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Thursday Jun 07, 2012

Hout Bay residents lose Chappies battle

The Residents' Association of Hout Bay lost its court case yesterday to halt construction of the Chapman's Peak toll office building on Table Mountain National Park land.

They had applied to the Western Cape High Court for a temporary interdict to stop construction of the R54 million office building, on national park land and in a World Heritage Site, so they could take separate court action to have the building declared unlawful on the grounds that the provincial government did not have all the necessary legal authorisation.

There were several other "legal hoops" the authorities still had to jump through. These included deproclamation of the national park land, written approval in terms of the Protected Areas Act, approval of the site development plans, removal of title deed restrictions and obtaining fresh environmental authorisation in terms of the National Environmental Management Act.

The residents did not ask the court to halt construction of the toll plaza - the canopy and toll booths - as these were in the road reserve and not on national park land.

Judge Bennie Griesel found that what the residents were seeking in their main court action - which they had laid out during last week's interim interdict application - was merely to delay, not prevent, construction of the toll office.

"To erect further hoops through which the contractor and the province are supposed to jump would simply prolong the whole process - at great cost - without any tangible benefit accruing to anyone," Judge Griesel said.

The applicants' claim that both SANParks and the Environment Minister needed to grant further authorisation for the toll office to be built legally, Judge Griesel said, was "sheer pedantry; formality for the sake of formality".

While it was not necessary for the court to decide on the merits of their main court action - which would be heard in a later court case - merely to be satisfied that they did indeed have a case, Judge Griesel nevertheless found the merits of the case were "open to serious doubt".

Even if he had been persuaded otherwise, he would still not have granted them the interim interdict, for several reasons.

These included that the residents would not suffer irreparable harm if the interdict were not granted - they had exaggerated the environmental threat the construction posed, which would encroach on only 2 000m² of the national park's 117 000 hectares, which was "rather inconsequential" - and damage to the vegetation had been "by and large averted".

The court had to weigh the prejudice to the applicants (the residents) if the interdict were refused against the prejudice to the respondents (provincial government) if it were granted. Judge Griesel found that the prejudice to the province would be far greater.

First, the province would suffer financially because of the delay in construction, which amounted to R9m, and second, the existing temporary tolling booths were inadequate.

The court could also not exclude the possibility that toll concessionnaires Entilini would terminate their contract because of delays, increasing the cost to the province, which would have to pay damages.

This, with the weakness of the residents' case they would present in the main court action - the minimal encroachment of the office on national park land and the fact that the residents were trying to reopen "old decisions" which they could not challenge directly - led the court to refuse the interdict.

Even if the residents' case were found to have weight, the court could not grant the interdict as they were not going to suffer adverse effects. He made no order on costs. Transport MEC Robin Carlisle said the judgment was "a victory for common sense". The province would continue with construction, which he hoped would be completed by April, creating an "efficient and safe" toll operation.

Len Swimmer, chairman of the Residents' Association of Hout Bay, said: "We will now have this massive luxury office on national park land, in a World Heritage Site, forever, and that's the tragedy."

Mari-Lou Roux, director of the Habitat Council, said: "If we can't stop construction... it's very bad news for all protected areas."

Cape Times

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