Oct 30,2012 / News / Legal Brief

Every developer loves a view. However, heritage laws may put some of South Africa’s most spectacular views out of developers’ reach.
“This is a relatively recent scenario as historically, the development potential of a property depended largely on its zoning and title deed restrictions. That has changed dramatically in the past few years and the position is now much more complicated,” says Hendrik Kotze, director of property and real estate at Werksmans Attorneys.
In addition to planning frameworks and environmental constraints on property development, heritage laws must also be taken into account, particularly the National Heritage Resources Act of 1999.
“The act gives far-reaching powers to the heritage resources authorities in terms of development proposals,” Kotze says. “In fact, they can disallow any development of a particular property in the proximity of a heritage site or object,” he says, adding that the heritage resources agencies are vigilant and highly active in carrying out their mandate.
They guard jealously against developments that could impinge on the heritage significance of heritage sites or objects, which in certain instances enjoy a ‘right to a view’ under the National Heritage Resources Act.
“The ‘right to a view’ relates to a heritage site or object where its value depends largely on its location, and specifically the views it looks out on as a vantage point,” Kotze says.

HOLDING THE FORT IN CAPE TOWN

A prime example of a heritage site where its right to a view was recoqnised, is Cape Town’s Fort Wynyard, a unique Victorian coastal defence battery with unobstructed views towards Robben Island and Blouberg. Fort Wynyard is a National Monument that falls under the jurisdiction of Heritage Western Cape.
Kotze says the fort’s heritage significance is based on many factors. For example, Fort Wynyard was an important part of Cape Town’s coastal defences over three centuries and some of its gun mountings are the only ones of their kind in Africa and among the few remaining in the world.
“However, the inherent heritage significance of Fort Wynyard is tied to its strategic defence position at the entrance to Table Bay, and its line of sight and fire,” he says. “Should the fort’s views be lost or obstructed, its value as a heritage site would diminish drastically. Hence, its scenic and visual components are intrinsic to its heritage significance, and this has impacted directly on the extent to which properties adjacent to Fort Wynyard can be developed.”
Specifically, height restrictions and view lines were imposed on properties falling in the fort’s main guns’ sight lines when approval was granted for the development of the Water Club and the Beach Road Precinct in the V&A Waterfront. In respect of both these developments a reasonable compromise was reached between the respective developers and Heritage Western Cape, which allowed for the development of the properties, while simultaneously preserving the heritage significance of the Fort .

IMPLICATIONS FOR DEVELOPERS

Before they can undertake a development in the vicinity of a heritage site, developers and property owners must meet certain requirements.
Firstly, they must give notice of their intention to develop the site to the heritage authority concerned – this being Heritage Western Cape in the case of Fort Wynyard.
The authority must then determine what heritage resources may be affected by the proposed development, and also decide whether the developer should submit a heritage impact assessment before proceeding.
Kotze says a heritage impact assessment includes mapping all heritage resources in the area, assessing their significance, assessing the impact of development, and evaluating the impact against the social and economic benefits of the development.
Next, based on the impact assessment, the authority in consultation with the developer decides whether or not or to what extent the development may proceed. If it gives the green light, it may decide whether limitations or conditions should be imposed on developments, such as height restrictions or the keeping of view lines, as well as how the heritage site should be protected, among others.
“In terms of South African law, a property owner generally does not enjoy a right to a view,” Kotze says. “At most, property owners enjoy a ‘borrowed’ view over adjacent properties, which disappears when these are developed and existing views interrupted.”
By contrast, the protection of view cones and sight lines in respect of the Fort Wynyard guns is a clear indication as to what extent objects of heritage significance do enjoy a right to a view. Such protection directly affects the extent to which a person may be able to develop his property.”
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