The high court ruling to overturn the decision to approve the redevelopment of Sea Point Pavilion is correct, writes Cecil Gelbart.
Cape Town - The effect of open public space has become an increasingly important consideration when assessing the balance between business and environmental impacts of proposed new developments in South Africa.
This concern follows the landmark decision of the Western Cape High Court in 2011 to set aside a decision by then-Environment MEC Tasneem Essop granting approval for the redevelopment of the Sea Point Pavilion.
This case highlights an important area of South African law and one that is attracting increasing attention as the balance between public and business interests within confined city spaces becomes more challenging.
The issue of open space has a particular resonance within the South African historical context and this ruling adds significantly to the case law in the field of administrative law the high court has developed in recent years.
Essop’s decision to approve the development of the pavilion was challenged and deemed unlawful on administrative grounds in terms of the Environmental Conservation Act.
In terms of the act, the development of the Sea Point Promenade required ministerial approval due to the proposed rezoning of the public space and the fact that the proposed development would have breached the existing high-water mark.
In terms of the act, Essop was obliged to consider alternatives to the proposal before she granted approval of the plans.
Essentially the high court found Essop had neglected to consider any alternatives to the building plans submitted by the developer, and in particular had neglected to consider the option of leaving the area undeveloped – her decision was therefore unlawful.
As part of the ruling, the high court also stressed the pavilion’s importance as an open public space accessible to all communities and the role that such open space has played in the democratisation of the City of Cape Town.
The pavilion has long been used as an open and interactive space by the broader Cape Town community.
As such, this is an important victory for advocates of open space and sustained access to open space for South African communities.
It is encouraging to note the message from the High Court that sight must not be lost of the democratising aspects of public open space.
This issue carries considerable weight in the consideration of the approval of commercial projects that have the potential to limit open space in South Africa in the future.
Another key aspect of the decision to set aside Essop’s decision was based on the way in which the balance between environmental and developmental considerations was conducted.
Firstly, the high court accepted that Essop’s decision was based on scoping reports which were prepared by consultants who had a financial interest in the development of the pavilion and were therefore not independent.
Secondly, the High Court accepted that she had not taken note of the changed socio-economic environment of Sea Point, which had essentially diminished the need for economic development in the Sea Point area when compared to the environmental impact the development would have.
Therefore, Essop’s failure to take note of updated information and to engage in a sufficiently updated balancing exercise led the High Court to rule that she acted unlawfully.
While this is one of many similar cases, it can certainly be considered an encouraging development for the protection of open space and will make a valuable contribution to the existing case law.
The ultimate decision of the city is a victory for the retention of an iconic public open space in Sea Point which has been in existence for decades.
In addition, public participation is something which is enshrined in our constitution.
* Cecil Gelbart is the litigation director at Edward Nathan Sonnenbergs, who represented Seafront For All (Seafa) in the Sea Point Pavilion case
** The views expressed here are not necessarily those of Independent Newspapers.