Resident loses expansion bid in art deco street

By Siyavuya Mzansi Time of article published Oct 4, 2016

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A VREDEHOEK homeowner has lost his case in the Supreme Court of Appeal (SCA) to scrap conditions imposed for the demolition of a building on his property which is older than 60 years.

The structure formed part of a national estate and was “worthy of protection as a heritage resource", the court ruled.

Property owner Peter Gees’s application for leave to appeal was also dismissed with costs by the SCA.

Gees had asked the SCA to review the demolition conditions the Western Cape Heritage appeals tribunal had imposed on his permit.

The permit was granted subject that the new development on the site did not exceed the “town planning envelope” of the existing building.

The tribunal also imposed that the materials used for the façade of the new building were in keeping with the existing building.

Gees had sought a high court order directing Cultural Affairs and Sport MEC Anroux Marais to reconsider his appeal.

Erf 1444 and the structure on Davenport Road were neither formally declared a heritage site as contemplated in the National Heritage Resources Act.

Acting Judge Bernard Fourie said it was common cause that although the structure on Erf 1444 was not worthy of protection, the surrounding area was and the City had regarded the area as conservation-worthy.

While certain areas in 
Vredehoek fell within a Heritage Protection Overlay Zone (HPOZ), Erf 1444 did not, but the City was currently in a process of conducting a survey of the area with the intention of rendering the area which the land is situated subject to the HPOZ.

The City had also regarded Erf 1444 as being of significance within its context of a well-preserved, coherent art deco streetscape spanning both sides of Davenport road.

The large concentration of art deco buildings in the area were unique in the country’s context and Davenport Road was the core of the art deco area of Vredehoek, according to the SCA.

“Although the proposed designation of the area as a heritage area requires further refinement, as well as engagement between the owner and the public, the evidence shows that it is an ongoing process that would, in the foreseeable future, result in the formal protection of the area in which Erf 1444 is situated.”

The judge said the conditions were not aimed at controlling development as such, but constituted conditions with a conservation objective and the conditions were lawfully imposed.

Gees’s legal counsel had argued that the act did not authorise heritage officials to impose conditions controlling future development on a property when they granted a permit authorising demolition of the structure on a property with no formal heritage status.

Judge Fourie said it was true that the conditions imposed in the demolition permit amounted to a curtailment of Gees’s entitlement to deal with his property as he sees fit, and may therefore to a certain extent be regarded as a deprivation of property.

‘‘In these circumstances I find that there has been no arbitrary deprivation of the appellant’s rights of ownership by HWC," said the judge.

‘‘On the contrary, the imposition of the conditions, in my view, was reasonable and equitable, having regard to the inherent responsibility of the appellant towards the community in the exercise of his entitlements as the 
owner of Erf 1444.”

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