In spite of the following memorandum being handed in at a meeting on 22 June 2010 to Mr. Piet van Zyl, Cheryl Walters and other senior officials, the City has given the Developer instructions to continue with the work in a manner which the CBRRA still considers to be illegal.
CBBRA's Current Difficulties with the CCT Plan Passing Process:
Memorandum to Mr Piet van Zyl, CCT:
In recent times, CBRRA has had to resort to very expensive and time-consuming court cases to correct what it considers to be incorrectly passed plans by the City of Cape Town Planning Department. It has succeeded in four out of five cases.
The City defines Title Deeds which are not made out in favour of the City or the Provincial Government to be “inapplicable law” and in such a situation, only considers applications in terms of the Zoning Scheme.
However, when doing this and passing plans only in terms of the Zoning Scheme, it does not inform CBRRA or affected neighbours, having the attitude that if they are against the situation , they have recourse to the courts – usually when it is too late – and then of course there is the cost aspect which does not assist objectors.
Furthermore, when the public does go to court, the Council often uses Ratepayers’ money to employ legal teams to fight the cases instead of, as it should, having created the dispute with its original decision, not taking part in the case and abiding by the judgement of the court.
In meetings with objectors, the City Officials' attitude is to the effect that “... We hear your arguments, we see your legal opinions brought to your arguments, we do not agree with you and them. However, this is how we see things and, if you do not agree with us, you can always sue the City" knowing very well that the situation is usually against objectors who very seldom have the necessary finance to do so.
There is a sense of a lack of understanding or ability to concede that the City has made a mistake. There is no vehicle for the City to review its own passed plans which have been incorrectly passed (especially when passed without departures. When faced with obvious transgressions or mistakes, (see below) the City tends to attempt to assist the Owner/Developer to prepare rider plans to rectify matters, which rider plans it passes with little delay.
However, when an impasse has occurred, the City Officials will declare at meetings that they have “found a loophole in the regulations” to assist the Applicant to succeed. This approach concerns CBRRA which is under the impression that Officials should be impartial. At the same time they advise the Councillors that plans being queried are satisfactory and can / have been passed – until CBRRA again finds problems with them.
In conclusion, CBRRA has reservations about the performance of the City Planning Department and suggests an enquiry into all aspects of the Department’s activities which will improve the ability of the public at large to be treated by it in a more efficient and co-operative manner. At the same time, CBRRA queries the merits of the existence of the Developers’ Forum in conjunction with the City and the Western Cape Provincial Government on the grounds that the general public does not have any say in the activities thereof.
It recommends that a previous initiative to rectify this omission be revived. Here follow details of a serious problem project which currently concerns CBRRA :
THE CRYSTAL DEVELOPMENT, ERF 2352, WOODFORD AVENUE, CAMPS BAY
There is no need to repeat the details as to why CBRRA considers that many aspects of this development (passed twice by the City without departures) are illegal as CBRRA has carefully copied you in on all the details which have concerned CBRRA since about September 2008.
The City passed plans without departures for this application in late 2008. CBRRA raised serious reservations about the legality of the passed plans soon thereafter (over the height restriction, five “floors” in lieu of the three permitted in the title deed, the permitted “build–upon” area exceeded etc.
The new owners of the project submitted revised rider plans to the Council in about January 2009 which rendered the building illegal, as the basement was largely above ground. The City rejected these rider plans and only passed them (although still considered illegal by CBRRA) in about April 2010.
However, The City allowed the developer to continue construction unabated throughout the unpassed rider plan period – the developer never built in accordance with his originally passed plans. The building is now virtually completed, but still illegal.
The basement has been “reburied underground’ by the device of constructing freestanding illegally over-height concrete retaining walls some distance in front of the basement façade walls and placing earth fill between them and the basement and ± 500 mm thick on top of the projecting basement to create an illegal raised finished ground level over the still illegal basement. Suffice it to state that the Council allowed the Developer to continue building on rejected rider plans for over a year.
The Councillor concerned informed CBRRA that :
“I had up and until receipt of your letter been assured that all alterations to the buildings were in accordance with approved amended plans”.
This proved to be untrue.
After illegal earth fill was placed outside the site boundary on the public pavement against the walls and finished with a steep slope, to hide the illegally high front walls, the Councillor reported as follows :
'They (the Roads Engineers) advise me that they are permitted to allow a 3 degree fill on sidewalks, from the horizontal and that engineers are permitted to use discretion on individual applications. Understandably they could not comment, nor did I expect them to, on the decision by Roads Branch Table Bay but are of the opinion based on the photographs that the side walk portion in terms of their parameters was acceptable.
Therefore although I do not agree as to how it was done, in my mind the intent was to circumvent the requirements of the zoning scheme, I am legally bound to accept the decision by the engineers”.
At a subsequent emergency meeting chaired by Cllr Smith at CBRRA’s request, the City Roads Engineers denied that they had ever seen the plans and would not have passed them if they had. The City Landscaping Department wrote that it had never heard of this project and had never seen a landscaping plan.
As things presently stand, the Council recently instructed the Building Inspector to instruct the Developer to remove the illegal fill on the pavements in front of the illegal front boundary walls and issue a certificate of completion even although the removal of such fill would render the walls and the basement (therefore the whole building) behind illegal according to your BCO.
This instruction has recently been rescinded after representations from the Developer who state that they will remove the illegal fill on condition that the City does not pursue the other illegalities on the project. At present the matter is at a standstill.
ALL COMMUNICATION WITH THE CCT PD IN THIS REGARD IS POSTED BELOW:
ALL COMMUNICATION WITH THE CCT PD IN THIS REGARD IS POSTED BELOW:
8 July 2010
To: Piet van Zyl
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Cheryl Walters, Ossie Gonsalves, Marius Lourens, CBRRA Manco, Gabriel Fagan, Gavin Van Schalkwyk
Dear Mr van Zyl
Thank you for your reply and the detailed organogram of your department. Also without wishing to sound condescending, the CBRRA is fully conversant with this system and which is why, after being stonewalled by the District officials for over 14 months, it turned to your office for assistance. Sadly, as it appears from your letter, this will also be in vain.
To clarify the position better, the following must be noted:
To avoid the continual roundabout of dealing with your official's notorious inconsistent decision-making, CBRRA has not focussed, for the time being, on the further violations of this application, listed below - all ignored by the officials
• The title deed restriction of 3 floors in lieu of the 5 approved
• The title deed restriction of 25% built upon
• s7 of the NBR relating to derogation of value, where the officials have made no attempt to canvass the opinion of the community as they have done in other applications
• Misapplication of amdt 11 of the Zoning Scheme in places and ignoring it on the south-western parking area retaining wall
• Permitting a contravention of s98 of the Zoning Scheme relating to the height of a building
• Allowing the developer to continue construction without correctly approved plans for over a year, in the alternative, failing to enforce compliance with an approved plan (both criminal offences).
• Ignoring a very reasoned ex parte opinion relating to this application by Adv DF Irish SC
Instead, the CBRRA has concentrated on clear problems with the approved plans - details that have been indicated on the plans but, in reality, cannot be built out on the ground. The most obvious is the western boundary retaining wall along Medburn Rd.
The approved plans clearly show a 2.1m high retaining wall on the boundary and a grassed sidewalk of 1.5 m with a fall of approximately 150 - 200mm toward the kerb. This was the clear interpretation of the plans by Cllrs Smith and Amira and officials Gonsalves, Lourens, de Beer and Lewis. There is no reference to pre-existing ground levels. This is for the obvious reason that if the purported levels were used, then to hide the illegal basement, a 4m plus retaining wall on the boundary would have had to be indicated. This would be illegal.
However, as you must have noted during your site inspection, there is no sidewalk of 1.5m as depicted on the approved plans. Your officials have accommodated their developer by allowing it to expropriate City owned land that is for the benefit of the community, and build a geotechnically unstable bank on the sidewalk that is, again, not depicted on the approved plans. It is totally of no consequence what might have been or what could have been. As you might have noted from the aforegoing, CBRRA has simply highlighted a clear vilation by the developer, viz that it hasn't built according to an approved plan. The curious reaction of "maybe it isn't as on the plans but it could work if you consider the original levels" offered by Ossie Gonsalves and now repeated by you is astounding. The law requires that bulding be constructed in conformance with approved plans. It is trusted that you didn't have,as you referred to it, your "developer" hat on when you took this point of view.
In short, the developer submitted a plan which the City approved - now it must build to those plans.
Certainly, all of this bluster of denials is to hide one fact, which was so plainly pointed out by BCO Lourens at the meeting of the 4th June with the councillors - if the illegal bank on the sidewalk is removed, then the entire building becomes illegal.
CBRRA wishes to meet with you by latest Wednesday 14th July, to discuss the matter. It is imperative that Cllrs Smith, Amira, Haywood and Niewoudt are in attendance.
