From: Chris Willemse
Date: 29 May 2013 2:22:34 PM SAST
To: Ossie Gonsalves
Cc: Barry Varkel, Chrissie Phillips , Rafeeq Fischer, Armien Samuels, Peter Henshall-Howard
Subject: Re: 12 Victoria Drive Camps Bay - Rider Plan SubmissionHi Ossie
Thanks for taking my call this morning.
Insofar as Erf 58 is concerned, please could you confirm over which specific area of the works the cease works is effective.
Clearly, the decision by Bradbury to withdraw the most recent plans is merely to obviate a bit of inconvenient public scrutiny.
However, the Feb '13 plans, now under consideration, indicate the "as built" situation of the deck over the garage roof - albeit with a "balustrade" purportedly preventing pedestrian access thereto.
Given the withdrawn plans indicating no balustrade and taking the new Zoning Scheme into consideration, CBRRA yet again draws your attention to the provision in both the old and new Schemes that the City must refuse approval for plans that attempt to evade the intention of the Scheme.
As it is now appears that the City will approve any and all plans submitted by this developer, despite clear contraventions and evasions, CBRRA requests that it and the affected neighbours be notified immediately upon the approval of whatever plans are being assessed.
Cheers
Chris Willemse
cnwillemse@gmail.com
0836536363
29 May 2013, Ossie Gonsalves
Hi Chris,
I returned your call last night and will try again this morning.
Please see e-mail below from Steve Long requesting that we continue processing the plans submitted in February 2013, which I showed you.
He is also informing Council that he has now been instructed not to seek approval for the boundary, garden screens and the entrance lobby. He will seek approval at an appropriate time, If his client wishes to build those features later.
Regards
Ossie Gonsalves
District Manager : Table Bay District
Economic, Environmental & Spatial Planning Directorate
Planning and Building Development Management Department
2nd Floor, Media City Building
C/o Hertzog Boulevard and Heerengracht Street, Cape Town
Tel: (021) 400 6443
E-mail: ursolino.gonsalves@capetown.gov.za
From: Steve Long [mailto:freespace.arch@gmail.com]
Sent: 29 May 2013 12:02 AM
To: Ossie Gonsalves
Cc: Stuart Bradbury; Carel Hofmeyr
Subject: 12 Victoria Drive Camps Bay - Rider Plan Submission
Dear Ossie
I confirm that I have been instructed not to seek approval now for the boundary, garden screens and the entrance lobby. If my client wishes to build those features later, he will seek approval at an appropriate time and you are not required now to consider any proposals made in respect of them. I confirm therefore that my client seeks approval now of the rider plans submitted on 27 February 2013 which the neighbours and the CBRRA have already commented on.
I look forward to being informed of your decision. Please let me know if you need anything further from me at this stage.
Yours sincerely
Steve Long
F R E E S P A C E A R C H I T E C T S
e-mail:-freespace.arch@gmail.com
Tel -021 434 5073
From: Chris Willemse
Date: 20 May 2013
To: Ossie Gonsalves
Subject: Fwd: ERF 58 Bakoven
Hi Ossie
With reference to Barry Varkel's notes below, the CBRRA comments as follows:
The latest submission of plans, by your account, now show the illegal intention of this project that we claimed was always present ab initio.
It is sad indeed that the neighbours and community who dutifully pay their rates to the City and therefore are entitled to protection under the law by the City, are once again sacrificed on the alter of greed of developers that appears to be so embraced by the City's planning department.
It is clear that meeting with architect Steve Long will simply perpetuate the myth of negotiation and transparency that has been conjured up by owner Bradbury to date. Long has made himself guilty of fraud in this matter and his feeble attempts to act in a professional manner are dismissed with the contempt that they deserve. He has lied and deceived from the outset of this project and we will not afford him any accreditation by meeting with him. However, we would appreciate meeting with you to view the plans - and please could it be this week.
If the City planners believe that registered servitudes, which they have patently been made aware of, do not constitute any rights to citizens and ratepayers, and can merely be ignored by the authorities, with the consequent real prejudice to affected neighbours, then it is obvious that the "social contract" between the Authority and citizens has been seriously breached by that Authority.
The CBRRA still contends that any alteration to the courtyard and environs constitutes a variation to the original departure application and renders it necessary that the application be advertised anew.
Further, the City has the provision, both in the old and new CTZS's (s6 and s21.1.5 respectively), to refuse planning permission in the event of an evasion of the scheme. The many duplicitous, retrospective planning applications must surely make this project fall into that category.
A serious charge has been made that Bradbury has illegally expropriated City-owned land. It is necessary to survey the Beta Rd boundary wall to test the validity of this allegation. It is surprising that this is not obvious to the City.
