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Wednesday May 30, 2012

Chapmans Peak: R141m lost if companies pull out

There was a real risk that construction companies would lose patience with the legal wrangling over the Chapman's Peak toll plaza and cancel their agreement with the provincial government, the Western Cape High Court heard.

This aerial shot was taken two weeks ago and forms part of the court record.

If Murray & Roberts and Haw & Inglis, "large and reputable engineering construction companies", sought compensation as a result, it was likely the provincial government would have to pay a settlement of R141 million.

Sean Rosenberg, appearing for Premier Helen Zille and Transport MEC Robin Carlisle, said yesterday this was one of the "grave consequences" of the project being halted for a year. This should be taken into account by the court when considering the application.

The Residents' Association of Hout Bay and Habitat Council have asked the court to grant them an order to halt the construction of the toll buildings on Chapman's Peak Drive. If they are successful, they intend returning to court to establish whether the construction of the R54m toll office on national park land is lawful. This could take a year. Rosenberg said this would push the date for completion of the toll buildings from July 2013 to June 2014 and increase the cost by R9m.

"We submit that the prejudice the province will sustain, and the public at large will sustain - because it will not be confined to the citizens of Hout Bay - is enormous," he said. This should be weighed up against the "non-existent prejudice" the residents' association would suffer.

Regarding the title deed restrictions on the land in the national park, which prohibited its being used for purposes other than conservation, Rosenberg said this was a condition that had been imposed by the provincial government.

If the province decided to amend this condition, the public could not veto the decision.

"The fact that a party may have an environmental interest in this matter does not give that party a right to enforce that title condition," Rosenberg said.

Judge Bennie Griesel pointed out that the title deed to the land where the toll building is to be constructed, which is in the Table Mountain National Park, stated that SANParks was required to comply with the National Parks Act. Jeremy Muller, for the applicants, replied: "Correct, and we say they haven't done so, and the permission given for the (toll) control building to be constructed flies in the face of the Parks Act."

Regarding the prejudice the province would suffer if the applicants won the case, Muller said nothing they were asking for would prevent the toll road from being used. The main prejudice would be financial. He conceded the provincial government would have to pay a "substantial penalty". However, that was "a small price" to pay when compared to the toll building being constructed unlawfully.

Ashton Schippers, who holds a watching brief for the Minister of Water and Environmental Affairs, said the minister had never given written authorisation for construction of the building in a national park or World Heritage Site.

Judgment was reserved.

Cape Times

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