated  by  a set of plans clearly explaining the Bulk, mandated single storey requirements, coverage, setback lines , building lines , parking areas, and in some cases access, and fence and garden walls or a mandated tower requirement  where applicable was unprecedented in SA at the time. In other words we created a set of purpose made Special zoning Parameters to be rolled out  and be mandated/required by the Conditions of Approval  in the building/creation  of Thesen Islands.

Once we started selling, all of these plans  for every single sale that was made were signed and agreed to by all of us who purchased stands on Thesen Island  in addition to the Sales Agreement  and the Constitution. Thus everyone who purchased a stand here, knew exactly  what she or he bought into and what the rules are/were.  Most people who bought here, did so exactly because of the to be entrenched Zoning parameters promised by the Thesen  Island Development Company  (TIDC) established 1998/1999.

These guidelines and regulations, and especially the building period were, on several occasions  unsuccessfully legally challenged by certain Home Owners over the first 5 or 6 years because the relevant documents were crystal clear and enforceable under the SPECIAL ZONING  or Special Zoning Parameters that was created for and approved for Thesen Islands  and applied for by this office over the above said 8 year period of 1990 to Dec 1998.   

We officially received the said approvals  with 101 Conditions to comply with attached to it. During the two ensuing two  years before  TIDC commenced with construction, the 101 Conditions were meticulously ticked off one by one and complied with.

We indeed obtained  Special Zoning parameters outside the Knysna Zoning Scheme for Thesen Islands based inter alia on the following:

1.       Our Streets are specially cambered   and narrower  and more varied than anywhere else in Knysna or most Municipalities ….. with a complete  system of integrated and dedicated walkways and “pedestrian sheds”  found nowhere else . Hence our streets are PRIVATE and have been kept private and not ceded back to the Municipality, like we ( the Development company)  ceded back the water and sewer and electricity to the Municipality. We could not have achieved this if we did not obtain the SPECIAL ZONING  parameters

2.       Our Stormwater management system in the streets are site specific and specially approved.

3.       All our open spaces are private and managed as such under the Special Zoning parameters agreed on  and thus not  managed under the Knysna Zoning Scheme, as are the canals.

4.       Our regulations and specifications  about the  mandatory picket fences , the locally made street lights, bollard lights, street furniture,  trash receptacles,  and signage, all designed by CMAI ( all made locally by local artisans here in Knysna and designed labour intensively to create the max amount of jobs) also required the SPECIAL ZONING  parameters and Municipal approval because it is not STANDARD Municipal issue and hence cannot be seen as a part of the Knysna Zoning Scheme

5.       Stand sizes of 264 to 300 sq meters and even  400 sq (almost 20 % of the houses on Thesen Islands)  meters were basically unheard of or non-existent in the Municipal area except in the Townships at that time, and we thus had to obtain SPECIAL ZONING parameters and special approval  for these erven all of them with unique setbacks and regulation plans . I personally sat and negotiated with the then Town Engineer  the fact that  three of these smaller stands, amount to one equivalent erf in the Municipal area and thus had to be incorporated as such  in  SPECIAL ZONING Parameters  for Thesen Islands.

6.       Finally, the fact that we had a full regulation plan, complete  site plan, and an  Urban Regulation plan plus a precinct plan for every single stand on every  island spelling out exactly what and how much can be built on each stand was unique  and totally new in the country at that time and we obtained the   SPECIAL ZONING parameters and status and approvals based on this for every phase and for every single island. Special Zoning parameters were created for the individual islands, as for example for  the houses on Saffron Island with all their living rooms cantilevered over the water,  the row houses on Q island, the gantry houses and.. and.. and. There are  many examples of this to prove the point that we obtained Special Zoning parameters outside of the Knysna zoning Scheme  !  

7.       The list requiring the SPECIAL ZONING parameters can be expanded to include the Parkland and the previously contaminated land  and the two Core Contaminated Zones, the bird park, the dog run, etc.

  

8.       If we did not struggle for eight years to obtain a SPECIAL ZONING designation in order to control our own destiny and tried to NOT get regulated within the normal Knysna zoning Scheme to a large extent, we could have simply submitted a  sub-divisional  town planning plan showing 605 empty erven ( that is TIHOA and TICOA) like all other applications and subdivisions  in any  town or any other town in this country.  We could have  just mentioned the number of stands and  only the stand or erf sizes, and let the Knysna Zooming Scheme apply.   Then Thesen Islands was going to be, or would have been  “ just another suburb  “………. and we would have  now lived in  the sprawl of a mundane  “Suburbia” where it is basically a free for all bar a couple of  standard Municipal issues.

All of these documents and stamped  approvals and the entire set of  stamped (by the Municipality)  regulating plans, urban regulations (Hard copies) for all the houses  were officially handed over to the HOA by myself and was in possession of the HOA  and used at the DRP meetings for years until Wiekie Smit died.

Are these documents still in possession of the HOA ??. ………or what happened to them?  If you still have them , you can or should work through them  to better understand the process  and the steps of applying for more bulk.

This was how we started and built out most of the  512 single residential houses and 56 Apartments (also Special Zoning Parameters)  on the Island and how it was approved and stamped by the DRP.

At that time, myself and Gray Rutherford was on the DRP and sat in and signed off the plans  at EVERY  DRP  meeting . We appointed Edu Lohan as the administrator plus a member of the Trustee body and two or three architects to serve on the DRP.

During these first 8  years when most of the houses were built, not a single plan was approved if the plan did not conform with all the guidelines and coverage  and bulk allowed. 

If your general statement that there are a considerable amount of houses over bulk and wrong calculations can be believed at all, then it should be easy to check why and how the “mistakes” originated and then the Architect involved  who erroneously or purposely  stated the wrong calculations 

The DRP could not and cannot “ re-measure” the plans then because the technology was not that easy at the time. We had to rely on the submitting Architect’s integrity.  My view is that some people, of course, built on illegally after the plans were approved. It happens everywhere.   

