Court action over coastal tender

2018-09-04 06:20
The Maiden's Cove, which has been awarded in a R1bn development tender, has become the subject of court action.PHOTO: Foto24/ Nasief Manie

The Maiden's Cove, which has been awarded in a R1bn development tender, has become the subject of court action.PHOTO: Foto24/ Nasief Manie

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A second community-based organisation has added its voice against the redevelopment of the Clifton precinct.

The Cape High Court recently granted Maiden’s Cove for All (MCA) the right to intervene in a case brought by the Clifton Bungalow Owners’ Association (BOA) challenging the sale to private developers of large portions of Maiden’s Cove.

A tender worth around R1bn for the development of the Clifton precinct – the land between the Clifton bungalows and Camps Bay – was awarded last year to K2015298271 South Africa (Pty) Ltd, by the City of Cape Town (“Tender set to rejuvenate area”, People’s Post, 10 October­) .

The site is around 16ha in size, of which 5ha have been made available to the successful bidder for the development of two pockets of single residential developments consisting of 52 residential stands, a boutique hotel or serviced apartment site consisting of 3500m², a commercial component (restaurants and retail) consisting of 5000m², a mixed-use component (offices, studios, apartments) consisting of 2250m² and an underground parking facility consisting of approximately 725 parking bays, Mayco member for transport and urban development, Brett Herron, previously told People’s Post.

Earlier this year, the BOA brought the matter to court to set aside the sale. The association hopes to overturn the City’s decision to sell and develop the Maiden’s Cove site and the Clifton Scenic Reserve in particular.

According to BOA spokesperson, Richard Summers, the association is concerned with the “conservation of the unique character of the bungalows area”.

“The Maiden’s Cove site’s heritage status has been recognised as a protected area for 70 years because of its outstanding scenic value. Unless it is protected, it will be lost for posterity.

“The BOA feels that the City did not take proper account of these factors in its decision to sell and lease the land, compromising the entire process.

“The BOA has a strong interest in ensuring that any process followed by the City in connection with this site is lawful.”

The case is based on several grounds, says Summers, including that the fair market value of the site considered by the City is questionable, prescribed requirements in the law applicable to the disposal of municipal capital assets were ignored, and the City paid inadequate attention to the fact that the Maiden’s Cove site is a protected heritage resource and ignored the implications of this for both the tender process and proposed development­.

In a statement, the MCA says it will widen the grounds of the challenge and asks for a comprehensive remedy that would force the City to involve the public right from the beginning in a new process to decide how Maiden’s Cove should be used.

The MCA’s first court challenge is that the City has failed to keep the area as protected coastal open space and has no authority to draw up a plan for the sale and lease of this protected public open space without thorough consultation.

“[The City] was duty bound to draw in the public from the start when deciding on how the land should be used. It was also legally obliged from the beginning to engage meaningfully with the various municipal and provincial statutory bodies created to protect heritage and the environment. Instead the City has sought to dispose of the public open space to private developers in terms of a commercial plan it has itself determined.”

The second challenge is that the City “did not take any meaningful steps to engage with the historical and current users of Maiden’s Cove, namely the communities of Bo-Kaap and the Cape Flats who had been forbidden to use the beaches of Clifton and Camps Bay and had made Maiden’s Cove their own”.

The MCA claims these communities will have “drastically limited” access if the development proceeds­.

The third challenge is that the City scheme “violates its legal duty to undo rather than further cement the profound racial spatial division of our city”, the MCA states.

“Instead of healing the divisions of the past and creating a more just and equal society, the development would favour affluent and overwhelmingly white people who already own most of the homes close to and overlooking the sea.”

Summers adds: “It is critical that the broader public – and the communities that have historically used the Maiden’s Cove site – appreciate the significance in the City’s decisions. The MCA involvement gives these communities a voice in the process. Any initiative or involvement that highlights the broader public interest at stake in this case is supported by the BOA as it is critically important to achieve transparency in the process and to achieve a more equitable result.”

Stuart Diamond, the City’s Mayco member for assets and facilities management, says: “The Bungalow Owners’ Association and others recently filed a review application to set aside the sale of the said City-owned property. This matter is still before the Western Cape High Court, and the City will not comment until the case has been finalised­.”

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