Johannesburg — HOME owners and the developer of an upmarket Gauteng estate, described by Pam Golding as "nestled in a luxuriant greenbelt", face the threat of possible criminal and civil charges related to having homes within a 50m buffer zone of a wetland.

According to the Environment and Conservation Association, which also took on the Airports Company SA (Acsa) over a fuel spill, the residents of Clearwater Estate near Boksburg are not the only ones who may find themselves facing legal action for "vicarious liability" -- there are more than 100 developments in Gauteng that could be considered illegal.

The association said if its application was successful it would apply for a demolition order so that the "illegally built structures can be removed". It is also considering action against developments in Ascot Waterfront Estate and Koru Village in Brentwood Park, among others.

The developers of Clearwater Estate, Krisp Properties, said they planned to launch their own battle against the Gauteng agriculture department in the high court next year.

They would be asking for an order declaring illegal a record of decision (ROD) by the department, which places some constraints on the development.

Nicole Barlow, spokesman for the Environmental and Conservation Association, said yesterday that owners and investors had a responsibility to ensure that their development had the required environmental and water use authorisation licences. They stand to lose millions if the development is declared illegal.

"Potential home owners must take note that even if a developer has a positive record of decision from the department of agriculture, if the developer does not comply with all the conditions and restrictions stated in the ROD, then the department has the authority to withdraw the ROD, due to noncompliance, thereby rendering the development illegal," said Barlow.

In the case of Clearwater Estate, some properties are just more than a metre from the wetland, which contains a number of red data species including a breed of bullfrog and brown owls. Barlow said development destroyed the long grasses surrounding the pan which served not only as the owls' hunting grounds but also their breeding area, while the bullfrogs will be unable to migrate to a nearby Parkhaven wetland pan because of a solid wall that had been built around the complex.

"The developers originally promised to put up palisade fencing but instead built a solid wall, so the frogs will not be able to migrate to breed."

Criminal charges against residents will be in terms of Section 151 of the National Water Act, which states that wilful pollution of water resources is a criminal offence.

"Building in a wetland is polluting the water and is therefore an offence," said Barlow.

"There are also provisions in terms of the civil aspect which says its an offence to do anything that contributes to destruction of our precious and ever-decreasing national resource."

Barlow said the developer had not complied with many of the conditions of authorisation set by the Gauteng agriculture department in terms of section 22 of the Environment and Conservation Act, the most important being that building could not take place within the permanent zone of the wetlands and certainly not within 50m of the wetlands.

She was also critical of the decision to approach the Gauteng development tribunal for approval while awaiting approval from the agriculture department. "The developers convinced the tribunal, set up originally to facilitate low-cost housing, to overthrow section 22 of the Environmental and Conservation Act in terms of the Development Facilitation Act."

Tim Fletcher of Cliffe and Dekker, who is representing Krisp properties, disagrees, saying the developer brought in three specialists and "completely redesigned the land development to accommodate the department's concerns".

The developer is asking that the decision by the Gauteng development tribunal be upheld and that the record of decision by the Gauteng agriculture department has no legal force.