Innesbrook Village Fairways Avenue Eastcliff Hermanus 7200

INNESBROOK VILLAGE FAIRWAYS AVENUE EASTCLIFF HERMANUS 7200

7 July 2020

SRf Consulting Postnet Sulte #i106 Prlvate Bag X18 Rondebosch Ttot

Attentlon: Kelly Armstront gy electronlc mail: karmstrong@srk,co.za

Dear Madam

RE: HERMANUS cBD BYPASS EIA: RELEASE OF AMEI{DED FINAL EIA REPORT FOR PUBUC COMMENT DEA&DP REFERET{CE. L6l3l LlzlE2l t5l2t24h0

The owners of lnnesbrook Village are strongly opposed to the proposed bypass road, as reflected in your "448281_Hermanus CBo Bypass-Amended FEIR Executive Summan/ document sent by e-mail on 18 Jun€ 2020, and would like to bring the followin8 commefltslconcerns to your attention: . We do not understand why consideration is being glven to the building of the R43 (Bypass) through pristlne Fynbos covered land, through residential suburbs, through a bustling market, past two successful schools, 3 churches and through part of our precious wetland. we have been told that a 30o million raod road will provide easy flow tor 7% of the traffic that travels through Hermanus in the direction of Stanford. The current bypass may be contested for around 1yo ofthe year, which makes the consideration of building the proposed bypass road incredulous. . We certainly do not support the social and ecological destruction the "bypass", really a thoroughfare, as proposed would cause. . lt seems the proposed need for the bypass may not primarily be to ease traffic flow, but to remove the R43 from the town center, which we are totally against for the following reasons: o tt would adversely affect small buslnesses and the economy of our town and the new sport facilities which are at present under construction, as well as the sport facilities at the Attie Bishop field and cricket club (all used by children); o Blg sport days are held at the Hermanus High School and the bypass road will affect parking for cars visiting these sport days, as well as the Saturday market at the Cricket Club, As it stands at the moment parkin8 is already a problem. lt is not wise to build a bypass road where children walk and ride their bicycles to school and visit sport clubs to play:sport. o Scar part ofthe beautiful mountainside; o Destroy already endangered fynbos and wetlands; o Deyalue residential properties; o Bring noise and air pollution into the subutbsi o Close the market; and o Place a few hundred school children's well-being at risk. 2/... ,r

VOELXLIP ADI.,IIT{ISTRATIOII CC Pogtnet Suite 124, PlbgXL6, Hermanus, 7200 Cell: 0725890007 Fax: 086 512 6669 Email : femkloofadmln@hermanus,co,za Reg No: 2005 I 118163 / 23 -

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. Ahhough we do not have an objection to developinS alternate routes, the flow ofthe traffic through the CBD appears to be a secondary issue and alternative solutlons could be co.side.ed. Relief routes could be a substit!te for the Main Road through the CBD but would unfortunately probably not serve the current agenda ofthe Municipality (the creation ofa new'R'road). . Although only in its lntancy, the new road concept has already consumed valuable funds whlch belong to every citizen. The Munlcipality should be ashamed that consideration is bein8 Siven to'downgradinS' its maior edUcational facility, being Hermanus High School, which has produced ma.y fine students. Educational facilities are the gold ofthe community and the massive expense con:idered forthe road could be well used to improve educational and social fucilities as well as to care for our precious natural environment.

ln conclusion, please iive consideration to the following:

1. Should the ob.iect of the current ex€rcise be to re-route the R43 through the CBD, then the recently developed CBD bypass co!ld be modified to comply with provinclal regulations for a runk road passing through an urban development. This would include closing some entrances/exits and widening traftic circles to include extra junctions, aBd possibly a pedestrian bridge or two. 2. Should there be a real need to lmprove traffic flow through the town during peak times, additional relief routes should be improved (these would include traffic calming devices). The connection between Mountain Road and Lord Roberts Road could be improved with minimal effort. The road below the cemetery could be extended above Bosko Church to connect to Fernkloof Dtive which should be taffed on its eastern extension' There are possibly other relief road options to consider.

Yours faithfu lly r/-). rt) /7/t7"'s-- MnDAvrDDrcEY 7 CHAIRPERSOT{: INNESBROOKVILLAGE POA

Response to the Amended Final EIAR : Proposed new CBD bypass Road in Hermanus DEA&DP Reference Number: 16/3/1/2/E2/15/2124/14 Heritage Western Cape Reference Number: 11412403AS1203E

At the outset the Hermanus Ratepayers Association (HRA), and its more than 400 members, wish to make their opposition to the proposed Bypass road absolutely clear.

The HRA has as one of its goals,“To protect and preserve the traditional character and beauty of Hermanus and its surrounds”, and it is in this context that we are registered as an IAP and that we make comment.

The proposed Bypass is an extremely contentious issue in Hermanus which has been the subject of discussion since it was first proposed in its current form in 2015. It would be difficult to find anyone in Hermanus who is in favour. It is both mystifying and a source of annoyance that the provincial Department of Transport and Public Works (WCDTPW) continues, in the face of known opposition, to push its agenda forward regarding the Bypass.

In December 2017 the HRA submitted its comments on the EIA and focussed on the following points which we believe are still valid:

• The cursory and biased mannner in which previous points were dealt with and the factual inaccuracies the responses contained, particularly those referring to transport. • The Multiple contradictory and irregular roles played by members of the OM administration, who are the initiators of the project. • The procedurally incorrect interpretation by the EAP of the comments of the OM administration to mean that the Municipality has commented. A clear distinction must be made between the views of the Administration and those of the Municipality.

In addition, following a thorough examination of the current revised document there are, in our opinion, three bases on which the proposed Bypass fails - Societally, Environmentally and Economically.

• It will destroy the unique character of Hermanus • It will seriously affect the Environment • It is not the best or lowest cost option

There is no compelling case that is being made in favour of a Bypass and the EAP acknowledges this in the concluding section of the Executive Overview, but then goes ahead to recommend it anyway.

In formulating this response we will adopt the same subject headings as are reflected in the Executive summary for ease of reference.

INTRODUCTION

We find it puzzling that the DEAD&DP, having previously rejected the EIA and FEIR, has chosen to offer a further opportunity for refinement. Having been found wanting at the “Authority Acceptance” stage on two previous occasions one would have thought that it would have been rejected outright.

GOVERNANCE FRAMEWORK

On January 29th 2020 a Water Use Licence 02/G40H/CI/8938 was issued for the Bypass. How is this possible when there is currently no approval for the project? We need some kind of assurance that the Minister of Environmental Affairs was consulted and fully briefed on the motivation as part of the Water Licence application.

ENVIRONMENTAL PROCESS

The S&EIR process described, as well as the graphic provided, are clear and leave no room for misunderstanding.

DESCRIPTION OF THE SITE AND ENVIRONMENT

The prosaic description of the Hermanus lanscape and its many favourable attributes and attractions is a reminder of why people have chosen to make it their home and why they would want to preserve it. It is stultifying to read further that the EAP then describes how this urban Nirvana will be desecrated by driving a road through it. The EAP goes on to give a rather one-sided description of how little disruption there will be as it “abuts urban areas and natural areas ” when in fact it is designed to drive right through it.

As the stakeholders who currently enjoy the mentioned - Fernkloof Nature Reserve – Residential Areas of Northcliff, Eastcliff, Innesbrook Village and Fairways Close – Institutions and recreational areas – and Heritage Areas which are detailed, we wish to preserve these at all costs as they are part of the fabric of Hermanus society.

PROJECT MOTIVATION

The opening three points made in this section are key elements which support the contention by residents that there is no real basis for motivating the Bypass.

• The contention that the Bypass supports the “currently investigated” CBD Regeneration Framework (CBDRF) is clutching at a very weak straw. The CBDRF is a muti-year project dependant on the availability of capital. Economic activity in the CDB is substantially lower since the advent of the Whale Coast Mall and will take years to recover. At no stage has the CBDRF been dependant on the construction of a Bypass. The current relief road runs on the periphery of the CBD and its continued status has no negative effect on the CBDRF. Refer to pages 238-240 of the current IDP for clarification.

• The contention that a bypass would facilitate mobility between eastern and western parts of Hermanus is fanciful as the current Relief Road and other roads, if properly maintained, can perform quite adequately. Analysis done by Carl Schonborn suggests that a circle on Main Road in the vicinity of Fairways avenue will cause congestion in an easterly direction and hamper East West traffic flow.

• The contention that the Bypass will provide improved access to schools, sports fields, farmers markets and other institutions in the area is also called into question as it represents a serious disruption of the very institutions mentioned. Pedestrian access to the schools and the market from adjoining areas would in future have to navigate across a provincial road. How would the scholars from BOSCO and Generations school get to the sports fields safely and how will parents delivering children to school contend with sharply increased traffic volumes on a provincial road?

PROJECT DESCRIPTION

At face value the description of how and where the proposed road will run seems fairly straight forward. A site visit to the area reveals the physical reality of how it will change the peaceful almost rural character of the area stretching from the cemetery down to the bottom of the High School field. It is unthinkable that we could allow this to happen. One wonders whether or not the proponents have walked the area in order to visualise it. One has the feeling that this proposal is a paper based exercise where the realities on the ground are not clearly understood.

ALTERNATIVES

Table 3 lists the alternatives to the bypass and we respond to these hereunder.

• Use alternative routes: It is stated that this does not address the issue of internal traffic. We disagree. As regular users we believe that there are sufficient alternative internal routes for motorists in Hermanus and in any event internal traffic has not been identified as one of the justifying factors for the bypass.

• Upgrade CBD Relief road: This can be done quite easily without major expropriation costs as there are approximately 5 properties which would be affected and sufficient reserve available. The de facto situation is that the relief road is the main route through town and was motivated as the bypass at the time that it was built. The reference to the CBDRF is a red herring as has been stated elsewhere as the relief road runs on the periphery of the CBD as can be cleary seen on the maps. The relief road is not in conflict with the CBDRF!

• Upgrade Mountain Drive: There is an existing road reserve which is wide enough to accommodate an upgrade and the traffic calming measures can easily be removed. The route can then follow Lord Roberts into the existing eastern end of the relief road.

• Improve general road network: This is certainly feasible in terms of standardising some of the narrow existing roads and would facilitate easier internal movement reducing seasonal congestion of the relief road. It is also affordable.

In the description of the NO-GO alternative mention is made of cogestion in the CBD. We have mentioned elsewhere that the congestion in the CBD is manageable with the exception of a few weeks in high holiday season. Since the opening of the Whale Coast Mall there is no congestion in the CBD. Quite the contrary. It will take many years before business activity reaches previous levels. It is our contention that an upgrade of the relief road with a widening at the circles will adequately deal with future volumes.

STAKEHOLDER ENGAGEMENT

The description of the stakeholder process is set out clearly with no room for misunderstanding. The key statement with regard to stakeholder engagement is that 75% of the comments received object to the bypass with only 3% believing it is necessary. In the context of democratic process this is a resounding NO. Surely there is a constitutional imperative to take the will of the people seriously? Failure to do so will inevitably lead to legal challenges.

Tabe 5 lists issues and responses and we comment on a selection of these.

• The CBD Bypass is not needed as traffic flow is acceptable during most of the year: This is indeed the case. There is no record to be found anywhere of a resident of Hermanus complaining to the authorities about traffic congestion and requesting the construction of a bypass. Additional traffic on a seasonal basis is a happy indicator of economic activity on which the tourism sector depends and is not viewed as an incovenience. The repeated reference to the CBDRF is a red herring as it will not be affected whether we have a bypass or not. The HRA is qualified to make this statement as we have been involved at all stages of the planning and implementation of the CBDRF since inception and at no stage was it dependent on the existence of a bypass. On the contrary, we want people to come into town and not to bypass it. Reference is made to future development as a justification for the bypass but no detail of any plans is given. The built environment through which it is proposed is fully developed with very few vacant residential erven available. Future development in greater Hermanus will take place to the west of the CBD.

• The CBD Bypass is not included in the OM documentation and is not compliant with legislation: The desirability of a bypass has certainly not been supported as a Ward 3 priority. In fact in the discussions on the issue it has been strongly opposed. Reference is made to the Bypass by the OM Administration as a “strategic project in planning” but unless it appears in the IDP as an approved project the Administration has no place expressing a view either in suport or against it. Until or unless the various documents referred to become a reality as democratically approved by council they have no status in any decision making and should be ignored. The one meaningful statement in the responses in this section is that the access into and out of Hermanus is the key issue - and not a bypass through it. Hermanus is a destination, not a thoroughfare. Mention needs to be made here of the letter from the Municipal Manager in which he indicates that the Overstrand Municipality (OM) is in support of the bypass. Reference was made in our December 2017 submission to the inadmissability of any such approval and the grounds for such inadmissability.

• Most people are opposed to the bypass: There is acknowledgement that there was an overwhelmingly negative reaction to the proposed bypass for a variety of reasons which are tabled and which form much of the substance of this communication. What is astounding is that having acknowledging these the EAP continues by saying that nevertheless its view is that the impacts are acceptable and the project justified. We don’t understand the logic behind this.

• Alternatives by stakeholders have not been considered: In response to the list of suggestions the EAP makes the statement that “In conjuction with other, primarily social impacts (e.g. expropriation) they were not deemed feasible or reasonable”. This is difficult to comprehend. A brief examination of a map of the proposed route shows the stark reality of social, religious, financial, sporting, educational and not least environmental impacts of the proposed route. Measure this against an upgrade of the existing relief road.

• The project should not be proposed in a proclaimed nature reserve: The project will require clearing of endangered fynbos……: The HRA has as one of its key areas of endeavour “ the preservation of Fernkloof Nature Reserve” and we take this seriously. In our bi-annual survey conducted in early 2019 our members indicated their overwhelming support for the preservation of FNR as a priority and mandated the office bearers to continue efforts in this regard. We cannot support any attempt to deproclaim any portion of FNR, no matter how small or insignificant it is deemed to be by the EAP, and least of all for a bypass that nobody wants. We are in solidarity with the many thousands of individuals who have signed petitions voicing opposition to the Bypass. Given the relatively small size of FNR and the unique diversity of floral species which it contains, any deproclamation of even a small portion cannot be justified as once it is lost it can never be recovered. No road, however important it is deemed to be , can justify the loss of endangered species. The EAP in its assessment speaks of the “functioning” of FNR and this is a curious statement which misses the point entirely. It is the biodiversity and not the functioning of FNR which is at stake.

• The bypass will affect the wetland adjacent to the Hermanus Golf Course: This statement is correct. Members of the Golf Course and the Estate as a whole enjoy the peace and tranquility of this section which is a home to a variety of amphibian and bird species. This is an important breeding ground for Cape Spurfowl which are so much a part of the pastoral character of this part of Hermanus. There is no way that a bridge wide enough to carry a provincial road is not going to destroy this sanctuary. There is also the issue of the newly built residential component directly in the intended path of the bypass.

• There should be a biodiversity offset for the impact on the FNR and the HGC wetland: The concept of an offset in the context of this proposal is foreign. The residents in this area want to preserve that which they value and in which they have invested both finance and psychological capital. People came to live here because of the unique environment, the peace and quiet. No offset can compensate for such a loss. We cannot motivate the restoration of one area as compensation for destruction of another. In our view the claimed “offsets” are meaningles. There are a number of jurisdictional and financial factors which render it inadmissable and these will be dealt with by other commentators in more detail.

• Noise and air pollution will increase in adjacent schools and houses: (and churches) The statement is supported as it is self evident. In an age when environmental activism is on the increase and in the face of mounting evidence of the damaging effects of vehicle emissions, it is hard to imagine how this can be mitigated. The same applies to the increase in noise, simply quoting “predicted increase”. There should be a statement detailing what the current decibel reading is in Main Road and then evaluating whether this is sustainable in the proximity of the schools. The EAP speaks of models and predictions. If the outcomes are substantially higher in reality it will be too late and too expensive to do anything about it. Predicted levels of air pollutants are just that, predictions. In any event increased pollution in a school and residential setting and context is unjustifiable.

• The northern alignment means that the Hermanus Country Market (HCM) must close…: A visit to the site indicated on the map as being suitable for the relocation of the HCM reveals that it is on an unprotected hillside, that the site is currently occupied by a BMX track that it is within the boundary of FNR and that the topography would make access difficult. To make matters worse the bypass, with all of its noise and pollution, would be immediately adjacent to the HCM. The site is “deemed” to be suitable but its location on the site map differs from the site, adjacent to the cemetry, indentified in discussions with the Administration. This needs clarification.

• Support by the OM is not valid as the project has not been discussed in Council: This important aspect of this project has been covered by previuos comments and the reasons documented. The democratic process implies that the Administration carry out the plans as approved by Council and not the other way around. To date there has been no debate in Council and there is no resolution on this issue. The narrative in the department of Infrastructure and Planning that Council’s job is to give support to the planning efforts of the department needs to debunked.

ASSESSMENT OF POTENTIAL IMPACTS

• Apart from the misguided rationale for the proposed bypass it is the perception of the impact that it will have on the areas which are affected that is top of mind for the residents of Hermanus. We have a situation where motorists, who are not stakeholders in our area, will benefit from a marginally shorter transit time through our residential area at huge environmental and social cost to us. It is our contention that the benefits to them do not outweigh the cost to us. • Put in plain language what this section of the EIA attempts to do is to downplay the negative aspects of the project and make reference to perceived benefits which we simply cannot buy into. The repeated reference to the CBDRF, the anticipated decrease in traffic congestion, the facilitation of future development and other benefits are simply not compelling for those of us who live and work here. • Hermanus currently has a relief road carrying through traffic. The route of the R43 from the Gateway centre up to the exit of the relief road at the eastern end of the CBD is bordered primarily by businesses many of which are set back from the roadway. This has a mitigating effect on the negative aspects of the noise and pollution. Hermanus has factored these issues into how it functions. • An examination of the length of this current road reveals that it could be upgraded easily and at relatively little cost. The point being made is that there is already a road in existence in an area which has already been desensitised and has adapted to the passage of traffic, just upgrade it! • We cannot stand by and witness the desecration of our nature reserve. We will not have the peace and tranquility of or residential suburbs destroyed. We cannot allow our school children to be compromised. We don’t believe that motor vehicles are more important than people or the environment. • The technical reports which constitute a large portion of the EIA are the domain of other IAP’s such as WCC, BOTSOC and we defer to their responses. • On a personal note it is significant that none of the personnel of the OM who have indicated their support for the bypass lives in the residential or natural environment which would be affected. It is easy to propose solutions to problems the consequences of which one does not have to bear. • The graphic which is table 6 is a stark visual representation of the fact that there are no justifiable benefits of the bypass to the affected parties. The statement on page xvi regarding the No-Go alternative summarises it neatly. “The main advantage of the No-Go alternative is that many of the significant project impacts, notably impacts on the FNR, wetland, propperties, noise and visual character, are avoided”. Read it again. How can one trade that off against increased traffic in the CBD?

OUR PROPOSALS

In our view the upgrading of the existing sections of the R43 within the municipal boundary is the most suitable option in dealing with traffic.

• Dual the road from the Gateway intersection down to the circle at Church Street. • Widen the existing relief road using the available reserve. • Widen the circles on Lord Roberts where it intersects both Royal Road and Main Road. • In addition, widen Mountain Drive with a feed into Lord Roberts.

CONCLUSIONS AND WAY FORWARD

We agree with the statement that the EIA report has sufficient information for the DEA&DP to make a decision regarding the project but disagree that it constitutes grounds for its approval. The consistent themes of the EAP are that there are clearly identifiable negative implications for the environment as well as negative implications for the social, cultural and economic wellbeing of the affected parties. The EAP contends that these are acceptable as they can be solved through mitigation measures and offsets. The EAP doesn’t quantify any benefits for affected stakeholders and relies on the premise that traffic is more important than people and that the CBDRF is a holy cow that needs protection from traffic on its periphery.

This is essentially a contest between the WCDTPW and the residents of Hermanus. It is a contest between the Director: infrastructure and Planning and the people of Hermanus. It is a contest between those who have no regard for the environment and those who value it. It is a contest between the destruction of our social fabric and we who want it preserved. It is a contest between the perceived autocracy of the OM Administration and the democratic will of the people of Hermanus.

The bottom line is that we don’t need this bypass and we don’t buy into the reasons given in proposing it. We are not prepared to pay the price that is being asked of us to pay for it. There are no quantifiable benefits for stakeholders and we don’t buy into the proposed mitigation measures.

The HRA will work in co-operation with any and all other civil society organisations in opposing the bypass and will devote all of its resources to this endeavour.

HRA EXCO Brian Wridgway – Chairperson David Worrall – Vice Chairperson Arlene Ross-Smith, David Shreeve, Jan Cilliers, Michael Farr and Jenny Howard.

Hermanus Heights Property Owners and Ratepayers Fernkloof Drive Hermanus Heights. Hermanus 7200 email: [email protected] 20th June 2020

Kelly Armstrong SRK Consulting Postnet Suite #206, Private Bag X18, Rondebosch 7701, South Africa

Re: Objection and Comment on Final Environmental Impact Assessment Report for the Proposed New CBD Bypass Road in Hermanus DEA&DP Reference Number: 16/3/1/2/E2/15/2124/14

Dear Sir/Madam,

The Hermanus Heights Property Owners and Ratepayers signatories, as listed below, object to the construction of a new CBD Bypass Road in Hermanus and submit the following comments on the EIA Report to support the objection:

1. Traffic access to and from Hermanus Heights is already constrained and limited to one access road, namely Fernkloof Drive. The construction of the new R43 bypass road along Fairways Avenue will further impact traffic congestion in Hermanus Heights. The Overstrand Municipality are fully aware of current traffic problems as a result of a sole access road to this suburb.

2. There is currently a safety concern in times of an emergency (example unplanned and uncontrolled fires in the Reserve) which cause major traffic congestion, when evacuation of the Hermanus Heights area is required using the only access road Fernkloof Drive. Traffic congestion will be further aggravated by the presence of the new proposed R43 bypass road down Fairways Avenue, and especially during construction, which the residents of Hermanus Heights would need to urgently access during an emergency evacuation process.

3. There is a negative impact on property values in Hermanus Heights if the Bypass road is approved. Property Owners have invested in this area because of the seclusion, solitude and peace that the area currently offers. The Bypass road will be disadvantageous to properties in this area and noise levels will increase, especially along Fairways Avenue, which will impact rate payers, residents and schools in close proximity to the new R43 bypass road. The EIA report states that the impact is low for reduction in property values, the signatories to this letter do not agree with this rating. Why should we as property owners suffer a further loss in our property prices for a project we don’t need and don’t want?

4. The cost of this three kilometre bypass road in the region of R300 million is exorbitant. This money could be better spent on other infrastructure projects to support businesses in the Hermanus CBD and further could be reallocated in the provincial budget for desperately needed low cost housing in the Overstrand.

5. The CBD bypass will result in less passing trade and tourism to the Hermanus CBD with the resultant impact on small businesses in the CBD and the knock-on effect on the viability of these businesses. The report shows a rating of positive low impact, yet the bypass road will reduce the number of vehicles passing through the Hermanus CBD and consequently passing trade.

6. There is a conservation concern regarding rare and endangered flora that currently only grows in the Northcliff region of the Fernkloof Nature Reserve along the northern section of Mountain Drive where the bypass road will be constructed. The terrestrial habitat of these plants will be negatively impacted during and after construction of the bypass road in the Fernkloof Nature Reserve. Some of the habitat will be destroyed. This is rated as medium to very low impact on the report, which is questioned. There is a major environmental impact on the diversity of the flora in this area and by default directly on the Fernkloof Nature Reserve as a result of the fragmentation, with the construction of a major arterial road such as the R43 CBD Bypass right through the reserve, which is classed as a protected area. The EIA report (see Summary Report page 6) states that the majority (75%) of the stakeholders (rate payers/property owners/citizens) of Hermanus do not support or approve of the construction of the R43 bypass road right through the Fernkloof Nature Reserve and 65% express concern (see Summary Report page 9) related to the project impact on the FNR. In addition, there is further environmental destruction and disturbance of the Hermanus Golf Course wetland.

7. The offer by the Overstrand Municipality to rehabilitate, a privately owned area that is overrun by invasive plants as a biodiversity offset does not make up for the Fernkloof Reserve land that will be destroyed and the resultant fragmentation of the reserve. We reject this proposal.

8. There is already access to destinations beyond Hermanus via the N2, there is no need to provide an upgrade to an existing available route.

9. Hermanus is a destination town due to its tourist attributes. It is reported that only 6% of traffic passes through Hermanus. The construction of a bypass provides negligible benefits either to Hermanus or destinations travelling east beyond it.

10. The impact on the residents along the route will be excessive. To have a by pass road running adjacent to the Bosco and Generations schools is not compatible for places of learning where safety of the students is not negotiable.

11. The impact on parents dropping and collecting their children from the school with the road is not recommended on safety grounds. Furthermore, the volume of local traffic during those periods will conflict with traffic on a bypass road.

12. This matter is only a project in the mind of the Overstrand Municipality/Province, who have supported the construction of the bypass road, with no recognition that the residents of Hermanus have rejected this and similar proposals on numerous occasions. The pursuit of this project is a blatant waste of time and the rate payer’s money.

Yours faithfully, Signed: Hermanus Rate Payers and Property Owners.

Please see table attached of the Hermanus Heights Rate Payers/Property Owners/Citizens/Residents who support and are signatories to this Letter of Objection and Comments.

