Cape Town - The Habitat Council, which has spent 11 years fighting to save an 18th century Cape Town building, has lost its court battle against the City in a Western Cape High Court judgment that saw neither party emerge smelling of roses.
The case concerned the development of the historic Martin Melck warehouse which runs the length of the block along Bree Street, adjacent to the historic Lutheran Church complex on Strand Street.
The Habitat Council had wanted a court decision allowing the development of the building to go ahead to be reviewed, but the judge ruled the issue moot as construction was already too advanced.
The Melck Warehouse is owned by the Gera Investment Trust who are the developers of the property.
In his ruling, Judge Patrick Gamble criticised the City for having spent ratepayers’ money in defending a decision which held no benefit for those ratepayers or the public at large. He said the City had actively advanced a case in the interests of the Trust.
“In my view the conduct of the City, to which the Habitat Council has objected, is correctly categorised as lacking in constitutional citizenship.”
While awarding costs in the long-running matter, Judge Gamble said that although usually costs follow the result, it was at the court’s discretion depending on the circumstances of a case.
“This is particularly so in circumstances where the conduct of the successful party falls to be deprecated.”
The judge said fairness required that the City should bear part of the applicant’s costs on account of the manner in which it conducted itself overall. At the same time, he took a swipe at the Habitat Council: “The applicant has litigated with a marked degree of tardiness.”
He said there were long periods in the progress of the litigation when nothing happened and it took no steps to progress the matter. He gave the example of the removal of the case from the roll twice in 2021 at the applicant’s behest.
The initial plans for the site generated controversy, with the approval by the Heritage Western Cape being challenged by heritage activists who said that it was the only 18th century street-scape still preserved in a single block in South Africa.
The development had originally been refused unanimously by the City’s spatial planning, environment and land use management committee (Spelum).
However, the decision was reversed by the City’s Mayco in 2015. In 2018 the high court ruled the Habitat Council could appeal against the 2015 mayco decision to allow the development of the 1764 building to go ahead.
While all of this was happening, the heritage status of the building was being considered by the SA Heritage Resources Agency (Sahra).
Although the Habitat Council believed the property should be graded as a provincial heritage site, which would have had restrictive implications for the proposed development, Sahra, supported by Heritage Western Cape (HWC), graded the property as “Grade III A (local)”.
This is a lower grading than the remaining buildings in the Melck precinct, which have national heritage status.
Habitat Council chief executive Marie-Lou Roux, who originally led the battle to save the warehouse, died in September 2017, aged 86.
mwangi.githahu@inl.co.za