Regards
Chris Willemse
__________________________________________
Wednesday, June 30
From: Piet van Zyl
To: Chris Willemse
Cc: Marian Nieuwoudt ; Taki Amira ; Jean-Pierre Smith ; Cheryl Walters ; Ossie Gonsalves ; Marius Lourens ; CBRRA Manco; Gabriel Fagan, Gavin Van Schalkwyk
Dear Mr Willemse
Further to my interim reply of 21 June 2010, I now wish to respond to the matters that you have raised with respect to The Crystal Development in Woodford Ave, Camps Bay.
I apologise for the delay in replying to you, occasioned by the fact that I have had to follow up on certain aspects relating to this development project in order to give you a comprehensive response. My reply broadly covers three areas of response:
1. Comments on your observations on my functional roles and responsibilities.
2. Brief overview of my Directorate’s operational model, operating protocols and delegations of authority.
3. Specific comments on The Crystal Development.
At the outset, I want to place on record that I am not reluctant to get involved in specific or even so-called “controversial” projects, development applications or any related statutory approvals. During my professional career of some 30 years I have at different stages worn the hat of the “regulator” and also the “developer”. I therefore understand the demands and dynamics of both these roles very well. With regard to my current position as part of the regulatory authority, I fully understand the need to enforce the technical and statutory requirements of the National Building Regulations and the Zoning Scheme and to follow due legal and administrative processes in land use and building development decision-making. However, your expectation that I should “rein in the officials who seem hell-bent on allowing a clearly illegal building to be erected in Camps Bay” is, with respect, misdirected and also does not acknowledge my Directorate’s operational model and operating protocols, nor the Council’s System of Delegations.
My Directorate is comprised of six departments, of which the Planning and Building Development Management Department (PBDM) is one. The operational model of my Directorate generally, and PBDM specifically, is based on a decentralised eight district model. The City has been divided up into eight geographic districts, one of which is the Table Bay District and which includes the Camps Bay area. This decentralised operational model, together with the political decision-making structures of the Planning and Environment Portfolio Committee (PEPCO), the Spatial Planning, Environment and Land Use Management Committee (SPELUM) and the Sub-Councils, forms the basis of the City’s land use and building development decision-making. PEPCO and Mayco approved our eight district operating model in mid-2007 and in 2008 the restructuring of our operations and the establishment of the eight District Offices was undertaken.
Furthermore, specific levels of authority and delegations of decision-making powers are set out in the Council’s System of Delegations, that is amended and updated from time to time. There are specific delegations applicable to the relevant officials, as well as to PEPCO and SPELUM. In terms of the procedures that govern the delegation of authority, any function may only be sub-delegated once. For this reason, the Director of PBDM has received certain delegations in respect of land use and building development decision-making directly from Council, in order that a sub-delegation can be granted to the relevant District staff to legally and administratively enable decentralised decision-making in terms of the eight district model.
The reason for this arrangement is quite simply that it is considered the best model by means of which some 25,000 building development applications and some 8,000 land use management applications can be processed in an effective and efficient manner on an annual basis. With an operation of this magnitude, there is no way that a centralised management system and structure can be used.
The reason I sketch this operational context to you is to make the point that the officials in PBDM have delegated decision-making powers that mean that I (as the Executive Director) cannot simply overrule or change a decision that has been made by a District official. By law (and administratively), each person or political structure that has been entrusted with delegated decision-making powers is required to apply his/her mind to all the relevant facts, policies and statutory requirements in respect of each and every decision taken. In the case where a delegated official takes a decision, he/she makes that decision on behalf of the City and therefore is legally and administratively accountable for the decision. Accordingly, as the Executive Director, I cannot randomly intervene in any individual application – each application must complete its full statutory and decision-making cycle within the framework of the City’s decision-making structures and the System of Delegations. As you well know, the operational processes and systems also provide for rights of appeal (for applicants and objectors) in terms of the relevant legislation. Moreover, there are also rights of legal review in terms of the applicable legislation.
In addition to the foregoing, and in the interest of fostering good communication and interaction with their community based organisations (CBOs), each District Office is in the process of implementing a communications protocol. In short, the District Management will be having regular engagements with the CBOs in their district. Ossie Gonsalves has already started rolling out his programme in this regard. This approach has been agreed with the Executive Mayor, Mayco member Ald Marian Nieuwoudt and other Mayco members. It was also noted that, for the sake of good order and due process, specific issues or CBO queries will always be addressed with the District management in the first instance and thereafter escalated to the Director and then to myself, if necessary.
If some of my foregoing comments seem a little condescending, please accept that this is not in any way intended – I have deemed it to be an essential part of my response in order to sketch the organizational context to the matter at hand.
I turn now to comment on The Crystal Development, in terms of the issues raised in your recent e-mails addressed to me. You have specifically asked that I focus my response on the western retaining wall, which you contend has not been built according to the approved building plan.
I have reviewed the original building plan application (Plan 1827/2008, approved on 3 July 2008), as well as the rider plan application (Plan 748/2009, approved on 31 March 2010) with Ossie Gonsalves and Marius Lourens, as well as various technical reports and assessments on the relevant building plan file. I have also been on a site inspection.
I have, furthermore, been informed and debriefed on a number of technical reviews of the boundary wall issue, both internally within the Council, as well as with the developer and his representatives, since the site meeting that you attended on 4 June 2010.
Our conclusion from this review is that the wall concerned has been built in accordance with the approved plans and the District Building Inspector has confirmed this. The height of the wall is 2,1m above the natural ground level, being the ground level prior to the commencement of the building work. A contour plan has been used as a reference for this and the heights measured relative to these levels. Lines were painted on the walls to indicate this level. In order to independently verify the accuracy of this, the District Office has called for a Land Surveyor's certificate to confirm that the levels of the soil being re-instated on the road verge is not illegal, but in accordance with the contour plan which was submitted with the approved plans and to verify the previous or existing ground level before the development was undertaken.
I trust that this clarifies the City’s (and my) position with regard to the matters raised by you. We will hold ourselves available to meet with representatives from CBRRA, if you would wish to do so.
Regards
Piet van Zyl
EXECUTIVE DIRECTOR : STRATEGY & PLANNING
CITY OF CAPE TOWN
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Dear Mr van Zyl
Your reluctance to get involved in this controversial matter, despite having been copied in on all correspondence over the many months that it has been raging, is noted with the extreme concern that it deserves. It is not only your duty but actually your job as Exec Director of Planning, to rein in the officials of your department who seem hell-bent on allowing a clearly illegal building to be erected in Camps Bay.
Your officials have now issued certificates of occupation whilst an order to comply with approved plans exists for a critical aspect of the building. And please ignore the bleat that you will receive from those officials that this is just a little technical matter. It isn't. There is a boundary wall exceeding 3.5m in places that is hiding an illegal basement - which will render the entire building illegal. Refer to BCO Lourens who confirmed this at a recent meeting with Cllrs Smith and Amira, City officials and the CBRRA.
CBRRA demands an urgent meeting with you to discuss this and bring legality back to your planning approval process. This especially in the light of the latest development which is that CBRRA has reliably learnt that the need to comply with the approved plans has apparantly been put on hold by the City PD and developer.
CBRRA trusts that Cllr Nieuwoudt, who has been copied in on this e-mail, grasps the seriousness of this situation - both legally and politically.
Regards
Chris Willemse
CBRRA:Planning
Your intervention is now critically required.
Subsequent to the above letter being sent, the Council has instructed the Developer to keep the illegal fill in place and create a pavement next to the kerb at the bottom of the fill. At some places, this new pavement is about 500 mm wide!
The Councils attempts to circumvent their own regulations continues unabated, and, in the CBRRA’s opinion, still illegally !
__________________________________________
29 June 2010
To: Piet van Zyl
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Ossie Gonsalves, Cheryl Walters CBRRA ManCo, Gabriel Fagan, Gavin Van Schalkwyk
Dear Mr van Zyl
Your failure to respond as per your attached undertaking is of grave concern.
CBRRA trusts that your meeting with the GCTCA is not going to be used as an excuse to duck the extremely serious implications of your officials' actions in this specific matter.
CBRRA expects your response by close of business on Wednesday, June 30.
In the alternative, it will be assumed that the legal provisions of the National Building Regulations and Standards Act are not the concern of your department and CBRRA will have to seek recourse with whatever agencies that are prepared to ensure that the law of the land is enforced.
It is noted, with the contempt it deserves, that the developer has provided a notional "sidewalk" of less than half a metre wide and now has an impossibly banked section of earth, that will not withstand the elements, concealing the illegally built boundary retaining walls. All of the above are illegal and in any event, not as per the approved plan. Which officials have sanctioned this clear violation of the law, or are, at least, failing to enforce the law? The community demands an answer.
