28 July 2011
Given Aurecon’s failure to meet minimum legal requirements in terms of completing a valid application to the DEA&DP, the LionsWatch Action Group sends a letter to Paul Hardcastle, Deputy Director DEA&DP
‘The Lions Watch Action Group is concerned that the issues previously raised by TBKWatch in its submissions dated 25 February, 2011 (“February Submissions”), which submissions were made to Aurecon in response to the draft Basic Assessment Report (“DBAR”), have not, contrary to statutory requirements, been adequately addressed or reflected in Aurecon’s Comment and Response Report (“CRR”), which accompanied Aurecon’s FBAR.’
‘Aurecon, thereby, appears to have chosen not only to ignore these issues but also deliberately to exclude these from the CRR presented to the DEA&DP in its application for authorisation’.
‘It is therefore necessary to reiterate these concerns directly to the DEA&DP. You are kindly referred to the attached June Submissions, where these and other issues are again brought to the attention of the EIA consultant, Aurecon:
i) Inadequacy of notification, contrary to statutory requirements;
ii) The extent of the area subject to the EIA, the separation of the environmental authorisation, the listed activities and the implications for the validity of the FBAR. These issues deal more particularly with:
a. The application of the separation of the environmental authorisation process and the listed activity within the NEMA regulations and the implications for the validity of the FBAR;
b. Comments on the DEA&DP letter dated 30 September 2010 (dealing with the interpretation of ‘independence’) and the implications for the validity of the BAR;
iii) The failure to consider alternatives and the implications for the validity of the FBAR;
iv) The extent of Aurecon’s evaluation and impact assessment and the implications for the validity of the FBAR;
v) The zoning of the whole area as ‘residential’.
‘The above issues are fundamental to any assessment, and Aurecon’s failure to address them in a thorough and satisfactory manner affects the validity of the FBAR. Incidentally, the LionsWatch Action Group considers these issues necessary, but not sufficient, for the DEA&DP to evaluate the application for authorisation of the proposed development’.
16 November 2011
DEA&DP refuses development of BLOCK E [one of 8 blocks], subject of the application for development by the Lion’s Hill Development Company.
Letter by Aurecon to I&AP’s
DEA&DP Environmental Authorisation 16112011
The document provides the context for the proposed activity and reasons for refusing the application
PLEASE NOTE THIS ONLY PERTAINS TO 15 OF THE 117 PROPOSED UNITS [OR 1 OF THE 8 BLOCKS] THAT MAKE UP THE LION’S HILL RESIDENTIAL DEVELOPMENT ON THE SLOPES OF LION’S HEAD.
THERE HAS BEEN NO PUBLIC PARTICIPATION ON THE BALANCE OF THE DEVELOPMENT [CURRENTLY BELIEVED TO BE 102 RESIDENTIAL UNITS ACROSS 7 BLOCKS (A-H EXCLUDING BLOCK E)) . PLEASE REFER TO OUR DRAFT AND FINAL SUBMISSION IN THIS REGARD. THE PROCESS WHEREBY SEPARATE AUTHORISATION IS SOUGHT FOR THE REST OF THE DEVELOPMENT FROM THE CITY OF CAPE TOWN [NOT THE PROVINCIAL DEPARTMENT OF ENVIRONMENTAL AFFAIRS & DEVELOPMENT PLANNING], IS CONSIDERED IRREGULAR, FLAWED,INVALID AND UNLAWFUL.
THE CITY OF CAPE TOWN HAS BEEN INFORMED OF THIS FACT BY VARIOUS ENTITIES.
The Minister of Water and Environmental Affairs finally published the national list of ecosystems that are threatened and in need of protection under s.52(1)(a) of the National Environmental Management: Biodiversity Act (GG 34809, GN 1002, 9 December 2011)
The legislation confirms arguments put forward by the Lionswatch Action Group to Aurecon and the Department of Environmental Affairs and Development Planning [DEA&DP] in the February and June submissions [see relevant tabs] as well as the letter addressed to Paul Hardcastle - Deputy Director at DEA&DP.
