RESPONSE TO THE CRAG MEMORANDUM
The memorandum handed over to Robin Carlisle, MEC for Transport and Public Works, by the Civil Rights Action Group (CRAG), on Sunday 22nd January 2012, regarding the Chapman's Peak Drive control centre refers.
This administration welcomes the input of civil society into all matters of public concern, and encourages a wide spectrum of opinion, and the CRAG memorandum raises a comprehensive number of concerns voiced by various sectors of the public over the Chapman's Peak Drive control centre. I will thus answer the points raised by the memorandum in turn. I hope that in doing so, I will also clear up several misconceptions that have arisen over the centre.
In addition, an information brochure about Chapman's Peak Drive is available at www.westerncape.gov.za. Click the link on the home page.
Old (current):
New (planned):
Old vs New. The approach to the current eyesore stack of disused shipping containers, and an artist's impression of the approach to the new control centre, which is built from natural materials, recessed in a disused quarry and landscaped, including roof planters, to blend with its surroundings.
CRAG: "CPD as a free standing toll road enterprise is not viable."
1. The financial commitment has been made on the basis of a 30 year contract, and while high upfront costs were anticipated, the profitability of the operation will become apparent over the longer term. The concessionaire has made considerable investment and is committed to the long term sustainability of Chapman's Peak Drive.
2. It is noteworthy that the administrative processing of objections and the consequential delays to the project do not come without a price and this cost is ultimately borne by the public via the Provincial coffers. The costs to the public resulting from the on-going environmental objection process for Chapman's Peak Drive includes delays to the initial contract and takeover of responsibility by the concessionaire, the commissioning of an Environmental Impact Assessment and the two subsequent Records of Decision in favour of building the tolling facility including an control centre are currently estimated to be as much as R100M.
"The Western Cape Toll Roads Act, 1999 governs only one toll road and that is Chapman's Peak Drive. The act empowers the Minister (Robin Carlisle) to withdraw the notice which originally declared CPD to be a toll road by simply placing another notice in the Provincial Gazette to that effect. A stroke of the pen and it's gone."
1. It is important to note that Chapman's Peak comprises 9 kms of road (out of 38,000 kms) under the control of the Province. It is also by far the most expensive road and the rehabilitation cost after the rockfalls of 2000, cost an amount equivalent to 10% of the province's total roads budget (adjusted for inflation.)
2. At present the users of Chapman's Peak Drive pay for the monitoring of the pass and the maintenance and upkeep of the rock fall protection measures, parking, picnic, lookout points and toilet facilities. Transferring that responsibility back onto all the taxpayers, most of whom will never see or use the pass, is not a fair or viable option.
3. The Roads Engineers of the Department of Transport and Public Works estimate that the current roads budget is approximately R1-billion short of what is required to maintain and provide necessary upgrades to the Province's 38,000km of roads to ensure that there is a good standard.
4. Simply put, without tolling the 9 kms pass, it cannot remain open. Alternative routes are available as has been demonstrated by four years of closure since 2000.
5. The Province nevertheless remains committed to keeping Chapman's Peak Drive open as a strategic transport route and a scenic, heritage and environmental asset.
6. No deaths or serious injuries have been reported on CPD due to rock fall since the opening of the pass as a toll road with its upgraded safety measures some eight years ago, in comparison with five deaths in the twelve years preceding its closure in 2000.
7. Thus the high cost and maintenance of this road necessitates that the CPD remain a toll road.
"Many years of operating prove what little infrastructure is necessary. The proponents of the toll plaza/office block have not shown why more infrastructure is required than is presently there."
1. The temporary facilities are a stack of shipping containers with reinforced high security windows, two port-a-loos, a wendy house and four fibreglass toll booths in addition to a separate maintenance and storage yard at the currently proposed tolling site. Not only are these facilities an eyesore, but they are completely inadequate to the task of managing Chapman's Peak Drive and the tolling operation, and entirely inappropriate for a world class tourist destination or a station from which disaster management could occur.
