About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 6
|
|
City of Cape Town v Really Useful Investments 219 (Pty) Ltd (21106/2014) [2018] ZAWCHC 6; [2018] 2 All SA 65 (WCC) (2 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO:
21106/2014
In
the matter between:
CITY
OF CAPE
TOWN
Applicant
and
REALLY
USEFUL INVESTMENTS 219 (PTY
LTD
Respondent
JUDGMENT
DELIVERED ON FRIDAY 2 FEBRUARY 2018
GAMBLE,
J:
INTRODUCTION
[1]
The picturesque fishing village of Hout
Bay, located beyond the southern slopes of Table Mountain, is
bisected by a perennial stream
called the Hout Bay River,
(colloquially known as the Disa River and hereinafter referred to as
“the river”), which,
when it runs, flows into the
Atlantic Ocean via a mouth located in the middle of the main beach of
the village.
[2]
In
March 2007 the respondent acquired a large tract of land known as
“Hout Bay Beach Club” on a public auction held
pursuant
to the liquidation of the former owner. Originally described as Erf
1530, Hout Bay, the land measures some 4, 8 hectares
in extent and is
located immediately west of the river mouth. To the south the land
borders the beach and to the north lies Princess
Street, a main
arterial route which traverses the Hout Bay valley. To the west of
the respondent’s land is a stretch of beach,
partially covered
with local scrub and fynbos, and beyond that the harbour. Between the
land and the Disa River is an undeveloped
area which, when the river
is in spate, is likely to be flooded. For the sake of convenience I
shall refer to the entirety of Erf
1530, as it was originally known,
as “the property”.
[1]
[3]
In
June 1994 the property was rezoned and subdivided under the authority
of the erstwhile local authority having jurisdiction over
Hout Bay,
viz. the Western Cape Regional Services Council (“the RSC”)
[2]
.
The purpose of the rezoning was to enable the erstwhile owners of the
property to develop it commercially as a secure residential
estate on
the beach. Pursuant to that subdivision the property now comprises 39
individual erven, a number whereof have been developed
through the
construction of luxury dwelling units thereon. Access to the complex
is obtained from Princess Avenue through a security-controlled
entrance and guard-house.
[4]
Photographic evidence placed before the
court suggests that over the years parts of the property were leveled
to create platforms
on which the dwellings were located. In the
process of further developing the property the respondent attempted
to create additional
platforms on which to build more dwelling units.
This included developing the property eastwards towards the river. To
this end,
in March 2011 it began dumping fill material in an area
adjacent to the river, believing that it was entitled to do so by
virtue
of the RSC planning approval. This activity evidently drew the
ire of some local residents who took the issue up with the City and
eventually mounted an urgent court challenge.
[5]
Having
been alerted thereto through this public disquiet, the City’s
officials came to the view that the dumping by the respondent
was
unlawful in that it encroached upon the floodplain of the river.
Consequently, in April 2011 the City issued a compliance notice
in
terms of s10 of its Stormwater Management By-Law of 2005
[3]
,
(‘the stormwater notice”) and in May 2011 it issued a
directive (“the ECA directive”) in terms of s31A
of the
Environment Conservation Act, 73 of 1989 (“the ECA”).
Both instructions by the City envisaged the immediate
removal of fill
material from the floodplain by the respondent.
[6]
Although certain remedial steps were
purportedly taken by the respondent in 2011/2012, the City contended
that these were insufficient
and 2014 it commenced these proceedings
to procure orders compelling the respondent to comply with both the
notice and the ECA
directive. The respondent’s response to the
application as ultimately formulated is essentially three-pronged –
·
it says that it does not have to comply
with the stormwater notice because it is invalid;
·
in any event, it claims that the
notice can be ignored because it has been replaced by the ECA
directive; and
·
finally, it claims that it has complied
fully with the ECA directive, as it claims it falls to be
interpreted.
[7]
The City was represented in these
proceedings by Advs. G.M. Budlender SC and P.S. van Zyl, and the
respondent by Advs. A.M. Breitenbach
SC and A.Erasmus. Argument in
this matter was spread over 3 days (19 and 20 April and 19 September
2017) in light of the court’s
involvement in a protracted
criminal trial and counsels’ commitments in other courts. The
court is indebted to counsel for
their helpful written arguments and
supplementary notes prepared between hearings which have greatly
assisted in the preparation
of this judgment. As will appear later,
the protraction of the matter has in fact led to a refinement of the
arguments on either
side which has sharpened the focus of the issues.
THE
STORMWATER NOTICE
[8]
It is necessary to set out in some detail
the exchange of correspondence between the parties leading up to this
application since
this will elucidate the relevant facts and the
ensuing issues. Firstly, on 5 April 2011 the City’s Director of
Roads and
Stormwater, Mr. Henry du Plessis, issued Mr. Donald
Hemphill of the respondent, with the following notice:
“
NOTICE
OF CONTRAVENTION OF VARIOUS PROVISIONS OF THE CITY OF CAPE TOWN’S
BY-LAW RELATING TO STORMWATER MANAGEMENT ERF 1530
HOUT BAY.
It has been brought to the
attention of this Council that you or persons authorised by you have
contravened the provisions of the
City of Cape Town’s By-law
Relating to Stormwater Management (the “By-law”)
published in Provincial Gazette 6300
of 23 September 2005 in that you
or persons authorised by you without the written permission of this
Council:
1)
Have changed the design or the use
of, or otherwise modified any aspect of the stormwater system which,
alone or in combination
with other existing or potential land uses,
may cause an increase in flood levels or create a potential flood
risk, in contravention
of section 5 (b) of the By-law in that
material has been placed within the 1:100 year floodplain of the Disa
River.
2)
Have undertaken an activity which
may cause an increase in flood levels or create a potential flood
risk, in contravention of section
5(c) of the By-law;
After an inspection of the property
carried out on 5
th
April 2011, the Council now requires
you to complete the following steps within 30 calendar days of the
date of the Serving (sic)
of this Notice on you by a Council Peace
Officer, to the satisfaction of the Council’s Directorate:
Roads and Stormwater
to cease forthwith further placing or dumping of
any material other than stormwater into the floodplain of the Disa
River; to remove
the soil, general rubble and fill that was placed
within the floodplain of the Disa River to a point where the original
ground
level is revealed; to survey and demarcate the 1:100 year
flood line for future management.
You are hereby notified that
failing to comply with the terms of this Notice constitutes an
offence and you will be liable, on conviction,
to a fine.”
[9]
On 15 April 2011, Mr. Gregg Oelofse, the
City’s Head of Environmental Policy and Strategy issued the
following recordal:
“
To whom
it may concern
I, Gregg Oelofse, with the official
position of Head: Environmental Policy and Strategy for the City of
Cape Town, and with the
qualifications of a Master’s degree in
Science in Conservation Biology became aware on the 27
th
March 2011 that the owners of Erf 1530, owned by Really Useful
Investments (Pty) Ltd…. intended to infill an active and
existing wetland as part of their development expansion. On the 28
th
March 2011 I informed the City’s Departments of Planning and
Building Development Management and Stormwater and Catchment
Management of the intent and requested assistance and advice in
determining the legality of the developers’ intent to infill
a
functional and existing wetland.
No response was received from
Planning and Building Development Management, however Stormwater and
Catchment Management requested
further information so that a notice
could be served to (sic) the landowner with regards (sic) the City’s
Stormwater Bylaw.
Myself (sic) and
my colleague Mr. Howard Gold undertook site visits to the location on
the 6
th
,
7
th
and 8
th
of April 2011 where we witnessed the contractor employed by the
landowner actively infilling an existing and functional wetland.
Photographic evidence of the infilling was taken. During these site
visits we noted that within the wetland area no fully serviced
infrastructure as required in the approval letter by the DEADP
[4]
existed. Based on this site visit we engaged Ms. Susan Mosdell of the
City’s legal department to advise on the appropriate
steps
forward to firstly prevent further infilling of the wetland and
secondly to require the rehabilitation of wetland areas where
infilling had taken place.
Further site visits were conducted
by myself on the morning of the 11
th
April 2011 where
ongoing infilling of the wetland was noted. I was informed that the
landowner was served (sic) a notice in terms
of the City’s
Stormwater Bylaw at 11.40 a.m. on the 12
th
April 2011. A
site visit by myself (sic) on the morning of the 13
th
April 2011 confirmed that in spite of this notice active infilling of
the wetland continued. During this site visit I actively
engaged with
the contractor informing him of the fact that a notice had been
served and that ongoing infilling activities were
in conflict with
that notice. While on site the contractor called the landowner (Mr.
Donald Hemphill) with whom I spoke with (sic)
directly on the
telephone and I proceeded to inform the landowner that ongoing
infilling must be halted immediately. Further site
visits by my staff
member Mr. Darryl Colenbrander on the 14
th
and 15
th
of April 2011 indicated that infilling had ceased but no remediation
activities as required by the Stormwater Bylaw had commenced.
I can
confidently and accurately state that extensive infilling of an
active wetland, that at the peak of summer is full of water
[5]
,
has been in-filled by the landowners of Erf 1530 known as “the
Beach Club” and that the areas in-filled were not fully
serviced sites as required. As a result there has been extensive
damage done to a coastal wetland that:
·
Has caused significant environmental
loss
·
Has extended development footprint into
the floodplain
·
Has increased city risk to future flood
events
·
Has significantly compromised the
functioning of an existing wetland
·
Has significantly compromised both
faunal and floral species…”
NOTICE
PRECEDING THE ECA DIRECTIVE
[10]
On 20 April 2011, Mr. Asmal, the Director
of the City’s Environmental Resource Management served the
respondent with a notice
of the City’s intention to issue a
directive under s31A of the ECA, which notice was to the following
effect.
“
NOTICE
OF INTENTION TO ISSUE A SECTION 31A DIRECTIVE IN TERMS OF THE
ENVIRONMENT CONSERVATION ACT, 73 OF 1989 (ECA)
RE: INFILLING INTO THE
FLOODPLAIN OF THE DISA RIVER, ERF 1530 HOUT BAY
RECORDAL
It is recorded that I, Osman Asmal,
in my capacity as Director: Environmental Resource Management, duly
authorized by the City…have
reason to believe that you are
currently performing an activity as a result of which the environment
is or may be seriously damaged,
endangered or detrimentally affected.
You are performing the following
activity on Erf 1530, Hout Bay:
·
Placing or dumping material other than
stormwater into the floodplain of the Disa River, which constitutes a
wetland.
You have further failed to comply
with the Notice of Contravention issued to you by the Roads and
Stormwater Department of the City
and served upon your attorney at
your request on 13 April 2011, which required you, inter alia, to
cease placing or dumping of
any material other than stormwater into
the floodplain of the above river.