I am aware of the fact that these people were then pushing and exerting pressure on the DRP to “use” the Knysna zoning Scheme to help them win their battle  with the illegally built on additions with the HOA.  In a fair amount of cases during the past 5-6 years, the DRP were even overruled by the Trustees to accommodate these people who built illegally and were pushing for the Knysna Zoning Scheme to be the guiding document .

Partially this is the case again NOW and in the past year and the same school of thought is surfacing again  ……. Certain home owners absolutely WANT the Knysna Zoning Scheme  to be the controlling document because it serves their purpose of legitimising the  increase of  illegally built or newly approved bulk etc.

In your email letter /Notice to Home Owners below you are now stating repeatedly subliminally  and  erroneously and inferring that the Knysna Zoning scheme is the controlling document.

This phenomena reared its head for the first time some 4 or 5 years ago  when Wiekie Smit passed away  and one Henk Booysen arrived  on the scene and was appointed as Estate Manager knowing absolutely nothing about the history of the Special Zoning Parameters approved for Thesen Island when he arrived here and never bothered to find our either. He must have misled a lot of Trustees too and he left here, still not understanding the situation.

 At that time very few people in the Trustee body fully understood  or wanted to accept the decisions  and the role of the DRP. Nor did they want to understand or accept it or  realise the power we  really have in our hands because of the  fact that we have SPECIAL ZONING parameters approved and need not to comply with the Knysna Zoning Scheme in most aspects.

Neither did they understood  what the knock on  effect is going to be by Trustees overruling the  DRP ………which did happen  often.

Everyone in the Municipal Planning section was in 2012/13 , and still is  now, NEW  in town !.... and had no clue what and how Thesen island was approved and the Special zoning parameters entailed.

On invitation from the Town Planning Section , I spent two hours there, three months ago ,“lecturing” the Chief Town Planner and the five Town Planners working there now…..all of them not living more than three years in Knysna, on these Special Zoning parameters. They then asked me to draw up a set of Special Operating Procedures for them on the planning and approval processes followed on approving plans at Thesen Island. Which I did and hopefully now they understand what the procedures are and should be.    They cannot even find their set of stamped and approved plans or are not motivated enough to search for it, or even familiarise themselves with the guidelines and the approved Zoning parameters and status.

During the last five or six years very few people in the HOA seems to  have had a clue or  understood the zoning parameters either, since they kept harping on the Knysna Zoning Scheme  and it will be interesting to go back on the DRP minutes and determine how many times the Trustees overruled the DRP in the past 6 years.

If the HOA can find their set of stamped (now apparently missing)  since the arrival of Henk Booysen  and approved guidelines and Zoning Documents, you might make your task of getting the new proposal as circulated by TIHOA  easier to get approved.

The Town Planner you referred to in the attached document  plus the Municipal official responsible for approving plans came and visit me some 10  weeks ago when this current TIHOA  proposal first surfaced or  was mooted  and asked MY opinion on the increase of bulk, because the Planner and I are  seemingly the two only people around or easily accessible that knows what was submitted and what was approved.

I told them, and they agreed with me when they left, that in principle I have no objection to a well-considered bulk increase as long as we DO not increase the coverage.

It is however a major departure from our  design guidelines  in that it touches at the core of what was created here and what we all signed for and we all bought into.

Thesen Island today is a result of these guidelines and regulations that were implemented  rigorously throughout its forming years and building years.

The Enduring Value created on Thesen Island we all gladly share  ……..manifests itself in the :

?         Economic Value …..that is continuous rising in the property values (basically trebled in ten years)  here……. the  yearly rising in rental income……..this would not have happened if we lodged our application under the Knysna Zoning Scheme

?         Socio Economic Value …….which manifests itself in the  way residents find enjoyment of the  use of the open spaces and the spaces between  buildings, the walkways, parks   and visit and socialise there

                      ?         Sensory Value …the sight, sound, touch feel and taste of the           e                     place   

?         Environmental Value …….the fact that Thesen Islands continue to win  International awards 18 years post the advent of construction for the Wildlife and Habitat Creation ,is extremely significant   and important in upholding and building on the Enduring Value created here.

Because of all of the above there is an Enduring Value Component here on Thesen Island found in very few places in the World.

We must protect this above anything else.

Hence it is extremely important that we should :

1. Obtain approval at the AGM  or a Special AGM from the residents to Change the bulk and explain that this is a one-time effort.   
2. Then prepare our application accordingly with the said documented  Home Owners approval  and clearly spelling out exactly what is going to be changed as a ONCE off……. Not under the Knysna Zoning Scheme but under our own Special Zoning Parameters
3. Ensure that a couple of years from now  we are not faced with yet another similar demand.
4. Then submit our application to the Municipality for approval .
5. Then once Municipal approval has been given, the DRP can do its job to approve new submissions accordingly. Not the other way around .

As it is done, or proposed now, my view is that the HOA via the DRP are, in approving alterations to building  plans and stamping the plans with the new bulk numbers  for approval, are ultra vires.   (ultra vires: beyond one's legal power or authority)

You need the HOA members  approval first spelling out in detail what the allowed extra bulk is for every stand and that it impacts the  very basic core of what was signed for by all. This is NOT a minor amendment that can be ruled on by Trustees alone.

Then you need to submit to the Municipality an application with  motivation, and a document spelling out in detail what the allowed extra bulk is for every stand and apply for approval by the Municipality.

Once this approval has been obtained and approved by the Municipality which is “not a mere formality “ as stated by you in the Newsletter the new plans can be approved.

Regards

           

Chris