NAME & SURNAME ID Number ERF No/ADDRESS PROPERTY OWNER/ RATEPAYER/CITIZEN DM Silberblatt 4905145147084 ERF 5745 1 Fernkloof Drive, Hermanus Heights Property Owner/Ratepayer E Silberblatt 5107040147082 ERF 5745 1 Fernkloof Drive, Hermanus Heights Property Owner/Ratepayer VH Fenner 4708030242188 ERF 6000 Property Owner VA Fenner 4704305147136 ERF 6000 Property Owner Helen Davidson 6010110997189 ERF 5761 Property Owner/Ratepayer Dr Hermann Bruggemann German ERF 6008 17 Fynbos St, Hermanus Heights Property Owner Lorraine J M Bramwell-Jones 4206040068081 ERF 5903 54 Selkirk St, Hermanus Height Property Owner/Ratepayer Thomas H Bramwell-Jones 4601235038081 ERF 5903 54 Selkirk St, Hermanus Height Property Owner LA le Roux (Trufun Trust) 4805195033087 ERF 5917 Property Owner/Ratepayer TB le Roux (Trufun Trust) 6002260032081 ERF 5917 Property Owner/Ratepayer Wolfgang Blatsche 3711245038186 ERF 5954 29 Fernkloof Drive, Hermanus Heights Property Owner/Ratepayer CH van Niekerk 5108265094082 ERF 5955 Property Owner/Ratepayer Lesley van Niekerk 5501060149087 Erf 6348 28 Selkirk St Hermanus Heights Property Owner/ Ratepayer Ian McAdam 5508245219180 ERF 10161 15 Hillside Village, Fernkloof Drive, HM Property Owner The Tamjon Investment Trust IT 893/95 ERF 5997 Property Owner/ Ratepayer Denise Heather Bryer ERF 5842 Property Owner/Ratepayer Philip Myerscough PD 8094854 ERF 1064 91 Mitchell Street , Eastcliff Property Owners/Ratepayer Jane Myerscough PG 9225450 ERF 1064 91 Mitchell Street , Eastcliff Property Owners/Ratepayer RE le Roux 5508285140080 ERF 5939 Property Owner/Ratepayer Marco Ricco 6109135192089 1 Fynbos Street Hermanus Heights Property Owner/Ratepayer Benito Ricco 2912275137085 3 Fynbos Street Hermanus Heights Property Owner/Ratepayer

ADDENDUM to FAB Minutes dated 3 August 2020

Fernkloof Nature Reserve Advisory Board (FAB):

Recommendation to Overstrand Municipality and FAB Submission of Objection to SRK Consulting with respect to the Proposed New CBD Bypass Road in Hermanus based on the SRK Amended Final Impact Assessment Report – April 2020. (DEA&DP Ref. Number: 16/3/1/2/E2/15/2124/14)

The Fernkloof Nature Reserve (FNR) Advisory Board members are appointed by the Overstrand Municipality and the Western Cape Nature Conservation Board in terms of the Western Cape Nature and Environmental Ordinance (1974). Section 8(1) of the Ordinance states “As soon as a local nature reserve has been established, the local authority concerned shall appoint an advisory board for the purpose of advising and making recommendations to it in connection with the management, control and development of such reserve.” It also provides for the Provincial Government (CapeNature) to appoint members to this Board.

The FNR is a Local Authority Nature Reserve declared in terms of the abovementioned Ordinance and the National Environmental Management: Protected Areas Act (NEMPAA) and is therefore listed on the national register of formally Protected Areas in South Africa.

The FAB again considered the above and latest proposal at its meeting on 3 August 2020 and has unanimously concurred, and hereby again registers its strongest objection to both the proposed bypass alternatives presented and in particular the northern alternative.

FAB has done this cognizant of the Objectives of the various National Environmental Management Acts as well as the Draft Overstrand Municipal Environmental Management Overlay Zonation (EMOZ) document which has been subjected to an intensive Public Participation process.

The EMOZ proposes five different Zones. One being a Protected Area Buffer EMOZ. The purpose of this Overlay Zone is: To protect the integrity of National, Provincial and Municipal Nature Reserves [in the Overstrand Municipal area] from negative external pressures/impacts while reducing pressure on core areas and to assist in preserving their value to the eco-cultural tourism economy of the Overstrand through alignment of appropriate land use and regulation by: • Minimising negative impacts on the integrity of National, Provincial and Municipal Nature Reserves in the Overstrand; and • Limiting and/or prohibiting inappropriate land uses in the buffer zones of such Nature Reserves.

Furthermore, the proposed bypass will necessitate the deproclamation of part of the FNR, which is protected under NEMPAA, in order for the road to be built on a portion of FNR land. ______

The reasons for our objection are as follows:

Need and Desirability No convincing reasons regarding need and desirability are given, as: - It has been shown that the majority of the traffic entering Hermanus is not through-flow traffic; - Already the placement of the Whale Coast Mall (WCM) has reduced traffic in the centre of town and further shopping areas are in planning for the WCM area, while a secondary direct route from the western suburbs is also planned to relieve peak traffic on the R43; - At peak holiday periods, incoming traffic from the Cape Town to destinations east of Hermanus will prefer to use the route through Caledon and Stanford, as this route is only slightly longer but much quicker, with less traffic and a pleasant route to drive; and

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ADDENDUM to FAB Minutes dated 3 August 2020

- Solving the estimated future traffic problems of the CBD with a highly controversial bypass road which will have a definite and irreversible negative impact on the social and environmental aspects of community life in Hermanus, is neither sustainable nor desirable. If in the future it becomes evident that the amount of personal vehicular use in the town has increased, will another broader bypass be the go-to option? We require smarter, visionary, and innovative ideas now to meet this future challenge in a sustainable way. The assumed need to travel to the Hermanus CBD with one’s own vehicle is the issue that must be addressed.

Alternatives - Neither of the alternatives offered through the EIA process are supported as the impacts on the FNR and the relevant community land use aspects within a buffer area of the FNR are unacceptable to a large segment of the Hermanus community as has been demonstrated by the significant number of objections received.

- The alternative that has the real potential to address future traffic problems in Hermanus is to start investigating, planning, and investing in a safe, desirable, and efficient future public transport system. This alternative has alarmingly been summarily disregarded by the local and provincial authorities. If planned and implemented effectively, this has the potential to have a significant positive effect in reducing vehicle numbers in the CBD. Planning should be aimed at a public transport system to reduce personal vehicular traffic used inter alia for commuting to schools, to places of employment, or for recreational/tourist purposes. There are numerous urban public transport systems throughout the world (some even free of charge) where lessons can be learnt. Public transport systems on main routes should not necessarily be profit based, but their value could be seen as an investment in stimulating the economy of a town/city. On smaller routes privately-owned transport could fill in for getting commuters from the main routes to specific destinations. An independent and in-depth specialist report from a leading public transport specialist on the Hermanus situation would have been valuable input to this EIA.

Impact on FNR Buffer Area The proposed bypass will significantly conflict with the purpose and objectives of the proposed Overstrand Municipal Protected Area Buffer EMOZ indicated above.

The bypass will impact both the FNR and its buffer area for about 3km along the reserve boundary – altering the resultant buffer area, in terms of its negative impact on the reserve, from a low impact compatible buffer land use area (low density residential, community cemetery, schooling, religious centres as well as recreation centres [sport and craft]) to a medium to high impact buffer area (wide transport route carrying continuous medium to high volumes of traffic).

Impacts on FNR and Surrounding Community Area These will be: - A loss of part of a protected area. - A significant negative impact on a significant portion of the reserve’s rare ecotone area vegetation and habitat – between mountain and lowland fynbos; - A significant impact on the rare species reliant on that ecotone area. - High visual disturbance landscape impacts caused by the envisaged routes (e.g. road cuttings scars on the mountain, visual traffic disturbance during the day as well as urban streetlights and moving vehicle lights at night). - A high impact on more of the reserve than just the footprint of the road. The southern face of the mountain adjacent to the bypass will be vulnerable and subjected to increased impacts caused by higher and sustained traffic volumes on the reserve boundary coupled with prevailing south east winds, for example: ▫ A higher fire risk and frequency of unnatural fires (from inter alia cigarette buts thrown out of cars) will be prevalent and when these occur, they will rapidly sweep up the mountain and be difficult to bring under control. This will directly result in a decrease in the reserve’s biodiversity on this southern mountain face over time; ▫ litter thrown from vehicles will inevitably be blown into the reserve and have to be cleared up by an under-resourced reserve staff component;

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ADDENDUM to FAB Minutes dated 3 August 2020

▫ air pollution and noise given off from the vehicles will increase significantly and will constantly affect the southern mountain slope of the reserve. This is highly likely to have a negative effect on the biodiversity of this area over time; and ▫ litter and food thrown from vehicles will attract baboons to this area. - A portion of the wetland on the Hermanus Golf Course will ne negatively impacted. The setting aside and conservation of this wetland was originally a condition by DEA&DP when they granted Environmental Authorisation to develop the golf course. Is it now correct to for them to allow the destruction of a portion of this wetland because the applicant is another Department of the Western Cape Government? - A very high negative impact on tourists and the Hermanus community using this portion of the reserve, for example: ▫ The present easy access to the reserve’s hiking trails from Mountain Drive will be lost; ▫ Hikers’ experience above the bypass will be negatively impacted by the close-by visible medium to high traffic volumes as well as its additional noise and air pollution; ▫ The community area below the reserve where there are pre-schools, schools, community halls, religious institutions, sports fields and a craft and food market, currently all enjoy a uniquely peaceful, relatively safe and a pleasing rural landscape setting which will be destroyed. ▫ The relaxed ambience of this area will be totally destroyed by the bypass and the area will be far more dangerous from a pedestrian perspective, requiring expensive mitigation measures.

A Biodiversity Offset Should the Bypass be allowed to continue, a Biodiversity Offset area is proposed to offset the residual impact of the Hermanus CBD Bypass on sensitive vegetation in FNR and wetland features. This offset area is a 162ha area of Onrus River riparian habitat both on municipal and private land, which is highly impacted by dense stands of mature invasive alien vegetation.

This offset is rejected as: - There is not a fixed and agreed Biodiversity Offset plan of sufficient detail available for public scrutiny; - The land is not all municipal land so future land tenure and conservation of the private land cannot be assured; - This land will not be a ‘similar’ replacement for the FNR ecotone area and wetlands that will be destroyed by the Bypass; - This land will require sufficient financial resources over at least a 20-year period for the invasive plants to be effectively removed and controlled and for restoration and rehabilitation works to be completed. This will cost many millions of Rand. Which authority will be expected to budget for this and implement the work? Can such funding be guaranteed?

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overstrand conservation foundation, trading as

COMMENT ON AMENDED FINAL ENVIRONMENTAL IMPACT ASSESSMENT REPORT PROPOSED NEW CBD BYPASS ROAD IN HERMANUS

DEA&DP Reference number: 16/3/2/E2/15/2124/14

Written by:

Dr Pat Miller Rob Fryer WCC Chairperson WCC General Manager

TEL +27 28 316 2527 FAX 086 695 0046 CELL +27 72 185 5726 E-MAIL [email protected] WEBSITE www.whalecoastconservation.org.za Green House, R43 Vermont, Hermanus PO Box 1949 Hermanus South Africa 7200 PBO 18/11/13/4541 NPO 020-771

EXECUTIVE SUMMARY ...... 4 1 INTRODUCTION ...... 7 2 BIODIVERSITY OFFSET ...... 7 2.1 REASON FOR BIODIVERSITY OFFSET ...... 8 2.2 POLICY GUIDELINES AND DIRECTIVES HAVE NOT BEEN FOLLOWED ...... 8 2.3 AUTHORSHIP ...... 8 2.4 BIODIVERSITY OFFSET PRINCIPLES ARE VIOLATED ...... 9 2.5 THE PROPOSED OFFSET DOES NOT MEET EIA REQUIREMENTS ...... 12 2.6 BIODIVERSITY OFFSET PLAN SHOULD BE REJECTED ...... 13 3 NO PROVEN NEED OR DESIRABILITY FOR THE BYPASS ...... 13 3.1 NO PROVEN TRAFFIC NEED ...... 13 3.2 INDEPENDENT SPECIALIST PEER REVIEW: TRAFFIC ...... 16 3.3 THERE IS NO BASIS FOR THE PROPOSED BYPASS IN TRAFFIC NEEDS ...... 18 3.4 BYPASS IS NOT DESIRABLE ...... 18 3.5 SOCIO-ECONOMIC, VISUAL AND SENSE OF PLACE IMPACTS ARE OVERWHELMINGLY NEGATIVE ...... 22 3.6 HERITAGE IMPACT ...... 23 3.7 THE BYPASS IS NOT DESIRABLE ON A RANGE OF IMPACTS ...... 26 4 ALTERNATIVES ...... 26 4.1 SUMMARY OF HISTORY OF JOINT VENTURE INVOLVEMENT IN SELECTED ROUTE...... 27 4.2 VESTED INTERESTS IN SELECTED ROUTE AND EIA PROCESS ...... 27 4.3 BIAS AGAINST ALTERNATIVES TO SELECTED ROUTE ...... 27 4.4 UNSUBSTANTIATED DISMISSAL OF ALTERNATIVES ...... 27 4.5 BIAS AGAINST THE NO GO ALTERNATIVE ...... 28 4.6 EAP DEMONSTRATES LACK OF OBJECTIVITY TOWARDS ALTERNATIVES ...... 28 4.7 MITIGATION HIERARCHY IGNORED: EAP DEMONSTRATES LACK OF INDEPENDENCE ...... 29 4.8 PROVINCIAL INVOLVEMENT IS INAPPROPRIATE ...... 29 4.9 FUTURE GROWTH WILL HAVE DIFFERENT TRAFFIC NEEDS AND REQUIRE DIFFERENT SOLUTIONS ...... 29 4.10 ALTERNATIVES HAVE NOT BEEN EXPLORED ...... 30 5 OVERSTRAND MUNICIPALITY INVOLVEMENT ...... 30 5.1 EARLY HISTORY OF OVERSTRAND ADMINISTRATION INVOLVEMENT ...... 31

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5.2 2008 OVERSTRAND ADMINISTRATION INTERVENTION...... 32 5.3 2011 INVESTIGATION AND 2015 REPORT SUPPORTING TRUNCATED BYPASS ...... 32 5.4 OPINION OF PAST MEC TRANSPORT AND PUBLIC WORKS ...... 33 5.5 OVERSTRAND ADMINISTRATION SUPPORT FOR THE “NORTHERN” ROUTE ...... 34 5.6 MUNICIPAL MANAGER LETTER 9 SEPTEMBER 2019 ...... 34 5.7 OVERSTRAND MUNICIPALITY POSITION REGARDING THE BYPASS ...... 34 5.8 THE PROPOSED BYPASS DOES NOT HAVE THE SUPPORT OF THE OVERSTRAND MUNICIPALITY ...... 36 5.9 BIAS BY THE EAP ...... 36 5.10 BIAS TOWARDS THE NORTHERN ROUTE THROUGH FERNKLOOF NATURE RESERVE...... 36 5.11 BIAS IN ADDRESSING COMMENTS FROM PUBLIC ...... 37 5.12 BIAS IN ADDRESSING LOSS OF PROTECTED AREA ...... 38 5.13 THE EAP HAS DEMONSTRATED CONSISTENT BIAS ...... 40 6 CONCLUSIONS ...... 40 6.1 BIODIVERSITY OFFSET PLAN ...... 41 6.2 NO PROVEN NEED OR DESIRABILITY FOR THE BYPASS ...... 41 6.3 ALTERNATIVES...... 42 6.4 OVERSTRAND MUNICIPALITY INVOLVEMENT ...... 42 6.5 BIAS BY THE EAP ...... 43 APPENDIX A ...... 44 APPENDIX B...... 47 MAY 2016 MAP SHOWING PROPOSED BYPASS ROAD ALIGNMENT...... 48

Page 3 of 48 overstrand conservation foundation, trading as

EXECUTIVE SUMMARY The Environmental Impact Assessment (EIA) process for the proposed Hermanus CBD Bypass road has taken many years to complete. The final EIA submitted by the consultant SRK South Africa (SRK) was rejected by the Department of Environmental Affairs and Development Planning (DEA&DP) on 19 March 2018 and SRK was instructed to provide additional information and submit a Final Amended EIA Report (AFEIAR) for consideration. DEA&DP will decide whether the project will be given the necessary environmental authorisation to proceed on the basis of the AFEIAR.

Whale Coast Conservation (WCC) has submitted comment at every stage of the EIA public participation process. WCC’s comments on the AFEIAR are based on the letter from DEA&DP rejecting the final EIA and cover the areas of concern brought up in this letter. All the concerns not dealt with in this document that have been raised in WCC’s previous comments, remain valid.

1. BIODIVERSITY OFFSET

The recommended route for the bypass, if approved, would require the loss of land from the NEM:PAA-protected Fernkloof Nature Reserve (FNR) as well from a wetland protected by a previous Environmental Management Plan (EMP). This requires that a compensatory biodiversity offset must be secured. It must be funded, managed and maintained by the entity causing the loss. The offset must be on a like-for-like basis, preferably be added to FNR (or at least to the protected areas network) and function as a substitute for the loss in perpetuity.

The biodiversity offset that is proposed is wholly unsuitable. It proposes that a suitable offset for destroying a portion of a biodiversity hotspot protected area and wetland is to clear invasive alien vegetation in part of the Onrus River riparian area for maximum period of five years. Clearing such vegetation is already a legal obligation on the landowners.

The proposed Biodiversity Offset Plan has inappropriate authorship, does not follow policy guidelines and directives, many of the guiding principles of biodiversity offsets are violated and it does not meet the EIA requirements for offsets. The land in question is largely in private ownership but there has been no consultation with any of the private owners or conservancies that would be affected. No substantive information is given either on operations or costing; what scant information is given is incomplete, inadequate and misleading.

The Biodiversity Offset Plan of the AFEIAR should be rejected out of hand.

2. NEED AND DESIRABILITY

The bypass is punted as providing for a long term traffic and transport need. However, there is no proven traffic need for the bypass. The proposed bypass is a truncated version of a previous plan to build a road along the northern mountainside of the town. It was proposed to the Department of

Transport and Public Works (DT&PW) as a substitute for the provincial road going through the town, but traffic counts showed no possible justification for this longer road.

The purported traffic benefits of the shortened version do not stand up to scrutiny and the traffic reasons given for the bypass are municipal, not provincial. It will not improve the functioning of the R43 as a provincial connector and it is thus inappropriate for DT&PW to be involved in it.

Hermanus’ future traffic needs were modelled on an assumption of continued growth that is very unlikely to be realised for a very long time, give current economic circumstances. The nature and type of population growth was not considered; the transport needs of the growing population segment will not be met by building new roads but by a combination of higher efficiencies in the existing roads and a workable public transport system.

The bypass will cause profound disruption to the socio-economic fabric of the town and has thus generated intense opposition. It will cause irredeemable negative impacts on an area that houses FNR and a seamless transition between this reserve and a well-used area of schools, churches, burial grounds, sports grounds and the Hermanus Country Market. This negative impact and disruption makes it wholly undesirable.

3. INVESTIGATION OF ALTERNATIVES

The mitigation hierarchy is a vital element of the EIA process and thus where there are any alternatives to encroachment on a protected area, these need to be treated with seriousness and objectivity.

In its single-minded pursuit of the favoured northern route, the joint venture appointed to investigate the feasibility of a bypass route has failed to investigate the viability of alternatives with any level of depth. Superficial lists have been provided of reasons as to why none of these are possible as an alternative to the preferred bypass route, rather than proper analyses. This indicates bias of the joint venture as the preferred route will not only be an expensive road to build (the joint venture will be a prime contender for the construction), but will also be a convenient first step towards the original alignment along the entire eastern mountainside. The insistence that the route must be protected for the future even if not for immediate construction, opens the door for further exploitation of FNR.

The EAP has been party to this biased treatment of alternatives and has demonstrated a lack of objectivity and independence in the matter.

Many of the suggested alternatives have been put forward by Interested and Affected Parties (I&APs) with relevant expertise and experience, but this substantive input has been ignored.

4. OVERSTRAND MUNICIPALITY

The project originated in an approach by an administrative official of the Overstrand Municipality to the DT&PW in 2008 and has been promoted and influenced by officials of the administration ever

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since through every phase of the EIA process. It is a vanity project that would be unaffordable by the municipality even in its curtailed format as proposed.

The impression has been given throughout the long history of the project that it has the support of the Overstrand Municipality. On request by DEA&DP a letter was submitted to this effect by the Municipal Manager. This letter is however refuted by the Overstrand Executive Mayor, who states categorically that the project has never been before Council and that any discussion of a possible need for a bypass and the route that it should take will not be considered by Council until the roadworks on the eastern and western sides of town are completed.

The project clearly has the support of the Directorate of Infrastructure and Planning in the Overstrand administration, but not of the Overstrand Municipality as an entity.

5. BIAS SHOWN BY THE EAP

The EAP has shown clear bias towards a pre-determined outcome throughout the various stages of the public participation process, this pre-determined outcome being environmental authorisation for building the northern route for the proposed bypass. Although this may be as a result of the EAP having been appointed by the joint venture, the EAP is nevertheless bound by the EIA Regulations to be objective, even if this results in an unfavourable outcome.

A selective interpretation of findings by the EAP is evident in many instances throughout the AFEIAR. The approach to comments by the I&APs is superficial and dismissive. There is also a clear bias towards downplaying the seriousness of the loss of part of a protected area. Despite overwhelming evidence to the contrary, this bias means that the EAP is able to recommend the approval of the northern alternative for environmental approval.

This EIA has been an enormously wasteful expenditure of public funds. Many millions have been spent on consulting fees in pursuit of a project that, if approved, will cause irreparable damage to a protected area of astounding biodiversity as well as enormous disruption to the social and economic fabric of the town.

WCC concludes that the project should not receive environmental authorisation. No permission should be granted for any such application in the future or for the protection of any route for any road that will involve any encroachment on FNR’s boundaries.

Page 6 of 48 overstrand conservation foundation, trading as

1 INTRODUCTION The Environmental Impact Assessment (EIA) for the proposed Hermanus CBD Bypass Road project has been many years in process. It has been conducted by the EIA consultant, SRK Consulting (South Africa) Pty Ltd (SRK) on behalf of the Western Cape Department of Transport and Public Works (DT&PW). Whale Coast Conservation (WCC) has given comments at each stage of the process during the associated public participation exercises.

The Final EIA was rejected by the Western Cape Department of Environmental Affairs and Development Planning (DEA&DP). SRK was instructed to make certain amendments and additions and to resubmit an Amended Final EIA Report (AFEIAR). On the basis of this amended document DEA&DP will decide whether to give the project environmental authorisation to proceed.

The rejection letter from DEA&DP detailing the areas of the Final EIA Report needing amendment forms the basis of this comment by WCC on the AFEIAR. All previous comments by WCC remain valid and should be referred to for any additional information required regarding WCC’s position on a particular issue.

2 BIODIVERSITY OFFSET DEA&DP notes in 4.1 of its rejection letter dated 19 March 2018 that it had raised the need for a biodiversity offset many times both in correspondence and meetings between April 2016 and December 2018, as had CapeNature. DEA&DP states that recommended mitigation is inadequate and stresses that “the assessment rating of affected vegetation is not the crucial consideration..(but) that the impact of the loss of land from a formally protected area (i.e. FNR) is the key aspect…(and) the fundamental principle” requiring a biodiversity offset. Organs of State are not exempt from offsetting requirements (4.2).

4.2 outlines the environmental impact mitigation hierarchy that underpins the EIA process (which) requires a sequential approach. Offsetting is only considered after every effort has been made to avoid, prevent, reduce, moderate, minimise and rehabilitate impacts.

On the assumption that environmental authorisation is given, an offset must be investigated and secured (4.3). Offsetting must be detailed in the EIA, and the holder of the authorisation for offsetting is responsible for ensuring compliance in perpetuity, as well as for securing necessary funds and for the sustainable management and maintenance of any offset (4.2).

DEA&DP also notes in 4.4 that the golf course wetlands, although not formally proclaimed, are protected through a previous environmental management plan and that this cannot be overridden by the bypass, nor can the existing environmental authorisation attached to the development rights on the property next to the wetland be overridden by the bypass.

In 4.9 DEA&DP cautions that “the Overstrand Municipality is a commenting authority, and…not a member of the project team.”

2.1 REASON FOR BIODIVERSITY OFFSET The principle of a biodiversity offset is that where loss to a conservation-worthy area – and particularly a protected area - is unavoidable a sort of “quid-pro-quo” or compensation in kind can be made, with the expectation that it will be on a “like-for-like” basis and that it will function as a substitute for the loss in perpetuity. For a loss to a protected area, the expectation is that the offset will result in an area that can also be added – if not to the original area – at least to the protected area network.

Compensation must be made for the loss of part of FNR, which is a protected area. FNR is a tiny reserve of exceptional biodiversity, recognised as a centre of endemism and the loss will be in the most biodiverse and vulnerable (because of its shape) section of the reserve. The bypass will also involve the loss of part of a wetland on the golf course; although not formally proclaimed as a nature reserve, this wetland is protected through the previous EMP of the golf course. The loss of land from FNR and the wetland is the reason for proposing a biodiversity offset.

The offset that is proposed for this loss is the clearing of alien vegetation in part of the riparian and catchment area of the Onrus River for a maximum period of five years.