As a result of this infilling, the
environment is or may be seriously damaged, endangered or
detrimentally affected, in that it
may cause an increase in flood
levels or create a potential flood risk as the material has been
placed with in the 1:100 year floodplain
of the river. In addition,
there may be a threat to aquatic life in the river. Furthermore,
permanent loss of the wetland may occur.
NOTICE OF INTENTION TO ISSUE A
SECTION 31A DIRECTIVE
Having regard to all of the
above-mentioned factors as well as the environmental principles
contained in the National Environmental
Management Act, 107 of 1998,
(NEMA), I, Osman Asmal, acting on behalf of the City, do hereby issue
a notice of intention to issue
you with a directive in terms of
section 31A of the ECA, which will direct you to do the following
immediately upon receipt of
the directive:
1.
To cease further placing or dumping
of material into the floodplain of the Disa River;
2.
To take the following steps at your
own expense with a view to eliminate, reduce or prevent the damage,
danger or detrimental effect
to the environment:
2.1
Surveying and demarcating the 1:100 year
floodline for future management.
3.
To perform the following activities
at your own expense with a view to rehabilitating damage caused to
the environment as a result
of your abovementioned activity, to my
satisfaction:
3.1
Removing the soil, general rubble and fill that
was placed within the floodplain of the Disa River to a point where
the original
ground level is revealed.
3.2
Engaging the services of an environmental
specialist to evaluate impacts (sic) of the activity on the river and
to recommend what
work is required to rehabilitate the environment.
3.3
Carrying out such work.
3.4
Submitting both the report of the specialist
and his or her verification that the necessary work has been done, to
myself,(sic)
within 28 days of the date of this notice.
You are therefore hereby given an
opportunity to make written representations to myself (sic)……
as to why you should
not be issued with a directive in terms of
section 31A of the ECA directing you to undertake the measures
described above.
In addition, please be advised that
in the event that you do not comply with the directive, should it be
necessary to issue one,
that the City may-
(a)
in terms of section 31A (3)
perform the required activities and functions, or authorise any
person to take the steps required for
that purpose;
(b)
in terms of section 31A(4)
recover all expenditure incurred by the City in this regard from you;
and
(c)
may refer the matter for
prosecution, as non-compliance with a directive issued in terms of
31A (sic) is a criminal offence in terms
of section 29 (3) of the
ECA……
The City reserves its rights to
take such further action as it deems necessary should you fail to
respond to this pre-directive
or a subsequent directive or further
threaten the Disa River environment.…”
[11]
On 5 May 2011 the respondent’s
attorney, Mr. Johan du Plessis, replied to Mr. Asmal’s notice
of 20 April 2011 as follows
on behalf of his client.
“
3. We are
instructed that you are wrong to think that our client is placing or
dumping material (not being stormwater) on Erf 1530
Hout Bay into a
wetland forming part of the floodplain of the Disa River, and further
that you are wrong to think that our client
is acting unlawfully.
4.
The relevant factual background
appears from the attached affidavit of our client’s Mr. Don
Hemphill and the legal opinion
annexed thereto, which were delivered
by our client in an urgent application brought against it by the Hout
Bay and Llandudno Environmental
Conservation Group in late March this
year (“the urgent application”). The application was
dismissed.
5.
Briefly stated:
5.1
Our client is implementing part of an approved
development plan for the property which prior to its subdivision was
designated Erf
1530 Hout Bay (‘our client’s property’),
namely plan number 15/3/3/8/49 dated 14 April 1994 which was approved
on 15 June 1994 by the… [RSC].
5.2
There is a partially completed development on
our client’s property. The completed development includes the
following infrastructure:
the access road and a guardhouse at the
entrance, the road along the western boundary, the road eastwards off
that road between
what are now Erven 7712 and 7713 leading to Erf
7738,
a stormwater drainage
approved by the local authority
,
and the water mains and the sewers and connections from them to
all
of the subdivided erven (i.e. all the residential and commercial
erven irrespective of whether or not they had (sic) been built
upon).
In addition, 22 of the subdivided residential erven had (sic) been
fully developed and a further three houses are in the
process of
being built.
5.3
The approved development plan authorises
development of our client’s property above the 50-year-flood
level.
5.4
The conditions of approval of the subdivision
of the property, which had been complied with by our client’s
predecessor-in-title,
included the following ‘
the
streets which provide access to such land unit have been constructed
to the satisfaction of the local authority
with a stormwater drainage system to plans and specifications
approved by the local authority
.’
5.5
On 9 January 1997, with a view to the transfer
of the 51 subdivided erven, the Chief Director: Engineering Services
of the RSC certified
that all 51 of them were fully compliant with
the ‘
subdivision/development
conditions.’
5.6
Consequently, to the extent that any of the
sub-paragraphs of section 5 of the City’s By-law relating to
Stormwater Management
may be applicable, which our client disputes,
the section as a whole is not applicable because our client has the
written consent
for the development from the City’s
predecessor-in-law, the RSC.
5.7
The wetland in the vicinity is not on our
client’s property but on the adjacent municipal land.
5.8
Our client resumed work on the development on
Tuesday, 15 March 2011, by bringing machinery onto the site and
pegging the areas
of the site on which the work was to be done and
the areas which were not to be worked on.
5.9
The work which resumed on 15 March 2011 is all
taking place on our client’s property. No work is being done
closer than 2m
to the boundary between our client’s property
and the municipal land containing the wetland, or in the small
north-eastern
portion of our client’s property which is below
the 50-year-flood level.
The work currently underway, which
is the continuation of work which commenced on a broad front in 1996
leading to the partially-completed
development described above,
entails distributing a stockpile of building sand, clay, rocks and
earth (but no building rubble)
and delivering it to 4.2m above mean
sea level, in accordance with the approved development plan. The aim
is to provide a stable
base for the buildings (the beach sand on the
site being unstable and prone to blowing away). This work is being
done by a team
of workers who remove the plants in the areas to be
covered and either place the plants in plastic bags or replant them
in a leveled
temporary nursery area. Our client hired a large
front-end loader to loosen the stockpile (which had been standing for
about two
years and had consequently hardened). That process was
completed in early April this year and the large front-end loader
left the
site. The distribution of the loosened material is being
done by a smaller back actor, which our client owns. It estimates
that
process will take another two weeks. It will also entail
importing further fill material for this purpose.
5.10
Before the work commenced, the
construction phase environmental management plan for the remainder of
the development of the property,
prepared in 2009 by Mr. Doug
Jeffrey, an independent environmental practitioner was approved by
the Department of Environmental
Affairs and Development Planning in
the Western Provincial Government (‘the Department’).
This happened on 21 February
2011.
5.11
In addition, Mr. Jeffery’s
company, Doug Jeffrey Environmental Consultants (Pty) Ltd, has been
appointed as the Environmental
Control Officer (“ECO”)
for the development. Mr. Jeremy Keyser of that firm is performing
that function. Mr. Keyser’s
affidavit delivered by our client
in the urgent application is attached.
5.12
At the hearing of the urgent
application referred to above on 31 March 2011, our client and its
Mr. Hemphill formally gave the undertaking
in paragraph 1 of the
attached draft order which its counsel handed up to the Court. It
reads
‘
(I)t is
recorded that the First and Second Respondents have undertaken not to
push any sand or other material on the land which,
prior to its
subdivision, was desig
nated
Erf 1530 Hout Bay (“the Property”), or to deposit any
fill material from the Property
a.
onto the adjacent municipal land to the
north and north-east of the Property; or
b.
onto the part of the Property which is
below the 50 year flood level dependent on the approved development
plan for the property…
it being
recorded that such Respondents deny having done so, and further that
the second respondent will be erecting a security
fence along the
boundary line and for that limite
d purpose will perform work
(though not infilling) along the boundary line below the 50 year
flood level.”
6.
Our client consequently asserts the
development is being undertaken lawfully and in an environmentally
responsible manner, with
the approval of the Department and under the
supervision of the ECO.”
It
is not necessary, for present purposes, to recite the contents of the
preliminary answering affidavit referred to in the respondent’s
attorney’s letter. Suffice it so say that the contents thereof
are consistent with the allegations made in the attorney’s
letter. As I understood it, further, the urgent application referred
to in this letter was determined, not on the merits, but on
the basis
of the undertaking furnished by the respondent limiting the extent of
its development in the floodplain.
THE
ECA DIRECTIVE
[12]
After receipt of
Mr. du Plessis’ letter of 5 May 2011, the City’s Acting
Director for Environmental Resource Management,
Ms. Julia Wood,
formally issued the following ECA directive to the Respondent on 10
May 2011.
“
RECORDAL
Following the Notice of Intention
to issue a Directive… served on your attorney…on 21
April 2011, the City acknowledges
receipt of the representations from
Mr. du Plessis on your behalf (dated 5 May 2011) describing the
circumstances surrounding the
infilling.
Despite these representations,
however, it is recorded that I, Julia Wood,…duly authorised to
act on behalf of the City,
am of the reasonable opinion that the
infilling has resulted or may result in the environment being
seriously damaged, endangered
or detrimentally affected in that
·
Infilling has occurred below the natural
1:50 year flood line of the Disa River and between the 1:50 and 1:100
year flood line;
·
Infilling the natural wetland will
reduce its natural functioning, leading to changes to both water
quality and flooding, upstream
and downstream;
·
There are further concerns that
permanent loss of the wetland has occurred or may occur;
·
There is a potential of underground
water and soil contamination; and
·
There is a potential of aquatic life in
the river being threatened by the infilling.
You have further failed to comply
with the Notice of Contravention issued to you by the Roads and
Stormwater Department of the City
and served upon your attorney at
your request on 13 April 2011, which required you, inter alia, to
cease placing or dumping of
any material other than stormwater into
the floodplain of the above river.
SECTION 31A
DIRECTIVE
Having regard to all of the
above-mentioned factors as well as the environmental principles
contained in the National Environmental
Management Act, 107 of 1998
(NEMA), I…direct you, in terms of sections 31A (1) and (2) of
this Act:
1.
To cease further placing or dumping
of material into the floodplain of the Disa River
immediately
upon receipt of this Directive.
2.
To perform the following activities
at your own expense,
within 28
days of receipt of this Directive,
to my satisfaction:
2.1
Surveying and demarcating the 1:100 year flood
line for future management;
2.2
Engaging the services of an independent
freshwater ecologist to determine the extent of the wetland that has
been filled, to assess
and evaluate the impacts of the filling on the
receiving environment and potential future flooding and water quality
as a result
of the filling and to make detailed recommendations for
rehabilitation;
2.3
Surveying and pegging the wetland extent
on-site under the supervision of the freshwater ecologist;
2.4
Removing the soil,
general rubble and fill that was placed within the floodplain of the
Disa River to natural ground level as it
existed prior to filing
commencing, under the supervision of the freshwater ecologist;
2.5
Providing the reports of
the independent freshwater ecologist to the Environmental Resource
Management Department of the City for
review and approval prior to
any work being undertaken;
2.6
Carrying out such work at your
expense to the satisfaction of the City;
2.7
Submitting the specialist’s
verification that the necessary work has been done, to the
Environmental Resource Management Department.
