The Gauteng Provincial Government together with the Gautrain Project Team are working together to ensure that the necessary steps in terms of legislation are followed as speedily as possible to further proceed with the Project. This is done while bearing in mind the rights of interested and affected parties.
There are different steps associated with the relevant legislation pertinent to interested and affected parties and members of the public which may be affected and/or what they may need to do to safeguard their interests.
BRIEFING DOCUMENT
IMPLEMENTATION OF THE GAUTRAIN RAPID RAIL LINK
PRELIMINARY DESIGN PHASE
1. INTRODUCTION
The Gauteng Transport Infrastructure Act, 2001 (Act No.8 of 2001) sets out the steps that need to be taken for the province to finalise the route of the Gautrain, determine the rail reserve and then expropriate properties that maybe required.
The National Environmental Management Act, 1989 (Act No. 107 of 1989)(NEMA) and the Environment Conservation Act,1989 (Act No. 73 of 1989)(ECA) spell out the steps that need to be taken to ensure that the Gautrain is constructed and operated in an environmentally friendly manner, that does not harm the environment and that provides the required mitigation measures to ensure that all environmental constraints can be effectively managed.
The Gauteng Department of Public Transport, Roads and Works (GDPTRW), the Gauteng Department of Agriculture, Conservation and Environment (GDACE) together with the Gautrain Project Team are working together to ensure that the necessary steps in terms of all the above legislation are followed as speedily as possible but bearing in mind the rights of interested and affected parties and the public.
In this briefing note, we spell out the different steps associated with the above legislation and how interested and affected parties and members of the public may be affected and/or what they may need to do to safeguard their interests.
2. BACKGROUND TO THE GAUTENG TRANSPORT INFRASTRUCTURE ACT (“the GTIA”)
2.1 Introduction
Before construction of Gautrain can begin, three processes have to be complied with in terms of the Gauteng Transport Infrastructure Act (“the GTIA”) namely:
- Route Determination;
- Preliminary Design; and
- Proclamation / Expropriation.
The Route Determination phase has been completed with the official approval by the Member of the Executive Council for Public Transport, Roads and Works (“the MEC”) of the route on the 1st of August 2005. Publications regarding this approval appeared in the Provincial Gazette and local newspapers on the 5th of August 2005.
On determination of the route, the Gautrain Preliminary Design had to be finalized taking into account the proposals made by the Preferred Bidder, the Bombela Consortium.
The final process involves the Proclamation and Expropriation of the rail reserve. This involves notifications in advance and negotiations with affected property owners on the impact and associated compensation for their properties. Compensation will be determined based on the provisions in the Gauteng Transport Infrastructure Act that includes market value related valuations.
2.2 Preliminary Design
Where the Route Determination phase was concerned with the establishment of a centre line for the railway line, the Preliminary Design phase is concerned with the technical design of the vertical and horizontal alignment of the railway line with the aim to determine the boundaries of the rail reserve in terms of co-ordinates and in relation to cadastral boundaries and data. Thus, the Preliminary Design defines the impacts on affected property owners, service providers and municipalities.
The Gauteng Department of Public Transport, Roads and Works will publish a draft Preliminary Design Report for the Gautrain Rapid Rail Link on 14 October 2005. The publication has the objective of obtaining public comments to inform the later approval decision of the report to be made by the MEC for Public Transport, Roads and Works, Ignatius Jacobs.
It is important to point out at this stage that the processes followed during the Environmental Impact Assessment (EIA) for the Gautrain, and the subsequent Record of Decision (RoD) received from the Gauteng Department of Agriculture, Conservation and the Environment (GDACE) for the project, are separate from what is required in terms of the GTIA. However, in terms of the GTIA an environmental investigation is required before construction can commence and in the case of Gautrain, the processes and resolutions in the EIA helped to inform the processes required in terms of the GTIA.
2.3 Phasing of the Preliminary Design
The draft Preliminary Design for Gautrain being published now for public comments does not cover the whole route of the train. This is primarily because the design was initially developed by the Gautrain Project Team on behalf of the GDPTRW. When the preferred bidder came on board they indicated that they would like certain sections of the route to be amended to provide for a more efficient system. Before the draft Preliminary Design for these amended sections can be finalised, Environmental Impact Assessments (EIA’s) first have to be completed.
When the EIA’s on the amended proposals have been done a further draft Preliminary Design will be published for public comments based on those sections of the route currently subject to further environmental investigations.
