City's project pave-over on irreplaceable land

By SUSANNA COLEMAN Time of article published Dec 11, 2016

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FOR SEVEN years, the City of Cape Town has stretched every single rule in the book to see to it that developers Wentzel Oaker (Rapicorp) and John Coetzee (Uvest) be given the keys to the Philippi Horticultural Area (PHA) kingdom.

It's a kingdom of cheap rural land and potential mega-profits where, with one shift in the urban edge, R36 million of farmland is now worth R890m and, if the City gets its way, 1 000 hectares of construction.

According to City policies, this construction should and could be undertaken elsewhere. But now developer Oaker will lead the charge by paving over the primary recharge zone of the Cape Flats Aquifer.

Building 30 000 houses, two shopping centres, a private school, a private prison and establishing a light industrial area on the southern third of the PHA will ultimately delete the 200 000 tonnes of vegetable production a year.

For generations to come, up to 70 percent of the vegetable supply of Capetonians will have to be imported from outside the province.

According to 2010 figures, production turnover in the PHA was an estimated R270m a year.

The PHA is officially “unique and irreplaceable” and the most productive horticultural land in the country.

Against the advice of City planners, a ruling from the National Department of Agriculture, and two full City Council votes, processes for the approval of three developments and an aquifer-deleting 30m deep silica sand mine by Consol are on the verge of completion.

A great deal of it was pushed through really quickly during the run-up to local elections in August this year. A relentless avalanche of comments have been demanded from the PHA Food & Farming Campaign (PHA FFC), who exist to protect the breadbasket of the City from developers, virtually non-stop since early 2015.

What will be fascinating for citizens is watching the City try to overcome, in our opinion, the irregularity, irrationality and illegality of the processes so far.

The City’s repeated mantra of “no decisions have been made/due process is being followed” (can you claim both?) and stout claims of “we have the constitutional right to make all local planning decisions” is not going to wash before a judge.

Sure, you have the right, provided you don't disregard every relevant municipal, provincial and national act and policy along the way.

In April 2016, I published Aquifer Denials, Disinformation.

Several PAJAs, hours and hours of research work by the PHA FFC, and legal opinion have since clarified things.

There simply is no legal path forward that could possibly allow Project Pave-Over the PHA to reach its logical conclusion. Yet, in the experience of many other civics in the City, we expect this not to deter mayor Patricia de Lille.

The Mayco Development Tribunal simply overrides all due process and “complex” planning procedures (aka those which have been turned down via due process) are conclusively approved with a sweep of the mayor’s pen.

This we will watch with interest, because the PHA issue raises a number of crucial questions on all of Cape Town’s rights as residents.

The City will firstly have to justify – in the face of empirical evidence that the PHA is central to the food security of the city – deleting this Section 27 constitutional right of 6 million citizens in favour of profit for two developers (named above) and Consol Glass.

And, they will have to answer the questions that will always arise when the financial interests of so few are prioritised over the rights of so many.

The City will also have to prove that it is rational and reasonable to:

l Continue with development applications that were concluded via due process firstly via a full City Council decision on November 26, 2009 (Rapicorp); and secondly, via MEC Bredell’s announcement on January 13, 2014 (MSP, now Uvest); and explain to a judge why this is not a violation of the Promotion of Administrative Justice Act or fruitless and wasteful expenditure;

l Ignore the Spluma (the latest municipal management act) which compels local government to “ensure that special consideration is given to the protection of prime and unique agricultural land”;

l Approve upmarket housing in a rural area against the City’s densification policy, when 10 000 hectares of urban city land is available, and was specifically identified for this purpose in 2010;

l Severely jeopardise the Section 27 rights of the PHA Community (6 000 workers and 150 farmers) regarding their rights to work, eat, good health and make a living.

l Delete a globally unique opportunity to sink their carbon emissions into soils in a farmland that (already) feeds the city, sustainably and organically, enabling it to become a beacon in the world for foresight and planning; and offsetting millions of dollars in carbon tax.

To grant approval for rezoning farmland the city will have to successfully navigate the following legal obstacles:

l Prove the legality of an urban edge shift in 2011 that was contrary to both zoning and the spatial framework – something the Physical Planning Act of 1991 does not allow;

l Prove that the PHA – which is agriculture zoned – does not fall under the ambit of the National Minister of Agriculture (whose denying an urban edge shift request from the City in 2008 was never taken under review, and was then ignored), a status confirmed by the Stalwo constitutional court ruling of 2008.

l Overcome the February 2016 Heritage Western Cape ruling that states, alongside the 2012 Cape Town Spatial Development Framework and four city commissioned studies, that the PHA must be protected and preserved.

How will Mayco convince the Constitutional Court that in exercising their right to make municipal level planning decisions, their authority supersedes the contents and requirements of National Acts, and the provincial designations thereof?

The City will have to defend:

l Why they are doing business with a developer who (like the Gupta company Tegeta, given a leg up by Eskom), is currently under financial curatorship, reporting annually to the high court.

l Why they have purchased land in the PHA and have undertaken to purchase more developer-owned land (as soon as their rezone application is approved – by the City), using taxpayers money, when the City is specifically tasked with preventing land speculation in the PHA, in order to keep land and food affordable.

l Why they negotiated (successfully) on behalf of the developer, with DEADP (provincial Environmental Affairs) in 2015, to skip the requirement for Environmental Impact Assessment, when the Fuel Retailers Constitutional Court ruling clearly states that rezoning cannot be implemented without the former.

l The fact that they have taken a development turned down at provincial level by Environmental Affairs and chopped it back up into separate erven, rezoning without the requisite urban edge shift, environmental or ministerial approval.

l Ignoring the right of every citizen in Cape Town to food, water and a safe environment.

We are so hoping that someone somewhere will step in and talk sense to the “powers that be”.

Because really, the unique potential of a fully functioning Philippi Horticultural Area is worth far more to a “World Design City”.

The central planning ethos of cities all over the world is sustainable, climate friendly, food friendly decision-making. Please don’t insist on leaving a murky legacy of unnecessarily deleting the climate, food and water security for a city of 6 million.

Frankly, we, on the PHA Food & Farming Campaign, would much rather be farming.

Coleman works in Public Health and is a volunteer on the PHA Food & Farming Campaign (which can be found on Facebook)

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