South Africa: Court Blocks Development On Cape Flats Aquifer

19 February 2020

City of Cape Town and provincial government told to go back and reconsider their decisions

The Western Cape High Court on Tuesday halted the proposed Oakland City development on the Cape Flats Aquifer, telling the Western Cape government and the City of Cape Town to go back and reconsider their decisions.

The Court said the province and the City had not properly considered the impact of the development on the aquifer when allowing for the development to go ahead.

The Philippi Horticultural Area Food and Farming Campaign, an organisation aimed at protecting the farmlands of the Philippi Horticultural Area (PHA), took the decisions to rezone the land and to grant an environmental authorisation on review. The farmers of the PHA, which is known as Cape Town's food basket, have been under threat from developers seeking to extend urban development onto the farming land.

The Oakland City proposal included housing for 15,000 families on about 171 hectares of the land, with schools, commercial and industrial facilities on 28 hectares, and a conservation and wetland area on 77 hectares.

The PHA lies on top of a huge aquifer that not only provides a consistent supply of water to the farmers, but supplies water to the surrounding wetlands of Princess Vlei and the False Bay Nature Reserve. The Campaign argued that in granting the environmental authorisation to the project, the Western Cape Department of Local Government, Environmental Affairs and Development Planning did not sufficiently consider the impact of the development on this aquifer. They said the development site lay over one of the deepest parts of the aquifer. The PHA is essential to the survival of the aquifer given the recent droughts in the Cape Town area and the increasing threat of climate change. The department failed to do a specialised aquifer impact assessment, the Campaign said.

The Court agreed that none of the various studies considered by the department specifically focused on the impact of the development on the aquifer, the importance of its preservation and how to best achieve this in the context of water scarcity and climate change in the Western Cape. In addition, the studies considered were all quite outdated, the most recent being three years old by the time the decision was made. As a result, Judge Kate Savage wrote, key factors relevant to the decision to grant the environmental authorisation were not taken into account. "What was required was a more recent assessment of the health of the aquifer and the impact that the proposed development will have on the aquifer given climate change and water scarcity in the area." As a result, the decision was set aside.

The Court also set aside the decision of the City of Cape Town's Planning Appeals Committee to approve the rezoning and subdivision of the Oakland land on the same basis. The Constitution and the National Environmental Management Act requires a rezoning decision to consider the preservation of the natural environment and the effect of the development on existing rights. This must include the aquifer. The Committee was thus required to consider the impact of the rezoning and subdivision "in relation to the aquifer as a large underground natural resource, its state, future, and impact on issues related to water scarcity and climate change". It did not, she said.

The Campaign asked the Court to use its discretion to not just set aside this decision, but replace it with what it would consider the appropriate decisions. But Judge Savage said that the Court's finding related to the way the decisions of the department and the Committee had been reached, rather than the contents of the decisions themselves. She told the department and the Committee to reconsider their decisions, taking into account all the relevant information as required by law.

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