The decision to form a committee to investigate the bulk issue was, in my opinion, a strategic move by the trustees to be try to remove it from discussion at the AGM in January. It failed. Members insisted it be discussed with 80% to 90% voting against the increase in bulk. You read it on this blog.
Nevertheless, the committee was still planned as either the trustees had to drop their plan to increase bulk right there and then at the AGM, or roll the dice that the still to be formed committee would advance their agenda.
They set self serving, narrow terms of reference and swore (or tried to swear) the committee members to secrecy.
But the trustees knew they'd rolled "snake eyes" when they saw the make up of the committee. Independent, knowledgeable owners not able to be bullied into submission.
The committee investigated the issues and made their report. It is an indictment of the decisions and conduct of the trustees and the conduct of some of the HOA staff.
In conversation with one of the committee members some time ago, I asked the question: "What if the trustee's don't like your report and sit on it? Well here is the answer:
Four of the committee members went ahead and released it. I received an email with the Report attached on 28 June 2019, now over a month ago. The trustees have said nothing since, aside from, I have heard, some of them attacking the integrity of individual committee members. So who knows what their plan is now?
All of us owners need to give credit and thanks to these four Committee members - Mark Stemmett, Suyenne Botha, Chris Mulder and Hugh Bosman - who put the interests of the owners first and stood up against the power grab by the trustees. These are the type of people who should be trustees.
Here is the email:
Interested Thesen Island Members
A number of participants on the FAR Committee have decided to release the Final FAR Report (see attached). The Report was finalised with no dissenting views on any aspect and agreement was reached by consensus.
For some unknown reason the Trustees decided to withhold the release of the Report.
Please feel free to contact any of us for further clarification.
M. Stemmet
S. Botha
C. Mulder
H. Bosman
COMMENT: Other committee members included Lester Day (Chairman & trustee), Orrie Fenn (trustee) and Mike Barber. Note that the report was "finalised with no dissenting views on any aspect", even from the trustees on the committee. (The trustees have always presented every decision taken as "unanimous", whether that is true. This is the first time individual trustees have disagreed with the "unanimous" position on the bulk issue put out by the trustees.)
Here is the report with my comments in blue and bold added by me within the paragraphs.
Final Report of the Increased FAR (FLOOR AREA RATIO) Bulk Committee to Trustees and Members
Introduction
Members of the TIHOA, including committee members, questioned the need for the existence of this proposed committee taking into account that the majority of members at the AGM expressed by straw poll disapproval of the FAR proposal. These objections were specifically noted in the Terms of Reference agreed by the committee but did not influence the discussion and decision-making process.
The committee had other important areas to review and these are noted below.
Zoning Schemes
A presentation was made to the committee by Chris Rabie, previously the Head of Department, from the Department of Planning, Local Government and Housing Cape Town, who authored the broad outlines of the rezoning and subdivision of both TIHOA and TICOA on 17 December 1988. As the development proceeded, the authorities issued appropriate approvals for each sub-division (or phase) (according to the chairperson of the DRP copies of these approvals are apparently not available either at the Knysna Municipality nor TIHOA). COMMENT: I recently located the full approval document for Phase 1A & 1B, dated 13 November 2001, which I have shared a copy with the HOA and the committee. This approval includes the Design Guidelines and therefore FAR/bulk allowances as well as Site Plans and Regulation Plans. The committee broadly accepted the interpretation from Chris Rabie that the specific Thesen Islands zoning parameters as developed phase by phase were a subset of the Knysna zoning scheme parameters. It was confirmed by committee member Mark Stemmett that approvals are in fact available and we expect to receive further information on this from VPM Surveyors.
Chris Rabie conceded that the increase in FAR for Thesen Islands would be considered a major amendment. The process for such an amendment would include public participation from the members. Only members themselves can apply or instruct an Association to apply on their behalf: The application must also be advertised.
