FAR/Bulk Committee Report: Bad news for Trustees (and they don't want you to see it).

Snake Eyes: A throw of 2 ones with pair of dice. The worst possible result; a complete lack of success.  

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

but which excludes the many smaller stands that received veranda and carport allowances: There are further properties that are non-compliant for reasons other than coverage. The Building Control Officer (BCO) is reviewing these 32 properties to establish if any have been granted departure applications. The list of 32 properties includes several properties where approval was granted between August and November 2018 in terms of the increased FAR; they have now been put on hold.
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. 

What is in the Trustees meetings minutes that they don't want us to see?

After spending over 6 months trying to see these minutes, I filed an complaint with CSOS,  Community Scheme Ombud Service, the body we all pay dues to every year.  As their website says:

CSOS was established in terms of the Community Schemes Ombud Service Act to regulate the conduct of parties within community schemes. 

The HOA responded with the most legalistic, restrictive and unreasonable conditions under which I, or any member, can access these minutes. This was my response to CSOS:

(Following my response is the response from the HOA which I responded to.)

25 July 2019

Anoesjka Van Den Heever

Case Management Officer-Western Cape Office

Community Schemes Ombud Service

8^th  Floor Constitution House, Adderley Street, Cape Town

Dear Ms van den Heever,

CSOS 0101/WC/18

In reply to the submission from the TIHOA, dated 12 July, 2019.

Extract from the TIHOA Constitution, stamped and therefore approved by the Knysna Municipality on 12 April, 2017.

 The TRUSTEES shall

18.11.1 ensure  that  minutes  are  taken  of  every  meeting  of  TRUSTEES,  although  not  necessarily

verbatim, which minutes shall be reduced to writing without undue delay after the  meeting has closed and shall then be certified correct by the CHAIRMAN of the meeting;

18.11.2 cause such minutes to be kept of all meetings of the TRUSTEES In a minute book of meetings

of TRUSTEES kept for that purpose;

18.11.3 keep all minute books of meetings of TRUSTEES in perpetuity;

18.11.4 on the written  application of any MEMBER, make all  minutes of their proceedings available for inspection by such MEMBER.

If we start on the basis of  good governance and good faith, the sharing of the minutes of the trustee’s meetings with members of the Thesen Islands Homeowners Association, should be a simple, uncontroversial matter.

But when you have a HOA that is accustomed to using member’s money (R355,000 in the last year) on numerous legal opinions that often appear to have the purpose of blurring or complicating issues to avoid accountability to members, it is not surprising to read their response starts with “ TIHOA has taken legal advice on its obligations to provide members with access to information…”   

When a member, without the benefit  of other people’s money to hire lawyers, has tried unsuccessfully for over 6 months to get copies of those minutes and has to resort to filing an application with CSOS, the suspicion is that the TIHOA does NOT want to share the minutes of the trustees meetings with members.

Then when a complaint is lodged with CSOS, the TIHOA, through their lawyers,  resorts to interpreting this sharing in the most legalistic, restrictive and obstructive manner possible. A reasonable person can only come to the conclusion that the TIHOA is not willing to deal with the members in an open manner.

The TIHOA response which you sent me can only be seen as an attempt to  deny all but the most determined members access to even a censored version of the minutes of the trustee’s meetings.

Firstly, for the HOA to cite the Constitution that is still waiting approval from the Knysna Municipality, is an attempt to muddy the water. The Constitution that is relevant to my request is the Constitution that is currently in place and has been approved by the Knysna Municipality. So the discussion of the new Constitution and how it should be interpreted is irrelevant.

Secondly, for the TIHOA to decide that “available for inspection” means that the inspection can only be carried out in an undefined “controlled fashion” at the TIHOA’s offices is completely unacceptable.

I point out that the big majority of the homes on Thesen Islands are owned by members whose primary residence is elsewhere with their Thesen Islands home being used for  holidays. To only allow these absentee owners/members to read the minutes of the trustees meetings at the TIHOA’s offices is an attempt to limit access to the minutes. I also point out that in the past, previous trustees posted the minutes of their meetings on the TIHOA website!

