LUTHERAN CHURCH UPGRADE ON ICE
Judge sets aside MEC’S development approval as ‘planning laws unconstitutional’
A WESTERN Cape High Court judge has set aside Local Government, Environmental Affairs and Development Planning MEC Anton Bredell’s decision to approve the development of an 18th century Lutheran Church complex in the city centre.
Judge Dennis Davis had yesterday, by agreement between the parties, made an order of court that Bredell’s decision be set aside because the provincial Land Use Planning Ordinance he used to make his decision was inconsistent with the constitution.
The first leg of the court action brought by the Habitat Council sought to overturn Bredell’s decision regarding the controversial development and the second, to have a section of the ordinance declared invalid.
Referring to case law, Judge Davis said “each sphere of government was allocated separate and distinct powers”.
“It (the ordinance) is overbroad. It effectively guts powers that municipalities have regarding municipal (issues),” he said.
The development, designed by leading restoration architect Gawie Fagan, is planned for the block bounded by Bree, Waterkant, Strand and Buitengracht – a declared urban conservation area that includes the Lutheran Church complex and comprises some of the oldest buildings in Cape Town.
The developers had, in April 2011, approached the city with their intention to build a modern four-storey office block on top of the existing building, raised on eight pillars, but they were unsuccessful. Two months later they appealed to Bredell who upheld it in October 2012, effectively giving the developer the green light.
One of the conditions of his appeal approval was that the province and the city jointly formulate the final conditions of approval.
As part of the order, Bredell had asked for a 24-month suspension period for the government to review the Land Use Planning Ordinance and, if necessary, alter the planning ordinance.
“I’m satisfied that these arrangements are sufficiently in accordance with justice and common sense,” Judge Davis said.
After court Habitat Council chief executive officer Marie-Lou Roux said the order was an “interim victory”.
Because Bredell’s order was set aside, the city’s spatial planning, environment and land-use management committee’s decision to refuse the development would be “revived”. The developers would then be allowed to appeal against that decision with the city via the Municipal Systems Act.
“The real battle is still ahead,” Roux said.