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Tuesday Feb 26, 2013

Municipalities fight for environmental say on private properties

Urban environmental planners have won the first round of a bruising battle to decide if cities and municipalities have the legal right to protect sensitive environments from private property developers.

In a landmark decision by Judge Shyam Gyanda, the Pietermaritzburg High Court ruled that municipalities have a clear legal mandate to promote "ecologically sustainable development" and to pass laws and regulations dealing with environmental planning.

But the battle is almost certain to end up in the Constitutional Court as a test case which has implications for developers and property owners across the country.

The Cape Town City Council has already joined the battle in support of the eThekwini Municipality because it also has new planning regulations to restrict development and protect threatened environments of the Cape Peninsula.

The court challenge was mounted last year by Durban businessman and property developer Rob le Sueur, whose lawyers argued that it was unconstitutional for municipalities to regulate on environmental matters, as this legal power only belonged to the national and provincial government.

Judge Gyanda rejected this argument in a judgment this month.

Le Sueur, who also has interests in the Nambiti Private Game Reserve and Le Sueur Cheetah and Wildlife Centre near Ladysmith, argued the eThekwini Municipality was overreaching its legal powers by trying to micro-manage environmental issues on private property.

Recent attempts by the municipality to rezone and restrict development on 1 800 Durban properties were tantamount to a deprivation of private property rights and could also be seen as an attempt to expropriate private property by stealth.

The legal challenge was prompted by eThekwini's efforts to protect sensitive environmental areas in the city through changes to the Durban Metropolitan Open Space System along with a new "split-zoning" scheme that restricts development on properties deemed to have critical conservation value.

The most recent changes to the scheme could also impose some restrictions on another 18 000 properties throughout Ethekwini.

The new split-zoning proposal divides certain properties into a residential zone, a conservation zone or a reserve and restricts owners from building on the property. Le Sueur and his family trust, as owners of three 8 000m2 properties in Everton, argued some restrictions amounted to a prohibition on land development, the excavation or levelling of a site or the removal of natural vegetation without the consent of the municipality.

His attorney, Richard Evans, said while several of his clients were aware of the need to protect the environment, they objected to eThekwini's "dictatorial" attitude.

Instead of engaging with those affected by the split-zoning plan, residents received notices in the post in March 2010. As a result several residents had objected on the basis that the new "conservation zones" on their property already contained infestations of alien blue gum trees, horse paddocks, tennis courts or swimming pools.

People who had bought land in expectation of developing up to five houses on 8 000m2 stands might end up battling to put up a single house.

But the eThekwini Municipality and the City of Cape Town mounted a vigorous challenge against Le Sueur. Debra Roberts, head of the city's Environmental Planning and Climate Protection Department, told the court that "far from being an elitist concern" the protection of the natural environment around Durban provided free and critical benefits to human communities such as clean water, air, soil, flood protection, food, shelter and energy.

Former eThekwini town planner, John Forbes, said there had been an evolution in thinking over the decades. City design in the 1960s left mainly engineers to "scar the landscape and city", but environmental considerations were now part of mainstream town planning.

Susan Mosdell, manager of Cape Town's property, environmental and planning law unit, said her city had a direct and substantial interest in the outcome of the case as it could had far-reaching impacts on Cape Town's green policies, plans and zoning laws.

Le Sueur's legal team has applied for leave to appeal and intends to contest the ruling in the Supreme Court of Appeal, and Constitutional Court if necessary.

Pretoria News

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