Thirdly, for the TIHOA to decide that the inspection does not include the right to copy or retain copies, but only the right to make notes is a yet another tactic to hide the minutes away from members. Why would they decide that you can make notes but you cannot make copies, if other than to make it as difficult as possible to get and share  information? 

Finally, the invoking of the POPI Act (which is still not law, according to my research))  is another attempt to hide the minutes from members. I quote from the said Act:

Section 11: Personal information may only be processed if — (c) processing complies with an obligation imposed by law on the responsible party; (d) processing protects the legitimate interests of the data subject; (e) processing is necessary for pursuing the legitimate interests of the responsible party or the third party (the other owners in the scheme) to whom the information is supplied.

As the minutes of the TIHOA trustees meetings are the “legitimate interests” of mine as a member of the TIHOA, and as well as of the rest of the members, and which according to the TIHOA Constitution must be shared with members, the trustees cannot hide them from members using the POPI Act.

Yet in taking the next step of hiding information from members, the TIHOA says in their response that it will  black out any  information that in its opinion is “confidential, contains personal information or is subject to legal professional privilege”. By not defining exactly what this means,  the TIHOA are wanting to have a very broad brush to paint over everything they do not wish to share.   My, and other members,  only recourse to read what they chose to black out would  be to lodge a request for information under the PAIA which will, as far as I can ascertain, requires a court action with associated heavy costs.  The TIHOA will then, almost certainly, defend this action using my and other member’s money.

This is how far the TIHOA and their lawyers, paid for by me and the other members, have taken this “right” away from the intention of the Constitution.

I therefore reject the response from the TIHOA who, in interpreting the rights of members in an unreasonable and restrictive manner, are violating our rights to have open access to the minutes of trustees meetings.  

I ask for arbitration.

Yours sincerely,

Kenneth Rutherford

Here is what I was responding to:

Access to information

TIHOA has taken legal advice on its obligation to provide members with access to information generally and more specifically in relation to other members or their property.

The following is noted in  this  regard:

In terms of clause 18.11 of TIHOA’s constitution:

“On the written application of any MEMBER the TRUSTEES shall make all minutes of the proceedings and/or meetings of the TIHOA available for inspection by such MEMBER.”

Members have additional rights to access information contemplated at clauses 27.3 and 29.2 of TIHOA’s current constitution.

Under the new Constitution which was adopted by members in January 2019 subject to the approval of the Knysna municipality which is still awaited, clause 27.3 of the current Constitution was amended to provide that access to the minutes shall be subject to “all necessary steps being taken by the trustees to ensure the due and appropriate protection of privacy of persons and confidentiality of subject matter in any such inspection process”.

Pending approval of the amended constitution by the municipality, the TIHOA have been advised to give effect to all requests to access information pursuant to the Constitution subject to all necessary steps being taken by the Trustees to ensure the due and appropriate protection of privacy of persons and confidentiality of subject matter in the inspection process. This is consistent with our law.

This right is not an unfettered right and one which extends to inspection only.  This is not a right to copy and/or retain copies of the records. It is a right to simply inspect. Notes may be made of what is inspected and the inspection will be carried out in a controlled fashion at TIHOA’s offices.

Our law recognises the right to privacy of information of all persons, including natural persons, unincorporated associations of persons (like TIHOA) and juristic persons.

In light of this, where the minutes contain information that is confidential, contains personal information of a person (including a juristic person) or is subject to legal professional privilege this information will be redacted from the minutes.

If access to the redacted information or any further information is required, then the Member/s concerned will be required to lodge a request for access to that information with the TIHOA in accordance with the Promotion of Access to Information Act, 2000. A copy of TIHOA’s PAIA manual will be circulated to Members shortly.

These measures have been put in place to ensure that access to information is handled correctly and that the relevant person’s right to privacy is protected.

