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Wednesday Feb 22, 2012

Court orders demolition of Ballito beachfront promenade

The high court has lambasted the Kwadukuza (Stanger) municipality for its "shocking and flagrant violation" of environmental laws and property rights and ordered that a large chunk of the new Ballito beachfront promenade be demolished within 14 days.

View of a section of the Ballito beachfront promenade.

The 4km promenade and beach restoration project cost nearly R33 million in 2009, after the old promenade was smashed by a violent storm which devastated sections of the coastline in March 2007.

Several Ballito property owners, represented by attorney Norman Brauteseth, argued that parts of the new promenade were illegally built on their property and threatened the long-term stability of the protective seafront dune and their property.

Unless the municipality lodges an appeal, the judgment means a 350m section of the promenade, costing at least R4m, will have to be torn down. The ruling also opens the door for other property owners to challenge the legality of other sections of the promenade, and there is a strong possibility that the municipality will have to pay a hefty fine for ignoring environmental laws.

In addition to the demolition order and punitive legal costs, Durban High Court Judge Dhaya Pillay requested that the auditor-general and state attorney consider investigating who was responsible for the "mismanagement of the environment and squandering of public funds", along with possible charges of criminal misconduct.

She found that the municipality had acted unlawfully by building parts of the promenade without environmental authorisation and had refused to accept the advice of its own environmental expert three times.

In this case, she said, the municipality's reason for constructing the promenade without proper authorisation was public pressure for such a facility, not because there was an emergency. "Public pressure and tourism are not compelling reasons to excuse the municipality's conduct. Public pressure can hardly ever be a basis for commencing or continuing a listed environmental activity unlawfully. Nor can the socioeconomic benefits of tourism. The environment, if damaged irreversibly, will be lost for ever."

The judge said while she was not able to make a ruling on allegations that beachfront property owners had been "bullied" by engineers acting for the municipality, it was clear there had been "flagrant, repeated and continuing breach of the law", and it seemed municipal representatives had also acted surreptitiously and suspiciously to persuade some property owners to approve the project.

When the body corporate of the Dolphin Cove development went to court to challenge parts of the project, the municipality denied that it had encroached on their property, said it had lodged an application to "correct" its unlawful activity and was waiting for a decision by the Environmental Affairs Department.

The municipality maintained the promenade was a public facility constructed following public demand after extensive public participation to provide necessary access to the beach.

Judge Pillay noted that the matter was complicated because the old high-water mark had moved because of the storm. However, even the municipality's legal counsel had conceded that the promenade "appears to encroach slightly" on the Dolphin Cove property. And if a diagram from a survey done in 1975 was used, it would show that the entire promenade encroached into Dolphin Cove.

Judge Pillay said although permission was sought for the entire promenade, the environment department had not authorised the section in front of Dolphin Cove, while the municipality's own environmental expert, Simon Bundy, had also raised concerns about adverse environmental impacts.

In March 2010, the department informed the municipality that the promenade had been built in breach of environmental assessment conditions, yet more than eight months later the department had not taken any action against the municipality, notwithstanding its power to lay criminal charges and impose substantial fines.

Before the unlawful activity could be rectified, the municipality had to pay an administrative fine not exceeding R1m. The judge said Kwadukuza could be liable to a further fine not exceeding R5m.

"As an organ of state and the third tier of government, it is shocking that it disregards not only the law and the rights of individual property owners, but also the advice of its own expert, Mr Bundy."

Judge Pillay was satisfied that a punitive legal costs order was justified, but she lamented the fact that these costs would ultimately come from public coffers.

"Instead, the persons responsible for the mismanagement of the environment and squandering of public funds to defend criminal conduct should be held accountable."

She ordered that her judgment be served on the state attorney and the auditor-general "to investigate whether the cost of this litigation amounts to the sort of irregular, fruitless and wasteful expenditure" disallowed by the Municipal Finance Management Act.

Kwadukuza spokesman Sifiso Zulu said the municipality's legal section was still studying the judgment and would later advise the council of the outcome of the case and further action that might be taken.

The Mercury


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