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Thursday Feb 06, 2014

11-year battle over panoramic sea views at Concourt

An 11-year battle between a B&B owner and the Hibiscus Coast municipality over a panoramic sea view on the KwaZulu-Natal South Coast reached the Constitutional Court yesterday.

Trevor Turnbull-Jackson, the owner of the Beachcomber Bay lodge in Shelly Beach, has taken his fight to the highest court in the land after the Pietermaritzburg Hight Court dismissed in 2011 his application to review and set aside the Hibiscus Coast municipality's decision to approve building plans submitted by Pearl Star Investments 14 CC.

Turnbull-Jackson and Pearl Star Investments own land next to each other in Margate.

Arguments were presented before the Constitutional Court yesterday that the development impinged on Turnbull-Jackson's sea views and privacy and affected his property value.

The dispute over the development first started around 2003 when Pearl Star Investments applied to construct a six-storey block of flats.

According to heads of argument submitted on behalf of Turnbull-Jackson, the municipality approved the plans in February 2004 but the approval was set aside on appeal.

Meanwhile, the developers had started building the flats and Turnbull-Jackson asked the court to halt construction.

In 2005 it is alleged that the development company lodged further plans to construct two blocks of three-storey flats and sought to incorporate the existing structure on the site.

The municipality approved the plans in July 2005, and Turnbull-Jackson immediately appealed on various grounds, including that the municipal building control officer was not properly qualified or correctly appointed, and that the flats would be unsightly, affect other homeowners' views and privacy and diminish the value of his property by up to 30 percent.

Turnbull-Jackson went to court to interdict the developer from continuing with the construction pending the outcome of the legal proceedings.

In November 2006, Pearl Star Investments allegedly lodged fresh plans with the municipality, which were approved on November 20, 2007.

Turnbull-Jackson again appealed, but lost.

He took the matter to the Supreme Court of Appeal, where he was unsuccessful.

At the Constitutional Court, Turnbull-Jackson based his appeal on the same grounds, but also challenged the impartiality of the building control officer and the officer's alleged failure to adhere to provisions of the National Building Regulations and Building Standards Act.

It was also argued that he was deprived of an opportunity to make representations before the plans were approved, that it was unclear who must prove the presence or absence of disqualifying factors in terms of the Building Standards Act.

The municipality argues that the approval in this case complies with the law.

It acknowledges potential uncertainty as to who must prove the disqualifying factors, but argues that this makes no difference and that the appeal should still be dismissed.

Judgment has been reserved.

Daily News


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