Paul Burchell

General Manager

Gatvol! The trustees are very, very angry with some owners and a blog

“It’s a conspiracy”, the Board of Trustees shout in their angry message to owners, sent out on 21 June, 2019.

Sounding both intimidating and resentful, maybe even in the same sentence, and using  language such as (all HOA quotes are in italics):

“…a number of recent blogs, and other social media posts, seem to provide a totally incorrect perspective of Thesen Islands.”

“ .. appears there is a distortion of the truth, often to support arguments that are 

disconnected with the facts and/or motivated by agendas.” 

“… small, highly vocal pressure groups.”

“…politically motivated harmful publication..”

“…an unforgivable distortion of the facts.”

they launch an enraged attack on owners who publicly oppose their decision to increase bulk so turning Thesen Islands into a never-ending building site. A decision they kept secret for five months. Only informing owners once the cat was out of the bag, thanks to an owner.  

(As the clown show continues, the blog has gained readers beyond Thesen Islands. So I have added the full message at the end. Unlike the trustees, I am happy to give both viewpoints.  Asbestos jacket suggested. Avoid if allergic to unsubstantiated allegations. Not for sensitive readers. Parental discretion advised.) 

Let me start at the beginning when the trustees told the owners of the increase in bulk:

The real aim was to provide the stimulation for improvements and possibilities, which we think is now achievable. 

- Chairman’s Report – 6 December 2018

Thesen Islands is a mature residential community, home to families, who have chosen and are fortunate to be able to afford to live in a safe, peaceful environment. Where do the trustees get the idea that their mandate is to “stimulate. . .improvements” with the resultant spoiling of the lifestyle we enjoy? 

The huge majority of owners did most certainly NOT give them that mandate.  Unless you have some financial interest in more construction and that is more important to you than the lifestyle we all currently enjoy.  Or who knows what reason... 

Let me be clear here: 

Half a dozen or so owners (the trustees) decide to gut the Design Guidelines and increase the bulk which according to an owner will add "some 15 500 m2 or the equivalent of two rugby fields" to Thesen Islands over a never-ending time period.  Read it here. 

This is the equivalent of shoehorning over 60 houses onto Thesen Islands, using an average house size of 250 sq. m.  

The rest of us owners, around 500, just have to accept this decision. No consultation, no opposing views tolerated.    

80% to 90% of the owners at the AGM in January this year voted against increasing the bulk. They are dismissed in a one liner in the AGM minutes and the HOA still forms a committee to investigate its implementation.
Read more here  

Still maintaining that it is their decision to make, the trustees said in their December 31, 2018 email: “whilst the trustees stand by their decision" to increase the bulk they are forming a "sub committee" to make "inputs" that the Board of Trustees "will consider, and if appropriate act upon."

(As I review this post before posting, the thought comes to mind that the trustees can stop this right now. Just accept that the majority owners do not want the bulk increase. Then turn their attention to cleaning up the mess. Everyone is tired of this.)  

Then...

Like all their communications on the bulk issue, this June 21 message is short on facts and long on bluster.  No “agendas” are explained, no “small, highly vocal pressure groups” are named, neither is the “politically motivated harmful publication” identified.  Owners must just take their word on this. It is a wide conspiracy. By dark forces that only they know about.  

They threaten to sue owners, probably using owners’ money,  who they say are taking to social media to make:

“…vitriolic personal attacks on some Trustees.”

And where

“…negative vitriol rules on social media.”

Needless to say, no evidence is provided to back up these claims either. I am not on Facebook although I have seen some of the comments. I haven’t seen anything that I would call “vitriolic personal attacks”. If this blog is so called “the politically motivated harmful publication” they refer to, which I think it is, I never have written anything that could be considered as this. 

As I wrote on my blog in December last year when the trustees themselves  “personalized” opposition to their decisions,  “ Criticizing and commenting on decisions and statements made by the trustees is not an attack on trustees”. Read it here  If you disagree with my viewpoint then argue against it. Don’t make veiled attacks about my motivation insinuating some dark motives.      

