Residents opposed to the planned luxury toll office in Chapman’s Peak Drive have written to the provincial government
|||Residents opposed to the planned luxury toll office in Chapman’s Peak Drive have written to the provincial government hoping to halt construction before it begins.
Workmen are at the site of the proposed two-storey office on the scenic drive and have begun clearing away containers in the old builder’s yard.
Cullinan and Associates, lawyers representing residents, wrote to the provincial government’s state legal adviser and to Transport MEC Robin Carlisle on Thursday saying that in their view it would be unlawful to proceed with construction. They argue that as it is on Table Mountain Nation Park land, only a decision by Parliament can deproclaim the land.
Lawyer Greg Daniels said in the letter that the statement to the Cape Times by SANParks head David Mabunda on Wednesday confirmed their view. Mabunda had said the process to deproclaim the land “was under way”.
“This confirms our view that, under the present circumstances, it would be unlawful to proceed with the proposed construction. Please urgently advise if your department intends allowing construction activities to proceed within Table Mountain National Park,” the letter said.
Asked on Thursday for his response to the letter, Carlisle’s spokesman Steve Otter said: “The minister is currently consulting his legal advisers on the contents of the letter.”
Otter said no construction had begun on Table Mountain National Park land.
Murray & Roberts, senior partner of the Entilini Concession company, believes Entilini has followed due process and has the “required and lawful” authorisation to build the toll booth and office.
If construction begins and residents get a court interdict to stop it, the public, through the province, will have to pay Entilini compensation for the delay, according to the concession agreement between the province and Entilini. Otter said this compensation clause would not apply because no legal action was pending.
Although residents’ lawyers believe construction would be unlawful before the land had been deproclaimed, this might not be so clear-cut. Attorneys have told the Cape Times that if Entilini has been given authorisation – even if it later turns out to be unlawful – they have a right to rely on it, and can go ahead and begin building.
They said sometimes unlawful administrative decisions could produce valid consequences. However, they said this was a “tremendously vexed area of law” and the only way to ensure an unlawful administrative decision was not acted upon was to have it reviewed by a court and set aside.
The toll plaza and associated buildings were approved by former environment minister Marthinus van Schalkwyk in 2008. Although many members of the public had appealed against the decisions, none of them challenged it in court to have it reviewed and set aside.
They say another approval is necessary before construction can begin, which is to have the land deproclaimed. - Cape Times