Regards
Chris Willemse
Chair: CBRRA Planning
__________________________________________
23 June 2010
To: Piet van Zyl
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Ossie Gonsalves, Cheryl Walters CBRRA ManCo, Gabriel Fagan, Gavin Van Schalkwyk
Dear Mr van Zyl
Thank you for the response.
If CBRRA may respectfully guide your attention, then it is to the fact that the western retaining wall simply has not been built according to the approved plan - by over 2m in height in places. The illegal fill on the sidewalk requires no further consideration - it must just be removed.
Even Ossie Gonsalves, in a long telephonic discussion on Friday afternoon, had to concede this point. Apparently, the developer will only remove the illegal sidewalk fill if the PD guarantees that this will end the matter and that all other illegalities can remain. The fact that the PD seem to be intent on considering this option is quite startling to this community.
As CBRRA has always contended, there is much to investigate in this flawed planning approval - but if the developer is not even forced to comply with the approved plans, then it is a criminal investigation that is required.
CBRRA awaits your response with interest.
Regards
Chris Willemse
Chair:CBRRA Planning
__________________________________________
20 June 2010
From: Piet van Zyl
Date: 21 June 2010 7:35:43 AM
To: Chris Willemse
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Ossie Gonsalves, Cheryl Walters, CBRRRA Manco, Gabriel Fagan, Gavin Van Schalkwyk
Subject: The Crystal, Woodford Ave, Camps Bay
Dear Mr Willemse
Your subjoined e-mail refers. I am still in the process of investigating the matter and will revert to you with my response during the course of this week.
Regards
Piet van Zyl
EXECUTIVE DIRECTOR : STRATEGY & PLANNING
CITY OF CAPE TOWN
__________________________________________
13 June 2010
To Piet.VanZyl@capetown.gov.za
cc: Ossie Gonsalves, Demetri Amira, Jean-Pierre Smith, lCBRRA ManCo, Marian Nieuwoudt, Gavin van Schalkwyk, Gabriel Fagan
Subject: The Crystal, Woodford Ave, Camps Bay
Dear Mr van Zyl
Your reluctance to get involved in this controversial matter, despite having been copied in on all correspondence over the many months that it has been raging, is noted with the extreme concern that it deserves.
It is not only your duty but actually your job as Exec Director of Planning, to rein in the officials of your department who seem hell-bent on allowing a clearly illegal building to be erected in Camps Bay.
Your officials have now issued certificates of occupation whilst an order to comply with approved plans exists for a critical aspect of the building. And please ignore the bleat that you will receive from those officials that this is just a little technical matter. It isn't. There is a boundary wall exceeding 3.5m in places that is hiding an illegal basement - which will render the entire building illegal. Refer to BCO Lourens who confirmed this at a recent meeting with Cllrs Smith and Amira, City officials and the CBRRA.
CBRRA demands an urgent meeting with you to discuss this and bring legality back to your planning approval process. This especially in the light of the latest development which is that CBRRA has reliably learnt that the need to comply with the approved plans has apparantly been put on hold by the City PD and developer.
CBRRA trusts that Cllr Nieuwoudt, who has been copied in on this e-mail, grasps the seriousness of this situation - both legally and politically.
Regards
Chris Willemse
CBRRA:Planning
__________________________________________
11 June 2010
To Cllr Taki Amira,
Chair : Good Hope Sub-council
cc: Ossie Gonsalvees, Kenny Lewis, Jean-Pierre Smith, Johan de Beer, Chris Willemse, ohn Powell, Keith Angelo Hartnick
Subject: The Crystal Building: Woodford Avenue, Camps Bay
Dear Cllr Amira and Mr Gonsalves,
I inspected the site yesterday (10 June) and can comment as follows:
1. City Parks has not/never been consulted/contacted regarding this development on erf 2352 as per the attached
2. The embankments along Medburn Road and Woodford Avenue are extremely steep (I estimate that they are 1:1,5) and establishment of vegetation on them is going to be problematic as irrigation will run-off and cause erosion
3. The area on the corner is relatively level and would pose no problem
4. No maintenance agreement/contract with City Parks has been discussed
5. I have seen no landscape plan and cannot comment on detail plant plan if having been provided
Kind regards,
David Curran
District Manager: Operations - Northern District
Tel. 021 550 7617 (Office)
Cell. 084 629 6965
Fax. 021 550 1063
PS – I apologies for the late response and the new mail. My system crashed and I have lost ALL info between 1 June and 7 June
__________________________________________
To Cllr Taki Amira, JP Smith
Chair : Good Hope Sub-council
City of Cape Town
cc: CBRRA ManCo, mayor.mayor@capetown.gov.za, Marga Haywood, Jean-Pierre Smith, Belinda Walker, Marius Coetsee, Gabriel Fagan, Piet van Zyl, Ossie Gonsalves
6 June 2010
Hi JP & Taki
A special thanks to JP for arranging Friday's meeting at short notice and to Taki for making the time.
CBRRA confirms that the Planning Dept (PD) will instruct the developer to remove the fill along the Medburn Rd sidewalk in compliance with the approved plan, on Monday morning.
Further, the developer must also bring the height of the boundary wall in compliance with the approved plan viz 2.1m above the sidewalk.
CBRRA appreciates the clarity with which you dealt with these deviations from the approved plans. Also that the senior Roads Branch officials, Kenny Lewis and Johan de Beer, confirmed that they had not personally seen the plans prior to the meeting and would not have approved the sidewalk fill in any event.
As stated in the meeting - this clear attempt to evade the Scheme will impact on the actual building itself, whether by rendering the height of the building illegal or partially removing the basement parking and causing non-compliance in that aspect.
As has occurred in the past with this development, the PD will no doubt simply issue occupation certificates to bolster the (now precarious) position of the developer that they have chosen to ally themselves with. The CBRRA is relying on the political will of the City to not allow this travesty of justice. It is common cause that buildings must conform with the planning approval granted before such certificates may be issued. The issue of the filled sidewalks and the extremely prejudicial consequences thereof to the entire project must be resolved first. Clearly, if even by building in conformance with the approved plans, compliance with the Scheme cannot be achieved, then new rider plans must be called for and any further work on this development ceased, until such time as a legal situation can be obtained. Otherwise, demolition must be ordered.
Cheers
Chris Willemse
CBBRA Planning (Chair)
__________________________________________
24 May 2010
To Cllr Taki Amira,
Chair : Good Hope Sub-council
City of Cape Town
cc: CBRRA ManCo, mayor.mayor@capetown.gov.za, Marga Haywood, Jean-Pierre Smith, Belinda Walker, Marius Coetsee, Gabriel Fagan
Taki
Thanks to you and Marius for the time afforded CBRRA this morning.
The points raised at the meeting are noted here, with some per orbiter comments:
1. It was agreed that the illegal manipulation of the sidewalk levels along the Medburn Rd must be removed and the sidewalk returned to the original condition that allows pedestrian traffic. The approved plan shows a 1.5m grassed walking surface, so it is quite incredible that the Planning Dept (PD) didn't insist that it be built correctly. Of course, the real truth is that if the (up to) 2m of fill is removed from the public sidewalk, the illegal height of the boundary retaining wall will be revealed. The plans should not have been approved on this aspect alone. It follows then that the levels behind the boundary wall will also have to be reduced to comply with the Zoning Scheme, which will ultimately result in the actual 3 habitable storeys not complying with the s98 height restriction. Or else, the contentious basement will have to be abandoned to allow for stepped earth platforms to achieve the required level around the building. And then the development will not have enough parking to make it legal. The sidewalk manipulation is along the entire length of the boundary retaining wall other than at the pedestrian entrance.
2. The parking area retaining wall is approximately 5m in height. As it defines the difference in height between between two levels it is subject to the provisions of s11 herequoted from the Zoning Scheme:
THE INSERTION OF THE FOLLOWING NEW SECTION AFTER CHAPTER I, SECTION 10 – 18 MAY 2007:
Section 11: Raising of ground level
Any unsupported earth banks, soil retaining structure, column, suspended floor or any other device which exceeds 2,1m in height or enables a ground floor or platform to be more than 2,1m above existing ground level shall require the Council’s consent. Where a series or number of such structures or devices are used to achieve a raised floor or platform, these shall require the Council’s consent where the cumulative height of these structures or devices exceeds 2,1m when measured horizontally over a distance of 3 m or less.
Clearly, this wall is totally illegal. Before the PD aver that the levels were substantially reduced to accommodate the parking area, the CBRRA has photographic evidence of the original ground levels, which clearly show very little excavation to the parking area.
3. With reference to s11 above, it was quite clear from the inspection of the Medburn Rd section of the boundary wall that there are two defining structures that assist in retaining earth (or creating a platform over the basement), being the boundary wall and the basement wall. These two walls are about 1.5m apart and therefore do not comply with the Scheme. This is repeated at other parts of the boundary wall.
