09 Sep 2015

Precedent-setting ruling will affect the future conduct of developers

By the Conveyancing & Property and Local Government Teams

On 29 June 2015, the Kwa-Zulu Natal High Court handed down judgment in Aboobaker N.O and Others v Serengeti Rise Body Corporate and Another.  Judge Esther Steyn ordered most of a nearly completed, 60 million rand, and nine-story luxury block of flats in Berea be torn down.  The order makes demolition of the whole building inevitable as the demolition as ordered by the court includes five of the nine stories as well as the boundaries of the building.

The court ruled that the when the developers submitted building plans for rezoning, they had not complied with the relevant provisions of the applicable law when it submitted building plans for rezoning of the land.  Property owners of the adjacent properties were not properly notified of the proposed rezoning as required by Section 74 of the Town Planning Ordinance No. 27 of 1949.  The court stated that Municipality was also to blame because it did not ensure that the applicable law had been complied with.

The court application was brought by the affected property owners (against Serengeti Rise Body Corporate) who stated that they had not been aware of the proposed rezoning application and the specifics of the rezoning. The proposed rezoning was to rezone the land from General Residential 1 to General Residential 5.  The residents argued that the high-rise blocked their views and had devalued their properties.  The developers had initially sent a plan to the city for a four-storey development which had been approved.  They later submitted building plans rezoning of the site to accommodate a nine-storey block of flats.  Unknown to most people in the area, the municipality approved this rezoning from GR1 (like the rest of the suburb) to GR5 (the only zoning in the area other than the high-rise beachfront areas).  The court found that the approval of the second building plans to be unlawful and ordered that the part of the building structure which fell outside the scope of building plans for GR1 zoning be demolished and not the entire building structure.

The court relied on the judgment of Ndlambe Municipality v Lester and Others where Matthew Lester was ordered to demolish his R8m mansion in Kenton-on-Sea because he had built it without approved plans

The developer argued that since it had merely followed the Municipality's notification process it should not be penalised.  The court held that the developers had to strictly adhere to the applicable law and that the Municipality had a duty to ensure that there was sufficient compliance by the Developer.  The municipality shifted the blame on one Municipal Official for making an error in the approval of the plans without following proper due process.  The court rejected argument because in its own papers the Municipality stated that the rezoning was approved by a majority of council after three departments had looked at it.

The Municipality and Serengeti have applied for leave to appeal against the decision.  The Municipality's application for leave to appeal was contrary to its undertaking in the main application to abide by the court’s ruling.  The municipality defended itself by saying it agreed to abide by the court’s decision about the rezoning but not the order to tear the 5 stories down. The appeal has been heard and Durban High Court Judge Esther Steyn granted the developer, Serengeti Rise Industries, and the eThekwini Municipality, leave to appeal against her ruling to demolish part of the building.