An owner of land automatically has certain legal rights in the property that stem directly from the ownership – the right to use and enjoy the property, modify the property, sell the property, and, if so inclined, to destroy the property. That is, unless the structure is older than 60 years. At this age an owner’s right to modify or demolish his own buildings is automatically restricted by the National Heritage Act, No 25 of 1999 (National Heritage Act).
The National Heritage Act automatically applies to structures older than 60 years irrespective of whether the structure or property has been formally recognised and granted any heritage status. This means that if a development or project is being planned that involves the modification or demolition of a building older than 60 years, then the required permits must be acquired for before modifying or demolishing the structures. It is not a foregone conclusion that the permit will be granted, and even if the permit is granted the permit can contain restrictions limiting the right to develop the property in the future.
The application of the Heritage Act to buildings was demonstrated in the recent case of Peter Gees v the Provincial Minister of Cultural Affairs and Sport ((974/2015)  ZASCA 136 (29 September 2016)) where a property owner applied for a permit to demolish a building. The building didn’t have any formal heritage status, but it was more than 60 years old. A demolition permit was granted, but as part of the permit the minister imposed restrictions on the future development of the property that included the requirement to have the future building plans approved by Heritage Western Cape before starting construction.
The landowner, unhappy with the restrictions in the permit, approached the court and argued that the minister did not have the power to restrict future development of a property when granting a permit to demolish a building. The Supreme Court of Appeal had to decide two questions, (i) whether the minister may place restrictions on the future development of property when deciding an application to modify or demolish a building, and (ii) if so, whether this curtailment of a property owners rights to use and enjoy the property is constitutional.
To decide these questions the court did a detailed analysis of the interaction between the formal and general protection mechanisms in the Heritage Act.
Formal and general protections under the National Heritage Act
The National Heritage Act introduced an integrated system for the management of national heritage resources. The act includes a system of formal and general protection methods.
For the formal protection measures to apply, a formal procedure is followed to identify the place, consult with owners, and then declare the place as protected by publishing a government notice or registering it in the heritage register. Formal protection measures can apply to heritage sites, protected areas around heritage sites, identified heritage objects, or whole heritage areas (section 27 to 32).
The formal protection measures stand in contrast to the general protections that apply automatically, irrespective of whether the place has been identified as culturally significant. The general protections apply automatically to all structures older than 60 years, archaeology sites, palaeontology sites, meteorite sites, burial grounds, graves, and public monuments and memorials (sections 33 to 38).
There is no need to identify one of these sites and consult with the owners before the general protections apply to them.
General protection for buildings older than 60 years
The Heritage Act automatically protects all structures older than 60 years. The provincial resources authority must grant a permit before these buildings, or any part of them, can be altered or demolished (section 34(1)).
The permit procedure and appeal process is set out in the Heritage Act (sections 48 and 49). When a permit is applied for the heritage resources authority may issue the permit subject to conditions, which may include the conditions that security is given for the completion of the proposed work, providing for the recycling or depositing of materials into a materials bank for historical building materials, stipulating that design proposals be revised, or stipulating the qualifications and expertise required to perform the actions (sections 48(2)(a) to (d)).
If a permit is refused, then the authority must consider if the structure should be protected formally in terms of one of the formal protection measures (section 34(2)).
Objection raised by the landowner in the current case
In the Gees case the a demolition permit for a building older than 60 years was granted, but the minister imposed restrictions on the future development of the property as part of the permit.
The City of Cape Town regarded the area that the building was located in as a significant “well-preserved art deco streetscape”, and thought that the character of the area should be conserved. The particular building itself was not deemed worthy of protection – the building was classified by the city as an “IIIC heritage resource” that only derives its significance from its contribution to the character of the surrounding area.
The building was not protected by any of the formal protection methods. It was not part of any declared national or provincial heritage site (section 27), in a heritage area (section 31), under provisional protection (section 29), listed in any heritage register (section 30), or declared a national heritage object (section 32). The only protections in the Heritage Act that applied to the building in this case were the general protection measures that apply automatically to all buildings older than 60 years.
The landowner argued that the act did not authorise the heritage authority to place conditions on the future development of a property when it was considering an application to demolish a structure that had no formal heritage status.
This argument was rejected by the court. The court held that if the imposition of permit conditions was limited only to areas that were formally protected, then the ambit for the protection of heritage resources would be reduced to small declared areas only, leaving large areas open for possible abuse.
The court evaluated the objectives of the Heritage Act, finding that the conditions imposed were designed to enable the heritage authority to fulfil its duties. The imposition of the conditions on the future development of a property when it was considering an application to demolish a structure that had no formal heritage status was found to be lawful.
The court briefly considered the landowner’s second argument that the curtailment of his rights to use and enjoy the property was unconstitutional. The court found that the conditions imposed in the demolition permit was a curtailment of property rights amounting to a deprivation of property, but that the deprivation was in the interests of the community, and constitutional.
This case illustrates the importance of considering and applying for all necessary approvals before undertaking any project or development.
If a project or development involves the alteration or demolishing of any structure or part of a structure that is older than 60 years then a permit must first be obtained in terms of the Heritage Act.
It must be borne in mind that if a permit is granted to alter or demolish a structure, the heritage authority does have the power to impose conditions on the future development of a property, limiting the landowner’s right to fully use and enjoy their ownership rights.