To check out the full document detailing threatened ecosystems, go to the website of the Centre for Environmental Rights or click on http://cer.org.za/news/list-of-threatened-and-endangered-ecosystems-finally-gazetted/
This provides further support to the view that the process followed to date is invalid, irregular and illegal
Lionswatch Action Group, as a registered I&AP [Interested and Affected Party] is notified of the intention to appeal decision to refuse proposed construction of an apartment block [BLOCK E] and associated infrastructure on ERF 1526, Lion;s Hill, Tamboerskloof.
Notice of Intention to Appeal Dec 2011
Undated [likely to be January 2012] and Unsigned
The Appeal Form by LIONS HILL DEVELOPMENT COMPANY (PTY) LTD c/o Mr G. Viljoen
*23. Please provide details of how you will be or have been affected by each issue listed under 21 above.
Having purchased the property from the Provincial Government of the Western Cape Respondent
on the basis that it is covered by alien vegetation and is optimally developable, the Provincial by
Government its refusal to authorise the execution of the described activity has prevented the
optimal development on the basis of which it was paid for the property by Appellant and
Appellant has sustained substantial damage over and above the R60-million paid, interest thereon
from the date of transfer and subsequent costs in relation to the proposed development*.
Annexure - Grounds for Appeal
annexure_-_grounds_of_appeal.pdf
23 February 2012
TBKWatch submits a detailed response to the Grounds of Appeal
responding_statement_lions_hill_appeal.pdf
15 October 2012
The MEC: LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS & DEVELOPMENT PLANNING ANTON BREDELL upholds the appeal and grants environmental authorisation for Block E (‘15 luxury units’) totaling 1123sqm.
13 December 2012
The Lion’s Watch Action Group responds to De Villiers Brownlie consultants, tasked with the transfer of the EA to a new scheme:
The Lion’s watch Action Group objects to a ‘transfer’ of an EA granted on appeal for
the Environmental Authorisation on Appeal is for the construction of one apartment block (‘Block E’) comprising 15 luxury residential units on 1123 square metres of erf 1526 (which measures 2.4ha in extent) (Application with DEA Ref E12/2/4/1-A2/75 – 3039/10), and does not constitute an authorisation for the construction of eight apartment blocks comprising 117 apartments on the entire erf, for which, to date, no application has been made to (or authorization provided by) the Department of Environmental Affairs & Development Planning (DEA&DP);
accordingly it is not factually or legally competent for the developer to apply to the MEC to amend the authorisation to permit development on the entire property (ERF 1526 of 2.4ha in extent);
in any event what the developer considers to be an “amendment” in fact constitutes a new application for an entirely new and different development; hence the applicant’s proposal would, in fact, entail the abandonment of the Authorization granted on Appeal in respect of ‘Block E’ over 1123sqm as set out in point 1 and require the submission of an entirely new application for environmental authorization.
accordingly it is not competent for the developer to seek an “amendment” to an existing authorisation on part of the property;
the entire property is covered with critically endangered vegetation that has been identified as such in the National Spatial Biodiversity Assessment 2004, namely Peninsula Shale Renosterveld which will unlawfully be destroyed should the entire site be developed as has been sought in the “amendment”
moreover, the DEA&DP, in its decision dated 19 December, 2011 has clearly set out the requirement for a full Environmental Impact Assessment (as required by law) over the entire ERF 1526. (DEA&DP Ref E12/2/4/7-A2/75-3042/10: Appendix TBK.4)
Point 12 ‘…the Department hereby informs you that the proposed development will constitute a listed activity in terms of G.N. No. 546 of the NEMA EIA Regulation 2010. A written environmental authorization will therefore be required for the entire ERF 1526 prior to the commencement of the proposed development.’
accordingly, any development on ERF 1526 prior to the submission of a BAR consistent with NEMA EIA regulations over the entire ERF 1526 (and the concomitant environmental authorization), is considered unlawful.
The Lion’s Watch Action Group addresses same letter to MEC Bredell and requests the MEC include the Action Group in his response / decision to the developer.
