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National Heritage Resources Act and Protection of Graded Properties

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Habitat Council v BPH Properties (Pty) Ltd: Court confirms that the grading of property has no significance to its protection under the National Heritage Resources Act

The appellant, the Habitat Council (“Habitat”), a voluntary association concerned with conservation of the built environment, appealed against the judgment and order of the court a quo, by which that court upheld an application, at the instance of BPH Properties (Pty) Ltd (“BPH”), for the review and setting aside of a decision of an independent appeal tribunal (“IAT”) established in terms of section 49(2) of the National Heritage Resources Act 25 of 1999 (“the Act”).

In August 2011 BPH applied for permission, in terms of section 34 of the Act, to demolish a seaside cottage known as Highclere, located on a property belonging to BPH. A demolition permit was required because the cottage was more than 60 years old. In November 2011 Heritage Western Cape (“HWC”), through its Built Environment and Landscapes Committee (“BELCom”), granted the permit. In March 2012, and at the instance of interested neighbours, the HWC appeals committee, acting in terms of s 49(1) read with the provincial regulations governing appeals to the HWC’s council, reversed BELCom’s decision. In terms of section 49(2), BPH filed a further appeal to the IAT which dismissed the appeal on 31 October 2013. That is the decision which BPH successfully applied to have set aside.

As background, the review application was issued on 2 March 2016, slightly more than 28 months after the IAT’s decision. The 180-day period referred to in s 7(1) of PAJA began to run on or shortly after 31 October 2013. BPH’s delay in issuing the review application was thus per se unreasonable.

A threshold question in the court a quo was whether the 180-day period should be extended in terms of s 9(1) of the PAJA. In terms of the latter section the court may exercise the power of extension “where the interests of justice” so require. One of Habitat’s grounds of appeal was that the court a quo erred in granting an extension.

The court a quo considered that BPH had provided a reasonable explanation for the delay and found the delay not to be unreasonable.

The IAT, in agreement with the appeals committee, found that Highclere had sufficient heritage value to justify its conservation as a heritage resource. It was clear from the IAT’s reasons that this conclusion formed the basis of its dismissal of BPH’s appeal. After dismissing the appeal, the IAT proceeded to recommend that HWC attend to the formal protection of the property and to find that BPH had wilfully neglected the maintenance of the property. HWC thus being advised to serve on BPH an order in terms of s 45 to repair and maintain the property.

In its review application BPH criticised the IAT for reaching its decision despite the absence of a formal grading of the property. Following the decision, BPH sought to obtain a formal grading of the property. BPH’s counsel submitted that it was reasonable for BPH to delay its review application for this purpose.

The Court, in reaching its decision on this matter, held that the grading of the property did not have the significance for which BPH contended. The Court referred to section 34 of the Act, which requires a permit to alter or demolish a structure which is more than 60 years old, and held that this was a self-standing source of protection for buildings with heritage significance. The Court confirmed that a property need not have been graded for the latter protection to apply.

The Court held that the court a quo has erred in finding that it was in the interests of justice to extend the period for bringing the review from 180 days to 852 days (the period calculated by the parties and the court a quo). The Court upheld the appeal with costs and set aside the order of the court a quo. Further, the review application was dismissed.

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