Court to rule on demolition of Berea apartment building

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03-10-2016
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IOL Property
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It's crunch time in the legal battle over the controversial R61 million luxury flat development on Durban's Berea.

The issue of whether the building can stay or must be demolished is to be heard by the Supreme Court of Appeal next month.

Judges of the Bloemfontein court will have to decide whether or not to uphold last year's judgment of Durban High Court Judge Esther Steyn, in which she found that public notice rules had been flouted and subsequent rezoning of the Currie Road site was unlawful.

While she ordered the partial demolition of the almost-completed building, if the appeal court finds this to be correct practically it will mean the entire nine-storey development will have to be taken down because the alleged illegality relates not only to the height of the building but its "boundary to boundary" footprint on the site.

The outcome of the appeal will not only have significance for Durban residents and how the city does business with property developers; it will have a national impact, because it will put flesh on a previous ruling by the same court in which it found that a luxury house built illegally and without the necessary approval in the Eastern Cape had to be demolished.

The Currie Road matter is different, the developers Serengeti Rise argue, because it had municipal approval for the rezoning of the site from General Residential One - which permitted a four-storey development with usual side, front and rear spacing - to General Residential Five, which permitted what neighbours called a nine-storey "monstrosity" looming large over their properties and blocking views and sunshine.

It also differs because the eThekwini Municipality belatedly admitted neighbours had not been given proper notice of the intended rezoning, usually reserved for high-density areas such as the city centre and the beachfront, and the first of its kind on the Berea.

In heads of argument filed with the Supreme Court of Appeal, Serengeti says it gave notice of intended rezoning in terms of instructions issued by municipal officials and had "substantially complied" with what was required by the ordinance. Judge Steyn erred because she should have referred the application to the municipality for reconsideration.

"One possible outcome is that having cured the defects in the rezoning process, the municipality may again approve both the rezoning and the building plan. The absence of wrongful conduct on the part of Serengeti, which acted in good faith on the strength of approvals it had and the R61 million already spent on building, was not given adequate regard.

"Neither was the fact that the demolition order granted will have the effect that the entire building will have to be demolished. Not every slip of the administration of rezoning should be visited by judicial sanction,' the company argued.

The municipality, in its written submission, labelled the demolition order "the most invasive and draconian remedy possible". It said Judge Steyn had not used her discretion and had ignored "most strikingly the consequences of her order on Serengeti and the public who had invested in the building".

But lawyers for a neighbour, advocate Tayob Aboobaker - who has led the legal charge - say while the company and the city were trying to paint a picture that they were virtuous, "they have conducted themselves in a clandestine manner with scant regard to the trammelled rights of neighbours".

They say the foundations of the building, laid long before the rezoning was finalised, were well in excess of what was permitted at that time, a four-storey development complying with GR 1.

As to the suggestion that the rezoning issue be referred back for reconsideration, the neighbours say there are strong indications this would be not be done fairly or in an unbiased way. The matter will be argued on November 1.