Tsogo Sun Kwazulu-Natal (Pty) Ltd, the developers of the casino complex at The Village Green at Durban's Snell Parade, applied for the construction of a nearby R27 million parking facility in terms of their gambling license agreement with the KwaZulu-Natal Gambling Board.

However, the municipality refused permission because the building site fell within the municipality's Durban Town Planning Scheme and the zoning of the land was regulated by scheme clauses.

According to the municipality, the "buildings" to be erected at the site were not in accordance with its integrated development plan (IDP) approved for the specific site.

Tsogo Sun turned to the Durban High Court and contended that the municipality's notification [reply] demonstrated neither approval nor a refusal to approve, and that the municipality was merely avoiding a decision.

It asked the high court for an order directing the municipality to approve the building plan of the parking facility.

The high court agreed with Tsogo Sun and granted the order.

However, the SCA found that the notification by the municipality constituted an unequivocal refusal to approve the building application.

The court held that Tsogo Sun was bound to exhaust other appeal avenues before it could approach the court.

The Bloemfontein court also found that the construction of the building (parking facility) on the site was not provided for in the IDP and the municipality was accordingly prohibited by the zoning conditions from approving the building application.

It set aside the high court order and dismissed Tsogo Sun's earlier application.

Sapa