Durban - Wealthy Umhlanga neighbours have donned their legal boxing gloves in a fight over a sea-view penthouse extension which, in a bizarre twist, a local municipal official has conceded should not have been approved.
The city official allegedly told trustees of the body corporate of 60 Lagoon Drive that the plan was approved in error - “but the municipality cannot sue itself”, so it would do nothing about it.
The penthouse in Casa Blanca next door is owned by a trust controlled by Houghton businessman Larry Nestadt, a founder of Investec Bank, and director of several companies, who also has interests in horse racing and golf and who lists the KwaZulu-Natal seaside town as one of his favourite global holiday destinations.
Nestadt claims the approval is valid, that he has already spent more than R2.5 million on the renovation project and that he is not prepared to stop.
The body corporate of 60 Lagoon Drive launched an urgent interdict in the Durban High Court last week, seeking an interim interdict against Nestadt’s trust to stop construction and set aside the special consent the city granted to relax the side space restrictions.
They say the building disrupts their view “and the whole point of buying and living on the Umhlanga promenade is to take advantage of the view”.
Further, they say Nestadt’s new covered veranda and open terrace “will be so close to some of the balconies of some units” that an intruder could hop from one to the other.
The matter will be argued later this month.
In his affidavit, 60 Lagoon Drive body corporate chairman Malcolm Moodie said residents first noticed the construction in June last year and notified their managing agent, Marcelle Willson, who established that approval had been granted for the alterations.
“No notice was ever given to us. So Willson wrote to town planning, asking for more details.
“She received no written response, but got a call from a Marius Taljaard, a senior town planner, who asked to meet.
At that meeting he conceded that the plans had been erroneously approved, that town planning had overlooked the fact that there was a requirement to relax the building line/side space.
“He said words to the effect that ‘the municipality cannot sue itself’ and the city would do nothing about it.”
Moodie said Taljaard repeated this at another meeting in November - saying the municipality had mistaken the approval of the trustees of Casa Blanca as approval from the trustees of 60 Lagoon Drive.
In December, the trustees met project architect Paul Nel who said he would discuss their concerns “with Larry”.
In January, building work on the penthouse started afresh.
At the end of January, Nel called a trustee, saying his client wanted to know what the neighbours did not like and suggested they were “totally innocent” because they had approved plans.
When the trustee questioned this, saying it was improbable that neither had known anything about the rules of side space relaxation, Nel became angry.
The trustees then decided to go to court.
“The proper approach would be for them to resubmit their plans and give us proper notice, but they have no intention of doing this.”
In his opposing affidavit, Nestadt, on behalf of the trust, said Casa Blanca’s managing agent had e-mailed the then unapproved plans to the neighbours in February last year, so they had been aware of them.
He said Taljaard was incorrect, and the document reflecting the city approval stated that the existing side space requirement had been approved in 1997.
Casa Blanca had been constructed on a footprint which included this relaxation, and the work being done fell within it.
Regarding security, he said the gap between the two buildings increased with height and at the top it was “significant and not one that can be simply vaulted, even by a sufficiently motivated criminal”.
He said his neighbours had no grounds to object to his plan approval, which anyway had been granted properly and lawfully, and asked for their application to be dismissed.
The Mercury