A growing body of Franschhoek residents and the Franschhoek Trust and Ratepayers Association are bringing pressure to bear on Stellenbosch Municipality’s Planning Department to ‘stick to the rules’ and enforce compliance with building and zoning regulations.
They are opposing the flouting of these regulations at the site of a proposed new boutique hotel, ‘Maison Cabrière’, on the corner of Kruger and Cabrière Streets in the declared historic core of Franschhoek.
Top legal and town-planning teams have been hired to research and present their case and stop the Municipality from creating another ‘Lavender Farm’ situation. **
“We expect the DA municipality that we elected to enforce their own regulations, as they assured us they do,” said a spokesman for the group.”
In a submission to the municipality, lawyers for the group state, “Alarmingly, the six suite boutique hotel which is the subject of the application is already at an advanced stage of construction and is being advertised online. The construction is a flagrant and wilful violation of the Municipality’s planning bylaw 2015, read with the zoning scheme and a criminal offence in terms of the National Building Regulations and Standards Act, 1977 and should not be countenanced by the Municipality considering and approving ex post facto as it were, a zoning application and any associated building plans to regularise the unlawful construction and intended use of these unlawful structures.”
The saga began in March 2016 when the architects of the new owners of the property canvassed neighbours to ask permission to relax a small section of the building line adjacent to the original heritage house to accommodate a laundry and a toilet for a private residence. The neighbours were assured (in writing) that there would be no impact on them. No mention was made of the true nature and extent of the alterations to the original heritage structure, which involved the removal of the small loft windows and the installation of larger windows higher on the building, the removal of the original reed ceiling, raising of the roof and the additional ‘dwelling’ that would be erected or the impending rezoning application. As a result the neighbours have subsequently withdrawn their consent in correspondence with the municipality.
Shortly after the neighbours granted their consent for what they were told would be minor alterations that would have no impact on their rights and interests, foundations were laid for a second large building. No permission for change of usage had been applied for yet.
In June, a notice was served on interested and affected parties of the application for rezoning from single to general residential zone for the purpose of developing a ‘boutique hotel’.
There is also a dispute about whether the property comprises one or two erfs. Opponents claim the subdivision process was flawed and illegal. They maintain the property has never been lawfully sub-divided. This would mean that the second structure that has been erected is unlawful.
“If however it is two erfs, as the owners suggest, then the municipality has allowed the building of a dwelling as a residence on the second erf that has no kitchen and no living room, just a series of en-suite bedrooms,” the spokesman said.
According to the group, the structure was clearly never meant to be a self-contained dwelling house, but rather to provide additional accommodation for the proposed boutique hotel to be serviced from the heritage building on Erf 173. They maintain that the presentation of the structure as a residential dwelling house is disingenuous and a ruse. This is confirmed in the application report which states, “An existing dwelling is to be upgraded and altered for guest house purpose and a second new structure is under construction to accommodate further guests”. This is despite the fact that the current zoning does not permit the construction of a boutique hotel.
The group is now asking how building plans for a boutique hotel could be passed when rezoning had not been granted.
In July, a Cease Work Order was served by the municipality for deviation from the approved building plan for the original house citing roof height violations and altered window positions.
Simultaneously, they served a Cease Work Order in respect of unlawful deviations from the building plans for the new building on the basis that the roof height was not approved and the fact that thatch and not corrugated iron (as specified in the plans) was used for the roof.
Revised plans have since been submitted to the Municipality. The group however opposes these too as they view it as a way to gain approval for the previous illegal work that was carried out.
The statutory provincial heritage authority, Heritage Western Cape, whose mandate is to ‘identify, protect and conserve the rich and diverse heritage resources of the Western Cape’ has also come out strongly in opposition to the deviations from the plans that were originally presented to them for their approval and has issued its own Cease Work Order. It currently remains in place.
Heritage Western Cape’s Built Environment and Landscape Committee (BELCom) that is responsible for considering permit applications for alterations and demolitions to buildings older than 60 years has recently resolved as follows:
“The Committee was of the opinion that the reasons for non-compliance have not been adequately addressed and resolved that the original building permit be revoked. The committee was of the opinion that the unauthorised work has negatively impacted heritage significance in terms of the scale and massing of the additions and recommended that Heritage Western Cape lay charges.”
The owner has been afforded an opportunity to make representations as to why the permit should not be revoked and why criminal charges should not be brought against him by Heritage Western Cape.
Revised plans have subsequently also been submitted to HWC. In the submission the heritage practitioner for the owners contends that previous owners had already altered the original heritage building to the point where it no longer had heritage significance and that heritage legislation should therefore not apply. The opponents’ advisers say that this is not the case and that it is in fact the work done by the current owners that has undermined the building’s heritage significance.
The opponents also vigorously dispute the visual impact study that the owners have commissioned – particularly with regard to the new building. The visual impact assessment states “Although the project buildings are two storey, among many that are one, and one and a half storey, they are deemed compatible with others in the locality, they fit into the local streetscape character, and do not negatively impact upon the existing sense of place.”
The matter was due to be heard at the HWC Belcom meeting on 28 February.
** At Lavender Farm, despite serious breaches of various laws and the fact that both the Cape High Court and Supreme Court of Appeal have set aside building plans and zoning approvals that had been unlawfully granted by the Municipality, the owner of Lavender Farm continues to operate a guest house illegally and for significant financial gain a number of years later, facing a mere proverbial ‘slap on the wrist’ from the Municipality for his conduct. The Lavender Farm matter is now also the subject of an ongoing investigation by the Public Protector’s office.
What others say:
Asked for comment the Executive Mayor of Stellenbosch, Adv Gesie van Deventer, commented as follows: “I note with concern the information provided. Lawyers have been appointed to take this matter further. In the light of legal processes it is not wise at this stage to comment further in the public or media on the matter”.
The ward councillor for the area, Mr Aldridge Frazenburg (Ward 1, DA), said it was difficult to comment on the technical aspects, but has promised to keep an eye on the situation.
The municipality’s Director of Planning and Economic Development, Mr Dupre Lombaard, did not wish to comment, but says he has discussed the matter with the mayor.
At the time of going to press the owners of the property had not responded to requests for comment.
Penny Gordon, the writer of this article, is one of the objectors.