4. The PD's dismissal of any of the features (2 swimming pools, a pond, reinforced concrete recreation terraces, massively wide entrance staircases, paved parking area for about twenty vehicles and the sub-station) constituting "built upon" in terms of the Title Deed conditions is simply disingenuous. For the PD to further add that they were unsure why the substation was there, after approving the plans depicting it, merely paints them in their true colours.
5. Ossie Gonsalves conceded that there should be at least 1m of earth fill over the basement in order for it to comply as "underground". He further had to concede that the approved plans show less than this. And the actual as built situation is in the region of 500mm. Another complete mockery of the regulations by the PD.
As it is clear that the PD are determined to preserve their approval of this building no matter how many irregularities and illegalities are pointed out to them (and have been over the past 18 months), it is up to the elected representatives of the people of Camps Bay (and, in fact, Cape Town) to stop the tail wagging the dog at City Hall. The CBRRA demands that the politicians involved in planning matters in the Good Hope SC take immediate action to rectify this situation as the PD will simply drag their feet as they have done for almost 2 years in the vain hope that their nefarious handling of this application gets forgotten and a favoured developer makes a huge profit at the expense of the community. The PD have been trying to assist the developer with this illegal development for almost 2 years now. There is a long history of the PD saying that the plans comply and then it is established that they don't. This is either unacceptable incompetence or favouritism that must be investigated.
The DA have done enough talking about the ineptitude and possible corruption on the part of other parties. It is now time that they sort out the PD mess that is under their control.
Cheers
Chris Willemse
CBBRA Planning (Chair)
__________________________________________
10 May 2010
To: Cllr Taki Amira
Chair : Good Hope Sub-council
City of Cape Town
cc: Ossie Gonsalves, Gavin van Schalkwyk, Gabriel Fagan, CBRRA ManCo
Hi Taki
Thanks for the response and, again, we wish you a speedy and full recovery.
The Crystal situation is extremely urgent.
As you will recall, Ossie and his team were adamant that the plans were in order on the 11 Feb of this year. To this end, they convinced you of this patent untruth and were hell-bent on approving them "the next day". But even the PD should have realised that those plans did not closely comply with the Zoning Scheme, let alone the restrictive title deed conditions. There exists a deep concern at the degree of premeditation in the actions of the officials concerned.
The CBRRA can hardly be expected to rely on these self same officials to regulate the situation now. The CBRRA anticipated the outcome of this matter weeks ago when it stated that it was clear that the PD would simply approve the plans without any reference to the affected parties and then sit tight and dare the community, in the words of Fiona Ogle (at our Feb meeting), to "sue us (the City) if you like".
The CBRRA requests that you meet with it on the site at your earliest convenience (preferably by Wed) to see first hand how the public sidewalk has been unconstitutionally expropriated by the City for the benefit of the developer. This will be one of a few eye-openers for you.
The CBRRA would suggest that this is not only a planning issue but has also become a political one and requires the input of our elected representatives.
Regards
Chris Willemse
CBRRA Planning (Chair)
__________________________________________
09 May 2010
To: Chris Willemse
CBRRA Planning (Chair)
CC: Ossie Gonsalves; CBRRA ManCo, Gavin van Schalkwyk, Gabriel Fagan
Good morning Chris,
A belated thank you to you and your committee for the good wishes and book during my recent illness, which laid me low with poor eye sight to the extent I had difficulty in reading until the end of the month of April. I then had to play catch up on accumulated work.
Therefore I have not ignored the concerns of CBBRA however as they were very technical in nature and had noted that various officials were included in the address groups, I had hoped that someone from Plans or Building Inspectorate would pick up the thread and respond to the queries.
As you have now directed the enquiry direct to me I will make a point of following this up and get advice from officials as to what is going on.
I had up and until receipt of your letter been assured that all alterations to the buildings were in accordance with approved amended plans. As there re now further issues give me sometime to look into it and communicate with you further on this issue.
Best wishes
Taki Amira
Councillor - City of Cape Town
Chairperson Good Hope Sub Council (16)
Wards 54, 74 & 77
__________________________________________
05 May 2010
To: Cllr Taki Amira; CBRRA ManCo
Chair : Good Hope Sub-council
City of Cape Town
cc: Gavin van Schalkwyk
Dear Cllr Amira
Despite the huge effort by the CBRRA to meaningfully address the numerous problems surrounding the Crystal development in Woodford Ave, Camps Bay, it is understood that the rider plans for this illegal development have been approved by the City, without further reference to the affected parties.
To date, CBRRA has only been informed of this unofficially.
The Mayor, the Executive Director of Planning and your office have studiously refused to answer our many letters directed in this regard.
Clearly, the Planning Department (which also refuses to engage with the affected community) holds absolute power in the City and is unaccountable to the political powers that be and the people it purports to serve.
CBRRA requests that it be allowed to meet with the officials who approved the plans, with CBRRA’S planning expert, to determine how such approval was granted. This must be done as a matter of urgency.
CBRRA also wishes to discuss the circumstances surrounding this application and the manner in which it was dealt with by the City, with the Good Hope Sub-council, the Mayor and the Executive Director of Planning.
Regards
Chris Willemse
CBRRA Planning (Chair)
__________________________________________
11 April 2010
To: Gavin Van Schalkwyk
Cc: Piet Van Zyl, Taki Amira, Gregory September, Ossie Gonsalves, Marga Haywood, Jean-Pierre Smith, Dan Plato
Subject: The Crystal Development, Camps Bay
Hi Gavin
Thank you for your response - none has been received from the planning dept (PD) or any other of the addressees on CBRRA's letter of March 28th. In the absence of Cllr Amira, to whom we wish a speedy recovery, please could this matter be referred to Piet van Zyl as a matter of extreme urgency.
CBRRA yet again raises the issue of the complete lack of tranparency in the PD. Their assessment of these plans has been conducted away from public scrutiny and, to date, extremely unprofessionally and in a totally prejudicial manner to the community.
Ossie Gonsalves seems to have forgotten that, at our last meeting on 11 Feb 2010, he was adamant that the (then) plans were fully compliant and that approval would be granted the next day. Fortunately, Cllr Amira prevailed upon the PD and allowed the CBRRA to view the plans. Even at first glance, it was clear that the plans did not comply with many applicable laws. So forgive the CBRRA if it continues to contend that the latest plans cannot possibly comply or that the PD have "fully addressed" all the issues surrounding this patently illegal building operation.
Besides the obvious clear violation of the "built upon" restriction, and the five in lieu of three “floors”, CBRRA finds it beyond belief that the developer is creating a sloping fill on a public pavement on the western boundary sidewalk in an effort to hide illegal wall heights. It needs to be confirmed that the City are aware of this and that an immediate order to restore the sidewalk is issued tho the developer, with the obvious implications for the heights of walls on the boundary.
The basement roof slab on the northern portion of the site is approximately 650mm lower than the finished floor level of the ground floor of the building - which means that only about 500mm of soil can be placed on that roof. It is a preposterous contention that by dumping a bit of fill on a roof slab that it becomes "underground", especially when it is clearly higher than the existing finished ground level as defined in the Zoning Scheme. The original plans, and the the amended plans CBRRA viewed in Feb, indicated a 1m fill between the basement and the underside of the ground floor of the building.
There are many other problems regarding this development, which are well-documented, none of which have been satisfactorily answered by the PD's officials and its legal advisers.
In any event, a considerable amount of demolition of illegal work (built whilst the PD looked on) has occurred since the last meeting without CBBRA being informed of the nature thereof.
After these alterations, CBRRA is still of the opinion that the basement is illegal, as is possibly the new structure built in the building setback area on the south west corner of the site adjacent to Woodford Ave.
To summarise CBRRA's concerns:
The current development
CBRRA also request the attendance of Cllrs Amira (if available), Smith and Haywood and Mr Gonsalves at this meeting.
CBRRA will also contact the Mayor Plato, as he did express a personal interest in such matters during his roadshow.
Regards
Chris Willemse
CBRRA Planning (Chair)
__________________________________________
From: Gavin Van Schalkwyk
To: Chris Willemse Cc: Gregory September; Jaco Theron; Ossie Gonsalves
Sent: Thursday, April 08, 2010 5:36 PM
Subject: FW: The Crystal Development, Camps Bay
Dear Mr Willemse
I am not sure whether you have received feedback to your attached letter to Councillor Amira. Councillor Amira has been hospitalised and may not have been in a position to forward a response to you.
Please see communication between the District Manager to Cllr Amira.