But what is even more staggering is that the Board of Trustees accept absolutely no responsibility for the unpleasant state of affairs we are faced with on Thesen Islands. They blame the owners! Or “social media” which is where the owners are found. So you can make the connection. 

The Board of Trustees are the cause of this. 

Firstly by their own actions, 

secondly by failing to respond openly to questions from owners 

and thirdly, failing to respect the vote taking at the AGM.

Let’s look at their actions (Facts, not innuendo) :

The decision to increase the bulk is considered by everyone involved in the conceptualizing,  planning & development of Thesen Islands to not be “minor.” The “everyone” includes the original creators and driving force of the Thesen Islands development, including the master planner, the authors of Design Guidelines, shareholders as well as legal advisors to the TIDC. Read the list here.  

Only the trustees and, they claim, the HOA attorneys think otherwise:  “Our attorneys have also concluded that the minor expansion of rights, within the parameters of the Knysna Municipality Zoning Scheme, for which Municipal approval is a mere formality, is indeed a minor change to the Design Guidelines, within the meaning of clause 9.1 of the Constitution” 

But, despite repeated requests, they have never produced this legal opinion. Not surprisingly, this had led to rumour that no such opinion exists.   Oh, and it turns out it is not the “mere formality” the trustees claimed it is and neither, I am told, does Thesen Islands fall "within the parameters of the Knysna Municipality Zoning Scheme", instead having its own special zoning.       

The decision was taken around the middle of last year but the owners, aside from a few insiders, were only informed in December. The first argument for the increase in bulk was “stimulation for improvements” didn’t fly so the story was changed to, basically, that 'everything is screwed up, there are many houses over bulk, it is very complicated, too complicated for you simpletons to understand, but we are sorting it out by increasing bulk'. Read more here.

The Design Review Panel approved plans with the increased bulk without having the approval of the Knysna Municipality.  While, according to an owner who had plans approved in the same time period, not informing him of the increased bulk allowance. So connected insiders knew, no one else.  

80%-90% of the owners at the AGM  voted against increasing the bulk. The plan to increase bulk should have been canned there and then. 

This vote had to be forced by members.  As a member writes: “ … the 'expansion' of Thesens was rejected by a forced vote by the homeowners (as the HOA had removed the topic from the agenda pending the commission – sl*my ).  *used so as not to offend the sensitive. Commission = committee.  

But as you just read, it failed to shut off debate completely.   

  

The debate only gets one line in the AGM minutes. Read more here. The HOA still forms a committee to investigate it. And the trustees are still maintaining that it is their decision to make.  

Then when a complaint is lodged with CSOS (Community Schemes Ombud Service) about the increase of the bulk without member's permission, the HOA (our HOA) says in their signed statement, on behalf of the Board, that “The proposal to increase bulk has clearly been abandoned by the Respondent (HOA) and is not being pursued. ” 

But they also say that the “implementation of the new FAR rules will be held over until the Board has considered…inputs received from the subcommittee” . 

So  “clearly been abandoned” does not actually mean “clearly been abandoned”.  And “not being pursued” does not mean “not being pursued”.   I am not making this stuff up. Let’s see what CSOS makes of this talking out of both sides of the mouth by our HOA.  This information has not been shared with the members. Email me if you want a copy of the statement in pdf as there is no way I find to upload it to the blog.        

And after all this, the trustees are angry with members taking to social media to voice their unhappiness and opinions? 

These are some of the questions that they have never answered, nor produced the documents, despite being repeatedly asked by owners:

• The answers to the questions Craig Smith asked about the approval of trustee’s plans in relation to bulk increase. Read it here. 

• The minutes of the trustee’s meeting approving the increase in bulk. Owners have a constitutional right to see these.   

• The minutes of the trustee’s meeting approving the implementation of the increased bulk Guidelines, with subsequent approval of house plans, without the approval of the Knysna Municipality. Owners have a constitutional right to see these.  UPDATE: The issue of the trustees refusing to provide the minutes of their meetings is now the subject of another complaint filed with CSOS. Watch this space. 

