HIGH COURT decision 24 Davenport Rd

Case Number: 6205/2015
In the matter between:
PETER GEES Applicant
TRIBUNAL Second Respondent
THE CITY OF CAPE TOWN Fourth Respondent
ASSOCIATION Fifth Respondent
1. This is an Application in terms of The Promotion of Administrative Justice Act of 2000 pursuant whereto the Applicant seeks to review a Demolition Order granted in his favour in terms of Section 34 of The National Heritage Resources Act („NHRA”) of 1999 in respect of a block of flats at 24 Davenport Road, Vredehoek, because the Order was granted subject to certain conditions.
2. That Order was granted in January 2015 by the First Respondent through the Second Respondent which was the Appeal Tribunal on an Appeal brought by the Applicant.
3. The Applicant contends that the conditions imposed in the Demolition Permit are invalid. He applies for an Order reviewing the First Respondent‟s decision and striking out all those conditions. Alternatively he asks the Court to refer this Application for reconsideration by the First Respondent on an urgent basis.
4. First and Second Respondents oppose this Application and the Fourth Respondent (The City of Cape Town) does not oppose the Application and will abide this Court‟s decision.
5. The Applicant wishes to develop his property in Davenport Road, Vredehoek, together with a neighbouring property at No. 22 Davenport Road, Vredehoek (which he does not own). Applicant‟s property consists of a small block of flats which, although more than sixty years of age, has no significance in itself and is not conservation worthy in its own right.
6. It is common cause that:
(a) the property is not a situated on a Provincial, National or Heritage site;
(b) does not fall within a protected area in terms of Section 28;
(c) does not enjoy any provisional protection in terms of Section 29;
(d) is not listed in a Heritage Register in terms of Section 30 and does not fall within a Heritage area in terms of Section 31;
(e) is not declared a Heritage object.
7. It is also common cause that certain portions of Vredehoek fall within a Heritage Protection Overlay Zone and that the City is conducting a Heritage Survey the aim of which is to determine whether the area where the property is situated also lies within that Heritage Protection Overlay Zone.
8. The problem with the survey is that it is only partially completed and it has been underway for more than two years. It seems it will take another two years to be completed.
9. It is common cause that Applicant‟s property being more than sixty years old requires a Demolition Permit issued in terms of Section 34(1) of the NHRA.
10. An Application for that Permit was submitted and considered by the Built Environmental and Landscape Permit Committee (“BELCom”) and that Committee ruled that the building, because of its contextual significance in an area where a number of Art Deco buildings exist has a heritage value in its contextual significance. The Application was then refused.
11. On the 21st January 2015 an Appeal was heard by the Second Respondent and a Permit for Demolition was granted subject to the following three conditions:
(a) that the new development on the site should not exceed the Town Planning Envelope of the existing building;
(b) that the materials used for the facade of the new building would be in keeping with the existing building;
(c) that the building plans for the new structure would be submitted to the Heritage Western Cape for its approval prior to any work commencing on the site.
12. Applicant contends that the imposition of these conditions is irrational and in any event is ultra vires because they cannot be imposed in terms of the NHRA.
13. Applicant contends that while it is common cause that certain portions of Vredehoek (where the property is situated) falls within a Heritage Protection Overlay Zone in terms of the City‟s Zoning Scheme Regulations, the affected property (Erf 1444) does not lie there.
14. As Applicant states, the decision by BELCom was appealed against and the Committee refused the Appeal the Committee holding that the property concerned was representative of a particular typology regarded as contributing to the group value of the buildings in Vredehoek, it was relatively in tact and had a number of features typical of the period. It was held that it contributed to the town scape quality of Davenport Road and the property was graded as IIIC.
15. The Appeal before the Second Respondent decided that the building had no significance in itself and the permit for demolition was granted subject to the three conditions hereinbefore referred to. Applicant contends that that decision is irrational and that Section 34 (1) of the NHRA does not allow the imposition of conditions when granting a permit to demolish. It was argued that because the demolition of the whole structure has been authorised, the structure is not conservation worthy and it is ultra vires the powers of the NHRA to impose conditions on the Demolition Permit.
