Tsogo Sun loses supreme court gamble

The eThekwini municipality won an appeal on Wednesday against a high court order in favour of the developers of a planned multi-level parking facility in Durban.

The eThekwini municipality won an appeal on Wednesday against a high court order in favour of the developers of a planned multi-level parking facility in Durban.

Tsogo Sun KwaZulu-Natal, the developers of the casino complex at The Village Green at Durban's Snell Parade, applied for the construction of a nearby R27million parking facility in terms of their gambling licence agreement with the KwaZulu-Natal Gambling Board.

But the municipality refused permission because the building site fell within the municipality's Durban town planning scheme and the zoning of the land was regulated by scheme clauses.

According to the municipality, the "buildings" to be erected at the site were not in accordance with its integrated development plan (IDP) approved for the specific site.

Tsogo Sun turned to the Durban high court and contended that the municipality's notification demonstrated neither approval nor a refusal to approve, and that the municipality was merely avoiding a decision.

It asked the high court for an order directing the municipality to approve the building plan of the parking facility.

The high court agreed with Tsogo Sun and granted the order.

But the supreme court of appeal based in Bloemfontein found that the notification by the municipality constituted an unequivocal refusal to approve the building application.

The court held that Tsogo Sun was bound to exhaust other appeal avenues before it could approach the court.

The supreme court also found that the construction of the building on the site was not provided for in the IDP.

Accordingly the municipality was prohibited by the zoning conditions from approving the building application.

The supreme court set aside the Durban high court order and dismissed Tsogo Sun's earlier application. - Sapa

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