HEADS OF ARGUMENT APPEAL 22 PLEIN STREET PAARL

In the matter between

The Drakenstein Heritage Foundation                                               APPLICANT

And

Heritage Western Cape                                                       FIRST RESPONDENT

Sarah Lewis                                                                   SECOND RESPONDENT

 

APPELLANTS’ HEADS OF ARGUMENT

  1. The building at 22 Plein Street is situated in the municipality of Paarl.

 

  1. In accordance with its legal responsibilities under the Heritage Act, the Drakenstein Municipality appointed a heritage team by means of public tender to complete a heritage survey of the municipal area of Paarl.

This area contains a high concentration of heritage resources which need to be recorded in terms of criteria and management systems prescribed in the Act 25 of 1999.

 

  1. The survey was to assist in identifying and mapping Heritage areas that need to be protected.

 

  1. Faced with the vast amount of work that such a task would entail, the brief was refined as set out in A 4.1 of the report which led to an alteration of the emphasis – rather than on individual buildings, the emphasis shifted to the broader landscape and townscape where zones/areas of heritage value needed to be protected. This was then subject to further detailed analysis with the objective of recommending further conservation areas.

 

  1. The survey team were to photograph and suggest grading 3A, 3B, and 3C status. (A 4.1 bullets).

 

  1. The methodology of the report is set out in paragraph A 5 which highlights the role played in previous surveys and general historical development and chronological report.

 

  1. At the appeals committee meetings a member of the survey team, Mr N. Baumannn, conceded that only a small percentage of the buildings were

investigated internally and that this particular building (22 Plein Street) was not inspected. Mr Baumann was a member of the Appeals committee.

 

  1. In the Heritage Western Cape (HWC) guidelines to grading issued in the handbook of October 2013 on page 341,the guidelines are defined as follows: …p  2

 

2.

 

The Grade 3Aand 3B sites are “Heritage resources which have sufficient significance and intrinsic merit” and details 3A buildings as amongst others

 

  • Historical/unusual spatial landmark within a place;
  • High architectural quality well-constructed and of fine materials;
  • Historical fabric mostly intact (or layered or past damage is reversible);
  • Fabric clearly illustrates an historical period in the evolution of a place;
  • Contributes significantly to the environmental quality of a Grade 1 or Grade 2 heritage resource, conservation area or heritage area.

 

  1. The Appellants’ argument is that on this site all the categories listed above are present and the grading should be at least 3A.

 

  1. Further to the above, the building is one of very few similar recorded in the Cape that must have been the work of a significant professional at the time. This style and the material used, as well as the related buildings, illustrate the rapid adoption of what were then revolutionary materials. As such this building can be said to have a highly significant association with both people and architectural development.

 

  1. The area in which this building stands was graded as a Grade 2 heritage area.

 

  1. The survey at 6.7 provides a mechanism for the constant updating and identification of newly identified resources.

 

 

  1. Under general limitations the survey team states: “while the survey information is considered adequate for motivating suggested Grade 3 structures, it may not necessarily be comprehensive with all the more detailed aspects of significance”. It is important to recognise that a heritage database is an open-ended product and will thus need to be continually updated and expanded as new information becomes available.

 

  1. Application to HWC for a permit is covered by regulations published in the Provincial gazette of 29 August 2003. The application procedure and requirements (page 2(1)) are:

2.1 An application for a permit must be made to HWC on the

official application form and must include all the information

required.

  1. The application for a permit form is attached to these regulations on annexure A.

…..p 3

3.

The application submitted for 22 Plein Street did not comply with the minimum standards required. It was either not completed or incorrectly completed – specifically 5:1(2) and (6) and (9), also 6 and 8.

 

  1. When the plans were submitted for comment, the Drakenstein Heritage Foundation (DHF) sent delegated members to inspect the property as it was considered to be highly significant and had previously been recognised by SAHRA as of significance. It was considered an important contributor to the Grade 2 status of the area.

