Durban - For years Durban North businessman Jack Lemmer said he was plagued by the “intolerable” sound of helicopters at Virginia Airport, but yesterday he told the Durban High Court that the noise had finally abated.
Lemmer was applying to withdraw an application in which he had asked for a helicopter ban at Virginia Airport.
Judge David Ntshangase granted the withdrawal but also ordered Lemmer to pay the hefty legal costs of the city and an aviation company.
In the application in 2011, Lemmer, 66, asked for an interdict against the eThekwini municipality, the SA Civil Aviation Authority, the minister of transport and six helicopter companies, saying he wanted no helicopters to use the airport – save for emergencies – until something was done to abate the “noise nuisance”.
He said that the noise disturbed his sleep and that an “expert” had said the noise level at his home far exceeded the limit which was considered acceptable ambient noise.
The aviation companies, in particular Starlite Aviation, and the municipality opposed the application.
They asked why Lemmer had bought a house 100m from an airport, why he was only complaining about the noise 20 years after he had moved in and why he was targeting helicopters and not fixed-wing aircraft as well.
They also argued that none of Lemmer’s neighbours had joined his action or shown that they supported it.
On Monday, Lemmer’s advocate, Alex Jeffrey SC, said his client wanted to withdraw his application because the main noise culprit, Starlite Aviation, which offered helicopter training, had moved its training centre to Mossel Bay.
The company had moved last year, he said, which had led to a rapid reduction in the noise.
He added that Lemmer should not be burdened with the legal costs of the case because it was a “constitutional challenge”.
Anna Annandale SC, acting for Starlite Aviation, argued that Lemmer’s reasons for withdrawing the case were not “factually correct”.
She said the aviation company had moved its operations to Mossel Bay in 2011 and that Lemmer had initially blamed all the aviation companies for the noise, not just her client.
“He says now that the main culprit was the helicopter training, but in his first affidavit he speaks of all the operators and the persistent helicopter activity.”
Laurence Broster SC, for the municipality, said: “There are 20 houses in the vicinity of his home. They never joined him in this application or put up any evidence to suggest that they supported this action or agreed that the noise was intolerable.
“There is also nothing to suggest that the noise made him want to sell his property.”
Quoting case law related to constitutional challenges, Broster said that the application fell into the category of being “manifestly inappropriate” and that Lemmer should pay the costs.