2.2 POLICY GUIDELINES AND DIRECTIVES HAVE NOT BEEN FOLLOWED The Biodiversity Offset Plan refers to the National Environmental Management Act Draft National Biodiversity Offset Policy of March 2017 (NBOP) and to the Draft Western Cape Guideline on Biodiversity Offsets of 2015. Although neither of these documents have as yet been gazetted they provide valuable policy guidelines and pertinent definitions, principles, procedures and approach guidelines. However, the Offset Plan references are limited to the biodiversity offset ratios recommended in these documents (i.e. the ratio of the offset area to the area to be lost).

Both DEA&DP and CapeNature, the mandated commenting authority on biodiversity issues, asked during the EIA process for a biodiversity specialist to be appointed to perform a biodiversity offset study. The EAP’s response was that it considered the impact of the proposed bypass road on FNR to be too low to warrant an offset study. When instructed to include an offset study in the amended final EIA, an independent expert was not appointed. The date of March 2020 on the report indicates that this frequently voiced requirement was not taken seriously; the authorship and the content of the report bears this out.

2.3 AUTHORSHIP Authors:

The authorship of the proposal is a clear indication of the lack of importance placed on this requirement of a biodiversity offset proposal – and by implication, to encroaching on the boundaries of a protected area.

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The main author of this proposal is Liezl de Villiers of the Overstrand Municipality (OM). Ms de Villiers heads the Environmental Management Services (EMS), which is housed under the Infrastructure and Planning Directorate (Director: Mr Stephen Muller). This directorate and its director in particular has been the prime motivator for the bypass, has been key in pushing for the selection of the northern route through FNR and has placed pressure on EMS during the EIA process to do the same.

It is highly inappropriate for Ms de Villiers to be the proposer of the offset; this investigation should have been undertaken by a specialist independent practitioner with suitable environmental expertise.

The second and third authors are Sue Reuther and Chris Dalgleish of SRK. Ms Reuther heads up the EIA project team. Mr Dalgleish refers twice in the video accompanying the project documentation to the public concern surrounding the impact of the planned route on the Fernwood Nature Reserve, apparently unaware that the reserve in question in question is the Fernkloof Nature Reserve and that the Fernwood Nature Reserve is part of Fernwood Estate outside Knysna.

It is equally highly inappropriate for members of the project team to undertake this investigation, particularly in conjunction with the OM. OM is meant to be a commenting body in the EIA process and not an active participant as a member of the project team. The consistent bias shown towards the northern route by SRK during the EIA process means that the two authors should not have been involved at all in the production of this proposal.

Reviewers:

The proposal has been reviewed by Eric Foster of Eric Foster Group Engineers (EFG); this company has expertise in (inter alia) traffic engineering and infrastructure design and is currently working on the upgrade of the R43 road between Hermanus and Stanford. EFG group was one of the two consultants in the Joint Venture who produced the transport plan that recommended the bypass (see the section on Traffic). In addition to this clear conflict of interest, Mr Foster does not have the expertise to be able to review a proposal of this nature.

It has also been reviewed by Dru Martheze of the Western Cape Department of Transport and Public Works (DT&PW). Ms Martheze, as a road network planning engineer, also does not have the expertise to review a proposal of this nature.

The Biodiversity Offset Plan should be rejected as invalid and incompetent purely on the basis of authorship.

2.4 BIODIVERSITY OFFSET PRINCIPLES ARE VIOLATED The NBOP sets out fourteen principles that must guide biodiversity offsets. The proposed Offset Plan is in conflict with at least five of them, namely:

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Principle 2: The mitigation sequence The importance of institutional protection of a nature reserve is recognised in the mitigation sequence. This hierarchical approach states that every effort must be made to avoid, prevent, reduce, moderate, minimise and rehabilitate impacts on the area concerned. Encroachment on a protected area can only be considered after progressive failure of all these steps.

With respect to the bypass proposal and FNR the first step of the mitigation hierarchy i.e. avoid has never been seriously considered. The preservation of the boundaries of this protected area should have been a first principle, and encroachment on the boundaries should have been rejected ab initio. This would naturally have required that alternative routings that did not entail any such encroachment should have been fully explored.

Bias towards a pre-planned route – the northern route through FNR - is clearly evident in the fact that this has never been done and in the dismissive handling of the loss to a protected area. Only cursory and superficial “investigations” have ever been done into the feasibility of alternative routes that do not involve encroachment into FNR. Despite this the conclusion has been reached that they are all so much less favourable on a range of criteria than the proposed route, that encroaching into the reserve is justifiable. This is patent nonsense and makes a mockery of the offset principle that the loss of any land from a formally protected area is to be avoided if at all possible.

A nod in the direction of the mitigation hierarchy has been made regarding the wetlands, but the proposal to build a bridge over them is likely to cause at least as much damage to them as the original approach.

Principle 7: Biodiversity offsets should comprise the same components as those to be lost The vegetation on the land to be lost in FNR consists of Critically Endangered Overberg Sandstone Fynbos, Endangered Hangklip Sand Fynbos and Vulnerable Agulhas Limestone Fynbos (SANBI designations) The areas along the west-east route of the proposed alignment have also been designated as Critical Biodiversity Areas and the wetlands as an Ecological Support Area.

FNR is shaped like a kite, with a long thin tail running east-west along a steep slope; this shape makes the land in the tail exceptionally vulnerable to interference. The major part of the proposed route will be in this tail, which makes the loss even more severe.

The reasoning through which this loss of vulnerable and irreplaceable indigenous vegetation in a protected area equates to clearing alien vegetation in a riverine area is completely opaque.

Principle 8: Biodiversity offsets must result in conservation gains above and beyond measures already required by law The land within the proposed biodiversity offset that is owned by the OM is infested with a range of aliens, dominated by Eucalyptus cladocalyx, and including populations of E. lehmannii, Acacia seligna, A. cyclops, A. longifolia, A. mearnsii and Hakea gibbosa. The amended regulations of the Conservation of Agricultural Resources Act No.43 of 1983 (CARA) list all of these as being either

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Category 1 or 2 invaders. Landowners are required to remove any category 1 or 2 invaders using one of the methods set out in 15E of the regulations.

Under CARA, category 1 invaders can only be left standing if they are in a reserve in which biological control has been initiated. Category 2 invaders can only be left standing if they are in a biological control reserve or if they are in an area demarcated in terms of regulation 15B(3); none of the land in question, including the OM land, qualifies for this latter exemption. In addition to these requirements, no category 1, 2 (or 3) invaders are allowed within 30 metres of the 1:50 year flood- line of a watercourse unless the owner has applied for and been issued with a water user’s permit in terms of the National Water Act.

The OM is thus in violation of CARA if it does not remove these invaders, particularly from the riparian area, and also from all of the area that is infested. This also applies to private landowners. Some minor alien clearing contracts have been given on the OM land to small scale contractors providing firewood and building material to local users.

For many years the Onrus Estuary Forum has been requesting the OM to fulfil this legal obligation under CARA and to repair damage to the watercourse caused by failed past attempts that resulted in large trees being felled into the river.

Legal directives have also been served on the OM, which has not allocated any budget for this work (the entire current alien clearing budget for the Overstrand is R250 000). Attempting to fulfil its CARA obligations under the guise of a biodiversity offset can charitably be called disingenuous.

Principle 12: Determining residual negative impacts and the design and implementation of biodiversity offsets should be undertaken in an open and transparent manner, providing for stakeholder engagement, respecting recognised rights and seeking positive outcomes for affected parties The area proposed for the offset is a patchwork of ownership – most is privately-owned (73%), some is owned by the OM (27%) and a very small amount is public land. Thus just over three-quarters of the land is privately-owned and therefore not accessible to the public, whereas all of FNR is. Much of the land proposed for the offset also comprises multiple "fingers" of land stretching up small watercourses into the catchment on the mountains. No detail beyond a broad-brush map is given as the exact extent and nature of the land that will be rehabilitated.

Obtaining support and agreement by an array of private owners for the proposal is not an easy task. However, none of the private property owners have been consulted on this plan, nor has the Onrus Mountain Conservancy with which the properties are associated. No consultation has been held with any of the conservation organisations in the area, nor has it been put to the Fernkloof Advisory Board. This makes a mockery of this critical principle.

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Principle 14: Offsets must be able to be monitored and audited in relation to clear management and performance targets (and) able to be enforced through explicitly worded, legally binding conditions and/or common law contracts Section 9.5 of NBOP deals with the application of this principle. It states that an offset site must preferably be declared as a protected area as NEM:PAA, to be secured through either:

• A land donation by the applicant (in this instance DT&PW) to an appropriate statutory authority approved by the environmental authority (in this instance DEA&DP), or • Purchase of land or rights to land by the applicant

Since 73% of the land proposed for the biodiversity offset is privately owned and is made up of riparian fragments along small watercourses feeding into the Onrus River, it is impossible to comply with this principle.

The proposal is far too vague in terms of dates, times and budgets to be taken seriously. Item 4 states that it is a “conceptual offset management plan” and that it will need to be “revised, refined and/or updated as and when…the bypass has been approved and prior to the implementation of…the offset” - in itself a startling statement that assumes approval. The plan concerns an area that will be very complex to manage and plan for, with an array of ownership, varied terrain and a variety of role-players that will have to be brought on board. No explanation is given as to why detail of this sort has not been provided, and the information in the various figures and tables is so scant as to be meaningless.

2.5 THE PROPOSED OFFSET DOES NOT MEET EIA REQUIREMENTS NBOP Section 9.6 sets out requirements for including an offset in an EIA process. The proposed biodiversity offset project does not meet any of these. For example:

• There is no evaluation of measures considered to avoid, minimise and rehabilitate potentially negative impacts on biodiversity. Bland statements that there will be no significant impacts, or attempts to downgrade impacts do not suffice. • There is no clear statement that the proposed offset will suffice for the loss and that no feasible alternatives to an offset could have been taken. • There is no reliable measure of residual negative impacts. • There is no description of any other offset options having been considered. In this regard, Section 2.1 of the Biodiversity Offset Project document “Identification of Biodiversity Offset” does not describe any alternatives but instead gives “key considerations that informed the identification of a suitable offset”, of which two relate to affordability, namely: o “Limitations of the ability of the DT&PW to fund projects not directly related to infrastructure development/maintenance and/or which are located on private land” and o “Limitations in municipal resources to conduct future maintenance of an offset”.

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Logically, on the basis of these limitations the proposed offset does not qualify and cannot be funded; most of it is on private land and it would need to be established and maintained in perpetuity.

The area proposed for the offset is fragmented pockets of riparian land along watercourses feeding into and along the Onrus River, most of it privately owned. Demarcating the land within the offset is an impossible task, as would be purchasing. There is clearly no intention to secure the land proposed for the offset. None of the associated nine requirements in NBOP 9.6.7 can therefore be met; these relate to ensuring that the offset and its benefits can be secured in perpetuity.

If environmental authorisation of the bypass project depends on a suitable biodiversity offset, and the only identified offset deemed suitable cannot be funded or secured, then the selected route of the bypass project is unaffordable and unfeasible and environmental authorisation must be refused.

2.6 BIODIVERSITY OFFSET PLAN SHOULD BE REJECTED The Biodiversity Offset Plan is a travesty. Its inadequacies make it impossible to assess. Where it provides information this is for the most part incomplete, inadequate and misleading. It does not provide any substantial information on the scope of the work to be undertaken, how and by whom it would be undertaken, or how private landowners will be incorporated. Costing is also inadequate, incomplete and misleading. What plans are given are for the initial phase only; there are none for the maintenance element. Meaningful timeframes are absent, and to give a five-year timeframe for an undertaking of this nature is nonsensical.

The document states that this is a concept plan and that full plans will be drawn up “as and when” the bypass project is given environmental authorisation.

This Offset Plan is supposed to provide an environmental compensation for the loss of land from a formally protected area and the loss of wetland protected by a previous EMP. These are extremely serious issues. In response, the plan proposes that compensation of the removal of alien vegetation from an area of the Onrus River for a period of not more than five years will suffice as a biodiversity offset.

This Offset Plan does not even begin to approach the gravity of the issue. It should be rejected out of hand.

3 NO PROVEN NEED OR DESIRABILITY FOR THE BYPASS 3.1 NO PROVEN TRAFFIC NEED DEA&DP states in 4.5 of its rejection letter dated 19 March 2018 that the proposal is seen as providing for a long-term traffic and transport requirement, as well as the municipality’s need to enable the Hermanus CBD Regeneration project. However, a provincial bypass road “cannot be motivated by the local authority’s need for the Hermanus CBD Regeneration project”… and that

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“motivation from a traffic, transport and time-saving perspective (has) not been demonstrated in the short- to medium-term”.

For a full description of the history of the bypass project, please refer to the section on Overstrand Municipality involvement.

In summary - in 2008 the Overstrand administration initiated an investigation into a bypass road that would run along the northern mountainside, from the Gateway traffic lights on the western side, exiting the town past Voëlklip on the eastern side and produced a report in 2009 that supported this idea. Obviously, a municipality of Hermanus’ size could not afford such a road, but the administration was able to persuade DT&PW to investigate it on the grounds that it could replace the R43 provincial road going through the town and eastwards.

The DT&PW appointed a Joint Venture to investigate the need and desirability, and possible alignments, of a bypass eastwards along the mountainside of Hermanus from the Gateway intersection and concluded that predicted traffic growth did not warrant a bypass along the mountainside, as counts showed that only seven percent of the traffic entering Hermanus on the west exited it on the east. Most of the traffic from Gateway to the east is traffic to the four schools in the area. The eastern areas of Hermanus beyond the CBD are largely residential, with very few businesses.

However, the Joint Venture came to the surprising conclusion that although a full bypass could not be justified, a partial bypass along a section of the proposed route, i.e. “a shorter Hermanus CBD bypass between Mountain Drive and the R43 / Fairways Avenue intersection” would be needed and desirable. DT&PW should adopt it as a traffic project that would serve the town by offering two benefits, neither of which stand up to scrutiny:

(1) easing congestion on the R43 through the centre of Hermanus. The project states that the bypass is “expected to capture…some 25% of the traffic that enters Hermanus.” This is traffic that does not go through the CBD in any event as most of it is traffic to and from the four schools in the affected area. It therefore has a negligible effect on congestion in the CBD. If the objective of a road is to alleviate congestion along the R43 in the CBD, it would make sense to address the 75% that is causing the problem, rather than the 25% that is not aimed for the CBD in any event. The traffic benefits of the bypass are not very exciting – essentially it will offer (by 2035) around two minutes off travel time compared to using existing routes, and

(2) enabling the CBD Revitalisation Plan to happen, through de-proclaiming the CBD part of the R43 and replacing it with the bypass. Main road (R43) is not essential to the CBD Revitalisation Framework, which states that the Relief road will be well able to cope with any congestion caused by the pedestrianisation of High Street and any other traffic impacts of the CBD Revitalisation Framework.

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Traffic need reasons given for the bypass are municipal not provincial It must be noted that the reasons given for the need for the bypass are essentially municipal and not provincial traffic issues. No cogent reason is given, beyond the specious ones given above, as to why the province should consider building it. Replacing three kilometres of the R43 with another three kilometres, with a significant part still within the urban area, does not mean that the bypass will suddenly now make it any more possible for the R43 to be able to function as a provincial connector, which is what the province is supposed to be concerned with.

Even the project realises that these benefits are underwhelming, but postulates that additional traffic capacity may well be needed in the future and so the proposed route (through FNR) must be secured with a road reserve just in case this future arrives. This long-term objective, which is repeatedly stated by the protagonists of the project, does not accord with the traffic reality on the ground, either at the time the Traffic Impact Assessment (TIA) was done or (even less so) into the future.

Hermanus’ traffic needs into the future The TIA was modelled on the assumption of a traffic growth rate of 2.2%. In the time since the traffic “needs” were investigated, dramatic changes have taken place in the economies of Hermanus, its CBD and the country as a whole. These include:

• Hermanus as a town was wracked by internal strife with violent protest action against land use planning and practices during 2018 (with further flare-ups in 2019) that saw the town being closed to incoming traffic a number of times; at the time of writing these issues have not been resolved; they led to a drop in tourist traffic and investment that has yet to recover fully. • A shopping mall has been built west of the Gateway intersection to cater for the town’s steady dominant growth and settlement patterns to the west. These patterns are acknowledged in the TIA, but what is not mentioned is that recent population growth, on which future traffic growth is based, has been almost exclusively in the lower-income bracket. The traffic needs of this population segment are not for more roads but for an efficient public transport system. This growth and movement westwards has led to a marked decline in business activity in the CBD. • The town as a whole, and particularly the CBD where many businesses have folded, has been negatively affected by the country-wide economic slump of the past few years. • The Covid19 pandemic and its associated lockdown measures since the end of March 2020 have further exacerbated the economic woes of the town, which is heavily reliant on tourism and its associated business. The long-term effects are likely to be profoundly negative and any recovery will be extremely difficult. • It will be a very long time, if ever, until Hermanus sees traffic growth of 2.2%. The traffic need for the bypass, which was always a fabrication, can now be seen more clearly than ever to be non-existent and unlikely ever to be experienced. If these trip growth predictions are ever realised, it can only be hoped that traffic planning for Hermanus will have moved on

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from building expensive and environmentally destructive roads to cater for marginal and seasonal increases in congestion.

3.2 INDEPENDENT SPECIALIST PEER REVIEW: TRAFFIC DEA&DP, in its rejection letter dated 19 March 2018 also states in 4.7 that although “the Traffic Impact Assessment (TIA) conducted by the Joint Venture is not considered a specialist study (it) does still reference itself (as such). However…such a development proposal, particularly given the level of public participation and concern around…need and desirability…warrants independent specialist input (thus) the TIA (must be) subjected to independent specialist peer review (indicating) need…and desirability related to various alternatives.”

The independent specialist review of the Traffic Study done in February 2020 by Harry Thompson, states that it is “an independent technical review of the Traffic Study prepared by the EFG-iCE Joint Venture in October 2017 (in) Volume 1 of the EIA final report.” The review led to an amendment being prepared by the Joint Venture (version 2 dated 12 March) together with a Synthesis of Background Information dated 18 March 2020. After submission of these, Mr Thompson subsequently wrote an Addendum to be read in conjunction with his review.

Mr Thompson notes that, although referred to and labelled as a labelled as a Traffic Impact Assessment on the pages of the report, it is more correctly a Traffic Study and he investigated the methodology accordingly in order to ascertain whether it fulfilled technical expectations of a Traffic Study. He obtained information on the context through perusing the Overstrand Transport Plan (OTP).

Although the review was undertaken thoroughly, the context within which the traffic information was generated has changed dramatically since both the review and the amendments to the study, as noted above. This changed context had already begun prior to the amended study but was not acknowledged in it, and will have a dramatic negative effect on the traffic “need”.

The study notes counts of 1.6% growth to the west and 1.35% to the east and the review finds that the traffic growth rate linked to population growth of some 2% is reasonable. However, this is in the context of “Hermanus (being) forecast to have one of the highest population growth rates in the province” (again, see 3 above for the nature and area of this population growth).

The review points out a number of uncertainties, including:

The number of trips exiting Hermanus which was found by the 2011 December surveys for the OTP to be seven percent. Mr Thompson notes that this is “a doubtful determinant of typical year-round through traffic (which) may call into question the need for the Bypass as a Class 2 mobility Route.”

The proportion of traffic on the bypass that would be travelling the entire (3.3 kilometres) length apart from through trips. Many users will be doing west-to-east return trips to one of the schools along the same route, and some from the east to retail outlets in the west, also as a return trip. Mr

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Thompson notes that “this raises questions as to whether the Bypass would actually be a mobility route, or rather a local route with some through traffic movements.”

The review notes as a certainty that the “CBD Urban Renewal scheme (presumably the CBD Revitalisation Plan), if implemented, will reduce capacity on Main Road and the Relief road (and that) there is little or no prospect of increasing capacity on either through the CBD. A bypass route may therefore be needed in the future, but this would depend on the rate of growth in traffic and the origins and destinations of the trips.”

The review notes that the estimated travel time savings are based on generalised assumptions and appear to assume the saving would be the same throughout the day, whereas on- and off-peak time savings differ substantially. Time savings on the Bypass compared to current travel time on Mountain Drive have not been considered and he states that “the conclusion that the bypass would break even at approximately year 16 on travel time savings alone is therefore questioned”. It notes that a more comprehensive economic evaluation of the project should be carried out to see whether the conclusions are in fact valid. The amended study clarifies the basis of the calculations, but does not change the review’s conclusion that a rigorous economic evaluation is needed and should precede any budget allocation.

The amended study does not materially alter the conclusions of the review as noted in the numbered conclusions in its Section 10. In the addendum, the review notes that traffic counts carried out in January 2020 indicated increased traffic at the Gateway intersection both on Main road and Mountain Drive, and states that trips to the new Curro School to the west and the Whale Coast Mall would account for some of this growth. Through traffic from the Gateway intersection to Fairways Avenue is estimated at 21% (which is less than the 25% originally estimated in the OTP).

The conclusion of the technical review is that adequate methodology has produced evidence to indicate that the bypass may be needed to reduce future congestion of through traffic and in the CBD. However “monitoring of growth rates over time will be important in determining timing…assuming the project obtains environmental approval by DEA&DP”.

Alternatives not dealt with in Independent Review The review restricts itself to a technical assessment of the contents of the traffic study but does not however deal with “need…and desirability related to various alternatives” as requested by the DEA&DP rejection letter. Point 3 Alternative Alignments merely notes that “Table 3-4 from the EIA Report…indicates alternatives that were considered and rejected, and the reasons for them not being further evaluated in the traffic study.” and in the Addendum that “The revised report includes a table of alternatives not included in the EIA.” No further comment is given on the alternatives.

Although the technical assessment is thorough, the reviewer takes at face value the approach to and the rationale of the project. It is a pity that it stops short of assessing the reasons given for discarding the alternatives.

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3.3 THERE IS NO BASIS FOR THE PROPOSED BYPASS IN TRAFFIC NEEDS WCC contends that the traffic “need” for the bypass has been fabricated from 2008 and the EIA process manipulated by the Joint Venture and the Overstrand administration in order to serve the end of being able to build a very expensive road - even if only at some time in the future – that will cause extensive social disruption and destroy part of a protected area.

If a true traffic need for a bypass of the Hermanus CBD can be shown, WCC would have no objection to one being built, but not through any part of a protected area.

3.4 BYPASS IS NOT DESIRABLE The rejection letter from DEA&DP dated 19 March 2018 states that “the two alternatives presented show that the proposal will result in significant negative impacts on the receiving environment from a biodiversity as well as a socio-economic perspective (4.5)”. It states in 4.8 that “an alternative site for the Hermanus Country Market is required…as an essential aspect” and requires in 4.12 that “The socio-economic Impact Assessment is subjected to an independent specialist peer review.”

The bypass proposal is seen as a long term traffic and transport requirement. Traffic and transport routes have an important influence – which can be definitive - on the shape and character of the urban environment. The assumed progression of village > town > city is not necessarily an inevitable response to increased population and can be shaped in large part by the traffic and transport planning response to demand. For example, traffic can be forbidden from entering part of a town in order to preserve old or notable infrastructure and places of particular interest, or to enhance pedestrianisation of areas.

The town of Hermanus is physically shaped in large part by the existence of FNR, a proclaimed nature reserve. This reserve and its influence on the character of the town is integral to the town’s character. The bypass proposal is a wholly inappropriate response to perceived future traffic needs that ignores both this character and the institutional protection afforded to FNR and which will have profoundly negative impacts. As such, it has attracted much adverse public comment and opposition.

Socio-Economic Assessment An updated version of the Socio-economic Impact Assessment authored by Sue Reuther (SRK consultant and the EAP for the project) was issued in February 2020 after the independent specialist peer review by Dr Jonathan Bloom of January 2020.

Dr Bloom noted many problems in his review of the original report. Some of these comments have been incorporated in the adjusted version. However, many problems still remain, the major problem being a consistent manipulation of findings in order to build a case for favouring the northern route. Some of these are noted below.

The Executive Summary paints a rosy picture of future growth in Hermanus (on which the project is based) that is out of date and irrelevant; see the section on 3.1.2 in Traffic need for the current

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situation, which is very different. The current dire economic situation, which is not considered, means that many of the assumptions are not valid. As an example, the potential for short-term employment during construction is stated as the generation of approximately 500 direct, indirect and induced jobs, with the claim that “many of those jobs will be retained at construction and other firms as contractors finish one project and start another.” In the current economic circumstances it can be expected that the main contractors will already employ labour who will be imported, thereby reducing the employment opportunities locally, but that the project will attract people into Hermanus from other areas who hope to find employment. The adverse socio-economic effects of the main contractors importing labour already in their employ, and effect of these new arrivals, is likely to far outweigh the impact of some employment offered by the project to unemployed people who already live in Hermanus.

The project offers no advantage to the fast growing communities west of the CBD in Zwelihle, Mt Pleasant and Hawston who are dependent upon affordable public transport. The alternative of a workable public transport system was rejected out of hand by the Joint Venture at the project outset. It is however a definite socio-economic need in the community and should have been fully assessed.

The economic implications of the Biodiversity Offset should also have been considered, as it is a critical aspect of the proposal. The costing of the proposed offset is totally inadequate and misleading (see Section on the Biodiversity Offset). The proposed offset is also wholly inappropriate. A correctly formulated “like-for-like” offset of land at the recommended ratios that can be acquired and added to FNR should have been fully costed.