COMMENT: The trustees told us that "..the application is merely a formality.." This is not true. See below for the source *
Minor v Major changes
A presentation was made to the committee by Ludolph Gericke of G2 Planning, and a previous Town Planner of Knysna Municipality, who indicated that the changes to the FAR factors proposed by the Trustees were in fact of a minor town planning nature in a normal zoning scheme. However, this does not in fact imply that a minor town planning amendment will not result in major impact in aggregation. We are awaiting an updated report from Ludolph Gericke as he has been provided with additional information relating to Thesen Islands’ regulation and site plans.
The committee concluded that he had not taken sufficient notice of the accumulative effect of the individual minor changes applied across all the properties on Thesen Islands.
In addition to this proposed change to the FAR factor, the Design Review Panel (DRP) through the Trustees in the ordinary course of business periodically amend the Design Guidelines and submit these to the Knysna Municipality for approval. This clearly leads to possible conflict as each and every homeowner/member all signed up to specific Design Guidelines when they bought their properties.
COMMENT: Or to put it another way, rules sometimes get changed so the insiders get their way.
It is recommended that a practical process be developed where ALL changes to the Design Guidelines (whether considered major or minor) are shared with the members as part of a public participation process, and then taken to the Trustees for consideration.
The committee was unanimous on the fact that the current Design Guidelines is the version stamped and approved by Knysna Municipality on 25 May 2015. Any additional amendments proposed by the DRP to the Trustees, at any future stage, must be brought to an SGM or AGM and Members must be given the chance to approve, or not, each of the proposed amendments. This is consistent with Thesen Islands’ Constitution and this ruling needs to be incorporated into the Design Guidelines and the Terms of Reference for the DRP. The committee was also adamant that the current Guidelines must be strictly adhered to by all until a revised set is authored, agreed on by the members, and submitted to the Knysna Municipality for approval.
Proposed Increased FAR (Bulk)
TIHOA had no consolidated data set of all the properties with coverage, DSF (double story factor) and floor area. Before the committee commenced its meetings, it was necessary to research and plan how to extract all the data reliably and cost-effectively. Fortunately, Mark Williams, who is a Trustee and sits on the DRP, had been extracting this data from various sources and he made this package available to TIHOA. Our gratitude to Mark for his efforts. The core building blocks for this data were from Edu Lohann, surveyor general etc. We have reviewed (audited) key elements of this consolidated data, including a cross reference to the independent stand size used by Francois Slabber, from PKF Auditors, in generating levies, and are satisfied that it provides a data set from which to draw conclusions.
The committee has identified 32 properties that are non-compliant in terms of coverage or FAR (per the existing Design Guidelines), significantly lower than was originally assumed
COMMENT: Here is what the trustees told us on 21 December, 2018 in their
IMPORTANT NOTICE TO MEMBERS -
TRUSTEES' EXPLANATION OF THE DECISION TO OFFER INCREASED
FAR (BULK) TO REGULARISE THE ESTATE*
"Apart from the plan submissions to the DRP which highlight that many properties are over bulk according to our existing Design Guidelines, additional investigations by our BCO indicate that as many as a third of properties are non-compliant; and these are only the properties that we are aware of. '
"..it does not appear reasonable to apply the guidelines strictly to some members while it is widely known that probably a third of houses exceed bulk (FAR). "
"...our studies show that the impact (of the increase in bulk) is minor since many of the houses are already over bulk."
Well, as I expected, that has also turned out to be untrue. A third would be more than 150 houses. But no, it is 32! And the 32 properties INCLUDE those approved secretively "between August and November 2018" which owners have still not been told about!
It was challenged at the time. Chris Mulder wrote in his 26 December, 2018, email to the HOA:
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.." Read his full email here
I challenged it in my post The HOA tries out a new story. I'm not buying it
COMMENT: Not all have been put on hold. At least 2 properties are finished or almost finished "bulking up". As expected the HOA (our HOA) refuses to answer any questions about these, despite emails from many owners.
