Judge rejects ‘trifling’ case against developer

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Montpelier

THE MERCURY

Construction of a block of flats in Durbans Montpelier Road, which was stalled because of court action by aggrieved neighbours, has been given the go-ahead by a Durban High Court judge. Picture: Jacques Naude

Durban - Construction of a block of flats in Durban’s Montpelier Road, which was stalled because of court action by aggrieved neighbours, has been given the go-ahead by a Durban High Court judge who labelled their complaints “trifling” and even “frivolous”.

But the neighbours have described the judgment as “extremely disappointing” and a lost opportunity “to make a bold statement” about buildings put up without approved plans or with plans that ought not to have been approved.

They said they intended taking the matter on appeal.

The neighbours, including attorneys Shahir Ramdass and David McNaught, secured an interdict against the developer, the Sayed Family Trust, in November last year, stopping work on the eight-flat building until the outcome of a review application.

This was a challenge to the city’s approval of the plans in September last year, nine months after construction began on site. The building was almost complete.

Among their complaints were that the building would block their “beautiful uninterrupted views”, compromise their privacy and reduce the value of their properties.

They also raised a number of technical issues of the approved plans.

Judge Johan Ploos van Amstel – who heard argument late last month – handed down a written judgment on Tuesday dismissing the application and ordering that they pay the trust’s legal costs.

On the issue of the view, he said the city official who recommended the approval of the plans had commented that the objectors should have been aware of the development potential of surrounding sites. When the sites had been rezoned as general residential they had raised no objections.

“The official who approved the plans had said that in his view the proposed building would not have a negative impact on values in the area.

“He pointed to the fact that the property was previously a vacant, overgrown site with a crumbling, dilapidated building on it, frequented by vagrants and creating an unsafe environment.

“There are a number of high-rise buildings in the neighbourhood and the proposed building is consistent with those as far as architecture and finishes are concerned,” he said.

With regard to the complaint that the building exceeded the possible coverage because of a roof overhang, the judge said it was the practice of the city not to take overhangs into account.

“There is plainly a difference between the footprint of a building and how it is viewed from the air. I can find nothing irrational in this practice,” he said.

With regard to other technical complaints, he said that while there might be substance to some – including the siting of an underground tank and boundary walls – “we must have regard to the context and the practicalities”.

“The main attack was based on a derogation of value of properties. The underground tank is in front of the proposed building and cannot possibly have any impact on the objectors’ property.” And the boundary walls, which were said to be higher than 2m in places, were not between the trust’s and the objectors’) properties.

“These complaints are, in my view, trifling,” the judge said. “In a determined effort to stop or delay construction, they employed a professional town planner to go through the plans with a fine-tooth comb, which resulted in objections which were mostly technical, argumentative and even as frivolous as the dimensions of a sewer pipe.”

Commenting on the judgment, Ramdass said: “We are surprised and shocked that these non-compliances were considered inconsequential. In our view, which we are sure will resonate with the greater Durban community, the municipality incorrectly overlooked these non-compliances, which justified the review being granted and setting aside of the plans.”

He said that while the interdict had been automatically discharged, he intended to apply for it to be re-instated in his notice to appeal.

The Mercury


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