The AFEIAR concludes that because:

• traffic noise is deemed to have low impact on FNR, residential properties, places of worship - where it is stated that in any event people worship indoors where road noise is muted - and burial grounds, sports grounds and schools, • the percentage area of private land that must be expropriated is deemed to be low and will be compensated for by payment of a once-off sum of money, • the impact on lowering property values is deemed to be low, as property values anyway fluctuate and come down for other reasons, and • the Hermanus Country Market can be relocated, the socio-economic impact is assessed by the EAP to be medium and therefore acceptable.

As with the other inputs by SRK, this assessment is characterised by a consistent bias towards the selection of the northern route and in pursuit of this, gives ratings that do not stand up to scrutiny. It states that “with an alternative market site now secured” (see comment below) both the northern and southern alignments are acceptable.

3.4.2 Relocation of Hermanus Country Market:

The invalid letter of support from the Municipal Manager (see section on Overstrand Municipality) states (inter alia) that the Market will be relocated to a site that is:

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• Not available for such a use as even if the project was approved, it would still be within the bounds of FNR in the so-called “buffer area” that would have to be rehabilitated • Home to a diversity of plant species that must be protected. During the 2018 fire this area burnt and many geophytes emerged, including Gladiolus grandiflora (not often seen in FNR and the only known population in FNR of the short variation of Moraea fugax • Totally unsuitable for such a use as the ground in question is on a steep slope below an embankment that would be created by the road. It will radically alter the nature, ambience and access to the Market for both traders and clients, so much so that support can be expected to decrease significantly. This would have a seriously negative effect on the town’s social fabric and the livelihood of many traders.

Visual and Sense of Place Impacts One negative impact is the visual impact, which is intimately bound in the receiving environment to a sense of place. The area through which the bypass is proposed to be built is of great importance and socially significant to the Hermanus community. Not surprisingly therefore, the tremendous negative disruption to the area that will be caused by the bypass has given rise to intense concern and opposition to the proposal.

However, this importance has been wilfully ignored and elided by the SRK authors of the Potential Visual Impacts study in the AFEIAR in the same way that the Heritage specialist report (see below) demonstrates a complete lack of understanding of the importance of the area to the community and visitors to Hermanus. The main author of the specialist study, Sue Reuthers, is also the appointed EAP and as such has been very well informed by I&APs during the lengthy public participation process of their vociferous objections, expressed in writing and at public meetings, to this proposal to put a provincial road through FNR and what she describes as “an unbuilt, predominantly natural site”.

Ms Reuthers notes that the bypass will be highly visible from what she refers to as “sensitive receptors” (listed in Table 6-51). These “sensitive receptors” include FNR, where people go to enjoy peaceful appreciation of pristine fynbos in a NEM:PAA protected environment, places of worship, burial grounds, schools, sports fields, the golf course and the Hermanus Country Market where people socialise and purchase locally produced merchandise and produce.

Having acknowledged this high visibility however, she states that “Both the northern and southern alternatives are considered moderately compatible with the landscape integrity of the area (although) the expected magnitude or intensity of the overall visual impact of the project for both alternatives is rated as moderate to high. Note that this relates only to impact intensity and does not constitute the overall impact significance”.

The report moderates the overall impact significance by noting that there will be little visual impact of the bypass on the CBD and far-off residential areas. This however should have little importance in the rating of sense of place impact. What is highly significant should be the very high visibility from the “sensitive receptors” as these are the elements most affected by the proposal and this cannot be diluted by distance.

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Ms Reuther also states that:

“The CBD bypass adjacent to Mountain Drive (for both alternatives) will change the site from an unbuilt, predominantly natural site to a built site. This section will be highly visible to residents immediately adjacent to Mountain Drive and users of Mountain Drive, but visibility diminishes drastically for those residents further away from Mountain Drive due to the VAC provided by the urban fabric. This section will also be highly visible to visitors to FNR and from the cemetery, the churches on Jose Burman Drive, Hermanus High School and Hermanus Pre-primary School.”

“The section of the CBD bypass north of the cemetery, through the Hermanus Sports Complex and adjacent to Hermanus Private School (northern alternative) will change the site from a primarily unbuilt site to a built site (and) passes through a recreational area. This section will be highly visible to visitors to FNR, the cemetery, the churches on Jose Burman Drive, the Hermanus Sports Complex, Bosko Church and Hermanus Private School and residents immediately adjacent to and users of Fernkloof Drive.”

Having rated the “impact intensity” as high, the significance of the visual impact and sense of place are rated as medium negative (northern alternative) and high negative (southern alternative) prior to mitigation. After mitigation the significance ratings are reduced to low negative for both alternatives. Mitigation would consist of sloping the road towards the mountain so that the road surface will be less visible, building stone walls in cuttings within FNR, using natural plantings and employing a landscape architect to reduce the significance of the sense of place impact.

Ms Reuther therefore assesses as having a medium negative sense of place impact a provincial road that will:

• be incompatible with the existing land use of the area that is proclaimed as a NEM:PAA protected area, adjacent to which is an area used extensively for a seamless transition to FNR and for spiritual, burial, social, recreational, sporting purposes; • change the site from an unbuilt, predominantly natural site to a built site; • pass through FNR and be highly visible from it and from the Hermanus Sports Centre, the Hermanus Country Market and the four schools in the area; • pass very close to properties on Mountain Drive that now front onto FNR, the cemetery, the churches on Jose Burman Drive, Hermanus Pre-primary School, Bosko Church, Hermanus Private School, Hermanus High School and residents immediately adjacent to and users of Fernkloof Drive.

This is a laughable rating. Even more comic is the assertion that a few cosmetic adjustments to the look of the road proposed as mitigation measures will lower this rating further to low negative.

The area is pastoral in nature, appearance and atmosphere and this quality is highly valued by the community and attracts visitors. Nothing should be allowed to be developed in this area that detracts from this treasured, tranquil sense of place.

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Inserting the bypass road into this area will destroy this pastoral ambiance for ever. The intensity and significance of the sense of place impacts should both be very high negative and should result in the rejection of the proposed bypass road route as undesirable.

EAP Bias towards a pre-selected route in assessment of visual impacts Statements made in Section 6 of the Potential Visual Impacts study illustrate that the DT&PW and the EAP have ignored not only the inputs of I&APs but also the comments made by DEA&DP in their rejection letter dated 19 March 2018. Section 4.5 of that letter also clearly states that:

“This department is of the opinion that the application by the Department of Transport and Public Works for a bypass road cannot be motivated by the local authority’s need for the Hermanus CBD Regeneration project…”

However, this study states in Section 6.8.4:

“Although not formally assessed and rated as an impact, one purpose of the bypass is to lower traffic volumes (relative to the no-go scenario) in the CBD and enable the implementation of the CBD Regeneration Framework …A reduction in traffic and revitalisation of the Hermanus centre may result in a positive visual impact in that area.”

Not only does this statement ignore the DEA&DP advice, the EAP seems unaware that the CBD Regeneration Plan specifically does not require the building of the bypass, stating that the Relief road would be able to cope adequately with any traffic impacts of the Plan. The EAP has chosen to ignore the advice of numerous I&APs on this issue. This convoluted attempt to tie the bypass to improved visuals in the CBD rather than concentrating on the visual impact of the bypass on the receiving environment indicates clear bias.

3.5 SOCIO-ECONOMIC, VISUAL AND SENSE OF PLACE IMPACTS ARE OVERWHELMINGLY NEGATIVE The fact that the project has generated enormous opposition from I&APs to many aspects associated with socio-economic factors once again has fallen on ears that seem only to be attuned to the desired result; thus the EAP can blandly state “No significant direct cumulative socio-economic impacts were identified.” The socio-economic impacts are based on an outdated outlook for Hermanus’ economy that unfortunately has no relevance to current realities. Important economic impacts such as the costing of the required biodiversity offset have not been done. Ratings of the socio-economic impacts, and the failure to address aspects such as the site selected for the relocation of the Hermanus Country Market by the Overstrand administration are indicative of bias.

Having identified the “intensity” of the sense of place impact as high negative, the author has reduced the “significance” of the sense of place impact to low negative. This low negative rating is incompatible with her statement that the proposed bypass will transform “an unbuilt, predominantly natural site to a built site”. Both the intensity and significance of sense of place ratings should be high negative. The failure of the author to arrive at such an outcome is indicative of bias in favour of a pre-selected route.

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According to Ms. Reuthers the proposed bypass road will be “highly visible” to “sensitive receptors” comprising FNR (a NEM:PAA protected area), places of worship, burial grounds, sports fields, schools, the country market grounds and Mountain Drive, Fairways Avenue, and Fernkloof Drive. The enjoyment of all of these by the community and visitors is enhanced by their quiet, pastoral ambience in nature, appearance and atmosphere. This bypass would thus be a highly negative visual impact.

The author however asserts that minor cosmetic adjustments to the final appearance of the road will be adequate as mitigation measures that will enable lower ratings to be applied; this is clearly nonsensical.

The author attempts to soften the negative impacts further by claiming that the bypass may improve the visuals within the CBD through enabling the implementation of the CBD Regeneration Plan. She has chosen to ignore advice from I&APs that the bypass is not a necessary condition for the implementation of the CBD Regeneration Plan. In addition, DEA&DP has directed that the implementation of this plan cannot be used to justify the bypass.

The bypass should be rejected as undesirable in its unacceptably high negative impacts on socio- economic aspects as well as visual and sense of place elements.

3.6 HERITAGE IMPACT The DEA&DP letter of rejection dated 19 March 2018 states in 4.10 that “Heritage Western Cape (HWC) must provide final comment, or a Record of Decision, during the revised EIA phase of the environmental application for the proposed development. Specifically, HWC must comment on whether the Heritage Impact Assessment and Visual Impact Assessment meet the relevant requirements to sufficiently identify, assess and mitigate the potential impacts associated with the proposed development.”

Appendix L2 of the AFEIAR contains a letter from HWC dated 12 March 2018, purporting to be their “Final Comment”. It should be noted that this letter predates the letter from DEA&DP referred to above which asks for HWC’s final comment. The HWC letter refers to “the consultant’s recommendations report on page 20, dated January 2018.” The Heritage Specialist Study Report by ACO Associates CC attached to the Final EIA Report (Appendix L1) is dated August 2016.

This anomalous reference in the HWC letter was queried with the EAP, Sue Reuther of SRK, who refers in her reply to WCC to a Footnote 6 / section 2.1.4 of the AFEIAR as the explanation. The EAP should have referred the letter back to HWC for correction of the errors with a request for a considered comment including reasons; the almost two years between the DEA&DP request and the release of the AFEIAR would have provided ample time to do this.

The HWC letter is superficial and frivolous and does not satisfy the needs expressed in the DEA&DP letter. It makes no reference to the Visual Impact Assessment, or Heritage Impact Assessment (beyond in the latter case inserting an obviously standard paragraph) as required in paragraph 4.10 of the DEA&DP letter, but merely refers to the consultants’ report.

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The one-line final comment “HOMs support the proposal as indicated in the consultant’s recommendations report on page 20, dated January 2018” suggests that HWC Officials did not apply their minds to the issues and merely rubber-stamped the application at a routine meeting.

The HWC letter should be rejected as failing to meet the stated DEA&DP requirements for final comment. It is not credible.

Heritage Specialist Study is Fatally Flawed The ACO Associates heritage study is extremely superficial and demonstrates a poor understanding of the area through which the bypass is proposed to be constructed.

The study focuses on archaeological and landscape impacts of the northern and southern route alternatives. The archaeological impacts are found to be low both before and after mitigation for both the northern and southern alternative routes. Mitigation for archaeological impact is defined as merely reporting anything found during excavations.

The landscape impacts are said to be medium before mitigation and low after mitigation. Mitigation recommended is avoidance of encroachment on Hoy’s Koppie, maintenance of a vegetated road reserve and use of natural stone as retaining walls in cuttings. However, the impact ratings are flawed (see below). If the NHRA gradings are applied correctly they should be high negative both before and after mitigation and would lead to the unavoidable conclusion that building a road through FNR and the buffer/transition area between the urban area and FNR is unacceptable.

The report gives an inadequate description of the affected environment. It omits important aspects that are worthy of comment and serious consideration, affecting as they do a proclaimed protected area and cultural, spiritual, social, recreational, and sense-of-place issues that are vitally important to the affected community. No mention is made of the importance of the area as a buffer and seamless transitional area between the urban area and the pristine protected area of Fernkloof Nature Reserve (FNR). The transitional area provides a peaceful rural atmosphere within which schools, churches, sports fields, the Hermanus Country Market and burial grounds are used and enjoyed by the community. Whether the preferred northern or the southern alternatives are chosen makes no difference; either alternative will forever destroy a section of a protected area, the seamless transition between FNR and the town and the relaxed, pastoral atmosphere of the area between FNR and the town that makes it unique, attractive to and highly valued by residents and visitors.

The report states “The area that is traversed by the proposed activities represents a late 20th century phase of development of the town which is mature and well greened. It has a scenic context, being adjacent to the Nature Reserve and the Oliphantshoek mountains but, does not contain any protected structures in terms of the NHRA of 1999 (as amended). It does, however, merit a landscape quality grading in terms of the NHRA (suggested grading IIIB).” Although this statement contains serious errors, it is probably the only statement within the entire heritage study of any worth.

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The errors are that the proposed bypass is not “adjacent” to FNR; it will pass through it. FNR is a proclaimed protected area of rare and world-renowned biodiversity and endemism that justifies a NHRA grading of IIIA, just as Hoy’s Koppie is rated as grade IIIA by the report for archaeological reasons.

The document “Grading: Purpose and Management Implications” (approved by the HWC Council on 16 March 2016) explains the applicable HRA gradings as follows:

Grading Description of Resource Examples of Possible Management Heritage Strategies Significance

IIIA Such a resource must be an excellent This grading is applied to buildings High example of its kind or must be and sites that have sufficient Significance sufficiently rare. intrinsic significance to be regarded as local heritage resources; and are These are heritage resources which significant enough to warrant that are significant in the context of an any alteration, both internal and area. external, is regulated. Such buildings and sites may be representative, being excellent examples of their kind, or may be rare. In either case, they should receive maximum protection at local level.

IIIB Such a resource might have similar Like Grade IIIA buildings and sites, Medium significances to those of a Grade III A such buildings and sites may be Significance resource, but to a lesser degree. representative, being excellent examples of their kind, or may be These are heritage resources which rare, but less so than Grade IIIA are significant in the context of a examples. They would receive less townscape, neighbourhood, stringent protection than Grade settlement or community. IIIA buildings and sites at local level.

From the above, FNR clearly satisfies the site requirements of the NHRA grade IIIA rather than IIIB and the pastoral buffer area between the urban area and the FNR, containing places of worship, burial, education, sports and recreation and social interaction, satisfies the NHRA site grading of IIIB.

However, the Heritage Specialist Study concludes that:

“The proposed use of either the northern or southern alternative is considered acceptable; however the northern alignment is marginally favoured. In terms of setting and cultural landscape, Hoy’s Koppie is the primary heritage site in the area, for which a provisional Grade lllA is assigned. The

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proposed activity will have a marginal negative impact on this landmark; however, this can be mitigated by subtracting as little of the land as possible at the base of the Koppie for road construction.”

This study’s conclusion is thus fatally flawed and should be replaced with the following:

The western section and preferred northern route for the proposed bypass road passes through sections of the NEM:PAA Protected Area Fernkloof Nature Reserve (FNR), which is of international importance as a biodiversity hotspot and centre of endemism. As such, Grade IIIA is the appropriate NHRA grade for FNR, which is considered a significant Heritage Resource and an excellent example of its kind. Traversing a Grade IIIA site with a provincial road is unacceptable from a heritage point of view.

The area between the eastern end of Mountain Drive and Fairways Avenue is a peaceful, pastoral buffer and transitional area between the urban area and FNR, which is of great importance to the community as a site in which cultural needs are met. These include spiritual, burial, educational, recreational, sport and social needs. The area qualifies as a NHRA grade IIIB heritage resource site. It is of such a high value and importance to the community that it is unacceptable for a provincial road to pass through it. The southern alternative is therefore unacceptable from a heritage point of view.

In conclusion therefore, neither the northern nor the southern alternatives proposed for the Hermanus CBD bypass road can be deemed acceptable from a heritage perspective.

3.7 THE BYPASS IS NOT DESIRABLE ON A RANGE OF IMPACTS Apart from the destruction of part of a protected area and the lack of a traffic need, the bypass proposal is clearly highly undesirable on the grounds of negative impacts on property values and visual and sense of place impacts, as well as from a heritage perspective. It will disrupt and destroy an important part of the social fabric of the town that is cherished by residents and visitors.

4 ALTERNATIVES DEA&DP states the following in 4.5 of its rejection letter of 19 March 2018 “The reasonable and feasible alternative with the least impacts which can produce the desired outcome must be deemed as the preferred alternative” but does not consider that “all reasonable and feasible alternatives have been considered…to warrant intrusion into a formally protected area and…required conservation of wetlands…the two alternatives presented…will result in significant negative impacts on the receiving environment from a biodiversity as well as a socio-economic perspective.” DEA&DP notes that various options are suggested by the I&APs, such as “the upgrade of existing roads (but) no indication (has been given) of this option being explored.”

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4.1 SUMMARY OF HISTORY OF JOINT VENTURE INVOLVEMENT IN SELECTED ROUTE As noted in the section on the Overstrand Municipality, the project originated in 2008 when the Director of Infrastructure and Planning in the Overstrand administration motivated the DT&PW to consider the construction of a bypass road along the northern edge of Hermanus. This road would alter the original intention of proclaiming the Relief Road as a replacement of the section of the R43 going through the Hermanus CBD. Correspondence gives no indication that the fact that the road would traverse the proclaimed and protected Fernkloof Nature Reserve (FNR) was discussed.

DT&PW agreed with this proposition as well as to constructing the Relief Road to a lesser standard and appointed the Joint Venture of EFG Engineers (Pty) Ltd (EFG) and iCE Group (Pty) Ltd (iCE) to develop a proposal for a bypass and obtain environmental authorisation. Traffic counts showed that there was no supportable need for a full bypass, but the Joint Venture then proposed a shorter route along the first portion of the original route (still through FNR) from the Gateway intersection to the Fairways Avenue intersection with the R43. This would still be a major road building exercise.

DT&PW applied to DEA&DP for an Environmental Impact Assessment (EIA) process for the construction of this road. The Joint Venture appointed SRK Consulting to undertake this EIA. This appointment is significant, as despite claiming independence, SRK’s disclaimer also states – as its approach all too clearly indicates - that “The opinions expressed in this report have been based on the information supplied to SRK by the Joint Venture.”

4.2 VESTED INTERESTS IN SELECTED ROUTE AND EIA PROCESS WCC contends that EFG has a material interest in the selection of the preferred route alternative (and thus in the outcome of the EIA) as it would be a primary contender for the contract to build the road. Not only will the preferred route be a major road building exercise, it will also serve as a convenient first step towards the originally-envisaged road, and – if environmental authorisation is obtained – set a precedent for encroaching still further on FNR in pursuit of this (or other proposals) in the future.

4.3 BIAS AGAINST ALTERNATIVES TO SELECTED ROUTE This vested interest in the outcome of the EIA process has clearly led to bias against all alternatives that do not enable the selection of the construction of the preferred route, i.e. the northern route favoured by EFG and the Director of Infrastructure and Planning, who are the proponents of the project. Thus the response to all alternatives suggested by I&APs has been superficial and unsubstantiated. Reasons are simply listed – with no substantiation - as to why the alternative has been rejected rather than ways explored in which an alternative or combination of alternatives could be used to achieve the putative reasons put forward as the need for the bypass (these reasons being to relieve future congestion in the CBD and to enable the CBD Revitalisation Plan).

4.4 UNSUBSTANTIATED DISMISSAL OF ALTERNATIVES DEA&DP’s observation in its rejection letter noted above that there is no indication that the option to upgrade existing roads has been explored is thus treated not by exploring the option fully, but by EFG reiterating or adding further reasons to previous dismissals of all alternatives suggested by

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I&APs. It must be realised that many of these alternatives have been put forward by persons who are experts in the field. To dismiss all on extremely superficial reasons with no technically sound substantiation is clearly indicative of a pre-selection of a specific route, with no intention of an objective investigation of suggested alternatives that may well deliver the stated outcomes.

Thus the EIA process has single-mindedly given its attention to only the no-go option (dismissed) and the northern and southern (dismissed) variations of the preferred alignment. No alternative alignment has been considered for the section of the preferred route from the Gateway intersection to the cemetery, which also goes through FNR.

4.5 BIAS AGAINST THE NO GO ALTERNATIVE Apart from the consideration of alternatives requiring intervention of some sort, there is also the No Go (or retain the status quo) alternative. Again, bias against this alternative is clear. The AFEIAR gives two scenarios for the No Go alternative, both biased towards a worst mobility outcome and neither standing up to sensible scrutiny.

Scenario 1 assumes that the capacity along the section of the R43 through the CBS “is reduced by e.g. street parking, pedestrian crossings, signals, etc.” and predicts that the volume : capacity ratio will deteriorate from 90-100% currently to 100-120% by 2035. No suggestions are made as to the potential impact of improved planning of parking, pedestrian crossings and signalling; simple process flow adjustments in a dynamic environment can make significant differences.

Scenario 2 assumes that implementing the CBD Revitalisation Plan “will further restrict capacity along the CBD Relief road as measures to improve accessibility pedestrian safety along the Relief road are implemented”, and gives a capacity ratio outcome by 2035 that exceeds 100%. If this were so, it could be very easily avoided by adjusting these measures accordingly.

More seriously, the AFEIAR makes the incorrect statement (page 94) that “The full implementation of the CBD Revitalisation Project along the Relief Road is unlikely to proceed without the CBD bypass, as the maximum capacity along the Relief road will be needed.” The CBD Revitalisation Plan does not require the CBD bypass, nor cause a restriction of the capacity of the Relief Road. Nothing prevents the full implementation of the CBD Revitalisation Plan other than the failure of the Overstrand Municipality to allocate and budget funds for it.

4.6 EAP DEMONSTRATES LACK OF OBJECTIVITY TOWARDS ALTERNATIVES Section 3.4 in the AFEIAR on Project Alternatives states that “Alternatives proposed by stakeholders were considered by the proponent for feasibility…The proponent then advised SRK of feasible alternatives, which were then assessed in the EIA”. The fact that in every part of the EIA process many I&APs consistently raised the question of bias in the dismissal of alternatives and the refusal to explore them fully should have raised red flags for the EAP. That it clearly did not – or the EAP ignored them - indicates a lack of objectivity on the part of the EAP.

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4.7 MITIGATION HIERARCHY IGNORED: EAP DEMONSTRATES LACK OF INDEPENDENCE The DEA&DP rejection letter draws attention in 4.2 to the environmental impact mitigation hierarchy as underpinning the EIA process; this requires that mitigation options are considered sequentially, starting with avoiding the impacts (see also the Section on the proposed Biodiversity Offset). Applying this fundamental principle should have triggered an exhaustive consideration of the full implications of all the alternatives that did not involve any encroachment on FNR. This was not done, despite the fact that there are a number of alternatives available that would not impact FNR.

This fundamental principle of the EIA process was not insisted on by the EAP. Instead, the EAP accepted at face value the “consideration” and selection by the proponents of the alternatives deemed “feasible” with no further interrogation; this despite the two favoured alternatives both involving destruction of part of a protected area and the lack of proper analysis of alternatives having been raised at every section of the EIA process by a number of I&APs. This calls into question the independence of the EAP.

4.8 PROVINCIAL INVOLVEMENT IS INAPPROPRIATE This is essentially a traffic project and presented as such; however, the motivation for an alternative route for the R43 through the CBD does not show that this is either needed or desirable in traffic terms. The questionable gain of some two minutes using the bypass against using existing roads projected to 2035 certainly is not sufficient justification. The stated added justification of enabling the CBD Revitalisation Plan is devious, as it is not dependent on Main Road/R43 and states that the Relief Road will be able to cope with traffic implications of the Plan.

It should also be noted that the objectives of the project are municipal traffic issues. Not only will the bypass not make any discernible difference in the functioning of the R43 as a provincial connector, it is inappropriate for DT&PW to involve itself in solving municipal traffic issues under the extremely thin guise of a provincial benefit that does not stand up to scrutiny.

4.9 FUTURE GROWTH WILL HAVE DIFFERENT TRAFFIC NEEDS AND REQUIRE DIFFERENT SOLUTIONS A possible future traffic need for a bypass is stated as driving a requirement to reserve the route now, even if it is only built in the future. This future traffic need is dependent on continuing population growth and the project states that Hermanus has one of the fastest population growths in the province, implying that this will naturally lead to increased vehicle traffic on the eastern side of the CBD. This again is a selective and biased reading of the facts. It ignores the fact that this population growth is focused on the western side of town and is largely in a demographic that owns few vehicles and is almost totally dependent on walking and public transport.

Future traffic needs in Hermanus will not be served effectively by building roads but by increasing the efficiency of existing roads combined with a workable public transport system. The latter alternative is however dismissed out of hand as being impossible. Nothing could be further from the

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truth or a clearer indication of bias in favour of building a new road, the few beneficiaries of which will be the contractors at the expense of mobility for the greater part of the population.

