THE CONSTANTIA PROPERTY OWNERS’ ASSOCIATION Appellant

In the appeal of

THE CONSTANTIA PROPERTY OWNERS’ ASSOCIATION Appellant

in terms of Section 49 of the National Heritage Resources Act (Act 25 of 1999)

against the decision on 30 September 2015 to grant a Permit in

Case Number 1504070KR0408 for partial demolition and alterations to the

historic reservoir on Glen Dirk Farm, Erf 10373 Constantia

by

HERITAGE WESTERN CAPE First Respondent

and opposed by

GLEN DIRK ESTATE (PTY) LTD Second Respondent

APPELLANT’S ARGUMENT ON 8 DECEMBER 2015

  1. This appeal is against a permit granted by Heritage Western Cape on the 14th October 2015 pursuant to a decision taken by Heritage Western Cape’s BELCOM on 30 September 2015 approving the permit for alterations and additions to the historic reservoir at Glen Dirk farm. Appellant’s grounds of appeal are already before the appeal committee. I make the following further arguments on behalf of appellant, as its attorney of record in a High Court review application that is ongoing at present and as an EXCO member of the appellant.

  1. Heritage Western Cape is the fourth respondent in appellant’s High Court application whereby the appellant is seeking an order reviewing and setting aside the decisions taken by the City of Cape Town on the 24th April 2014 whereby it approved the rezoning of Glen Dirk farm from Rural to Subdivisional Area and the subdivision of Glen Dirk farm in accordance with three plans of subdivision. This review application is not yet finalised and indeed the appellant is awaiting the City of Cape Town’s Answering Affidavit.

  1. One of these subdivisional diagrams that form the subject matter of appellant’s High Court review application involves a portion referred to and numbered portion 8. The subdivision of portion 8, as is the case with all the other portions, is to allow for the building of a residential dwelling thereon. The outcome of appellant’s High Court application will determine whether or not a residential dwelling will be built on the subdivided portions, including Portion 8.

  1. The appellant has repeatedly indicated to HWC and to Second Respondent and to Second Respondent’s heritage consultant Graham Jacobs and its architect Rod Gurzynski and to its attorneys of record in the High Court review application that the permit application should not be proceeded with as the rezoning and subdivision of Glen Dirk farm is sub judice and that the appellant is not in a position to comment on the permit application because its High Court review application is not yet finalised. The High Court process could be affected by a comment by the appellant at this stage on the merits or otherwise of the permit application in respect of the reservoir or by pressure generated by a comment. This is particularly so as the owner of Glen Dirk Farm, the Second Respondent in the High Court review proceedings, only filed its answering affidavit on the 10th November 2015 and the City of Cape Town has not yet filed its Answering Affidavit. Any comment that the appellant may have made to Heritage Western Cape in regard to the application or the merits thereof for partial demolition and alterations to the historic reservoir could prejudice the appellant in the High Court review proceedings.

  1. Despite the fact that HWC has indicated that it will abide the decision of the High Court in appellant’s application to review and set aside the decisions by the City of Cape Town, including the decision to allow Portion 8 to be subdivided for residential development, HWC nevertheless saw fit to grant a permit directly associated with a proposed residential development on Portion 8. This decision is directly contrary to a Record of Decision of HWC’s BELCOM issued on the 10th February 2009 addressed to Graham Jacobs in regard to the proposed development of Glen Dirk Farm. The decision reads as follows:

DECISION

The Committee resolved to comment to SAHRA that:

  • In general, it endorsed the recommendations in the HIA;
  • The subdivision of portions 5,7 and 8 were problematic and could not be supported;
  • It was sympathetic to the need to divide the farm into smaller family units, but concerned that the long-term future integrity of the farm as a unit and of the landscape be assured; it therefore recommended that alternative means of tenure or legal mechanisms to subdivision should be sought which would ensure that each of the sites remain an integral part of the farm.”

This decision forms part of the record in the High Court review application. It is noteworthy that in 2009 HWC’s BELCOM did not support the subdivision of portions 5,7 and 8 for residential development in the rezoning and subdivision application that is the subject of the appellant’s High Court review proceedings, yet on the 30th September 2015 HWC’s BELCOM approves a permit application motivated by the proposed building of a residential dwelling on that same portion 8. It is evident that BELCOM’s decision on the 30th September 2015 was irrational to say the least. I will say more on this later.

