Beach Club ruling hailed as win for Disa River

In this photo from 2011, Justin ORiain and resident Chris Hudson are shown with a City official inspecting dumped rubble.

Hout Bay residents have hailed a Western Cape High Court ruling ordering the developer of the Hout Bay Beach Club to remove soil, general rubble and fill that was placed within the floodplain of the Disa River.

The judgment was made on World Wetlands Day, Friday February 2.

Really Useful Investments (Pty) Ltd, the developer of the beach club, was ordered to remove the material from the floodplain, which was dumped there in 2011. This was to be done within 45 days.

However, Really Useful Investments attorney Carel Hofmeyr, of Du Plessis-Hofmeyr-Malan land law specialists in Somerset West, said it was their intention to seek leave to appeal the ruling.

“As such, I am not in a position to comment further at this stage,” Mr Hofmeyr said.

According to the City, which described the judgment as a “watershed ruling”, Really Useful Investments started infilling part of the wetland and floodplain of the Disa River in 2011 in order to develop its property, much to the ire of Hout Bay residents.

Although the land is privately owned, the court found that infilling is in contravention of the City’s Stormwater Management By-law which prohibits land owners from dumping any material in a river, floodplain or wetland, or to reduce the capacity of the stormwater system without the written consent of council.

In April 2011, the City served a notice of contravention on the developer, ordering it to stop the infilling immediately and remove the fill already in the floodplain.

The City’s environmental management department followed this with a directive in terms of the Environment Conservation Act which required that the fill be removed from the floodplain.

Really Useful Investments at first indicated it would comply with the directive, but by late 2012 only a part of the wetland had been restored, and the fill material remained in stockpiles and spread out on the floodplain.

In 2014 the City went to court to force the company to comply fully with the notice and directive that had been served, while Really Useful Investments instituted its own court action seeking compensation from the City. That claim was dismissed by the Supreme Court of Appeal in 2015.

The City’s proceedings were delayed as both parties sought to find an amicable settlement, but when these efforts proved fruitless the City’s application was finally set down for hearing in court.

The court declared the infilling of the floodplain to be in contravention of the Stormwater Management By-law. Furthermore, the court found that Really Useful Investments had failed to comply with the directive in terms of the Environment Conservation Act and directed them to do so within 45 days of the judgment.

Should it not comply with the order, the City is authorised to enter the property and remove the material, and recover the costs from Really Useful Investments.

“The outcome of the Disa River case in the Western Cape High Court is a major victory for the City. We do all we can to protect rivers, wetlands and floodplains, particularly as these form an essential part of Cape Town’s natural environment and biodiversity,” said Brett Herron, mayoral committee member for transport and urban development.

“Furthermore, this judgment sends a strong message to developers that they should abide by the City’s policies and by-laws.”

Really Useful Investments has also been directed to pay the City’s legal costs.

Len Swimmer, chairman of the Hout Bay Residents’ and Ratepayers’ Association, was at the forefront of the campaign to compel the developer to remove the material.

“It is very rewarding, but the real hero has been attorney Nicholas Smith. I was the first to take up the case but he helped us tremendously,” Mr Swimmer said.

“If they are intending to appeal the ruling, then their thinking must be that the City will go against regulations and laws.”

Hout Bay resident Justin O’Riain, who is also the director of the Institute for Communities and Wildlife in Africa at UCT, recalled the day when he was driving to work and first witnessed the bulldozers filling in the wetlands with beach sand.

“A cliched 60s hippie stand-off ensued whereby the only way I could stop the infilling was to stand in front of the bulldozer until the contractor switched off his engine and agreed to call the developer, a Mr Hemphill. Hemphill was adamant that he had permission to fill in the wetlands and expand the ill-conceived beach club. I was adamant that he did not, and so began a long and involved battle that has only recently been resolved in the courts with the help of three of Hout Bay’s environmental stalwarts, Len Swimmer, Chris Hudson and Richard Timms,” he said.

“It is now fair to say that there is broad consensus from City officials and Hout Bay residents that the beach club should never have been built and its presence is evidence of a time in the history of Hout Bay when developers had carte blanche and were gifted ecologically sensitive land with the wholesome support of the then Hout Bay Ratepayers’ Association.

“The beach club is especially problematic in being sited at the confluence of the Hout Bay River and the sea. Battered by the south-easter in summer it will have to endure many environmental challenges as climate change raises ocean levels and drives more frequent flood events.”

Mr O’Riain said it was increased flooding risk linked to climate change that galvanised the City to finally act against this development, having approved it in the early 90s.

As the Hout Bay catchment had hardened, so urban run-off had accelerated and increased and thus the wetlands at the river mouth provided an important release valve for rising waters.

“Fill in the wetlands and the risk of flooding higher up the river increases. That was the lynchpin that changed the City’s mind through the stormwater by-laws and demanded that the beach club remove the fill or compromise low-lying properties throughout the valley.”

Mr O’Riain said the ruling was a significant victory for Hout Bay.

“Most importantly, it will save the City and by definition the ratepayers considerable cost in future. A developer builds for profit tomorrow and seldom considers long-term ecological impacts and their downstream maintenance and remedial costs. It is thus the City’s role to consider these costs and we are relieved that it got it right, albeit only on the second time.

“The lessons from the beach club are twofold. The City is getting smarter about long term-costs and can say no to short term gains sought by developers, and local residents have a critical role to play as the eyes and ears for detecting ecological travesties and reminding the City of their broader responsibility to upholding their own by-laws.”

Jackie Whales, of the Friends of the Rivers of Hout Bay, welcomed the court’s decision.

“We are delighted. And well done to the City for pursuing this to completion,” she said.

“We hope this would be a strong deterrent to anyone who wants to selfishly disregard the value of the river and wetland area.”