High court review of R3.5bn Beachwood development land use approval fails

A high court review application related to land use approvals for the planned R3.5 billion residential estate on a 42-hectare property in Durban North on which the Beachwood Golf Course was previously laid out has failed.

The application was brought by the Friends of Beachwood, a voluntary association of individuals, organisations and non-government organisations in favour of retaining the land as a recreational amenity and open space available to the residents of the city of Durban and its visitors, and James Te Reile, who lives on the western boundary of the property.

Read: FNB funds R800m for R3.5bn Durban North coastal estate

They sought to review both the provincial and municipal decisions made in ultimate support of the development proposed by Beachwood Investments (Pty) Ltd, the developer.

The responsible administrators whose decisions were brought under review were the eThekwini Metropolitan Municipality, its Municipal Planning Tribunal, the municipality’s Executive Committee Appeals Authority, the KwaZulu-Natal (KZN) Department of Economic Development, Tourism and Environmental Affairs, and the KZN MEC for Economic Development, Tourism and Environmental Affairs.

At the time the Beachwood Golf Course property was bought, its development potential was obstructed by restrictive conditions of title and the fact that it was zoned as private open space.

It could not be used for much beyond what it had historically been used since the 1930s: a golf course with associated buildings and structures to accommodate a sporting club.

A road servitude also traversed the property to allow public access to the beach on its eastern boundary.

Much of the land is environmentally sensitive and development could not take place without environmental authorisation from the KZN provincial government and no plan of development could be implemented without municipal approval.

Ruling

Judge Peter Olsen, in a judgment handed down on Wednesday, among other things dismissed the application by the Friends of Beachwood and Te Reile for declaratory relief and to review and set aside the decisions of the municipal and provincial entities.

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Olsen concluded that they had provided no reasonable and acceptable explanation for their failure to launch judicial review proceedings against the provincial decisions on time.

He said condoning the delay would be substantially detrimental to the interests of Beachwood Development, which has proceeded with the works depending not only on the validity of the municipal decisions, but also on the validity of the environmental authorisation granted by the province.

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Olsen added that affected parties are entitled to rely on the finality of unchallenged administrative decisions, and accordingly finds that the delay cannot be condoned and the application to review the decisions of the provincial respondents must accordingly fail.

Development application submitted in 2022

Beachwood Development submitted a combined land development application to the eThekwini municipality on 31 October 2022 related to the proposed development of the northern portion of the Beachwood property.

Olsen said in the event of the municipality supporting the development, it was necessary for certain particular or special decisions to be made which would permit the implementation of the development plan to take place in accordance with law.

He said the applicants were seeking an order reviewing and setting aside eight such decisions.

“The grant of such relief will mean that the development cannot proceed any further.”

Olsen said one of the decisions sought to be reviewed is the amendment by the municipality of its Land Use Scheme to introduce a new zone to be called “Special Zone: Beachwood Coastal Estate”.

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He said only the municipal council had the authority to make that decision, with the remaining decisions made by the Municipal Planning Tribunal.

Olsen said the practice of using such restrictive conditions to create enforceable restrictions has fallen into relative disuse as a result of the gradual realisation of the goal of bringing all land use within the framework of a land use scheme.

He added that in terms of a section of the Spatial Planning and Land Use Management Act (Spluma), municipal planning tribunals have the power of removing, amending or suspending restrictive conditions title.

‘No evidence’

Olsen said the Friends of Beachwood and Te Reile claimed the Municipal Planning Tribunal decision to set aside the special conditions was unlawful.

However, he said the Friends of Beachwood and Te Reile failed to make a case for the review of the municipal planning decisions on the basis that inadequate attention had been paid to matters of sewerage, stormwater, roads and roads infrastructure.

“All they submitted, in effect, was a statement of what they considered to have been the proper outcome on these issues, without any evidence upon which to support their conclusion, or to support a conclusion that insufficient attention had been paid to these subjects by the municipality.”

Not ‘unconstitutional’

The Friends of Beachwood and Te Reile also made a series of submissions aimed at a finding that the existence of the process of identifying catalytic properties is unconstitutional, and for that reason all decisions made are reviewed and set aside.

However, Olsen said catalytic projects within the municipality are required to comply with the same planning procedures and processes as any other development projects.

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Olsen added that there is no evidence that the classification of the Beachwood property as a catalytic property or development affected the administrative adjudication of Beachwood Development’s development plan.

He said in his view the position adopted by the Friends of Beachwood and Te Reile really amounts to a contention that it is unlawful for the municipality to make policy decisions with regard to development issues while, in terms of The Constitution, it is an object of local government to “promote social and economic development”.

Olsen said the existence of policies to further the achievement of those goals is a necessary feature of government and when a development application such as that submitted by Beachwood Development is presented to the municipality, policy gives way to the provisions of the law which govern the assessment and processes engaged by the application.

“If it is believed that policy, and not law, has guided the grant or refusal of such an application, then evidence of that must be provided, and if the belief is well founded it may be evident in the reasons given for the decision, such as for instance, the fact that the administrator took into account irrelevant considerations, or ignored relevant ones.

“No such case has been made out,” he said.

Olsen ruled that the relief sought by the Friends of Beachwood and Te Reile with regard to catalytic projects must be refused.

Beachwood Investments is led by Durban property developer Gavin Strydom and other investment partners; listen to Strydom’s inteview on The Property Pod about one of his other developments north of Durban (or read the transcript here): 

You can also listen to this podcast on iono.fm here.

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