Developers pressure DA to open Root44

Prospective developers of the Root44 site on the road between Stellenbosch and Somerset West have broken their official silence on their battle with Stellenbosch Municipality, which regards the development as illegal and has refused to issue a certificate of occupation.

In June, Moneyweb reported how the huge new development where the Root44 market used to be was stopped in its tracks after a rebellion by the neighbouring community.

Read: Community rebellion halts ‘illegal’ Stellenbosch development

But now the developer, Dax Hunt, and other supporters of the new development are pressuring the Democratic Alliance (DA) and Stellenbosch’s DA mayor, Advocate Gesie van Deventer, to have the local municipality issue a certificate of occupation for trading in the new building at Root44 to commence.

As the local government election campaign intensified, so did the pressure on Van Deventer. At the end of September, a huge sign was erected next to the Root44 development, reading ‘DA please open Root44’.

Municipal manager issues statement

Soon afterwards, Stellenbosch municipal manager Geraldine Mettler issued a statement reiterating the municipality’s view of events.

According to her, the municipality is aware that there are several misrepresentations of the facts around the Root44 development.

“There are various allegations that are unashamedly baseless, and we deem these as attempts to implement land uses which were not properly applied for or permitted. Members of the public and other interested stakeholders need to understand that there are two entirely separate land uses at play,” Mettler said.

She differentiated between, firstly, an approval granted for a tourist facility to operate as a wine emporium, and, secondly, an application for permanent land use rights to operate a tourist facility as a farmer’s market on the same premises.

“The records on the land-use decisions makes it blatantly clear that there has always been a clear distinction between the two types of land uses – for a wine emporium and the tourist market, which are both tourist facilities, but significantly different types of land uses,” she explained.

Read: Historic Morgenhof wine estate sold to European buyer

According to Mettler, in August 2009 a land use application was approved for a tourist facility, presented and qualified as a wine emporium, to serve as a destination to showcase the wine cellars of the winelands, its products and related cuisine.

“This approval was only implemented by the developers in 2020,” she held.

She continued: “In August 2012 there was a further land use application for a temporary land use departure to operate a tourist facility, which was qualified as a farmers’ market [the Root44 market] for a five-year period.

“In 2017, after the lapsing of the five-year period granted for the Root44 market, a new application was brought to establish permanent land use rights for the market. This application was approved by the municipal planning tribunal, subject to a condition that the original 2009 approval for the wine emporium is withdrawn and cancelled.

Considerations

“One of the main considerations for this decision was the anticipated traffic impact if both the market and the wine emporium [were] accommodated on the same property,” said Mettler.

“The municipality was also concerned that the activities on the property may evolve to a general shopping mall, which may result in a new and undesirable urban node in this rural area.”

In Mettler’s view: “The applicant/developer refused to accept these terms and appealed this decision.

“The appeal authority agreed with the decision of the municipal planning tribunal that only one of the two types of developments can be accommodated.

“The developer elected to choose that the 2009 land use rights for the wine emporium be retained and consequently the land use application for the tourist market was not approved. This decision was accepted by the developer and not challenged or taken on review.”

Site inspection

Mettler said that from a site inspection that was conducted on the premises it is glaringly clear that the presentation of fitted outlets represents uses in pursuance of the former farmers’ market.

The intended use of the building structure is consequently not in pursuance of the permitted land uses.

Read: From backyard farming to supplying Africa’s biggest retailer

“Wine tasting and sales, with associated cuisine and food pairing, should be the main theme, and this fully approved category of land use is absent. Consequently, the conditions imposed by the Stellenbosch municipal council in its approval letters dated 18 August 2009 and 30 January 2020 have not been complied with. Further to this, it should be noted that compliance certificates for the first floor of the building [are] still outstanding,” said Mettler.

As a result of this view, the application for Certificate of Occupancy was denied.

‘Process must be followed’

Mettler held that approved land uses will be allowed once the developer meets all the requirements, and that additional land uses are not something that can be negotiated and can only be attained through a formal application process.

“For any other land uses, the developer will have to follow a formal application process in terms of planning legislation, just as any other developer will have to do,” the municipal manager said.

“The municipality remains committed to creating a conducive environment for jobs and growth and is acutely aware of the possible economic impact due to the delays in the operationalisation of the building.

“A permanent tourist facility, qualified as a farmer’s market, [is] not what was approved,” she said.

Hard-hitting statement from Hunt

A day later, Hunt broke his public silence on the stalling of the project and issued a hard-hitting statement in the name of the Daxcon Development Trust (DDT).

Hunt said he had intentionally refrained from participating in the ongoing public debate concerning the Stellenbosch municipality’s refusal to issue an occupancy certificate for the Root44 building.

Read: The devastating effect of lockdowns on SA’s wine industry

“The building was constructed and fitted out in accordance with the approved plan. I make this statement because Ms Mettler’s statement fails to disclose certain relevant facts and calls on the developer ‘to share the full story with members of the public’,” Hunt said.