• The names of the owners, house numbers and architects who had plans approved with the increased bulk. Some, of course, may have been innocently caught up in this. Others...?

• The legal opinion, paid for by the owners, that the change to the Design Guidelines was “minor” in terms of the Constitution with the name of the attorneys and the date it was provided.

• Given that the trustees have increasingly resorted to lawyers with, for example,  apparently all emails from a certain owner sent straight to the attorneys for answering,  I have twice asked “How much has the HOA has spent on attorneys and associated costs in the previous 12 months?” 

As I wrote in my original request “The feeling of a stonewalling, "HOA vs the owners" mentality, always exacerbated when attorneys are involved, is deeply troubling. The knowledge that it is the owners who are funding this HOA approach is problematic.  The money, needless to say, has to come from not spending owner's money in other areas of Thesen Islands. Or a levy increase? “   Also given the trustee's desire for local economic "stimulation" why are they stimulating Gauteng lawyers when they could hire one of the numerous local attorneys, probably at a lower rate?

The first response was “The issues you question should be raised at the next AGM”. This will probably be  in January 2020. 6 months away. As an owner, I have a constitutional right to this information.   

In the email, IMPORTANT NOTICE TO MEMBERS - TRUSTEES' EXPLANATION OF THE DECISION TO OFFER INCREASED FAR (BULK) TO REGULARISE THE ESTATE dated December 21, 2019, the trustees claimed:

It needs noting that ALL past and present changes have been agreed to and accepted by the Trustees and the Knysna Municipality:  the application is merely a formality. 

• This approval/acceptance document from the Knysna Municipality of the increase in bulk. 

But they write:

"It would be useful if the TIHOA office could be contacted for the facts" This “Ask the HOA” has been repeated in many communications from the HOA. It sounds good. The problem is that the questions are never answered. The trustees fail to understand that by not answering questions, owners are forced to draw their own conclusions. 

Let  me ask, for the 3rd time, if the house under construction on Jubilee Island is over bulk with regard to the current Design Guidelines?  And if so, the dates the plans were approved, by the DRP and the Knysna Municipality, the name of the architect and the date the HOA building permit was issued.  A number of concerned owners have written to the HOA asking this same question without success.

In the Chairman’s Communique June 2019 regarding the “Bulk/FAR investigation”:

“It is thus imperative to obtain a legal directive…. to ensure that whatever conclusion is reached… …and not infringing on any members rights.”

I would say that the sudden “double story-ing” of your neighbour’s house, crowding out light and view is “infringing on” your “rights”. Wouldn’t you?  

Yet the Chairman is still talking theoretically  about “not infringing on any members rights”?   The Trustees need to take a walk down to Jubilee Island and see for themselves what they have allowed.  

I live across the water from Jubilee Island. The noise from jackhammers is almost daily and it has been for months. You see, before you add bulk, you need to break down. 

And as to the “..appeal to members to be responsible with what they publish and to be wary of believing everything that is published. Reckless public statements can and will damage the asset value of all of our homes."

Huh? No, what will decrease the value of our homes will be the gradually increasing impact on the feel of Thesen Islands with ever bigger house reducing the green garden space, shutting out light and views and reducing privacy.  This will result in Thesen Islands becoming increasingly unappealing to buyers and fewer buyers mean lower prices. 

The Trustees claim that a ”politically motivated harmful publication” makes the allegation that once the 4 years building opportunity had expired, no further external alterations could be made to any home on Thesen Islands. “This is patently false information.” 

I agree. Share the source and shame the author. The Thesen Islander News blog never said that, by the way. I know what the 4 year building time limit is. I explained it to hundreds of buyers and potential buyers from late 1998 to the middle of 2007.  Any guess as to what “politically motivated” means here? Has anyone found any other blog writing about "bulk"?  