In addition, please be advised that
in the event that there is non-compliance with this Directive, the
City may-
(a)
in terms of section 31A(3) perform
the required measures, or authorise any person to take the steps
required for that purpose;
(b)
in terms of section 31A(4) recover
all expenditure incurred by the City in this regard from you……
The City reserves its rights take
such further action as it deems necessary should you fail to comply
with this Directive, or further
threaten the Disa River environment.”
FRESHWATER
ECOLOGY ISSUES
[13]
Notwithstanding the forthright and
unequivocal assertions contained in its attorney’s letter of 5
May 2011, it appears that
after taking expert advice the respondent
came to a different view. Accordingly, on 6 June 2011 its attorney
wrote to the City’s
attorneys as follows in response to the ECA
Directive.
“
3. We are
instructed to advise that our client intends complying fully with the
Directive, subject to a reservation of all its rights.
4.
As regards paragraph 1 of the
Directive, we are instructed that our client ceased work on the
property. Our client hereby undertakes
not to do any further work on
the property until your client gives it the go-ahead to implement the
remediation and rehabilitation
measures envisaged and required by the
Directive.
5.
As regards paragraph 2.1 of the
Directive, our client intends instructing the hydrological engineer
referred to below to identify
the 1:100 year floodline, and once that
has been done our client will instruct a surveyor to survey and
demarcate it.
6.
As regards paragraph 2.2 and 2.5 of
the Directive, the following:
6.1
On 3 June 2011 we received a preliminary
assessment from freshwater ecologist, Dr Bill Harding of DH
Environmental Consulting. He
advises that, contrary to what our
client had believed up to now (given the 50 year flood level depicted
on the approved development
plan for our client’s property
(plan number 15/3/3/8/49 dated 14 April 1994) and approved on 15 June
1994), there is indeed
a portion of a wetland on our client’s
property. It extends westward onto our client’s property from
the adjacent riparian
zone of the Hout Bay River. It is a floodplain
environment. It is hydraulically connected to the Hout Bay River via
a low point,
with the wetland filling and emptying in concert with
the water level in the river (which in turn is both flood-linked and
related
to the presence of a beach berm across the river mouth). Dr
Harding further advises that some of the recent work (infilling)
undertaken
by our client is within the wetland. In this regard please
see the attached photo-diagram. The dotted pink line is the deemed
edge
of the wetland on the property based on historical information
gathered by Dr Harding. The solid pink line is the edge of the infill
in the wetland.
6.2
Dr Harding advises that he will require another
two weeks to finalise his report, which will include the required
detailed recommendations
for remediation and rehabilitation.
6.3
Because the remediation and rehabilitation will
result in the creation of a new edge between the wetland portion and
the remainder
of our client’s property, our client will be
furnishing Dr Harding’s report to a hydrological engineer for a
report
by the latter on the stormwater-management (sic) and any other
hydrological implications of the remediation and rehabilitation.
It
is conceivable that Dr Harding will have to revise his
recommendations for remediation and rehabilitation in light of the
hydrological
report.
6.4
We are consequently instructed to propose that,
once both reports are complete, we furnish them to you for your
client’s review
and approval as required by paragraph 2.5 of
the Directive.
6.5
We will ask Dr Harding and the hydrological
engineer to make themselves available to discuss any aspects of their
reports required
by your client. We request that a representative of
our client be present at any such meetings.
7.
Ad paragraphs 2.3 and 2.4 of the
Directive, our client will undertake these tasks once the
above-mentioned reports have been approved
by your client.
8.
Ad paragraph 2.6, our client will
carry out at its own expense all such work reasonably required by
your client.
9.
Ad paragraph 2.7, our client notes
and will comply with this requirement.
10.
Kindly confirm your client’s
agreement with the contents of this letter.”
[14]
On 8 June 2011 the City’s attorneys
replied as follows to the letter of 6 June 2011.
“
2. As we
understand the contents of your letter, your client intends complying
with the provisions of the City’s directive
as those are set
out at paragraphs 2.1 to 2.7 of that document, subject to the
following:
2.1
The completion of a substantive draft report by Dr Bill Harding,
which will be based on his preliminary assessment and will
include
detailed recommendations for remediation and rehabilitation of those
portions of the wetland infilled by your client (as
we understand it,
by ‘remediation and rehabilitation’ in this context your
client means the restoration of the
status
quo ante
on and in the wetland,
by removing all material deposited there by your client, to at least
the dotted pink line demarcated on
the diagram attached to your
letter, and subject to what is set out in paragraph 5 below);
2.2
the completion thereafter of a report by the hydrological engineer in
respect of stormwater management and any other hydrological
implications of the remediation and rehabilitation obligations
recommended by Dr Harding;
2.3
the possible revision by Dr Harding of his report, after the
production of the hydrological engineer’s report; and
2.4
the review and approval by the City of both reports referred to
above.
3. You indicate
that Dr Harding will require a further two weeks to complete his
work. You do not, however, provide any indication
as to the time
required by the hydrological engineer for the production of a report,
and the time required thereafter for a possible
revision by Dr
Harding of his report upon receipt of the hydrological engineer’s
report.
4. In the
circumstances, we propose that your client provides the City with a
written undertaking that your client’s consultants
will
complete all further written work as detailed in 2.2 and 2.3 above
within one month of the date of this letter; and in addition,
that
your client’s representatives undertake to meet with the City’s
officials and its representatives within three
weeks of that date in
order to discuss the City’s review and approval of the
aforesaid report, and to agree a timeline for
the implementation of
the recommendations made by Dr Harding in regard to remediation and
rehabilitation of the infill area of
the wetland.
5. Please note
that our client has considered the lines plotted in pink on the
diagram attached to your letter, and that it will
consider in due
course (and after a review of Dr Harding’s final report)
whether the lines adequately demarcate the areas
ascribed to those
lines in your letter.
6. We
acknowledge the contents of the balance of your letter and, in
particular, your client’s undertaking that it will carry
out
all required remediation and rehabilitation work at its own expense.
7. In the
interim, our client’s rights are reserved.”
[15]
On 4 July 2011 Dr Harding’s report
was furnished to the City. It is a detailed document and for present
purposes reference
need only be made to the Executive Summary
contained therein.
“
DH
Environmental Consulting (DHEC) was appointed by the developer,
Really Useful Investments 219 (Pty) Ltd, to undertake a wetland
assessment of erf 1530 Hout Bay. The need for this assessment arose
from the issuance of directives, or intention to issue directives,
by
the City of Cape Town….and the [National] Department of Water
Affairs (DWA) respectively. These instructions pertained
to the
alleged infilling of a wetland on the property.
This assessment found that Erf 1530
contains a portion of a wetland that extends westwards into the erf
from the adjacent riparian
zone of the Hout Bay River. This wetland
is bordered by the Hout Bay River to the east, Princess Street to the
north, and erf 1530
to the west and south. The wetland is a
floodplain environment, previously present on the site as reedbeds
amongst dune hummocks
(dune-slack wetland). It appears that the area
has been largely flattened since 2005. A portion of the wetland has
been recently
infilled from the west, along a north-south front of
approximately 150 meters.
The impact of the wetland is
considered to be significant and negative.
This assessment has determined
where the edge of the wetland lies beneath the fill and provides a
Method Statement for the rehabilitation
of the infilling.”
[16]
In accordance with the respondent’s
undertakings furnished in June 2011, it procured a hydrological
report from Arcus GIBB
(Pty) Ltd, consulting engineers, dated 14
September 2011. No consideration thereof is required at this stage
either but it will
be referred to later.
[17]
In accordance with paragraph 2.5 of the
Directive the City appointed its own expert, Dr Elizabeth Day of
Freshwater Consulting CC,
to undertake a review of the specialist
reports submitted by the respondent. In December 2011 Dr Day
furnished her report. She
was largely in agreement with the
assessment of Dr Harding, save that she came to the conclusion that
the wetland was more extensive
than that demarcated by Dr Harding.
[18]
While Dr Day relied on the same information
utilized by Dr Harding, she went further and directed the excavation
of 21 test holes
in the wetland on the property. The purpose of this
investigation was to determine more accurately the extent of the
wetland. In
the result Dr Day concluded that “
the
[wetland] extent is broader, in places, than that noted by Harding
(2011), but otherwise follows a roughly similar alignment.”
Otherwise, the 2 experts were in
agreement regarding the environmental impacts associated with the
infilling and the importance
of the wetland, with Dr Day concluding
that the wetland was to be classified as a “
Rank
2, Critical
Biodiversity
Area
”. Dr Day also expressed
concern regarding the absence of a suitable buffer zone which
rendered the wetland potentially “
more
vulnerable to invasion by weedy and alien plants.”
[19]
In light of her concerns, Dr Day suggested
more extensive remedial work than that proposed by Dr Harding.
“
All fill
brought onto site since 2010, and spread across the wetland and
adjacent areas since November 2010 should be removed and
disposed of
off-site at an appropriate, and approved location – the fill
quality is in contravention of the developer’s
CEMP
[6]
,
as noted by Harding (2011) and is moreover likely to contribute fine
sediments to the adjacent wetland on an ongoing basis and
will not
support the kinds of vegetation that are conducive to the
rehabilitation of the disturbed wetland and adjacent areas.”
In
addition, Dr Day recommended the establishment of a 20m buffer zone,
to be sloped gradually to the ground level of the development
and
planted with appropriate local indigenous wetland and terrestrial
vegetation.
[20]
Accordingly, while the method statement
regarding rehabilitation and subsequent monitoring of the area
proposed by Dr Day accorded
in the main with that suggested by Dr
Harding, her proposals were likely to be more expensive, given the
extent thereof. And therein
lay the very seed of subsequent
disagreement between the parties.
THE
CITY’S STIPULATED REHABILITATION MEASURES AND THE
IMPLEMENTATION THEREOF
[21]
The parties met and discussed the
prospective rehabilitation measures on Thursday 26
January 2012, with both Drs. Day and
Harding in attendance. Ultimately the City indicated that it required
full compliance with
the proposals contained in Dr Day’s report
which, in broad terms, required the respondent to perform the
following activities.
·
Remove all fill material from the wetland
as determined in terms of the Day Report, including from a so-called
‘
wetland mosaic area’
in the south of the property as identified by Dr Day;
·
Establish a 20 m wide buffer area and
comply with requirements regarding shaping, landscaping and planting
thereof;
·
Dispose of the removed fill material
off-site; and
·
Carry out the removal and rehabilitation
measures in accordance with the work methodology described in section
6 of the Day Report.
