High Court takes dim view of seafront spat
WHEN it was being built, its seafront position and stunning views of Table Mountain attracted the nickname “Millionaires’ Row”.
The moniker stuck, and when the time came to formally name the development of 17 homes on Cape Town’s Blouberg beachfront, Mill Row was chosen.
Nearly 30 years later, a bitter and costly millionaires’ row has erupted over the view that made the development so attractive in the first place.
Good-neighbourliness flew out the window in 2011 when two owners of the development’s eight beachfront homes got approval from the City of Cape Town to build a second storey — robbing their back-row neighbours of a priceless Table Bay vista.
June Gerstle and her eight back-row neighbours mounted an unsuccessful challenge in the High Court in Cape Town, and last month they lost their appeal in the same court. Now they are considering their next move.
“I am very disheartened that the justice system doesn’t take everybody’s rights into account,” said Gerstle. “Our properties and those of the people in front were built with everybody sharing the view.”
Pensioner Ellen van der Merwe, who has lived in the back row for 25 years, said her late husband’s soul would not rest in peace if the building plan went ahead.
“My blood pressure goes up if I think of that,” she said. “My husband died in this house, he would never have liked it.”
Gerstle, who would not reveal the extent of the legal costs incurred by the back-row residents — the appeal bench made a costs award against them — said relations at the complex had become strained.
“There are a few people there who are heartbroken. They have raised children here, it is their home,” she said.
“They live on the beach and love the beach lifestyle, and now to have two people who . . . just want to make money.
“That is the heartache. It’s people who have a right to live there and then they have someone who is just selfish. It all boils down to selfishness.” LEGAL PERSPECTIVE: Tenant Rufus du Plessis on his Mill Row balcony. Homeowners are at loggerheads over extensions that will block the views of other homes
Gerstle said the court battle had been difficult but necessary because her multimillion-rand property was effectively her pension, and the loss of its view would drastically cut its value.
A high-rise hotel next to the complex had already left most of the houses in the shade for half the day during winter, “and if you start building in front of us we have even less light”.
In court, the back-row owners told the appeal bench of three judges they had a “reasonable” expectation that the front-row owners would not block their views by building upwards.
They solicited the help of one of Mill Row’s developers, Desmond Winterbach, who said in an affidavit: “The back row of houses were constructed to overlook the houses in the front row to ensure that the harmonious architecture would also function to ensure an equal share of the sea view for all units.”
The court said there were no restrictive title deed conditions, and the development had no homeowners’ association whose constitution regulated the height of buildings. “It appears that the [back-row residents’] case was an attempt to utilise the concept of an ‘harmonious architectural entity’ to be extended so as to create rights to a view, to privacy and to light, notwithstanding that none of these claims were specifically provided for in any of the applicable legal mechanisms which were available to the developers,” it ruled.
Gavin Brown, a front-row resident who, with the trustees of Welkom Property Development Trust, had secured permission to build a second storey, declined to comment on the litigation.