Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (WCC) (unreported case no 7031/17, 17-8-2018) (Le Grange J)

By Fahdeel Parkar

In the recent judgment of Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others (WCC) (unreported case no 7031/17, 17-8-2018) (Le Grange J), the court had to review the decision by the City of Cape Town’s (the City’s) Municipal Planning Tribunal (MPT) to grant Buitengracht Properties development rights on two sites within the Bo-Kaap area and the decision by the mayor, acting in her capacity as the appeal authority, to uphold consents regarding the developments.

Facts

In July 2016, the City’s MPT – where planning experts review and decide on certain planning projects in the city – approved a proposal for the development of a retail and residential property that was estimated to be worth around
R 1 billion.

The tribunal approved the development, despite 1 017 objections being lodged during the public participation process. The initial objections were as follows –

• the development proposal did not comply with the City’s policies;
• property values would be negatively affected;
• balconies and windows would overlook properties;
• the visual and historic connection between the Bo-Kaap area and the City would be blocked;
• the development would be too high with too many dwelling units;
• the areas historic significance would be undermined;
• social cohesion would be undermined; and
• traffic congestion in the surrounding streets would be increased.

The Bo-Kaap Civic and Ratepayers Association, as well as the 35 on Rose Body Corporate and Fabio Todeschini sought to review and set aside the planning approvals that were granted in terms of the City of Cape Town Municipal Planning By-Law 2015 (the MPBL).

Heritage Western Cape acted as an intervening party and sought a declaratory order that the proposed development triggered s 27(18) of the National Heritage Resources Act 25 of 1999 (the Heritage Act) and, therefore, required a permit.

The issues of the case were whether:

• The decision makers took the relevant factors into account as envisaged under the MPBL.
• The City’s approval decision was rational and/or reasonable in the circumstances.
• Section 27(18) of the Heritage Act requires a permit for the development of a place that is itself not a heritage site.

Arguments

The applicants’ pertinent arguments included that:

• The City failed to have regard to the heritage impact of the development, and in granting the subject approvals, acted irrationally and/or unreasonably, as follows –

– the developer’s heritage statement was not submitted as part of the application and was not furnished to the public as part of the consultation process;

– the approvals cannot be justified on the basis of the so-called similar development (similar building development projects within the Central Business District (CBD) eg, 117 on Strand Street) argument;

– the actual scale of the building was not reduced or redesigned, as recommended by the City’s Environmental and Heritage Management Department but instead a different calculation methodology was used, which on a generous interpretation of the calculations, merely reduced the building by 520m²; and

– the developer did not address a number of issues raised by the objectors.

• The City should have required the developer to submit a visual impact assessment.
• The City failed to have proper regard to the impact of traffic.
• The developer’s proposal did not comply with various planning policies.

In addition, the applicants’ central proposition on the issue of heritage impact was that any large scale development adjacent to a heritage site would have an extremely negative impact on the site and would seriously damage its heritage significance.

In contrast, the respondents’ argued that:

• The developer had taken care with regard to the surrounding heritage elements and its impact mitigated by the set-backs applied to the building.
• The developer followed proper process, considered all objections and complied with all the applicable City’s policies.
• The applicants were ignoring the changing and developing nature of the CBD and attempting to impose unsubstantiated limits over one property in favour of another.
• The development would provide employment opportunities and provide a large economic injection into the area.

Judgment

Le Grange J held that, by way of introduction, when the law entrusts a functionary with a discretion it means just that, and the role of the court is no more than to ensure that the decision maker has performed the function with which they were entrusted.

Deference is, therefore, warranted, but that did not mean that a court should rubber stamp a decision, which was unreasonable or irrational simply because of its complexity. In this instance, the complexity pertained to balancing heritage considerations against other equally important competing factors like socio-economic considerations.

Against this backdrop, Le Grange J systematically interrogated the allegations made by the applicants and ultimately held that none of the allegations, viewed individually or collectively justified intervention on the basis that the decisions of the MPT and/or the mayor were so unreasonable that no reasonable person could have exercised the power or performed the function, let alone a finding of irrationality.

Le Grange J held that no error of law was committed, and the decision makers properly applied their minds in the exercise of their discretion. The court held that the decision makers gave due consideration to the substance of the applicable City’s policies and engaged with them in their decision making where necessary and, as such, there was no good reason to interfere with such decision making.

The court was not persuaded by the argument of Heritage Western Cape that the development triggers s 27(18) of the Heritage Act, which requires a permit, and reasoned that when it comes to the interpretation of statutes, it is wrong to ignore the clear language of a statute under the guise of adopting a purposive interpretation, as doing so would be straying into the domain of the legislature.

After meticulously interrogating the allegations by the applicants, Le Grange J was not persuaded that the respondents’ approval decision was irrational and/or unreasonable in the circumstances.

Accordingly, the review application, as well as the declaratory order were dismissed with costs.

Conclusion

The judgment speaks volumes to the issue of gentrification within the Cape Town CBD and its surroundings.

As stated by Le Grange J: ‘Gentrification in all its form has become a chilling reality for the ordinary resident of Bo-Kaap. Understandably, the resistance to the gentrification of Bo-Kaap having regard to its historical significance, can never be understated.’

The judgment exposes the common misconception that the Bo-Kaap and the areas over which it extends are all heritage sites and enjoy such protection. Accordingly, it is not enough to ‘plead’ heritage protection in objection to any proposed building development within the CBD. The majority of the areas demarcated as heritage sites are clearly set out. However, in instances such as this one, namely, the proverbial ‘grey areas’, where the proposed development falls partially within the current heritage protection overlay zone, the courts should play an active role to balance the competing interests of the various stakeholders.

The judgment has, however, not deterred the efforts of the Bo-Kaap Civic and Ratepayers Association, which will most likely appeal the decision of the High Court.

Fahdeel Parkar BSocSci LLB (UCT) is an attorney at Herold Gie Attorneys in Cape Town.

This article was first published in De Rebus in 2018 (Nov) DR 43.