[22]
On 30 January
2012 the City’s attorneys wrote to the respondent’s
attorneys confirming what they claimed were the issues
agreed upon at
the meeting of Thursday 26
January,
and recording the following:
“
3. It
was agreed by the parties at the meeting that the rehabilitation
required to be undertaken by Really Useful Investments in
terms of
the Directive will take place on the following terms:
3.1 Really
Useful Investments will commence removal of infill and rehabilitation
work on the site… and in terms of the Directive
by no later
than
Wednesday, 1 February 2012
.
Really Useful Investments may elect to undertake trenching on 1
February 2012, to be completed within one day, with a view to
confirming the permanent wetland edge prior to removal of the infill
as required by the Directive.
3.2
The work methodology stipulated by the wetland and hydrological
specialists (Dr Harding and Dr Day) and described in sections
5 and 6
of the report titled ‘Review of specialists reports and further
investigation of wetland areas’ dated December
2011 (the
‘Review Report’) will be implemented in complying with
paragraph 2.4 of the Directive.
3.3
The required work (with the exception of the routine maintenance
activities stipulated in section 6.5 of the Review Report which
shall
be implemented in accordance with the requirements stipulated in that
section of the Review Report) shall be completed by
Friday, 30 March
2012. The City may approve, in its discretion and subject to a
detailed substantive written motivation from Really
Useful or its
attorneys of record (and provided that the activities of removal of
infill material and rehabilitation of the property
are well advanced
by that date), to extend the deadline of 30 March 2012 by a
reasonable further period. The determination of any
extension shall
be exclusively within the discretion of the City. Any extension
granted by the City in this regard will however
not be permitted to
jeopardise the completion of rehabilitation measures before the onset
of the wet season.
3.4
The wetland and hydrological specialists’ report confirming
that the necessary work has been undertaken, as required in
terms of
paragraph 2.7 of the Directive shall be submitted to the City’s
Environmental Resource Department, and copied to
us, within 5 working
days from the date of completion of the required rehabilitation
measures.
4. In the event
that Really Useful Investments has not made progress with
implementing the required rehabilitation measures to the
City’s
satisfaction by Friday, 24 February 2012, the City may elect to
pursue the remedies available to it in terms of section
31A(3) and
(4) of ECA and/or to institute criminal proceedings in terms of
section 29(3) of ECA. In addition, the City may elect
to institute
criminal proceedings against the directors of Really Useful
Investments and/or to exercise any other remedies stipulated
in terms
of section 34 of….NEMA…
5. We hereby
also inform you that the City in conjunction with the DWA
[7]
may publish a press release informing members of the public of the
fact that rehabilitation measures in accordance with the Directive
will commence shortly on Erf 1530, Hout Bay.
6. Please will
you ensure that a copy of this letter signed by Really Useful
Investments’ representatives or yourselves…
is provided
to us by return as a matter of urgency and in any event, by close of
business on Tuesday, 31 January 2012.”
[23]
On 1 February 2012 the respondent’s
attorneys replied to the City’s attorneys in a detailed letter
setting out their
client’s concerns. They did not take issue
with the proposed method statement at that stage but rather
complained that the
time frames set by the City were unreasonably
restrictive and unattainable in the circumstances. Nevertheless the
attorneys confirmed
the respondent’s “
commitment
to comply fully with [the City’s] directive and to do so
without delay, subject to the reservation of [the respondent’s]
rights.
[24]
Also, in that letter, the respondent’s
attorneys pointed out that their client had -
‘
(L)iaised
with a number of transport contractors to obtain quotations for the
removal of the fill in accordance with [the City’s]
directive.
The contractors indicated that they would only be in a position to
provide [the respondent] with a final quotation once
the fill that
had to be removed has been surveyed and the relevant area pegged.
Given the urgency of the matter our client requested
the contractors
in the meantime to provide it with rate quotations and an indication
of their availability.”
[25]
While confirming that ‘
the
removal of the fill needs to take place in accordance with a method
statement to be agreed upon between Drs Bill Harding and
Liz Day”,
the attorneys for the respondent
proceeded to raise concerns around the implications of certain
approvals required from the Provincial
Administration in terms of the
National Water Act of 1998
in relation to the aforesaid method
statement and noted that these might cause further delays. In the
circumstances, while assuring
the City that the respondent intended
acting with the greatest possible expedience, the attorneys stated
that it was simply impossible
to begin with removal of the fill on 1
February 2012.
[26]
In that letter, the respondent’s
attorneys also fired a shot across the City’s bows, accusing it
of acting unreasonably.
“
9. Our
instructions are to place on record that our client is aggrieved by
the fact that it is consistently portrayed as the author
of its own
predicament whilst it was merely acting on approvals granted by your
client to our client’s predecessors in title.
Our client’s
frustration is aggravated by the fact that your client was not the
only public body whose blessing our client’s
development
enjoyed. By approving our client’s construction environmental
management plan, which provided explicitly for
infilling, the
Department of Environmental Affairs and Development Planning [of the
Provincial Administration] for example sanctioned
the infilling as
well. Be that as it may, our client remains committed to act entirely
within the bounds of the law and it remains
willing to agree to a
reasonable implementation plan for your directive and to this end our
instructions are to propose that a
timeline with reasonably
achievable deadlines be agreed upon.”
[27]
After furnishing a detailed and protracted
set of deadlines, the respondent’s attorneys concluded as
follows
.
“
13. Our
instructions are lastly to confirm that it is our client’s
intention to institute a claim against your client for
compensation
in terms of section 34 (1) of the Environment Conservation Act, 73 of
1989 based on the paralyzing limitations that
are now placed on the
purposes for which the property may be used. You will be provided in
due course with the amount of and confirmatory
documentation for the
said claim, whereafter we will endeavour to reach agreement with your
client about the quantum in accordance
with section 34 (2) of that
Act.”
[8]
Notwithstanding
the aforementioned complaints and threats, the respondent commenced
rehabilitation work during mid-February 2012
and purported to
complete the bulk of the removal works by the end of that month.
[28]
In a letter dated 5 March 2012 the attorneys for the respondent
informed the attorneys for the City of the state of affairs
and
attached an email dated Monday 27 February 2012 from Dr Harding in
which,
inter alia
, the following statements were made.
·
“
As at 14h00 today the bulk of the
fill has been removed to the discernible wetland edge, i.e. that edge
where we have been able
to visually expose the gradient from wetland
bed to previous bank;
·
Hand cleaning of the exposed area
has commenced from the Princess Road end, and should take about a
week to complete;
·
The issue of vegetation of the crown and
exposed face of the wetland bank requires some consideration, but
ideally should be integrated
with any revised planning for the
development;
·
In conclusion I believe that we have met
the key issues per the fill removal Method Statement.”
[29]
This letter and the annexed email of Dr Harding mark an important
milestone and development in this long and drawn out saga.
The City’s
attorneys had earlier claimed that agreement had been reached between
the experts at the meeting of 26 January
2012 regarding the
appropriate “
method statement”
to be followed in
the execution of the remedial work, which was allegedly to be based
on Dr Day’s report.
[30]
However, in their letter of 5 March 2012, the respondent’s
attorneys claimed a different approach.
“
2.2.1. We
dispute the contention that an agreement was reached to follow the
methodology described in sections 5 and 6 of the Review
Report [of Dr
Day]. Our recollection of the discussion regarding the methodology is
that a method statement was to be agreed upon
between Drs Harding and
Day. As you know, Dr Harding prepared a method statement, which was
forwarded to Dr Day and yourself on
8 February 2012.
2.2.2. We have
not received Dr Day’s response to the proposed method statement
yet but you indicated that, save for a few
minor changes, it was not
acceptable to your client to the extent that it differed from the one
prepared by Dr Day. You imply that
our client sought to amend or vary
an existing agreement relating to the contents of the method
statement but as we have indicated
above, we dispute the contention
that it has ever been agreed that Dr Day’s Method Statement was
going to be implemented.
2.2.3. You
confirmed your client’s disagreement in particular with the
proposition that fill is to be re-used on the property
outside of the
wetland area. We submit that your client’s insistence on the
removal of the fill from the property altogether
exceeds the scope of
the section 31A directive, and even if the directive did cater for
such removal, the directive itself would
have been
ultra
vires
its empowering provision
to the extent that the existence of the fill outside the wetland area
would not have any detrimental impact
on the environment. In this
regard, we confirm that Dr Harding is of the view that none of the
fill that has been removed from
the wetland area is of such a nature
that its presence on the site outside the wetland area will have any
detrimental impact on
the wetland or the environment generally.”
[31]
In his aforementioned email to the attorneys, Dr Harding made the
following remarks.
“
In
conclusion I believe that we have met the key issues per the fill
removal Method Statement. As you will recall, there were other
issues
contained in the Day MS that were contested, i.e. the need to remove
the fill from the site and/or the issue of the perceived
mosaic
wetland area - the latter as we have clearly shown did not exist
prior to the present owners purchasing the site. Additional
here is
the issue of the wetland ‘buffer’, also an issue that
pertains to the future ‘remodelled’ site
planning. In my
opinion this is not an ‘urgent’ issue at the present
time.”
It
bears mention that during argument it became apparent that the City’s
demand (on the advice of Dr Day) that the fill excavated
from the
wetland be removed from the site completely is a major bone of
contention between the parties: the cost thereof is said
to be high
and the demand is considered to be unreasonable in the circumstances.
[32]
The City did not agree with these views and on 12 March 2012 its
attorneys informed the respondent’s attorneys, in a
detailed
response, that –
·
They were adamant that the meeting of 26
January 2012 concluded on the basis of consensus, a fact apparently
evidenced by the minutes
of that meeting sent to the respondent’s
attorneys and not disputed by them at the time;
·
The 1:100 year flood line had not been
physically demarcated on site;
·
Fill material remained within this area and
that such fill included some of the stockpiled material already
removed from the wetland
by the respondent;
·
There was still fill material within the
wetland, including the “
wetland
mosaic area”
on the southern part
of the property which had to be removed;
·
Fill material already removed from the
wetland remained on site and in close proximity to the wetland;
·
The wetland buffer had not been created at
all;
·
The planting and landscaping activities
prescribed in section 6.4 of Dr Day’s report had not been
implemented.
[33]
This letter elicited an even more detailed reply from the
respondent’s attorneys to the effect that –
·
The respondent had decided to retain the
fill material (which it had already removed from the wetland on the
property) in a stockpile
which itself was located within the
floodplain;
·
The respondent did this, its attorneys
said, because “
as the fill was
removed, it was apparent that the level of waste was markedly less
than originally assumed
.” In the
circumstances, they said, they had recommended to the landowner “
that
they obtain a certificate from a civil engineer that will clearly
indicate the possible future uses thereof”.
