Objection to permanent departure of scenic protection and sign/roof lights in Victoria Rd Clifton

From: Helet and Chris Merkling [mailto:merk@mweb.co.za]

Sent: 29 November 2011 09:44 PM

To: 'Sandra Hustwick'; 'Megan Lukas'; 'Beverley Schafer'; 'Chris Willemse'; 'Taki Amira'; 'Ossie Gonsalves'; 'Graham Rose'; 'Jill. Fabing'; 'Anne Darne'; 'Axel Bruning'; 'Brian Schachat'; 'Elley Biggs'; 'Otto Stehlik'; 'Bungalow Owners Association'; 'Rob Louw'; 'Esme de Wet'; 'B Comley'; 'Tiffany Jones'; 'B Creighton'; 'Charl Coetzee'; 'Geoff Hirschmann'; 'Paul & Di Boynton'; 'Chris Merkling'

Subject: Objection to permanent departure of scenic protection and sign /roof lights in Victoria Rd., Clifton (application 209606)

Dear Sandra, Megan, Beverley, Ossie, Taki, Jill et al:

Today we obtained a letter addressed to us and dated 31 October, 2011 from the Director of Planning and Building Development Management, Mr. Friedrich Durow, only after we physically tracked the letter to the Camps Bay Post Office and after applying information in a late e-mail sent yesterday from Ossie Gonsalves regarding notification of this application # 209606 by Beaches Apts., 10 Victoria Rd., Clifton. This letter was also sent by registered mail to some rate payers in the immediate area, principally in Dunmore Apts. (judging be the erf no.).

In response to the deadline for objections looming, I today reviewed at Council’s Dept. for Planning and Building Development Management the application file No. 209606 submitted on 16 August, 2011 ex post facto for permanent departure from protective environmental and bylaw legislation to “legalize a renovated canopy and new sign” and to “obtain Council permission for illegal building” (carried out around May, 2011). I was not allowed to copy the plans or application and any other residents and rate payers wishing to obtain further information is required to personally, physically go to view the plans and application.

Council does not share e-copies or scan copies of such information, but I have requested a review of this outdated, time consuming practice to allow for e-sharing and effective communication with the public and am hopeful that future communication with our Clifton community, the CBRRA and CBO will be more effective.

The Beaches’ application fees were apparently paid on August 18, 2011 and advertising fees on 28 October, 2011. Essentially that Beaches Apts. want to legalize “a new canopy height of 10 mm above the existing canopy, departure of sec. 93(5)(a) to permit 1457 in lieu of 1.2 m; departure of sec. 93(5)(e)(ii) to permit 1457 in lieu of 1.3m” and a new sign of 1.9 m in height.” Plans for the current installation of a new canopy and roof/sign lights and a departure of protective bylaws were never approved by Council to date (except for building plans approved on 3 August, 1993).

There is extensive opposition amongst neighbors against this application being granted.

1. No roof lights are indicated on the applicant’s plans submitted on 29 July, 2010 by Architect Mike Shaw, as far as we could tell today while reviewing the plans with Council’s Mr. Christiaan Coetzee. These roof lights are invasive of our private property rights and prevent sleep at night. The design specifications for the new, illegal Beaches sign box are excessive and out of kilter with all other sign lights in Clifton along Victoria Rd. and in breach with protective bylaws. I will e-mail photos of the other sign lights in this area tomorrow for ease of reference, but those lights are far more reasonable and much smaller in size and environmental impact and the applicant should surely be held to equal regard for bylaw restrictions applicable to and adhered to by other property owners in the protected area.

2. The applicant refers to the new roof structures, roof lights and sign lights as “a redecoration.” This is not true and constitutes de facto breach of protective bylaws (as is also clear from the essence of their application submitted after illegal installation). Council did not approve the roof or sign lights or the new canopy. The new structure fails to comply with building and environmental laws protecting Clifton and Victoria Rd. and is a manifestation of narrow (building) interests in direct contrast to the interests of the public, the Clifton community and the scenic designation.