4.10 ALTERNATIVES HAVE NOT BEEN EXPLORED • Although the EIA applicant is the DT&PW, the members of the Joint Venture have appointed SRK as the EAP, have provided all project information to the EAP as well as responses to the input of I&APs. The EAP has demonstrated neither independence nor objectivity in its handling of this situation. • The project objectives are largely municipal traffic needs; it is inappropriate for the province to be involved in solving municipal traffic needs. The bypass will not improve the functioning of the R43 as a provincial connector. • The Joint Venture members have a vested interest in the outcome of the EIA process being environmental authorisation to build a new road along the preferred alignment, as they may well receive contracts for the construction, and the preferred alignment holds potential for future exploitation of FNR. • Substantive input on alternatives by I&APs has been ignored or dismissed. • The EIA mitigation hierarchy has not been applied. Alternatives that would avoid building the road through FNR have not been investigated and have been dismissed with specious reasons that do not stand scrutiny. • The investigation of alternatives has thus been limited to the no-go alternative and the northern and southern variations between the cemetery and Fairways Avenue of the same alignment, with the clear aim of the selection of the northern route. • The No Go option has been dismissed on the basis of unfavourable volume : capacity ratios which are based on assumed causes that can be avoided or lessened through applying process flow interventions. • The project ignores the nature and areas of future population growth in Hermanus and will not benefit the traffic needs of this population at all. • The consistent refusal to give proper attention to alternatives raises serious questions regarding the intentions of the proponents. • There is no significant traffic benefit to be gained by the bypass that would justify building a road on the preferred alignment through a protected area at massive expense and with major environmental and social destruction.

5 OVERSTRAND MUNICIPALITY INVOLVEMENT In 4.3 of its rejection letter dated 19 March 2018 DEA&DP states that “During the EIA…the Infrastructure and Planning Branch of the Overstrand Municipality provided input to the EAP (on) the need and desirability of the proposed development, which was incorporated into the EIA report (and) submitted formal comment. (DEA&DP advises) that, despite the interconnected nature of this proposal and the relationship between the applicant (DT&DP) and the municipality, the Overstrand Municipality is a commenting authority, and…not a member of the project team. A clear distinction

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must be made between submitted formal comments…and supplying motivation to the applicant for the proposed development. Comment from the local municipality…is a requirement of the EIA process…clarification (must be) obtained on the Overstrand Municipality’s comment and the official stance of the local municipality with respect to the proposal.”

5.1 EARLY HISTORY OF OVERSTRAND ADMINISTRATION INVOLVEMENT When the history of the bypass project is investigated, it is clear that this is a vanity project of the Overstrand administration, with no basis in need or desirability but with considerable benefits to be had by members of the road construction industry. It is also clear that a longer-term vision is still held by administration officials of a much longer bypass that would extend the proposed route significantly, despite there being no need for this anytime in the longer term.

Past attempts to introduce a bypass to Hermanus have all been rejected as unnecessary and/or unaffordable. Despite this, various attempts have been made throughout the stages of the EIA process to reintroduce this idea. For example, the 2016 Scoping Report states on page 27 that “a bypass around Hermanus has been under consideration for many years” and a sketch of a pre-1970 bypass proposal that was later abandoned is included with the erroneous statement that “This bypass nevertheless remained a viable long-term option”. The early 1971 Fernkloof Nature Reserve (FNR) proclamation made reference to a proposed new national road; this was in fact a Government Strategic Road envisaged as running as far as Agulhas to give fast access to the missile testing site at de Hoop during the days of the “Rooi Gevaar” (tr. “Red Menace” i.e. a Russian takeover of the apartheid state). The 1971 proclamation thus reduced the original FNR boundaries from those intended but not defined in the 1957 proclamation; this was however rectified in the 2000 proclamation because by this time the idea of the “strategic” road had been abandoned under the new political dispensation.

Page 53 of the Scoping Report refers to a desire to “Secure a future road alignment at an early stage…a bypass alignment could have and should have been proclaimed at least 20 years ago…” However, the Scoping Report stated that the concept now “requires a realignment of the original bypass proposal to avoid this now built up area” (i.e. the golf estate precinct south of the Fernkloof Nature Reserve).

The creation of a new urban edge is mentioned more than once in the Scoping Report as a justification for the proposed bypass; e.g. on page 15 it states that it “will serve as an urban edge to the north of Hermanus” and on page 16 acknowledges that “portions of the proposed bypass fall outside of the urban edge and would function as the urban edge for this section of the town.” Figure 2-3 on page 17 taken from the Draft IDF shows a new urban edge within the Critical Biodiversity Area (i.e. in Fernkloof Nature Reserve) and following the proposed northern alignment.

This illustrates that the Overstrand administration is clearly aware that there is already an existing urban edge for the northern part of Hermanus – the boundary of the Fernkloof Nature Reserve (FNR) – and also that it feels no need to respect it. It also illustrates a clear intention of the Overstrand administration to shape and influence the EIA process in the direction of a selected route

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that would go along (at least part of) the northern border of the town and to use part of FNR for this route.

The fact that there is no proven traffic need and that the vast majority of residents find it undesirable for a wide range of reasons, and that it would destroy part of a protected area, is sidestepped by insisting that the route must be approved and reserved for the future even if construction is not approved under the current proposal.

5.2 2008 OVERSTRAND ADMINISTRATION INTERVENTION On 8 July 2008 the Director: Infrastructure and Planning of the Overstrand administration (Stephen Muller) met officials of the provincial Department of Transport and Public Works and persuaded them to support the administration’s wish for a road that would run along the northern mountainside, from the Gateway traffic lights on the western side, exiting the town past Voëlklip on the eastern side. The administration had produced a report that supported this idea.

Such a road would be well beyond the budget of a small town municipality and so it was proposed to the Department that they adopt the idea, on the grounds that it would replace the portion of the R43 going through the CBD, rather than the Relief Road that was about to be built and that had originally been intended – and designed - for this purpose. The Department acceded to this request, as is clear from the two letters shown as Appendix A and Appendix B. There is no mention by either party that the route would traverse FNR; clearly, this had not been mentioned by Mr Muller.

5.3 2011 INVESTIGATION AND 2015 REPORT SUPPORTING TRUNCATED BYPASS In 2011 province appointed consultants to investigate the road alignment for a bypass (EFG Engineers and the iCE Group), and after pressure from the Hermanus Ratepayers’ Association (HRA) broadened the brief to a transportation study; the report came out in Dec 2015. This report concluded that (consistent with growth patterns) traffic congestion could be expected west of the CBD, particularly around the Sandbaai intersection. With regard to traffic to the CBD and eastwards, traffic counts showed that from Gateway 72% of trips would continue straight to go to the CBD; of the remaining 28% going along Mountain Drive, 10% would be lost by Fairways Ave, a further 11% by Fir Avenue and only 7% exited Hermanus. Most of the first trips (Gateway to Fairways Ave) are schools traffic. Page 57 of the Scoping Report refers to the bypass in terms of a western and eastern section, noting that school traffic will be the major contributor to the western section and that traffic volumes between Hermanus and Stanford would have to increase substantially to justify construction of the eastern section.

These conclusions were interpreted as showing that although a full bypass could not be justified, a partial bypass, i.e. “a shorter Hermanus CBD bypass between Mountain Drive and the R43 / Fairways Avenue intersection” could be. It is a considerable leap from these traffic counts and modelling to the conclusion that “the proposed Fairways Relief Road is essential for accommodating the long- term development and traffic growth in and around the Hermanus CBD and could be considered a viable alternative to the original Hermanus Bypass proposal.”

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An EIA process for the project under the DT&PW was started, despite these being municipal and not provincial traffic issues, presumably because even in its curtailed format the bypass construction would still be beyond the capacities of the Overstrand budget. The replacement of the R43 section through the CBD is thus still given as a thinly disguised “reason” for the project, although it does not stand up to scrutiny.

Throughout the EIA process, mere lip service has been paid to the investigation of alternatives to the clearly favoured “northern” route, which would provide a convenient first step to the full bypass; that this is still intended is implied by a map in the Planning department (also housed under the Infrastructure and Planning Directorate) commissioned in 2016 that shows the full route, designated “planned bypass”. This is attached. The lip service given to alternatives applies particularly to the upgrading of the Relief Road, an obviously suitable alternative that would not cause any environmental damage, but which had been placed out of contention in 2008 (see 5.2 above).

Page 76 of the Scoping Report notes that “Based on initial discussions with the Overstrand officials, representatives of the Hermanus High School and the Hermanus Sports complex, preference was given to the northern alignment with the exception of the Environmental officials who supported the southern alignment.” This is hardly surprising, given that the southern alignment would cut through the High School and Sports Complex but would encroach less than the northern one on FNR.

In this regard it should be noted that the organisational structure of the Overstrand Municipality houses its very under-resourced Environmental Management Services under the Directorate of Infrastructure and Planning. The implications of this questionable governance situation for the protection of the natural environment in the Overstrand are evident throughout this project.

5.4 OPINION OF PAST MEC TRANSPORT AND PUBLIC WORKS In 2008 the MEC for Transport and Public Works for the Western Cape was Marius Fransman. He was replaced by Robin Carlisle who served from 2009 until his retirement in 2014. Mr Carlisle was opposed to the bypass and gave an undertaking to the community of Hermanus that it would not be built during his tenure. He was replaced by Donald Grant who served until 2019 when he was replaced by the incumbent Bonginkosi Madikizela; during Mr Grant’s tenure the bypass proposal was resuscitated. Mr Carlisle expressed the following opinion on the bypass in an email to James Selfe in February 2018:

“With regard to the by-pass, the residents in their great numbers are right to be outraged.

On my watch, I made it clear to my roads people that there would be no bypass around Hermanus for four reasons:-

• Firstly, it is a bypass to nowhere. In traffic volume terms there is precious little East and North of the town, and certainly nothing to justify a bypass. • Secondly the environmental damage will be considerable, and cannot be reversed once the bypass is built;

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• Thirdly, the Hermanus retailers want to pedestrianise the CBD, and they and some of our councillors there want to do it for free. They do this by getting Province to get rid of the through traffic via a bypass at a cost of some hundreds of millions, and then they pedestrianise at a cost of one or two million of municipal funds. Province`s priority must be maintenance of its existing roads, not in effect paying for the pedestrianisation of the Hermanus CBD. • Finally, Hermanus and its approaches have already had huge investment by Provincial Roads in the last 10 years - far exceeding the justification in terms of traffic volumes, other than at weekends. Hard to justify to our constituents in other places - notably users of the R44.

I have raised these matters with the MEC Transport, who dismisses them.”

5.5 OVERSTRAND ADMINISTRATION SUPPORT FOR THE “NORTHERN” ROUTE It is clear that the Overstrand administration has influenced the EIA process towards the “northern route, and it is thus hardly surprising therefore that the “comments” given by the involved official/s on the various reports submitted during the stages of the EIA process are in support of this route.

5.6 MUNICIPAL MANAGER LETTER 9 SEPTEMBER 2019 The letter from DEA&DP rejecting the final EIA asks for clarification on the official stance of the local municipality with respect to the proposal.

In response, a letter was received signed by the Municipal Manager, with enquiries to be directed to S. Muller (the Director of Infrastructure and Planning), dated 9 September 2019, containing the following assurances and “giving the required municipal support…for the realignment of the…R43 along the mountainside” and stating that “the Overstrand Municipality supports:

• the realignment of the R43…along the mountainside • the implementation of a Biodiversity offset…to mitigate the impact of the Hermanus By-pass on the eastern edge of Fernkloof Nature Reserve • the Hermanus Country Market can be relocated… • the cricket oval can be shifted...”

Apart from the fact that the orientation of the damage to FNR is on the western side, rather than the eastern edge as stated, the following should be noted:

5.7 OVERSTRAND MUNICIPALITY POSITION REGARDING THE BYPASS Contrary to the statement by the Municipal Manager, this project does not have the support of the Overstrand Municipality. The OM consists of both the administration, headed by the Municipal Manager and the Council, headed by the Executive Mayor. Although the administration has been the chief protagonist of the bypass since its inception - through in particular the Directorate of Infrastructure and Planning - and has been involved to an unseemly degree in the project planning, it

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has never been put to Council for Council’s approval. It can be assumed that if this had been done, the approval sought by DEA&DP would not have been given.

In support of this assumption the following two communications from the Executive Mayor are pertinent:

1. An emailed reply to a query from the Chair of the Hermanus Ratepayers’ Association (HRA) dated 23 June 2020 includes:

“What I have repeatedly said…is the following:

The Overstrand Council is of the opinion that the entrance into and exit from Hermanus, from both the Vermont and Stanford sides must be upgraded to ease the flow of traffic into and out of Hermanus before a Bypass around Hermanus is considered. The route that the Bypass should follow can only be debated at that stage. This remains the view of Council…As stated above the decision of whether or not Hermanus requires a Bypass can only be taken some time in the future.”

2. A media release from the Executive Mayor dated 3 July includes:

“I wish to once again stress that the view of the Overstrand Council remains unchanged.

Namely, that the traffic congestion on the R43 leading in and out of Hermanus, from both the Hawston side as well as the Stanford side, must first be addressed before consideration is given to a possible road being built to allow through traffic to by-pass the town.

We are aware that the road between Stanford and Hermanus is currently being rebuilt.

However, there is still a great deal of work required on the R43 entering Hermanus from Hawston to relieve the traffic congestion on that side of town.

Only once this work is also completed should consideration be given to the possible need for a by-pass road, and the most suitable route that such a road should follow.”

The Executive Mayor thus stresses that the Overstrand Council has not discussed the bypass project and that Council will not consider any bypass until such time as the R43 entrances to Hermanus both from the east (Stanford) and the west (Hawston) have been satisfactorily addressed. Only then will Council decide whether a bypass is needed, and if so, the route that it should take.

This is a clear contradiction. Given that the Municipal Council must approve any project proposal of the administration and that the onus is on the Municipal Manager to ensure implementation of the policy directives of Council through the efficient and ethical functioning of the administration, it is clear that the letter of support from the Municipal Manager has overstepped the mark.

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5.8 THE PROPOSED BYPASS DOES NOT HAVE THE SUPPORT OF THE OVERSTRAND MUNICIPALITY The “letter of municipal support” from the Municipal Manager should be discarded. Neither the project as a whole nor the selected northern route has the required support from the Overstrand Municipality.

5.9 BIAS BY THE EAP 5.10 BIAS TOWARDS THE NORTHERN ROUTE THROUGH FERNKLOOF NATURE RESERVE In 4.14 of its letter of rejection dated 19 March 2018 DEA&DP “advises the EAP that all comments received during the public participation process must be addressed (and) cautions against a generalised view of comments and being dismissive of concerns. Numerous I&APs have objected to a perceived bias exhibited by the EAP…particularly in terms of (responses to) concerns and comments. The EAP is reminded that the EIA Regulations of 2010 (17(c)) and 2014 13(1)(c) and (d) require the maintaining of objectivity, even if (the resultant) views and findings are unfavourable to the application.”

The Overstrand administration has been determined to build a bypass road through FNR since 2008 (see the sections on Traffic and the Overstrand Administration above for the early history of this project) and has been a main driver of the project in that direction since its inception. The current proposal represents a curtailed version of the original route. This is no doubt the underlying reason for the clear bias shown towards the northern route in the face of the many cogent arguments opposing it. Bias by the EAP has been evident throughout the process and many comments on the various stages of the process have referred to this bias. The subjective interpretation of comments opposing the building of any road through FNR has consistently been evident.

Thus – for example - the EAP makes the following comment (194 on the Comments and Responses Table) in the AFEIAR regarding the caution expressed by many I&APs that support from an Overstrand administrative official/s does not equate to Municipality support:

“The Overstrand Municipality adopted the re-alignment of the R43 also known as the Hermanus By- pass Proposal in terms of this project, (i.e. obtained the Elected Council’s approval, which was then approved by the MEC of Local Government), for inclusion in the Overstrand Municipality’s IDP in compliance with the Municipal Systems Act, Act 32 of 2000 as amended.”

This response has been formulated either by the EAP or – more probably – by an Overstrand official. Either way, it is factually incorrect, as the IDP merely mentions that the bypass is under consideration, and has not been checked for accuracy (see 5.7 above).

This proposal, right from the initial “Scoping” phase, has generated an enormous amount of concern and adverse reaction from the public, many of whom are experts in relevant fields. These concerns have been voiced in often very substantive, well-reasoned and comprehensive responses to the various documents to date. The cursory and dismissive nature of the response to these comments is cause for concern and even suspicion.

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Comments have been grouped together and extensive charts have been drawn up from this. This gives the impression that the comments have been carefully considered, but the results are often highly subjective.

Instances of a selective interpretation of findings pepper the EIA Report and have been evident throughout the various stages of the process. These selective interpretations function in support of a consistent narrative - that the preferred route, i.e. the northern route through FNR, has been decided on from the inception of the project and that the EIA process is no more than an administrative hurdle to be overcome in pursuit of this goal. Two examples of this bias are given below:

5.11 BIAS IN ADDRESSING COMMENTS FROM PUBLIC The proposal to build the Hermanus CBD Bypass through a section of the Fernkloof Nature Reserve (FNR) has attracted a lot of comment, overwhelmingly adverse. Unfortunately, these have fallen on deaf ears, or ears that seem only to be tuned to favouring the selected route, or the applicant, or possibly both.

Approach to comments contradicts EIA Regulations The response to the input received from the public has been scant, superficial and cursory. It is possible that it is merely inept, although the consistently selective interpretation of comments does not support this. The clear impression is given that the decision in favour of the northern route is a fait accompli and the public participation process is merely a legal requirement that must be fulfilled. This is in clear contradiction to EIA Regulation 17 (c) of 2010 that states that the EAP must “perform the work relating to the application in an objective manner, even if this results in views and findings that are not favourable to the applicant” and EIA Regulation 13(1) (d) of 2014 that states that the EAP must “perform the work relating to the application in an objective manner, even if this results in views and findings that are not favourable to the application”.

Dismissive response to substantive comments This proposal, right from the initial Scoping phase, has generated an enormous amount of concern and adverse reaction from the public, many of whom are experts in relevant fields. These concerns have been voiced in often very substantive, well-reasoned and comprehensive responses to the various documents to date. The consistently cursory and dismissive nature of the response to these comments is cause for concern and suspicion.

The Executive Summary of the latest version – the amended final EIA - notes that 155 comments and two petitions were received. It fails to mention that the first petition, dealing specifically with

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objections to the bypass going through Fernkloof, had over 8000 signatures and the second, that allowed signatories to voice their objections to any development in FNR, had over 11 000.

Figures given in the Executive Summary refer only to the comments received, ignoring the petitions. A grand total of 3% of comments – that is four to five respondents - supported the bypass proposal. Of the remaining 97% of the comments, the following percentages are given as objecting on the basis of: lack of need and/or support: 75% adverse impact on FNR: 65% adverse impacts on schools: 38% adverse impact on visual quality sense of place: 34% noise: 34% adverse impact on the golf course wetland: 31%

When the over 19 000 opposing voices from the petitions - or even just the over 8000 from the first, bypass-specific petition - are considered, the 3% in favour of the bypass becomes statistically negligible and the percentage citing opposition to the proposed route due to the adverse impact on FNR is overwhelming (>99%). This is a large discrepancy (over 50%), stated in favour of the lesser percentage objection to encroaching on FNR’s boundaries and a clear demonstration of bias.

The Executive Summary does note that the comments state that the claimed benefits of the bypass do not justify its adverse impacts and that strong objections have been voiced to both of the two alternatives proposed that go through Fernkloof (i.e. the “northern” and “southern” routes); neither are acceptable to the respondents.

Denial of the public voice Despite this overwhelming objection to the proposal, the consultants conclude that the impacts are in fact acceptable and that the northern route could be chosen and is environmentally acceptable.

Unfortunately, although the public participation process is designed to give the public a voice in the decision-making process, it seems the EAP feels there is no onus on them to hear that voice and take it into account. The clear voice of the people can be denied.

5.12 BIAS IN ADDRESSING LOSS OF PROTECTED AREA The letter of rejection of the EIA from DEA&DP dated 19 March 2018 states in 4.1: “The assessment rating (of) the condition of the affected portion of vegetation is not the crucial consideration …irrespective of the condition of the indigenous vegetation within the disturbance footprint, the potential impact related to the loss of a tract of land from a formally protected area, namely the Fernkloof Nature Reserve, is the key aspect...the fundamental principle of the loss of protected

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land…is the issue.” and in 4.11: “The EAP…is not suitably experienced…to undertake a re-evaluation of the impact ratings…independent peer review of the specialist findings (should be undertaken and be) helpful (and the) outcomes, including an updated impact assessment, where applicable, incorporated into the amended final EIA report.”

Protected Areas network South Africans are justly proud of our magnificent natural environment, but our government – past and present – does not seem to feel the same about it. According to the World Bank’s 2018 figures only a paltry eight percent of the country is legally protected, whereas the world average is 15%. South Africa ranks a very low 144 out of 192 countries. This cannot be excused by saying that we are a developing country, when many such put us to shame – for example, Zambia protects 38% of its land. It also has nothing to do with needing land for a growing population; Hong Kong, one of the most populous countries in the world, nevertheless protects 42% of its land. It has everything to do with political and administrative will. This shameful situation in South Africa means that all and any attempts to reduce that too small percentage further must be resisted, such as taking part of FNR for the totally unnecessary and unwanted bypass proposal. Every square metre of our protected areas must be defended against exploitation.

EAP downplays and ignores protected area loss The EAP consistently downplays the loss of a NEM:PAA-protected area. It is not listed in the summary of impacts, nor is this loss mentioned as significant in the discussion of the merits of the proposal. Instead, the EAP depicts the botanical impact and the loss of the protected area as being of little or no consequence. In pursuit of giving the impression that the loss is neither important nor significant, the botanical impact is downgraded to a medium to very low negative impact rating and the area lost is emphasised as representing only .3% of the total area of FNR.

Despite the direction given by DEA&DP and the input from the specialist review of the Terrestrial Ecology Impact Assessment (TEIA), the EAP excludes this crucial issue of protected area loss from its summary of impacts.

Specialist review of botanical assessment In his review of Barry Low’s TEIA, Paul Emms deals with the loss of a protected area:

“Low states that the loss of 3.2 ha of Overberg Sandstone Fynbos (OSF) is not seen as significant. This statement is true for the overall status and threats to the ecosystem but consideration of loss of habitat within a Protected Area is not considered. Loss of any intact habitat within a Protected Area is considered significant since it compromises the essence of ‘Protected Area’….Furthermore, the northern alternative is considered to be of higher condition than Low’s mapping.”

While Emms supports Low’s impact rating of the loss of 3.2 hectares of OSF, he notes that the rating should only apply to an area outside of a protected area and that the loss of any area inside a protected area is considered “significant”. He also states in his conclusions that:

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“The draft provincial guideline on biodiversity offsets classifies the residual impact within a NEM:PAA protected area (such as the FNR) as being of very high (negative) significance. If the draft guideline had been formally adopted, the botanical impact of the Hermanus CBD Bypass should have been rated as Very High Negative on the ground that it affects a protected area, even if the impact on vegetation was considered lower.”

Although the Western Cape Guideline on Biodiversity Offsets (2015) has not yet been gazetted, it sets out the best currently available standards for rating the impact of the loss of part of a proclaimed protected area in the area, and its impact ratings should be applied in the EIA Report. The first part of Emms’ conclusion given above is quoted in the Key Issues and Responses table (item 13) in the Executive Summary of EIA Report, which however makes no comment on his statement about the very high negative rating, nor is it carried through to the summary of impacts rating table. In response to the findings of Emms’ specialist review, the only change made by the EAP has been to inch up the impact rating after mitigation for “loss of terrestrial habitat” from low to medium.

Omitting to draw attention to the specialist reviewer’s very high negative rating for the loss of part of FNR is yet another clear demonstration of bias on the part of the EAP in the EIA process towards obtaining environmental authorisation for their clients for a preselected route going through a protected area.

It is also important to note that Emms states in his conclusions that “For the same reason (i.e. the loss of land from a protected area), a biodiversity offset should be considered, preferably the acquisition of a like-for-like portion of land at the correct ratio, to be added to the FNR.” In this regard, please refer to Section 2 in this comment on the Proposed Biodiversity Offset.

5.13 THE EAP HAS DEMONSTRATED CONSISTENT BIAS The inadequate and inaccurate analysis of comments received by the public has been raised as a concern at all stages of the EIA process. The EAP is in contravention of the EIA Regulations in its scant, superficial and cursory approach to public comments received during the public participation process

Clear instances of bias towards a pre-selected route – the northern route through FNR – is evident in the manner in which the EAP processes and reflects the content of comments.

This bias is also evident in the fact that the EAP downplays the seriousness of the loss of a portion of a protected area, going so far as to adjust its impact rating referring to this loss only marginally despite the recommendations of the specialist botanical study requested by DEA&DP.

6 CONCLUSIONS The EAP was instructed by DEA&DP on specific aspects of the Final EIA that were considered lacking or in need of further investigation before submitting an amended report. Whether environmental authorisation is granted will be based on whether the AFEIAR fulfils DEA&DP’s requirements.

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The following conclusions can be drawn from an assessment of whether the AFEIAR deals adequately with the requirements of DEA&DP’s letter rejecting the final EIA (refer to the various sections for supportive detail on these conclusions):

6.1 BIODIVERSITY OFFSET PLAN • The Biodiversity Offset Plan has not been authored by a biodiversity specialist, but by an Overstrand Municipality official together with members of the SRK project team; not only is this irregular and inappropriate but against the express caution of DEA&DP. • Policy guidelines and directives regarding biodiversity offsets have not been followed, and the proposed biodiversity offset is in conflict with many of the guiding principles of such offsets. • The proposed offset does not meet EIA requirements. It is a totally unsuitable response to the proposed loss of part of a protected area. • Adequate information regarding implementation planning and budgeting is totally absent. Information that is provided is incomplete, inadequate and misleading. • The proposed Biodiversity Offset Plan should be rejected out of hand.

