The "NOISE issue" which ahs been hanging over Virginia Airport,Durbans general aviation facility,for decades,is set to erupt into a full –scale legal battle in the KwaZulu-Natal High Court in the city following the serving of papers on the nine respondents by the legal representatives of a resident of nearby Glenashley,Jack Lemmer.
The papers- 35 pages plus two reports of surveys conducted on behalf of Lemmer- were issued by the Registrar of the High Court of SA, Durban,on June 20 and served on the nine respondents (the eThekweni Municipaility,the South African Civil Aviation Authority,the Minister of the National Department of Transport and six operating companies at Virginia Airport) on June 29. These papers indicated that an application to the court would be made on July 22 (after deadline for this edition).
Apparently Lemmer is applying to the court to obtain a order requiring the eThekweni Municipality to abate the operating at Virginia Airport by "….taking all steps to ensure no helicopters shall us Virginia save in the event of an emergency."
Uproar
This immediately resulted in an uproar at Virginia Airport with a meeting of operators held behind closed doors soon afterwards.
It is obviously apparent that the six operators with,no doubt the backing of others,are not going to take Lemmers action lying down,particularly in view of against the operators of helicopters-in the amin-at the airport more than two years ago,operators have tried their utmost to improve the situation at high cost to themselves.
A document of which an abridged version is in World Airnews possession,has been drawn up on behalf of the operators to counter the claims made by Lemmer.In this document ,it is stated tht the respondents reserve the right to lodge a counter claim against Lemmer for alleging that they are deliberately disobeying his request to stop "interfering with his lifestyle" and that the operators helicopters are "irritating him" .They say that such a claim is a direct accusation that they (the operators) are acting unprofessionally.
"The operators collectively object to this vexatious claim and feel obliged to couter-claim that the applicant refrain from making such comments or statements which are viewed by the operators as being slanderous and defamatory in nature and aimed at damaging their good and professional reputations," the document said.
World Airnews understands that a fund has been started to pay for any legal expenses the operators may incur in fighting Lemmers action and/or to undertake legal action of their own against Lemmer. At the time of writing,the fund had already reached"well into six figures" with one of the operators saying that this indicated "We mean business.We intend using the very best legal team to defend this action.We will immediately brief and instruct attorney and Senior Counsel and start preparing our replying affidavits,"he said.
Prejudicial Claim
It is the main "prayer" of the application that has really raised the ire of the operators at the airport(both helicopter and fixed wing), namely: that no helicopters should be allowed to operate in or at Virginia.The document drawn up by operators in response to Lemmers claims,described this as a "vexatious and unreasonable claim".
The document points out that this would result in shutting down all helicopter operations."Such operations are done for reasons more than just training pilots. Emergency services such as EMS operations,search and rescue and vehicle tracking are conducted.Thse operations have a direct impact on the local community as well as shipping/sea-going vessels,"the document adds.
Pointing out that the six helicopter operators based at Virginia collectively employ more than 100 people who will then lose their jobs if such a demand were to be met.The document also deals at length,and responds to, the claims made by Lemmer and the surveys apparently conducted on his behalf about the noise caused by helicopters.
It claims that the statements made are "unfair" and that they,the operators,"….having not broken any laws known to them ,are being forced to incur unreasonable legal costs because of one individual who claims that the helicopters alone are affecting his lifestyle."
The respondents also intend to recover their legal costs from Lemmer and will include an appropriate "prayer" in their replying papers.
The operators also point to the fact that Lemmer purchased his house in 1989(the airport was opened some 30 years earlier) and therefore had accepted that his purchase of a property adjacent to an airport,as well as the M4 motorway,would subjected to some level of noise nuisance.
"One can reasonably assume that,being a businessman,he is of reasonable standing and,as such,would have the intellectual capacity to both know,as well as ascertain,the level of noise that exist.The noise did not just suddenly appear after his relocation….." said the document.
"Sleep Disturbed"
Lemmer claims later on page 17 of his founding affidavit, that his sleep is disturbed and that he "is living stressful circumstances",
The operators document replies to this claim by saying:"Did he not consider that living next to a busy freeway could also disturb his sleep and ,furthermore,he purchased his property next to an existing airport,knowing full well that aeroplanes do create some noise."
The document further asks:" Why has the claim not been supported by the rest of the residents of The Promenade (where Lemmers property is situated) ,who,if the applicants claim is valid and has merit,would and should be as vociferous as the applicant?"
On page 14, paragraph 12 of Lemmers affidavit,he refers to the Constitution and that,further,everyone has a right to an environment that is not harmful to their health or wellbeing.
"So,too,does everyone have the right to earn a living," the reply document points out,adding:" This implies that the helicopter operators (as well as fixed wing operators and motorists traversing the M4 which were established prior to the applicants purchase of his abode),are entitled to continue conducting their business from Virginia as it is zoned as an airport and,as such,are conducting themselves fairly,correctly and rightfully in earning their living as par the Constitution."
Misleading
In the application filed with the High Court,it is claimed that "A helicopter is very noisy."
The operators answer this by saying that this statement "…… is very misleading .Trucks,jets,motorcycles are all noisy."
The applicant lives next to a freeway where the noise is constant and at night.Furthermore ,he does not choose to mention that jets operate in and out of Virginia.This makes his claim prejudicial against helicopters."
Also,although Lemmer claims that helicopter operations at the airport have been expanded; the facts are that two helicopter schools have closed down this past year.
Then,on page 20,Lemmer suggests that Virginia should be closed and relocated.
"This is both irresponsible and short sighted," says the reply document."Virginia forms an integral part of the Durban business ncommunity .Furthermore,the stablishment of a new general aviation airport will cost the already burdened ratepayer (and tax payer) an exorbitant amount of money."
Request
No reaction from the municipality ,the SACAA nor the Minister of Transport (the first three respondents) had become available by the time of writing.
The consensus among those operators better versed in legal matters,is that the Lemmer application is not very well formulated and constructed and it can,and will besuccessfully defended.
Some feel that certain of the averments made by Lemmer in the court papers are iccurate and open to challenge.
However,ultimately,it will be up to the Durban High Court to decide whether Lemmer has a valid complaint and whether an interdict should be granted in his favour prohibiting helicopter operations at Virginia airport.
Anthony Juma is the Editor and Senior Aviation Director at Wings Over Africa Aviation.
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