2. The current facilities were designed for use for approximately one year. Chapman's Peak Drive experiences extreme weather conditions throughout the year, including heat waves, extreme wind, cold, storms and heavy rain. It is not acceptable that the people who keep Chapman's Peak Drive safe, who pick up after the picknickers and tourists, who clean the toilets and who maintain the facilities should be expected to endure these conditions any longer. The operating company has experienced an excessive turnover of around 200 members of staff over the last eight years, with many citing poor conditions of employment as the reason for their resignation. This is despite the vast majority of the 57 employees coming from communities like Imizamo Yethu and Hangberg where unemployment and poverty are at very high levels.
3. The safety requirements of users of the drive have been met by permanent constructions on SANParks land in the form of safety features. The safety of the staff deserves as much consideration, especially as there have been three robberies at the temporary facility. A female staff member was badly hurt during a robbery in June 2010. Visitors also enjoy fixed toilet construction, while staff have used port-a-loos for eight years.
4. The current arrangement means additional costs for office space in Hout Bay, and inefficiencies whereby management are forced to move to the Hout Bay offices every time any kind of meeting or training is required.
5. Surveillance of the toll booths is ineffective for the purpose required if it happens at a significant distance away.
"CPD is within Table Mountain National Park (TMNP) on land owned by SANParks which has the highest level of environmental protection possible."
1. Chapman's Peak Drive is located within the former Cape Peninsula National Park, now TMNP, but is not a natural landscape feature. It remains a road which has to be managed and controlled by the Province. By way of a management agreement, the operating company also has access to other permanent construction features on SANParks land, such as catch nets. This is in order to keep the road safe and prevent further death and serious injury. Other permanent constructions on SANParks land include toilets for the convenience of visitors.
2. Far from setting a precedent with regard to commercial use of SANParks' land, as has been claimed elsewhere, the control centre will be located opposite a luxury hotel on SANParks' land overlooking Kooëlbaai, (one of many such operations throughout South Africa.)
"The Environmental Impact Assessment (EIA) process did not include public participation on the plans to build within TMNP."
1. The EIA considered all three possible locations for the control centre, which were all within what is now TMNP. Concept plans and elevations for each site were included in the EIA documents and the site development plans were approved in accordance with the environmental authorisation granted these plans were subjected to two rounds of public participation between 2003 and 2008.
2. The land earmarked for the Centre was originally under provincial control. This land was part of the 510,000m² (51Ha) of the Farm, Helsingden, which was sold to SANParks by the Province in 2003 for R100. This sale included a further eleven erven totalling 9,390,000m² of Provincial land, for a total price of R1200. Transfer of the property did not take place until 2006. The Province is therefore utilising less than 0.022% of the land it transferred to SANParks in 2006 for purposes of constructing the Chapman's Peak Drive control centre.
"ALL objections to the original EIA were ignored by authorities concerned."
1. This is factually incorrect. The EIA was conducted between 2003 and 2005. A Record of Decision (ROD) was issued in favour of construction of the control centre at Kooëlbaai (the current location) in 2005. Not only were objections not ignored, but a second round of public participation was ordered.
2. The second round lasted three years, and a second ROD was issued in favour of the control centre in 2008 by the national Minister of Environmental Affairs and Tourism, Marthinus van Schalkwyk. Every document which served before the then Minister of Environmental Affairs was placed in the public domain. The Minister set careful conditions for the construction of the toll plaza, clearly taking into account public input provided.
3. Public participation lasted for five years. Costs to the Province of the delays resulting from objections to the EIA and the two Records of Decision are estimated to amount to R100M.
4. As a result of the EIA process, the location for the Hout Bay plaza was altered to the current Koeëlbaai site with a lower visual impact and the number of lanes was reduced from 5 (with room for a sixth lane in future) to a plaza with only 4 lanes.
"The Record of Decision (ROD) made for the building of the plaza and control building, is based on an environmental impact study carried out over eight years ago. No account has been taken of changes in the environment and social and economic conditions since then."
1. The ROD was made in response to an application made in terms of the Environmental legislation and conditions applicable at the time. The application of subsequent legislation cannot be retrospectively applied to such an application.