6.2 NO PROVEN NEED OR DESIRABILITY FOR THE BYPASS The AFEIAR does not provide any proof of need or desirability for the proposed bypass.

Traffic need: • As a traffic and transport project, it is based on two claimed benefits, both of which are municipal and not provincial traffic issues. Not only is it inappropriate for the DT&PW to involve itself in municipal traffic issues, the bypass will not improve the functioning of the R43 as a provincial connector. • The questionable improvement of future travel time using the bypass of around two minutes cannot justify the cost and disruption to the town’s socio-economic fabric. • The claimed traffic need is a fabrication; not only are the traffic benefits very minor but the road is not essential to the second claimed benefit of enabling the implementation of the CBD Revitalisation Plan. • The projected traffic growth is based on a false understanding of the nature and area of its population growth. The bypass will do nothing to serve the needs of this population. Hermanus is also under severe economic strain that places all growth projections into question long into the future and nullifies the stated need for reserving the preferred bypass route for the future.

Desirability: • The bypass proposal is a wholly inappropriate response to future traffic “needs” that will also have a profoundly negative effect on the socio-economic fabric of the area it will cover, as well as on FNR. • These factors have given rise to intense concern and opposition to the proposal.

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• Socio-economic impacts on the current and future prospects of the town in the context of a contracting economy and changing demographics will be profoundly negative. • Permanent and profound disruption will be caused to an area that encompasses a NEM:PAA- protected nature reserve (FNR), places of worship, burial grounds, sports fields, schools, a country market, and a seamless transition between FNR and these important elements of social life in the town. • Visual and sense of place impacts will be negatively affected, both in terms of impact intensity and impact significance. The EAP (the author of the study into these aspects) attempts to downplay this significance, which does not accord with the outrage the proposal has caused. • The EAP demonstrates bias towards a pre-selected route (the northern route through FNR) in the assessment of these impacts. • Heritage Western Cape’s approval of the bypass proposal, required by DEA&DP, is fatally flawed. It is superficial, demonstrates an inadequate and faulty understanding of the area to be affected and does not apply the HRA Gradings correctly.

6.3 ALTERNATIVES • Despite the clear instruction of DEA&DP for a substantive exploration of alternatives, the AFEIAR does not address this vital issue adequately. • The early history of the bypass proposal makes it clear that the Joint Venture together with officials from the Overstrand administration have a vested interest in securing the northern route. The EIA process has been manipulated in order to consistently put the northern route forward as the preferred option. This is manifested in a lack of proper attention being given to alternatives. • Should there be a true traffic need for the bypass, there are alternatives that would serve this need adequately without involving encroachment on FNR. Some of these alternatives have been proposed by I&APs with ability and expertise in the field. • Alternatives have been dismissed without substantiation. Simple lists of reasons for not considering them are given, rather than proper analyses with rigorous technically sound substantiation. The reasons do not stand up to scrutiny. • The No Go alternative is dismissed on specious reasons that do not stand up to scrutiny. • The EAP has not applied the mitigation hierarchy and has demonstrated a serious lack of objectivity and independence in the treatment of alternatives.

6.4 OVERSTRAND MUNICIPALITY INVOLVEMENT • DEA&DP has asked for a statement of support for the proposal by the Overstrand Municipality. • In response, the EAP has provided a letter of support from the Overstrand Municipal Manager. However, the Overstrand Executive Mayor has subsequently stated in a press release in the topic that the project has never come before Council and that no decision would be made by Council on whether there is a need for a bypass and if so, what route it

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should take until such time as the western and eastern entrance roads to Hermanus have been satisfactorily provided for. • The bypass proposal has the support of some officials in the Overstrand administration, but not of the Overstrand Municipality.

6.5 BIAS BY THE EAP • Despite the clear caution by DEA&DP, the EAP continues in the AFEIAR to demonstrate clear bias towards the approval of the northern route for the bypass. • This bias is evident in the acceptance on face value of incorrect statements regarding municipal support which, in the context of previous accusations of bias by many I&APs, should have required checking. • A cursory and dismissive approach towards opposing comments, that contradicts EIA Regulations, is evident in the analysis and processing of comments. • A selective interpretation of findings, including findings of specialist peer reviews, is evident. • The critical fact of the loss of part of a protected area is downplayed and ignored.

The EAP concludes in the Executive Summary of the AFEIAR that “on purely ‘environmental’ grounds (i.e. the project’s potential socio-economic and biophysical implications) and considering the findings of peer reviews, the northern alternative as it is currently articulated with the biodiversity offset could be approved.”

This conclusion beggars belief. In complete contrast to this, WCC concludes that the project should not receive environmental authorisation, nor should any possible permission be granted for the protection of a future route for this or any other road that involves any encroachment on the borders of FNR.

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APPENDIX A

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APPENDIX B

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MAY 2016 MAP SHOWING PROPOSED BYPASS ROAD ALIGNMENT

FERNKLOOF ESTATE ivreiren pnoPERTY owNERs AssocIATIoN Theron Street Fernkloof HERMANUS 7200

27 August 2020

SRK Consulting Postnet Suite #206 Private Bag X18 Rondebosch 770t

Attention: KellY Armstrong

By electronic mail: [email protected]

Dear Madam

RE: HERMANUS CBD BYPASS EIA: RELEASE OF AMENDED FINAL EIA REPORT FOR PUBTIC COMMENT DEA&DP REFERENCE: t1l3ltl2l Ezl tsl2t24l L4

Speaking on behalf of many owners in Fernkloof Estate we are strongly opposed to the proposed bypass road, as reflected in your "44828L_Hermanus CBD Bypass_Amended FEIR Executive Summary" document sent by e-mail on 18 June 2020, and would like to bring the following comments/concerns to your attention: r We do not understand why consideration is being given to the building of the R43 (Bypass) through pristine Fynbos covered land, through residential suburbs, through a bustling marke! past two successful schools, 3 churches and through part of our precious wetland. We have been told that a 300 million rand road will provide easy flow for 7% of the traffic that travels through Hermanus in the direction of Stanford. The current road system following the flow of traffic along Main Road and through the traffic circles may be congested for around !% of lhe year, which makes the consideration of building the proposed bypass road seem highly unnecessary in light of the financial plight we are in in South Africa and the many, many more projects requiring urgent attention eg housing, education, medical care etc.. r We certainly do not support the social and ecological destruction the "bypass", really a thoroughfare, as proposed would cause. r lt seems the proposed need for the bypass may not primarily be to ease traffic flow, but to remove the R43 from the town center, which makes no sense for the following reasons: o lt would adversely affect every business and the economy of our town and the new sport facilities which are at present under construction, as well as the sport facilities at the Attie Bishop field and Cricket Club o Big sport days are held at the Hermanus High School and the bypass road will affect parking for cars visiting these sport days, as well as the Saturday market at the Cricket Club. As it stands at the moment parking is already a problem, It would be unwise to build a bypass road where children walk and ride their bicycles to school and visit Sport clubs to play sport. o Scar part of the beautiful proclaimed mountainside; o Destroy already endangered fynbos and wetlands; o Devalue residential properties; 2/...

VOELKLIP ADMINISTR.ATION CC Postnet Suite 124, PlBagX76, Hermanus, 7200 Cell: 0725890007 Fax: 085 512 5559

Emai I : [email protected] Reg No: 2005 / 118163 I 23 FERNKLOOF ESTATE MASTERPROPERTYowNERSASSOCIATION Theron Street Fernkloof HERMANUS 7200

-2-

o Bring noise and air pollution into the suburbs; o Close the market; and o Place a few hundred school children's well-being at risk.

Although we do not have an objection to developing alternate routes, the simplest way to get a flow of the traffic through the CBD appears to be to upgrade the Main Road which works perfectly well for the majority of the year. Upgrading will alleviate the problem caused at the height of the tourist season in December. This too would be the most cost effective route. Although only in its infancy, the new road concept has ah,eady consumed valuable funds which belong to every citizen. Let's be practical and sensible and allow a low key, low cost solution benefit the town without destroying the very fabric of the town. Let us not mess with the natural beauty, many facilities and just be sensitive to the town, its environment and its citizens - most of whom do not want the bypass suggestions that have been proposed now or in the past.

RPERSON: FERNKLOOF ESTATE MPOA

VOELKLIP ADMINISTRATION CC Postnet Suite 124, PlBagXl6, Hermanus, 7200 Cell: 0725890007 Fax: 086 512 6669 Emai I : [email protected]. za Reg No: 2005 I LIBL63 I 23 Kelly Armstrong

From: Liza van Coppenhagen Sent: Friday, 28 August 2020 12:42 To: Kelly Armstrong Subject: Comment of EIA for Hermanus Bypass Road REF: 16/3/1/2/E2/15/2124/14

Follow Up Flag: Follow up Flag Status: Completed

Categories: Hermanus PP

EXTERNAL 14 August 2020

ATT: KELLY ARMSTRONG

SRK CONSULTING

[email protected]

DEA&DP Reference: 16/3/1/2/E2/15/2124/14

Dear Ms Armstrong,

RE: COMMENT ON PROPOSED NEW CBD BYPASS ROAD IN HERMANUS

The Hermanus Country Market has been trading in Hermanus for 14 years. I created the market in 2006 with the purpose of offering the community of Hermanus a place to come together, to allow entrepreneurs to bring their home‐made goods to sell and to add value to Hermanus in terms of a place of astounding natural heritage. There was no doubt in my mind that the perfect place for this market was within the quiet surrounds of the Fernkloof Nature Reserve, and it was this natural beauty, quiet and serene sense of place that this market became known as a special way to spend each Saturday morning. The market outgrew this site and we relocated to the present site alongside the Cricket Field. We have traded here for 10 years, become an important economic hub for Hermanus, enabled 100 traders to generate an income, supported a further 250 families indirectly and have created a landmark tourist destination in the Overberg.

For the past 8 years the market has lived in "limbo", with zero security of tenure, not knowing where or when it should or could move. We have only been able to receive one year leases, and have been constantly harrassed by my landlords, the HSC, to move into a site which is where the northern alignment will be built (the 3 'ovals' alongside BOSKO Church). We have refused to do this for very obvious reasons and yet, through all this, we have had to continue to improve and maintain infrastructure, supply our own electricity connections, water connections, toilet facilities (costing well over R1 500 000 to date.)

In the previous EIA, it was stated that the northern alignment would force the closure of the Hermanus Country Market and an alternative site was indicated on paper by Stephen Muller to mitigate this risk.

This alternative site is unfortunately a part of the Fernkloof Nature Reserve. So the very supporters of the market, many who are members of the Botanical Society, the Fernkloof Advisory Board, Cliff path Management Group, and Vogelgat Nature Reserve, who enjoy the outdoors, are passionate about our natural surroundings remaining

1 protected for perpetuity, would not wish to see any portion of the FNR used for anything, even our beloved market, and we would lose all support from these people should the market have to relocate there.

In my personal capacity, I am in total agreement with these loyal supporters and am totally against any part of Fernkloof Nature Reserve, or any Nature Reserve for that matter being utilised for any development, especially a road which has no proven need and is totally undesirable for 99% of the residents in Hermanus.

Is it not ironic that the HCM is supported by the very people who are doing everything in their power to stop the bypass, and is then given a piece of land WITHIN that very Nature Reserve to relocate to?

The market has been a place for community involvement, and the "Hands off Fernkloof" campaign has had an important place on the market each week in order to keep us all informed and garner support against the bypass being built at all.

In short, the essence of what the market is ‐ a community get‐together, an economic hub, a place of peace and quiet, a safe haven for children and dogs, and above all a business that is surrounded by beautiful mountain views and trees. All of this would be lost if we had to move even just 100 metres, let alone one kilometre. It is relatively easy to move most businesses within buildings, but it will be incredibly difficult to move the market and rebuild it as it stands. More importantly, it will impossible to move the atmosphere and energetic footprint created over 10 years.

How will I recreate the atmosphere we presently have on a site which will make most of the residents in Hermanus unhappy?

How will I ensure that the economic livelihoods of the 100 traders remains intact?

How will we be able to operate a quiet, serene morning with building noise, dust and then pollution and traffic noise ahead?

How will I pay for such a move? How would the lease work? Would the land need to go through a tender process? Who would put in the required infrastructure?

How could I take such an incredible risk with a business that I have built up for 14 years?

How do I go forward, limping along from year to year, with total insecurity of tenure.

How does one recover from the past 2 years of massive economic upheaval in Hermanus from riots to road closures to Covid‐19?

So moving the market to whatever alternative site will force me to close the market as the risk of moving is just too great, especially without clear answers in writing to the above questions.

There are still far more questions than answers with regards to this project, and it would be ethical for the SRK to apply due diligence to these unanswered aspects of the project.

Yours sincerely,

Liza van Coppenhagen

HERMANUS COUNTRY MARKET OWNER

30 August 2020

SRK Consulting [email protected]

COMMENT ON AMENDED FINAL ENVIRONMENTAL IMPACT ASSESSMENT REPORT PROPOSED NEW CBD BYPASS ROAD IN HERMANUS DEA&DP Reference number: 16/3/2/E2/15/2124/14 Dear Sirs,

IMPACT OF THE POTENTIAL BYPASS ON FNR The Hermanus Botanical Society (HBS) has had grave concern about the loss of portions of Fernkloof Nature Reserve (FNR) to the proposed bypass road. FNR is a critical biodiversity area, which HBS has been protecting for the last 60 years. The reserve is small, only 1800 hectares and cannot afford to lose any of its protected fynbos. The HBS rejects the proposed bypass passing through portions of the FNR. Of special concern is the loss of the western areas of FNR fynbos above Mountain Drive which would be severely impacted by a proposed road as the area of reserve here is narrow and steep and hence vulnerable and will not easily recover from further reduction in its extent. This western area is also the most biodiverse portion of the FNR and home to at least one plant not found anywhere else in the reserve. The plant species, Rafnia elliptica will disappear from FNR entirely and numerous red data species of plant will be severely impacted by a proposed road. Despite this, most disappointingly, the rating for the impact of the road on the terrestrial environment of FNR remains medium (or low with mitigation measures) even with the amended botanical assessment by Emms in January 2020 suggesting a more severe level of impact by the proposed bypass than the previous assessment. The fact however that FNR is a NEM:PAA protected area was not considered in the previous EIR application and loss of the Protected Environment was given no value. It is gratifying that now FNR is acknowledged as a protected area and the impact of the potential bypass on the FNR environment is raised to a Very High Negative because of this. In support, CapeNature states that it does not favour the loss of any protected areas and stresses that the ecological assessments in the EIR have supported the importance of FNR as a protected area. CapeNature is against the very purpose of establishing a protected environment only to allow the deproclamation of such an area. The FNR protected area should be preserved at all cost and an alternative bypass sought.

PROPOSED BIODIVERISTY OFFSET DEA&DP rejected the previous bypass EIR application and stated that the loss of land from a Protected Environment would require a biodiversity offset to mitigate the high negative effect of the loss of protected land. The offset however is as a last resort and requires every other route for the bypass to be fully explored first. Numerous suggestions have been put forward for alternative bypass routes but have been brushed aside and not effectively explored. Cost being the main factor for rejecting alternative bypass routes. The cost of the biodiversity offset should be included in the assessment of the cost of alternative, non-FNR, routes. The de-proclamation of a protected area of the portion of the FNR lost to the potential road will require a separate environmental application prior to the commencement of any work on the proposed road. A biodiversity offset may only be considered once all other road routes have been properly interrogated. It is imperative this is done. A biodiversity offset can be considered at a minimum ratio of 1:20 (lost land: conserved land). A biodiversity offset would preferably be the acquisition of a “like for like” portion of land of the same composition (veld type) and in the correct ratio. The biodiversity offset proposal offered in the EIR aims to address the residual impacts of the bypass project on the natural vegetation of FNR which is a Critical Biodiversity Area (CBA) containing critically endangered Overberg Sandstone fynbos and Hangklip Sand fynbos and also the impact on the wetland of a portion of the golf estate. The offset proposal presented plans to restore an area of 7 km along the Onrus River from the R43 to the DeBos dam, with an offset ratio of 1:30, the requirement as an offset for a CBA. The Onrus River is in dire need of alien vegetation clearing and rehabilitation. One quarter, 27%, of the proposed offset area is owned by the OM and should be under an alien clearing programme. The other three quarters is privately owned by landowners who have not been consulted about the offset proposal but are legally obliged to clear their alien vegetation. It is difficult however to understand how this proposed offset benefits the FNR and wetland. The loss of CBA with almost pristine, extremely biodiverse fynbos and the gain 162 hectare of alien infested riverine area of which 73% is private land. And the rest OM land which OM has already stated it wishes to include in the FNR in the latest version of the FNR PAMP. This land is infested with alien trees, hardly a “like for like” offset. The private land (73%) will never be part of FNR and the OM land (27%) which is proposed to be the ecological link to the FNR has confluent blue gum and other alien vegetation infestation. There is no mention of this area being cleared before inclusion in the FNR. Where is the CBA fynbos offset compensation for FNR? It is stated in the proposed Biodiversity offset plan that the rehabilitation of the Onrus River is unlikely to occur without the implementation of the biodiversity offset. The OM is surely aware that there are initiatives already in place to clear and rehabilitate the Onrus river. The government committed to provide funding for the full rehabilitation of the Onrus river from source to coast at the National

Wetland indaba in October 2019. The Onrus Mountain and Hemel & Aarde Conservancies in partnership with LandCare are clearing alien vegetation in the very sensitive wetland area where the peat fire burned for 8 months after the fire in January 2019. This clearing was halted due to the lockdown but will continue down river once COVID-19 regulations allow this. The National Working on Wetlands initiative will be rehabilitating the area cleared by the Conservancy project. Is the OM relying on this clearing and other initiatives as the biodiversity offset? Time frames for setting up the offset project are extremely short and not feasible. The budget allocated in the offset proposal for the clearing is insufficient for the task. Much of the Onrus river has mature, large, alien tree invasion. The R 1.4 million budgeted would not get near to financing the clearing of the large alien trees on the OM ground (27%) let alone on the private land (73%) as well. The OM cannot afford to clear FNR of alien vegetation. The HBS does a major part of this clearing via a co-management agreement. How will OM finance the clearing regrowth alien trees on the Onrus river for 5 years? This is not addressed in the offset proposal. The biodiversity offset proposal as presented appears non-viable or of any real value to FNR and should, in our opinion, be rejected. The entire bypass project therefore should not be given authorization to proceed. There are numerous alternative bypass proposals not impacting on FNR or the golf course wetland, which should be more fully explored. Sincerely, Dr Dianne Marais Chairperson Hermanus Botanical Society [email protected]

To: SRK

Attention: Ms Sue Reuther and Ms Kelly Armstrong

Email: [email protected]; [email protected]

CC: Western Cape Department of Environmental Affairs and Development Planning

Attention: Ms Arabel McClelland

Email: [email protected]

Reference:16/3/1/2/E2/15/2124/14

31 August 2020

Dear Madams

COMMENTS ON AMENDED FINAL EIA REPORT: PROPOSED BYPASS ROAD FOR HERMANUS

1. INTRODUCTION

1.1. I represent Hands Off Fernkloof (“HOF”), an informal group of people from diverse organisations and backgrounds concerned with the preservation and protection of the Fernkloof Nature Reserve (“Fernkloof”), situated within the jurisdiction of the Overstrand Municipality (“Municipality”).

1.2. This comment is submitted in response to an amended final environmental impact assessment report (“AFEIAR”) that was published for comment on 18 June 2020.1 It was prepared in support of an application (“Application”) for environmental authorisation (“EA”), made for the Western Cape Department of Transport and Public Works

1 Initially comments were required by 20 July, however in response to a request by stakeholders for the extension of the comment period, it was agreed that they must be submitted by 31 August 2020.

(“DTPW” or “Applicant”) under the National Environmental Management Act2 ("NEMA") read with the 2010 Environmental Impact Assessment Regulations3 (“EIA Regulations”) under which the Application commenced. The Application was made for the DTPW by a joint venture of the EFG Engineers (Pty) Ltd and iCE Group (Pty) Ltd (the “JV”), presumably appointed by the DTPW to act as project managers.4 It is clear from documents that are explained below that both the DTPW and the Municipality are proponents of the Project.

1.3. The Application was made to the Western Cape Department of Environmental Affairs and Development Planning (“DEA&DP” or the “Competent Authority”). Permission is sought for the construction of a road that will bypass the Hermanus central business district (the "Road"), the stated purposes of which are, among others, to improve accessibility, traffic flow and safety in central Hermanus, as well as in support of the implementation of the Hermanus Central Business District Renewal Framework.5 The Road, if constructed, would fall entirely within the Municipality’s jurisdiction and any benefits that would arise from it (which are disputed) would be purely municipal. It is therefore unclear why the DTPW, whose remit is (provincial) regional connectivity, is a the Applicant for the Road.

1.4. In compliance with the EIA Regulations, the JV appointed an environmental assessment practitioner (“EAP”), SRK Consulting, to enable it to discharge its obligations under the EIA Regulations. The AFEIAR is available on the EAP’s website at https://www.srk.co.za/en/hermanus-cbd-bypass-eia (the “Website”). Unless otherwise specified, all references in this document to the AFEIAR and the Appendices to it are to documents on the Website.

2. MATERIAL FACTS

2.1. The Road

2 107 of 1998. 3 GNR 543, 544, 545 and 546 in Government Gazette 33411 of 2 August 2010. 4 Page 1 of the AFEIAR (Part 1). 5 AFEIAR Executive Summary page v.

2.1.1. The Road, if constructed, would be approximately 3km long, passing to the north of the Hermanus central business district, abutting Mountain Drive, heading past the Hermanus Sports Complex and along Fairways Avenue. Although the primary proposal abutting Mountain Drive is the same, it consists of two sub-alternatives, namely a northern and a southern option. The northern alternative would run adjacent to Mountain Drive, then above the Sports Centre, and between the Cricket Oval and the Hermanus Generation School ("Northern Alternative"), after which it would join Fairways Avenue. The southern alternative would run north of Mountain Drive, south of the cemetery, along Jose Burman Drive, between the High School and the sports complex and along Fairways Avenue. ("Southern Alternative"). Either alignment of the Road would significant compromise Fernkloof, explained in more detail below.

2.2. History of the matter

2.2.1. The Road has a long history, as is explained in more detail below. As far as the Application under the EIA Regulations is concerned, a scoping report was first undertaken and submitted for public comment in 2016. In November 2017, arevised EIAR was circulated for public comment. After its rejection by DEA&DP (discussed in more detail in section 2.3 below) it was revised again. The most recent revision of the EIA is the FAEIA, to which this document is a response.

2.3. DEADP’s letter

2.3.1. DEA&DP rejected the EIAR in a letter dated 19 March 2018, a copy of which is Appendix Q5 to the AFEIAR (the “Rejection”). The Rejection was (justifiably) critical of the EIAR and the process which led up to it. The reasons for the Rejection were listed; they included:

2.3.1.1. The issues raised in DEA&DP’s comments on the draft EIAR (dated 8 August 2017) had not been satisfactorily addressed;

2.3.1.2. The loss of a tract of land in a formally protected area (that is,

Fernkloof) was sufficient to trigger a negative impact rating (which could not unilaterally be downgraded by the EAP) and required the consideration of a biodiversity offset which could not be regarded as an administrative process following the granting of the EA but was a condition precedent to an EA - organs of state are not exempted from offset requirements;6

2.3.1.3. Where an offset is a requirement of a proposed development, a determination of the offset must be started as early as possible in the EIA process; 7

2.3.1.4. CapeNature and DEA&DP raised the need for an offset as an issue early and repeatedly in the EIA process;8

2.3.1.5. The holder of the EA is required to secure funds to comply with its conditions, including that of a biodiversity offset in perpetuity;9

2.3.1.6. Offset requirements are also applicable to wetlands, including those not on protected areas, specifically the golf course development on Erf 10558 (“Wetland”), where the Wetland, which would be affected by the Road if authorised, is currently maintained as a no-go area [under an environmental authorisation issued for the development (“Authorisation”)].10

2.3.1.7. The EAIR did not adequately demonstrate that all feasible and reasonable alternatives had been considered, nor had need and desirability been sufficiently motivated; nor were the adverse socio-

6 Paragraphs 4.1, 4.2 and 4.3. 7 Paragraph 4.2. 8 Paragraphs 4.1. 9 Paragraphs 4.2. 10 Paragraphs 4.4 and 4.5.

economic and biodiversity impacts adequately considered.11

2.3.1.8. Alternatives could be considered to allow the Municipality to undertake the regeneration project and “the application by the DTPW for a bypass road cannot be motivated by the [Municipality’s] need for the Hermanus CBD regeneration project, such that the reciprocal is not also the case.”12

2.3.1.9. Importantly, motivation for the [Road] from a traffic transport and time saving perspective were not adequately considered in the short- to medium-term.13

2.3.1.10. The impropriety of the Traffic Impact Assessment (“TIA”) being conducted by the JV as a specialist was noted.14

2.3.1.11. The various conflicting roles of the Municipality (as a proponent and commenting agent) were noted with disapproval;15 and

2.3.1.12. The failure of the EAP to address all comments made by I&APs, or only to do so in a generalised way, was noted and cautioned against.16

2.3.2. As is explained below, most of the concerns raised by DEA&DP in the Rejection have still not been addressed, either adequately or at all, particularly as far as Fernkloof and the biodiversity offset are concerned.