   

This post is long enough so I am not responding in detail to the new claim that many houses are now under bulk. This follows the initial claim that many houses were over bulk. Well they have made the claim, substantiate it. They have the staff; they  have the committee. Share this information. The over bulk story is not a justification for increasing the bulk as if there is any, it is not a significant amount of square metres on any one house. Likewise there will not be a building boom with all the under bulk house enlarging. The square meters available will not be sufficient. But prove me wrong about with the actual square meters.  The facts, as you promise to provide.

  

Finally and most importantly to all of us…

The Trustees write: “… no child has ever been injured while a cat and possibly a dog that was off its leash was killed by members or guests' vehicles. That is why various speed limits between 15km/h to 30km/h, (depending on your location on the estate) are diligently enforced and anyone caught exceeding them is warned and subsequently  fined (repeat offenders) or in the case of contractors, refused entry when fines issued are not paid."

This must the trustee’s response to my submission to the Committee and posted on my blog CRITICAL: Say NO to Big Trucks. Speak up NOW!  where I said that the plan to increase bulk will mean an increase in big trucks all over the Islands bringing danger to our children. Read it here. 

I do not have young children or any grandchildren but if I was a parent or grandparent of small children, I would be especially outraged by this argument. 

To paraphrase the trustee’s argument, “As no child has ever been injured,  adding bigger and more trucks, is fine.”  If your child came to you and said “No child riding a bicycle has ever been injured or killed on Thesen Islands, so I am leaving my helmet at home”, using the same logic you would say  “I agree with your reasoning. Leave your helmet”.

I am so incredulous about this argument from the trustee's that I have been asking people if my paraphrasing on their argument and my example of their logic is correct.  They have told me it is.  I have never used this word before, but "gobsmacked"  is an accurate description of how I feel. 

On social media. This is what a wrote to a fellow owner:

Social media, by its very nature, is not controllable. Which is why it is hated by authoritarian regimes around the world. It has the power to enlighten people as to what is going on. Let's look at this bulk issue. The trustees took a decision to increase the bulk allowance without even telling the owners about it for about five months. In this time, those on the inside were able to submit plans with the increased bulk. If it was not for uproar on social media, the increased bulk would be in the Guidelines.   

If it was not for social media, we would also be looking at houses in the Parkland area and three cell phone towers on the Islands. Social media has saved Thesen Islands before. I hope it will again.  

Read my post "I never thought...the real threat to the Parkland would be of an invasion led by HOA Trustees" from November 2014 plus more around this time for the Parkland story. Another grand scheme cooked up by the trustees at that time. 

I wish this post was shorter but it was not possible. I have tried to be as concise and to the point. But once again, I am able to endorse the validity of Brandolini's Law. Publicly formulated the first time in January 2013 by Alberto Brandolini, an Italian programmer, the bullshit asymmetry principle (also known as Brandolini's law) states that:

The amount of energy needed to refute bullshit is an order of magnitude bigger than to produce it.

The full message from the trustees:

Dear Members,

RESPONSIBLE DISSEMINATION OF INFORMATION

It is, in the Board of Trustees view, unfortunate that a number of recent blogs, and other social media posts, seem to provide a totally incorrect perspective of Thesen Islands. It would be useful if the TIHOA office could be contacted for the facts, as it appears that there is distortion of the truth, often to support arguments that are disconnected with the facts and/or motivated by agendas. We live in a time of fake news and declining journalistic integrity yet social media is perceived as believable, when it should not always be so.  We appeal to members to be responsible with what they publish and to be wary of believing everything that is published. Reckless public statements can and will damage the asset value of all of our homes.

As an example, it would appear that some of the claims related to FAR made at the AGM, may not be supported by fact. Further investigation continues to establish the accurate legal situation. No conclusion can be sensibly reached without the facts, since discussion without the facts is irrational and can deteriorate into aggression. When we have absolute clarity as to the claims made from a legal standpoint, the process can continue to a logical solution.  However, and until then, allegations should not be made either way, as the facts are not yet known.  This is why the Board has reserved comment on this issue. The appearance that this Homeowners Association is involved in an internecine war between factions within, does nothing to enhance the value of our assets.