Yet,
as the City pointed out in argument, no such certificate was ever
obtained;
·
The respondent had no intention of
undertaking any rehabilitation works in respect of the “
wetland
mosaic area”
because, it was
claimed, this area did not exist prior to the infilling by the
respondent and furthermore because the respondent
did not undertake
any infilling in that area;
·
The respondent alleged that through its
remedial work it had fully exposed the wetland area, save for a small
area affected by a
sewerage pipe;
·
The respondent had no intention of
establishing a buffer zone because Dr Harding was of the view
that this was superfluous,
claiming that “
there
is no need (at this time) for a developed buffer, other than a
cleared, cleaned and stabilized space of 10m between the wetland
edge
and the undeveloped (western) portion of the property”;
·
The City’s ECA Directive did not
include “
sterilization of a part
of the property outside the wetland.”
[34]
The further exchanges of correspondence between the parties which
ensued were highlighted by hardening attitudes of intransigence
and
they manifestly did not take the matter any further, the on-going
sniping in correspondence between the attorneys contributing
nothing
to what had essentially become a sterile debate. As a consequence,
the respondent was adamant that it had done enough to
comply with
what it believed the City’s complaints were and it sat back and
waited for the City to take legal action.
[35]
As I have already observed, the real dispute between the parties is
about the removal of the stockpile from the site. While
it was
initially estimated that of the order of 5000 to 6000 cubic meters of
fill material remained stockpiled in the floodplain,
a subsequent
survey undertaken by the City revealed that 7093 cubic meters of fill
remained on the floodplain of which 2200 cubic
meters was material
that had been removed and stockpiled there. There can be little doubt
that if the issues did not include the
demand for the removal of this
material the parties would have found one another and litigation
would most likely have been avoided.
In the circumstances, the focus
of this judgment will fall on that issue.
THE
ISSUES AS FORMULATED IN THE PAPERS AND LATER IN ARGUMENT
[36]
On 26 November 2014 the City filed its application in which it sought
the following orders –
“
1.
Directing the Respondent to comply with the following directives
issued by the Applicant in respect of certain immovable properties
owned by the Respondent, namely Erven 7681 to 7691; 7693 to 7705;
7717 to 7722; 7726 to 7731; 7743; 7745 and 7692 Cape Town and
Remainder of Erf 1530 Cape Town (“the property”):
1.1
The directive issued on 12
April 2011 in terms of the By-law relating to Stormwater Management
(approved by the Applicant’s
Council and promulgated on 23
September 2005) (“the Stormwater By-law”), read with the
Applicant’s
Floodplain and
River Corridor Management Policy
(approved by the Applicant’s Council on 27 May 2009), a
copy of which directive is
annexed to the Applicant’s founding affidavit as”
KAW5”
(‘the Stormwater
Directive”); and
1.2
The directive issued on 11 May
2011 in terms of section 31A of the Environmental Conservation Act
No. 73 of 1989 (“the ECA”),
a copy of which directive is
annexed to the Applicant’s founding affidavit as “
KAW6”
(“the ECA Directive”).
2. In the event of the Court
finding the Stormwater Directive to be invalid or otherwise not
effective, an order declaring
that, in terms of section 10 of the
Stormwater By-law, the Respondent is obliged to comply with such
requirements as the Applicant
may deem necessary to prevent the
occurrence or recurrence of, or remedy the defects of, the
Respondent’s contravention of
the Stormwater By-law, which
requirements include those set out in paragraph 3 below.
3. Directing the Respondent,
within 45 days of an order being granted herein, to comply with the
provisions of paragraph 1,
alternatively paragraphs 1 and 2, above in
accordance with the measures and methodology set out in the report
dated December 2011
and entitled ‘
Hout Bay Beach Club –
Erf 1530, Hout Bay: Review of specialist’s reports and further
investigation of wetland areas
by Dr Elizabeth Day of Freshwater
Consulting CC (“the Day Report”)(a copy of which report
is annexed to the Applicant’s
founding affidavit as “
KAW
49
”), particularly in respect of the following work to be
undertaken on the Property:
3.1
Removal of all fill
material brought onto the Property by or at the behest of the
Respondent in or about March and April 2011, including,
but not
limited to, the fill material stockpiled in two piles within the
floodplain, and including the wetland mosaic area in the
southern
portion of the Property.
3.2
Shaping of the area from
which the fill material is to be removed so as to establish a gentle
slope from the area ordinarily inundated
by water to the 1:100 year
flood line.
3.3
Landscaping and
replanting of a buffer area of a minimum width of 20 meters.
3.4
Maintenance of the
floodplain, and in particular, keeping that area clear of alien
vegetation, with a view to allowing the establishment
of indigenous
species of vegetation.
4. Declaring that, in the
event of the Respondent failing to comply with the provisions of
paragraphs 1, 2 or 3, or any part
thereof, the Applicant shall be
entitled to enter onto the Property and to undertake the necessary
work to comply with the requirements
of the Directives, in accordance
with the Day Report, as contemplated in, respectively, section 10(1)
of the Stormwater By-law
and section 31A (3) of the ECA.
5.
In the alternative to
paragraph 2:
In the event of the court finding that the
Stormwater Directive is invalid or otherwise not effective, declaring
that the Applicant
is entitled, in terms of sections 10(1) and 10(3)
of the Stormwater By-law, to take the steps listed in paragraph 3.1,
3.2 and
3.3 above.
6. Declaring that, in the
event of Applicant undertaking any of the work set out in paragraph 4
or 5, the Applicant shall
be entitled to recover the costs of so
doing from the Respondent, as contemplated in, respectively, section
10(3) of the Stormwater
By-law, and section 31A(4) of the ECA.”
The
notice of motion concludes with the customary prayers for costs and
alternative relief.
[37]
The notice of motion foreshadows an argument advanced by Mr.
Breitenbach SC with some considerable emphasis – that the
stormwater notice found no application in the circumstances of this
case and that the respondent was excused from compliance therewith.
This aspect will be addressed later but before doing so it is
necessary to deal with certain issues arising from the Day Report.
[38]
During the initial stages of the hearing lead counsel for the City
was asked how the parties intended addressing the differences
of
opinion which had arisen out of the reports of Drs Harding and Day.
In particular, were these differences to be approached in
the
traditional manner with the respondent’s version to be
preferred in the event that oral evidence was not called for?
[39]
Counsel for both parties approached the issue along the line of the
rule in
Plascon-Evans
[9]
with
particular reference to cases such as
Fakie
[10]
and
Wightman
[11]
.
I
am not sure whether that approach is warranted in situations where
one is dealing with a difference of opinion genuinely held
by 2
experts, given that the court itself is ultimately required to decide
the point on the basis of its own evaluation of the
expert opinions
so advanced
[12]
.
But fortunately that conundrum need not be resolved in light of the
fact that Mr. Budlender SC informed the court on the first
day of the
hearing that the City would no longer be moving the relief sought in
prayer 3 of the notice of motion, which relief,
if persisted with,
would most likely have required a firm determination of the divergent
expert views. The abandonment of that
relief by the City was said to
be predicated, not on a lack of confidence in the Day Report, but
rather on the basis that the ECA
directive did not contain an express
requirement that the respondent was obliged to comply with the Day
Report.
[40]
When the matter resumed in September 2017, both parties had
fine-tuned their positions: Mr. Breitenbach SC submitted a revised
set of heads of argument to take account of the change of stance by
the City, while in reply Mr. Budlender SC presented the court
with a
draft order in which the relief sought by the City had been refined
in light of the parties’ arguments and the court’s
interrogation thereof. I did not understand Mr. Breitenbach SC to
object to the terms of the City’s draft order in the event
that
the court was minded to come to its assistance.
[41]
In the result the City finally settled on the following relief in its
draft order presented on 19 September 2017.
“
1. It is
declared that the Respondent’s conduct in and after March 2011
in placing soil, general rubble and fill on land within
the 1:100
year floodline on the Property constituted by Erven 7681 to 7691;
7693 to 7705; 7717 to 7722; 7726 to 7731; 7743; 7745;
and 7692 Cape
Town and Remainder of Erf 1530 Cape Town was in contravention of the
provisions of the Applicant’s By-law relating
to Stormwater
Management (approved by the Applicant’s Council and promulgated
on 23 September 2005) (“the Stormwater
By-law”).
2 It is declared
that the Applicant is authorised in terms of section 10(1) and 10(3)
of the Stormwater By-law to enter upon the
Property and to undertake
the necessary work to remove the soil, general rubble and fill placed
on the land and the Property within
the 1:100 year flood line in and
after March 2011.
3 It is declared
that the Respondent has failed to comply with the directive (“the
ECA directive”) issued to it by the
Applicant on 11 May 2011 in
terms of section 31A of the Environment Conservation Act 73 of 1989,
in that it has not removed the
soil, general rubble and fill that was
placed within the floodplain of the Disa River (being the land within
the 1:100 year flood
line) to natural ground level as it existed
prior to filling commencing in March 2011, under the supervision of
the freshwater
ecologist.
4 The Respondent
is directed you to comply with the ECA directive within 45 days of
the making of this order, by removing the soil,
general rubble and
fill that was placed within the floodplain of the Disa River to
natural ground level as it existed prior to
filling commencing in
March 2011, under the supervision of the freshwater ecologist.
5 It is declared
that if the Respondent does not comply with the ECA directive within
45 days of the making of this order, the Applicant
is entitled to
enter upon the Property and to undertake, to its satisfaction, the
necessary work to comply with the requirements
of the ECA directive
by removing to natural ground level the soil, general rubble and fill
that was placed, in and after March
2011, on land on the Property
which is within the 1:100 year flood line, as that flood line was
determined in the report dated
14 September 2011 by Arcus GIBB (Pty)
Ltd.
6 It is declared
that, in the event of the Applicant undertaking the work set out in
paragraph 2 and/or 5, the Applicant shall be
entitled to recover the
costs of so doing from the respondent as contemplated in,
respectively, section 10(3) of the Stormwater
By-law and section
31A(4) of the ECA.
7 The respondent
is directed to pay the costs of this application, which costs shall
include the costs consequent upon the employment
of two counsel.”
THE
FLOODPLAIN / WETLAND DISCUSSION
[42]
The long title to the By-law indicates that the purpose thereof is
“
To
provide for the regulation of stormwater management in the area of
the City of Cape Town, and to regulate activities which may
have a
detrimental effect
on the development, operation or maintenance of the
stormwater
system
.”
(Emphasis
added)
[43]
The operative prohibitions of the By-law relevant to the
circumstances of this matter are contained in ss5(a) and (c) thereof.
“
5.
Prevention of flood risk
No person may,
except with the written consent of the Council
[13]
and subject to any conditions it may impose-
(a) obstruct or reduce the
capacity of the stormwater system;
(b)
change the design or the use
of, or otherwise modify any aspect of the stormwater system which,
alone or in combination with other
existing or potential land uses,
may cause an increase in flood levels or create a potential flood
risk; or
(c)
undertake any activity which,
alone or in combination with other existing or future activities, may
cause an increase in flood levels
or create a potential flood risk.”
