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Durban - Residents of a busy Chatsworth thoroughfare have lost the latest round in their battle to prevent Florence Nightingale Drive from being rezoned and a shopping mall built.
They had gone to court in an urgent attempt to stop the eThek-wini municipality from rezoning part of the road from “special residential” to “special shopping”.
However, the municipality, in recently filed opposing papers, said the residents had made a premature high court application and should have followed the proper municipal appeal process.
Durban High Court Judge Johan Ploos van Amstel on Monday adjourned the matter indefinitely.
In his founding affidavit on behalf of three other residents and the Westcliffe action committee, Desigan Pillay said that the land on the portion of road between RK Khan Circle and Sagittarius Street had been occupied by homes since the 1970s. Pillay said the residents were “opposed to the continued and deliberate non-enforcement of the zoning laws, which had resulted in the severe deterioration in the peace of our area”.
Pillay and the others were asking the court to prevent the city from authorising any plans for commercial development on any residential property on this road.
They were also asking the court to stop the rezoning of 325 Florence Nightingale Drive - a property purchased for building a retail mall.
Pillay also requested that if any of these plans had already been approved, the court should issue a stop-work order and interdict the city to reverse the authorisation.
He argued that the municipality, the city manager and the head of development planning and management at the municipality, had failed, since 2003 or earlier, to take action against those who used residential property on this road solely for business purposes.
Pillay argued that residents had raised numerous objections with the city, but said that no permanent litigation was conducted against these businesses. As a result, others had purchased properties on this road to operate businesses.
Pillay said that in his capacity as secretary of the Westcliffe action committee, he’d lodged objections with the municipality in 2002 and, in response, the city said it was considering rezoning the entire street to regularise unauthorised uses.
He said the municipality then said that it would give offenders three months to stop unauthorised use, or apply for special consent to continue running their businesses.
“Residents saw the special consent adverts placed in the newspapers, and placed their objections on record via petition and personal objections, but to no avail,” read Pillay’s affidavit.
He then wrote to the city manager at the time, Michael Sutcliffe, as well as the town planning enforcement division, to no avail.
He said a 2004 council report recommended that R2 million be set aside to upgrade the road and that “consideration be given only to low-impact, non-residential uses”.
“Instead of enforcing the law and protecting the rights of the residents, this committee saw it fit to spend millions of ratepayers’ money to improve the infrastructure to allow continued illegal use of residential property for business purposes. These funds were never approved,” read Pillay’s affidavit.
He said the city then decided against rezoning the area and recommended that the special residential zoning remain after a traffic survey and discussions. He said a 2005 traffic engineering report found that an increase in traffic volume would lead to congestion.
According to the municipality’s legal adviser, Silindile Blose, the residents’ application failed to show what harm would come to them. Blose said the city had published a public notice inviting written objections to the rezoning of the road. She said Pillay and the other applicants were among a group of about 290 who had filed objections. Following the city’s decision to approve the rezoning, Blose said it had sent registered letters to all objectors.
She said the proposed rezoning would be effective after 28 days should there be no appeal against the decision.