  1. The sub judice rule applies in this instance and the Second Respondent’s conclusion that the appellant does not have any substantive grounds to challenge the decision reflects its lack of understanding of the implications of the sub judice rule. The appellant’s grounds of appeal and my submissions show that there is no basis whatsoever for the allegation by Second Respondent that this appeal is about frustrating ‘the process for Glendirk’.

  1. As one of the respondent’s in the High Court application, HWC, having not given notice to oppose the review application and instead having confirmed that it will abide the decision of the Court, is therefore obliged not to assist the Second Respondent in its obvious attempt to circumvent the High Court review proceedings by its submission of an application for a further dwelling on Glen Dirk farm before the review application has been heard. The permit application is not straightforward at all. It is not in any way intended to stand alone as an application for alterations and additions to the historic reservoir only. It is directly linked to an application to the City of Cape Town for a further dwelling to be built on that portion of Glen Dirk farm which is Portion 8 that forms part of the High Court review application. The Second Respondent, its architect, its heritage consultant and its attorney of record all knew this and knew that on the 30th September 2015 the appellant could not be represented at BELCOM by its attorney of record yet shamelessly insisted that the permit application be placed on the BELCOM agenda. HWC shamelessly denied the appellant’s reasonable requests that the permit application not be considered by BELCOM on the 30th September 2015 and that the application be considered after the appellant’s attorney of record is back in South Africa which was on the 6th October 2015. I sent an urgent email to the case officer on the morning of the 30th September 2015 again giving valid reasons why the matter should not be considered by BELCOM on that day. These reasonable requests were considered unreasonable by HWC and it allowed the application to proceed and allowed a decision to be taken.

  1. This approach by HWC appears not to have been careless or accidental, it would appear that it was intentional. What HWC knew but did not say was that the application could not be considered before SAHRA’s comment was obtained. I heard in astonishment that the decision was taken at BELCOM on the 30th September 2015 and that SAHRA was asked the next day whether it would like to comment. It is obvious that HWC, the Second Respondent and its consultants and its attorney of record all knew that appellant’s attorney of record in the High Court application could not be present on the 30th September 2015 and that the permit application was directly linked to a dwelling proposed to be built on one of the portions that form the subject matter of the review application. Yet without exception, everyone saw fit to insist that the application be placed on the BELCOM agenda of the 30th September 2015. These actions on the part of Second Respondent and its consultants are not surprising. What I did not know was that HWC could act in such a callous manner knowing well that it would be hypocritical to allow BELCOM to consider the application and reach a decision and only thereafter ask SAHRA whether it would like to comment. What is incontrovertible is that SAHRA’s comment was not taken into account because it was precluded from commenting. The reason for such a callous disregard by Second Respondent and its heritage consultant to obtain SAHRA’s comment prior to the BELCOM meeting in all probability has to do with the fact that SAHRA is in the process of provisionally protecting Glen Dirk farm as a Grade I national heritage site. Why HWC would come to the assistance of Second Respondent in these circumstances and without taking cognisance of the broader context within which the permit application was submitted requires an explanation and indeed further investigation. I submit that in the very same way that Second Respondent submits that SAHRA has already commented on the proposed subdivision of Glen Dirk farm for residential development and that this includes “all other developments also associated with the residential development”, the Second Respondent would say to the City of Cape Town that by approving the permit application for alterations and additions to the historic reservoir, this permit includes all other developments also associated with residential development on portion 8.

  1. The permit application is part of a process whereby Second Respondent is attempting to circumvent the High Court review application. As I have said, the proposed dwelling is to be erected on a portion of Glen Dirk Farm known and depicted as portion 8. The Second Respondent contends that its permit application to HWC has nothing to do with the appellant’s High Court review application. This contention, to put it plainly, is rubbish. The permit application before HWC’s BELCOM was supported by a Motivation wherein it was stated that:

2.1 “The part of Glen Dirk Estate where the cistern is located is one of the portions that was recommended for subdivision along with 6 other portions described in the Heritage Impact Assessment report. The recommendation was approved by SAHRA without conditions”.

2.2 “The proposal for the re-use of the water cistern takes as a given that portion 8 with its cistern was approved as suitable for redevelopment by SAHRA, to build a single residence, whether or not the subdivision or rezoning goes ahead (depending on the result of the appeal hearing”.