[44]
The definitions relevant to these sections are the following –
·
“
stormwater system”
means both the constructed and natural
facilities, including pipes, culverts, watercourses and their
associated floodplains, whether
over or under public or privately
owned land, used or required for the management, collection,
conveyance, temporary storage, control,
monitoring, treatment, use
and disposal of stormwater;
·
“
stormwater”
means
water resulting from natural precipitation and/or the accumulation
thereof and includes groundwater and spring water ordinarily
conveyed
by the stormwater system, as well as sea water within estuaries, but
excludes water in a drinking water or waste water
reticulation
system;
·
“
watercourse”
means
:-
(a)
a river, spring, stream,
channel or canal in which water flows regularly or intermittently,
and
(b)
a vlei, wetland, dam or lake
into which or from which water flows,
and includes, where relevant, the
bed and the banks of such watercourse.
·
‘
floodplain”
means
the land adjoining a watercourse which, in the opinion of the
Council, is susceptible to inundation by floods up to the one
hundred
year recurrence interval….”
[45]
Applying those definitions to the facts at hand
[14]
,
there is no dispute that the Disa River is a watercourse which,
together with its adjacent floodplain which encroaches on the
property, comprises a stormwater system which enjoys the flood risk
protection contemplated in s5 of the By-law. That floodplain,
by
definition, extends up to the 1:100 year flood level.
[46]
In light of the fact that it is common cause that with effect from
March 2011 the respondent deposited fill within the 1:100
year
floodplain, that activity,
prima
facie,
fell
foul of the prohibitions contained in ss5(a) and (c) of the By-law.
As Mr. Budlender SC put it, application of the “
Archimedes
principle
”
[15]
logically resulted in the displacement of water by virtue of the
placing of a physical obstruction in the river. In argument Mr.
Breitenbach SC did not take issue with these basic principles of
physics but sought rather to articulate the respondent’s
defence to the prohibition on causing a flood risk by focusing on the
alleged consent from the City in the form of the original
planning
approvals granted to the respondent by the RSC. I shall revert to
this argument shortly.
[47]
The City’s case is that, not only did the allegedly proscribed
activity contravene s5 of the By-law, it also constituted
a breach of
the ECA in that, as alleged by Ms. Wood in the ECA directive of 10
May 2011, the infilling of the floodplain resulted
in (or had the
potential to result in) the environment being seriously damaged,
endangered or detrimentally affected, hence the
entitlement to issue
the directive under s31A(1) of the ECA, which is to the following
effect.
“
31A
Powers of Minister, competent authority, local authority or
government institution where environment is damaged, endangered
or
detrimentally affected
(1)
If, in the opinion of the …
local authority … concerned, any person performs any activity
as a result of which the
environment is or may be seriously damaged,
or detrimentally affected….the local authority…may in
writing direct
such person –
(a)
to cease such activity; or
(b)
to take such steps as
the…local authority…may deem fit,
within a period specified in the
direction, with a view to eliminating, reducing or preventing the
damage, danger or detrimental
effect.
[48]
In the revised heads of argument filed on behalf of the respondents
in September 2017 counsel did not place in issue the fact
that the
dumping of fill in the floodplain of the Disa River was an activity
hit by the provisions of s31A of the ECA. Rather,
they placed in
issue the extent of the activity undertaken and the remedial measures
required to address the steps so taken by
the respondent. In this
regard the concepts “
wetland”
and “
floodplain”
were central to the discussion.
[49]
Mr. Breitenbach SC pointed out in argument that in their various
reports the City’s officials had referred to the fact
that the
respondent had placed fill material in what was, on occasion,
interchangeably described as “
a wetland”
and “
a
floodplain”.
Counsel stressed that these concepts were to
be regarded as distinct and that the wetland
in casu
did not
extend as far as the floodplain (defined in the By-law as extending
up to the 1:100 year floodline). Given the clear conceptual
distinction between a wetland and floodplain, so the argument went,
the reference by the City’s officials in the ECA directive
to
the wetland area had to be interpreted as an intention to restrict
the extent of the area which required protection to that
area below
the 1:50 year floodline.
[50]
The respondent’s argument regarding this distinction is based,
in the main, on Dr Harding’s report in which he
determined the
entire extent of the wetland adjacent to the Disa River in the
vicinity of the property to be below the 1:50 year
floodline. Arguing
that the purpose behind the ECA directive was to protect the
integrity
of a wetland as defined in the
National Water Act, 1998
[16]
,
the respondent’s counsel argued that any reference to the 1:100
year floodline was irrelevant for purposes of enforcement
of the ECA
directive. Consequently, it was contended that the further storing of
fill between the 1:50 and 1:100 year floodlines
was not proscribed in
terms of the ECA directive.
[51]
In relation to the stormwater notice, as already stated, it is common
cause that the fill was placed by the respondent within
the
floodplain as defined and that the stockpiled material continues to
be stored there. For the purposes of that notice, the conceptual
difference between the extent of the wetland and the floodplain is
irrelevant.
[52]
It may be that the City’s officials were, at times, less than
precise in the use of language and that the terms wetland
and
floodplain were conflated and used interchangeably here and there.
But at the end of the day, as Mr. Budlender SC pointed out,
little
turns on the apparent distinction which the respondent sought to draw
in light of the revised relief which the City now
seeks. Initially,
the City elected to rely on the provisions of
s31A
(2) of the ECA to
procure the removal of the remaining fill material by the respondent.
However, in terms of the amended relief
ultimately relied upon, the
City seeks permission in terms of
s31A
(3) to undertake the removal
of the fill itself and to recover the cost of that exercise from the
respondent in terms of
s31A
(4). In so doing, the City has taken out
of the equation a significant difference which exists between the
relief available to
it under ECA and the By-law.
[53]
Under
s10
(1)(b) of the By-law the City is only empowered to “
fill
in, remove and make good any ground excavated, removed or placed in
contravention with the provisions”
of the By-law. It is not
empowered to direct removal of the fill by the landowner as it is
under
s31A
(2) of the ECA. In addition it is empowered under
s10
(3)
of the By-law to recover the cost of such removal from the
respondent. In the result, Mr. Budlender SC submitted, it is
necessary
for the court only to consider whether the respondent had
the necessary consent under the By-law to place the fill in the
floodplain.
If it did not have such consent, it was contended, the
City was entitled to the revised relief.
CONSENT
UNDER THE STORMWATER BY-LAW ?
[54]
The respondent disputes the validity of the stormwater directive but
does not dispute the validity of the By-law as such. Furthermore,
in
argument, counsel for the respondent did not challenge the
proposition that the floodplain of the Disa River constituted a
stormwater system as contemplated in the By-law, nor was it suggested
that the dumping of the fill material by the respondent in
the
floodplain did not reduce the water-holding capacity of the
floodplain.
[55]
Indeed, the effect of such dumping was dealt with in the hydrological
report of Mr. Nell of Arcus GIBB dated 14 September 2011
which were
procured by the respondent.
“
CONCLUSIONS
It can be seen from
Drawing FL01
and in
Table 3
below that both the 1 in 50 years and 1 in 100
years return period flood levels have increased compared to those
determined in
2003. This is due to the change in the river’s
morphology and the associated decrease in the river channel. The
topographical
survey indicates that silt deposition within this reach
of the Disa River has occurred, with a subsequent narrowing of the
river
channel’s cross-sectional area. Typical cross-sections
showing this narrowing of the river channel are given in
Appendix
C
.”
In
short, the expert opinion of Mr. Nell is that both of the flood
levels under discussion have increased due to the dumping. This
must
mean that the extent of flooding (whenever it may occur) has become
greater and the risk to properties within the floodplain
of the river
has increased.
[56]
In the result, and in the absence of the requisite consent from the
City, the aforesaid activity on the part of the respondent
falls
squarely within the prohibitions of the By-law. In arguing in favour
of consent under
s5
of the By-law, Mr.Breitenbach SC submitted that
the respondent had the written consent of the RSC (through its
erstwhile Chief
Director: Technical Services), furnished in 1994, to
undertake the development activities which it did, including the now
contentious
issue of placing fill in the floodplain. Counsel further
submitted that the decision of the RSC is deemed, as a matter of law,
to be a decision of the City and that accordingly the respondent had
the requisite consent to undertake the activities in question.
[57]
In my view the crux of this argument is whether the 1994 consent of
the RSC is “
consent
”
of the kind contemplated in
s5
of the By-law. In terms of that
section the appropriate lawful consent is expressly defined as the
written consent of the City
of Cape Town and not simply any written
consent of the City (or in this case its predecessor, the RSC), given
at any time under
any law that would suffice. It can accordingly only
be the consent of a person/entity delegated to exercise powers or
perform duties
in terms of the By-law which would pass muster
[17]
.
The written consent given by the RSC in 1994 could manifestly never
have been given by someone delegated to exercise powers in
terms of
the By-law, because the By-law did not exist at that time. In my
view, therefore, the 1994 consent relied upon by the
respondent was
permission given to it under a different statutory regime, no doubt
having regard to the considerations at play
under the applicable laws
and by-laws which prevailed at that time.
[58]
One is required to interpret the By-law in accordance with the
principles enunciated in the recent SCA cases such as
KPMG
[18]
,
Endumeni
[19]
,
Bothma-Batho
[20]
and
Dexgroup
[21]
.
The
approach to the interpretation of written instruments, whether they
are contracts or statutes, is usefully summarized thus in
Dexgroup
:
“
[16]……
These cases make it clear that in interpreting any document the
starting point is inevitably the language of
the document but it
falls to be construed in the light of its context, the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Context, the purpose of the provision
under consideration and the background to
the preparation and
production of the document in question are not secondary matters
introduced to resolve linguistic uncertainty
but fundamental to the
process of interpretation from the outset.”
[59]
The long title to the By-law cited in para 42 above suggests that
around 2005 the City decided that it was necessary to introduce
a
by-law to deal with the regulation of stormwater systems and in
particular the interference therewith. Just what led to this
decision
does not appear fully from the papers but one can surely not
overlook, for instance, the well documented flooding which
often
occurred in informal settlements and low lying areas in those halcyon
days of regular winter rainfall resulting in displacement
of large
numbers of citizens of the Peninsula. But, in any event, common sense
tells one that a responsible local authority would
not wish to expose
its inhabitants to undue risk nor attract liability for allowing the
construction of dwellings or buildings
in potentially dangerous areas
susceptible to flooding.
[22]
[60]
In any event, the City officials charged with the control of
stormwater, no doubt alive to the potentially damaging environmental
and public consequences of interference with the stormwater system,
clearly came to the view that henceforth certain activities
could not
be undertaken unless they were authorized by someone exercising
powers under the By-law. In other words, authorization
was required
from someone whose competence related to the matter addressed in the
By-law, and who would have regard to the issues
which the City had
now decided should be considered before that conduct was permitted.