16. To grade the property as IIIC according to Applicant indicates that the property does not have any intrinsic merit but Applicant concedes that grade IIIC heritage resources are only significant because of their contextual significance.
17. It is submitted by First Respondent that the conditions have been imposed because the significance of the environment is sufficient to warrant a protective measure.
18. Counsel has referred me to a decision in this Court in the matter of QUALIDENTAL LABORATORIES (PTY) LTD V HERITAGE WESTERN CAPE 2007 (4) SA page 26 (CPD) and the Appeal from that decision which is reported in 2008 (3) page 160 (SCA).
19. The Qualidental decision by the CPD allowed the imposition of conditions in the grant of a Demolition Order. Counsel in that case (who is also Counsel in this matter) argued the point that it was ultra vires for the Court of Appeal to grant a Demolition Permit with one hand and impose conditions with the other. He said those conditions would be ultra vires the provisions of the Act.
20. The CPD quoted Section 48 (2) as saying:
“On Application by any person in the manner prescribed under Section 48, a Heritage Resource Authority may in its discretion issue to such person a permit to perform such actions at such time and subject to such terms, conditions and restrictions or directions as may be specified in the permit including a condition (c) stipulating the design proposals to be revised.”
21. Counsel for Applicant in this matter again argued before this Court that in the Qualidental matter that as long as neither the property itself nor the buildings thereon enjoyed any formal protection in terms of the Act, any purported
exercise of control by Heritage Resource Authority such as the First Respondent over the development of the property fell beyond the scope of its powers as conferred by the Act. He argued it was therefore ultra vires.
22. This argument was rejected by the CPD which found that conditions could be applied and they would not be ultra vires. The CPD said the starting point had to be Section 34 (1) of the Act which states that no person may alter or demolish any structure which is older than sixty years. The CPD pointed out that it is not only demolition but any alteration to the structure which is covered by the section and requires a permit. As far as the question as to whether conditions can be imposed on an Application for Demolition or alteration or whether Section 34 only proposes a positive or negative response, had to be decided by this Court. At page 35 opposite C of the Report, the CPD said:
“There are in my view at least three reasons why the answer to this question must be in the affirmative. Firstly, the wording of S 34(1) does not compel an interpretation as urged upon me by the applicant. Why, for example, should conditions not be attached to an alteration of a building? There is nothing in the Act that suggests that there should be no such conditions imposed. Secondly, if the wording of s 48(2)(a) is examined, it envisages that a condition can be attached to the permission granted in terms of s 34(1).”
Section 48(2)(a) the Court then said:
“In the third place, recourse must be had to the very purposes of the Act. To limit s 48 to instances inside conservation areas as set out in ch 2 Part I of the Act would significantly restrict the very powers of first respondent. First respondent would be confined to focus upon a very small area concerned and this would exclude instances of potential abuse from first respondent’s power of protection, save if it had recourse to the powers under the formal protections contained in the Act.
That itself seems to construe the Act unduly restrictively and appears to run contrary to the purpose of the Act and the regulations as set out. The long title and preamble to the Act provides an indication in this regard.”
The CPD then quoted passages in the regulations and the long title and preamble which indicate that this Court does have the power to impose conditions in a Demolition Order.
At page 36 opposite D the CPD said as follows:
“A purposive interpretation that can be construed from these ambitious objectives supports a conclusion that would expand first respondent’s powers rather than restrict them. Each application should be considered on its own merits with reference to the statutory duties and responsibilities of first respondent to protect and manage the relevant heritage authorities. Such duty and responsibility is not limited to a structure in respect of which an application to demolish is received. This is borne out by the fact that first respondent can invoke s 48(2)(c) of the Act when a permit is granted to demolish a structure based on its obligation to protect and manage other heritage resources within that particular area.”
