Eskom takes City to court over Wescape development | Fin24
 
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Eskom takes City to court over Wescape development

Jun 22 2016 11:57
Ashleigh Furlong

Cape Town - Eskom has slammed the decision of Anton Bredell, the provincial minister of local government, environmental affairs and development, and the Cape Town City Council to amend the urban edge to include land for the Wescape development on the west coast.

The power utility has taken Bredell and the City Council to the Western Cape High Court over the planned development of Wescape, designed as a city of 800 000 people.

The decision to amend the urban edge to allow the development was taken by Bredell in December 2013 on the recommendation of the City Council, which had decided a year earlier to support the application.

Eskom wants the decision reviewed.

In its court papers, Eskom says the minister - or the City Council, should it be found to be the final decision maker - among other things “failed to apply his/its mind to the matter; it resulted from an error of law; was irrational and grossly unreasonable; was taken for an ulterior purpose; was arbitrary; was actuated by bias and bad faith; was based upon irrelevant considerations and due to the dictates of another body or person; and was procedurally unfair".

In particular, Eskom says Bredell or the City Council failed to consider the safety of the future population of Wescape in the event of an emergency at the Koeberg nuclear power station. The development would be located within the restricted zone of 16 km around Koeberg.

This concern is reiterated by a radiation protection specialist at Koeberg, who in his affidavit points to the Fukushima disaster in Japan as an example of what could happen when there is an increased population around a nuclear power station.

In the court papers, Eskom also spells out the objections to Wescape and says that when Bredell or the council approved the amendment, they did not consider all the comments and objections of the various stakeholders.

In his response, Bredell calls the accusation that he failed to apply his mind “unjustified” and “notes with some concern that it is suggested that my decision was actuated by an ulterior purpose, was arbitrary or affected by bias and bad faith" – claims, he says, which are not supported by evidence.

He says the application was not for development rights and that all he was required to do was to “make the in principle decision that residential development in the area could, over a long term, be desirable”.

“It may ultimately be that no development can take place on the property, or that any development must be curtailed to something less ambitious,” he states.

The fight started in July 2014 when Eskom initiated court proceedings against Bredell, asking that his decision to approve an amendment to the Cape Town Spatial Development Framework to permit residential development, and incorporate Wescape into the urban edge, be set aside.

But by then Bredell had in any case decided to withdraw the framework from the plans he is entitled to amend in terms of the Land Use Planning Ordinance.

Bredell argued this meant that his approval to the amendment to the urban edge falls away, and that any amendments were now the responsibility of the City of Cape Town, in terms of its Integrated Development Plan. He argued that “Eskom was shooting at the wrong target”.

As a result, Eskom amended its papers to argue that if the court finds that Bredell’s decision has “lapsed” or no longer has “any practical effect”, the council’s decision to amend and/or to recommend support for "an amendment must be reviewed and set aside".

But the City, in its papers, states that it “did not take a decision but instead made a recommendation to the provincial minister”.

In an affidavit, Mayor Patricia de Lille said she has since been advised that the City can make a decision on the extension of the urban edge but at the time, “the council understood its role as being one of making a recommendation as opposed to taking a decision”.

She said that in the light of Bredell’s action, there is no basis for review “unless and until the original application is reconsidered by the City” and the City makes a decision to amend it.

No date has been set for a hearing.

wescape  |  city of cape town  |  koeberg  |  eskom  |  western cape
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