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High court rules in favour of developer behind a monster R1 billion BoKaap complex

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The community of Bo Kaap has been faced with a massive blow after the Western Cape high court has ruled in favour of a property developer planning to construct a massive R1 billion apartment complex on the corner of Buitengracht and Rose streets in the historical area. Heritage Western Cape (HWC) took the City of Cape Town and the developers to court, claiming the National Heritage Resources Act stipulates an HWC permit was needed before the development could get off the ground.

The building currently on the site houses a car dealership, but the development is set to provide 4 000m² of retail space, lifestyle activities and 250 residential apartments. Construction was set to start in June or July 2016 but was met with fierce opposition from the Bo-Kaap Civic and Ratepayers Association.

Given the dominance of the building, the Civic Association expressed deep concern over the possible impact on sunlight, residential views, traffic and the quality way of life.  This prompted the Civic Association and Heritage Western Cape to file an appeal against the decision by the Municipal Planning Tribunal that the development would not affect the heritage resources of the area.

But property developer Jose Rodrigues disputed the HWC’s claim that a permit was needed, saying the National Heritage Resources Act stipulates it’s only required for developments on heritage sites and not for properties alongside them.

On Friday, the high court judge awarded punitive cost against the applicants, which means the development can go ahead. Civic chairperson Osman Shaboedien says it’s a sad day for the community.

“The judge set a number of precedents allowing development companies to run rampant within our community, without taking into consideration the heritage of it or the city’s involvement in it. It overlooks the whole grey area of developments in the City centre and the CBD,” says Shabodien.

The association is however not deterred in their efforts and has vowed to appeal the decision.

“We have no choice but to appeal the decision. If we leave it as is, it will go on record that the developers are right, the justice system is being captured and –most of all- it will scare everybody off that support(s) a community in court action,” said Shabodien.

The lawyers for all parties were handed the judgement by the court this morning, with written documents to be presented on Monday.

“We have the right to appeal, which we will. However, we are still waiting on the written judgement to make a clear and calculated call on what we are going to do further,” added Shabodien.

Mayor Patricia de Lille gave the final approval for the development of the multi-use building last year.  The developer of the property, Jose Rodrigues, said that the development will target a Green Star rating by incorporating environmentally sensitive development and modern energy efficient technology.
Rodrigues emphasised that the development will be fully aligned to the objectives of the City of Cape Town’s new spatial planning legislation and will help meet the residential demand of the CBD’s growing population.

In a report compiled for the Bo-Kaap Ratepayers’ and Civic Association and submitted as part of the appeal, heritage practitioner Dr Fabio Todeschini, who has since passed away, argued that the developer failed to submit a detailed assessment of the existing character of the area around the site to establish clear design indicators from a heritage resources perspective.

Shaboedien was not happy with the public participation process, claiming that it was only welcomed by developers and the City Council.

Rodrigues said there was a normal public participation process whereby residents could comment on the development, and it was even extended to 90 days instead of the required 30. He added that he met with representatives of the Bo-Kaap Civic and Ratepayers Association and explained to them that it would not be viable to start a redesign from scratch.

Mayor Patricia de Lille was advised through a technical team. The association requested for the panel to include a heritage specialist, a traffic specialist and a civil engineer.

In June, a municipal tribunal was unanimous in favour of the development. The Bo-Kaap association then appealed and the mayor dismissed the appeal. The Association then applied for a review of the decision in the high court, which was set aside today. VOC

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