 

  1. As a result of the inspection, the DHF decided that this was a heritage site of special significance that could possibly be a Provincial Heritage site or a 3A. The DHF called upon the HWC to send a team to inspect and assess the building before the application was considered.

 

  1. The decision (W 12:2) of the Built Environment and Landscape committee at the meeting of 25 June 2014 included a discussion that noted:

 

  • that the building was graded a 3C;
  • that the DHF had made input into the survey;
  • no attempt to address or consider DHF’s comments and assessment was made, nor was our request for a site visit considered despite a record of numerous site visits during the same period to other buildings in Paarl by the various committees.

 

  1. The Appellants (DHF) are registered with HWC and have been actively involved in heritage since 1980 and have all the necessary legal power to appeal and comment on HWC applications and decisions.

 

  • Section 5 of the NHRA in sub section 7 deals with identification,  assessment and management of heritage resources and at {5(7(f)} requires that these resources must be fully researched, documented and recorded. The survey specifically left the responsibility for this detailed study to future research which would then be included in any future applications. In this instance the application form to HWC did not contain any information, history or assessment as is required.
  • The DHF noted in their comments that, in their opinion and measured against HWC guidelines, the building at 22 Plein Street should have been graded 2 or 3A. Despie this, the BELcom relied solely on the survey and overlooked the lack of research, reports and documents required in the application process.
  • At section 5(b) “take account of the material or cultural heritage value and involve THE LEAST POSSIBLE ALTERATION OR LOSS OF IT..” By relying on the grading only, the BELcom did not fulfil this obligation.

…p 4

4.

  • 7e “Safeguard the options of the present and future generations”. The BELcom decision will entail considerable damage to what is retained.
  • Section 5 (4) of NHRA “heritage resources…must be managed that acknowledges the right of affected communities to be consulted AND TO PARTICIPATE IN THEIR MANAGEMENT”. BELcom disregarded this right of the DHF to participate in the management as it would not allow the DHF to motivate their grading on site or at all.

 

  1. Management is defined in the NHRA (xxiii) as including the conservation, which in itself is defined as (iii) includes protection, maintenance, preservation and sustainable use, presentation and improvement (which in turn is defined as “repair, restoration and rehabilitation”).

 

  1. HWC has delegated authority to manage heritage resources of the Western Cape by Provincial notice gazetted 5937 taking into account that heritage resources in the Western Cape should be “conserved, promoted and managed in a sustainable manner for the present and future generations”.

 

  1. In terms of the Provincial regulations HWC may only accept the contents of the existing survey by means of a notice in the Provincial Gazette. The Paarl survey has not been gazetted.

 

  1. A notice in the Provincial Gazette would first entail advertisement for public comment. The DHF would have duly objected to the survey if it was meant to apply to refer to individual sites not fully investigated as stated in the survey.

 

  1. The DHF was a party to the municipal survey which survey did not attempt to satisfy the requirements of section 7 of the Provincial notice but only to satisfy the requirement to identify significant AREAS. In this case, due to the area grading 2, HWC should have been extra vigilant.

 

  1. HWC did not have the authority to accept an application that did not meet their own minimum standards and to make a decision without a site inspection and without considering the local conservation body’s comments.

 

  1. In terms of regulation 6 (9) the Applicants in this case failed to provide all the information required by the Act which is, technically, an offense.

 

  1. The Appeals committees’ notes on the discussions confirm that all the required information was not provided by the Applicants and thus was not considered by the Appeals committee. Specifically the overall grading and the full extent of the work to the original footprint was not disclosed.
  2. The following bullets are specifically contested:

 

  1. The survey’s objective was not the individual identification of buildings but the identification of areas for protection. The 3C grading was only provisional. ….p 5

5.

2 and10. The provision of expert reports is the responsibility of the Applicants and forms part of the application. The conservation body’s responsibility is to comment on these reports NOT to provide the expert evidence.

