Durban homeowners score big win over neighbouring property
Homeowners living on Durban’s Berea have secured a court victory, with costly implications for the local municipality, to set aside the decision to approve plans for a neighbouring development which blocks sea and city views and casts their home of 21 years into darkness.
The court battle, launched by Pelodor and Michael Timveos, has taken more than three years and as many applications, and the two dwellings, on the neighbouring site, have almost reached completion.
In terms of a ruling by Durban high court Judge Peter Olsen, the couple have to be given notice of any future approval of plans and be given access to those plans.
“They will be entitled to make representations and these must be properly considered,” the judge ordered.
He also ordered the eThekwini Municipality to pay their costs.
The neighbouring property was owned by members of the Hassan family, who demolished the existing house and then sold it to their company Zortziko Pty Ltd.
The property is situated on a downward slope in Stephen Dlamini Road (Essenwood).
The Timveos property is situated behind it in a panhandle in Kinnord Place. The two properties share a common boundary.
In their court papers, the couple allege that the two structures were erected “in flagrant disregard of town planning controls apparently with the knowledge and in collusion with city employees”.
They said they first became alarmed when they noticed “significant excavations” which caused the collapse of the boundary wall and damage to their property.
A high court application for the plans and for an interdict stopping construction was met with fierce opposition by the company, which insisted that the still-undisclosed plans had been approved “strictly in accordance with town planning rules”.
Director Altaf Hassam, in his affidavit, said the development was for two, two-storey buildings with basements and that all spacing requirements had been met.
He said the houses would be “aesthetically pleasing” and would, in fact, enhance the property prices in the neighbourhood.
But, the Timveos' said in a later, successful interdict application, it became clear that this was not the case.
“Leaving aside the wonderful view we had previously experienced, we now have an extremely high building located illegally, within a few metres of our house. Our house is dark where previously we had natural light.”
Just before the interdict was granted, the city issued a stop work notice citing “additional areas which were not included in the plan, internal changes and that the building encroached over the building line”.
Then began the battle for the plans. The directors refused to give them access, saying they showed all entrances and exits and this would “pose a security risk”.
In heads of argument in the review application, advocate Stephen Mullins submitted that there was clear collusion between the city and the company.
And then, at the 11th hour, the company did an about-turn and, in its written heads of argument, conceded that the development had exceeded the 40% coverage restriction. It said it would not oppose the application to set aside the approval of the plans.
But the city persisted in its opposition.
Lihle Phewa, head of development planning, argued that the approved plans conformed with the zoning.
“From the perspective of the municipality, we relied upon what they (the company) and their professionals presented to us, which is what was vetted and approved through the municipal internal process.
“How that could be said to be dishonest and collusion is not clear. They are baseless insults.”
Judge Olsen said: “There is strong evidence before me that by reason of an excess of storeys the height restrictions to which the site is subject have been breached by a considerable margin. There is also some evidence that the rules relating to space around the building have been breached. Both the plans and photographs that have been put up with the founding papers suggest strongly that the effect of the construction is disastrous for the applicant’s property and its value.”
Regarding the conduct of city officials, he said they had not been cited individually in the application and it would not be fair to comment on whether they had been corrupt.
“Nevertheless it must be observed that the best that can be said about the conduct of the municipality in connection with these plans is that it evidences a diligent indulgence in ignorance. The line which the municipality took in opposing this application suggests that there is little that it could have said to contradict that proposition.”
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