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Monday Oct 01, 2012

Laws to protect views for heritage properties

Every developer loves a view, but heritage laws may put some of SA's most spectacular views out of developers' reach.

Fort Wynard's unobstructed views towards Robben Island and Blouberg.

"This is a relatively recent scenario, as historically the development potential of a property depended largely on its zoning and title deed restrictions. That has changed dramatically in the past few years and the position is now much more complicated," says Hendrik Kotze, director of property at Werksmans Attorneys.

In addition to planning frameworks and environmental constraints on property development, heritage laws must also be taken into account, in particular the National Heritage Resources Act of 1999.

"The act gives far-reaching powers to the heritage resources authorities in terms of development proposals," Kotze says. "In fact, they can disallow any development of a particular property in the proximity of a heritage site or object.

"The heritage resources agencies are vigilant and very active in carrying out their mandate. They guard jealously against developments that could impinge on the heritage significance of heritage sites or objects, which in certain instances enjoy a 'right to a view' under the National Heritage Resources Act.

"The 'right to a view' relates to a heritage site or object where its value depends largely on its location, and specifically the views it looks out on as a vantage point," Kotze says.

A prime example of a heritage site where its right to a view was recognised is Cape Town's Fort Wynyard, a Victorian coastal defence battery with unobstructed views towards Robben Island and Blouberg.

Kotze says the fort's heritage significance is based on many factors. Fort Wynyard was an important part of Cape Town's coastal defences over three centuries and some of its gun mountings are the only ones of their kind in Africa and among the few remaining in the world.

"However, the inherent heritage significance of Fort Wynyard is tied to its strategic defence position at the entrance to Table Bay, and its line of sight and fire," he says.

"Should the fort's views be lost or obstructed, its value as a heritage site would diminish drastically," says Kotze. "Hence, its scenic and visual components are intrinsic to its heritage significance, and this has directly affected the extent to which properties adjacent to Fort Wynyard can be developed."

Specifically, height restrictions and view lines were imposed on properties falling in the sight lines of the fort's main guns when approval was granted for the development of the Water Club and the Beach Road precinct in the V&A Waterfront. In respect of both these developments a reasonable compromise was reached between t he respective developers and Heritage Western Cape, which allowed for the development of the properties while preserving the heritage significance of the fort.

Before they can undertake a development in the vicinity of a heritage site, developers and property owners must meet certain requirements.

First, they must give notice of their intention to develop the site to the heritage authority concerned - Heritage Western Cape, in the case of Fort Wynard.

The authority must then determine what heritage resources may be affected by the proposed development, and decide whether the developer should submit a heritage impact assessment. This includes mapping all heritage resources in the area, assessing their significance, assessing the impact of development and evaluating the impact against the social and economic benefits of the development.

Next, based on the impact assessment, the authority, in consultation with the developer, decides whether or not, or to what extent, the development may proceed. If it gives the green light, it may decide whether limitations or conditions should be imposed on developments, such as height restrictions or the keeping of view lines, as well as how the heritage site should be protected.

"In terms of South African law, a property owner generally does not enjoy a right to a view," Kotze says.

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