Cape Town – Fresnaye businessman Allan Tavakoli has lost his legal challenge to block the construction of the newest ultra-luxury development along the Atlantic Seaboard.
The Supreme Court of Appeal (SCA) this week dismissed Tavakoli’s appeal against the building plans of a R1 billion apartment complex called Bantry Hills between Fresnaye and Bantry Bay.
The proposed development comprises 66 apartments spread over five residential blocks. So far 53 apartments have already been sold.
According to court papers, Tavakoli and Dlx Property (Pty) Ltd own residential properties about 80m from the site of the proposed flats.
They charged that the plans violated 40(c) of the City's Development Management Scheme, that if the only vehicle access to the property is from an adjacent road reserve that is less than 9m wide, no building is permitted other than a house.
Tavakoli and Dlx Property had initially applied in the Western Cape High Court for an order dismissing the approval of the development, but the court had found against them.
They then turned to the SCA. The SCA on Wednesday said that the high court was right to find the appellants lacked locus standi.
It found Tavakoli and Dlx Property are not likely to be affected by congestion and the Bantry Hills property falls in an area characterised by GR4 zoning, a relatively high-density residential development.
“Item 40(c) would be a very arbitrary and unsatisfactory way of preserving the character of an area.
"A GR4 property might be abutted by two narrow roads, but if the vehicular access were provided from a third road, which was at least 9m wide, the restriction would not be applicable.
"This shows that the restriction is concerned not with narrow roads, as such, but with the traffic associated with narrow roads giving vehicular access to high-density properties.
“I thus conclude that the appellants do not have locus standi by virtue of membership of a specific class for whose benefit item 40(c) was enacted.
"I am prepared to assume that item 40(c) was enacted not only for the benefit of a specific class, but also for the benefit of the general public, ie all owners and users of property within the geographic area of Cape Town.
"On that assumption, however, the appellants needed to prove that the violation has caused or will cause them damage,” said Judge Owen Rogers.
Judge Rogers said Tavakoli and Dlx Property failed to show that the City's Development Management Scheme will cause them harm.
“Their true concern seems to have been that the new development would impair their view, but in their supplementary replying papers they disavowed this concern as a basis for locus standi.”
The land was given to the Tramway Road Trust for free by the City of Cape Town in 2001. The 34 trustees who, after a spate of failed plans to develop the property, sold the land to Spear Property Trust for R51m in 2014.