Obtaining approval for the environmental investigations referred to above, takes place through the legal processes as stipulated in the applicable environmental legislation (ECA and NEMA) and is therefore part of a separate process than the Preliminary Design. These environmental investigations will be done through further public consultations and specialist studies with reference to the RoD already obtained from GDACE, and subject to further approval by GDACE.
More detailed information regarding the environmental investigations referred to above, and the route sections affected, will be communicated with the public shortly. The affected sections of the route, forming part of further environmental investigations and not included in the current draft Preliminary Design are as follows:
- A changed alignment between Mushroom Farm Park in Sandton and the M1;
- An altered vertical alignment from the Marlboro tunnel portal across the Jukskei River valley and the N3;
- An altered vertical alignment in Centurion between the N1/John Vorster interchange and the Jean Avenue interchange with the Ben Schoeman Highway;
- A changed alignment on the approach to Pretoria Station in the area around Salvokop;
- A changed and refined alignment between the Pretoria and Hatfield stations; and
- An altered alignment for the Rhodesfield Station and the line into and station at the Johannesburg International Airport.
3. IMPACT ON INTERESTED AND AFFECTED PARTIES
At present, the impact of the planning processes for Gautrain on I&APs can be summarized as follows:
3.1 Direct Impact of the Draft Preliminary Design
The direct impact of the Preliminary Design on I&APs is that the Preliminary Design establishes a rail reserve for the Gautrain and hence it indicates how individual properties are affected. Properties can either be fully or partially affected and hence full or partial expropriation will be required. In the case of tunneled sections, servitudes will need to be registered over affected properties.
From the date of publication of the draft Preliminary Design, I&APs will have 30 days to provide comments to the MEC on the design before the MEC makes a final decision on the approval of the design.
During this period, affected property owners can also expect to be contacted by valuators, surveyors and contractors:
- Valuators will evaluate properties for the purposes of compensation.
- Surveyors will request access to properties in order to place survey beacons to demarcate the rail reserve.
- Geotechnical contractors may request access to properties in an effort to conduct surveys to inform the detail design and future construction of the railway line.
All these people will be in possession of letters of authority as proof of identity. They will request appointments with affected property owners in order to make arrangements to visit affected properties.
3.2 Impact of the Environmental Processes
As was mentioned earlier, certain sections of the railway line are still subject to further environmental investigations outside of the current process of publication of the draft Preliminary Design. Where the public is requested to submit written comments on the draft Preliminary Design within 30 days from the 14 th of October 2005, the environmental investigations will involve a different process that will also include further public consultations.
The environmental investigations will be published separately from the draft Preliminary Design in the local media in the near future. After this publication several public consultation processes will be required with existing or newly affected communities and property owners.
4. NEXT STEPS IN THE PRELIMINARY DESIGN AND EXPROPRIATION PROCESS
4.1 Comments on Draft Preliminary Design
The Preliminary Design includes a written design report as well as an environmental investigation as prescribed in the GTIA. It is important to note that the preliminary design contains details of the rail reserve as part of the design and this is determined with due regard to the following:
- Where the design directly affects a property, the interests of registered owners and holders of registered rights in respect of the property;
- Where the design indirectly affects a property, the interests of the registered owners and holders of registered rights in respect of the property in as far as access to and from the property is affected or if existing and/or future services is affected; and
- In both of the situations above the interests and functions of municipalities and service providers are also considered in as far they are directly or indirectly affected.
The draft Preliminary Design is now complete and the MEC is now publishing a notice informing interested persons of the reports and to ask comments from these persons on the report. When comments have been received, the MEC will consider the reports and comments made and the MEC may then accept the Preliminary Design for implementation with such amendments as the MEC may deem necessary. On acceptance of the Preliminary Design the MEC will again publish a notice in the Provincial Gazette and local newspapers to confirm the acceptance and also to confirm that new regulatory measures with regards to the route is handed down and that reasons for the acceptance may be requested by interested and affected parties within a prescribed period. The regulatory measures handed down primarily concern the process to be followed for new township applications or changes in land use that has an effect on the Preliminary Design.
4.2 Valuation of Properties
During the Preliminary Design process, knowledgeable professional, private valuers will be appointed by the GDPTRW to determine the market value of the land, together with any improvements thereon, encroached upon by the railway line. Two valuers might be appointed for every individual property to ensure the trustworthiness of the value placed on every property as far as possible.
