High court battle looms over YWP housing plan

A TWO-year long battle against a prospective Yellowwood Park residential development is destined for the High Court, with a local resident who opposed the project now having to defend his appeal against the city’s approval of the project.

Martin Birtwhistle has lodged his responding affidavit to the High Court motion brought against him by the Yellowwood Park Christian Fellowship (YWPCF) developers.

The application for the subdivision of land at the YWPCF site in Quail Road was first advertised on September 4, 2014. The land is currently zoned for education purposes and the application aims to rezone a portion of land for residential use.

Birtwhistle said the YWPCF was given the land on which the school and church hall stands by the Department of Education for educational purposes.
The school is attempting to sub-divide the land and rezone it from educational to general residential. “The developer in turn intends to put up multi-storey, high-density sectional title units. The vast majority of YWP residents are against this development and in 2014 when the notices were gazetted, there were 178 objectors to the rezoning subsequent building development. Nonetheless, Ethekwini Municipality approved the development,” he explained.

“Three appeals were lodged – YWP Ratepayers Association lodged an appeal on behalf of all ratepayers; Ezemvelo KZN Wildlife and myself. The former two were rejected by the KwaZulu-Natal Planning and Development Appeal Tribunal and only my appeal is left standing,” he said.

His appeal has not yet been heard due to constitutional court applications lodged by other developers unrelated to this matter. According to Birtwhistle, he had been in consultation with the developer with a view to finding a way to resolve the concerns raised. However, they were unable to reach consensus and the developer has now lodged a High Court application against him. In the High Court application it states Birtwhistle failed to serve a copy of his appeal to every other person who submitted written comments, which number 177 objectors.

The developers argue in their application that Birtwhistle’s appeal is simply unjust as he had purportedly but improperly lodged to a tribunal which no longer sits and is probably unconstitutional.

“They are trying to get my appeal thrown out and I view this as nothing more than a bullying tactic since they have threatened a cost order against me. I am defending the High Court application and have lodged my responding affidavit. I also have the full support of the community as they are contributing towards an account set up by an attorney, which will be used to pay my legal costs in the event I lose. I see this development as another occasion on which the council has failed to take the views of the community into account as well as its town planning processes and principles,” he added.

Former ward councillor, Billie Prinsloo said in a previous article in the Sun: “If we want to continue being a park and keep the nature around us, this is our last chance to stop this development, and stop it we must,” she said.
Prinsloo said the sports fields at YWPCF acted as a water catchment for the area where water runs into the wetlands at Kenneth Stainbank Nature Reserve. “It’s up to the people of the area to not let this go ahead. We must do everything we can,” she said.

YWP came about due to the foresight and vision of Kenneth Stainbank, who recognised the need for both sustainable development and the protection of the natural fauna and flora for future generations. “In this regard, YWP is an unique green lung located within the eThekweni Metro and should be protected at all costs. Ezemvelo KZN Wildlife – the custodian of Kenneth Stainbank Nature Reserve – is extremely concerned about the potential impact on the reserve and has submitted a comprehensive report detailing their concerns,” he said.

Ezemvelo has requested an environmental impact assessment (EIA) conducted prior to the development being approved but this was disregarded by the council. In its appeal to KwaZulu-Natal Planning and Development Appeal Tribunal, Ezemvelo KZN Wildlife states that despite being a neighbour, they were not formally consulted about the matter and the rezoning and subsequent development will have significant impacts on Kenneth Stainbank Nature Reserve and its biodiversity. “We are also very concerned that there is a direct link between the erection of a cellphone mast on the periphery of the land in question and the poisoning of the wetland and the dam resulting in the death of all fish. This was brought to the attention of the city’s environment and planning department and no follow-up was conducted, ” said Birtwhistle.

Other concerns stem from YWP being somewhat ‘landlocked’ by an one-way bridge and tunnel on the northern side and an already congested road at the southern exit, which also absorbs in traffic from Montclair and Woodlands. “But developers have argued that this is a metro issue and not of their making. The traffic study conducted did not take into account these access and egress routes.
In addition, the area has no pavements for the increased foot traffic that will occur – likely to be children as they walk either to the retail centre or to surrounding schools. Also, the developer has made provision for three parking bays per unit which could potentially add another 400 vehicles into already congested roads, not to mention the inevitable increase in taxi traffic,” he added.

Developer representative, Riaan Thompson said: “This application has not been concluded and is now the subject of both a local planning appeal process as well as a High Court application in pursuit of its conclusion. I, therefore, believe that it would be inappropriate for me to comment on any aspect of the application at this stage.”