In the future, then, such consent would
be required to be given to
specifically address the matters addressed in the By-law rather that
under a different law or by-law
dealing with different
considerations.
[61]
In argument Mr. Breitenbach SC fairly conceded, in debate with the
Court, that when the RSC granted its approval all those
years ago to
build in the floodplain it did not specifically consider the question
as to whether its consent expressly sanctioned
the placing of fill in
the wetland. Rather, counsel accepted, this activity was an
inevitable consequence of the approval of the
plans.
[62]
Mr. Breitenbach SC further relied on the presumption against
retrospectivity. The principles applicable when a statute brought
about a change in the law, said counsel, were summarised as follows
in “
Iranian
Tanker
”
[23]
–
“
There is
at common law a prima facie rule of construction that a statute
(including a particular provision in a statute) should
not be
interpreted as having retrospective effect unless there is an express
provision to that effect or that result is unavoidable
on the
language used. A statute is retrospective in its effect if it takes
away or impairs a vested right acquired under existing
laws or
creates a new obligation or imposes a new duty or attaches a new
disability in regard to events already passed.”
[63]
While accepting the applicability of the presumption against
retrospectivity in the interpretation of statutory provisions,
Mr.
Budlender SC’s reply was that the by-law in question was
neither retroactive nor retrospective, and he referred the court
to
the following extract from the Canadian decision in
Benner
[24]
cited with approval in
Carolus
[25]
-
“
A
retroactive statute is one that operates as of a time prior to its
enactment. A retrospective statute is one that operates for
the
future only. It is prospective, but it imposes new results in respect
of a past event.… A retrospective statute operates
forwards,
but it looks backward in that it attaches new consequences for the
future to an event that took place before the statute
was enacted.”
Moreover,
said counsel for the City, the By-law did not render unlawful any
conduct which was lawfully undertaken before its commencement
(i.e.
23 September 2005), but, rather, it rendered the continuation of such
conduct prospectively unlawful.
[64]
I agree with Mr. Budlender SC’s submissions on this point. It
seems to me that what has happened is that the building
activities
undertaken by the respondent up to 23 September 2005 must be regarded
as lawfully undertaken, but that any activity
which it wished to
undertake after that date and which impinged upon the integrity of
the stormwater system, required the written
consent of the Council of
the City of Cape Town, in the form of the sanction of the appropriate
official cloaked with the requisite
authority to grant such
consent.
[26]
That is the plain meaning of the By-law, whose validity, as already
stated, has not been subjected to challenge. Moreover, in terms
of
the principle enunciated in
Maccsand
[27]
,
where authorization for a specified activity is required under any
number of laws or by-laws, the developer must obtain such
authorization under each piece of legislation, albeit that the
repository of power is the same entity under the various legal
instruments
concerned.
[65]
It is common cause that the respondent ignored the prohibition
contained in the By-law, did not apply for permission under
s5
thereof and proceeded to dump fill material in the floodplain. It did
not procure consent, it says, because it believed that it
already had
the requisite consent. In my view, for the reasons set out earlier,
that argument cannot be sustained. The respondent
clearly did not
have any consent under the By-law and the absence thereof is fatal to
its case.
APPROPRIATE
RELIEF
[66]
Once it is established that the respondent deposited fill in the
floodplain without the written consent contemplated in the
By-law,
the plain meaning of
s10(1)
thereof authorizes the City to undo what
the respondent has done in contravention of the By-law. It is
empowered to take the necessary
remedial steps at the expense of the
respondent and I did not understand Mr. Breitenbach SC to take issue
with this legal consequence
of the section in question. It follows,
in my view, that the City is entitled to the substantial relief
claimed in paragraphs 2
and 6 of its revised draft order.
[67]
In terms of that draft order, the City asks that any relief granted
in its favour be framed in the form of declaratory orders.
This is
based,
inter alia,
on the resolute attitude adopted by the
respondent’s attorneys in a letter to the Municipal Manager
dated 13 July 2012 which
serves to reply to a letter from the City’s
attorneys dated 27 June 2012. In para 7.5 of the letter the
respondent’s
attorneys stated –
“
7.5 As we
have stated earlier in this document our client will oppose any
attempt by the City to enter onto its property and/or
to do the work
it claims our client is still obliged to do in terms of the ECA
directive and/or the By-law directive. Our instructions
are to
confirm that our client will take appropriate legal action to protect
and enforce its rights and to this end you are requested
to confirm
as a matter of urgency:
7.5.1 whether
you remain of the opinion that our client is still required to
perform any further remediation work on its property
and what the
reasons for your opinion are;
7.5.2 the date
and time you intend to enter onto our client’s property and
what actions you intend to take.”
[68]
In a follow up letter to the Municipal Manager on 1 August 2012 the
respondent’s attorneys reiterated their client’s
stance
as follows.
“
[11]…..
Our client has, subject to one outstanding matter, which we deal with
in paragraph 16.1 below, performed the activities
directed by the
City. The City disputes that our client has so performed. It appears
that, at present, the City and our client
are unable to resolve this
dispute. The City is not authorised by the ECA to take further
actions on our client’s property
without this dispute…
being determined by a court in the City’s favour. Were the City
to take such action this would
amount to self-help which is
impermissible and contrary to section 34 of the Constitution….”
[69]
It is apparent the parties have been at loggerheads for a good number
of years now and I have little doubt that the legal costs
on either
side must be extensive. It is therefore undesirable that further
litigation should ensue in relation to the City’s
entitlement
to enter on the property and take the necessary remedial action in
terms of s10 of the By-law. In the circumstances
I am of the view
that, in light of the clear dispute which exists between the parties,
it is appropriate that the relief granted
to the City should be
couched in the form of the declaratory orders sought
[28]
.
RELIEF
PURSUANT TO THE ECA DIRECTIVE
[70]
Having decided the matter in terms of the Stormwater By-law it is not
strictly necessary to determine the import and validity
of the ECA
directive. However, in the event that the application of the
Stormwater By-law is considered to be wrong, it is appropriate
to
determine the extent of the ECA directive and any relief which might
flow therefrom. On this score, it is common cause that
the directive
was lawfully issued and that the respondent is bound to comply
therewith. What is at issue is the extent of the directive
–
was it intended to apply only to the “
wetland
”
adjacent to the river or does it extend to the “
floodplain”
? As we have seen, the respondent contends for the former and says
that it has done what the City requires of it under the ECA
directive.
[71]
The contentious aspect of the ECA directive is said to be para 2.4
thereof. This requires the respondent to remove “
the soil,
general rubble and fill that was placed with in
the
floodplain
of the Disa River to natural ground level as it
existed prior to filling commencing, under the supervision of the
freshwater ecologist…”
(Emphasis added). As will be
apparent from the terms of the ECA directive recited above, both the
terms “
wetland”
and “
floodplain”
were used by Ms. Wood therein.
[72]
Significantly, in June 2011 the respondent had no difficulty in
understanding the import and the distinction between a wetland
and a
floodplain when its attorney noted that it would comply with the
directives issued in para’s 2.3 (“
wetland”
)
and
2.4 (“
floodplain”
)
[29]
.
Yet now the respondent (accepting the importance of the distinction)
contends for an interpretation of the directive which equates
these
terms as synonymous with each other, while the City says that there
is a clear linguistic and conceptual distinction in the
directive
which must be observed.
[73]
Like the By-law, the ECA directive falls to be interpreted in
accordance with the approach referred to in para [58] above.
That
means reading the document and giving meaning to the words therein in
light of the contextual setting which forms the backdrop
thereto, the
material which was available to the author thereof and the purpose to
which it was directed. But the “
inevitable
point of departure”
must
be the language of the directive itself.
[30]
[74]
Looking then at the language of the ECA directive, it is apparent
that the word “
floodplain”
has
a plain meaning: it is intended to refer to an area of land adjacent
to a stream or river that experiences flooding during periods
of high
discharge.
[31]
As the aforementioned definition in the By-law indicates it is that
area of land which is inundated during a flood. A floodplain
such as
that at the mouth of the Disa River may therefore be dry for long
periods of time over the Cape’s dry summer months
and may only
fill up if and when the river comes down in flood in the
traditionally wet winter months. Similarly, “
wetland”
has
a plain meaning: it is an area where water covers the soil, or is
present at or near the surface of the soil for periods of
time all
year round, or for varying (or limited) periods of time during the
year. Importantly, a wetland has a distinct ecosystem
of its own.
[32]
[75]
Whatever the precise definition is which one applies, it is beyond
doubt that the concepts “
floodplain”
and “
wetland”
are fundamentally different. The former is dependent upon high
rainfall and flooding, an unpredictable event which may or may not
occur annually. The latter comprises a distinct ecosystem with its
own aquatic vegetation which may, or may not, be partially submerged
throughout the year. No reasonable official in the City’s
department charged with environmental management and familiar with
the concepts could therefore reasonably think that a floodplain is a
wetland. To be sure, a wetland may become a floodplain when
the river
is in spate but that does not make the floodplain a wetland as such.
Invariably, therefore, the wetland will be smaller
than the
floodplain.
[76]
It is apparent that in issuing the directive Ms. Wood had regard to
the background circumstances giving rise thereto.
·
One such reason was that infilling had
occurred below the 1:50 year floodline of the river, and then also
between the 1:50 and 1:100
year floodlines. That objectionable
infilling was plainly on the floodplain and not the wetland.
·
A further reason was that the respondent
had failed to comply with the stormwater notice. That notice had
required the respondent
to cease placing offensive material (other
than stormwater) into the floodplain. The stormwater directive was
issued in terms of
the By-law which defines the floodplain in terms
of the 1:100 year flood line and clearly distinguishes it from the
wetland. Insofar
as one of the purposes of the ECA directive was to
remedy the respondent’s failure to stop dumping fill into the
floodplain,
the City could never address the full extent of the
problem by limiting itself to requiring remedial work to be
undertaken only
in the wetland.
[77]
Turning to the purpose for which the ECA directive was issued, one
sees that the City required the respondent to immediately
cease
dumping material into the floodplain - something which speaks for
itself. It also required the removal of rubble and fill
that had
already been placed with in the floodplain. Then the ECA directive
required the respondent to survey and demarcate the
1:100 year flood
line for future management so as to determine the extent of the
floodplain. But, the directive also required the
surveying and
pegging of the wetland: that would be pointless repetition if the
floodplain was synonymous with the wetland. One
sees therefore that
the ECA directive pertinently (and repeatedly) clearly distinguishes
between the 2 concepts, with different
remediation measures being
required to be addressed in respect of each. In the result there can
be little doubt that the ECA directive
was intended both to preserve
the wetland and to protect the floodplain.
