Artist’s impression of The Bantry Bay, which was designed by MLB Architects for Gregor Klotz and Adriaan Marais of Ecoventures.

Bantry Bay residents have bravely fought and won a battle against property developers, Gregor Klotz and Adriaan Marais of Ecoventures, and MLB Architects who were planning to erect an enormous block of flats in the heart of the suburb.

The dispute was decided in the Western Cape High Court on September 23 when Judge Willem Louw described the proposed building as being “ …in excess of 20 m in height and because it is to be erected on a consolidated piece of land, the setbacks from the erstwhile internal common boundaries between the separate erven will no longer apply, resulting in a solid wall stretching for 60 m from east to west along and below Kloof Road. It will dominate its surroundings … The applicants (neighbours) contend that this will constitute an overbearing development of an inappropriate nature.”

The neighbourhood was in an uproar in October 2009 when residents were shocked to discover that the erection of the giant building, The Bantry Bay, on the dangerous intersection of Queens and Kloof Road had been approved by the municipality.

Attorney David Polovin was instructed to investigate, and found that the ground level height measurement had been manipulated by the developers in order to design a much larger building than permitted in terms of the zoning scheme regulations.

He also found that the developers had no intention of sticking to the plans approved by the municipality. And, to increase its profits, Ecoventures had appointed Seeff Properties and Cluttons to sell unsuspecting buyers units in the building, which contained almost twice the number of habitable rooms permitted by the approved plans, for instance two bedrooms instead of only one.

Polovin also found that the municipality had uncaringly approved the plans, notwithstanding the derogatory effect that the building would have on surrounding neighbours and the suburb as a whole.

“All attempts to negotiate a compromise with the developers were rebuffed and a small group of neighbours supported by the Sea Point Fresnaye Bantry Bay Ratepayers and Residents Association were obliged to turn to the court for help. The developers refused to wait for the court to review the plans before starting building operations, and conceded only at the last moment after first forcing neighbours to fight an expensive legal battle,” said Polovin.

The plans showed a retaining wall and soil fill surrounding the building. The developers said that by means of this device they had raised the ground level and that the bottom floor of the building was below the top of the soil fill so it was a true basement intended for parking cars. The municipality readily agreed with the developers and even supported them in the court action. This meant that the boundary set-back and coverage restrictions in terms of the zoning scheme did not apply to the ‘basement’ and the net effect was to permit a much larger building than might otherwise have been possible.

The Judge did not agree with the developers or the municipality. He found the retaining wall and soil fill “ … will have no real connection with the existing ground level and cannot realistically be called the new level of the ground … The ‘ground level’ will … not be raised at all by the retaining wall structure. The ‘ground level’ will still be where it is at present.”

He therefore found that the basement would not be below ground level, that it had to be treated as the ground floor and that the plans did not conform to the zoning scheme regulations because the set back and coverage restrictions would be exceeded. In the result, he ordered that the plans be set aside and that the developers pay the neighbours’ legal costs.

Polovin said his clients led a courageous battle on behalf of the whole neighbourhood to preserve its character and prevent it becoming overwhelmed by monolithic buildings that would change the face of the suburb for the worse.

“They are not opposed to development. All they ask is that the integrity and character of the built environment be respected. It is disappointing that the municipality failed to consider and protect their interests as ratepayers and citizens. It was persuaded to approve defective building plans that would have profited the developers at the expense of damaging the value of the residents’ homes and harming the neighbourhood as a whole. The rights of homeowners all over the City have been strengthened by this outcome. Civil society has spoken and the municipality is on notice to take greater care in future.”

SA Property News invited Gregor Klotz of Ecoventures to comment on this article, but so far there has been no response.