2.4. Fernkloof

2.4.1. The history, legal status and formal expansion of Fernkloof is fully documented

11 Paragraph 4.5. 12 Paragraph 4.5. 13 Paragraph 4.5. 14 Paragraph 4.7. 15 Paragraph 4.14. 16 Paragraphs 4.2.

in the draft Protected Area Management Plan (“PAMP”), 17,18 the contents of which have not yet been approved by all of the stakeholders. However, the PAMP is uncontroversial as far as the legal status of Fernkloof is concerned. Relevant for present purposes is that it was first formally protected under the now repealed Nature Conservation Ordinance19 in 1971.20 For reasons explained in paragraph 3.11 below, it is now recognised as a protected natural environment under the National Environmental Management: Protected Areas Act21 (“PAA”).

2.4.2. Fernkloof is located within the Cape Floristic Region which is a declared UNESCO World Heritage Site. It consists of “a unique combination of habitats, ecosystems and species, many of which are rare and critically endangered..22 Twenty five plant species found in Fernkloof are endemic to the area and it plays a critical role in achieving conservation targets.23 In addition, the PAMP records that:

“a well-documented characteristic of the fynbos biome is the relatively low number and biomass of herbivorous animals supported by the vegetation type. The varied terrains of [Fernkloof] support approximately 58 mammalian species associated with the vegetation types, and include Red List threatened species viz. the Cape Clawless Otter (Aonyx capensis) (NT) (Figure 8), the Cape Mountain Leopard (Panthera pardus) (VU), the Grey rhebok (Pelea capreolus) (NT) and the true fynbos endemic, Cape Spiny mouse (Acomys subspinosus)…”24

2.4.3. Further, of the 68 species of endemic birds found in South Africa, 48 species are known to occur in the CFR and six of the eight strictly fynbos endemic bird

17 In section 1 on pages 12 to 13. 18 The PAMP is not annexed because it is a bulky document, however a copy is tendered should it be required. 19 26 of 1965. 20 Proclamation PN 391 of 1971. 21 57 of 2003. 22 Pages 28 and 29 of the PAMP. 23 Page 35 of the PAMP. 24 Pages 43 to 44 of the PAMP.

species are known to occur in Fernkloof. 25 Fernkloof is also home to the Vulnerable Listed Cape Dwarf Chameleon (Bradypodion pumilum) and other species such as the Cape Mountain Lizard (Tropidosaura gularis) (LC), Common Mountain Lizard (Tropidosaura montana) (LC), Cape Grass Lizard (Chamaesaura anguina) Cape Girdled Lizard (Cordylus cordylus) (LC), Southern Rock Agama (Agama atra) (LC). The Drewes’ Moss Frog is listed on the International Union for the Conservation of Nature (IUCN 2018) Red List of Threatened Species as Near Threatened (NT) due to its restricted range of approximately 101km2 The Cape Rain frog (Breviceps gibbosus), listed as NT26 due to endemism within the Southwestern portion of the Western Cape, has an unknown population. Two species of tortoise are known to occur in the FNR, the endemic Angulate tortoise (Chersina angulata) (LC) and the Common Southern Padloper (Homopus areolatus) (LC).It is clear from this brief summary that Fernkloof is an extraordinary place that should be protected and preserved at all costs.

2.5. The impacts of the Road, if it were to be approved, on Fernkloof are more fully described in section 2.8 below.

2.6. The Municipality is the designated management authority of Fernkloof, but the Hermanus Botanical Society has in fact managed Fernkloof for the last 60 years without any income from the Municipality. It has also established an internationally recognised herbarium on Fernkloof.27

2.7. The management of Fernkloof is facilitated by the Fernkloof Advisory Board (“FAB”), the legal status of which is discussed in the PAMP, 28 although it is contended that there is no advisory committee for Fernkloof as contemplated by Regulations made under the PAA for the Administration of Nature Reserves.29 This is not the appropriate forum in which to debate the legal status of the FAB. What is beyond dispute is that the FAB has conducted itself as an advisory board for Fernkloof for some 60 years with the

25 Pages 44 to 45 of the PAMP. 26 Near threatened. 27 PAMP page 16. 28 Pages 14 to 15. 29 Government Gazette 35021 February 2012).

knowledge and consent of the Municipality. Some members of the FAB are also members of HOF.

2.8. The Municipality

2.8.1. As long ago as August 2008 the Applicant addressed a letter to the Municipal Manager of the Municipality (a copy of which is annexed marked “HOF 1”) from which it is clear that:

2.8.1.1. There was a meeting of representatives of the Municipality and the DTPW on 8 July 2008 during which both the so-called relief road (through Hermanus) as a road that would serve as a regional route connector, and proposed alternative route along the urban edge on the mountainside of Hermanus as the preferred location (ie the Road) were discussed;

2.8.1.2. The DTPW made it clear that the suggestion for the Road came from the Municipality, but that it would be “willing to investigate the proclamation and construction of the … [Road] … with the support of the Overstrand Municipality”.

2.8.2. In response,30 on 8 October 2008, the Municipality asked the DTPW “to initiate the investigation into the proclamation and construction of a route to serve as a regional route connector along the urban edge on the mountainside of Hermanus.” A copy of that letter is annexed, marked “HOF 2”.

2.8.3. It is therefore clear that the Road was conceptualised and its implementation initiated by the Municipality and it must therefore be regarded as a proponent, even though it is not the Applicant. However, in other correspondence, the Municipality purports to comment on the EIAR as an interested and affected party (“I&AP”). In yet another role, in response to comments made by other

30 The Municipality’s reply refers to a letter of 7 August, but it is clear from the contend of the reply that it is a response to HOF1.

I&APs during the EIA process, the Municipality responds and purports to justify the Road. This clearly evidences the fact that the Municipality wears three (conflicting) hats in this process, namely proponent, I&AP and decision maker. In amplification of this are two letters, both of which were written on the same day (1 September 2017) and both were signed by Mr Muller, the Municipality’s Head of Infrastructure and Planning. In the first letter, attached, marked “HOF 3”, Mr Muller explains the formal position of the Municipality regarding the Road, and in “HOF 4”, he provides responses to comments made by other I&APs.

2.8.4. In an attempt to clarify the Municipality’s position on its status as proponent, I&AP and decision maker, a letter was addressed to the Mayor of the Municipality, Mr Dudley Coetzee, a copy of which is annexed, marked “HOF 5”. This letter was triggered by a press statement in which a statement was attributed to Mr Coetzee, stating that ““the traffic congestion on the R43 leading into and out of Hermanus from both the Hawston side as well as the Stanford side, must first be addressed before consideration is given to a possible road being built to allow through traffic to by-pass the town….Only once this work has been completed should consideration be given to the possible need for a bypass road and the most suitable route that such a road should follow.” [Emphasis added.].

2.8.5. In HOF 5, Mr Coetzee was asked to clarify conflicting statements made by the Municipality regarding the Road. His reply is contained in an email dated 7 August 2020, a copy of which is attached, marked “HOF 6”. Quite startlingly, in it Mr Coetzee states that the comments by the Municipal Manager in HOF 5 refer only to the EIA and do not constitute “approval to construct the road”. He confirms that the statements attributed to him in the press release are an accurate recording of what he said.

2.8.6. It is difficult to believe that:

2.8.6.1. A comment on the merits of an EIA would not be made by the environmental department of the Municipality;31

2.8.6.2. Mr Coetzee genuinely believes that support can be given for an EIA without also supporting the proposed development for which it is undertaken;

2.8.6.3. Given the history of the matter (as documented in the correspondence referred to in this section), Mr Coetzee can argue with any conviction that the Road has not been considered by the Municipality (that is, by its Council); and

2.8.6.4. the Municipal Council had no knowledge of Mr Muller’s actions in attending the meeting with the DTPW, in initiating the Road and expressing support for it.

2.8.7. The matter was further is further dealt with in a etter from the DTPW dated 29August 2019, a copy of which is attached, marked “HOF 7”. It records that:

2.8.7.1. The Municipality initiated the project to build the Road (paragraph 3);

2.8.7.2. All project meetings were held at the Municipality’s offices and theyincluded transport, land use planners and environmental officials from the Municipality, referred to as the “Project Team” (paragraph 6);

2.8.7.3. The Overstrand Master Plan was approved in 2013 (one assumes with input by the Council, failing which it would not have been validly approved) and mentioned the Road, which was also mentioned in the Integrated Development Plan (“IDP”), approved by the Council (paragraph 7);

31 Which Department has made very substantial comments during the EIA process (independent of the Infrastructure and Planning Department) opposing the proposals.

2.8.7.4. The Project Team confirmed to Mr Donald Grant (MEC for Transport) that the Municipality was committed to completing the investigation for the Road (paragraph 8.1);

2.8.7.5. The (then) Mayor attended a site visit on 15 April 2016 (paragraph 8.2)

2.8.8. The Municipality replied to the letter which is HOF 7 in a letter dated 9 September 2019, attached marked “HOF 8”. It did not dispute the recorded facts in HOF 7. While it is an answer to the formal requirements of the EIA, it clearly supports the realignment of the R43 and the consequential impacts, and certainly does not indicate that this support is subject to the approval of an EA, and only after that approval would the matter be considered by Council.

2.8.9. There are two possible constructions to be placed on all of the evidence contained in HOF 1 to HOF 7. Either Mr Muller and Municipal Manger acted without the knowledge and authority of the Council, in which case their conduct was unlawful, or they did so with its knowledge and, at the very least, tacit consent. Further, in the event that the EIA was supported, it cannot be considered in isolation of the project for which it is conducted.

2.9. The Botanical Impacts

2.9.1. The botanical impacts of the Road, if it was constructed, were assessed and recorded in the Terrestrial Ecology Report32 that was reviewed in a report entitled “Review of Botanical Assessment and EIA Report” referred to here as the “Botanical Review”. 33

2.9.2. It is evident that if it was to proceed, the Road would result in the permanent loss of 3.2 ha of semi-intact critically endangered Overstrand Sandstone Fynbos, referred to as “OSF” (the Botanical Review found that 0.82 ha of Fernkloof land, characterised in the Terrestrial Ecology Report as “degraded” ought correctly to

32 Appendix 11. 33 Appendix 12.

have been characterised as semi-intact, resulting in an under assessment in the Terrestrial Ecology Report of the area of the category of critically endangered OSF that would be affected). If it proceeded, the Road would also cause the fragmentation of 1.9 ha of semi-intact to degraded vegetation from the FNR area north of the Sports Complex and south of the Road.

2.9.3. The Botanical Review also found that the reference in the Terrestrial Ecology Report to 14 Red List species within the study area was incorrect; actually there are 17 Species of Conservation Concern, of which six are threatened.34

2.9.4. In reviewing the EIA, the Botanical Review noted that “the impact assessment methodology supplied by [the EAP} does not include any mention of Protected Areas and how this should be weighted in the impact assessment tables…”35.

2.9.5. Importantly, although the Terrestrial Ecology Report states that impacts will be reduced to “Low Negative if the essential mitigation is carried out”, the Botanical Review disagreed. It asserts that “the mitigation does not sufficiently reduce impacts from Medium to Low since most of the alignment would still pass through intact HSF and OSF, and the FNR” 36 (emphasis added).

2.9.6. The FAEIA does not (and cannot) resolve this issue raised in the Botanical Review. Significantly, the Botanical Review also states (correctly) that “If the draft [provincial] guideline [on biodiversity offsets] had been formally adopted, the botanical impact of the Hermanus CBD Bypass would have been rated as Very High Negative on the ground that it affects a protected area, even if the impact on vegetation was considered lower.”37 The Offset Report, discussed in more detail below, references and quotes from the draft provincial guideline on biodiversity offsets but omits any mention of the status of protected areas

34 Page 11 of the Botanical Review. 35 Although it recorded that the methodology does, however, make provision for adjusted ratings if the methodology does not derive an appropriate impact significance rating (page 13 of the Botanical Review). 36 Page 11 of the Botanical Review. 37 Page 16 of the Botanical Review.

under the guideline. 38

2.9.7. The Botanical Review records, further, that “it should be noted that two mitigation measures mentioned in [the Terrestrial Ecology Report] were not fully integrated into the EIA Report. These include requirements to “Only mow vegetation in the road reserve where sight distances are impeded by vegetation, and leave the remainder of vegetation untouched” and to “appoint a specialist to monitor the success of plant relocations and landscaping for at least 3 years after the end of construction.”39

2.10. The Biodiversity Offset

2.10.1. The Biodiversity Offset Plan40 (“Offset Report”) was prepared only at the insistence of DEA&DP following the suggestion of an offset by CapeNature in the scoping phase of the EIA.41 It contains a proposal to mitigate the impacts that would occur if the Road was allowed to proceed on Fernkloof and through the Wetland (the “Offset”). The Offset Report proposes that “in exchange” for the destruction of a portion of Fernkloof and the Wetland, an area of degraded riverine habitat, namely that adjacent to the Onrus River, will be rehabilitated, largely by the removal of alien invasive plants (“AIPs”). Some of the land in question is privately owned, the rest is owned by organs of state, including the Municipality. It is proposed that the Offset will be implemented and maintained for the first 5 years by the DTPW, and, after that, presumably in perpetuity, by the Municipality.

2.10.2. Although the Offset Report is clearly a specialist report (the independence requirements of which are explained in more detail in section 3.16 below) the authors and reviewers include employees of both the Municipality42 and the

38 Page 3 of the Biodiversity Offset Report, discussed in more detail below. 39 Page 21 of the Botanical Review. 40 Appendix T. 41 Paragraph 4.1 of the Rejection, which is Appendix Q5. 42 Ms Liezl de Villiers.

DTPW,43 that is, the proponent of and Applicant for the Road respectively.

2.10.3. Because the Offset was only proposed in the very last stage of the impact assessment, alternatives have not been considered and so cannot be commented on by I&APs; the proposed offset mitigation is presented as the only option. HOF does not concede that the loss of a portion of Fernkloof can ever be mitigated, but to the extent that the FAEIAR seeks to justify the destruction of part of Fernkloof by way of an offset, it ought to have considered it in the early stages of this impact assessment, as argued by CapeNature and confirmed by DEA&DP in the Rejection.44 The consideration of alternatives is a mandatory requirement of the EIA process. The failure to consider them in something as material as an offset to compensate for the loss of an area protected under statute and a Wetland conserved under a statutory instrument (the Authorisation) is a material defect in the EIA process. That is particularly the case where the Offset itself triggers an activity listed under the EIA Regulations (“Listed Activity”) for reasons explained below.

2.10.4. As mentioned above, the Offset Report references the draft provincial guideline on biodiversity offsets but fails to mention that the impact within protected area (such as Fernkloof) must always be rated as being of very high (negative) significance. The Offset Report fails to recognise that:

2.10.5. Restoration of a riverine habitat can never be an appropriate exchange for the destruction of critically endangered fynbos species;

2.10.6. The clearance of AIPs is a legal obligation of land owners, and cannot appropriately be the subject of an offset which is supposed to provide for something that would not have happened or have been legally obliged to occur but for the authorisation of the impact in question;

43Ms Dru Martheze. 44 As explained in paragraphs 2.3.1.3 and 2.3.1.4, above.

2.10.7. As mentioned above, the land in question is partly owned by the Municipality45 which has to date, not implemented its legal obligations to clear the AIPs, apparently because no funds are available. 46 It is simply disingenuous for the Municipality, as Proponent, to ask that its legal obligations to clear AIPs can also be authorised as mitigation for the destruction of part of a protected area of which it is the trustee. Further, there is no evidence to suggest that the Municipality will allocate the necessary funds to continue the AIP clearance after the first 5 years of the programme since it has never done so before, and therefore no reason to believe that the Offset will be sustainable or sustained (or that DEA&DP’s concern in the Rejection about the funding of the Offset in perpetuity will be addressed);

2.10.8. The majority of the land in question (73%)47 is privately owned; those landowners are not bound by any EA issued by DEA&DP and there is no guarantee that those landowners will agree to the implementation of the Offset on their properties. It therefore follows that the success of the Offset is largely dependent on reaching agreements, negotiations for which have not yet even commenced. The certainty of the implementation of the Offset is therefore, at best, tenuous. It would be unlawful for DEA&DP to authorise the destruction of Fernkloof on condition of the implementation of the Offset which all the evidence suggests is likely not to be instituted on some landowners’ properties and will likely not be maintained by the Municipality.

2.10.9. The Offset Report proposes the clearance of the area with heavy machinery48 which will disturb the topsoil. The Offset Report entirely overlooks the fact that the clearance of an area of vegetation of this size (162 hectares) is itself a listed activity49 because the definition of indigenous vegetation in the EIA Regulations

45 Page 5 of the Offset Report. 46 Paragraph 3 on page 7 of the Offset Report. 47 Page 5 of the Offset Report. 48 Page 8 of the Offset Report. 49 Listed Activity 13 on Listing Notice 3 in GNR 546 in Government Gazette 33306 on 18 June 2010. In the Western Cape that Listed Activity is triggered by the clearance of more than 1ha of where 75% of the vegetative cover includes indigenous vegetation (as defined in the 2010 EIA Regulations) and in an urban area, in areas on the watercourse died

includes “vegetation consisting of indigenous plant species occurring naturally in an area, regardless of the level of alien infestation and where the topsoil has not been lawfully disturbed during the preceding 10 years.” 50

2.10.10. It therefore follows that environmental authorisation is needed for the implementation of the Offset, which can only be granted following compliance with the EIA Regulations, which must include a scoping and an EIA. A specialist report such as this one will not meet those requirements. No application for this Listed Activity has been applied for, nor have its impacts been assessed, and absent this, the implementation of the Offset will be unlawful.

3. RELEVANT LAW AND ITS APPLICATION TO THIS SITUATION

3.1. PRELIMINARY LEGAL ISSUES

The Application has lapsed or extension(s) have been unlawfully granted

3.1.1. This Application has been submitted several times, most recently under the 2010 EIA Regulations (discussed in more detail below) and must be considered under those regulations, together with the transitional provisions of the 2014 EIA Regulations.

3.1.2. The 2010 EIA Regulations stipulate that, on receipt of an environmental impact assessment, the competent authority can do only one of two things. It may either accept it or reject it. In the event that it is rejected, the competent authority must refer the EIAR for specialist review or it must stipulate the changes that must be made.51 As explained, DEA&DP rejected the EIAR on 19 March 2018. The rejected EIAR may be amended and resubmitted by the EAP,52

of the development setback line, or within 100m of the edge of a watercourse (which definition will include the Onrus River) where no setback line has been determined. 50 Regulation 2 of the 2010 EIA Regulations. 51 Regulation 34(2) of the 2010 EA Regulations. 52 Regulation 34(4)(a) of the 2010 EA Regulations.

after which the competent authority must reconsider it.53

3.1.3. The EIA Regulations state that an application will lapse if an applicant fails to comply with a requirement of those regulations within 6 months.54 (This was also made clear to the EAP in paragraph 4 of the Rejection.) Once it has lapsed, the application cannot be revived, and a new one must be submitted.55 The reasons for this requirement are clear: firstly, it would prejudice I&APs if long periods were allowed to pass between communications from an EAP, resulting in an unreasonably protracted process during which significant uncertainty is created about whether a development will proceed. Secondly, it will result in a situation where reports submitted in support of the application are outdated, which makes it impossible for a competent authority to make a defensible decision about the application.

3.1.4. There is no evidence on the Website (or elsewhere) that the EAP applied for or was granted an extension of the prescribed 6 month period. If that was not done, the Application has lapsed and cannot be revived and no further consideration should be given to it. If it was done, and one or more extensions were granted for a total of almost 2 years, it is respectfully submitted that such (an) extension(s) was/were unlawfully granted. A decision repeatedly or protractedly to grant extensions beyond the benchmarked statutory 6 month period was/were clearly a decision(s) which affected the rights and expectations of I&APs and ought, under the Promotion of Administrative Justice Act,56 be (a) decision(s) on which they were entitled to comment. The failure to require that was unlawful.

3.1.5.

Independence Compromised

53 Regulation 34(4)(b) of the 2010 EA Regulations. 54 Regulation 67(1) of the 2010 EA Regulations. 55 However, this may only be done if either material new information has been submitted or 3 years have elapsed since the refusal. (Regulation 68 of the 2010 EA Regulations.) 56 3 of 2000.

3.1.6. It is a requirement of the EIA Regulations that both the EAP and a person who compiles a specialist report be independent.57 "Independent" is defined by the EIA Regulations to mean:

"In relation to an EAP or a person compiling a specialist report…that such...person has no business, financial, personal or other interest in the activity, application…or that there are no circumstances that may compromise the objectivity of that EAP or person in performing such work."58

3.1.7. The reason for the independence requirement is clear. DEA&DP must be able to rely on the accuracy of the reports and the objectivity of the recommendations on which it must determine the Application. For the integrity of the EIA process, it is also important that other stakeholders (including organs of state and I&APs) have confidence in the independence of the compilers of the EIAR and specialist reports. DEA&DP cannot rely on those documents and stakeholders cannot have confidence in the EIA process or substance if the authors of those reports have, or may have, an interest in the outcome of the Application.

3.1.8. There are clearly circumstances that compromise the independence of the specialists in the Application. Firstly, the JV is both project manager for the Applicant and the author of the revised TIA.59 Quite clearly the JV has a “business” and financial interest in the outcome of the application, which cannot be cured by the review of the TIA.

3.1.9. Secondly, the Municipality, as the Proponent and the entity in whose jurisdiction the Road would be built if authorised, has an interest in it. Its employees therefore cannot be regarded as independent and are therefore disqualified from compiling the Offset Report. Similarly, the DTPW as a Applicant has an interest in the outcome of the Application. Given the proposal that the Offset involves something that the Municipality already has a legal

57 Regulation 17 of the EIA Regulations made in Government Gazette 33411 of 2 August 2010. 58 Regulation 1(1). 59 Appendix 1.

obligation to do (clear AIPs), it is respectfully submitted that HOF’s concerns about the bias of the authors and reviewers are justified.

3.1.10. Also of concern is the fact that various of the specialists commissioned to undertake studies as part of the EIA are employed by the EAP. It is respectfully submitted that where one is entirely dependent on the EAP for one's income, it is potentially problematic to reach conclusions that are adverse to the recommendations of the EAP, and as a result, the circumstances may well exist that compromise the objectivity of the person performing that work.

3.1.11. This situation has similarities to one that arose in 2004 where an environmental authorisation was set aside on appeal by the then Minister of Environmental Affairs on the grounds of an absence of independence in the EIA. He found that environmental consultants, Bohlweki Environmental, and the developers, Wild Coast Consortium, shared "extensive" links, including common directorships, management and shareholdings. While there is no suggestion that there are improper relationships between the EAP and the JV, the involvement of the JV in drafting the TIA and municipal and provincial employees in the drafting of the Offset Report compromises the independence of those reports. The drafting of specialist reports by employees of the EAP also does not meet the independence requirements of the EIA Regulations.60 It is respectfully submitted that those reports cannot be allowed to stand. In their absence, the Application does not comply with the EIA Regulations and the Application should be rejected.

3.2. LAWS REGULATING THE APPLICATION

3.3. The Constitution of the Republic of South Africa Act

3.3.1. The Constitution of the Republic of Africa Act, 1996 (the “Constitution”) establishes various fundamental human rights that must be protected and

60 Regulation 18(5)(b)(ii) of the EIA Regulations.

fulfilled by the state61 and regulates the conduct of municipalities, including with regard to the supply of essential services. Important for this comment is the environmental right. It provides that:

“Everyone has the right –

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”62

3.4. Since the Bill of Rights is binding on all organs of state,63 the Municipality is obliged to give effect to it, including when making any decision about the Road.

3.5. The objects of local government are listed in the Constitution. They include: to ensure the provision of services to communities in a sustainable manner; and to promote a safe and healthy environment.64 A municipality is directed, within its financial and administrative capacity, to strive to achieve those objects.65 A municipality is further obliged to structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community.66

3.6. The powers and functions of municipalities are also set out in the Constitution. They include executive authority in respect of, and the right to administer, listed local government matters.67 Relevant to this comment are municipal planning68 and

61 Section 7. These are only limited as is provided for in section 36 of the Constitution. 62 Section 24. 63 Section 8. 64 Section 152(1)(b),(c) and (d). 65 Section 151(2). 66 Section 153(a). 67 156(1)(a) read with Part B of Schedules 4 and 5. 68 Section 156(1)(a) read with Part B of Schedule 4.

municipal roads. 69

3.7. It is apparent from the powers granted to, and the obligations and duties imposed on, municipalities, that they are obliged, progressively within their budgets, to provide essential services, including transport, in a way that is environmentally sustainable. It is difficult to see how it could be argued that the establishment of the Road by way of the destruction of part of a legally protected area constitutes the upholding by the Municipality of the environmental right or the provision of services in an environmentally sustainable way.

3.8. Aside from the substantive obligations the Constitution imposes on municipalities, it also has procedural requirements, including that government takes place in a reasonable, accountable way. Professor Etienne Mureinick argued that the Constitution is a bridge from one place, a controlling bureaucratic state where the government does not have to justify its actions, to a new order in which the government must always justify to its citizens how it chooses to regulate them.70 He asserts that what is required is a culture of justification in which every exercise of power is expected to be justified; in which government’s leadership rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command.71

3.9. It is this culture of accountability which appears to be entirely overlooked by the Municipality in its apparent belief that it can, at will and without adequate justification, sacrifice a portion of protected area of which it is the appointed trustee. That understanding of the need for accountability by the DTPW is also in no way reflected in the AFEIAR.