  1. It is therefore common cause that any development on portion 8 is on one of the portions that form the subject-matter of the appellant’s High Court review application. Second Respondent contends that SAHRA approved the development application in 2009 as part of the Environmental Impact Assessment process. This 2009 process forms an integral part of the subject matter of the appellant’s High Court review application. Yet Second Respondent obtusely persists in its contention that this permit application has nothing to do with that 2009 process when SAHRA was approached for a comment. The contradictory stance of Second Respondent serves to show that there is no basis upon which it can be said that the permit application has nothing to do with the appellant’s High Court review application.

  1. The pending review application has everything to do with the permit application and Second Respondent’s attempts to persuade this committee to the contrary should be seen for what they are: a clear attempt to mislead this committee. That the appellant cannot comment on the application because of the sub judice rule and that it had valid reasons for not commenting when approached for a comment by the Second Respondent’s heritage consultant, is incontrovertible. The Second Respondent nevertheless chose to proceed with the permit application fully aware that it has placed appellant in this position of not being able to comment and proceeded with the application to BELCOM on the 30th September 2015 despite having been requested to wait until appellant could be represented at BELCOM to enable it to rebut any misleading statements and representations made there by and on behalf of Second Respondent.

  1. Despite reasonable requests the appellant was denied the opportunity to be represented at BELCOM when submissions were made on behalf of the Second Respondent in support of the application. These submissions were in many respects misleading as indeed are some of the submissions made in Second Respondent’s Opposition to the Appeal. The appellant did not have the opportunity at BELCOM to rebut the submissions made on behalf of Second Respondent including the quantum leap submission that SAHRA had already approved the proposed subdivision of Glen Dirk farm for residential development and that it follows that SAHRA’s comment to this permit application is not required because this so called approval by SAHRA implies all other developments have also been approved. It is submitted that in refusing to grant a postponement in circumstances where the appellant had only been given two days prior notice of the BELCOM meeting and after reasonable requests had been made for a postponement and reasons given, HWC failed to comply with the standards of reasonableness that it is expected to comply with. In refusing to grant a postponement of the BELCOM meeting it prevented the appellant from rebutting misleading submissions and misrepresentations made by and on behalf of Second Respondent.

  1. In paragraph 5.5 of Second Respondent’s Opposition to the Appeal, Second Respondent sees fit to point out that “SAHRA had already commented on the proposed subdivision for residential development” and then goes on to submit that this comment by SAHRA “includes all other developments also associated with the residential component”. Second Respondent refers to a letter dated 17 June 2009 from SAHRA to which a letter dated 3 February 2009 is attached. This letter is annexure GD2 to Second Respondent’s Opposition to the Appeal. In “GD2” the late Beverley Crouts-Knipe confirms for SAHRA in 2009 as follows:

The above application reviewed by SAHRA Built Environment and Landscape Committee (Belcom) meeting held on 4 June 2009, refers.

Belcom Decision:

After much discussion of the properties in question, the committee decided to ratify their previous letter of comment (please see attached copy).”

  1. The second page of “GD2” contains the second page of SAHRA’s letter dated 3 February 2009. I quote from the first page:

The abovementioned document was reviewed at the SAHRA BELCom meeting held on 23 January 2009.’

On the second page the following conclusions by SAHRA are set forth:

  • That the development of the properties, one to the south (number 5) and four to the northeast (numbers 1 – 4) of the farm, is acceptable.

  • Further, that the selling off of properties 1 – 4 was not problematic because it would not affect the feasibility of the viticultural activities negatively nor require departure from the Rural Use Zoning. It would also not have a negative impact on the existing heritage resources on the farm (the Manor House) nor on the cultural landscape as it would fit in with the developmental patterns of the adjacent precinct.

  • The commitment by Mr Rick Menell, not to further subdivide and develop the site for a period of 25 years, is commendable and is therefore encouraged.

  • However, the subdivision and development of the part of the property situated at the southeastern most tip of the site division number 6 on diagram 8, in agreement with Mr Graham Jacobs, is not supported.

The Final Basis Assessment Report, dated May 2008, is therefore acceptable in principle as a heritage assessment as part of the EIA process: however, the final Heritage Impact Assessment should be submitted to SAHRA for approval.’

