The Western Cape High Court has ordered the developer of the Hout Bay Beach Club to remove the soil, general rubble, and fill that was placed within the floodplain of the Disa River within 45 days.
Really Useful Investments started infilling part of the wetland and floodplain in 2011 in order to develop its property, much to the ire of Hout Bay residents, the City's Mayco member for Transport and Urban Development, Brett Herron said.
Although the land is privately owned, the court found that infilling is in contravention of the City’s Stormwater Management By-law which prohibits land owners from dumping any material in a river, floodplain or wetland, or to reduce the capacity of the stormwater system (which includes floodplains) without the written consent of Council.
In April 2011, the City served a notice of contravention of the Stormwater Management By-law on the developer, which required it to immediately stop infilling into the floodplain of the Disa River and to remove the fill material that was placed within the floodplain.
The City’s Environmental Management Department followed this with a directive in terms of the Environment Conservation Act which required that the fill material be removed from the floodplain.
Although Really Useful Investments at first indicated that it would comply with the directive, by late 2012 only a part of the wetland had been restored, and the fill material remained in stockpiles and spread out on the floodplain.
In 2014 the City commenced with court proceedings in an effort to force Really Useful Investments to comply fully with the notice and directive that had been served, while Really Useful Investments instituted its own court action in an attempt to claim compensation from the City.
The compensation claim was dismissed by the Supreme Court of Appeal in 2015.
Herron said the City’s proceedings were delayed as both parties sought to find an amicable settlement, but when these efforts proved fruitless the City’s application was set down for hearing in court.
On 2 February judgment was handed down and the court declared the infilling of the floodplain to be in contravention of the Stormwater Management By-law.
The court also found that Really Useful Investments had failed to comply with the directive in terms of the Environment Conservation Act and directed them to do so within 45 days of the judgment.
"Thus, the court has ordered Really Useful Investments to remove the soil, general rubble, and fill that was placed within the floodplain of the Disa River within 45 days.
"Should it not comply with the order, the City is authorised to enter the property and to remove the material, and to recover the costs from Really Useful Investments.
"The outcome of the Disa River case in the Western Cape High Court is a major victory for the City. We do all we can to protect rivers, wetlands and floodplains, particularly as these form an essential part of Cape Town’s natural environment and biodiversity," said Herron.
Really Useful Investments has also been directed to pay the City’s legal costs.