Durban - An Acting Durban High Court judge has dismissed an application by a doctor and his wife against their neighbour, also a medical professional, over an extension to his unit on their upmarket uMhlanga Rocks estate.
Dr Sivalingam Moodley, an obstetrician gynaecologist, and his wife, Dhaneswari, and clinical technologist Vishal Maharaj, own units on the Imbali Estate, a sectional title development consisting of eight identical double-storey units.
The Moodleys had claimed in court papers that Maharaj and two other residents were infringing on their rights by unlawfully using more than the allocated floor area ratio to each of the eight units, compromising the estate’s legal integrity.
They sought an interim order to stop Maharaj from proceeding further with certain extensions to his unit, pending the outcome of an application to review and set aside the approval of his building plans by the eThekwini Municipality, listed as the second respondent.
Acting judge Rod Callum recently ruled that he was not persuaded that the Moodleys had established any right to the relief sought against Maharaj.
Moodley had said in court papers that the use of more than the allocated floor space would result in the devaluation of the estate and its units and also an increase in penalties against Imbali, which each of the unit owners would have to share.
In opposing court papers, Maharaj argued that he had already spent a “substantial amount of money” on the alterations. He said he would suffer “severe financial prejudice” if the construction was stopped because he would then have to pay the contractors for their “down time”.
The matter was eventually argued on the opposed court roll before the acting judge.
Moodley said Maharaj had submitted draft plans in August last year and amended plans in November of the same year.
To date, Moodley had not been able to obtain a set of the approved building plans despite several requests to Maharaj, his architect and his attorney.
Moodley also claimed Maharaj did not have consent from 75% of the units’ owners and a special resolution to use more than the allocated floor area ratio.
He argued that as a result of this “misrepresentation” by Maharaj and the two other residents, the municipality approved their building plans.
In response, Maharaj said the couple did not specify how they were being prejudiced and that he had followed all protocols. He said by November his plans had been submitted and approved by a majority vote of the body corporate.
He argued that the Moodleys had from January to lodge an application for a review of his building plans and that they had been aware for more than a year that the floor area ratio had been exceeded by two other residents.
According to his judgment, Callum said he was not persuaded that the couple’s rights as members of the body corporate regarding the balance of the floor area ratio had been compromised by Maharaj’s failure to comply with the relevant statutory provisions.
“It does not seem to me that the use of 7.64 square metres by (Maharaj) could by any stretch of the imagination pose a threat to the (couple’s) interests, unless it is contended that their right encompasses all 75.15 square metres of the remaining floor area ratio. This has not been suggested nor could it without each member of the body corporate being joined in these proceedings,” his judgment read.
He also felt the focus of attention on the floor area ratio used by Maharaj was misplaced and said there was no evidence presented on how the couple would suffer loss of natural light, how the extension would be aesthetically displeasing and how their unrestricted views would be compromised.
Daily News