We messed up, says city
BEREA residents fighting for the demolition of a “monstrous” block of flats, have been given a boost with a startling concession by the eThekwini Municipality that neighbours were not given proper notice of the intention to rezone the site for a highrise, high-density development, nor adequate opportunity to object to it.
“It is conceded that the rezoning application notice is problematic… the municipality leaves it to the court to determine what the consequences of that should be,” the city’s advocate, John Pammenter, says in written argument filed in the Durban High Court.
The fate of the nine-storey building, being developed at 317 Currie Road by Serengeti Rise Industries, will be determined by Judge Esther Steyn after she hears argument from the residents, the city and the developers, which is expected to begin tomorrowmorning.
She will have to carefully consider the impact of the city’s concession regarding the failure to give proper notice to neighbours and decide on whether it made unlawful the subsequent approval of the rezoning from GR1, permitting a lowimpact, four-storey development, to GR5, which allows for high-density development.
If she rules this to be so, then she may also rule as unlawful the city’s subsequent approval of a “deviation plan” for a boundary to boundary nine-storey development which, neighbours say, now towers over their homes, blocking views and drastically reducing property values.
The judge will have to look at the appropriateness of ordering that it be demolished in light of submissions from the developers that the building is almost complete, that they always had all the necessary approvals and that the residents were tardy in bringing the court action.
The residents say the rezoning decision goes to the “heart of the matter” and must be set aside because many neighbours were simply not informed of the application and those who were, were not given sufficient detail, such as the nature and purpose of it.
Advocate Kemp J Kemp, who represents some of the residents, said in his written argument that this was a “fundamental procedural defect”.
“The rezoning greatly increased the volume of the permissible building… and speculation as to whether some people knew what was intended or what would have happened if proper notice was given, cannot detract from this.”
He said in this specific case, this issue was more significant because the intended rezoning was a “radical departure” from the norm in the area, with evidence that this was the first high-density zoning on Durban’s Berea.
“The initial building plans (approved in August 2010) allayed fears because they depicted a four-storey development in keeping with the area.
“The root cause of the problem was the rezoning. And the residents only became aware of the enormity of the problem at the end of June last year,” Kemp said.
He said this was when the majority of residents became aware of the rezoning and the “deviation plan” approval.
He said the constitution gave the court a discretion in determining an appropriate remedy.
In this case, if there was a declaration of invalidity, it should invite all affected parties to make representations on the issue for consideration at a future hearing.
In spite of the concession, the city still maintains that its decision to rezone was taken rationally by the full council and the plan approvals were lawful.
“The rezoning was not just a rubber stamp. It was taken after debate and a vote. It was a democratic process,” Pammenter said.
“The court should be slow in intervening in these matters and wary of entering into an orgy of judicial law making.
“We all have to live with unpopular decisions taken by elected officials… the decision was taken against the backdrop of the city’s integrated development plan, which promotes densification to curb urban sprawl.
“Subjectively, the residents may not like it, but others feel differently,” he said.
In her written argument, advocate Anna Annandale, for Serengeti, said the rezoning and plan approvals were lawful but should “a contrary finding be reached”, the court should not issue a demolition order but rather order an “appropriate reduction” in the rateable value of the neighbours’ properties.