Mixed use development – update Feb 2022
…The long saga of Erven 1098-1104 Emmarentia Ext 1.
In 2014 the Emmarentia Residents’ Association (ERA) became aware of the intention to develop seven sites in the triangle bordered by Barry Hertzog Ave, Gleneagles and Linden Roads as a mixed-use development (supermarket, shops, restaurants, office, banking and apartments).
At that time Emmarentia and Greenside had an approved local Precinct Plan that did not support such a development and the City advised the developer to engage with the communities with a view to amending the Precinct Plan to accommodate the development. ERA and GRA arranged several public meetings and the overwhelming response from residents was that the development was not in keeping with the area, it was too high, too intense and would create traffic and service problems and the 4 500m2 of non-residential uses would negatively impact on the existing shops in Greenside and Emmarentia. A process with the City ensued to arrive at a suitable amendment to the Precinct plan, which process extended into 2019.
However, while this process was under way, the developer submitted a rezoning application for the development. ERA and GRA had to mobilise the community to establish whether to formally object to the application. The overwhelming response was that residents object to this development and urged a wider objection process. At the end of the objection period, 2 479 objections were obtained and submitted against this development.
What the developer applied for:
- The simultaneous removal of restrictive conditions and rezoning of erven 1098 – 1104 Emmarentia Ext 1, in terms of Section 5 of the Gauteng Removal of Restrictions Act 1996, to rezone from Residential 1 to Business 2.
- Business 2 rights are for 5 000m2 where 2 500m2 is for offices or a Medical Day Clinic but exclude car lot sales, places of instruction, liquor store and sale of alcoholic drinks.
- 89 Residential units
- 5 storeys
- Coverage of 55% and Floor Area Ratio of 1,35
- 6 metre building line with 8 metres along boundary with townhouses
- Removal of most title conditions including those relating to the Lourens Geldenhuys Family.
The application languished at the City for several years due to the objections and the Precinct Plan Amendment process. The City was also developing new spatial planning policies. In 2016 the City approved a new Spatial Development Framework (SDF) which also called for nodal development to be reviewed. A new process was initiated by the City to prepare a Nodal Review Policy that would form an annexure to the approved SDF. The Nodal Review Policy was approved by Council on 27 February 2020. One of the key implications of this policy was that it set aside Precinct Plans older than five years. Another aspect of the Nodal Review Policy is to promote densification and mixed land uses in areas that fall within the General Urban Zone, which these sites do.
Despite numerous enquiries by ERA on the progress with the application, little information was forthcoming. All objection parties to the application were deeply shocked and surprised when ‘out the blue’ we were notified only one month before the date of a Tribunal Hearing to commence on the 11 November 2020.
ERA, given the number of objections and strong feelings of the local communities of Emmarentia and Greenside, took a decision jointly with the Greenside Residents’ Association (GRA) to fight the application at the Tribunal. To do this effectively we needed to commission lawyers and experts. We also appealed to residents for funding support, knowing that this would be an expensive battle.
ERA and GRA arguments at the Tribunal
ERA, GRA and our legal and expert teams argued that this development was not appropriate on that site, using the following arguments:
- Our retail expert and a leader in his field showed that there is not a need for new commercial/retail centre and that this site is not suitable for this;
- Our traffic expert put in a strong showing to prove how flawed their traffic studies were and must be ignored and re-done;
- Electricity and water services for the rest of the suburbs will be severely compromised if this development proceeds, especially given the state of the ageing infrastructure;
- The planning controls are excessive and some are higher than permitted by policy (e.g. coverage) and no departures have been argued;
- The planning application process is confusing as it was made under the old laws and a new application should have been made when the new By-law, Land Use Scheme and Nodal Review Policy was approved by the City;
- The site itself is sloping and has minor roads on two sides, making it difficult to develop for this use;
- The site is better suited to Residential development and residents will be support a three-storey development, possibly with some four storey penthouses in the centre of the site where it would not impact on neighbours;
- The application was held back to benefit from the Nodal Review Policy but the applicant has chosen to ignore the Inclusionary Housing Policy that was also approved around that same time;
- The application provided no evidence that it had notified the heritage authorities of this development which is a requirement.
It is worth noting that given all our very valid objections, a key stumbling block was that since the Nodal Review Policy was approved, it was no longer possible to argue that the application does not conform to our approved Precinct Plan, because it was older than five years and was ‘set aside’.
The Tribunal hearings
The first day of hearing was held on the 11 November 2020 and a long site inspection took place. ERA and GRA was very encouraged by the great turnout by residents at the site inspection. It was an opportunity for everyone to point out important features of the site and surrounds to the Tribunal.
The second day of hearing took place on the 22 January 2021, followed by another on 12 March 2021. At this point the applicant approached ERA and GRA to revise the proposal. We held a meeting with the developer and then had a public meeting with all objectors (virtual) on 31 March 2021. The developer made a concession on the height – by keeping the number of storeys but lowering the height of each floor so that 5 storeys would effectively be the same height as a 4 storey building and similarly for 4 storeys. They also proposed removing the delivery entrance and taking all deliveries underground and adding another floor to the basement, freeing up more space next to the townhouses to be made into green open space and remove some of the nuisance factor along this boundary. The applicant then tabled this proposal at the next Tribunal hearing on 12 April 2021 formally.
From April 2021 onwards the objectors finally got a chance to put their case before the Tribunal. Several residents who came to the hearing and presented their arguments were amazing. Arguments were strong, backed up by facts and were also heartfelt given the impact they feared the development would have on Emmarentia and Greenside. In addition to these verbal submissions, the Tribunal was bound to consider the 2 479 written objections.
Hearings continued on May, July and August 2021 with our legal team and experts giving evidence. The final day of hearings was set down for the 20 September 2021. After this, it remained for the Tribunal to consider all submissions and make a decision.
