Cape Town - Parkin Emslie has built a R3-million beach house on the West Coast near Elands Bay. Many admire the design and the way the architect has placed it in the stark coastal landscape.
But the Cape Town businessman did not get any building plans approved by the Cederberg Municipality - as is legally required - before construction started. And he did not first apply for permission in terms of the National Environmental Management Act (Nema) - as is legally required because the house is built within the proclaimed coastal strip.
He also failed to first inform Heritage Western Cape about the construction - as he was legally obliged to - despite the fact that a proclaimed Provincial Heritage Site, known as Mike Taylor’s Midden, occurs on part of the property, and that this section of the coast is a well-known archaeological treasure chest of global significance. Emslie confirms all this.
“Ag, I’m not going to tell you a story. I was a naughty boy doing it,” he said.
But he insists no damage has been done to the property - a long, thin 97 hectare strip that is a portion of Mosselbaai Farm about 3km south of Elands Bay - and says he would not have gone ahead without all the required permissions if he had realised that “the repercussions would be that big” or that anybody would be “making a big hoo-ha about it”.
There are questions as to whether he was also required to first apply for permission from the departments of Agriculture and of Water Affairs. Local Elands Bay environmentalists are angry at the manner in which the Cederberg Municipality failed to apply building regulations for construction that was well under way by August 2011.
Emslie is now attempting to get ex post facto planning, environmental and heritage approval for the house, after a formal investigation was triggered - after a long delay - by a complaint to Environment and Planning MEC Anton Bredell.
“Zoom in on Google Earth - there’s virtually no damage done,” Emslie says. “The only vegetation removed was really where the deck (overlooking the sea) is, the rest is all pathways. I didn’t go in there and bulldoze everything flat… (Critics) don’t look at the good things we’re doing… We look after that piece of land.”
Last year, he appointed a consultant to submit a “Section 24G” application in terms of the Environmental Management Act, for “the rectification of unlawful commencement or continuation of a listed activity”, and this was received by the province in June last year. The province is entitled to order Emslie to demolish the structure and rehabilitate the property, or it may fine him and/or condone the unlawful work and/or require rehabilitation.
Aziel Gangerdien, spokesman for Bredell’s department, said the application had been been subject to a public participation process, with people able to comment on a draft environmental impact report. The department was waiting for the final report to be submitted.
Heritage legislation is different and does not have provision for ex post facto condonation, and Heritage Western Cape is now doing an investigation that may lead to a decision to prosecute. Heritage Western Cape chief executive Andrew Hall confirmed he had asked the owners to provide information to be put before the committee for archaeology, palaeontology and meteorites.
“It’s a known area of high archaeological sensitivity. We need to see whether heritage resources have been damaged and, if so, to what extent there may be mitigation.”
The Cederberg Municipality said it had “since” received building plans - it is not clear exactly when - but would wait for the outcome of the Section 24G application before taking a decision on any possible legal action against Emslie, and before assessing the building plans.
Responding to questions by the Cape Argus, the municipality confirmed that an investigation had been ordered after the complaint had been sent to Bredell. Two municipal officials had investigated on August 12, 2011, and had photographed structures, “but none of these were new structures”.
One of the officials had discovered the illegal building work only in November 2011 during a “routine inspection”, and a cease-work order had been served on November 16. “It should be noted that the building plans were only submitted on May 31, 2012 when the building was almost complete,” it stated.
But this is contradicted by a letter from the municipality to Bredell’s office, dated September 14 2011, which states: “An inspection was carried out on Friday August 12, 2011, at said site and it is clear that illegal building activities are taken (sic) place. This matter will be dealt with by the relevant building control officials.”
The property is zoned “agricultural” which entitles the owner to a single residence and appropriate outbuildings.
The Section 24G application states that the applicant bought the property in 2004: “The owners do not want to change the zoning but would like to formalise the structures on site... The applicant went ahead as per his existing rights and in 2011 constructed a very modern main house at large cost of R3m.”
“The applicant also constructed an additional accommodation unit and social area using only wood from the area… Both the main house and the additional structure is, however, closer than 100m from the high water mark.”
The application does not refer to other structures on the property, but these are listed in the environmental impact assessment heritage report as “low-key development” put in since 2004: the house and four wooden “cabins”, all cast on concrete floors; a network of informal roads to various cabins; caravan sites with shade mesh and wall screens; the permanent stationing of caravans on site; the laying of services, building of outdoor showers and toilets, and “presumably” septic tanks/latrine pits; and the construction of plant walkways linking a number of cabins.