Gone are the days when a property owner or developer could spot a spectacular view and decide to erect a building with a perfect outlook. Nowadays, particular consideration of other the properties or objects in the vicinity of a property is necessary - especially since the sites or objects concerned may enjoy a 'right to a view' in terms of South Africa's Heritage Laws.
The 'right to a view' relates to a heritage site or object where its value depends largely on its location, and specifi cally the views it looks out on as a vantage point.
A prime example is Cape Town's Fort Wynyard, a unique Victorian coastal defence battery with unobstructed views of Robben Island and Blouberg.
Should Fort Wynyard's view be lost or obscured, its value as a heritage site would diminish drastically. Since South Africa would be the poorer for such a loss, the fort's 'right to a view' is protected by law. This has impacted directly on the extent to which properties adjacent to Fort Wynyard can be developed.
PAST MEETS PRESENT
Historically, the development potential of a property depended largely on its zoning and title deed restrictions. This position has changed dramatically in the past few years.
Presently, planning frameworks, environmental concerns and other statutory requirements, notably heritage matters, have resulted in a much more complicated scenario.
A particularly powerful piece of legislation is the National Heritage Resources Act 25 of 1999. The Act gives far-reaching powers to the heritage resources authorities in terms of development proposals to such an extent that they can disallow any development of a particular property. In turn, these authorities are vigilant and highly active in carrying out their mandate.
Briefly, the National Heritage Resources Act aims to promote good management of the national estate to enable and encourage communities to nurture and conserve their legacy for future generations.
In support of this, the preamble of the Act states: 'Our heritage is unique and precious and it cannot be renewed. It helps us to define our cultural identity and therefore lies at the heart of our spiritual well-being and has the power to build our nation. It has the potential to affirm our diverse cultures, and in so doing, shape our national character'.
MANAGING THE NATIONAL ESTATE
Our national estate is preserved, conserved and managed through a three-tier system. At the apex is the South African Heritage Resources Agency, which manages national heritage sites. At the provincial layer are the provincial heritage agencies (eg Heritage Western Cape). The various local authorities (ie the City of Cape Town) make up the third tier.
A grading system, consisting of three grading categories (equating to the national, provincial and local management tiers) is used to identify heritage resources of particular significance. The bulk of heritage resources are Grade 3 resources, meaning that local authorities play a major role in heritage site management.
In the case of Cape Town's Fort Wynyard, mentioned earlier, it was declared a National Monument in 1976 and has the status of a Provincial Heritage Site, falling under the jurisdiction of Heritage Western Cape.
Fort Wynyard is a focal point of this brief as it exemplifies the 'right to a view' principle associated with certain heritage sites or objects.
HOLDING THE FORT: HERITAGE SIGNIFICANCE
Since its establishment in 1652 as a refreshment station for VOC ships heading for the lucrative trade route between the East and Europe, Cape Town's strategic location necessitated fortifications of some sort to protect it from rival trading companies (Bauman, Clift & Hart 20081).
Owing to its clear view of the entrance to Table Bay, Fort Wynyard was a particularly strategic coastal defence battery for Cape Town from the early 1800s onwards. The fort is located on one of the last remaining calcrete dunes on the mountainside corner of Beach Road and Granger Bay Boulevard. It borders on the eastern side of the Cape Town Stadium and Metropolitan Golf Course.
Fort Wynyard and many other defence batteries were dismantled in 1827 when the English and French signed a peace accord.
However, the outbreak of the American Civil War in 1861 once again necessitated the arming and refurbishment of the Cape of Good Hope's defences, and Fort Wynyard was refurbished, its earthworks were reinforced and it was re-armed with six 32-pound guns (Bauman, Clift and Hart 2008).
The fort continued to be used well into the 20th century. It was active during World War I and II, and in 1962 became the headquarters of the Coastal Artillery Maintenance Unit. In 1975, permission was obtained for Fort Wynyard to be converted into a museum.
The heritage significance of Fort Wynyard can be summarised as follows:
High associational/group value: it is a significant part of a system of coastal defences spanning nearly three centuries.
High international and national historical/military technological significance: the fort is a unique Victorian coastal defence battery in terms of its content, layout, context and degree of intactness. Three pre-dreadnought period naval guns are in their original positions with much of their original mechanisms still extant. The 9.2-inch disappearing gun mounting is the only one of its kind in Africa and one of the few remaining in the world.
High local landmark status: the fort's location on a prominent calcrete dune contributed to its strategic landmark position during the 18th century to early 20th century. Although this context is undergoing considerable change, the relationship of the fort to the shoreline and the retention of significant sea views are of key importance. The visual component of our environment is recognised as an extremely valuable resource that must be protected due to its associated scarcity value and irreplaceability (Oberholzer 20052).