Several valuation teams will be appointed to start with valuations on different sections of the railway line. On each section, valuations will start at properties that are required early in the construction process followed by other properties according to the proposed construction programme of Gautrain. However, the aim would be to make contact with affected property owners within 6-8 weeks of the publication of the draft Preliminary Design.
Compensation for the land encroached upon will be determined as prescribed in the GTIA (a copy of the GTIA is available on the Gautrain website at www.gautrain.co.za. In terms of the GTIA, the amount of compensation payable for individual properties, will be determined as follows:
- “in the case of property other than a right, the total of –
- the amount which the property would have realised if sold on the date of expropriation in the open market by a willing seller to a willing buyer, and
- an amount to make good any actual financial loss caused by the expropriation, or
- in the case of a right, an amount to make good any actual financial loss caused by the expropriation or the taking of the right.”
The GTIA also stipulates that “Where there is no open market for a property, compensation may be determined on the basis of the amount that it would cost to replace the improvements on the property, having regard to the depreciation thereof for any reason, as determined on the date of expropriation, or in any other suitable manner”.
4.3 Surveying of the Rail Reserve
Where the evaluations set out the monetary value associated with affected properties, the surveys would indicate the boundaries of the rail reserve, and the exact effect of the rail reserve on affected properties.
Surveyors will be appointed at the same time as valuators and, where possible, will start with the surveying of the route ahead of the valuators especially in areas where properties are only partially affected. This will assist both the valuators and the landowners in establishing the exact impact of the rail reserve on affected properties.
4.4 Geotechnical Investigations
In an effort to better inform the detail design of the railway line, affected landowners might also be contacted by contractors for permission to conduct further geotechnical investigations on their properties. All of these contractors will be in possession of letters of authority to conduct the surveys and will explain in detail to affected landowners the type of survey and/or investigation that will be required.
4.5 Proclamation and Expropriation
The actions of proclamation and expropriation are the ones that affects people the most because their rights in property are changed or their property is taken over for road or rail purposes. For purposes of clarification, the two actions can be described as follows:
- Proclamation – Proclamation concerns the changing of rights in a property i.e. a zoning of residential or agriculture to road or rail reserve and involves compensation to the extent that the proclamation affects the value of the property.
- Expropriation – Expropriation involves the changing of ownership of a property i.e. a residential property is acquired for the purposes of becoming road or rail reserve upon proclamation or rezoning. Compensation is involved and only to the extent that compensation was not already paid during a proclamation process.
The GTIA allows the MEC to proclaim a railway line by notice in the Provincial Gazette after an investigation and report has been undertaken by the Department. The MEC must also receive and consider comments or recommendations from municipalities in whose areas of jurisdiction the railway line is situated. Regarding public participation, before proclamation/expropriation of a provincial road or railway line, the MEC must notify owners and occupiers of land, which will be affected, and other interested and affected parties, of the proposed proclamation/expropriation and state the reasons for the proclamation/expropriation. Such persons will then be afforded time to make comments and representations. The MEC will then give due consideration to any comments or representations received before deciding to proceed with the proclamation/expropriation.
As soon as possible after proclamation of the road or railway line by notice in the Provincial Gazette , the land concerned will be expropriated in terms of the Act in order to take transfer thereof in the name of the Province.
5. FURTHER INFORMATION
The draft preliminary design report may be inspected at www.gautrain.co.za and at the following addresses during office hours from 08:00 to 16:00 on weekdays:
Gautrain Project Office
Ten Sixty Six, 12th Floor
35 Pritchard Street (cnr Harrison)
Johannesburg
Tel: (011) 298 4900
Ekurhuleni Civic Centre Library
C/o CR Swart & Pretoria Road
Kempton Park
Tel: (011) 921 2173
Sandown Library
C/o Rivonia Road & West Street
Sandton
Tel: (011) 881 6420
City of Tshwane
Eskia Mphahlele Community Library
Sammy Marks Building
C/o Vermeulen & Van der Walt Streets
Pretoria
Tel: (012) 358 8956
Interested and affected parties are invited to submit written comments on the draft preliminary design report within 30 days from 14 October 2005 by hand or post to Gautrain Project Office, “Ten Sixty Six”, 35 Pritchard Street, Johannesburg, 2000 or by fax to number (011) 298 4916 or by e-Mail to the following address: comments@gautrainpo.co.za for attention – The Project Leader: Gautrain Project, quoting reference number Gautrain/PD01 .
Further information regarding the processes for proclamation and expropriation of the rail reserve can be obtained from the Gautrain Project Office during office hours between 08h00 and 16h00 on weekdays at 0800204930.
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