Yours truly
Gavin van Schalkwyk
Manager: Support Services
Strategic Support
Office of The Executive Director
Strategy and Planning
__________________________________________
From: Ossie Gonsalves
Sent: 29 March 2010 09:20 AM
To: Taki Amira; Stephen John Wilkinson; Marius Lourens; Fiona Ogle
Cc: Jaco Theron; Jean-Pierre Smith; Marga Haywood; Gregory September; Jaco Theron
Subject: RE: The Crystal Development, Camps Bay
Dear Clr Amira,
Since we last met, the rider building plans for The Crystal needed to be amended a few times due to our (and the CBRRA's) concerns regarding the basement encroaching above ground the and boundary wall being too high. This has involved a series of meetings with the architects/developer on site and in our office in order that all these concerns, as also raised in the attached letter from te CBRRA, are fully addressed.
These amendments, which involve the demolition of certain boundary walls and parts of the basement and the relocation of the entrance, are in progress on site.
The further amended rider plans were returned last week and a report is in the process of being compiled by Marius Lourens, the City's BCO, in order that the plan is recommended for approval.
The rider plan will therefore be approved this week, if all the issues raised have been addressed and the plan is deemed to be in accordance with all applicable laws.
I have asked the building inspector, Stephen Wilkinson to investigate the issue of working on Sundays and the loose sand blowing onto the neighbour's property, which he will be following up today on.
I will also be seeking advice from our Legal Advisor on responding to the attached letter, especially with regard to the press releases involving the 'last two' court cases referred to in the letter.
Regards
Ossie Gonsalves
District Manager - Table Bay District
Planning & Building Development Management
__________________________________________
26 MARCH 2010
Cllr. D. Amira (Chair : Good Hope Subcouncil, City of Cape Town)
Dear Cllr Amira,
THE CRYSTAL DEVELOPMENT AND THE HARRISON CASE, CAMPS BAY
It is now many weeks since we met with you in respect of The Crystal. The CBRRA responded immediately to the purported compliance of the plans shown to it at the meeting of 12th February 2010 (the following day). It is clear that the City's Planning Dept (PD) must agree with our assessment that the plans still do not comply with all applicable law, otherwise it would have approved the plans as it said it would on the 15th February 2010. The CBRRA notes your referring the answering of our observations in respect of The Crystal plans to Ossie Gonsalves, of the PD.
No response has been forthcoming from him and the building continues to rush towards completion. This building cannot be certified as being complete by the City until all illegal work has been rectified and you have passed the plans.
Since that date we are told of City officials’ visits to site, the erection of a (further illegal?) structure on the southeast corner in the setback line (for unknown use), the reduction in heights of completed isolated concrete screen walls and slabs on the western façade (so something must have been illegally constructed).
CBRRA finds this ongoing lack of transparency on the City’s behalf unacceptable and inexplicable. Yet again CBRRA is not being communicated with and planning decisions are being made and acted upon behind closed doors. CBRRA is also informed that there will be filling along the front of the isolated structural concrete walls all along the western Woodford Road boundary to somehow “legitimise” these walls and the basement.
While the City may consider this an acceptable operation to a height not exceeding 2.1m vertically, CBRRA hereby respectfully points out that this intended filling cannot be placed on Council property over the present unmade Council-owned pavement width adjacent to the road. This is currently being done and must be stopped.
While the cutting down of the isolated screen walls on the western elevation is correct and is to be welcomed, CBRRA again points out that the act of this height reduction simply exposes the illegal façade of the basement structure behind. The PD is of the opinion that the filling behind the reduced isolated screen walls can be placed with a sloping top surface up to the roof of the illegal basement behind, thus legalising it.
This is completely incorrect, as the definition of the critical amendments will show.
The 3m distance between the 2.1m level adjustments MUST be horizontal and not raking as the PD contends. Your Environmental Department disagrees with the PD in this respect.
This is where the City has got itself into an impossible dilemma in this matter and CBRRA would like to be told what is going to be done to properly legalise the structure and why the Contractor has been allowed to practically complete the whole project in the year since the rider plans were submitted and not passed to this date.
The CBRRA refers you to National Building Regulations A25 and once again requests that the City act within the legal parameters of the law.
You reported at your recent press release meeting that CBRRA has lost the Supreme Court of Appeal case in the Harrison matter.
Whereas this may be true, we bring the following points to your attention:
• The last two court cases in this matter have both completely ignored the whole issue on which the Cape High Court ruled in our favour in the first Harrison case in respect of from where heights of Camps Bay buildings must be measured (i.e. existing finished ground level – i.e. before raising. So, in effect, CBRRA did not “lose” this contention and this cannot be used as an argument by the City in the Crystal project or be used in future for now. (See below).
• The subsequent critical amendments redefinition of “ground Level”, to which your Senior Counsel refers, resulted directly from this first Harrison court case in which Ms Acting Justice Meer supported CBRRA’s definition of ground level as above, which definition currently is still valid to this day.
• It is important for the City to be aware that the CBRRA has submitted a petition to the Constitutional Court in the Harrison matter, appealing against the last judgement and has issued a press release as set out below.
• In the meantime, the inexplicable lack of communication from your PD officials in respect of the unpassed plans for the Crystal continues to mystify us and we again request another meeting to clarify matters on this project which, in CBRRA’s opinion, continues to be entirely illegal consequent upon the basement having been raised and “forced “ by isolated screen retaining walls exceeding legal heights, the structure having five not three floors contrary to the title deeds, the report of John Van Der Spuy’s proving that it has derogated the values of adjacent affected properties, the west facades being in excess of 10metres above natural existing ground level and the contravention of the “built upon” title deed restriction.
• The CBRRA hereby registers its disagreement with the legal responses produced by the City in response to Adv D. Irish’s and Mr J. van der Spuys’s opinions.
• It is obvious that we are not getting the required responses from the PD and now request that we meet with you and the senior officials of the PD in order to achieve progress in this matter and attempt to finalise this regrettable state of affairs.
Lastly, the Crystal Developers are working loudly on demolition and concreting work on Sundays, which is illegal regardless of the work being done. They are also not keeping the sand on their site from blowing over adjacent properties which is highly inconveniencing adjacent affected neighbours.
Please instruct your Building Inspector to inform them of the above illegality and forbid them from so doing in the future and instruct them to control the movement of sand.
Chris Willemse
Chairperson: Planning Subcommittee
CBRRA
Cell 0836536363
Email cwpm@intekom.co.za
cc Mayor D. Plato, Cllrs. M. Haywood, J-P. Smith, Messrs. P. van Zyl, J Theron, O. Gonzalves, G.Setember and Ms F. Ogle
Attached:
CBRRA PRESS RELEASE 22 March 2010 Supreme Court of Appeal Ruling in the Harrison Matter
Your reluctance to get involved in this controversial matter, despite having been copied in on all correspondence over the many months that it has been raging, is noted with the extreme concern that it deserves. It is not only your duty but actually your job as Exec Director of Planning, to rein in the officials of your department who seem hell-bent on allowing a clearly illegal building to be erected in Camps Bay.
Your officials have now issued certificates of occupation whilst an order to comply with approved plans exists for a critical aspect of the building. And please ignore the bleat that you will receive from those officials that this is just a little technical matter. It isn't. There is a boundary wall exceeding 3.5m in places that is hiding an illegal basement - which will render the entire building illegal. Refer to BCO Lourens who confirmed this at a recent meeting with Cllrs Smith and Amira, City officials and the CBRRA.
CBRRA demands an urgent meeting with you to discuss this and bring legality back to your planning approval process. This especially in the light of the latest development which is that CBRRA has reliably learnt that the need to comply with the approved plans has apparantly been put on hold by the City PD and developer.
CBRRA trusts that Cllr Nieuwoudt, who has been copied in on this e-mail, grasps the seriousness of this situation - both legally and politically.
Regards
Chris Willemse
CBRRA:Planning
Your intervention is now critically required.
Subsequent to the above letter being sent, the Council has instructed the Developer to keep the illegal fill in place and create a pavement next to the kerb at the bottom of the fill. At some places, this new pavement is about 500 mm wide!
The Councils attempts to circumvent their own regulations continues unabated, and, in the CBRRA’s opinion, still illegally !
__________________________________________
29 June 2010
To: Piet van Zyl
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Ossie Gonsalves, Cheryl Walters CBRRA ManCo, Gabriel Fagan, Gavin Van Schalkwyk
Dear Mr van Zyl
Your failure to respond as per your attached undertaking is of grave concern.
CBRRA trusts that your meeting with the GCTCA is not going to be used as an excuse to duck the extremely serious implications of your officials' actions in this specific matter.
CBRRA expects your response by close of business on Wednesday, June 30.
In the alternative, it will be assumed that the legal provisions of the National Building Regulations and Standards Act are not the concern of your department and CBRRA will have to seek recourse with whatever agencies that are prepared to ensure that the law of the land is enforced.