3. Efforts by neighbors since March 2011 to work towards an acceptable solution have been met with silence and a recent verbal insistence that Beaches Apts. will first “legalize” the illegal structures with Council before consulting with community groups, or neighbors. Should Council grant the departures sought and allow excessive roof structures and roof/sign lights, an irreversible precedent will be set along Victoria Rd. and breach the scenic protection, urban conservation and infringe upon public and private rights.

4. Weather protection to occasional visitors and residents constitutes insufficient reason to depart from scenic bylaw protection. Walking a few meters with an umbrella in largely wind-free Clifton cannot weigh more heavily than environmental rights protecting against invasive, unnecessary canopies and structures breaching scenic protection afforded to Victoria Rd. and adhered to by other property owners in this area.

5. We wish to record that the physical advertising process has failed us and several neighbors (who are out of town and the country), despite our e-communication requesting information and seeking transparency over several months. We learnt today that the deadline for objections is Friday, 2 December, 2011 contrary to Taki Amira’s recommendation on 23/11/2011 that a 2 week extension should be allowed.

6. Our ability to seek or submit an environmental impact assessment, or legal opinion to support protection of the scenic designation and limitation of invasive building and light structures is therefore limited and unfair.

7. The applicant seeks to legalize a ‘renovated canopy and new sign” ex post facto, was allowed to build without Council permission and now seeks planning permission and invasive departures from environmental and scenic protection. Factual errata exist in the application. The height departures will detract from the current view of residents in Dunmore Apts. and other properties in the area.

8. Insufficient information was shared by the applicant and Council and pertinent information remains out of bounds, thus limiting our ability to comment and participate in opposing this application.

9. The application affects property owners, rate payers, visitors (both local and international), shortly everyone who uses Victoria Rd., as permission to depart permanently from protective scenic laws will change the face of Clifton with its unique nature and location and prevent unhindered views of the scenic beauty of this protected area.

10. The roof and sign lights are excessive and a health hazard to neighbors residing in this area as light refraction is severe and invasive, preventing sleep and rest at night.

11. We were advised today that our objection is accepted (on the basis of invasive lighting), but we wish to record the following additional objections: In erecting illegal structures and roof/sign lights and seeking ex post facto legalization from Council, permanent departures of the Cape Town Zoning schemes (detailed below) and failing to comply with relevant laws protecting public and private rights, the applicant and relevant public administrative officials have infringed our legal rights as follows:

• Breach of the National Building Act and various bylaws such as the Land Use Planning Ordinance, and National Building Regulations through failure to apply for legal building, lights and structures to be erected at Beaches Apts.;
• Breach of the Land Use Planning Ordinance 15 of 1985;
• Breach of the Cape Town Zoning Scheme section 93(2);
• Breach of the Cape Town Zoning Scheme section 93(5)(e)(ii);
• Breach of sec. 33 of the Constitution of South Africa (“The Constitution”) as the decision to allow insufficient time to assess and object in detail to the application is unlawful, unreasonable and procedurally unfair;
• Breach of sec. 33 (2) of the Constitution as everyone whose rights have been adversely affected by this decision has not been given written reasons why the decision to set a December 2, 2011 for objections deadline should be upheld;
• Breach of sec. 195 of the Constitution as transparency has not been fostered since timely, accessible and accurate information has not been supplied to everyone whose rights are affected by this application;
• Public services have not been applied fairly and equitably to everyone whose rights are affected by this application;
• Breach of the Administration of Justice Act 107 of 1988, Act 72 of 1989, Act 63 of 1977 and section 24 of the Bill of Rights recognizing our rights to environmental protection;
• Breach of the Urban Conservation designation of Victoria Rd and sections 112(1) and (10) of the Cape Town Zoning Scheme Regulations 29/6//1990 (gazette # 4649);
• The applicants have avoided sharing any relevant information with affected neighbors and failed to respond to several written requests for meetings and proposed practical solutions to the invasive and illegal roof and sign lights;
• The applicants have not shared their motivation for this ex post facto application with affected neighbors and interested parties;
• Council did not approve the illegal roof and sign lights and should not do so in direct opposition to protective environmental and Urban conservation laws, but rather act to protect building laws, regulations, public and environmental interests;
• Reports and/or notices issued against the illegal actions of the applicant by the Environmental Monitoring and Control (District A) of the Environmental Resource Management unit have not been shared with affected neighbors and our needs have not been fully responded to (despite the constitutional protection afforded in this regard);
• Public and private environmental organizations like the Table Mountain National Park and the South African National Parks have not been afforded an opportunity to comment on the application seeking a departure of scenic protection even though the application directly impacts protected areas;
• No environmental impact assessment has been done or shared with affected parties;
• The Planning and Building development Management Locality Map attached to the letter dated 31 October, 2011 does not provide adequate information regarding the impact on the area protected as scenic;
• Information regarding objections and support received for this application has not been shared with all stakeholders;
• “Alterations and/or redecoration” were not approved by Council;’
• The applicant has breached The Land Use Planning Ordinance no. 15 of 1985 (“LUPO”);
• Breach of Sec. 24 of the Bill of Rights of the Constitution of South Africa which protects an environment that is not harmful to public and individual health or well-being and promotes conservation;
• Breach of the Occupational Health And Safety Act 85 of 1993 which protects the public against exposure to health hazards (such as refractive and invasive lights preventing quiet and reasonable enjoyment of private property rights);
• Breach of the Environment Conservation Act 73 of 1989 (“the ECA) as granting permanent departure from the protective scenic bylaw protection will fail to control activities which may have a detrimental effect on the environment (as in sec. 21);
• Breach of sec. 22 of the ECA – no reports concerning the impact of the application on the environment and/or alternate proposals on the environment have been submitted or sought from affected parties;
• Breach of sec. 26 of the ECA;
• The applicant is in breach of sec. 28(d) of the ECA and has not ceased activities contravening protective bylaws;
• We have suffered damages as a direct result of the illegal roof and sign lights and have been obliged to take steps to protect our health and quiet enjoyment of our private property rights as direct result of the unilateral and illegal action of the applicant;
• Land reserved as a nature area and as a protected natural environment in proximity to the area affected by the application will be negatively affected by the departures being granted;
• Persons or groups of persons or organizations interested in or affected by the environmental management framework for Clifton and Victoria Rd. have not been afforded fair or adequate opportunity to assess relevant information and oppose the application in terms of the National Environmental Management Act 107 of 1998 as amended (“NEMA”);
• Breach of the NEMA provisions securing environmental protection and promoting cooperative environmental governance in this specific geographical area;
• A public participation process has been limited in this application process in contravention of sec. 3 of NEMA;
• Failure to take appropriate steps ensuring reasonable public participation of persons desiring to participate but being unable to participate in the process of an Environmental Management Framework in this protected area due to “other disadvantages” in terms of sec. 3(2) and sec. 4 of the Environmental Management Framework Regulations (no. 33306 dated 18 June 2010) (“the EMF Regulations”);
• Breach of sec. 4 of the EMF Regulations;
• Breach of the National Environmental Management Act Protected Areas Act of 2003 (sec. 41);
• Disregard of environmental conservation objectives for Victoria Rd. and Clifton;
• Contravention of sec. 39 and sec. 40 of “LUPO”;
• No contravention levy has been paid by the applicant in terms of sec.40(d) of LUPO;
• No Environmental Officer or Control Officer has been appointed to assess this application and to seek public participation in collecting evidence in support of or against this application being granted (sec. 42 of LUPO);
• No Construction phase EMP has been submitted by the applicant (as required by LUPO);
• No Basic Assessment Report to the Dept. of Environmental Affairs & development Planning (DEA&AP) has been submitted by the applicant;
• Sec. 28 of the NEMA requires that responsible and sufficient measures be implemented to prevent environmental pollution and degradation from occurring nor have environmental requirements been adhered to by the applicant.

