Public take the Chapman’s Peak construction issue to the High Court

Cape Times : March 7, 2012
Melanie Gosling
Environment Writer

The five respondents in the application are Entilini, of which Murray and Roberts is a senior partner, Western Cape Premier Helen Zille, Transport MEC Robin Carlisle, SANParks and Minister of Water and Environment Affairs Edna Molewa.

The public has gone to the high court in a bid to halt construction of the controversial R54 million toll plaza and office on Chapman’s Peak Drive.

And from court papers it has emerged that 10 years ago, Sanparks was categorically opposed to any toll buildings being constructed along Chapman’s Peak Drive. Sanparks now supports construction of the toll buildings along the scenic drive, and on national park land.

The local community is also opposed to R38m of public money being spent on the toll buildings, which they say are unlawful.

The Residents’ Association of Hout Bay and the Habitat Council lodged an application at the Western Cape High Court yesterday asking it to prevent toll road concessionaire Entilini from proceeding with any construction on land in the Table Mountain National Park and World Heritage Site.

In court papers, the public argued that construction on this land was unlawful. They were preparing court action to have the construction stopped “until and unless” the national park land had been deproclaimed and the title deed restrictions, which restricted use of the land for conservation purposes, had been removed.

However, the proposed court action would take time. If Entilini were allowed to continue building until the court case could be finalised, the company would have effectively built itself into an “irreversible position”, and it would become increasingly difficult to get a demolition order to “rid the landscape of the unlawful construction”.

Therefore, they were asking for a temporarily halt to construction pending the outcome of the court case.

In the founding affidavit of Keith Fawcett, the residents’ association’s nominee, he states that the public was footing the bill for about R38m of the R54m cost of the toll buildings: R25m in cash and R13m in written-off charges and claims.

If the court found that construction on national park land was indeed unlawful, it was not in the public interest to have public money used for an unlawful construction – particularly as further public money may have to be spent on demolishing the toll buildings and reinstating the national park land.

Further construction was also contrary to SA’S international obligations under the World Heritage Act.

The five respondents in the application are Entilini, of which Murray and Roberts is a senior partner, Western Cape Premier Helen Zille, Transport MEC Robin Carlisle, SANParks and Minister of Water and Environment Affairs Edna Molewa.

Fawcett states that the siting of the toll buildings inside the national park had never been tackled in the environmental impact assessment (EIA). Had the public known this, it would have become an issue of public debate in 2003, when the EIA process had begun, and not now.

Fawcett said the provincial authorities and Sanparks argued that a management agreement between them justified the building of the toll plaza. However, he said neither the concession agreement or the management agreement provided any authority for the construction of a toll plaza or office on national park land.

Sanparks had changed its position from the one it had put forward during the EIA process in 2003. Then SANParks had said it was opposed to any toll plazas being built along Chapman’s Peak Drive because toll plazas were not compatible with a national park.

Sanparks had said then the toll plazas “should be established as close to the urban edge as possible”.

The proposed double-storey toll office was to be built on land formerly owned by the Labia family, the farm Helsdingen. This had been expropriated and incorporated into Table Mountain National Park.

The plans for the toll office extend beyond the current road cutting into mountain fynbos. This was not made known during the EIA.

The residents’ association was able to get hold of the toll construction plans only in late July last year.

The matter is to be heard on Friday.

 

 

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