Durban - One mistake by one official could cost the city R60 million in a damages claim – to be picked up by the ratepayers – should a judge order the demolition of a high-density, nine-storey apartment building on Durban’s Berea because neighbours were not properly consulted during the rezoning process.
Through its lawyers, the city on Thursday took full responsibility for what it now agrees is a mess.
And while it says the judge hearing a challenge to the rezoning has no choice but to set it aside, the city asked for more time to attempt to resolve the situation through starting the rezoning process afresh.
“The other option is that a R60m building is knocked down because one government official made one silly statement in a (council) report,” advocate John Pammenter suggested to Durban High Court Judge Esther Steyn during argument in the matter.
Residents are seeking to overturn the rezoning from GR 1 to GR 5 and the subsequent approval of a “deviation” plan from a four-storey building to what is now, they say, a “towering monstrosity” that has ruined their neighbourhood.
Pammenter said in terms of law, all residents and owners within 100m of the site were entitled to be given notice of the rezoning application. They had not been and this had infringed their constitutional right to fair administrative action.
“You have to declare the rezoning invalid… you have no discretion,” he said to Judge Steyn.
“And once you do that, there is a difficulty with the approval of the deviation plan. If you set that approval aside, the building has to be demolished. And all of this because when the rezoning report came before the town planning sub-committee, an official noted that the developer (Serengeti Rise Industries) had submitted registered mail slips and this was considered adequate, when it was not.”
The advocates acting for the neighbours did not agree that only the city and not Serengeti was at fault. And while they indicated that at this stage that they would not push for an immediate demolition order in spite of the fact that this was what their clients wanted, the submission for more time by the city was not well-received.
Senior Counsel Kemp J Kemp said: “If we leave it up to the council to re-adjudicate the rezoning, what are the chances of it turning down the GR5 when it is still looking at a R60m damages claim?”
The judge agreed: “The city would be judge and jury in its own case. I also believe there needs to be finality in this matter for all concerned.”
She indicated that she would consider the possibility of a suspended demolition order on certain conditions and reserved judgment “mindful of the urgency of an outcome”.
Neighbours and residents packed the courtroom to hear argument in their case,which they launched late last year after first realising the scale of the development on their doorsteps on what is the first GR 5 zoning on the Berea.
The zone was created for high-density developments in the city centre and on the beachfront, and allows for virtual unlimited development with none of the usual side space requirements. A proposed application by about 200 other “concerned residents” as “friends of the court” was not persisted with after Judge Steyn indicated it was too late and that the matter would have to be adjourned again for more papers to be filed.
Advocate Linde Putter, who acts for some of the residents, including Durban-based advocate Tayob Aboobaker, whose penthouse is so close to the new building he can almost touch it, said there was no further need to “play emotions” because the facts and the legal issues were on their side.
He accused the developers and the city of “passing the buck” while it was clear both were aware there had been problems with notifying neighbours. “If the rezoning is set aside, the building plan also has to be set aside,” he said.
Kemp agreed, saying the developer was fully aware of what was required. “It is not open to them to say it was good enough (because some residents received the notices). That would be like killing your parents and then pleading in mitigation that you are an orphan.”
Advocate Anna Annandale, for Serengeti, argued that the rezoning existed “as fact” at the time the building plan was approved and while it could be declared invalid, it should not be set aside.
“There was a technical defect in the municipal process and the buck stops there. It would not be just and equitable on these facts to set aside the approval. We relied on these approvals. We cannot now unravel everything and go back to the beginning. The court must adopt a pragmatic approach.”
She said if the plan approval was not set aside, then what happened next would become “academic” because the building was up.
The Mercury