Interview with Fatima Rodrigues
An approximately R60 million residential block known as Serengeti Rise, located in the Durban suburb of Berea, may soon have to be demolished following a landmark legal decision. The planning process for Serengeti Rise commenced in 2009 and construction was completed during 2014 - but the four storey building that the residents in the adjacent and surrounding properties were expecting, turned out to be a nine storey tower block that dwarfs the other properties in the neighbourhood, obstructs views and violates the privacy of the neighbours.
These issues are really the results of a problem which seems to be occurring with increasing regularity - one which is the crux of this case - and that is the failure of local authorities to go through the correct processes and channels when granting approvals for zonings, rezoning and building plans. Fatima Rodrigues, director at Fluxmans Attorneys, gave Asset some insight into the details of the case and the reasons why the judge's decision is so important.
The history of the case is as follows. In January 2009, the developer of Serengeti Rise purchased the site on which the building was to be erected. They submitted a building plan for approval to the local authority in March 2010, but subsequently with drew it in June 2010. A second plan was submitted in May 2010, which was approved in August 2010. The original approved plan provided for a four storey building - but the one that was built is nine storeys. After application, the site was rezoned in December 2011 from General Residential 1 to General Residential 5. The developer then submitted a deviation plan which sought to increase the bulk of the building on the site from 1,800 square metres to 9,786 square metres. This deviation plan was approved by the local authority in February 2014.
A group of concerned local residents, in an uncommonly brave move, decided to challenge the legality of the process which has compromised their neighbourhood. They applied to the court to review the decision of the local authority to grant the rezoning request and to approve the building plans for Serengeti Rise. Their contention, which the judge upheld, was that the deviation plan for the building was submitted before the rezoning application had been approved. Worse still, the application for rezoning had not been properly carried out.
When seeking to rezone a property, the proper process as required by the law is for the party seeking the rezoning to notify all interested and affected parties (by means of hand delivered notices) and to erect a sign on the site concerned stating that it has applied to rezone the site, and from which category to which. In this case, while the first plan submitted complied with the lower bulk requirements for a General Residential 1 zoned site, the deviation plan exceeded the allowable bulk, making it necessary to rezone the site to General Residential 5. However, due process requires that the rezoning application be carried out and approved first, before the deviation plan can be approved.
"In essence, one cannot say that it is sufficient to have approved building plans only - because the approval of building plans should be on the basis that the rezoning has first given one the rights to erect that building," explained Fatima Rodrigues. "One cannot have a building plan approval divorced from the rights which attach to the land on which it is to be built. In addition, proper notices have to be given to all neighbours in terms of the applicable town planning ordinance." She added that the notices that were delivered to the affected neighbours were defective in that they did not clearly state which zoning category the developers wished to change it from, and to what they wished to change it. Furthermore, no public notices were posted on the property. The judge in the case held that this did not constitute sufficient notice in terms of the ordinances.
The judgment, which was handed down at the end of June this year, states that the portion of the building which does not comply with the law must be demolished - essentially the upper five storeys. However, it is going to be very difficult to demolish only this part of the building, and it is most likely that the entire building will have to be demolished. The developers have applied for permission to appeal against the judgement, but at the moment a demolition order exists for the top half of the structure.
"This judgement, which is very well reasoned and lucid, sends out a message to developers as well as to officials at local authorities that they need to abide by the law and its processes," says Fatima Rodrigues. "Building plans cannot be approved in isolation without the correct zoning being in place - they must be considered in the context of the particular property's zoning rights," she said. Zonings exist to ensure that building uses in a neighbourhood complement each other, don't put people at risk and don't compromise property values.
Although it is the property developer who will most likely bear the brunt of this judgment, it is important to note that the local authority was clearly just as much at fault in this case. While not every case is as significant as this one in the sense that Serengeti Rise clearly does not belong in the context of its neighbourhood, Fatima pointed out that irregularities like those that took place in this instance are commonplace across South Africa. "The only reason why they are not challenged more often is because many people don't have the money or do not want to spend the money to go to court," she noted.
She added that the problem is not with the law itself - we have very clear laws in place. The problem is that sometimes developers and property owners as well as local authorities are taking chances by not following due process, and no one is enforcing the rule of law. While one does understand that a commercial developer incurs costs for every day that they hold a piece of land and cannot generate a return from it, this does not entitle them to circumvent due process. There are far less excusable instances - like residential property owners not respecting building lines, or putting windows in walls that are right on boundary lines. And for whatever reason, building inspectors are not holding any of these parties to account.
While the applicants in the case of Serengeti Rise have had to find the money one way or another to fund the costs of taking this case to court, so far it has been in their favour to do so. Should the developer's request for an appeal be denied, they and the eThekwini Municipality will have to cover the taxed legal costs of the Berea ratepayers as well as the costs of demolishing the building.
The fact that it is always within the rights of a local authority, or a court if necessary, to issue a demolition order for any building for which due process has not been followed, is a clear warning - particularly to developers - that the consequences of taking a chance can be disastrous. Local authorities are also not exempt from scrutiny in cases like this one. It is not clear exactly why there was an irregularity in the sequence in which the applications were made to the local authority and the approvals given, but that fact remains that it was irregular - and such irregularities need to be investigated by the authorities and the law enforced.
"There have been demolition orders issued in the past, but never in respect of a structure of this kind of size and value," Fatima Rodrigues pointed out."This is a particularly interesting case because it is a very clear indication that a court - given the right circumstances, where the law has clearly not been followed - will issue a demolition order."
