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Monday Jan 20, 2014

Property developer 'copyrights' plans to prevent insight by neighbours

Neighbours of an almost completed residential building in Morningside, Durban - who secured a high court interdict stopping further construction pending a judicial review of the city's approval of building plans - are going back to court this week to try to force the city to give them copies of the plans.

The building under construction in Montpelier Road.

The case - in which the city claims the plans are 'copyrighted' and it cannot copy them or distribute them - could affect the rights of litigants in other similar matters.

The developers of the Montpelier Road building, the Sayed Family Trust, have dug in their heels, saying the plans are not for 'public consumption' and they have no intention of releasing them.

The neighbouring objectors, including attorneys Shahir Ramdass and Dave McNaught, brought an urgent application before Durban High Court Judge Rashid Vahed last year, successfully stopping further construction on the multistorey building, which they labelled a 'monstrosity' that was impeding their views.

They claimed most of it had been built before plans were approved in September, despite stop work notices being issued.

Judge Vahed ordered that all construction - bar that necessary for the structural integrity of the building - cease immediately.

He also set dates for the filing of papers in the review application, to be heard in March, and ordered the city to give the applicants the record relating to its decision-making by the end of November.

But this has not happened, according to Ramdass in his latest court application, to be heard tomorrow. He argues that plans are the 'very foundation of the matter', and without proper access to them he and his fellow objectors have been unable to file their papers for the review.

Ramdass alleges the city's refusal to give him the plans predates the interdict application with no fewer than five written requests for them being rebuffed.

They were also not provided following an application in terms of the Promotion of Access to Information Act.

He said following Judge Vahed's order, the city had delivered documents it deemed to be the 'record' of the decision, but again without the plans because they were 'copyright protected'.

The city's attorneys said they could only be viewed at the municipality offices.

Ramdass then tried to get consent from the developers, asking what prejudice there could possibly be.

The response was: 'Regarding the question of prejudice, please understand that the respondents are not burdened with the responsibility of assisting the applicants with their case.'

Ramdass alleged the city was 'bound by law' to deliver the full record. He added that the Copyright Act did not apply because there was an exception for 'work for judicial purposes'.

While Ramdass's expert had been able to look at the plans in the municipal offices, he said it was compromising his ability to properly study them 'while the respondents looked over his shoulder'.

But attorneys for the developers, in correspondence attached to the court papers, say the expert has had adequate time, on at least three occasions, to study the document 'which is only a few pages'.

They say the plans are not for public consumption and that no one may release them.

They accuse the objectors of using this as a 'red herring', in an attempt to excuse the fact that they have not filed papers on time.

This was not true, said Ramdass, adding that the city was, in effect, in contempt of court and this was being 'aided and abetted' by the developers. 'Their conduct is obstructionist, unjustified and plainly illegal,' he alleged.

Kay Naidoo, the managing director of law firm Livingston Leandy, who is a town planning specialist, commented that the issues raised in the case had been 'crying out for our courts to deal with decisively'.

'There is no question that the approved plans form the pivotal part of the record of proceedings. I believe that the entitlement of the neighbour and the high court to have access to the approved plans will trump the argument of copyright restriction.

'This is an important issue that hopefully the court will ultimately pronounce upon. A dispute like this could ultimately attract the attention of the Supreme Court of Appeal,' said Naidoo.

The Mercury


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