Local Government: Municipal Systems Act

3.10. The Local Government: Municipal Systems Act72 (the “Systems Act”) reiterates Municipality’s duty to exercise its executive and legislative authority and use the

69 Section 156(1)(a) read with Part B of Schedule 5. 70 Etienne Mureinick “A Bridge to Where?” South African Journal on Human Rights (1994) Volume 10 at 31. 71 Page 32. 72 40 of 2000.

resources of the municipality in the best interests of the community.73 It also emphasises the need to provide municipal services in an environmentally sustainable way,74 which mandate would include the construction of the Road. This is bolstered by the obligation to provide municipal services in a way that is environmentally sustainable.75 There is nothing in the documents that are before DEA&DP that reflect the Municipality’s appreciation of this obligation.

National Environmental Management Act

3.11. The principles76 contained in the National Environmental Management Act77 (“NEMA”) “apply to the actions of all organs of state that may significantly affect the environment and must apply alongside all other appropriate and relevant considerations…”78 They must also serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of this Act or any statutory provision concerning the protection of the environment.79 The decision to pursue the construction of the Road is undoubtedly a decision that will, if implemented, result in significant environmental impacts. It therefore follows that the principles of NEMA ought to bind both the DTPW and the Municipality. Also, there can no doubt that the decision to investigate the construction of the Road is an action by an organ of state that may significantly affect the environment.80 Various principles contained in NEMA are applicable to decisions regarding that decision These include the requirements:

3.11.1. That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied;

3.11.2. that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied;

3.11.3. that negative impacts on the environment and on people's environmental rights

73 Section 4(2)(a). 74 Section 4(1). 75 Section 73(2)(d). 76 Section 2. 77 107 of 1998. 78 Section 2(1)(a). 79 Section 2(1)(c). 80 Or it would not have to be the subject of an EIA.

be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied;

3.11.4. the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people's common heritage; and

3.11.5. sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.

3.12. There is no indication in any of the documents that form part of this EIA or which are attached to this comment that the Municipality or the DTPW applied any of the principles listed above in the decision to investigate the building of the Road through a portion of Fernkloof.

National Environmental Management: Protected Areas Act

3.13. The PAA recognises a nature reserve declared under now repealed provincial legislation as a nature reserve or a protected environment,81 which recognition includes Fernkloof.

3.14. The PAA requires the designation of a management authority for a protected area; the Municipality is the management authority for Fernkloof. Importantly, a management authority must manage it (a) exclusively for the purpose for which it was declared (emphasis added); and (b) in accordance with – (i) the management plan for the area; (ii) this Act, the Biodiversity Act, the National Environmental Management Act and any other applicable national legislation; (iii) any applicable provincial legislation, in the case of a provincial protected area.82 The destruction of a portion of Fernkloof for the construction of the Road would quite clearly not constitute its management exclusively for the purpose for which it was declared, and would breach the principles of NEMA.

3.15. Importantly, the PAA specifies that in fulfilling the rights contained in section 24 of the

81 Section 12. 82 Section 40(1).

Constitution “the State through the organs of state implementing legislation applicable to protected areas must – (a) act as the trustee of protected areas in the Republic. ”83 There is no doubt the Municipality is an organ of state and, as the management authority of, and the Municipality that has jurisdiction over, Fernkloof, it has a duty as the Trustee of Fernkloof to protect it for the benefit of current and future generations. The Municipality does not appear to recognise this duty, since it provides no evidence of that understanding in any of the documents that form part of the AFEIAR or are annexed to this comment. Instead it appears to believe that because it is the owner of the land on which Fernkloof is located, it is entitled to construct the Road on it without any explanation or justification. It also appears to view the EIA as an annoying administrative burden rather than a useful decision making tool.

3.16. In addition, the PAA stipulates that “This Act must … be interpreted and applied in accordance with the national environmental management principles.” 84 These are fully explained above.

3.17. Content can be given to the duty that a trustee of a protected area has, by considering the purposes for which an area may be protected under the PAA. These include: to protect ecologically viable areas representative of South Africa’s biological diversity and its natural landscapes; to preserve the ecological integrity of those areas; to conserve biodiversity in those areas; to protect areas representative of all ecosystems, habitats and species naturally occurring in South Africa; to protect South Africa’s threatened or rare species; to protect an area which is vulnerable or ecologically sensitive; to create or augment destinations for nature-based tourism; to manage the interrelationship between natural environmental biodiversity, human settlement and economic development.85 The destruction of a portion of Fernkloof to construct the Road would undoubtedly be in breach of all of these requirements.

3.18. The PAA requires the adoption of a PAMP. As explained in 2.4.1 above, a PAMP has been drafted for Fernkloof but not yet adopted; the process of its adoption to date has

83 Section 3. 84 Section 5(1)(a). 85 Section 17.

been highly controversial.

3.19. Regulations for the Proper Administration of Nature Reserves86 self-evidently do not permit the activities contemplated by the construction of the Road. That portion of Fernkloof would therefore need to be deproclaimed. Any decision to deproclaim it would be vulnerable to attack on appeal or judicial review.

National Environmental Management: Biodiversity Act

3.20. Regulations made under the National Environmental Management: Biodiversity Act87 (“NEM:BA”) require all landowners to eradicate or control AIPs, depending on their classification.88

3.21. With regard to the specific control of AIPs by municipalities, the NEM:BA requires all organs of state in all spheres of government to prepare an invasive species monitoring, control and eradication plan for land under their control, as part of their environmental plans in accordance with section 11 of the National Environmental Management Act. 89

3.22. In addition, NEMBA stipulates that invasive species monitoring, control and eradication plans of municipalities must be part of their integrated development plans.90 It is clear that the Municipality has not complied with this requirement, or the Offset Area would already be managed by the Municipality.

3.23. EIA Regulations

Need and desirability

3.24. The AFEIAR correctly records that the EIA Regulations require that the need and desirability of a project (including viable alternatives) are considered and evaluated against the tenets of

86 Published under Government Notice R99 in Government Gazette 35021, dated 8 February 2012. 87 10 of 2005. 88 Government Notice R598 in Government Gazette 37885 dated 1 August 2014. 89 Section 76(2)(a). 90 Section 76(2)(b).

sustainability.91 It records that “this requires an analysis of the effect of the project on social, economic and ecological systems; and places emphasis on consideration of a project’s justification not only in terms of financial viability (which is often implicit in a [private] proponent’s intention to implement the project), but also in terms of the specific needs and interests of the community and the opportunity cost of development (DEA&DP, 2013)”92

3.25. The AFEIAR notes that the Road, if built, will not comply with relevant provisions of the Provincial Spatial Development Framework, in particular the obligations to protect biodiversity and ecosystem services, and to safeguard inland and coastal water resources, and manage the sustainable use of water. The FEIAR states that the “bypass does not fully comply with [these policies]. 93 That statement is inaccurate; it doesn’t comply with them at all. However, this non- compliance is passed off on the basis that “the general integrity and use of [Fernkloof] is not affected by the bypass… Ecosystem services provided by [Fernkloof] and those areas in the bypass footprint are considered very limited due to the small size of the affected area and the urban character of Hermanus; they are not significantly affected by the bypass. It asserts that “While infringing on the FNR, the Hermanus CBD Bypass is not a typical example of urban sprawl, as it is a government-driven transportation project that is efficiently aligned to the existing urban edge.”94

3.26. The FAEIAR entirely overlooks the statutory stewardship obligations that the Municipality has under the PAA as the designated management authority of a protected area to protect it. Absolutely no justification is offered for this breach of the duty. It also appears to ignore the fact that the Municipality is accountable to the residents of Hermanus and must give reasons for breaching its statutory duty.

3.27. Another consideration in determining need and desirability is the cost of the Road relative to its benefits, particularly in the current economic situation. The EIA states that “the source of funding for provincial projects and the manner in which the Province spends its budget is outside the scope of this EIA. However, funds from the WCDTPW budget would not be available for housing or other municipal projects.”

3.28. Those statements are not correct. Firstly, the cost of the Road, including the EIA required for it,

91 Page 263 of the AFEIR. 92 Page 263 of the AFEIR. 93 Page 266 of the FAEIAR. 94 Page 266 of the FAEIAR.

is an entirely legitimate inquiry in a socio-economic impact assessment. (It is not clear what the EIA costs are to date; inquiries by a member of HOF to the EAP about that have been entirely ignored, which is odd in the context of a public participation process, the hallmark of which should be transparency.) Secondly, it is simply untrue to claim that funds originally allocated to one provincial department can never be reallocated to another one or to another organ of state where this is justified. The entire national government budget has recently been reallocated due to COVID 19. It is entirely possible (indeed probable) that a proper investigation of this question would establish that the funds for the Road would be better spent on, for example, public transport, than for the Road, the traffic congestion alleviation benefits of which have not been clearly established.95 Public funds would also better be spent by improving drainage issues and other poor living conditions in Zwelihle.

3.29. The primary basis of the Applicant’s need and desirability argument is a traffic one. In support of this is has offered the TIA (which, as already explained, is flawed because it was a specialist report drafted by the JV who cannot be independent because it has an interest in the outcome of the Application). It is of concern that this was not obvious to the EAP at the outset (but which was noted with disapproval by DEA&DP in its Rejection).

3.30. The EAP attempted to cure this defect by way of a review, which is Appendix A2 (“Traffic Review”). In short, the Traffic Review concludes that the TIA requires more detailed calculation, particularly with regard to its economic arguments, and “the conclusion in the TIA that the Road would break even at approximately year 16 based on travel time savings alone is questioned.”96 The reviewer states further that “it would be desirable for a more comprehensive economic evaluation of the project to be carried out to validate the conclusions reached in this report.”97 In summary, although the reviewer agrees with some of the findings reached in the TIA, he disagreed with many of them, and found others to be unsubstantiated and to require further investigation.98 Most significantly, for the purposes of the FAEIR, the independent reviewer states that “Due to the number of statements for which no supporting documentation is provided, it is difficult to assess whether the report is technically sound.” 99 The reviewer goes on to state that “It would be desirable to have an economic evaluation following accepted principles, rather than a very rough-and-ready assessment of travel time savings, leading to the

95 The TIA indicates that a saving of only some 2 minutes per trip in peak traffic will be achieved. 96 Page 4. 97 Page 4. 98 Page 5. 99 Page 5.

conclusion that the Bypass project would break even within approximately 16 years…. Further consideration of the timing of implementation (or threshold traffic levels) would be useful.” 100 (Emphasis added.)

3.31. With regard to the proposed route, he agrees that an alternative route will ultimately be needed, and past experience indicates that it would be desirable to protect an alignment as soon as possible, to avoid the situation where the CBD is congested, but the preferred option is no longer possible due to development of sites along the route.101 Then, inexplicable, given the previous statements made and which are quoted above, he concludes that “It is considered that there is sufficient basis for supporting the recommendation to adopt Option 1A as the route for a future CBD bypass, and to proceed with preliminary design to the extent needed to define the land acquisition requirements and to protect this by proclamation.”102 It is difficult to understand how the reviewer can reach this conclusion given his reservations about the technical soundness of the report.

3.32. It is also clear that the reviewer’s scope was limited and did not include exploring other alternatives, including the upgrade of local roads which was required by DEA&DP in its Rejection.

4. CONCLUSION

4.1. It is respectfully submitted that there is no rational basis for the approval of the Application by DEA&DP. Firstly, the Application has either lapsed (and there is no evidence to show that any extensions were granted for its continued validity) or its validity has been illegally extended without concern for administrative justice or transparency. Further, the EIA is fundamentally tainted by the absence of independence of the authors of many of the specialist reports, including the Offset Report, an author and reviewer of which are employed by the Municipality and the DTPW respectively.

4.2. It is unclear why a provincial department is funding the costs of, at the very least, the (protracted and expensive) EIA process for a road the benefits of which (if any) will only be local. It is also unclear why a JV of engineers is the Applicant, appointed by the DTPW. It is clear

100 Pages 5 to 6. 101 Page 5. 102 Page 6.

the Municipality plays three conflicting roles in this project; it is proponent, I&AP and decision- maker. It appears from all of the correspondence that the proposal for the Road was initiated by the municipality some 12 years ago, and the project has continued ever since with the full support and participation of municipal officials. The Road is mentioned in the approved Master Plan for the Municipality and in its IDP. It is difficult to accept that one can support an EIA without supporting the project for which it is undertaken.

4.3. The concerns about the EIAR raised by DEA&DP in its Rejection are largely unresolved in the FAEIAR. Its concerns about the destruction of a portion of Fernkloof remain valid. To the extent that this could ever be mitigated (and HOF does not concede that it could) the Offset is deeply flawed. It is for the clearance of AIPs from a portion of riverine vegetation, which can never be a fair exchange for the loss of rare and critically endangered flora and fauna. Further, the Offset will require the Municipality to do what it is already legally obliged to do (clear AIPs) and which it currently does not do now, because it apparently has no funds to do it. DEA&DPs concern about the absence of funding in perpetuity for the Offset remains valid. Further, the Offset was proposed only at the very last stage of the EIA process and so has not been the subject of public participation nor the exploration of other alternatives. Importantly, the Offset is proposed for some land that is privately owned; any EA issued would not be binding on those landowners and no agreements in principle have been reached with those landowners about the implementation of the Offset. (They are legally obliged to implement control measures for the AIPs, they do not have to do so as contemplated by the Offset Report.) The Offset is therefore highly unlikely to be implemented for any length of time. Further, it has apparently been overlooked that the clearance of the AIPs as proposed will itself trigger the need for an EA which has not been applied for.

4.4. The AFEIAR does not establish the need for and desirability of the road from a traffic perspective. The TIA was drafted by the Applicant and must be disregarded because it does not meet the independence requirements of the EIA Regulations. In an attempt to cure this, an expert traffic engineer was appointed to review the TIA. He found that, due to number of statements for which no supporting documentation was provided, it was difficult to assess whether the report is technically sound. He also concluded that economic evaluation provided by the TIA was too “rough and ready” to be reliable. It is also clear that the reviewer’s scope was limited and did not include exploring other alternatives, including the upgrade of local roads which was required by DEA&DP in its Rejection. In the absence of a compelling traffic argument, the Application cannot demonstrate the need for and desirability of the Road and

must be rejected.

4.5. The Municipality appears to adopt the position that simply because it owns the land on which Fernkloof is located that it is entitled to do with it as it sees fit. In doing so it is in breach of the Constitutional environmental right and the obligation to govern in an environmentallysustainable and accountable way. The Municipality has clearly not applied the NEMA principles in its decision-making about the Road and does not appear to recognise the statutory role that it plays as trustee of Fernkloof for current and future generations.

4.6. For all of these reasons, it is respectfully submitted that any decision to issue an EA for the approval of the Road would be fatally flawed and vulnerable to attack on appeal and, if necessary, judicial review. It is therefore requested that the Application be refused.

Yours faithfully

Terry Winstanley

Messrs SRK Consulting Postnet Suite #206 Private Bag X18 Rondebosch 7701. By e-mail: [email protected] (cc.: [email protected], [email protected], [email protected],)

31st August 2020

Dear Sirs

AMENDED FINAL ENVIRONMENTAL IMPACT ASSESSMENT (EIA) REPORT PROPOSED NEW CBD BYPASS ROAD IN HERMANUS: DEA&DP Reference 16/3/1/2/E2/15/2124/14) – COMMENT BY THE PEDAL POWER ASSOCIATION

The Pedal Power Association (PPA) has only recently become aware of the Proposed New CBD Bypass Road in Hermanus as currently scoped by the Provincial Roads Department. This is unfortunate as PPA would have made input during both the Scoping and the Basic Assessment Stages of the EIA which may have altered perceptions and the approaches being considered.

ROAD PLANNING IN CONTEXT The WCG’s broad development policy approach and transport’s role in supporting it In order to realize its OneCape 2040 Vision, meet the requirements of the Provincial Strategic Plan and address fundamental spatial and socio-economic challenges without compromising its unique environment the Western Cape Government’s (WCG’s) Provincial Spatial Development Framework (2104) (PSDF) establishes 5 principles to guide development namely: Spatial Justice; Sustainability and Resilience; Spatial Efficiency; Accessibility; and Quality and Liveability. The PSDF further specifically requires that Public Transport and Non-motorized Transport (NMT) underpin any transport project and that every large project undergoes a thorough Cost Benefit analysis that extends beyond just traffic related considerations. These requirements are reinforced in the Provincial Land Transport Framework (PLTF) which states that “..investment decisions should be informed by objective and transparent evaluation of alternatives, including an assessment of all costs and benefits including social, economic and environmental costs and benefits to determine whether proposed projects represent a good use of limited resources.” A key part of any assessment should be considering how a proposed project supports the required modal shifts from private to public transport (40/60 is the target), shared travel and the integration of NMT into every project. Province wide transport and development pressures and required responses Effectively managing travel demands and promoting sustainable and inclusive transport provision are the cornerstones of the national and provincial transport policy as required by both the National and Provincial Land Transport Frameworks. It is essential that the limited, and shrinking, public funding must centrally serve these objectives. Furthermore, these transport responses are essential prerequisites to assist in addressing the fundamental social and spatial challenges set out in the PSDF.

Tel (021) 671 6340; Fax (021) 671 1037; e-mail [email protected] PO Box 665, Rondebosch, 7701, Cape Town, South Africa I Greenford Office Estate, Kenliworth 7708 NPO Refence Number: 164-262

The Provincial Strategic Plan sets a target for motorised trips of achieving 60% travel by Public transport to 40% by private means by 2019. This target, whilst being overambitious and not having been achieved by 2019, clearly establishes the intent. Transport investment through the available channels must therefore directly serve these goals and must not result in or contribute to a continuation of current patterns.

Existing road infrastructure does provide the necessary capacity for current and increased levels of demand for passenger and goods transport if the essential and fundamental improvements occur in the management of these travel demands. This is the urgent agenda for transport locally and it needs be addressed through wide ranging measures to increase vehicle occupancies, promote a modal switch to improved public transport services and cycling, facilitate safe travel by cycling and walking for local trips, and comprehensive promotion of formal flexi-time services and working from home etc..

HERMANUS CBD BYPASS ROAD – RECONSIDERATION REQUIRED Critique as currently proposed As currently scoped the project’s limited objectives and evaluation criteria of creating a bypass to effectively serve just 7% of the vehicular traffic flows through Hermanus raise significant concerns that should be addressed. ➢ Meeting Broad Policy Criteria: The project focuses on vehicle flows (levels of service) rather than people movements (occupancies) as required by the nationally and provincially mandated shifts to Public Transport and NMT. This is contrary to equitable use of public funding that should enable affordable access to opportunity for all – especially the poor. The analysis only considers restricted criteria of vehicle traffic flows based on growth of current primarily single occupancy vehicle flows rather than flows which reflect the required shifts to public and non-motorized transport.

➢ Route Functioning and Classification: Given the low volumes of through traffic the “mobility” requirements used to motivate the bypass should be reconsidered and a reclassification of the route be considered.

➢ Project Justification: The analysis is very narrowly focused on through vehicle movements rather than people movements at a local scale.

➢ Initial Concepts - considerations limited: The cursory exclusion of alternative approaches is in direct contravention of both National and Provincial policy and requirements. Detailed consideration to alternatives (particularly through Travel Demand Measures and Public Transport) that could reduce vehicular traffic should have formed the basis of the scoping report. As an example a mode share of just 8% for cycling would compensate for a significant portion of the through traffic. This is a stretch target as a mode share but has been achieved in most towns and cities that have committed to cycling as a key mode of their travel mix.

➢ COVID-19 Changed Circumstances: The COVID19 pandemic has demonstrated that a rapid change in behaviour is completely achievable. It has also placed sever strain on the economy and whilst beyond the scope of the EIA does require that all expenditure be reprioritised and provides an opportunity for the project to be reevaluated to comply with national and provincial policies and legislation.

Tel (021) 671 6340; Fax (021) 671 1037; e-mail [email protected] PO Box 665, Rondebosch, 7701, Cape Town, South Africa I Greenford Office Estate, Kenliworth 7708 NPO Refence Number: 164-262

➢ Particular Concern: The amended report states: “One combined 3m wide pedestrian walkway and cycle path is proposed alongside the road along appropriate sections of the bypass.” At a detailed level this is a significant concern to PPA as there are two issues here: o Cycling and walking are obviously given a low priority in the conceptualisation of the project as safe routes for pedestrians and cyclists should be the departure point for any design approaches and should be along the entire length of any route; and o A 3m shared facility which, from the statement, appears to be bidirectional poses significant safety issues for dual usage in terms of its width.

Way Forward – Reconsider the Approach Given the context and critique above it is recommended that the proposal be revisited and evaluated on a broader basis than just consideration of vehicle flows. The evaluation should be done on the basis of ensuring social equity, environmental responsibility and a shift to Public and Non-motorised Transport as key criteria thus meeting the Province’s developmental policy requirements. CONCLUSION

Sustainable transport is “the provision of services and infrastructure for the mobility of people and goods - advancing economic and social development to benefit today’s and future generations - in a manner that is safe, affordable, accessible, efficient, and resilient, while minimising carbon and other emissions and environmental impacts.” This directly supports the main goal of the National Development Plan, OneCape 2040 and the Provincial Strategic Plan - to eliminate poverty and reduce inequality in a manner that is consistent with long term social, environmental and economic sustainability. The effectiveness of any sustainable mobility approach is determined by the degree to which a city, town or region as a whole is accessible to all whilst considering both long run (intergenerational) and spatial aspects which encompass Social, Economic and Environmental considerations as fundamental to any planning process and meeting the primary requirements of both reducing travel distances and the need for motorised travel through an integrated and integrative approach. By revisiting the conceptual approach in addressing the issues of traffic flows in Hermanus in the manner required by policy and law the principles of responsible and sustainable transport planning and the goals of the national and provincial policies and plans will be met. This effectively requires a far deeper assessment of the “No Go” option of not constructing a bypass whilst addressing the issues in a responsible and fiscally prudent manner.

G Laing

Vice Chairman: Pedal Power Association (Mobile No.: +27 74 100 6081; e-mail: [email protected])

Tel (021) 671 6340; Fax (021) 671 1037; e-mail [email protected] PO Box 665, Rondebosch, 7701, Cape Town, South Africa I Greenford Office Estate, Kenliworth 7708 NPO Refence Number: 164-262

Tel (021) 671 6340; Fax (021) 671 1037; e-mail [email protected] PO Box 665, Rondebosch, 7701, Cape Town, South Africa I Greenford Office Estate, Kenliworth 7708 NPO Refence Number: 164-262 HERMANUS SPORTS CLUB Cegela House 20 Hope Street Hermanus CBD 7200

PO Box 2148, Hermanus 7200 [email protected]

31st August 2020 Kelly Armstrong, SRK Consulting [email protected]

OBJECTION TO PROPOSED HERMANUS BY-PASS

I write this letter on behalf of the Hermanus Sports Club.

The Hermanus Sports Club (HSC) opened in 2019. The Sports Club offers recreational facilities to the community (and schools) of Hermanus.

On the HSC site are : Hermanus Cricket Club (Cricket), Hermanus Tennis Club (Tennis), Hermanus Squash Club (Squash), Marina’s School of Dance (Dance), Helga Eichenauer Astroturf (Hockey), Attie Bishop playing fields (Cricket, Hockey), Netball courts (Netball), Hermanus Country Market, BMX track (BMX cycling), Skatepark (Skating, under construction), Pro-activ Gym (under construction).

It is worth noting that all of these facilities offer outdoor recreation /sport, except for Squash, Dance and the nearly completed Gym.

Additional users:

The Whalers Athletic Club, who offer weekly time trials, is based at HSC. Learners of Generation School use the Cricket Oval for playtime and also for sport. A group of croquet players use the Cricket oval. Various exercise groups use the Cricket Oval

The Hermanus Sports Club objects to the proposed by-pass on the following grounds:

a) The by-pass on either of the two proposed routes would be seriously detrimental to the health and well-being of sporting participants on the HSC site. Noise of traffic as well as air pollution would be detrimental to the health of participants, especially considering a high percentage of participants are children.

b) The traffic noise would spoil the experience of the sporting recreation.

c) Learners from both Generation School and Hermanus High School make extensive use of facilities on the HSC site. The by-pass would undoubtedly attract additional traffic to the area around HSC and learners going to and from HSC would face unnecessary danger from the additional traffic.

d) The by-pass would impact visually on the outlook from the HSC, especially the newly built clubhouse. The large east and north facing windows would face towards the (northern) by-pass, if built. This would ruin the outlook towards the mountains and towards the not- unpleasant view of Generations School. e) The suggestion of moving the De Villiers Graaf Cricket Oval westwards in order to make space for the northern route of the by-pass is quite unacceptable:

Moving the field westwards would move the cricket pitch closer to the tennis courts. Spectators standing on the bank watching cricket are already in danger of being hit by a 5 ½ ounce cricket ball, but at least they are watching the cricket and have a chance to move out of the way. If the pitch is closer to the tennis courts, cricket balls could clear the fence and endanger tennis players who would be unaware of the flying ball.

The Hermanus Sports Club strongly objects to the proposed by-pass and sincerely hopes that common sense will prevail and the by-pass as proposed is not built.

J H Cowan (Hermanus Sports Club Steering Committee.)

073 054 2598 [email protected] Or [email protected]