The owner of the Brass Bell restaurant in Kalk Bay has been ordered to demolish controversial deck extensions and restore the public area to its previous state.
An investigation by the provincial department of environmental affairs and development planning found the owner, Tony White, had contravened the National Environmental Management Act by building two decks.
In terms of the act, White is allowed to apply to the department to keep the illegally built decks in place but the application is not guaranteed.
This comes seven months after Kalk Bay residents lodged a complaint.
Residents were annoyed when White erected two decks near the children’s tidal pool and put a door along a walkway which is used by residents and the public to walk from the harbour to Main Road.
Residents complained that no public participation had taken place. They called the construction work by White “privatisation” and a “takeover” of a public area.
Last week the department issued White with a compliance notice, telling him he had broken the law, and ordered him to immediately cease the unlawful activities and restore the site to its previous state.
After an inspection in June, an environmental inspector confirmed that White had “unlawfully commenced with infilling, excavation and construction activities within 100m of the high water mark without environmental authorisation”.
Related to the Brass Bell case, the unlawful activities include the: “construction of two wooden decks, concrete foundations, a children’s tidal pool and a kitchen structure”.
White applied last week to keep the decks and other illegal work in place. If the application is refused, White will have to break down the illegal structures and return the site to its original state.
If White still fails to comply he can be fined up to R5 million or face a jail sentence of up to 10 years.
White leases the land from the Passenger Rail Agency of SA (Prasa). Earlier he told the Cape Times that he had entered into a “perfectly legal lease with Prasa and obtained written permission from them before erecting the decks and kitchen”.
Even though Prasa owns the land, they cannot give White permission to build the decks without obtaining environmental authorisation.
White said the city did not have planning jurisdiction over Prasa property and therefore he had not submitted plans to the city.
Prasa said they allowed White to erect the decks as they deemed the changes “minor works” and were therefore of the opinion that environmental authorisation was not needed.
White said earlier that he had done everything that was legally required and did not consider himself in contravention of the act.
White said he did not realise permission was necessary. “The City Council was quite happy with the decks; they have just asked for certain access which they’ve set out in a letter. I received a letter last week saying approval was necessary. I phoned them. It was said that I could obtain permission after the fact via a prescribed form.”
He said ratepayers had asked the city to get him to guarantee access to the public during the restaurant’s open hours.
“Doors will be open during business hours. People might have thought the area was a public beach but of course it never was. The railway always leased that land. They leased it to the City Council, which made it a public amenity. In 1987 the railway realised the nominal rental that they were giving to the City Council in no way reflected what the Brass Bell was paying,” White said.
Cape Argus