The Cape High Court has granted a development company and
A home owner and development company has been granted leave to appeal against the dismissal of an application in which they claimed an excessive number of golf balls were landing on a residential property built on Milnerton Golf Course.
Alexander Simonis, a man living on Milnerton Golf Course's estate attempted to stop the Milnerton Golf Course from using the sixth hole until it was redesigned so that golf balls would no longer land on his property.
The land next to the Milnerton Golf Course was turned into a residential development known as Sunset Links, which was marketed on the basis that the houses would be built on the Milnerton Golf Course.
Simonis wanted the Cape High Court to order that the sixth hole be changed from a par five to a par four.
Simonis said in papers before the Cape High Court that he had collected 384 golf balls on his property over a period of 2 years (between March and December 2003, Simonis collected 210 balls and a further 174 between January and September 2004). He had constructed a net around the property, but this had not prevented golf balls from reaching his property.
In March 2003 Simonis moved into the property, which borders the fairway of the sixth hole of the Milnerton golf course, which is a par five hole and is 400m long. The garden and outdoor living area of the house is situated adjacent to the sixth hole.
He said that golf balls had struck his property from the 6th hole and some had dented a steel palisade fence on his property, shattered windows and damaged roof tiles. Simonis's fear was that he or one of his relatives would be injured by the golf balls.
A fed-up Simonis then approached the court to stop the golf club from using the sixth hole until it had been redesigned. He found an expert who made recommendations on how the hole could be redesigned to ensure that the houses were safe.
But the club obtained the opinion of a local golf course designer who found that Simonis's expert's solutions were more drastic than necessary.
In court on the 17th March 2006, Simonis's neighbours from three separate households applied to intervene, saying that the proposed solutions to the problem would affect the value of the properties and their freedom to enjoy the properties. The neighbours claimed the suggestions on the manner in which the hole could be redesigned to resolve the issue would devalue their properties because it will affect their view of the sea, Robben Island and Table Mountain.
In her judgement on the 24th August 2006, Deputy Judge President Jeanette Traverso said an important factor was that Simonis knew that golf would be played on the land next to the property. "They knew that the property would be susceptible to being hit by golf balls."
Also, Traverso said the Milnerton Golf club was prepared to go to great lengths to alleviate the problem (but the Simonis seemed to adopt the attitude that the responsibility was that of the club alone) - it had planted trees which would protect the property once they were fully grown. Milnerton Golf Club also adopted the measure of playing the sixth hole as a par 4, except on Wednesdays and Saturdays when it is played as a par 5.
Traverso said that Simonis had failed to show that the club's conduct was unreasonable and he also failed to show that the damage caused exceeded what could reasonably be expected in the normal course of a property situated on a golf course.
Referring to Simonis's suggestion that the club reduce the length of the sixth hole from a par 5 to a par 4, Traverso said that this could prejudice the club and other property owners adjoining the 6th hole, because they would then become more susceptible to being struck by golf balls.
Traverso also rejected Simonis's claim that a 4,7-metre net he had erected around his property had little effect, saying that his real objection appeared to be that the net was an eyesore and obstructed his view of Table Mountain.
Traverso found that the Milnerton Golf Club had not interfered with the Simonis's rights and dismissed the application with costs.
28 August 2006
23 November 2005