OCA statement read out at the MPT appeal hearing last Friday

Thank you. I present the views of the OCA on this application, views that are widely shared by a coalition of more than 60 first nation groups, civic associations and non-governmental organisations and by more than 18000 people who have signed a petition objecting to this development.
We believe the MPT is being rushed into a premature decision because it has not been provided with the full range of information it needs to deliberate this matter. Rather, it has been selectively given documents that are in the interest of the applicant whilst other important information has been withheld. When we applied on 11th September to present to the MPT, we were told [quote] “you are not permitted to raise new information at the Municipal Planning Tribunal (MPT), as the applicant would not have had the opportunity to respond … nor would the panel of the MPT …”
What this means is that the Interested and Affected Parties in this matter are not being treated in the same way as the applicant since the applicant has been permitted to insert new information into the MPT process, as a result of substantial changes in the development application in the more than 2 years that have elapsed since first applying in August 2018. This is information which IAPs have not had sight of until the 73 Mb of files were loaded onto the MPT website a few days ago. Buried in this mountain of documentation are 8 reports dated subsequent to the first application and which we have not had opportunity to respond to, and for which additional information would be needed for the MPT to assess in a fair and impartial manner.
For example, the Case Officer has included the Environmental Authorisation issued on the 20th August 2020 by DEADP but has not included the fact that 10 organisations and 18 individuals have lodged appeals under the NEMA regulations which means the authorisation process is not complete. Significantly, one of those appeals is from the City’s own Environmental Management Department and indicates that the concerns it has raised consistently over the rezoning and EA processes have not been responded to adequately. We believe that the MPT must have sight of this appeal in order to consider the rezoning application. However, we are denied opportunity to table such information.
Similarly, a response dated 31 March 2020 by the applicant’s heritage experts is included as Appendix 8d but, bizarrely, the actual HWC final comments issued on 13th February 2020 and to which the response is penned, is not included in the documentation, nor is, for example, the Heritage Appeal Tribunal Directive of April 2020. Both documents are directly relevant to adjudicating the claims by the applicant and repeated in the Case Officer’s report, where she merely ‘concurs’ with the applicant, against the recommendations of her own Environmental Management Department and against the recommendations of the competent authority to judge heritage matters.
Yet IAPs are denied the opportunity to present such information and have only had sight of the applicant’s new documents in the last few days. How does this comply with Sections 16 and 17 of the Municipal Services Act which mandates municipalities to “encourage, and create conditions for the local community to participate in the affairs of the municipality… through appropriate mechanisms, processes and procedures …”?  How exactly is the suppression of some information consistent with the Code of Conduct for Municipal Staff members in Schedule 2, which requires a staff member of a municipality to [quote] “act in the best interest of the municipality and in such a way that the credibility and integrity of the municipality are not compromised; and “[to] act impartially and treat all people … equally without favour or prejudice?”

Since we are denied the opportunity to share documents with you, we are not able to refute the claim in Annexure 8d that creates a malicious fiction that there are First Nation Groups who are authentic, and then there are others who “were not historically located at the River Club and TR-area” and, by implication, inauthentic. We are not able to refute the extraordinarily racist and toxic claim that the opposition of a large coalition of indigenous groups is because they represent the interests of the Nguni with no historical, ethnic, geographic, cultural or heritage linkages to the River Club land. This is the racist language typical of apartheid misinformation, devoid of science and recruited to serve the applicant’s interest. The authenticity of claims can only be assessed if you have view of the HWC final comments, the HWC EA appeal and the Directive of the Heritage Appeal Tribunal.
If you do read those documents, it will become clear that it is not true that there has been extensive engagement with First Nation groups, but rather that the First Nations Collective only appeared in 2019, a year ago, after the applicants were exposed in the Heritage Appeal Tribunal as having failed to consult First Nation groups. If you do read those documents, it will become clear it is not HWC refusing to clarify its views but the River Club’s heritage experts who have refused to respond to very clear concerns expressed by the competent authority and IAPs. And it will become clear that it is not for the heritage consultant paid by the River Club to pronounce on whether his report does or does not comply with the NHRA. To quote his own words, “any disinterested observer” will see that it is the heritage consultant who has obdurately refused to hear that the absence of heritage indicators responding to the heritage resource as open space is a problem he cannot solve by retrofitting a heritage assessment to suit a pre-determined development application. And if you had the appeal by Heritage Western Cape against the EA, you will see why it is the HIA consultant who, with each iteration, merely re-stated the initial findings of his first HIA – and that is why HWC concluded the EA is an unlawful decision.
The failure by the applicant to respond to comments is also evident in the EA appeal by the City’s Environmental Management department. The appeal chronicles how extensive comments made by the City’s own specialists over the course of the BAR have not been adequately responded to. Because we are not permitted to table additional information, you will not be able to see why the appeal notes “Insufficient consideration was given to heritage informants and the relevant heritage resources authority’s comments; There was non-compliance with the NHRA; stormwater impacts, including flooding, are not sufficiently mitigated against; the EA is misleading on the matter of flooding; the City’s Floodplain and River Corridor Management Policy has not been considered; Climate change impacts and resilience have not been given due consideration; failure to describe, or mitigate, the loss of open space; failure to mitigate the high negative biodiversity impact; habitat loss of a high faunal sensitivity proclaimed Protected Area; and failure to consider appropriate alternatives. All documented by a senior public official in the City of Cape Town.

At its basic level, the application does not take cognisance of the fact that this site does not simply sit in an urban landscape, it is located on one of the defining features in the iconic topographic landscape of the Cape Peninsula. The impact of this proposed development as seen from the slopes of Devil’s Peak has simply not been addressed by the heritage, environmental, urban design or visual consultant specialists – or by the City’s Planning Department.  The historic and environmental integrity of the Liesbeek River valley cannot be substituted by a landscaped river corridor which has been advocated by the Consultant specialists – and now by the City Planners.  The visual impact on the topographical landscape would have been evident to you had information previously submitted by RAMPAC, and annexed here, been permitted into the record.

In an email to me regarding the status of the application on the 26th March last year, Ms San Giorgio noted that, “Given the complex nature thereof it will take a bit longer than anticipated to complete.” I agree that it is complex but it seems that it is only being made more complex and obscure by hiding from the Tribunal critical information the Tribunal needs in order to come to a fair, informed and procedurally just decision.

The Municipal Planning bylaw permits the City in section 94 to “require that fresh notice of an application be given if a period of more than 24 months has elapsed since the first notice of the application and the application has not been decided” or “if new information comes to its attention which is material to the consideration of the application and which adversely affects any person.”

We have a situation where
a)         The letter first advertising this application was dated 24 August 2018, more than two years ago
b)         There is clearly new information … which is material to the consideration of the application and which adversely affects many people.

This MPT will misdirect itself if it is not provided with all relevant information pertaining to this decision. A premature decision today could result in two conflicting outcomes that are materially at odds. Moreover, there is new information provided here which was not put out for stakeholder comment in the more than two years that elapsed since the application was first advertised.  Put simply, the matter is not ‘ripe to be heard’.

We therefore urge the Tribunal to do what is administratively just and fair and require a readvertisement with all the information relevant to a land use application on which stakeholders can comment before this matter serves before the MPT again.
I thank you.