It is noted, with the contempt it deserves, that the developer has provided a notional "sidewalk" of less than half a metre wide and now has an impossibly banked section of earth, that will not withstand the elements, concealing the illegally built boundary retaining walls. All of the above are illegal and in any event, not as per the approved plan. Which officials have sanctioned this clear violation of the law, or are, at least, failing to enforce the law? The community demands an answer.
Regards
Chris Willemse
Chair: CBRRA Planning
__________________________________________
23 June 2010
To: Piet van Zyl
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Ossie Gonsalves, Cheryl Walters CBRRA ManCo, Gabriel Fagan, Gavin Van Schalkwyk
Dear Mr van Zyl
Thank you for the response.
If CBRRA may respectfully guide your attention, then it is to the fact that the western retaining wall simply has not been built according to the approved plan - by over 2m in height in places. The illegal fill on the sidewalk requires no further consideration - it must just be removed.
Even Ossie Gonsalves, in a long telephonic discussion on Friday afternoon, had to concede this point. Apparently, the developer will only remove the illegal sidewalk fill if the PD guarantees that this will end the matter and that all other illegalities can remain. The fact that the PD seem to be intent on considering this option is quite startling to this community.
As CBRRA has always contended, there is much to investigate in this flawed planning approval - but if the developer is not even forced to comply with the approved plans, then it is a criminal investigation that is required.
CBRRA awaits your response with interest.
Regards
Chris Willemse
Chair:CBRRA Planning
__________________________________________
20 June 2010
From: Piet van Zyl
Date: 21 June 2010 7:35:43 AM
To: Chris Willemse
Cc: Marian Nieuwoudt, Taki Amira, Jean-Pierre Smith, Ossie Gonsalves, Cheryl Walters, CBRRRA Manco, Gabriel Fagan, Gavin Van Schalkwyk
Subject: The Crystal, Woodford Ave, Camps Bay
Dear Mr Willemse
Your subjoined e-mail refers. I am still in the process of investigating the matter and will revert to you with my response during the course of this week.
Regards
Piet van Zyl
EXECUTIVE DIRECTOR : STRATEGY & PLANNING
CITY OF CAPE TOWN
__________________________________________
13 June 2010
To Piet.VanZyl@capetown.gov.za
cc: Ossie Gonsalves, Demetri Amira, Jean-Pierre Smith, lCBRRA ManCo, Marian Nieuwoudt, Gavin van Schalkwyk, Gabriel Fagan
Subject: The Crystal, Woodford Ave, Camps Bay
Dear Mr van Zyl
Your reluctance to get involved in this controversial matter, despite having been copied in on all correspondence over the many months that it has been raging, is noted with the extreme concern that it deserves.
It is not only your duty but actually your job as Exec Director of Planning, to rein in the officials of your department who seem hell-bent on allowing a clearly illegal building to be erected in Camps Bay.
Your officials have now issued certificates of occupation whilst an order to comply with approved plans exists for a critical aspect of the building. And please ignore the bleat that you will receive from those officials that this is just a little technical matter. It isn't. There is a boundary wall exceeding 3.5m in places that is hiding an illegal basement - which will render the entire building illegal. Refer to BCO Lourens who confirmed this at a recent meeting with Cllrs Smith and Amira, City officials and the CBRRA.
CBRRA demands an urgent meeting with you to discuss this and bring legality back to your planning approval process. This especially in the light of the latest development which is that CBRRA has reliably learnt that the need to comply with the approved plans has apparantly been put on hold by the City PD and developer.
CBRRA trusts that Cllr Nieuwoudt, who has been copied in on this e-mail, grasps the seriousness of this situation - both legally and politically.
Regards
Chris Willemse
CBRRA:Planning
__________________________________________
11 June 2010
To Cllr Taki Amira,
Chair : Good Hope Sub-council
cc: Ossie Gonsalvees, Kenny Lewis, Jean-Pierre Smith, Johan de Beer, Chris Willemse, ohn Powell, Keith Angelo Hartnick
Subject: The Crystal Building: Woodford Avenue, Camps Bay
Dear Cllr Amira and Mr Gonsalves,
I inspected the site yesterday (10 June) and can comment as follows:
1. City Parks has not/never been consulted/contacted regarding this development on erf 2352 as per the attached
2. The embankments along Medburn Road and Woodford Avenue are extremely steep (I estimate that they are 1:1,5) and establishment of vegetation on them is going to be problematic as irrigation will run-off and cause erosion
3. The area on the corner is relatively level and would pose no problem
4. No maintenance agreement/contract with City Parks has been discussed
5. I have seen no landscape plan and cannot comment on detail plant plan if having been provided
Kind regards,
David Curran
District Manager: Operations - Northern District
Tel. 021 550 7617 (Office)
Cell. 084 629 6965
Fax. 021 550 1063
PS – I apologies for the late response and the new mail. My system crashed and I have lost ALL info between 1 June and 7 June
__________________________________________
To Cllr Taki Amira, JP Smith
Chair : Good Hope Sub-council
City of Cape Town
cc: CBRRA ManCo, mayor.mayor@capetown.gov.za, Marga Haywood, Jean-Pierre Smith, Belinda Walker, Marius Coetsee, Gabriel Fagan, Piet van Zyl, Ossie Gonsalves
6 June 2010
Hi JP & Taki
A special thanks to JP for arranging Friday's meeting at short notice and to Taki for making the time.
CBRRA confirms that the Planning Dept (PD) will instruct the developer to remove the fill along the Medburn Rd sidewalk in compliance with the approved plan, on Monday morning.
Further, the developer must also bring the height of the boundary wall in compliance with the approved plan viz 2.1m above the sidewalk.
CBRRA appreciates the clarity with which you dealt with these deviations from the approved plans. Also that the senior Roads Branch officials, Kenny Lewis and Johan de Beer, confirmed that they had not personally seen the plans prior to the meeting and would not have approved the sidewalk fill in any event.
- What remains of concern is that, as the BCO Marius Lourens so eloquently pointed out to the meeting, without the sidewalk fill, "you are dealing with a non-compliant building"
- Although Ossie Gonsalves was confident that "there is a loop-hole in the system" that will allow the wall to be raised (purportedly to allow a balustrade - a hollow sham given that the steepness of the fill behind this wall makes the area inaccessible to people), two immediate problems present themselves:
- The "balustrade" section of this wall may not be filled against, meaning that the retained earth embankment behind this must be lowered.
- A considerable length of the boundary wall is 2.2m ABOVE the sidewalk fill of 1.6m. In other words, the actual height of the exposed wall will be about 3.8m !! This is not a few millimetres as the PD will have you believe.
- By lowering the wall and fill to comply with the approved plan, the above ground basement that has been so brazenly hidden behind illegal structures will see daylight again. Which is clearly what concerned the BCO.
As stated in the meeting - this clear attempt to evade the Scheme will impact on the actual building itself, whether by rendering the height of the building illegal or partially removing the basement parking and causing non-compliance in that aspect.
As has occurred in the past with this development, the PD will no doubt simply issue occupation certificates to bolster the (now precarious) position of the developer that they have chosen to ally themselves with. The CBRRA is relying on the political will of the City to not allow this travesty of justice. It is common cause that buildings must conform with the planning approval granted before such certificates may be issued. The issue of the filled sidewalks and the extremely prejudicial consequences thereof to the entire project must be resolved first. Clearly, if even by building in conformance with the approved plans, compliance with the Scheme cannot be achieved, then new rider plans must be called for and any further work on this development ceased, until such time as a legal situation can be obtained. Otherwise, demolition must be ordered.
Cheers
Chris Willemse
CBBRA Planning (Chair)
__________________________________________
24 May 2010
To Cllr Taki Amira,
Chair : Good Hope Sub-council
City of Cape Town
cc: CBRRA ManCo, mayor.mayor@capetown.gov.za, Marga Haywood, Jean-Pierre Smith, Belinda Walker, Marius Coetsee, Gabriel Fagan
Taki
Thanks to you and Marius for the time afforded CBRRA this morning.
The points raised at the meeting are noted here, with some per orbiter comments:
1. It was agreed that the illegal manipulation of the sidewalk levels along the Medburn Rd must be removed and the sidewalk returned to the original condition that allows pedestrian traffic. The approved plan shows a 1.5m grassed walking surface, so it is quite incredible that the Planning Dept (PD) didn't insist that it be built correctly. Of course, the real truth is that if the (up to) 2m of fill is removed from the public sidewalk, the illegal height of the boundary retaining wall will be revealed. The plans should not have been approved on this aspect alone. It follows then that the levels behind the boundary wall will also have to be reduced to comply with the Zoning Scheme, which will ultimately result in the actual 3 habitable storeys not complying with the s98 height restriction. Or else, the contentious basement will have to be abandoned to allow for stepped earth platforms to achieve the required level around the building. And then the development will not have enough parking to make it legal. The sidewalk manipulation is along the entire length of the boundary retaining wall other than at the pedestrian entrance.