2. Following objections to the first ROD in 2005, a further round of public participation was ordered and a second ROD was issued in 2008, a little over three years ago.
3. The Environmental Impact Assessment, and thus the two RODs in favour of the construction of the control centre, remains valid for a period of time prescribed by law, and during this time it is legally binding. In fact, the current location and scope of the project is a result of public participation.
"The ROD specifies two toll plazas including an associated control building at Hout Bay. These are satisfactory and already exist."
1. There is no requirement for both centres to be built but the ROD gives the right to build such structures.
2. The temporary tolling facilities are completely unacceptable for the reasons outlined above, relating to them being an unsecured eyesore with working conditions reminiscent of another era.
3. The control centre was originally to be located at the current temporary site. The Koeëlbaai location was finally selected after feedback received during the public participation process which objected to the proximity to Hout Bay and its visibility from Hout Bay beach and harbour areas.
4. The new centre is not visible or audible to any settlement and only visible to vessels at least 1.5km out to sea.
"Your MEC for Transport (MEC) unilaterally altered the CPD road reserve over TMNP land to accommodate the toll plaza and office block."
1. SANParks approval was required and obtained for the use of the land. It is important to note that the land in question was part of a total of 970,000m² sold at nominal price to SANParks by the Province in 2003 and transferred in 2006. The road reserve is not required for purposes of accommodating the toll plaza and even in the absence thereof, there is no legal impediment to the construction of the control centre.
2. It is important to note that SANParks have entirely supported the use by the Province of the land in question for the purposes of keeping Chapman's Peak open, accessible, viable and most importantly, safe.
"TMNP land may not be used for an office block."
1. SANParks have approved the use of an almost insignifant portion of the TMNP for construction of the control centre. A portion which was identified as having no or little biodiversity value.
2. Characterising the control centre, which consists of about 440m² of office space and 170m² of stores and maintenance facilities as a gigantic luxury office block has been one of the most misleading elements of the recent debate over Chapman's Peak Drive. The building was designed to be functional and efficient and as unobtrusive as possible, while providing dignified and secure working conditions for staff. It will replace the current unsafe and uncomfortable eyesore.
3. The land in question is located in a quarry where material was procured for work on the pass. The centre will be located across the road from a luxury hotel, Tintswalo Atlantic. The land is already being used as a storage facility for maintenance and repair supplies for the operator.
"A resolution of Parliament is required to de-proclaim part of TMNP."
1. This has been raised by the Hout Bay Residents' Association. PGWC is at present seeking legal advice in relation hereto.
"The agreement with the concessionaire remains one sided and unfair and arguably falls foul of S217 (of) the South African Constitution."
1. The agreement was the subject of an investigation by a task team of technical, financial and legal experts conducted in late 2008 and early 2009 which found no irregularities with the contract.
2. Two major bones of contention were identified. These were the lengthy, and unilateral, closures of the pass by the concessionaire, which the Province had to provide compensation for and the long delays in construction of a permanent on-site facility for managing Chapman's Peak Drive.
3. Through negotiation, the Province and concessionaire have amended the agreement to remove unilateral road closures, and compensation for closure periods from the public purse.
4. Estimates of costs to cancel the agreement range from R190m to R200m in damages and other costs. Costs to replace the concessionaire and put in place a new agreement are unknown. The period of closure of the pass while this process was underway is unknown but could possibly have been similar to the three years closure prior to the opening of Chapman's Peak as a toll road.
5. Costs to the Province of delays on the project are estimated to be as high as R100M.
"There was no tender process and a conflict of interest is noted. Haw and Ingles and Entilini have common directors and Haw and Ingles are the contractors. This would be further reason to cancel their contract."
1. The concessionaire was identified and selected through a competitive bidding process for a build, operate and transfer (BOT) Public Private Partnership (PPP) concession with the Provincial Government, which included the construction of all the associated works.
2. The building costs for the tolling facility were subject to an independent review by external quantity surveyor and engineer before being accepted by the Province.
"If the plaza and office block goes ahead , taxpayers will pay R25M toward the total cost of R54mill."
