Dear OCA members
As we pointed out in our last newsletter, the provincial Department of Environmental Affairs and Economic Development (DEADP) issued an Environmental Authorisation under the National Environmental Management Act for the proposed re-development of the River Club.
It is an understatement to say we do not believe the Environmental Authorisation is justified. The letter of authorisation provides a long narrative purporting to provide reasons for the decision but to a great extent, these ‘reasons’ are simply a rehash of the developer’s arguments, some of which are not true or are misinformation. We wrote to the Director for Development Planning to ask for reasons under the Promotion of Administrative Justice Act but he declined to give any further detail on why he came to the conclusion to aware the EA. So, we will be challenging the decision.
To summarise briefly, what has happened is the following:
- The Department of Environmental Affairs and Economic Development (DEADP) issued an Environmental Authorisation (EA) to the developers for the River Club on 20th August;
- Interested and Affected Parties were informed on the 21st August;
- The EA is not a go-ahead to build because other permissions and processes are required;
- Interested and Affected Parties (IAPs) can appeal the EA within 20 days; the OCA and other IAPs will be appealing;
- If the appeal is rejected, the decision can be reviewed by a High Court;
- The developers require other permissions. One important step is to rezone the River Club. To do so, a public participation process will be required and this will have to go to a Municipal Planning Tribunal.
So, much as the developers like to say they have a green light to build, there is a long way to go.
The first step for the appeal is that
a.The OCA will formulate an appeal and submit by the due date. By law, anyone who appeals has to send their appeal to every registered I&AP, which is what the OCA will do by the 9th
b. All I&APs who are registered (and who will have received the notice from SRK) will have had 20 days to comment. In your comment, please endorse the OCA appeal and any other I&AP appeals that you believe you should support, such as those from the TRUPA and the Goringhaicona. When you do this, please copy the OCA at firstname.lastname@example.org – It is very important that we can show a large majority of I&APs endorse our objection and oppose the development.
c. If individuals wish to submit their own appeal, you are welcome to do so but it will require copying your appeal to more than 800 registered I&APs. The OCA can assist with that if you need the I&AP list but you can also get that from Matthew Law at SRK at email MLaw@srk.co.za.
d. People who wish to object but who are not already registered I&APs will not be able to do so formally in the process but can send us message of support, as many of you have already done. We will be assembling these messages for a public campaign. Please send it to email@example.com
For a more detailed background of events see below.
What is the Environmental Authorisation (EA) granted by the Provincial Department of Environmental Affairs and Economic Development (DEADP) all about?
The EA was issued an under the National Environmental Management Act the 20th August. It enables the developers to proceed with the other permissions required for the development but can be appealed or challenged in court.
The authorisation was granted on the 20th August and was followed by a press release by the developer on the 21stclaiming that the development has been “given the go-ahead”. Objectors and Interested and Affected Parties (I&APs) only received their notifications after the River Club had already trumpeted their claims in a press release that was republished by the press without comment from objectors. The press has been quite willing to publish the LLPT press release as reportage but has generally, been slow to publish alternative views.
The authorisation was the outcome of a very long process that started in 2016 with a draft Scoping report put out for public comment. While the River Club owners claim that have gotten the ‘go-ahead’ it is over-optimistic of them to imply the front-end loaders will be arriving next week. Below, we explain the entire process.
To proceed with the development, the River Club owners need to negotiate a number of permissions
- They have to secure an Environmental Authorisation under the National Environmental Management Act (NEMA). This is what they have been granted that by the provincial department but it is still possible to appeal, which we will do.
- They have to have the property rezoned by the City which will require public participation. The rezoning application will come before the Municipal Planning Tribunal if it proceeds.
- There are other technical approvals required (e.g. Department of Water Affairs and Sanitation since they are going to reroute a river)
The Environmental Impact Assessment (EIA) process
The River Club development required an Environmental Authorisation under NEMA. To get this authorisation there is a draft scoping stage (2016-2017), whereafter the formal Impact Assessment is conducted. The formal process began in 2018. The first Basic Assessment Report was put out in July 2019 and the final BAR in Jan 2020. The OCA and many other organisations lodged objections at each point.