2. The parking area retaining wall is approximately 5m in height. As it defines the difference in height between between two levels it is subject to the provisions of s11 herequoted from the Zoning Scheme:
THE INSERTION OF THE FOLLOWING NEW SECTION AFTER CHAPTER I, SECTION 10 – 18 MAY 2007:
Section 11: Raising of ground level
Any unsupported earth banks, soil retaining structure, column, suspended floor or any other device which exceeds 2,1m in height or enables a ground floor or platform to be more than 2,1m above existing ground level shall require the Council’s consent. Where a series or number of such structures or devices are used to achieve a raised floor or platform, these shall require the Council’s consent where the cumulative height of these structures or devices exceeds 2,1m when measured horizontally over a distance of 3 m or less.
Clearly, this wall is totally illegal. Before the PD aver that the levels were substantially reduced to accommodate the parking area, the CBRRA has photographic evidence of the original ground levels, which clearly show very little excavation to the parking area.
3. With reference to s11 above, it was quite clear from the inspection of the Medburn Rd section of the boundary wall that there are two defining structures that assist in retaining earth (or creating a platform over the basement), being the boundary wall and the basement wall. These two walls are about 1.5m apart and therefore do not comply with the Scheme. This is repeated at other parts of the boundary wall.
4. The PD's dismissal of any of the features (2 swimming pools, a pond, reinforced concrete recreation terraces, massively wide entrance staircases, paved parking area for about twenty vehicles and the sub-station) constituting "built upon" in terms of the Title Deed conditions is simply disingenuous. For the PD to further add that they were unsure why the substation was there, after approving the plans depicting it, merely paints them in their true colours.
5. Ossie Gonsalves conceded that there should be at least 1m of earth fill over the basement in order for it to comply as "underground". He further had to concede that the approved plans show less than this. And the actual as built situation is in the region of 500mm. Another complete mockery of the regulations by the PD.
As it is clear that the PD are determined to preserve their approval of this building no matter how many irregularities and illegalities are pointed out to them (and have been over the past 18 months), it is up to the elected representatives of the people of Camps Bay (and, in fact, Cape Town) to stop the tail wagging the dog at City Hall. The CBRRA demands that the politicians involved in planning matters in the Good Hope SC take immediate action to rectify this situation as the PD will simply drag their feet as they have done for almost 2 years in the vain hope that their nefarious handling of this application gets forgotten and a favoured developer makes a huge profit at the expense of the community. The PD have been trying to assist the developer with this illegal development for almost 2 years now. There is a long history of the PD saying that the plans comply and then it is established that they don't. This is either unacceptable incompetence or favouritism that must be investigated.
The DA have done enough talking about the ineptitude and possible corruption on the part of other parties. It is now time that they sort out the PD mess that is under their control.
Cheers
Chris Willemse
CBBRA Planning (Chair)
__________________________________________
10 May 2010
To: Cllr Taki Amira
Chair : Good Hope Sub-council
City of Cape Town
cc: Ossie Gonsalves, Gavin van Schalkwyk, Gabriel Fagan, CBRRA ManCo
Hi Taki
Thanks for the response and, again, we wish you a speedy and full recovery.
The Crystal situation is extremely urgent.
As you will recall, Ossie and his team were adamant that the plans were in order on the 11 Feb of this year. To this end, they convinced you of this patent untruth and were hell-bent on approving them "the next day". But even the PD should have realised that those plans did not closely comply with the Zoning Scheme, let alone the restrictive title deed conditions. There exists a deep concern at the degree of premeditation in the actions of the officials concerned.
The CBRRA can hardly be expected to rely on these self same officials to regulate the situation now. The CBRRA anticipated the outcome of this matter weeks ago when it stated that it was clear that the PD would simply approve the plans without any reference to the affected parties and then sit tight and dare the community, in the words of Fiona Ogle (at our Feb meeting), to "sue us (the City) if you like".
The CBRRA requests that you meet with it on the site at your earliest convenience (preferably by Wed) to see first hand how the public sidewalk has been unconstitutionally expropriated by the City for the benefit of the developer. This will be one of a few eye-openers for you.
The CBRRA would suggest that this is not only a planning issue but has also become a political one and requires the input of our elected representatives.
Regards
Chris Willemse
CBRRA Planning (Chair)
__________________________________________
09 May 2010
To: Chris Willemse
CBRRA Planning (Chair)
CC: Ossie Gonsalves; CBRRA ManCo, Gavin van Schalkwyk, Gabriel Fagan
Good morning Chris,
A belated thank you to you and your committee for the good wishes and book during my recent illness, which laid me low with poor eye sight to the extent I had difficulty in reading until the end of the month of April. I then had to play catch up on accumulated work.
Therefore I have not ignored the concerns of CBBRA however as they were very technical in nature and had noted that various officials were included in the address groups, I had hoped that someone from Plans or Building Inspectorate would pick up the thread and respond to the queries.
As you have now directed the enquiry direct to me I will make a point of following this up and get advice from officials as to what is going on.
I had up and until receipt of your letter been assured that all alterations to the buildings were in accordance with approved amended plans. As there re now further issues give me sometime to look into it and communicate with you further on this issue.
Best wishes
Taki Amira
Councillor - City of Cape Town
Chairperson Good Hope Sub Council (16)
Wards 54, 74 & 77
__________________________________________
05 May 2010
To: Cllr Taki Amira; CBRRA ManCo
Chair : Good Hope Sub-council
City of Cape Town
cc: Gavin van Schalkwyk
Dear Cllr Amira
Despite the huge effort by the CBRRA to meaningfully address the numerous problems surrounding the Crystal development in Woodford Ave, Camps Bay, it is understood that the rider plans for this illegal development have been approved by the City, without further reference to the affected parties.
To date, CBRRA has only been informed of this unofficially.
The Mayor, the Executive Director of Planning and your office have studiously refused to answer our many letters directed in this regard.
Clearly, the Planning Department (which also refuses to engage with the affected community) holds absolute power in the City and is unaccountable to the political powers that be and the people it purports to serve.
CBRRA requests that it be allowed to meet with the officials who approved the plans, with CBRRA’S planning expert, to determine how such approval was granted. This must be done as a matter of urgency.
CBRRA also wishes to discuss the circumstances surrounding this application and the manner in which it was dealt with by the City, with the Good Hope Sub-council, the Mayor and the Executive Director of Planning.
Regards
Chris Willemse
CBRRA Planning (Chair)
__________________________________________
11 April 2010
To: Gavin Van Schalkwyk
Cc: Piet Van Zyl, Taki Amira, Gregory September, Ossie Gonsalves, Marga Haywood, Jean-Pierre Smith, Dan Plato
Subject: The Crystal Development, Camps Bay
Hi Gavin
Thank you for your response - none has been received from the planning dept (PD) or any other of the addressees on CBRRA's letter of March 28th. In the absence of Cllr Amira, to whom we wish a speedy recovery, please could this matter be referred to Piet van Zyl as a matter of extreme urgency.
CBRRA yet again raises the issue of the complete lack of tranparency in the PD. Their assessment of these plans has been conducted away from public scrutiny and, to date, extremely unprofessionally and in a totally prejudicial manner to the community.
Ossie Gonsalves seems to have forgotten that, at our last meeting on 11 Feb 2010, he was adamant that the (then) plans were fully compliant and that approval would be granted the next day. Fortunately, Cllr Amira prevailed upon the PD and allowed the CBRRA to view the plans. Even at first glance, it was clear that the plans did not comply with many applicable laws. So forgive the CBRRA if it continues to contend that the latest plans cannot possibly comply or that the PD have "fully addressed" all the issues surrounding this patently illegal building operation.
Besides the obvious clear violation of the "built upon" restriction, and the five in lieu of three “floors”, CBRRA finds it beyond belief that the developer is creating a sloping fill on a public pavement on the western boundary sidewalk in an effort to hide illegal wall heights. It needs to be confirmed that the City are aware of this and that an immediate order to restore the sidewalk is issued tho the developer, with the obvious implications for the heights of walls on the boundary.
The basement roof slab on the northern portion of the site is approximately 650mm lower than the finished floor level of the ground floor of the building - which means that only about 500mm of soil can be placed on that roof. It is a preposterous contention that by dumping a bit of fill on a roof slab that it becomes "underground", especially when it is clearly higher than the existing finished ground level as defined in the Zoning Scheme. The original plans, and the the amended plans CBRRA viewed in Feb, indicated a 1m fill between the basement and the underside of the ground floor of the building.
There are many other problems regarding this development, which are well-documented, none of which have been satisfactorily answered by the PD's officials and its legal advisers.
In any event, a considerable amount of demolition of illegal work (built whilst the PD looked on) has occurred since the last meeting without CBBRA being informed of the nature thereof.
