Coast KZN

17 Feb 2011

Possible damage is vexing question

Kamcilla Pillay (Daily News)

The beach (above) that would be sacrificed should the development go ahead as planned. The Save Vetch’s Association has warned that the development’s location in an area vulnerable to high seas and extreme storm events could mean the buildings could be prone to weather damage.

The fight rages on over Vetch’s Beach development

A multi-billion rand development at Vetch’s Beach could bear the brunt of adverse weather because of its proposed location, the project’s opponents have alleged, and have called on the eThekwini Municipality to reject planning approval.

In a letter to the municipality this week, the attorney representing the Save Vetch’s Association said plans for the building of “super basement parking” in the area of a 1957 high water mark – which is based on a one-in-50-year storm event – should “not be passed”.

The letter, by Michael Jackson of Cox Yeats Attorneys, explained that the development would be in danger in the face of bad weather conditions.

The proposed project – four blocks of flats, a 24-storey hotel, a pier alongside Vetch’s Pier and a small-craft harbour and marina – was given the green light by the government in 2009.

But the association objected, arguing this time that it was to be built in a coastal erosion zone, an area vulnerable to high seas and extreme storm events.

The project last made waves in December when the developer, Durban Point Development Company, argued its case to evict the Durban Paddle Ski Club for refusing to make way for the planned basement of the structure.

And since then the KwaZulu-Natal Department of Agriculture, Environmental Affairs and Rural Development, which authorised the project, and the developer, have come under fire for not being willing to take responsibility for future and possible damage to the buildings.

The department’s spokesman, Zakhele Nyuswa, and Neels Brink, managing director of the development company, have confirmed that the parties would not be liable for any damages.

The department stated its position in a document released in 2009 when it said it would be indemnified for “any liability arising from any damage … to property due to its location in the coastal erosion zone”.

Quoting the Integrated Coastal Management Act, Nyuswa said no owner may require the state “to take measures to prevent erosion … of the seashore”. He said the responsibility of protecting the property lay with the developer.

Johnny Vassilaros, the chairman of the Durban Paddleski Club and spokesman for the Save Vetch’s Association, in raising an appeal against the department’s position, described its condition as “totally absurd”.

“This condition strongly suggests that the department has serious doubts for the engineering viability of this project and if doubts … exist, should it not then have been rejected?”

“The department and its heads must be held personally responsible for any wrongful decision taken,” he said.

Vassilaros said they were aware of the department’s condition, but added that their lawyers had notified them, from one of the clauses in the sales agreement, of the developer also being free of liability should the property be damaged.

“The purchaser indemnifies and holds harmless the seller against any loss … or expense sustained,” said the sales agreement provided by Brink.

But Brink refused to provide copies of the contracts to the Daily News. He said that this would “serve no purpose”.

The contracts, he said, differed from zone to zone.

He explained that the various zones had different conditions, and thus varying clauses.

However, the clause, while not “standard”, was “understandable”, said Jonathan Acutt, the vice chairman of the Institute of Estate Agents of South Africa.

“There are municipal bylaws which provide guidelines on how close to build to the ocean. But even if permission was granted by the department to build in that area, they have no way of knowing if the weather patterns will damage the property,” he said.

“The developers would have to protect themselves.”

Meanwhile, Brink, who was sent a list of questions by the Daily News on Tuesday relating to the status of the project and funding for it, had not responded at the time of going to press.


Online Article