The recent Western Cape High Court judgment by Mister Justice Fourie in the matter of Seafront for All & Another v The MEC: Environmental and Development Planning, Western Cape Provincial Government and 3 Others[1] brought to an end a protracted legal battle involving the preservation of one of Cape Town's most valued multi-cultural and multi-racial public open spaces, the Sea Point Promenade.

The matter concerned a review application against a decision by the first respondent, the MEC: Environmental and Development Planning, Western Cape Provincial Government (MEC) authorising the proposed redevelopment of the Sea Point Pavilion site on which the third respondent, On Track Developments (Pty) Ltd (On Track) sought to erect an up-market hotel with 52 bedrooms and a retail centre, which would extend below the high water mark and onto the beach.

The proposed development required authorisation in terms of section 22 of the (now largely repealed) Environment Conservation Act, 73 of 1989 (ECA) for the change of land use from zoned public open space to any other land use, and for construction which would have taken place below the high water mark and impacts upon public resorts and associated infrastructure.

The application for the setting aside of the decision by the MEC was brought on the bases that:

(i) The MEC failed to consider alternatives to the proposed development;

(ii) The MEC relied on an expert report co-authored by a party which had an undisclosed financial interest in the proposal sought;

(iii) The MEC's decision was based on information that was in material aspects out of date;

(iv) The MEC took her decision on the basis of materially incorrect information, concerning the extent of loss of open space and the consequences of the proposed development for traffic and parking; and

(v) The MEC failed to undertake the balancing exercise required of her in terms of the ECA, namely to weigh up the need for the proposed development against any adverse impact on the environment, particularly the loss of open space.

The Court held that the review application succeeded on the basis of each of the aforementioned grounds individually. In presenting his reasons for his judgement, Judge Fourie provided some noteworthy insights on certain aspects of constitutional, environmental and administrative law which are briefly touched on below.

Failure to consider alternatives

In failing to investigate the question of alternative proposed activities for the site, On Track adopted the stance that the scoping reports had to focus on implementing the City's tender award and not to consider alternative types of activities for the site. The reason for this was that On Track's specialist consultants believed that the investigation was limited to the City's tender decision, which had stipulated the type of development that should be on the site and that not even the no-go option had to be considered as an alternative.

The Court held that the failure of the MEC to consider reports of alternative proposed activities and, in particular, the no-go option, was fatal to the process.

In dealing with this aspect in more detail, the Court expounded on the Sea Point Promenade's strategic significance of being one of the few open spaces in Cape Town which evokes the sense that social equality sought by democracy is in fact being fostered there. The Court refers to the concept "democratic space" which is described as:

"Democratic space refers to open, secure and well-developed public urban spaces for all urban residents where people should be able to mix with various groups and experience the benefits of urban environments. Again the local authority has a major role to play in promoting and supporting the development of democratic urban spaces throughout the City".

The Court held that the views expressed above emphasise that decision-makers who are confronted with applications which involve the utilisation of public open spaces, should appreciate the importance of the decision and not proceed with the decision-making process without an expert report dealing fully with the strategic significance of any change of land use from zoned open space to any other land use.

Expert report by consultant with undisclosed financial interest

The economic report submitted in support of the application for environmental authorisation had been prepared by a consultant who had allegedly been appointed as the sole letting agent for the development.

On the facts of the matter it was apparent that the appointment of the consultant as letting agent would only have occurred upon the development going ahead. The Court held that it was reasonably justifiable to infer that the consultant could or would have had an expectation that it might derive a financial benefit from the proposed development. This probable expectation by the consultant that it could or would derive a substantial financial benefit from the proposed development was held by the Court as an incentive for it to cast the proposed development in a favourable light in its specialist report.

The Court referred to the position held by Prof. Jan Glazewski in his seminal textbook Environmental Law in South Africa, 2nd edition, page 240 where it is stated:

"In stipulating that an independent consultant is appointed, the view may be held that the requirement for independence does not apply to specialists who may be appointed by the consultant to carry out specific duties. In the writer's view, the requirement of independence applies to both the consultant and the specialists who may contribute to the study".

On the facts of the matter the Court held that the requirement for independence was not met by the consultants and that the decision by the MEC fell to be set aside on that ground alone as well.

Failure to consider changed circumstances

The original decision by the MEC to grant the application for environmental authorisation was taken in August 2007. This was more than three years after the record of decision had been issued by the Director: Integrated Environmental Management (the second respondent in this matter).

The contention by the applicants that the MEC was required to consider all relevant information at the time of her being asked to do so (i.e. current information reflecting an accurate state of affairs irrespective of when the original application had been granted), was upheld by the Court.

The Court stated that the material change in the circumstances in the period 2002-2007 had to have been taken into account by the MEC in her decision-making process. To the extent that the MEC purported to consider socio-economic changes after September 2004, this was done on the basis of outdated information. The Court held that the integrity of the environmental assessment process would be seriously undermined if decision-makers were to base their decisions on substantially outdated information. In failing to call for updated information the MEC took her decision on the basis of irrelevant considerations and failed to have regard to relevant considerations.

The Court continued by stating that in relying on outdated and erroneous information, the MEC precluded herself from properly performing the required balancing exercise and that she could thereby not have been in a position to decide on whether the proposed redevelopment of the site would have served a socio-economic need.

Conclusions

The Court reviewed and set aside the decision by the MEC and remitted the matter for reconsideration taking into account the principles outlined in the judgement.

In the formulation of the reasons for its decision, the Court's reference to the requirements for socio-economic considerations to be taken into account in instances regarding development of public open spaces is welcomed as a barometer of the judiciary's promotion of the spirit, purport and objects of the Bill of Rights contained in our Constitution.

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[1] Unreported judgment delivered 26 March 2010 in the Western Cape High Court, Cape Town (Case No. 15974/07).

Written by: Janse Rabie, Associate at Cameron Cross Inc