After these alterations, CBRRA is still of the opinion that the basement is illegal, as is possibly the new structure built in the building setback area on the south west corner of the site adjacent to Woodford Ave.
To summarise CBRRA's concerns:
The current development
- exceeds the maximum built-upon area of 25% stipulated in the Title Deed conditions
- has 5 floors instead of the 3 floors as permitted by the Title Deed conditions
- exceeds the height restriction as per s98 of the Zoning Scheme
- relies on a complete mis-application of Amendment 11 of the Zoning Scheme in that ground levels raised by 2.1m must continue horizontally for 3m before any further raising of the ground may occur.
- contains a basement that is clearly out of the ground
- is placing huge loads of fill on the public pavement to conceal the height of the boundary walls. This is not only illegal from a planning point of view but forces pedestrians to walk on a busy roadway.
- is being built without proper planning authority in flagrant disregard of the law (A25 of the NBR) which states that no building operation may proceed without such authority. The authority granted by the original approved plans has long been exceeded.
- is clearly in violation of s7 of the NBR
CBRRA also request the attendance of Cllrs Amira (if available), Smith and Haywood and Mr Gonsalves at this meeting.
CBRRA will also contact the Mayor Plato, as he did express a personal interest in such matters during his roadshow.
Regards
Chris Willemse
CBRRA Planning (Chair)
__________________________________________
From: Gavin Van Schalkwyk
To: Chris Willemse Cc: Gregory September; Jaco Theron; Ossie Gonsalves
Sent: Thursday, April 08, 2010 5:36 PM
Subject: FW: The Crystal Development, Camps Bay
Dear Mr Willemse
I am not sure whether you have received feedback to your attached letter to Councillor Amira. Councillor Amira has been hospitalised and may not have been in a position to forward a response to you.
Please see communication between the District Manager to Cllr Amira.
Yours truly
Gavin van Schalkwyk
Manager: Support Services
Strategic Support
Office of The Executive Director
Strategy and Planning
__________________________________________
From: Ossie Gonsalves
Sent: 29 March 2010 09:20 AM
To: Taki Amira; Stephen John Wilkinson; Marius Lourens; Fiona Ogle
Cc: Jaco Theron; Jean-Pierre Smith; Marga Haywood; Gregory September; Jaco Theron
Subject: RE: The Crystal Development, Camps Bay
Dear Clr Amira,
Since we last met, the rider building plans for The Crystal needed to be amended a few times due to our (and the CBRRA's) concerns regarding the basement encroaching above ground the and boundary wall being too high. This has involved a series of meetings with the architects/developer on site and in our office in order that all these concerns, as also raised in the attached letter from te CBRRA, are fully addressed.
These amendments, which involve the demolition of certain boundary walls and parts of the basement and the relocation of the entrance, are in progress on site.
The further amended rider plans were returned last week and a report is in the process of being compiled by Marius Lourens, the City's BCO, in order that the plan is recommended for approval.
The rider plan will therefore be approved this week, if all the issues raised have been addressed and the plan is deemed to be in accordance with all applicable laws.
I have asked the building inspector, Stephen Wilkinson to investigate the issue of working on Sundays and the loose sand blowing onto the neighbour's property, which he will be following up today on.
I will also be seeking advice from our Legal Advisor on responding to the attached letter, especially with regard to the press releases involving the 'last two' court cases referred to in the letter.
Regards
Ossie Gonsalves
District Manager - Table Bay District
Planning & Building Development Management
__________________________________________
26 MARCH 2010
Cllr. D. Amira (Chair : Good Hope Subcouncil, City of Cape Town)
Dear Cllr Amira,
THE CRYSTAL DEVELOPMENT AND THE HARRISON CASE, CAMPS BAY
It is now many weeks since we met with you in respect of The Crystal. The CBRRA responded immediately to the purported compliance of the plans shown to it at the meeting of 12th February 2010 (the following day). It is clear that the City's Planning Dept (PD) must agree with our assessment that the plans still do not comply with all applicable law, otherwise it would have approved the plans as it said it would on the 15th February 2010. The CBRRA notes your referring the answering of our observations in respect of The Crystal plans to Ossie Gonsalves, of the PD.
No response has been forthcoming from him and the building continues to rush towards completion. This building cannot be certified as being complete by the City until all illegal work has been rectified and you have passed the plans.
Since that date we are told of City officials’ visits to site, the erection of a (further illegal?) structure on the southeast corner in the setback line (for unknown use), the reduction in heights of completed isolated concrete screen walls and slabs on the western façade (so something must have been illegally constructed).
CBRRA finds this ongoing lack of transparency on the City’s behalf unacceptable and inexplicable. Yet again CBRRA is not being communicated with and planning decisions are being made and acted upon behind closed doors. CBRRA is also informed that there will be filling along the front of the isolated structural concrete walls all along the western Woodford Road boundary to somehow “legitimise” these walls and the basement.
While the City may consider this an acceptable operation to a height not exceeding 2.1m vertically, CBRRA hereby respectfully points out that this intended filling cannot be placed on Council property over the present unmade Council-owned pavement width adjacent to the road. This is currently being done and must be stopped.
While the cutting down of the isolated screen walls on the western elevation is correct and is to be welcomed, CBRRA again points out that the act of this height reduction simply exposes the illegal façade of the basement structure behind. The PD is of the opinion that the filling behind the reduced isolated screen walls can be placed with a sloping top surface up to the roof of the illegal basement behind, thus legalising it.
This is completely incorrect, as the definition of the critical amendments will show.
The 3m distance between the 2.1m level adjustments MUST be horizontal and not raking as the PD contends. Your Environmental Department disagrees with the PD in this respect.
This is where the City has got itself into an impossible dilemma in this matter and CBRRA would like to be told what is going to be done to properly legalise the structure and why the Contractor has been allowed to practically complete the whole project in the year since the rider plans were submitted and not passed to this date.
The CBRRA refers you to National Building Regulations A25 and once again requests that the City act within the legal parameters of the law.
You reported at your recent press release meeting that CBRRA has lost the Supreme Court of Appeal case in the Harrison matter.
Whereas this may be true, we bring the following points to your attention:
• The last two court cases in this matter have both completely ignored the whole issue on which the Cape High Court ruled in our favour in the first Harrison case in respect of from where heights of Camps Bay buildings must be measured (i.e. existing finished ground level – i.e. before raising. So, in effect, CBRRA did not “lose” this contention and this cannot be used as an argument by the City in the Crystal project or be used in future for now. (See below).
• The subsequent critical amendments redefinition of “ground Level”, to which your Senior Counsel refers, resulted directly from this first Harrison court case in which Ms Acting Justice Meer supported CBRRA’s definition of ground level as above, which definition currently is still valid to this day.
• It is important for the City to be aware that the CBRRA has submitted a petition to the Constitutional Court in the Harrison matter, appealing against the last judgement and has issued a press release as set out below.
• In the meantime, the inexplicable lack of communication from your PD officials in respect of the unpassed plans for the Crystal continues to mystify us and we again request another meeting to clarify matters on this project which, in CBRRA’s opinion, continues to be entirely illegal consequent upon the basement having been raised and “forced “ by isolated screen retaining walls exceeding legal heights, the structure having five not three floors contrary to the title deeds, the report of John Van Der Spuy’s proving that it has derogated the values of adjacent affected properties, the west facades being in excess of 10metres above natural existing ground level and the contravention of the “built upon” title deed restriction.
• The CBRRA hereby registers its disagreement with the legal responses produced by the City in response to Adv D. Irish’s and Mr J. van der Spuys’s opinions.
• It is obvious that we are not getting the required responses from the PD and now request that we meet with you and the senior officials of the PD in order to achieve progress in this matter and attempt to finalise this regrettable state of affairs.
Lastly, the Crystal Developers are working loudly on demolition and concreting work on Sundays, which is illegal regardless of the work being done. They are also not keeping the sand on their site from blowing over adjacent properties which is highly inconveniencing adjacent affected neighbours.
Please instruct your Building Inspector to inform them of the above illegality and forbid them from so doing in the future and instruct them to control the movement of sand.
Chris Willemse
Chairperson: Planning Subcommittee
CBRRA
Cell 0836536363
Email cwpm@intekom.co.za
cc Mayor D. Plato, Cllrs. M. Haywood, J-P. Smith, Messrs. P. van Zyl, J Theron, O. Gonzalves, G.Setember and Ms F. Ogle
Attached:
CBRRA PRESS RELEASE 22 March 2010 Supreme Court of Appeal Ruling in the Harrison Matter
We have received some Anonymous comments on this issue, but are not publishing unless your name and/or email is attached. Please resend your comments with your details and Mr Willemse will gladly answer your comment. Thank you, CBRRA.
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