 

3 and 5. The committee ignored the Grade 2 rating of the area in reaching this conclusion. In fact, they completely omit this fact in all their discussions.

6, 8 and 15. The documentation and presentation is factually flawed. The proposal includes the complete demolition of the North West outside wall, the introduction of new joinery in the form of French doors and the integration of later additions as if they were original.

 

7 (a) A grade 2 area is not only relevant on the streetscape but  is based on the integrity of the components. This application would damage this.

 

7(b)&9. The responsibility to clarify the effect of the alterations lies with the Applicant and should have been included in his special report.

 

  1. The role of the conservation bodies is to comment and participate in the management of heritage, not to provide specialist reports which are required in the application process.

 

  1. The DHF expressed a considered opinion on the merits of the building in terms of the provisional listing and the requirement for additional information. The DHF is fully aware that it had supported the listing and relied on the Grade 2 overall grading basis to be applied to the area to ensure special caution when considering applications. As neither the DHF nor HWC were provided with any specialist report or assessment, the DHF, on the basis of an inspection by two very experienced heritage people, made HWC aware of the integrity and position of the building which would grade the building as either 2 or 3A if the criteria for grading published by HWC were to be applied. In essence the DHF fulfilled their responsibilities in terms of the Act and regulations; HWC failed to do so.

 

  1. This is irrelevant. ACTEM is not registered and Paarl 300 is not a public body. We are not here to contest their motivation.

 

  1. The proposals, insofar as they affect the internal alterations with minor adjustments were in our opinion manageable, but not the demolition of the North external wall. This was never mentioned in any of the discussions nor was the addition of a French door. This would impact on a 3A grading which is why an inspection by HWC to confirm the opinion of the DHF was of the utmost importance.

 

  1. See (14) – the extent of the alterations to the exterior was not disclosed by the applicants and HWC did not take account of these. …..p 6

 

6.

  1. See the objectives and results of the survey. This proves that HWC was not able to rely on the basis upon which they made their decision

 

  1. The DHF prayed for an informed decision to confirm the grading before a decision was made by HWC .This was denied and there can be no reason to deny this.

 

The Appellants pray that the tribunal find:

 

1) That HWC erred in accepting an application that was incomplete and did not contain the necessary reports especially after the request from the DHF for an on-site assessment.

2) That HWC erred in accepting the grading as applicable to the buildings when the survey specifically  qualified its role as an assessment of individual gradings.

3) That HWC erred in ignoring the Grade 2 applicable to the area which included the house at 22 Plein Street.

4) That, faced with a Grade 2 area, HWC,  in fulfilling their responsibilities under section 4, 5 and 6 of the NHRA, were  required to ensure that the heritage value was correctly assessed and the resource adequately managed.

5) That in terms of section 5(4) the role of the conservation body both to comment and to participate in the management, was ignored by HWC. This despite the fact that they were the only persons with an independent knowledge of the significance of the site.

6) That  in view of the Grade 2 surroundings  as well as the criteria for individual grading, HWC  had a responsibility to inspect the property before making any decision especially as the grading informed  the decision of HWC  as recorded in the minutes of both meetings.

7)  As a result of the shortcomings in the procedure and lack of adequate information, HWC was not in a position to independently adjudge the application.

8) That HWC was not within their rights to expect the conservation bodies to provide a professional opinion when the Applicants failed to provide the required information.

9) That in view of the above, the DHF’s insistence that HWC assess the site due to its  “special significance” was reasonable and that in refusing to do so HWC acted irresponsibly.

10) That the appeal be upheld, the permit stopped and  the owners be required to complete the application form in terms of the regulations including a specialist report and that the matter be returned to the B.E.L.com for reconsideration after the assessment procedure has been completed.

 

L.E.RAYMOND            For the Drakenstein Heritage Foundation

 

 

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