Cheers
Chris Willemse
cnwillemse@gmail.com
0836536363
On 17 May 2013, at 5:22 PM, Barry Varkel wrote:
Hi Chris,
Here are the salient points of my conversation with Ossie who called me today at 4.50pm.
1. He wants to set up another meeting with us and Steve Long;
2. There are new plans which have now been submitted.
3. What they want to do is:
3.1 Clad the vibacrete wall on their side.
3.2 Access the garage roof up to the planter. (I said we had said they wanted to do this all along, but they denied it in writing).
3.3 Put up screens around the pool for wind and privacy up to 1.7m - 1.8m.
4. Henshall Howard said that a survey of the street boundary wall is not necessary. Why do we need it?
Ossie said he asked for the survey for clarity reasons.
Ossie said in terms of the new zoning scheme, they can access the garage roof. I said to Ossie that Chris had made the technical point of this then throwing out their whole planning process and they'll have to start again and advertise.
The meeting will be the week after next. Ossie's P.A. will set it up.
I said they're absolute liars. They have already started the pool structure without planning permission which is what they've done all along. Ossie said they don't need plans for this.
I said it's like a witness lying on the witness stand and within the lies there are even more lies. Disgusting really. Ossie seemed to agree.
Kind regards
Barry Varkel
30 April 2013
Mr Ossie Gonsalves
The District Manager
Planning & Building Dev Management
City of Cape Town
Dear Ossie
ERF 58 (12 VICTORIA RD, BAKOVEN) : RIDER PLAN SUBMISSION
Firstly, CBRRA thanks you for your time on Monday 29th instant to view and discuss the abovementioned plans. Thanks also to Juliet Leslie.
CBRRA hereby confirms that it is its legal advice that the amendments to the plans for the courtyard constitute a material alteration to that area and trigger the need for advertisement to the community, given that an existing departure from the CTZS was granted for this area and such departure was granted in terms of letters of no objection from the community. Whatever the City’s assessment of the plans may be, the provisions of PAJA require that this aspect of the plans be subject to a public participation process, as was originally required.
On a technical basis, the existing courtyard was over-excavated to create a greater area and allow for access from the garage, and to disguise this fact, a solitary, lonely, gable has been placed against the wall at the intersection of the house and garage. Not only is this a pathetic attempt to hide the actual illegal height of the wall, it is clear that it is a temporary structure, as it retains nothing.
Further, it has been held by the WC High Court that such devices cannot be used to evade the provisions of the CTZS. The authority for this is the reported judgement of Foxcroft, J in the CBRRA vs Avalon matter (35 Camps Bay Drive). Here the Court found that it was legally and logically incorrect for the City to approve a plan where a created structure could be passed off as ground, even if there had been existing ground in that location previously – and went on to use the analogy of a bridge deck being passed off as representing the level of the valley beneath it.
This was also established in the successful application in the Kloof/Queens Rd matter where the City was a respondent. In both cases the Court ruled that the re-establishment of a sliver of “ground” does not qualify it as a ground level. Therefore, in this case, a departure is required to allow for a further portion of the building to exceed the 6m height restriction, as the applicant has unilaterally, and by his own volition, decided to excavate the courtyard in excess of that legally approved.
Returning to the original point, you agreed that there is at least some deviation from the approval granted in terms of the s98 departure. Notwithstanding any assessment that the City may make, it is clear that the community must at least be invited to comment on the application.
The rider plans indicate a non-trafficable garage roof deck, finished with Balau timber. This clearly needs to be unbundled.
Firstly, this whole area has been constructed without any planning approval and therefore constitutes illegal building works. However, that is an enforcement issue.
It is completely non-believable that a non-trafficable deck would be surfaced in an expensive timber finish. Not only that, but it lacks building maintenance logic to place such a finish over waterproofing, which would, as a consequence, become inaccessible for routine maintenance and repairs. The lack of a weatherstep at the intersection between this deck and the outside patio is also a very clear sign that the ultimate usage of the deck is for pedestrian traffic. Ignoring the duplicity of the planning application, this would then require a departure.
This applicant has illegally deviated from his approved plans on so many occasions (even by his own account) that CBRRA submits that the City has to be bound by s6 of the CTZS covering the evasion of the intent of the Scheme and require that the applicant return to the previously approved system of planting the deck at a lower (stepped) level to the outside patio. Compliance and rectification of the current building works must also be sought prior to the consideration of the plans.
