It's almost Christmas and that's the season for giving. But this Christmas it seems the giving is about giving help to developers.  Is  Minister Bredell attempting to ‘cure’ a faulty decision regarding his department's Environmental Authorisation (EA) for the River Club Development? 

The OCA is one of 21 organisations and individuals who appealed against the EA awarded in August 2020 to the River Club owners (LLPT) to proceed with their development. The appeal is now being considered by Mr Anton Bredell, Provincial Minister of Local Government, Environmental Affairs and Development Planning as the appeal authority in this matter.

Despite the abundance of evidence that the decision was irregular, the Minister does not seem to be taking the appropriate response, which would be to turn back the matter and reverse the decision.

Instead the Minister has taken two actions which suggest he is attempting to do what lawyers describe as ‘curing’ a faulty decision.

On the 26th November, the Minister wrote to Heritage Western Cape to indicate he is “considering requesting the Applicant, Liesbeek Leisure Properties Trust, to submit additional information” in response to the fact that the HIA did not fulfil the requirements of HWC as set out in the Final Comments of HWC dated 13 February 2020. The Minister requested HWC “to provide the Appeal Authority with the information/HIA requirements to supplement the current HIA that will enable HWC to consider that the HIA fulfils the requirements of the HWC and NHRA.”

What game is the Minister playing here?

Firstly, it is not the business of an Appeal Authority to help an applicant in a matter where the decision-maker, an official in his department, has irregularly approved a development application. The Appeal Authority must consider the decision as it stands rather than provide a way for the developers to wriggle out of the fact that their application did not meet the standard of law.

Secondly, it is preposterous that the applicants are being given a fourth chance to rectify their failures to address the heritage significance of the site. Their first draft Heritage Impact Assessment (HIA) was submitted to HWC in July 2019 and HWC responded with Interim Comments on 13 September 2019 pointing out how the requirements of Section 38(3) of the National Heritage Resources Act had not been met and giving detailed guidance as to what would be needed. The developer’s second effort was the final HIA submitted to HWC in December 2019 which failed to respond to HWC’s Interim Comments. Rather, the report, “which purported to respond to HWC’s comments dated 13 September 2019 merely re-stated the initial findings.” HWC’s Final Comments made it clear that “The committee reiterates the need for DEADP as the consenting authority to engage with HWC as the commenting Heritage authority on this matter before DEADP takes a decision on the Final BAR.” However, DEADP did not attempt to engage with HWC. Instead, DEADP officials invited the developer’s Environmental Assessment Practitioner and the Heritage specialists to a meeting with HWC officials. Why is it DEAP’s business to invite the developer to engage in the approval process after they have submitted their final reports? They should have engaged HWC directly without inviting the developers into the process to help solve their problem. How much more biased can a process be?

What then transpired was that DEADP allowed the developer’s specialist to submit an uncontested and unexamined further supplementary report to DEADP, the third attempt at meeting heritage requirements. It is this further HIA supplementary report (dated 31 March 2020) that was used by DEADP to justify granting the Environmental Authorisation without engaging with HWC. But this report, written by the developer’s consultants after the finalisation of the submission process and paid for by the developers, simply stated why the developer’s consultant was right and why HWC were wrong in their conclusions. It offered no change in its findings nor did it respond to any of the HWC concerns – concerns which led HWC to conclude the HIA failed to meet the requirements of the National Heritage Resources Act.  They were simply “a further re-statement of the views of the applicant, with no true evaluation of HWC’s concerns” and reflected the “intractable” nature of the applicant’s views on the matter.

That makes three attempts to identify the heritage resources on site and develop heritage indicators for any development on the site. And three failures.

Yet Minister Bredell now gives the developers a fourth chance by writing to HWC to ask HWC to “provide the …requirements to supplement the current HIA that will enable HWC to consider that the HIA fulfils the requirements of the HWC and NHRA.” These requirements were clearly set out in HWC’s appeal, as stated: “The reasons that the HIA did not fulfil the requirements of HWC were fully set out in the final comment of HWC dated 13 February 2020.”

How many more chances does a developer get to avoid accountability for trashing heritage resources by developing a massive complex on a sacred site unsuited to what they want to build?

And why is the Minister intent on avoiding the obvious fact – that the site is not appropriate for a massive development of this sort. It is practically impossible to fabricate heritage indicators that would justify such a development.  All of this information is contained in the HWC Final Comment of 13 Feb 2020 so it seems he hasn’t read it carefully.

