Property owners, courts take on illegal building
Property owners, tired of waiting for council officials to act against illegal developments, are increasingly turning to the courts, seeking high court orders to stop town planning and building infringements.
And judges - alarmed at what appears to an increase in defiance of the law in these matters - are taking a more robust approach.
In one matter in the Durban High Court on Friday, regarding the alleged illegal use of a residential property as a restaurant, acting Judge Peter Rowan suggested that the interim interdict, stopping trade, be strengthened to include that all signs advertising the business be removed immediately.
'They must be shut down and the signs must come down,' he said.
'They must be stopped from trading. The courts must take a harsh attitude towards these type of infringements. 'They are everywhere,' he said. A legal source, who did not want to be named, said the city had its own process and procedures for dealing with infringements which were timeconsuming and sometimes ineffectual.
This was evidenced by the recent disaster at the Tongaat shopping mall when workers were crushed to death in the collapse of a section.
It later emerged that the city had been trying to stop work because no building plans were ever submitted.
'If people can afford it, they are taking the matter into their own hands and going to the courts themselves,' the source said.
The case before Judge Rowan was brought by Clarence Road resident Sharyn Gow, who complained that her neighbours, on the corner of Clarence and Problem Mkhize (Cowey) Road, had turned the property into a business.
The property - owned by the Motala Family Trust - was zoned 'Maisonette', which allowed for 40 percent coverage with five-metre side and rear space restrictions.
She said on November 4 she noticed a large banner being erected on the fence advertising a business consisting of a 'bakery, coffee shop, deli and eatery'.
While the property had previously been used as offices - and she was unaware of whether special consent had been obtained for this - she now felt that this was 'completely contrary' to the residential nature of the area and would cause the value of her family home to plummet.
On investigation, she found that the property had been bought by the trust, which had entered into agreements to lease part of it to the restaurant, to be run by Farhaad Patel - and which would stay open until 11 every evening.
Another section would be used for an internet café and print shop and another as a confectionery business.
Gow said that she and her husband, Gavin, had served notices on all those involved, attempting to stop the businesses from opening, and had reported the matter to the city, 'but there was no indication if it would take action'.
The letters were ignored and trading began on November 15.
She said, apart from the zoning issue, the side space limits had not been adhered to and she had no idea if building regulations had been complied with.
'If they want to rezone, I will oppose it,' she said.
'The longer trading is permitted to continue, they (the owners and tenants) will say they have a vested right which cannot be disturbed.'
Gow said she would seek a punitive cost order against the trust because it had shown a 'total disregard for the law, had proceeded with defiance and reckless of the consequences'.
The judge granted an interim order, shutting the business with immediate effect but giving the respondents, who indicated they were opposing the application, until next Friday to file opposing papers.
Recently The Mercury reported on another matter in which neighbours went to court over an almost completed alleged 'illegal building' in Durban's Montpelier Road, claiming most of it was built illegally without plans.
Durban High Court Judge Rashid Vahed took a firm stand against the developers, stopping them from finishing construction, pending a review of the city's approval of their building plans, which was only given nine months after work began.
The developer, the Sayed Family Trust, were told they could only continue with work which the eThekwini Municipality deemed essential for safety reasons - including putting on a roof with guttering and completing a retaining wall.
The review will be heard in March.
- I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.Please visit our website at www.prop-law.co.za for more details.I am an elected Committee Member of the Property Committee of the Association of Pretoria Attorneys and through my involvement, I like to ensure that I am constantly at the "sharp-end" of Conveyancing Practice.
I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.
27 November 2013
I am a qualified Attorney. I specialise in Property Law, Commercial Law, Corporate Law and Trusts.
Please visit our website at www.prop-law.co.za for more details.
I am the elected Chairman on the Gauteng Council of SAPOA. The South African Property Owners Association (SAPOA) is the biggest and most influential institution in the property industry. SAPOA members control about 90% of commercial property in SA, with a combined portfolio in excess of R150 Billion (about $22 Billion). I am also on the National Council and the National Legal Committee of SAPOA.
Member of the Institute of Directors South Africa and Member of the Sirdar Governance Panel.