12. We request the following relief from Council, please:

(1) The imposition of restrictive conditions to the application for building plans submitted by the applicant duly cognizant of the community needs and environmentally protective laws, incl. but not limited to the Zoning Scheme and Urban Conservation restraints.

(2) Should the applicant be in further and continued breach of restrictions imposed by Council, we seek the implementation of contravention levies and fines against the applicant of an appropriate monetary value.

(3) We request a meeting with Council and the applicant to work towards a practical solution of the roof and sign lights and canopy structure which the applicant seeks to legalize, duly cognizant of environmental, public and private property rights.

(4) We request Council to refuse this application and to instruct the applicant to remove the illegal roof and sign lights and to comply with protective bylaws.

(5) We request Council to advise us via email of all future applications for departure of the zoning scheme and bylaws to allow full and timeous public participation and comment.

(6) Should Council in future review any conditions imposed on the applicant, we ask that we be advised via email of such review details.

(7) We request a copy of the record of the decision by Council in this matter (in terms of sec. 9 and sec. 10 of Act 73 of 1989.

(8) We request Council to again advertise the application also via e-mail and via the rate payers’ database to all Clifton rate payers and affected community and environmental organizations, incl. the Sanparks and the CBRRA and CBO.

(9) We request Council to obtain an Environmental Impact Assessment for this application and future departure applications from the Scenic bylaw protection of Victoria Rd. and sharing that report with us and all interested parties.

(10) We request Council to obtain feasible alternatives to the application being granted and illegal roof/sign lights remaining in situ.

(11) We request a copy of Council’s decision about this application and that Council prevents unnecessary legal costs from being incurred in this matter by ensuring proper consultation and adherence to the audi alteram partem rule.

(12) Confirmation of what information the Environmental Control Unit of the Environmental Resource management Dept. has submitted to Messrs. Durow and September, incl. your instructions to them to switch off the illegal lights, regarding the breach of protective bylaws and any objections to this application being granted.

(13) Confirmation that the Ratepayer’s data base will be updated with e-dresses of each property owner to facilitate future, effective and fair communication (rather than problematic postal mail and registered letters which are left uncollected for various practical reasons, incl. that some ratepayers live abroad our outside Clifton).

We would appreciate you supporting our objections to this departure and hope to hear from you before Friday’s deadline.

Please let us know should you require any additional information?

Kind regards,

Helet Merkling

082 822 55 17

For ease of reference, encl.:

E-mail from Taki Amira dated 23/11/2011:

Good morning Ossie:

As you can see from the string of emails below a number of residents and representatives of the community in the Clifton (Victoria Road (area have not been advertised to in connection with this application. In view of an apparent lapse on the administration side for correct advertising can you consider a two week extension period to allow for proper public participation.

Can you please ask the planner responsible, to email me a copy of the distribution list that should be on file.

Is it possible that you can also arrange for copies to go to The Camps Bay RRA and the Clifton Bungalow’s Association. Also include Mrs Helet Merkling as she is the CBRRA rep for this area.

Helet & Emma

You should receive (when one is sent to you) in the pack an A4 size plan of what is intended. Should you or anyone wish to view the full plans you need to visit the front desk on the 2nd Floor of the Media Building in Cape Town. This is the building where the Mini car show room is on the ground floor.

If you have any problems give me a shout.

I believe that Ossie will arrange for the correct process to be followed

Best wishes

Taki Amira

Councillor - City of Cape Town

Chairperson Good Hope Sub Council (No.16)

Wards 54,74 and 77

Tel: 021 4872001

Fax: 021 487 2208

Cell :082 440 1928

"If you don`t like something, change it. If you can`t change it, change your attitude. Don`t complain. "

Maya Angelou