23. The Supreme Court of Appeal (“SCA”) came to the same final conclusions as Davis, J in the CPD but placed the emphasis slightly different. It did however come to the following conclusion at page 164 opposite G:
“It is evident that s 34(1) contains a general protection against the alteration or demolition against any structure or part thereof which is older than 60 years without a permit issued by the relevant provincial heritage resources authority. In turn s 34(2) provides that in the event of the refusal of a provincial heritage resources authority to issue a permit regarding the demolition or alteration of a generally protected
structure it must consider bringing the structure concerned within any of the formal protections set out in the Act.”
The SCA came to the conclusion that:
“It was evident from s 48(2) that the first respondent had a discretion insofar as the granting or refusal of a permit is concerned. The first respondent also has a discretion regarding the imposition of any terms, conditions, restrictions or directions when granting that permit”. See page 165 opposite G.
24. At page 166 opposite I, the SCA stated the following:
“Therefore any new development that would detract from the villa and its surrounds would be contrary to the first respondent’s obligation to protect and conserve the villa’s landmark status.
The condition imposed by the first respondent therefore accords with its conservation mandate in terms of the Act and is directly in line with the principles of heritage resources management set out in ss 5 and 6. The imposition of the condition is also within the parameters, not only of the Act but is consonant with the overall scheme of the Act. The first respondent’s power to impose conditions in my view is not as narrowly circumscribed as contended for by the appellant.”
25. I am satisfied that although the facts are different in the Qualidental case than in this case, there is no question that the imposition of conditions are within the parameters of the Act and are consistent with the overall scheme of the Act. Conditions can be imposed in a Demolition Permit and the CPD‟s finding in this Court is persuasive and, in any event, the decision of the Court of Appeal is binding upon me. The CPD held that in terms of Section 34 (1) of the Act there is a general protection against the alteration or demolition of any structure or part thereof which is older than sixty years without a permit being issued. The CPD held that in terms of Section 48 (2) that the grant of a
Demolition Order could be made subject to conditions which could, inter alia, stipulate that design proposals be reviewed.
26. In this case Applicant‟s property falls within an area proposed by the Municipality‟s consultant as being worthy of consideration as an Urban Conservation Area in terms of the Local Zoning Scheme and as pointed out, Section 48 (2) of the NHRA gives the First Respondent a discretion insofar as the granting or refusal of a permit and the First Respondent also has a discretion regarding the imposition of any terms, conditions, restrictions or directions when granting that permit. The imposition of conditions falls not only within the parameters of the Act but is also consonant with the overall scheme of the Act. First Respondent‟s power to impose conditions should not be narrowly circumscribed as proposed by the Applicant.
27. In this particular case Applicant‟s property has been graded as IIIC and as such does not have any intrinsic merit. Speaking for myself I wholly agree with that. However, I am not persuaded that the conditions are either irrational or unreasonable and in particular it seems to me that the third condition is fully in keeping with the purposes of the Act. What I have difficulty with is why the new development on the site should not exceed the Town Planning Envelope of the existing building. It may be that the current Regulations relating to the Town Planning Envelope for this building do permit of a different size and it may be unreasonable that the new development should be restricted to the existing envelope of the building. The other conditions seem reasonable because the façade of the building should not, for example, be in steel and glass as opposed to conventional bricks and mortar and that condition seems reasonable as does the third one.
28. Insofar as the first condition is concerned, it seems to me that the third condition would sufficiently protect the question of the envelope of the existing building being exceeded if that excess would materially affect the appearance of the new building in its environment. Unfortunately no argument has been
advanced to me in the papers in this matter concerning this aspect of the first condition and I therefore do not propose to introduce another ground of complaint on behalf of the Applicant which is not specifically canvassed in these papers.
29. I am satisfied that there is no merit in the Applicant‟s contentions in this matter in support of the argument that the NHRA does not permit the imposition of conditions in the grant of a Demolition Permit in the circumstances of this matter.
30. The Application is refused with costs such costs to include the costs attendant upon engaging the services of two Counsel.
31. It is accordingly so ordered.

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