However, the final day of the 20 September 2021 was for the objectors’ legal team to make their final closing arguments. Instead, the applicant tabled new evidence (their arguments had closed months before) which amounted to prejudice to the objectors. ERA and GRA lodged a letter of complaint to the Municipal Planning Tribunal (MPT) which ruled in our favour regarding the new evidence.
You will see from this story that development applications and decision can take several years. This application spent an unprecedented 8 days in hearings! From its origins in 2014 to the decision by the Tribunal in 2022, this whole saga has taken almost 8 years. What residents need to know is that ERA and GRA did not once waiver in their struggle over this period. We did our very best for the residents, we consulted you, we fought for you.
After an inordinate period of time, the Tribunal finally issued its decision on 22 January 2022.
ERA and GRA immediately communicated the decision and a newsflash to all residents on this decision was sent out.
The decision of the Municipal Planning Tribunal on the proposed mixed-use development is as follows:
- The application was approved in terms of Section 21 of the Municipal Planning Bylaw;
- Business 2 zoning with conditions to allow for offices and/or a medical day clinic not exceeding 2 500m2 and business uses not exceeding 5 000m2 (includes the 2 500m2 clinic/offices);
- Non-residential uses restricted to the ground floor only and to exclude car lot sales, places of instruction, liquor store and sale of alcoholic drinks;
- The non-residential rights may only be exercised in conjunction with residential development as a mixed-use development;
- Height of 5 storeys and 4 storeys adjacent to Erf 1132 (Emmarentia Palms townhouses) but with height restrictions per storey – the height of the 5 storeys must not exceed 21m and the height of the 4 storey to not exceed 17m;
- A private open space strip along the boundary with the townhouses 15m wide and 1 500m2 in area (effectively creating a 15m building line along this boundary);
- Planning rights for 55% coverage and 1,35 Floor Area Ratio;
- Consolidation of the sites;
- Maximum of 89 residential units and this is to include Inclusionary Housing. The decision proposes that 20% of the total residential floor area must be made up of units that are 50% of the avearge size of the market units in the same development, with a maximum of 150m2 and a minimum of 18m2 per inclusionary housing unit. At least 30% of the total units in the development must be for inclusionary housing;
- Heritage authorisation shall be obtained prior to the submission of the Site Development Plan;
- Submission and approval of an updated Traffic Report to JRA and Transportation if required by the entities when submitting the Site Development Plan;
- Other conditions include that deliveries are done via the basement; walls around the development are to be of visually permeable material, pedestrian and vehicular accesses separate and water-permeable paving for the open parking and one tree per 3 parking bays;
- The removal of the restrictive conditions of title as applied for, including the removal of those pertaining to the original township owner, Lourens Geldenhuys.
The draft floor plan of the development (Source: Tribunal exhibit)
ERA and GRA and residents’ “wins”
So, it is evident that the Nodal Review Policy played an important role in the decision taken by the Tribunal but it is also very clear that the decision did not go all the developer’s way. Some important “wins” were made by the objectors and accolades must go to the residents who objected and to ERA and GRA for keeping up the ‘struggle’ against this development.
The wins include that:
- the development will not be as high as originally proposed.
- The commercial component will be restricted to ground floor.
- The building will be set back from the existing townhouse development and land used as a park strip.
- The residential component must provide a range of housing accommodation to address affordable housing.
- The non-residential and residential rights are linked so the developer cannot develop only the shops and not the residential component.
- A new traffic study if the JRA requires it so that more accurate traffic information is available.
- Deliveries to be underground and the removal of the delivery entrance alongside the townhouses.
While it is disappointing that some of the rights granted are excessive compared to what residents wanted, and that we would have preferred to have a Residential-only development on the site, the superseding of our Precinct Plan by the Nodal Review, weakened our case (but not our resolve!).
Should we appeal the decision?
When the decision was issued on 26 January 2022, we were notified that any party to the matter has 28 days to lodge an Appeal to the decision. In order to take a more informed decision on whether to Appeal or not, ERA and GRA have applied to the Tribunal to request written reasons for the decision. This is permitted in terms of Section 59 of the Municipal Planning Bylaw. Our letter to the City was made on 4 February 2022 and after making payment of a small fee to the City. We will advise residents as soon as we receive these reasons in writing from the Tribunal.
Your urgent input needed now
ERA and GRA will greatly appreciate your inputs on whether you would appeal this decision and why and if so, whether you feel strongly enough to contribute to a fund for an appeal on the decision (It is a complex application to make an Appeal and will require the help of our legal team and therefore will be costly). Residents, ERA and GRA must weigh up the risks of appealing and/or not appealing.
What is apparent to ERA and GRA is that we need a new Precinct Plan and perhaps our fundraising activities should rather be directed towards mobilizing residents and the City to get such a Plan prepared in order to mitigate the indiscriminate provisions of the General Urban Zone in our area. We need more appropriate local planning guidelines.
We would be happy to hear your views on this and whether you would be willing to be part of a small group to help rally support for a new Precinct Plan.
Inputs and comments can be sent to email@example.com
Thank you, residents of Emmarentia (and Greenside), for the support throughout this development application process. ERA and GRA wish residents to know that they can be proud of the strong fight that these organisations put up on your behalf and under difficult conditions, of the unprecedented time and expertise that the members volunteered on this matter (spanning several years). Thanks to all residents who also contributed time, expertise and donations to this very important development objection.
Please also recognize the support ERA and GRA have given residents and the sacrifices individual members made of their time on these matters, by joining ERA (or GRA) now. We are there for you!
15 February 2022
* Gemey Abrahams holds the Town Planning portfolio on ERA and is herself a town planner with many years’ experience