In this regard, the Guideline for Involving Heritage Specialists in Environmental Impact Assessments (Winter & Baumann 20053) identifies a number of heritage contexts of which the Scenic/Visual Amenity Landscape context is of particular relevance for the Wynyard case study. The resources concerned include view sheds, view points, views to and from, distinctive representative landscape conditions and so on.
High national educational significance: the site has high national, regional and local military historical significance as a coastal artillery battery since it is the only complete Victorian battery with its guns intact. Consequently, the fort has great educational and tourism value, although currently undervalued.
High national and local aesthetic/ architectural significance: Fort Wynyard is an excellent example of military engineering and the use of local stone for the construction of ramparts and underground chambers.
VIEW FROM THE TOP: PROTECTING VIEW CONES AND SIGHT LINES
By virtue of their role, batteries and defence lines had to be placed in areas of strategic importance, determined mainly by their line of sight and fire. Consequently, the inherent heritage significance of Fort Wynyard is primarily tied to its strategic defence position at the entrance to Table Bay and its ability to cover the approach from Robben Island and the opposite shoreline (Bauman, Clift and Hart 2008). Hence, the fort's scenic and visual components are intrinsic to its heritage significance.
The South African Heritage Resource Agency (SAHRA) stated the need to protect the views and sight lines of the fort's guns in 1992 with the Water Club residential development adjacent to the V&A Waterfront The Agency identified two strategic view 'windows' from the key gun emplacements which it deemed necessary to protect and maintain – the view of Robben Island and the view extending from Granger Bay to Table Bay (Bauman, Clift and Hart 2008).
To ensure the protection of these key views Heritage Western Cape subsequently imposed appropriate height restrictions and view corridors when approval was granted for the development of the Beach Road Precinct in the V&A Waterfront.
STRINGENT APPROVAL PROCESSES FOR DEVELOPMENT PROPOSALS
Section 38 of the National Heritage Resources Act stipulates the process that must be followed for any proposed development in the proximity of a heritage site:
- Any person who intends to undertake such development must give notice of the intended development to the responsible heritage authority. The authority must then determine what heritage resources may be affected by the proposed development, and also whether the developer should submit a heritage impact assessment before proceeding.
- If there is reason to believe that heritage resources will be affected, the authority must notify the developer that a heritage impact assessment is required. Extensive information is required for this assessment. It entails identifying and mapping all heritage resources in the area concerned, assessing their significance in terms of the heritage assessment criteria, assessing the impact of the development on the heritage resources, and evaluating the impact relative to the sustainable social and economic benefits to be derived from the development.
- On receiving the heritage impact assessment report, the authority must, after consulting the person proposing the development, decide the following:
- whether or not the development may proceed;
- any limitation or conditions to be applied to the development;
- what general protections apply in terms of the National Heritage Resources Act, and what formal protection they should have;
- whether compensatory action is required in respect of any heritage resources damaged or destroyed as a result of the development, and
- whether the appointment of specialists is required as a condition of approval of the proposal.
In considering the impact of the proposed development on the heritage resource, the Act requires that the responsible heritage authority must evaluate the impact of the development on such heritage resources relative to the sustainable social and economic benefits to be derived from the development. The aim is always to achieve a win-win situation which will allow feasible social and economic development to proceed in such a way that the heritage significance of the heritage resource is protected and preserved for our national estate.
In terms of South African law, a property owner generally does not enjoy a 'right to a view'. At most, property owners enjoy a "borrowed" view over adjacent properties, which disappear when they are developed and existing views interrupted.
By contrast, the protection of view cones and sight lines by the South African Heritage Resources Agency and Heritage Western Cape in respect of the Fort Wynyard guns is a clear indication as to what extent objects of heritage significance do enjoy 'rights to a view'. Such protection directly affects the extent to which a person may be able to develop his property.
As the Fort Wynyard example shows, certain objects have a history where the view is an inherent part of their heritage significance. Should the view be obscured, the heritage value of the object could be drastically reduced, in turn affecting the entire community and outweighing the autonomy of the individual wanting to undertake the development.
There is however no one-size-fits-all approach, as the authorities measure, in each case, the importance of the heritage resource relative to the socio-economic benefits of the proposed development.
1. Baumann N, Clift H & Hart T Phase One Heritage Impact Assessment, Beach Road Precinct, Green Point 2008 (March) Victoria & Alfred Waterfront Company
2. Oberholzer B Guideline for involving visual and aesthetic specialists in EIA processes: Edition 1 2005 CSIR Report No ENV-S-C 2005 053 F Provincial Government of the Western Cape, Department of Environmental Affairs & Development Planning, Cape Town.
3. Winter S & Baumann N Guideline for involving heritage specialists in EIA processes: Edition 1 2005 CSIR Report No ENV-S-C 2005 053 E Provincial Government of the Western Cape, Department of Environmental Affairs & Development Planning, Cape Town.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.