1. The Province will contribute up to R25M for upfront construction costs of the control centre, which is to be recovered through tolling and repaid to the Province.
2. Had the construction not been extensively delayed by the appeal of the ROD of 2005 and subsequent legal objections, these costs to the public would have been significantly lower.
3. On completion of the contract, ownership of all infrastructure and buildings will revert entirely to the Province for its further use and must be returned by the concessionaire in good working order in terms of the "transfer" aspect of the BOT contract.
4. Without tolling the taxpayer would contribute far more than R25M on an on-going basis over the concession period in order to keep Chapman's Peak Drive open and maintain its facilities. This money would not be recoverable.
5. Multiple objections to the construction of the control centre have driven the price up over the six years since the first Record of Decision in favour of construction.
Questions
"How much money has been paid out to the local community by the Entilini trust?"
1. No dividends have been paid out to any Entilini shareholders, the trust included. Nevertheless, the companies involved in the trust, including Haw & Inglis and Murray and Roberts have made ad hoc donations to the trust.
2. The trust was set up to benefit community projects in Hout Bay communities most affected by poverty, specifically Imizamo Yethu and Hangberg.
3. 3% of the concession was set aside for the trust.
4. While the project remains incomplete, this arrangement cannot be formalised and the intended beneficiaries have been side-lined while objections to construction continue.
"Why have Entilini refused to release recent traffic data for CPD?"
1. Entilini have confirmed that they have not refused to release recent traffic data for Chapman's Peak Drive, and it is unclear which request this refers to. Requests for data can also be submitted via the Ministry of Transport and Public Works, per the below contact details.
"How do the actual traffic and turnover figures compare to those originally projected during a time when the economic sustainability and socio-economic factors were different and the ROD issued?"
1. Traffic figures have grown more slowly than expected since the current global and national economic downturn began in 2007. The return on investment from the toll operations, however, is considered over the full 30 year life of the project.
"How long would it take for the return on investment of R54 million?"
1. It would be practically impossible to estimate the point at which the concessionaire will recover their full investment.
2. The Province, and the people of South Africa, will receive possession and use of all buildings and infrastructure constructed at the end of the agreement period, while the concessionaire will only make a profit if it recovers its costs and repays any loans taken out from the tolls received during the concession period.
"If the Minister (Robin Carlisle) were to withdraw the notice which originally declared CPD to be a toll road, there would be no need for a toll plaza. Why can't the R25million on building costs be used to pay the costs of cancelling the one-sided contract with Entilini/Murray & Roberts? Damages would not have be paid if it was proven that the agreement is in conflict with S217 of the constitution, which it most likely is."
1. Once again, it must be pointed out that without tolling, Chapman's Peak is not sustainable. It comprises 9km of the Province's 38,000km of roads. The Province is not in a position to act as a tolling company and would need to appoint another company or agent to do so at further associated costs and delay to the project. The last rehabilitation exercises cost R160M, or close to 10% of the Province's entire annual roads expenditure.
Demands
"Answer the above questions."
1. Considerable effort has been made to provide accurate information about Chapman's Peak Drive, and to answer these questions. Further enquiries can be addressed to the Ministry of Transport and Public Works (9 Dorp St, Cape Town, 8000, Fax 021 483 2217, Tel 021 483 2200, email [email protected]).
"Retain the Free Day Pass as agreed with former Minister Tasneem Essop."
1. The Day Pass system was never intended to be permanent, which is borne out by the ROD not making any mention of it.
2. The Day Pass system is subject to numerous abuses, and between 5% and 7% of day passes issued per month are not returned. The driver has either simply ignored the check point or shown the check point operator a false ticket. The cost of such abuse is currently borne by the concessionaire.
3. Nevertheless the Province and Entilini continue to negotiate over a day pass system which will continue into the future. Once the massive overheads and inefficiencies of maintaining two offices (one on the pass and one in Hout Bay) are resolved by the new control centre, it is possible that the costs savings can allow for the day pass system to continue.
Issued by the Office of the Western Cape Premier, January 30 2012
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