Phoenix residents say ‘no’ to open space development

PHOENIX civic groups have roundly condemned the eThekwini Municipality’s decision to hand over a greenbelt spanning more than 6 000 square metres to developers for a supposedly “affordable” housing project.

The groups have documented their suspicions and concerns about the building project that began in June on a designated Durban Metropolitan Open Space System (D’Moss) in an application brought before the Durban High Court, last month.

They believe this is another example of the municipality’s disregard for their rights by dishing out open spaces in Phoenix to developers, to the detriment of locals.

Apart from disregarding the biodiversity of the D’Moss area, the applicants doubted the validity of the approved building plans for the development on the corners of JG Champion and Viewhaven Drives because residents were never consulted about the project, which they claim was a denial of their legal and constitutional right.

There was also no environmental impact assessment done, which was “procedurally” unfair and unlawful as it was a public asset and the sanctity of the area would be snuffed out, and negatively impact residents.

Building in the D’Moss without the necessary checks and balances in place was ultimately a contravention by the municipality of its own by-laws, they claimed.

The applicants in the court battle, represented by advocate Kuben Samie, were the Woodview Ratepayers Association, Phoenix Tenants and Residents Association, Phoenix Civic Association, Phoenix Civic and Ratepayer Association and the Grove-End and Stanmore Ratepayers and Residents Association.

Among the eight respondents were the eThekwini Municipality, City Manager (Musa Mbhele), and Praveen Choonilall, the developer and his construction company.

The respondents confirmed their opposition to the action against them on Thursday and their responses will follow.

Cameron Wilson from law firm Shepstone and Wylie, the developer’s legal representative, said his client's case was “supported by documentation that proves a valid process was complied with”, while the applicants’ claims were “mired in conjecture”.

The municipality did not respond.

In their two-fold action, the applicants asked the court to first interdict and restrain the construction work, selling off the property or its rezoning from its current classification of “special residential”.

Then to declare the action by the municipality to approve the building application, granted in February, unlawful, order the demolition of the building and other structures erected, and rehabilitate the site.

The chairperson of the Woodview Ratepayers Association, Thieyargasen (Theo) Pillay, in an affidavit submitted said they had engaged an environmental expert, Novashini Moodley, to establish the impact of the development.

Moodley reported that the development contravened the National Environmental Management Act, and the National Water Act as there was a water course in the D’Moss.

She indicated that there was “no evidence of publicly available environmental studies that were undertaken to understand the potential environmental impacts”.

“The loss of open space is rated a high negative impact,” according to Moodley’s report.

Pillay said he was informed by another resident that a grader was working on-site on June 6 and they were able to stop the development.

The work continued the next day. On this occasion Moodley was joined by the local ward councillor, Lyndal Singh, and a SAPS member and engaged with Choonilall.

A day later, while at the site with a police officer present, Pillay claimed that a group of 15 men had threatened them, and they were told “there was nothing we could do to stop them”, and they were going to build a pharmacy.

Pillay said Singh provided him with a copy of the “approved building plans” for the development later in June.

A letter from Wilson followed, which confirmed that his client was authorised to develop the property and threatened legal action if they disrupted or made disparaging comments.

He then received a letter from Sbu Ndebele, a municipal official, who confirmed that the building plan had been approved and endorsed by their various departments.

Around the same time, Pillay said, they received correspondence from another municipal official, Mkhomazi Sibisi, indicating that the development was a part of the “Phoenix Infill Housing Project”, which was initiated in 2000, for middle-income earners.

The developers were appointed in 2000/02 and were allocated this and other sites to develop.

Pillay said Samie requested that the building work cease and copies for the certification documents from the municipality and Wilson, but did not receive them, which necessitated the court action they had embarked upon.

He affirmed that “at no stage” was the general public informed that open space would be developed on, that there was an opportunity to apply and become beneficiaries of the infill housing programme, or any tender opportunities for the project.

Pillay disputed that the entire development was a legitimate housing project.

He said the wide-scale and uncontrolled development of vacant land in Phoenix had become a “bone of contention for a number of years”.

Pillay said the application was brought on behalf of the wider community of Phoenix, whose constitutional rights were being infringed and to protect the environment.

He also said the project dynamics contravened various statutes, including the municipality’s planning and land use management by-law, Local Government Municipal Finance Management Act and the Promotion of Administrative Justice Act.

The municipality must now provide the evidence to justify their stance.

Wilson said they had engaged with the associations’ representative for some time to avoid litigation.

“My client has proof that all processes were complied with, including the necessary environmental impact assessments. We were not able to share this with the association via email as these impact assessments were paid for by my client and form part of his company’s intellectual property.

“We were willing to let them scrutinise the same, but this was declined.”

Wilson said in this instance the environmental impact assessment evidenced little impact and thus the application was granted.

“It is clear in their papers, the association is simply unhappy about this decision. They have no proof of any adverse environmental impacts, nor do they have any proof that the process was tainted or improper, despite them making various unfounded allegations.

“My client has been a Phoenix resident his entire life and played a large role in uplifting the community by providing housing, especially on vacant unused land that was either unkept or had become dangerous and rife with crime.”

Wilson said his client believed that the alleged view of the associations “does not reflect the people of Phoenix” and their allegations were unfounded and defamed him.