An open letter to CBCRA

City of Cape Town, Cape Town

Dear members of the Camps Bay and Clifton Ratepayers Association (CBCRA),

This week the Western Cape High Court dismissed the application by the CBCRA (and one other) to overturn the City of Cape Town’s approval of the Camps Bay Beach Hotel development.

The Court found no basis for the application, “no reviewable action by the City”, and found the City’s decision to have been “lawful and reasonable”. The Court also ordered the applicants — the CBCRA — to pay the costs of three Counsel. (The full Court judgement is available here, and is recommended reading for those interested).

The City appreciates an open and frank relationship with all ratepayers’ organisations, and particularly appreciates residents who are involved and interested in their communities.

These engagements should be conducted with mutual respect, professionalism, on a truthful basis, and with appreciation of context.

However, in March 2024, the CBCRA distributed a newsletter to residents about this case which went beyond mere criticism, stretching to impugning the integrity and motives of the City’s decision making processes.

The intemperate and inflammatory language used by the leadership of the CBCRA in the newsletter in question, especially when read against the findings made by the High Court, has led to us deciding to take this step to publicly correct the record: The City receives and processes thousands of land use and building applications a month. Our processes have been tried and tested many times, and (as in this case) have overwhelmingly stood up to scrutiny.

Of course there is always the potential for error, and the regulation of development in Cape Town is increasingly a very litigious space.

Nevertheless, our processes have been developed to ensure integrity, community participation, and balance the interests of current residents and those who wish to be future residents in proposed developments.

The City does not “support development at any cost”, as evidenced by the many development applications which we do not support, which decisions are also often litigated.

The City considers each application on its merits, without fear or favour, and processes these in terms of transparent policy and legislation.

Camps Bay and Clifton are amongst the most desirable places to live in all of South Africa, even in the world. It is not unexpected or surprising that there would be great interest in development in this desirable part of the city, and residents should expect that and plan for it.

The Court found no substance to the claims of contempt or malicious delay. The Court did express the view that the constitutional challenge raised by the CBCRA appeared an “afterthought”, was “very disconcerting”, and that this kind of challenge “should not be encouraged”.

In the circumstances, the City intends to fully enforce the judgement and will recover costs in full from the CBCRA and co-applicants, as these are ultimately public funds being expended on unnecessary litigation.

We urge the leadership of the CBCRA to adopt a more temperate and constructive approach in future, and we commit to continuing to work together in the spirit of shared passion for our city.

The CBCRA chairman Chris Willemse responds:

The CBCRA is disappointed by the recent High Court judgement delivered by Ms Justice CMJ Fortuin, which dismissed our case against the ongoing hotel development on the Camps Bay beachfront.

The handing down of the judgement took almost seven months, allowing construction to continue. Most municipalities throughout the country find ratepayer associations to be a nuisance, as they offer the only real oversight to executive performance, or lack thereof.

The CBCRA has successfully held the City accountable for its planning decisions over many a decade, with the effect of protecting Camps Bay from the worst excesses of uncontrolled development.

If the City can destroy ratepayer associations, using public funds to fight against the very people who pay the rates, then the ideal of property ownership will become a dystopian march into the abyss of not knowing when rampant development and a rapacious City will destroy your prime asset with non-conforming development.

Ratepaying citizens will find themselves isolated without ratepayer associations and it is essential that these organisations be fully supported by their communities.

The CBCRA took the matter to Court after any meaningful interaction with the City proved fruitless – and primarily because of the following:

Parking Concerns

The hotel development was initially required to provide 120 off-street parking bays, as per City regulations. Despite community objections, the developer sought to reduce this number to 58.

In August 2021, the Mayor supported our stance, affirming the need for 120 parking bays.

However, in January 2023, we discovered that building plans had been approved with only 49 bays, following a secret meeting between the City and the developer of which the CBCRA was unaware.

The City opposed our court challenge, arguing that the CBCRA and other residents had no standing to challenge the parking bay requirements.

The City offered no cogent reason for this but the High Court sided with it, dismissing our concerns.

Building Height Violations

Camps Bay is protected by an overlay zone that limits building heights to three storeys and facades to 10m. This development approved by the City, exceeds these limits, with five storeys and facades far above the allowable height.

The City justified this by claiming that if the façade includes a small “kink” every 10m, the height limit is satisfied. This interpretation, however, undermines the intent of the overlay zone and sets a dangerous forerunner for future inappropriate planning approval.

Further, the City claimed that it could approve five storeys instead of the 3 allowed because the previous building on the site was at the same height.

However, the previous building’s top floor was illegal (no planning approval) and covered a tiny portion at the rear of the site.

The controversial approval for the new building allows such height over 60% of the entire site.

As there is no precedent allowed in planning law, such rationalisation is irrelevant.

Our concerns that the development would block mountain views and create an unattractive structure on the beachfront were dismissed by the Court, which inexplicably ruled that we lacked standing to challenge the buildings bulk. One only has to stand on the beachfront, in front of this massive edifice, to see the detrimental visual impact.

Loading Bays

The new hotel, a large facility requiring extensive daily deliveries, was approved without the necessary loading bays as required by City planning laws.

When we challenged this in court, the City argued that the CBCRA had no standing to object to the absence of proper loading bays, even claiming that a hotel is not considered a business premises. The court upheld the City’s argument.

Public Representation in Planning Decisions

The CBCRA has long advocated for public representation in municipal planning decisions, a role removed from city councillors by national legislation in 2015. Our current case highlighted the need for such representation. Before going to court, we sought support from the Mayor, who had, at the CBCRA AGM in 2022, indicated he would back our position.

However, once in court, the Mayor opposed us. The City’s resources were overwhelmingly used to support the developer’s case, while the CBCRA was painted as anti-development and unreasonable.

The City’s response that the High Court’s costs order against the CBCRA would be enforced to its full extent was intended as a warning to any ratepayers’ association challenging the City or developers on planning issues that they will be financially punished. Every ratepayer in Cape Town should take note of this abuse of power by the City.

Further, the the City’s call for “positive engagement” with its planning process rings hollow given its disregard for the community’s concerns.

Despite the CBCRA and 94 individual residents submitting well-reasoned objections, all were rejected by City officials and the Municipal Planning Tribunal. Not one comment or objection was upheld.

Moving Forward

The CBCRA remains committed to appealing the High Court’s decision, believing that our rights and those of the community will ultimately be upheld.

The City’s current approach, which prioritises development at the expense of community interests, threatens the value of property ownership. We urge the City to engage meaningfully with its citizens and administer planning decisions which reflect the needs and rights of all stakeholders, not just developers.

We look forward to pursuing this matter further in the Appeals Court, confident that justice will prevail in the end.