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Thursday Dec 05, 2013

Property owners win costs in warehouse case

Residents of the Mount Edgecombe golf estate were legally entitled to bring an urgent interdict application to stop the construction, without plans, of an 'eyesore' warehouse, and were entitled to claim the legal costs from the development company.

This was the recent ruling of Durban High Court Judge Jacqui Henriques in the matter between the Mount Edgecombe Country Estate Management Association 2 and Moss Ridge Properties.

The matter was unusual. No order was ever granted because, on the day it came to court in July, the company gave an undertaking to stop work until its plans were approved.

The company extended this undertaking from time to time, until the plans were eventually approved in August, rendering the application academic.

The legal tab then became the central issue between the parties, the residents arguing they were entitled to their costs but the company saying they should not have gone to court in the first place.

The matter was argued before Judge Henriques in October.

In her ruling, Judge Henriques said the merits of the application for the interim interdict, 'and if the applicants had made out a case for the relief ', had to be dealt with.

She said it was evident that planning approval had not been obtained when construction of the warehouse started and that the city had issued stop-work notices.

The residents had formally objected to the proposed warehouse development, saying it would not fit in with the area, and did not want construction to continue making these objections ineffective.

Before going to court, the residents had asked for an undertaking to stop work, but the company had refused to give this until faced with the application in court. The judge said she did not agree with submissions by the company that the application was an 'exercise in futility' because the plans were subsequently approved.

She said correspondence between the company and the city showed that the plans and proposed structure did not comply with national building regulations and there were legitimate concerns.

It also could not be disputed that the final approved plans were different from those originally submitted.

'The residents' association would have been presented with a fait accompli had it not instituted the action; it is ludicrous to suggest that the association ought not to have stopped further construction works and rather be met with a fait accompli and then seek a demolition order,' the judge said, ordering the company to pay the costs of the application.

The Mercury


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