There is ongoing comment on the investigation into the allowed property coverage and FAR. As with most issues on Thesen Islands, a seemingly simple investigation turns into a major one. Whilst many of the missing original historic documents relating to the establishment of Thesen Islands have been found, there are still a number of these documents that cannot be located despite ongoing endeavours to do so by various role players.  We continue in our efforts to unearth the relevant provisions and will report further to members as we progress.

PERSONAL ATTACKS ON TRUSTEES TO BE MET WITH LITIGATION

I would also like to raise the concern of vitriolic personal attacks on some Trustees. The Trustees voluntarily put in significant time on your behalf to optimize the future on Thesen Islands for all members, not just some small, highly vocal pressure groups. To suggest that these Trustees, who are ethical successful people, are somehow personally benefiting financially from decisions made, is totally unacceptable.

The Board of Trustees have collectively agreed that unjustified or vitriolic attacks on their integrity will no longer be tolerated and that any such publication or correspondence shall be met with legal action in the appropriate forum. 

Given the unjustified attacks on the persons comprising our Board, it is becoming more and more clear that, while the current Trustees will see this process through, retaining their commitment past this year is unlikely.

There are very few positive comments from the silent majority, so the negative vitriol rules on social media. The TIHOA has decided not to get involved with the ping pong invective, but only to comment where there is an unforgivable distortion of the facts. When highly competent members are approached to become a Trustee, the usual reply is that life is too short to engage in this sort of political action. Discussion with other estates indicates that this is a general problem, and that some estates land up with no Trustee boards or inappropriate appointments as a result. It would be very unfortunate if Thesen Islands landed up in this position.

It is clear from all the communications over the last few years, that some past decisions made prior to 2014, may not always have been the best decisions (for the members) in the appropriate circumstances. Management is now professional and supported by committed TIHOA staff who are progressively finding it more and more difficult to function effectively as a result of the time taken to deal with this ongoing political action.

UNTRUE ALLEGATIONS REGARDING 4 YEAR BUILDING LIMIT

As an example of a recent politically motivated harmful publication, is the untrue allegation that once the 4 years building opportunity had expired, no further external alterations could be made to any home on Thesen Islands. This is patently false information. When Thesen Islands was established, there was a four year building clause in the deed of transfer to ensure that major construction activity had a reasonable time window for completion. This, apart from one stand where the clause was deleted and not picked up at the time, fell away as soon as the primary structure was complete. Effectively, it no longer has any relevance.

There are still many properties which have not been built to the maximum allowed by the current Design Guidelines (pre the FAR issue). Once a house has been sold, very often the new owner wants to change external and/or internal aspects resulting in many applications to the DRP for plan approvals. As a result, with no change to the Design Guidelines, there is continual modification of existing properties with the attendant construction traffic. (384 plans, encompassing building alterations, installation of water tanks etc, have been approved by the DRP in the last 24 months.)

In addition, there are about 500 contracting companies employing approximately 5000 registered contract workers, who carry out maintenance from painting, plumbing, etc to interior decorators. Notwithstanding all this traffic, no child has ever been injured while a cat and possibly a dog that was off its leash was killed by members or guests' vehicles. That is why various speed limits between 15km/h to 30km/h, (depending on your location on the estate) are diligently enforced and anyone caught exceeding them is warned and subsequently  fined (repeat offenders) or in the case of contractors, refused entry when fines issued are not paid.

Furthermore, during the annual contractors holiday during December/January of each year no building activities and or contractors are allowed on the estate except for emergency repair work, swimming pool and garden maintenance services.  No unauthorised work is allowed over weekends for the same reason, as well as potential noise.

WAY FORWARD

Until then, we appeal to members to be responsible about what they publish, and to show some courtesy to the volunteers that man our Board of Trustees as well as the staff who together do the serious work required to properly look after our assets and the homes of our members.

P Burchell

General Manager

For and on behalf of The Board of Trustees