  1. There is nothing in this letter sent by SAHRA to Graham Jacobs in 2009, i.e. 6 years ago, that shows that SAHRA has “already commented on the proposed subdivision of Glen Dirk Estate for residential development which the Second Respondent submits includes “all other developments also associated with the residential component. The Second Respondent is attempting to mislead this committee by suggesting to you that because SAHRA has commented in principle on a 2008 Basic Assessment Report as part of an EIA process, that SAHRA’s comment is not required in regard to a 2015 permit application in respect of the historic reservoir which is directly linked to a proposed new dwelling on portion 8 which is not mentioned anywhere in SAHRA’s 2009 letter to Graham Jacobs. There can be no basis for such an argument to succeed. What is evident though as I said earlier is that HWC had commented to SAHRA in 2009 about it not being satisfied with the subdivision of portion 8, clearly for purposes of residential development thereon. Yet HWC’s BELCOM went against its own decision in 2009 by granting this permit which involves a proposed residential development on portion 8. I will hand in a copy of the 2009 BELCOM decision.

  1. It should be noted that the Second Respondent’s heritage consultant had submitted to SAHRA in 2009 a draft Heritage Impact Assessment in which he stated that :

Other than the Old Farm Manager’s House, the effected areas contain no structures older than 60 years…” 1

This statement by the Second Respondent’s heritage consultant is misleading. The draft HIA is obviously silent about the existence of the historic reservoir which forms the subject matter of Second Respondent’s permit application. This omission is noteworthy. It is indeed not the only instance where pertinent information is withheld from HWC. It is therefore clear that SAHRA was never informed about the existence of the historic reservoir and this is all the more reason why SAHRA’s comment should have been obtained by Graham Jacobs.

  1. SAHRA was therefore uninformed about the extent of the heritage resources on Glen Dirk farm in 2009 when it gave its comment in principle. But equally important is the fact that SAHRA subsequently has identified the whole of Glen Dirk farm as having Grade I significance and that SAHRA intends to provisionally protect the Constantia-Tokai Historic Farmlands. The Second Respondent is aware of this as this committee should also by now be aware of this. The Second Respondent’s submission that in the circumstances there was no need for SAHRA to again comment prior to BELCOM taking its decision is baseless and indeed it is quite simply rubbish.

  1. The Second Respondent’s contention that the application for “renovations to the reservoir is a completely separate matter, unrelated to the decision taken by BELCOM” makes no sense at all. This is manifestly absurd. The contention that the appellant’s current pending review application in the High Court “has no bearing on the present matter” is not true simply because it is repeated time and again. The Second Respondent did not submit the application for a permit to do remedial or restoration work on the historic reservoir. It motivated its application with its intention to build a dwelling on portion 8 which is set out clearly in the Second Respondent’s Motivation that was made available to the appellant at the outset when the appellant’s comment was sought by Second Respondent’s heritage consultant.

  1. The Second Respondent is attempting, by way of its application to BELCOM for a permit, to obtain the approval by the City of Cape Town of Second Respondent’s application for a further dwelling to be erected on Glen Dirk farm, more particularly on portion 8. Portion 8 is one of the portions that form part of the rezoning and subdivision decision by the City of Cape Town which is under review. The alterations to the historic reservoir are proposed to enable the building of this proposed new dwelling on portion 8. It is in fact the Second Respondent that is being disingenuous. The appellant has every right to rely on the High Court review proceedings as a decision to set aside the decision of the City of Cape Town to approve the subdivision and rezoning of a number of portions of Glen Dirk farm, including portion 8, will be rendered nugatory insofar as portion 8 is concerned if the permit directly related to the building of a dwelling on portion 8 is not set aside.

  1. It is clear that Second Respondent is attempting to circumvent the High Court review application. Indeed this is not the first occasion that it is attempting to do so. Second Respondent proceeded, after the appellant’s Notice of Motion was served on it, to lodge and obtain approval of subdivisional diagrams in respect of the portions that were approved for subdivision and rezoning, including portion 8, which form the subject matter of the appellant’s High Court review application. The appellant had to threaten interdict proceedings before Second Respondent gave an undertaking that it would not proceed with any transactions at the Deeds Office. That attempt to circumvent the High Court review proceedings was stopped but Second Respondent has again tried to find a way around appellant’s High Court review proceedings. These endeavours are not well-meaning as Second Respondent contends while making spurious and unwarranted allegations against the appellant.

  1. That the historic reservoir is located within a Grade I site is irrefutable whether or not the Second Respondent is uncertain about this. It was essential for HWC to obtain SAHRA’s comment before reaching a decision and granting the permit. HWC was in breach of a clear agreement with SAHRA as is evidenced by provisions contained in the Memorandum of Agreement as agreed to by HWC. Any suggestion to the contrary is without merit or substance.