“I remain of the view that the responsible way to attempt to resolve differences of opinion between the DDT and the municipality should be via direct discussion between the two parties, and not through media statements or litigation.

“Attempts are underway from our side to engage the municipal manager and hopefully the mayor, in further discussions,” Hunt continued.

He set out his view in six main points:

• During 2008 a previous owner applied to the municipality for approval to establish a wine/cuisine, art and tourist destination. The parameters of the project were a two-storey main building with a footprint of 6 200m², a gross floor space of ±7 000m² and a covered parking area of ±1 875m². The 2008 application was shelved and was never approved.
• Based on inputs received from interested and affected parties to advertisement of the 2008 application, a revised application was made in 2009 for a drastically reduced building. The footprint of the proposed building was reduced to ±2 000m². Together with decking at mezzanine level it resulted in coverage of ±2 795m² for the main structure. It necessitated that the curbing of intended uses to only those directly associated with wine tasting/sales, cuisine, art and tourism.
• The approved application was not for an emporium. In fact the word “emporium” was not used in the revised application, nor in the committee’s resolution approving same nor in the conditions of approval. In short, the 2009 approval was not for a wine emporium.
• The 2009 approval granted by the municipality was for “tourist facilities for wine tasting/sales, cuisine, art, tourism and administration offices of approximately 2 800 meters square”. The DDT, in reliance upon that approval, purchased the property during 2017, and again in reliance on the very wording of the 2009 approval, managed to raise a loan and constructed the new building.
• The drastic downscaling of the project reduced development costs substantially, yet due to prevailing economic conditions, the DDT decided to first delay the implementation of the 2009 approval. It applied for interim municipal approval during 2018 to enable it to continue conducting a farmers’ market until it would become less risky to implement the 2009 approval.
• After obtaining interim approval, the trust reconsidered the matter, did not act in terms of the interim approval but decided to rather proceed with the implementation of the 2009 approval. According to advice obtained by the DDT, the interim approval is therefore legally irrelevant for current purposes.

According to Hunt, it is noteworthy that the municipal planning tribunal required, as a condition of the interim approval, that the DDT (as owner) should withdraw the 2009 consent use approval.

This the DDT was not prepared to do. It lodged an appeal with the appeal authority (the mayor).

She varied the tribunal decision on August 19, 2019, inter alia to read: “The consent use for tourist facility in the form of a tourist market be granted for a period of two years or until the occupation certificate for the wine emporium is issued by the municipality, whichever is the latter date.”

Hunt believes that, in other words, the approval for the interim use of the property as a tourist market would remain in place while the new building was under construction, but it would terminate once an occupation certificate has been issued for the new building.

‘Emporium’ 

He said the use of the word “emporium” became more prevalent in municipal documents over time, apparently to distinguish between the interim use of the property for purposes of a farmers’ market and the future permanent use in terms of the 2009 approval as a tourist facility.

Hunt believes the use of the word “emporium” post the 2009 approval cannot serve as basis for elevating it to a condition of approval that was never imposed, nor can it, in his view, be used retrospectively to add new meaning to words used in the original consent use approval.

He claims that his view is evidenced by a letter the municipality sent on October 23 last year, in which the municipality refused an earlier building plan application, and in which the municipality required – or in Hunt’s view “imposed” – the following requirement: “The internal layout of the proposed building must reflect the following uses as approved by Council in its letter dated 18 August 2009: (tourist facilities) wine tasting, sales, cuisine, art, tourism and administration offices.”

Hunt claims that the DDT’s architect, on the insistence of the municipality, indicated in colour on the site development plan the floor areas earmarked for “Wine tasting & sales”, “Cuisine” and “Art craft tourism”, which, Hunt said, are the approved uses.

‘Confirmation’

He claims that, this having been done, the municipality approved that plan, thereby in his view confirming that it was satisfied that the uses reflected on that plan were in accordance with the approved uses.

“The approved plan shows that a substantial floor area is earmarked for purposes of ‘Wine Tasting’, that a further area is earmarked for use as ‘Wine Shop’ and yet another area as ‘Deli Wine Shop’.

“The fit-out subsequently undertaken in reliance upon that approval, is in accordance with the approved plan,” said Hunt.

Hunt furthermore claims that the most recent letter the DDT received on the issue – dated September 23 this year – confirms that the DDT’s application for an occupation certificate was yet again refused, the reason for such refusal being that: “Not all conditions of approval attached to the building plan approval in terms of section 7 of the Act has been complied with satisfactorily.”

Correspondence between the DDT and the municipality followed, and the matter remains unresolved.

“In the circumstances we have real concerns as to the basis upon which the occupation certificate is being refused but in the interests of a sensible resolution to the situation, will refrain from debating them at this stage,” said Hunt.

He expressed the hope that “the fact that so many breadwinners and their families that are suffering for not being able to participate in a meaningful way in economic life, will be a sufficient reason to persuade the municipal manager and/or the mayor to make time available to hear us out and to at least attempt to overcome the current impasse.”