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Thursday May 22, 2014

Too late to object to building, court says

Property owners complaining that an almost completed block of flats in Montpelier Road, Morningside, Durban, is blocking their sea view and pushing down their property values, should have opposed the rezoning of the property in the first place.

The property under construction in Montpelier Rd, Durban.

This was the view of Durban High Court Judge Johan Ploos van Amstel, who said case law on these issues was clear: that a prospective buyer, when looking at property next to a vacant lot, must contemplate what could be built there and factor that into the price they were prepared to pay.

'If someone has a right to build a block of flats, even if it blocks a view, then it is their right,' he said.

'You cannot put up evidence of valuers or estate agents to say once there was a beautiful view and now there is not. That is not the law.'

The judge was hearing an application for a review of the eThekwini Municipality's decision to approve building plans for the block at 263 Montpelier Road in September, when the building was almost complete.

Attorney Shahir Ramdass, through his family trust, took the matter to court, getting an interdict against the developers, the Sayed Family Trust, stopping any further construction pending the review application. In the application he claimed that not only was the building a 'monstrosity' which was not in keeping with the general neighbourhood, but the approved plans were in conflict with the town planning scheme and building regulations and should never have been approved.

Advocate Murray Pitman, for the Ramdass Trust, conceded that by law the municipality did not have to consult with neighbours when considering building plans. But he said this offer had been made and the city had then approved the plans before any meaningful consultation and without giving the objecters proper access to the proposed plans.

He said the deviations from the scheme included coverage in excess of the 40 percent permissible, if one took into account the overhanging roof. He also claimed there were contraventions regarding the building line, with an underground tomb planned within the 7.5m restricted area, 'although the municipality claims this does not fall foul because it is part of the stormwater system'.

With regards to the side spaces of 3.6m, a generator, 'an immovable structure', had been planned for one side.

He said there was a 'great deal of suspicion' regarding the information available to municipal officials at the time of approval of the plans with regards to the impact on the general amenity of the area.

'This building, with its type of roof, its immediate abutment (to neighbours) and its being squeezed on to the site, is not in keeping with the area,' he said, arguing that if this was a dispute of fact, the court should do an inspection.

He said when most of the neighbours bought their properties, there was a single house on the plot. They were not aware of the rezoning application when it was made.

Advocate Peter Rowan, for the city, conceded that he had been unable to obtain a copy of the town planning scheme as applicable in September and that it was the city's responsibility to provide it.

He claimed that Ramdass was 'nitpicking' and the only criteria for granting the review was if it could be shown that the decision taken to approve the plans was not reasonable or rational.

Advocate Glen Goddard, for the Sayed Trust, said in papers before the court that the issues raised were 'miscellaneous'.

'The objecters have ignored the development rights of the property. The development will not cause a substantial derogation of their property values.'

Judgment was reserved.

The Mercury

    
 

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