[78]
In arguing in favour of an interpretation of the ECA directive as
using the terms synonymously and interchangeably, counsel
for the
respondent seized upon an ambiguously worded sentence in the
Pre-Directive Notice of 20 April 2011
[33]
which referred to “
the
floodplain of the Disa River, which constitutes a wetland”.
Linguistically, I suppose, it might be suggested that the word
“
which”
was
intended to refer to the floodplain. However, given that the river
clearly constitutes a wetland it is more probable that “
which”
refers
to the Disa River.
[79]
It is noteworthy that the Pre-Directive goes on to refer explicitly
to the potential flood risk since “
the material has been
placed within the 1:100 year
flood plain
of the
river.
In addition
, there may be a threat to
aquatic life in the
river
. Furthermore,
permanent loss of the
wetland
may occur”
(Emphasis added). It is inconceivable, other than for reasons of
expedience, that a reasonable person reading the Pre-Directive
Notice
in which the terms “
floodplain”
and “
wetland”
are clearly used independently of each other, could seek to
contend that the words are synonymous. But in any event, any
ambiguous
wording in the Pre-Directive must yield to the clear text
of the ECA directive itself which is the instrument which ultimately
must be given legal efficacy.
[80]
I conclude therefore that the ECA directive is applicable to the
floodplain and that the word “
floodplain”
was
intended to refer to the area up to the 1:100 year flood level. It is
not in dispute that the respondent has failed to comply
with the
directive up to that flood level and the City is therefore entitled
to demand that it do so.
Ex abundante cautela
therefore the
City is entitled to the relief sought in paragraphs 3, 4 and 5 of the
amended draft order.
COSTS
[81]
In his further argument on 19 September 2017 Mr. Breitenbach SC asked
the court to take account of the late change of tack
in the City’s
case and to consider apportioning a costs order in its favour (in the
event of substantial success). In reply,
Mr. Budlender SC charitably
conceded that some adjustment might be appropriate while nevertheless
claiming that a costs order should
follow the result and that the
City had been substantially successful.
[82]
A costs order is always in the discretion of the court and there are
myriad factors at play in exercising that discretion.
In a matter
such as this, one has to bear in mind that the City has come to court
to protect the environment in the public interest
and that it does so
with ratepayers’ money. Ideally, it should not be out of pocket
in the event that its action is vindicated.
Furthermore, the
respondent has taken a principial stand based on its purported
reading of the notice and the directive.
[83]
While that stance may be said to also have been based on matters of
expediency, the respondent certainly has not shown any
inclination to
back off at any stage, even after the relief sought was amended
somewhat. The effect of the respondent’s stance
therefore has
been to put the City to task to fulfill its statutory and
constitutional obligations and in so doing the City has
been
substantially successful.
[84]
That all having been said, my sense is that if the City had presented
its revised draft order at the commencement of proceedings
the
hearing of the matter may have been limited to 2 days rather than 3.
In the circumstances it seems to me to be fair to order
that costs
should follow the result but that all costs incurred after the
adjournment of the matter on 20 April 2017 should be
borne by the
parties individually.
IN
THE CIRCUMSTANCES THE FOLLOWING ORDER IS MADE:
1
It is declared that the Respondent’s
conduct in and after March 2011 in placing soil, general rubble and
fill on land within
the 1:100 year flood line on the property
constituted by Erven 7681 to 7691; 7693 to 7705; 7717 to 7722; 7726
to 7731; 7743; 7745
and 7692 Cape Town and the Remainder of Erf 1530
Cape Town (hereinafter collectively referred to as “the
Property”)
was in contravention of the provisions of the
Applicant’s By-law relating to Stormwater Management (approved
by the Applicant’s
Council and promulgated on 23 September 2005
and hereinafter referred to as “the Stormwater By-law”).
2
It is declared that the Applicant is
authorised in terms of sections 10(1) and 10(3) of the Stormwater
By-law to enter upon the
Property and to undertake the necessary work
to remove the soil, general rubble and fill placed on the land on the
Property within
the 1:100 year floodline in and after March 2011.
3
It is declared that the Respondent has
failed to comply with the directive (“ the ECA directive”)
issued to it by the
Applicant on 11 May 2011 in terms of section 31A
of the Environment Conservation Act 73 of 1989, (“the
ECA”)
in that it has not removed the soil, general rubble and
fill that was placed with in the floodplain of the Disa River (being
the
land within the 1:100 year floodline) to natural ground level as
it existed prior to filling commencing in March 2011, under the
supervision of the freshwater ecologist.
4
The Respondent is directed to comply with
the ECA directive within 45 days of the making of this order, by
removing the soil, general
rubble and fill that was placed within the
floodplain of the Disa River to natural ground level as it existed
prior to filling
commencing in March 2011, under the supervision of
the freshwater ecologist.
5
It is declared that if the Respondent does
not comply with the ECA directive within 45 days of the making of
this order, the Applicant
is entitled to enter upon the Property and
to undertake, to its satisfaction, the necessary work to comply with
the ECA directive
by removing to natural ground level the soil,
general rubble and fill that was placed, in and after March 2011, on
land on the
property which is within the 1:100 year floodline, as
that floodline was determined in the report dated 14 September 2011
by Arcus
GIBB (Pty) Ltd.
6
It is declared that, in the event of the
Applicant undertaking the work set out in paragraph 2 and/or 5
hereof, the Applicant shall
be entitled to recover the costs of so
doing from the Respondent as contemplated in, respectively, section
10(3) of the Stormwater
By-law and section 31A(4) of the ECA.
7
The Respondent is directed to pay the costs
of this application, which costs shall include the costs consequent
upon the employment
of two counsel, up to the close of the
proceedings on 20 April 2017. In respect of all costs incurred after
that date, each party
is to bear its own costs.
__________________
GAMBLE,
J
[1]
As will appear below the property has been subdivided into a number
of individually numbered erven.
[2]
It is
common cause that the applicant (“the City”) is the
lawful successor to the RSC and the local authority having
jurisdiction over the area.
[3]
By-Law Relating to
Stormwater Management
promulgated on 23 September 2005 in Provincial Gazette 6300
[4]
The Department of Environmental Affairs and Planning of the Western
Cape Provincial Government
[5]
The allegation was made at a time when the Cape Peninsula was
enjoying its average winter rainfall which would have no doubt
caused the river to flood on occasion, and when the Mother City was
not in the grips of the worst drought in history which currently
threatens its very survival.
[6]
Construction Environmental Management Plan
[7]
The National Department of Water Affairs
[8]
A subsequent action by the respondent to recover compensation from
the City in terms of s34 of the ECA arising from the ECA directive
issued herein failed after a successful exception by the City –
see
Minister of Water and
Environmental Affairs and another v Really Useful Investments 219
(Pty) Ltd and another
2017
(1) SA 505 (SCA)
[9]
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-5
[10]
Fakie NO v CCII Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
[55]
– [56]
[11]
Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at
[12]
[12]
Michael and another v
Linksfield Park Clinic (Pty) Ltd
2001 (3) SA 1188
(SCA) at [35] – [36]; [40].
[13]
This is defined in the definitions clause of the By-law as ‘
the
municipal council of the City of Cape Town’.
[14]
In particular, as articulated in the report of Mr Oelofse of 15
April 2011.
[15]
Wikipedia
Online Encyclopedia
describes
the Archimedes’ Principle “
On
Floating Bodies”
as “
a
body immersed in a fluid experiences a buoyant force equal to the
weight of the fluid it displaces”
[16]
In the South African
National Water Act, 36 of 1998
, a wetland is
defined as “
land
which is transitional between terrestrial and aquatic systems, where
the water table is usually at or near the surface or
the land is
periodically covered with shallow water, and which land in normal
circumstances supports or would support vegetation
typically adapted
to life in saturated soil."
[17]
The
definition of “
Council”
referred
to in part above includes “
any
political structure, political office bearer, committee, councillor,
or official of the Council,
delegated
to exercise powers or perform duties
in terms of
this
By-law
…"
(Emphasis
added)
[18]
KPMG
Chartered Accountants (SA) v Securefin Ltd and another
2009 (4) SA 399
(SCA) at [39] – [40]
[19]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at [18].
[20]
Bothma-Batho Transport
(Edms) Bpk v S.Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) at [12].
[21]
Dexgroup (Pty) Ltd v
Trustco Group International (Pty) Ltd
2014 (1) All SA 375
(SCA) at [10] – [17].
[22]
With reference to its “Floodplain Policy” document the
City notes in para 35 of the founding affidavit that “
any
new land use, development, activity or building near watercourses
must be appropriate for the anticipated flood risk and the
requirements of geomorphological processes relevant to the
watercourse in question. In order to achieve this, paragraph 9.2 of
the policy stipulates that proposed developments must be supported
by an engineering report certifying that structures are capable
of
withstanding the force and effect of floodwaters. Where flood lines
have not previously been determined, such a determination
may be
required to be undertaken by a person wishing to undertake
development activities near a stormwater system."
[23]
National Iranian Tanker Co
v MV Pericles GC
1995 (1)
SA 475
(A) at 483H-I.
[24]
Benner v
Canada (Secretary of State)
(1997) 42 CRR (2d) 1 (SCC) at 17
[25]
National
Director of Public Prosecutions v Carolus and others
2000 (1) SA 1127
(SCA) at [34]
[26]
In para 30 of the founding affidavit there is an unchallenged
allegation that an application for such consent ordinarily has
to be
addressed in writing to the City’s Department of Stormwater
and Sustainability and that the City may require an applicant
for
such consent “
to
undertake a flood line determination and/or to submit an engineering
report.”
[27]
Maccsand (Pty) Ltd v City
of Cape Town and others
2012(4) SA 181 (CC)
[28]
Ex parte Nell
1963
(1) SA 754
(A) at 760B-C;
Family
Benefit Friendly Society v Commissioner for Inland Revenue
1995 (4) SA 120
(T) at 124 -5;
African
Bank Ltd v Weiner and others
2004 (6) SA 570
(C) at [31] – [39].
[29]
See para 6 of the letter of 6 June 2011 referred to in [20] above.
[30]
Endumeni
at [18]
[31]
Wikipedia Online
Encyclopaedia
– “
a
floodplain or flood plain is an area of land adjacent to a stream or
river which stretches from the banks of its channel to
the base of
the enclosing valley walls and which experiences flooding during
periods of high discharge. The soils usually consist
of levees,
silts and sands deposited during floods. Levees are the heaviest
materials (usually pebble-size) and they are deposited
first; silts
and sands are finer materials."
[32]
Wikipedia Online
Encyclopaedia
– “
a
wetland is a land area that is saturated with water, either
permanently or seasonally, such that it takes on the characteristics
of a distinct ecosystem. The primary factor that distinguishes
wetlands from other land forms or water bodies is the characteristic
vegetation of aquatic plants, adapted to the unique hydric soil.”
See also
https://www.epa.gov.wetlands/what-wetland
- the website of the
Environmental Protection Agency of the United States.
[33]
See [10] above