/ 9 September 2023

City engages lawyers in dispute with Woodstock civic group

Disa Park With Salt River And Woodstock In The Background
The City of Cape Town is proceeding with its land release on the historic Castle bowling green in Woodstock, despite a decision by the Western Cape Heritage council to endorse a heritage impact assessment recommending the land be preserved as urban green space.

The City of Cape Town has lawyered-up against residents of the diverse suburb of Woodstock who are opposing the city’s plans to turn a historic bowling green into a housing development.

The local residents’ association received a letter from blue-chip law firm Fairbridges Wertheim Becker on Thursday.

This came in response to questions sent to officials in relation to an appeal the city filed after Heritage Western Cape (HWC) denied approval for a social housing project on the Castle Bowling Green in Earl Street. 

In April, the statutory body endorsed a heritage and social impact assessment which concluded that the bowling green site should become part of an upgraded public park as the area lacks adequate safe and communal green space. 

The city, which commissioned that study, has in its appeal submission dismissed the findings of the author. It also used the run-up to the appeal hearing to commission an opinion from an architect, which purports to review and refute the findings of the initial survey. 

This second opinion, written by architect Steven Townsend, was filed this week as a supplementary submission to the city’s appeal to HWC, the provincial statutory authority on heritage matters.

The Woodstock Residents’ Association (WRA), and residents writing in their individual capacity, questioned whether this was permissible, and if so, whether they would also be allowed to make further submissions before the appeal is heard this Wednesday.

The city did not reply. Instead, WRA’s head of planning and heritage, Ute Kuhlmann, received a note from Fairbridges.

It reads: “Our client has provided us with your email of 09h31, 6 September 2023. We are taking instructions from our client and will formally respond thereto, insofar as we deem necessary, in due course.”

The city’s appeal was initially scheduled for hearing on 11 July but it sought a postponement.

Speaking to the Mail & Guardian, Kuhlmann noted that, on that date, the city claimed it had not received certain electronic communications and could therefore not submit its appeal documents. 

“The agreement was they could supply submissions based on the documents they allegedly have not received … [but] they have gone and rewritten their appeal and called it a supplementary submission,” Kuhlmann said. “This is problematic.” 

In an email the WRA sent to the city, which the M&G has seen, it describes the city’s submission, titled Annexure D, “a second bite at the cherry” as it deals with matters contained in the initial heritage and social impact assessment, which was sent to the city first and directly. Residents received copies weeks later. 

“These documents and facts were all known to the city, and in their possession at the time of the appeal deadline, and had to be raised in the city’s original appeal,” read Kuhlmann’s email. 

Moreover, she added, the submission by the city would provide “grounds for a further appeal” for the residents’ association. She said the association would ask HWC, “to disregard those submissions”.

Of the city’s lawyers’ letter, Kuhlmann said the association did not have the means to brief counsel and engage in litigation.

“There is no trying to win in a court of law against a city that has infinite coffers to lawyer up. Even if the community could stump up the resources, there would be much better use for them in our neighbourhood than spending them on a court case,” she said.

The city, in the opening lines of the second submission, insists that it has the right to introduce new evidence on appeal. 

“The appeals committee has wide powers of appeal, and is entitled to decide an application afresh, with new evidence. It must have regard to any relevant factor which is brought to the attention of the appeal committee, including by the appellant.”

This submission relies heavily on the opinion it commissioned from Townsend.

He argues that the initial heritage and social impact assessment failed to identify heritage reasons for not allowing the construction of 160 housing units on the bowling green.

That assessment, carried out by heritage and environmental specialists Bridget O’Donoghue and Tony Barbour, had stressed the history of the bowling green and its surroundings.

“During the apartheid period, the bowls club was one of few venues in the area that non-whites could rent and use for important social events, such as weddings, etc. The clubhouse was also used as a voting station in the first democratic elections in South Africa in 1994.”

Barbour found that building over the bowling green would “result in a lost opportunity for the [city] to provide more open space in an area where the need for safe, well-managed and maintained open space will increase”. 

This is inevitable as four social housing developments are in the pipeline in the neighbourhood, with residents’ blessing, which will more than double its population. 

At the moment it counts some 800 houses and apartments. The new developments will see more than 1 000 units built within a 250m radius, an area that includes the bowling green.

Barbour explicitly deemed the space — which directly borders the Victorian cottages of Melbourne Terrace in Earl Street — unsuitable in terms of heritage rules.

He recommended that the units the city planned to build on this site should be subsumed into a bigger social housing project across the road, on the site of the former Woodstock Day Hospital, of at least 600 units.

Residents welcomed Barbour’s report, and HWC’s endorsement of it, with relief. 

The WRA filed a counter appeal to the city’s appeal, in which it referenced the initial findings on the sensitive heritage of the area.

In the papers filed this week, the city dismisses these concerns.

“While the WRA claims an impact on heritage resources, it does not identify the heritage resources referred to or describe the impacts. The claim is an empty one,” it says.

It makes the same claim regarding Barbour’s findings, saying: “The SIA [social impact assessment] provides very little information about any claims of heritage, tangible or intangible.”

It proceeded to argue that the decision should not be made in terms of heritage legislation but in terms of a local land use by-law.

“The issues of public open space, and the numbers of social housing dwelling units proposed, are both aspects that can — and should — be dealt with in the future land-use planning process,” it said, adding that this process “has not commenced yet”.

One resident said the city’s motives for making this argument were not hard to see.

“It is abundantly clear from the city’s appeal, that they would like to push the impact assessment process under different legislation, into the land-use application space — in other words, in terms of the city’s planning by-law,” the concerned resident told the M&G

“There is a very good reason for this. The appeal authority in the City of Cape Town, in terms of land-use applications, is the mayor.”

Should the public object to a land-use determination that favours the development of the site for housing, he said: “The mayor will simply dismiss such a land-use appeal, as he already publicly announced the release of the land in question for the purpose of social housing.”

Mayor Geordin Hill-Lewis announced on 25 May that the city council had approved the use of the bowling green for a housing development. He told the M&G that the city proceeded, pending the outcome of the appeal process, to save time.

Kuhlmann noted that city officials remarked in July, at the meeting where the appeal hearing was postponed, that this meant that whatever the heritage authority ultimately decided, the land would not become a public park as it would cease to be public space. 

In its appeal submission, the city said it lacked the funds to maintain a park on the site and faulted Barbour’s assessment for relying on general, internationally accepted guidelines on green public space.

“Those policies are also not necessarily appropriate in this context,” it said.

There was furthermore “a failure to recognise the special position of Woodstock between mountain and sea”, it added, without explaining the significance of this geographical detail.