18 May 2016
In a matter related to a rezoning and subdivision application, a landmark ruling was given by the High Court of South Africa to the effect that the City of Cape Town acted “irrationally” by approving a rezoning application for Glendirk Farm in Constantia. The City approved the rezoning application in terms of the transitional arrangements of the new Cape Town Zoning Scheme.
The Constantia Property Owners’ Association launched the application after the City’s approval of the proposal andtook the matter to court for review.
The High Court upheld the Association’s objections. The Association’s submissions were that the public participation process was not only flawed and procedurally unfair but that the decision was in conflict with the City’s own policies including the Cape Town Spatial Development Framework, the Southern District Plan and the Constantia–Tokai Valley Local Area Growth Management and Development Plan.
The Court also noted that the City’s own planning department opposed the application on a number of grounds citing among others the negative impacts on the integrity, character and visual setting of a significant historical cultural landscape. What remains perplexing to many is that the City had even ignored its own Heritage Resources Management section that did not support the application on the grounds that the proposal will negatively impact SAHRA grading of the site as a Grade 1 site, reduce the landscape’s cultural significance and erode a cultural landscape that is increasingly becoming rare in the province.
The applicant’s attorney & Heritage Practitioner, Yvonne Leibman summarises the ruling as follows:
“The Order granted yesterday is important for the conservation of significant heritage resources, particularly those that are located in a historical cultural landscape. This outcome shows that approvals by a decision maker (in this case the Council of the City of Cape Town) will be successfully reviewed and set aside by our Courts if the decisions are irrational, unreasonable and unlawful. In this case the Constantia Property Owners’ Association launched a review application in the High Court to have the City’s decision to approve rezoning of portions of Glen Dirk farm, one of the historic farms in the Constantia Valley, to Subdivision Area and for the farm to be subdivided for residential development on a number of portions of the farm. Notwithstanding that the owner of the farm resorted to a tactic of instituting a counter-application against the committee members of the Constantia Property Owners’ Association, which eventually had to be withdrawn, the final outcome yesterday was that the irrational decision by the City of Cape Town was set aside by Judge Anton Veldhuizen in the High Court in Cape Town”.
Chairperson of the Heritage Association of South Africa, Len Raymond welcomed the ruling and cautioned municipalities and other arms of government against trying to ignore manifestly negative impacts on heritage places and communities.