‘Dicey’ Hout Bay property development irks conservationists

Taken from iol.co.za/

A change of heart by the provincial authorities has resulted in a developer being allowed to fill in part of the wetland of the Disa River estuary in Hout Bay, without a comprehensive environmental impact assessment or any public participation process.

But the developer has denied that the land in question – part of the Beach Club development on the coastal dunes adjoining Hout Bay beach – is a wetland.

He says the area being filled in lies above the 1-in-50-year floodline as shown on a city map that is part of the 1994 approval of this controversial development.

However, Hout Bay environmentalists say the type of vegetation on the site, and standing water there – despite the very dry summer, make it indisputably a wetland.

They want the city to explain how the floodline was determined.

The province’s decision and the developer’s subsequent earthmoving activities so angered the Hout Bay & Llandudno Environment Conservation Group that it attempted to obtain an urgent High Court interdict last week to stop the bulldozing.

But it was a highly unusual David and Goliath legal effort.

The group represented itself in court and was up against one of the acknowledged environmental experts at the Cape Bar, advocate Andrew Breitenbach SC. They were unsuccessful, although they did not have costs awarded against them.

On Friday last week, Acting Judge Murray van Heerden rejected its application for an order preventing the Beach Club developer from continuing with any in-filling of the wetland, pending authorisation in terms of national environmental legislation.

Instead, he issued an order by agreement that the developer would not push sand or any other material on to the city-owned portion of the wetland, or on to any part of its Beach Club property shown on the 1994-approved development plan as being below the 50-year flood level.

The respondents were Donald Hemphill and development owner Really Useful Investments 219 (Pty) Ltd, of which Hemphill is a director and shareholder, as well as provincial environment and planning MEC Anton Bredell, who did not oppose the application.

In his founding affidavit, conservation group executive committee member Len Swimmer explained that the provincial Environmental Affairs and Development Planning department had decided, in October 2009, that a full environmental impact assessment would be required for further development of the Beach Club in the wetland area.

However, the department head reversed that decision in February after informal representations by the developer’s attorney.

“The respondents are proceeding with the in-filling of the wetland area with sand and other such-like material. The in-filling is currently in process and has given rise to expressions of outrage and complaint… from various members of the Hout Bay community.”

But in his answering affidavit, Hemphill said no part of the wetland was on the development’s property. It was all city-owned. Also, no work was being done within 100m of the high-water mark.

Before the in-filling had started, a construction phase environmental management plan was prepared and approved by the province.

The conservation group’s application was defective “on a number of grounds” – including that Swimmer was not an attorney admitted to appear before court – and that it was “an abuse of process which ought not to tolerated”, Hemphill said.

“I deny not only that the applicant has any right to the interdict it is seeking, but also that the environment will suffer irreparable harm if the work is to continue. The development is being undertaken lawfully and in an environmentally-responsible manner.”

The province and the city have been asked to comment.

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