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Monday Sep 05, 2011

Appeal against Hayfields development

An appeal has been launched against a controversial decision by the Msunduzi Municipality to allow the development of a new shopping centre in the residential area, Hayfields, in Pietermaritzburg.

The decision to allow the development raised a storm of protest from residents who claimed due process was not followed, with the resolution being pushed through under doubtful circumstances while the municipality was under administration.

Their protests were taken up by a local environmental body, the Preservation of the Mkondeni Mpushini Biodiversity Trust, which - together with 23 objectors - have now put their case to the KwaZulu-Natal Planning and Development Appeal Tribunal.

A trustee of the environmental body, Nora Choveaux, has made much of the fact that the new shopping centre, housing a SuperSpar, would radically change the character of a closely-knit residential area of Hayfields' Mills Circle, where many family homes date back to the 1950s.

Choveaux said the main access to the area, which already includes the Hayfields Mall - directly across the road from the proposed new development - was along a narrow bridge along Blackburrow Road, over the N3 highway.

This traffic bottleneck, she said, would become far more congested, especially during peak hours, after the new centre came into operation.

She said she found the decision to approve the development on that site hard to comprehend, especially since there was ample land for it on the old caravan park alongside the existing mall, property already available and owned by the municipality.

Choveaux said there had originally been 67 written objections to the Mills Circle development, but some had been withdrawn when the authors were faced with the costs of the appeal. She and the remaining 23 objectors appointed environmental lawyer Jeremy Ridl, who claimed in his memorandum to the tribunal that the administrator was not competent to approve the development application on behalf of the municipality.

"The administrator failed to give due regard to the broader planning priorities of the municipality or the social and economic implications of the proposed development," he said. "The application should have been failed on its merits."

Ridl claimed the application was also procedurally flawed, "as a result of which the concerns of objectors were not properly captured or taken into account".

He said: "The administrator is not competent to take into account and evaluate the many objections and submissions made by objectors and experts during the course of the applicationÂ…

"The administrator ignored the objections to the application by the ward councillor for the affected area, the latter being far better placed than the administrator to determine the interests of the affected community."

Ridl said the potential loss of the special character of Mills Circle represented a significant threat to the municipality's long-term vision as a "city of choice".

He called for the decision of the administrator to be set aside and for the application to be referred back to the municipality for reconsideration.

The municipality should, he said, be ordered to hold a public meeting in accordance with the provisions of the KwaZulu-Natal Planning and Development Act. All the relevant documents should then be submitted to the relevant portfolio committee and the Executive Committee.

But his appeal to the tribunal was discounted as irrelevant by the developers' attorney, Paul Firman, who said his clients did not recognise "the appeal process nor the authority of the appeal tribunal".

He said in his memorandum: "The grant of the development application in the Hayfields Spar application is correct and was correctly dealt with and correctly granted."

Firman quoted precedents in which the Constitutional Court decided municipalities held "the functional area power of municipal planning to the exclusion of other spheres of government or organs of their making".

He said any appeal at a provincial level was a denial of this exclusive power and the provisions for it in the Planning and Development Act were therefore unconstitutional.

"The developer is therefore entitled to ignore the appeal process and continue to act in terms of the grant."

Firman said the appeal could also have been argued on its merits.

He did not believe the character of the area, which already had the large Hayfields Mall across the road, would be changed by the new development.

The developers had also conducted a traffic survey and it showed the access roads had enough spare capacity to cope with the additional load.

He said, however, that such arguments were not really relevant in the light of the lack of standing of the appeal process.

But this issue has yet to be decided, according to Ridl, who said the matter would be taken further.

He will now appeal to the developers not to start work on the Hayfields site before the procedural issues have been settled.

Sunday Tribune


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