For the Minister’s benefit, here is some of what HWC said in their Final Comments:

• HWC noted that the HIA is required to map all heritage resources on the site but “the mapping continues to base significance on ecological rather than cultural values, and reduces the acknowledged and far wider cultural landscape of the valley to just the river.” 
• HWC criticised the way the HIA argued that the "river itself is the only tangible visual element which survives as a resource which warrants protection", which it said “negates in its entirety the exceedingly high historic and symbolic significance of the site identified in all previous studies and submitted continuously throughout the process by the relevant l&APs.”
• HWC noted that there was a problematic disconnect between the various stakeholders' understanding of what comprises the heritage resources of the area, and that of the HIA”, which meant the HIA’s “assessment of significance is inadequate”. Indeed, “the fundamental grading of significance is wrong and therefore, all that follows, including the conclusions of the HIA, is wrong.”
• The HIA failed to recognise the importance of “authenticity” in assessing significance and noted that “The values attributed to the site by the stakeholders have not been carried through into the report and have therefore not adequately informed the unique significance of the site and appropriate development indicators. This is a methodological problem that the HIA does not address.” 
• HWC concluded that “the assessment of significance has been tailored to arrive at mitigation for the development rather than an assessment of significance that would assist in informing an appropriate development.”
• Moreover, “the HIA appears not to regard the built form of the proposed development as affecting the significant heritage resources present, neither does it recommend heritage related built form restrictions. Unlike the TRUP Baseline Study and the Phase 1 HIA for the River Club (both of which provide some well-considered, spatialised indicators), this HIA practically gives the development carte blanche i.t.o. heights and massing.”
• “HWC regards the wider TRUP, of which the River Club site is an integral component, as a highly significant cultural landscape in the City with a significant interplay between natural and man-made landscapes. It is this interplay that defines cultural landscapes. HWC is of the opinion that this area is of at least provincial significance, if not of national significance. It is a site which is recognized as a sacred place. The open, largely undeveloped floodplain is a tangible reminder of intangible heritage.”
• “It is recognized through historic record, as well as Cultural Memory, as being a place of conflict for over 150 years. It is recognized as the place where, in 1657, Colonial Settlement of South Africa truly took root with the establishment of the first settler forms along the Liesbeek Valley, and the place where the Cape lndigene were first truly dispossessed of, and excluded from, access to their ancestral land. It is a place where almost all of the stages of South Africa's developmental history and policies are either embedded deep within this cultural landscape or is viewed from it. It is a place where Cetshwayo and Langalibalele were exiled to. It is a place which speaks to who we are now, and from where we have come, not just as a City, or a Province. but as a Nation.”
• “The HIA has unfortunately reduced this significance to a set of ecological values, provided for the most part to post-rationalize a wholly intrusive development model, rather than inform appropriate development.”

How much more information does Minister Bredell need?

The other somewhat strange development regarding this appeal relates to a High Court review initiated by the Department of Public Works and Transport in October 2020 which is seeking to set aside parts of the Directive issued in April 2020 by a Ministerial Heritage Appeal Tribunal which ran over the period 2018 to 2020. The Tribunal considered the appeal by various parties against an HWC Provisional Protection Order over the River Club land issued in April 2018 because of the imminent threat to heritage posed by the development. Amongst the appellants was the Department of Environmental Affairs and Development Planning, the same department that has now taken the decision to award the Environmental Authorisation in a process that HWC described in its appeal against the EA as “unlawful” because it ignored the failure of the HIA to meeting the requirements of the National Heritage Resources Act.

While the protection order has expired, the Tribunal made some strong statements in their final directive about the undesirability of inter-departmental conflict and lack of cooperation, and how divide and rule tactics were at play in the River Club matter. It is these comments that DPWT appear upset about since they expose partiality and a lack of transparency on the part of government departments involved.

Minister Bredell has now written to all appellants in the EA award process to offer appellants opportunity to comment on this High Court challenge to the Directive on the basis that “the setting aside of certain parts of the Heritage Western Cape Tribunal decision has the potential to impact on the grounds of appeal … and my consideration of the Appeals submitted against the EA.” This is seemingly motivated by the provisions of the Promotion of Administrative Justice Act that state that administrative action is reviewable in a court of law if “the action was taken because irrelevant considerations were taken into account or relevant considerations were not considered.”

If the High Court review of an unrelated decision is relevant, then Minister Bredell needs to wait until the High Court has ruled on this matter rather than rushing his appeal decision. Of interest is a comment made by the developers in responding to appeals, stating that “the decision delivered by the Appeal Tribunal has no material bearing on the decision by the aforesaid Director, to grant the EA that is now the subject of these appeal proceedings.”  We hope that Minister Bredell is not facilitating another act of deception in this appeal against the EA by offering the opportunity to question the Tribunal directive before a Court of Law has considered the matter.

It would seem that the Minister would prefer that assertions of bias in the decision go away, since the behaviour of DEADP in the Appeal Tribunal are less than reassuring in this regard. In the course of the Tribunal, DEADP was insistent on assuring everyone that there was no imminent threat to heritage because the comments of HWC would be taken into account when the decision was made under DEADP’s authority. However, as soon as the Appeal was dispatched, DEADP ignored the substance of HWC’s final comments and made only the feeblest pretence at consulting HWC before awarding the EA, despite the completely obvious fact that granting the EA was contrary to DEADP’s own Operating Procedures as well as being unlawful.

Well, it is almost Christmas, the season for giving. It seems Minister Bredell's Department is in the mood to give and it is liberally giving second, third and now fourth chances to developers, but not giving fair processes to IAPs. Let’s hope that sense will prevail and the Appeal authority does not dance on Christmas egg shells to allow a flawed decision, laced with bias and lack of transparency, illegal in law, and bereft of moral values, to stand.

Stand up for truth and justice, Minister Bredell!

Reverse the Environmental Authorisation for the River Club development. Uphold the appeals!