Given that this is a retrospective planning application, it is further advised that this submission be forwarded to the Good Hope Subcouncil for determination. Given the murky history of illegal building works (even as part of this current application) and fraudulent misrepresentation by the applicant (in terms of registered servitudes which he failed to mention in his original application), any use of delegated authority by the City planning officials is likely to be challenged legally at a later stage.
The issue of possible smoke pollution from the recently installed chimney flue will be dealt with by Ms Phillips but it is noted that an owner’s constitutional right to the amenity of clean air on their property cannot be denied by the blind application of the National Building Regulations & Building Standards Act. It is also noted that the Planning Department often ignores the recommendations and requirements of other departments, such as the Environmental Management Branch.
You undertook to ensure that any new plans would indicate that the illegal roof deck is to be omitted. The fact that the applicant “may have a problem” with balustrades on the roof is insufficient comfort to the neighbours and this erroneously approved element must be removed.
The CBRRA also requires that this letter be placed on the file that will be assessed by the Building Control Officer. Please confirm that this will be done.
CBRRA looks forward to any comments that you may have on the aforegoing.
Kind regards
CHRIS WILLEMSE
CHAIRPERSON
19 APRIL 2013
Dear Mr Hofmeyr
Your letter of 05 April 2013, addressed to Mr Ossie Gonsalves has reference.
CBRRA will use your headings with reference to the writer’s e-mail.
Planter – Photo 1 and 2:
This is simply an illegal construction and non-compliant with the approved plan. This should be clear to any legal mind.
In any event, your Client’s opinion of what is reasonable has yet to find acceptability with the community.
Your Client, despite his protestations, continues to build illegally and his instruction to his architect in this regard, is yet another in a long litany of “build now, ask later” retrospective planning applications to which the City acquiesces.
Garage Roof : Photo 3
It is difficult to ascertain if you’re actually taking instruction from suitably qualified building professionals, or merely wandering out of your field of expertise, but the general idea is to force rainwater away from buildings and not into or onto them. Although the area adjoining the roof deck is technically an exterior one, it would be contrary to good building practice to allow water to run from the roof into the “conversation pit” of the ground floor patio. It would be good building practice and correct to build a weather step along this interface.
Of course, if the two areas are to be used as one, as is alleged by the community, then a weather step will become a troublesome “trip” step.
In any event, why has an unapproved timber deck been laid over the entire area? It must have constituted a very expensive alternative to greening as specified on the approved plan and will be bothersome to remove when the waterproofing over the reinforced concrete roof needs to receive attention or maintenance.
Your, and your Client’s, confirmation that the roof deck will remain non-trafficable must be seen in the light of previous fraud, broken promises and self-confessed illegal building work.
Gabion : Photo 4
Ignoring your apparently poisoned position, what is of more concern is your cavalier attitude to the rule of law. Your Client has no planning approval to alter anything relating to the courtyard, which was also the subject to a departure from the Zoning Scheme. What you anticipate or presuppose as regards the neighbours’ attitude to the illegal building work currently being executed with your Client’s approval is simply of no concern. As an officer of the Court, you are obliged to ensure compliance with the law.
Height Departure – Photo 5
Your Client received letters of no objection (from the interested and affected neighbours and the CBRRA) to the departure application for the excess height of the proposed building relative to the finished level of the ground in the courtyard. This formed part and parcel of a private servitutal agreement between the parties that placed certain obligations on your Client. Your Client, having received his advantage from the contract, then continually breached the agreement and committed a fraud against the parties by submitting plans to the City in the first instance that didn’t comply with the terms of the said agreement.
It is unnecessary to identify “substantial changes” to the courtyard (albeit that there are patently many) - any change will trigger a departure application. It’s called transparent governance and exists to head off people like your Client.
General : Unnumbered last paragraph
The CBRRA will not dignify your pure denialism with further comment.
SATELLITE DISH
Your Client will not be exhibiting any good neighbourliness by relocating the satellite dish to a point below the parapet. He will merely be complying with his obligations in terms of an agreement he signed of his own free will, and in exchange for property rights which he hitherto had not enjoyed.
In terms of the said agreement, your Client is hereby instructed to relocate the satellite dish as per the agreement and it is further recorded that a sanction of R1000 per day is being levied against your Client from that date of your confirmation that the offending dish is a breach of the agreement (viz your e-mail of 05 April 2013 hereunder reply) until such time as it is relocated to a position of compliance.
This sanction will be added to those already existing and any further that might arise in the future and which, despite the terms and conditions of the agreement, your Client refuses to pay – even whilst he remains in material breach of contract.
Clearly, this will be the subject of a civil claim that the CBRRA intends launching against your Client.
Regards
CHRIS WILLEMSE
CHAIRPERSON
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