It is noted that the data set was the result of a desk top study, and to verify this would require an on-site inspection/ measurement of each property which the committee felt was not justified in terms of cost and time.
The Committee REJECTS the motivation that FAR should be increased to accommodate non-compliant properties (Original report bold)
COMMENT: That had to be the stupidest argument made for the increase in bulk. Like saying that too many people are being arrested for drunk driving so we need to raise the alcohol limit.
Turning to the specifics of the data set, analysis showed that in aggregate there is unbuilt coverage of 9 482m² (18 070m² including allowances) and unbuilt FAR of 6 577m² (15 165m² including allowances). In terms of the increased FAR proposal, there is a further 9 118m² (17 706m² including allowances) available over the currently allowed FAR.
It is the view of the committee that the Trustees should not have agreed the overall increase in FAR proposed by the DRP as an isolated guideline, but a system should be put in place that through a public participation process, all Guidelines be reviewed over a cycle and then approved by the Trustees.
COMMENT: The trustees should not have increased bulk. Nor should they have done it without telling anyone except the insiders. Stated clearly and without favour. The committee includes 2 trustees, I remind you.
The committee strongly recommends to the Trustees that:
(1) The DRP be run exclusively by the appointed professionals whose mandate will be to strictly apply the Design Guidelines as approved by the Members from time to time at a General Meeting and agreed to by the Knysna Municipality.
(2) Trustees should not have any say on DRP rulings unless the DRP refer any issues to them or a Member objects to a DRP ruling.
(3) The DRP is not the body to deal with non-compliance save for instances where the TIHOA asks for a view on particular issues.
(4) The Trustees may, from time to time, ask the Chairperson of the DRP for a report on DRP approvals and submissions not approved, but will otherwise not intervene in this process.
COMMENT: Simply put, keep the trustees away from the DRP. Think about that for a moment. The trustees cannot be trusted.
Observations/Actions
It has been noted that some building works have taken place on Thesen Islands without the appropriate paperwork. The committee was informed by the BCO that consequently the processes have been strengthened to prevent builders working on site where DRP approvals have not been formalized. Members are reminded of the Rules and Regulations relating to building works, particularly over weekends.
COMMENT: How does this happen? We have had a Building Control Officer for years. He should be driving around seeing what is going on. Permits have to be displayed on the fences. The mind boggles.
It has also been noted that TIHOA officials have in the past granted approval for building works that have not been confirmed by the DRP. Here again the TIHOA General Manager (GM) informed the committee that similarly that processes have been improved to ensure that no action can be undertaken without the required formalities in place.
COMMENT: How is this possible? The HOA gives approval to a builder to start building without approved plans? This is so basic that I cannot see what "processes" can be "improved" to avoid this. This is just a failure to do the job you are paid to do.
There can however be no reason or excuse for members not to adhere to the processes put in place, and the GM should immediately send out a circular to this effect.
COMMENT: The fish rots from the head down. If the trustees don't stick to the rules, the HOA staff don't feel they have to stick to the rules and then the owners don't feel they have to stick to the rules.
For noting, the committee has received relatively little input from individual members, notwithstanding the feedback received during the AGM, and would appreciate comment on this final report to tihoa@tihoa.co.za.
21 June 2019
Signed by:
Lester Day ………………………………………
Orrie Fenn ………………………………………
Mike Barber ………………………………………
Chris Mulder ………………………………………
S Botha ………………………………………
H Bosman ………………………………………
M Stemmett ………………………………………
P Burchell ………………………………………
D Ferreira ………………………………………
COMMENT: So now we sit with this mess, created by the trustees.
Increased bulk plans "approved" by the DRP and, in some cases, Knysna Municipality that need to be withdrawn as the increase in bulk is not approved.
Owners with properties who thought they had legal approvals are now over bulk according the only approved Design Guidelines. Very large, illegally approved, houses impinging on neighbour's views, light and privacy.
And, a month after getting this Report, the trustees have no plan on how to sort this out. They need to go.