  1. Other than the High Court review application, what BELCOM’s focus should also have included is firstly the location of the historic reservoir on a site that has been given a Grade 1 grading by SAHRA and secondly that SAHRA’s comment should have been obtained on the permit application prior to the application being considered at BELCOM and before a decision was taken. Not doing so renders the process fatally flawed to the extent that the decision has to be set aside on appeal or review. HWC failure to comply with the MOA renders the Permit invalid and Second Respondent’s contentions in its Notice of Opposition in this regard simply do not pass muster. It is submitted that this fundamental and fatal failure on the part of HWC renders the whole process void from the outset.

  1. Indeed the Committee had compelling information before it not to proceed with the permit application as is evidenced by the communications sent by and on behalf of the appellant before and early on the morning of the 30th November 2015, prior to the consideration of the matter at BELCOM. HWC was aware that the appellant had only been given two days’ notice that the matter would be considered by BELCOM on the 30th September 2015 and that the appellant’s attorney would be out of the country on that day.

  1. It is curious that the case officer saw fit to send to SAHRA an email the day after the decision was taken by BELCOM asking whether SAHRA would like to comment. It is also curious that the case officer sent a different version of the “approved” minutes to SAHRA to the approved minutes published by HWC.

  1. Given the fact that the Committee based its decision on the documentation and information made available to it by and on behalf of Second Respondent without any input by SAHRA and in the absence of appellant who could not be present to rebut statements made to BELCOM, the only reasonable conclusion possible is that the Committee made its decision based on limited and misleading information. It is submitted that BELCOM had a duty in terms of its mandate to postpone the matter to obtain SAHRA’s comment. Indeed HWC had a duty to give appellant adequate notice of the BELCOM meeting and BELCOM should have postponed the matter given that the appellant had drawn to its attention to the High Court review proceedings and that SAHRA’s comment has to be obtained before the permit application could be considered at BELCOM. The Second Respondent’s contentions in this regard do not withstand scrutiny. The BELCOM decision and the Permit issued is fatally flawed, indefensible and fall to be set aside on the grounds and for the reasons set out in this appeal.

  1. The appellant submits also that BELCOM’s decision is not only procedurally unfair but also, that the Permit is indefensible and falls foul of the requirements of the Promotion of Administrative Justice Act (Act No 3 of 2000) (“PAJA”). It is evident that the Committee misdirected itself fundamentally. The Committee also failed to rationally consider the impact of the decision to grant the permit obtained for purposes of building a dwelling on one of the portions that forms part of the subject matter of appellant’s High Court review application. It is evident that the Committee failed to consider rationally, and/or to evaluate and assess the permit application in the context of the impact of a dwelling to be built on Glen Dirk Farm, which forms part of a Grade 1 cultural landscape and that the proposed building would result in

    1. SAHRA has recently sent a letter to Second Respondent would have been available to BELCOM.

    1. The Committee’s decision to grant the permit is against the spirit, intention and objects of the NHRA and the values contained in the Constitution. BELCOM’s decision places a heritage resource that is of national significance at risk.

    1. The case officer’s communications with SAHRA and BELCOM’s decision-making process do not bear scrutiny. There is no indication as to which member/s of BELCOM analysed appellant’s requests for a postponement and who decided that appellant’s request were “unreasonable”. It is submitted that if a Court had to be approached to review this matter, it would consider the aim and intention of the Act and would not support this decision by HWC that the appellant was “unreasonable”.

    1. The appellant submits that as a result of these irregular actions and misdirection on the part of HWC and BELCOM the decision and the Permit are indefensible and fall to be set aside on appeal and indeed the Permit is susceptible to review (and correction) in terms of the Promotion of Administrative Justice Act.

    1. Failure to set aside the permit will result in a situation where a decision by the High Court to set aside the subdivision and rezoning approval in respect of particularly portion 8 will be meaningless and rendered nugatory as the building that is proposed on that site could be approved and built before the review application is finalised. In the circumstances, not only will the appellant suffer significant prejudice in the event that the permit is not set aside, but there will be irreversible negative consequences for the Glen Dirk farm as part of a Grade I national heritage resource .

    1. In conclusion, it is submitted that this appeal should be upheld and that the fatally flawed permit should be set aside in its entirety. A decision not to uphold this appeal will be indefensible and not be procedurally or substantively justifiable.

    8 December 2015

    YVONNE LEIBMAN

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