One very important part of the environmental assessment requires a Heritage Impact Assessment (HIA) under the National Heritage Resources Act. The HIA for the developers was first presented to OCA in Feb 2018, was roundly rejected, came back as a revised HIA in July 2019 and was again rejected. When the revised HIA was presented to Heritage Western Cape, it also rejected the HIA as failing to meet the requirements of the National Heritage Resources Act. Many of its comments made by HWC were similar to criticisms made by the OCA. The final HWC comments on the HIA in February 2020 clearly stated that the HIA was flawed, inadequate and did not meet legal requirements.
Despite that rejection (and other objections by I&APs), DEADP approved the authorisation in August 2020.
Other process in parallel
- The Heritage Protection Order
In December 2017, Heritage Western Cape, acting on recommendations contained in independently-conducted heritage studies, gave notice it was going to issue a provisional Protection Order over the Two Rivers Urban Park because of the imminent threat to heritage posed by development in the area. It can do so in terms of Section 29 of the National Heritage Resources Act. Four months later, in April 2018, it did proclaim a provisional protection order but only over the River Club.
This was appealed by the developers, the City and the Departments of Public Works and Transport and of Environmental Affairs and Development Planning (the decision-making department for the EIA). This led to the establishment of a Ministerial Appeal Tribunal which considered the facts. At the Tribunal, the appellants argued there was no imminent threat to heritage and the EIA process, which is recognised in Section 38 of the NHRA, would ensure that heritage concerns were properly taken account of.
It took two years for the Tribunal to reject the appeal and confirm the protection order. However, by the time the decision was taken and the directive issued (April 2020), the order was due to lapse and HWC was no closer to grading the area. Effectively, the developers and their allies in the Province and City had blocked any heritage grading of the site. Moreover, they had ensured that the decision-making on any development was taken out of the hands of HWC and given to DEADP under Section 38 of the NHRA. And when it came to making a decision, they simply ignored the heritage concerns in the HWC comments on the HIA. We can now see clearly why they wanted this kind of process.
- The Two Rivers Local Spatial Development Plan
The Two Rivers Urban Park has a local development plan that was agreed in 2003. That plan frames the area as an Urban Park with strong conservation elements. In 2015, the then Executive Mayor signed off on a Co-design process to develop a new Local Spatial Development Framework for TRUP. That co-design process unfolded over a series of workshops and culminated in a TRUP manifesto which confirmed that TRUP as a valuable conservation resource with high heritage value. However, the mayor then discontinued the co-design process and, without any consultation with local communities, brought in a team of consultants to draft, in secret, a new spatial development plan for the area. Unlike the previous plan, this plan removed the words “Urban Park” from the framework and conveniently inserted the proposed River Club development into the plan as if it was already approved. This plan was released for public comment in October 2019, along with a Heritage Impacts Assessment (HIA). Both the wider Spatial Development Framework (LSDF) and the HIA were put out for comment.
The HIA is due to be considered by Heritage Western Cape.
Although neither the HIA nor the LSDF have been approved, the DEADP environmental authorisation refer to both documents as if they are now policy, which is not the case. The fact that the draft LSDF incorporates the River Club development as part of the plan is a fiction created by a team of consultants working in secret – very conveniently for DEADP.
If the LSDF is approved, it will cement the River Club application. If the HIA is accepted, it is unclear how heritage in the park will be preserved.
- The application for Heritage Grading of the Two Rivers Urban Park
In December 2019, the OCA along with the Two Rivers Urban Park Association and the Goringhaicona Council, gave notice we were going to apply for Provincial Heritage Status for the TRUP. We submitted the application in February 2020. Essentially, were civil society organisations applying to have done what HWC could not complete under their proposed protection order. We were taking matters into our own hands to ensure that heritage that the state could not protect through it own processes would be protected as a result of citizen action.
The application was due to be considered in August by the grading committee of HWC. However, they postponed their consideration of the application because the HIA for the Two Rivers LSDF is still to be considered. So, our application is pending. We are not happy that this is their course of action since other decisions are being made in the meantime. We have written to HWC to expedite this application.