11 January 2013
REQUEST FOR REASONS FOR DECISION ON APPEAL ON 15 OCTOBER 2012 (YOUR REF: E12/2/4/1-A2/75-3039/10)
The Lion’s Watch Action Group, a party that is interested in and affected by the above development, requests reasons for the decision of the Honourable Minister of 15 October 2012 in terms of the Promotion of Administrative Justice Act (“PAJA”) (No. 3 of 2000) in which he upheld the appeal of the developer and granted environmental authorisation for the clearing of vegetation in order to construct 1 apartment block of 8 to be constructed on the above property that will cover a total footprint of approximately 1123 square metres of the entire site (ERF 1526), approximately 4,6% thereof.
Furthermore, the Lion’s Watch Action Group requests detailed answers to 6 further questions surrounding the MEC’s decision to grant EA on appeal.
The MEC is given 90 days to respond to the request.
March 2013
The MEC fails to provide adequate reasons in response to the request of 11 January 2013 and merely copies and pastes reasons provided on 15 October, 2012. He fails, entirely, to acknowledge, respond or answer additional questions included in the request of 11 January, 2013.
10 April 2013
The Lion’s Watch Action Group submits a Review Application with the Western Cape High Court against:
MEC: LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS & DEVELOPMENT PLANNING First Respondent
DIRECTOR: LAND MANAGEMENT (REGION 2): DEPARTMENT OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS & DEVELOPMENT PLANNING Second Respondent (cited merely for his interest in the matter, no relief is sought against the Second Respondent)
LION’S HILL DEVELOPMENT COMPANY (PTY) LTD Third Respondent
Notice of Motion setting out the relief sought
lions_watch_-_notice_of_motion.pdf
May / June 2013
The First (MEC) and Second Respondents (Director: Land Management) serve a joint Notice to Abide by the decision of the court and will not oppose the relief sought by the Lion’s Watch Action Group.
The Third Respondent serves a Notice to Oppose
March 2015
Lion’s Watch Action Group wins the Western Cape High Court Review application
The following orders are made:
—
The decisions of the first respondent upholding the third respondent’s appeal against the refusal of its application for an environmental authorisation in terms of Chapter 5 of the National Environmental Management Act 107 of 1998 and granting the third respondent authorisation to undertake a listed activity for the purpose of developing Erf 1526, Tamboerskloof, Cape Town are reviewed and set aside, and the matter is remitted to the first respondent for reconsideration.
—
The third respondent shall pay the applicant’s costs of suit in the review application, including the costs of two counsel.
—
No order shall be made as to costs in the third respondent’s counter-application, which has been withdrawn.
October 2016
The Lions Hill Development Company initiates an appeal of the DEA&DP’s Refusal of November 2011, ‘Block E’
Proposed “Block E” on a Portion of Erf 1526 Tamboerskloof
DEADP Ref 12/2/4/1-A2/75-3039/10
Notice is hereby given of a public participation process being undertaken in respect of an appeal against the decision, issued by the Department of Environmental Affairs and Development Planning on 16 November 2011, to refuse the application for environmental authorisation in respect of the proposed “Block E” on a portion of Erf 1526 Tamboerskloof.
This notice is given in terms of the directives of the appellate and competent authority in this matter, MEC Anton Bredell, and in terms of the appeal provisions included in Chapter 7 of the Environmental Impact Assessment Regulations 2010 (GN No R543) promulgated under the National Environmental Management Act 107 of 1998
—
The Lions Hill Development Company launches a fresh application to the DEA&DP for the balance of the site, having failed to do so to date:
Proposed Residential Development on a Portion of Erf 1526 Tamboerskloof
DEADP Ref 16/3/3/6/7/1/A7/27/3220/16
Notice is hereby given of a public participation process being undertaken in terms of the Environmental Impact Assessment Regulations 2014 (GN No R982) promulgated under the National Environmental Management Act 107 of 1998.
November 2016
Lion’s Watch Action Group, TBKWatch and CIBRA submit a joint comments on the appeal application relating to ‘Block E’ and the fresh application for environmental authorisation over the balance of ERF 1526
comment_on_dabar_and_dbar_14_nov_2016_lwag_1.pdf
comment_on_dabar_and_dbar_14_nov_2016_lwag_2.pdf
comment_on_dabar_and_dbar_lwag_3.pdf
June 2017
Lion’s Watch Action Group, TBKWatch and CIBRA submit a joint comment to the appeal application relating to ‘Block E’ and the fresh application for environmental authorisation over the balance of ERF 1526