Survey reveals private coastal swimming pool sits on state land in Hermanus

Independent land surveyors have confirmed the swimming pool and outdoor entertainment area at an upmarket residential estate sits on public land below the high water mark (HWM) in Hermanus in the Western Cape..

The recreational area belonging to Bayview Apartments has been at the centre of a legal dispute over the town’s public path winding along the coast.

The Cliff Path Action Group (CPAG) is connecting the path right along the coast, but faced resistance from some residents in an enclave called Poole’s Bay who insisted there was no space for a concrete path in front of their properties.

A court ruling earlier this month instructed CPAG to obtain a survey report to back their claim that the public had a legal right to traverse the Bayview pool area because it juts into public land.

Historically the path has detoured along the town’s main road to avoid Poole’s Bay. Walkers continuing along the coast either had to do so on a slippery “fisherman’s path” or slip past a Bayview balustrade. The balustrade was removed this week as per the court order. 

According to the survey report released on Wednesday, Bayview’s entire pool area, including the adjoining lawn, is below the HWM and therefore technically on public land.

“To determine the HWM in this area an in-depth investigation has been done involving historic imagery, specialist opinions and physical evidence on-site,” reads the report by surveyors Friedlaender, Burger and Volkmann. Several man-made structures had disturbed the terrain in the surveyed area, the firm said.

“The surveyor general found the (entertainment) area is definitely excluded from their property,” said CPAG chairperson Jobre Stassen.

“It is public and state land so the next phase will happen from here onwards.

“CPAG protects the integrity of the cliff path and all decisions are made accordingly. It does not make sense to build a costly structure to circumvent an area belonging to the public. Rather use the area to walk across. If Bayview choose to have private entertainment facilities, it is their prerogative to build these on one of their many garden terraces overlooking the sea.”

Bayview spokesperson Andrew Collins said it remained unclear how the estate would respond to the finding.

“Clearly we are not going to carry the expense of maintaining the pool. And since it is not our pool we probably are not even allowed to. I would imagine it is best to empty it. But we are trying to work out next steps.

“It does seem weird that an area of Kikuyu grass is considered to be below the high water mark,” said Collins.

“All I know is the pool was built in the 1930s. It was always considered part of the Bayview Hotel. When the hotel was converted to apartments the pool was part of the property. The title deed shows the cadastral boundary including the pool and surrounds. It also shows the HWM and cadastral boundary to be two different lines. At some point the cadastral boundary became the HWM and the HWM has been determined to be above the pool. CapeNature is the custodian of that area and you should ask them what they will be doing with it. The pool is more than 60 years old and therefore heritage applies.”

News of the surprise new public amenity prompted excited chatter on social media, notably on the CPAG Facebook page, where the full survey report was shared.

“This is brilliant news,” said James Ludick.

“I'm going to make or suggest a proposal that the municipality charge a fee for the use of this magnificent venue so it can be maintained. It is, in effect, a fantastic 'gift' from Bayview and I believe even Bayview will show support that a nominal fee be charged for the use of the facility to provide the maintenance it deserves.”

The cliff path, in development for the past six years but nearing completion, sparked a war of words between the Overstrand municipality and some residents who felt the municipality could have done more to help raise finance and secure legal approvals, all of which had to be done by volunteers.

Earlier this month the municipality’s principal legal adviser Jacques Wilkinson threatened legal action against Stassen related to social media comments on the Cliff Path Facebook page.

“For a long time, the municipality and its employees have endured this public abuse. However, it can no longer be tolerated. A line has been crossed with the personal, unfounded attacks on certain individuals within the municipality. Opinions are not news, and assumptions are not facts. Yet, with wanton disregard, the aforesaid distinctions have been ignored by a few disgruntled individuals,” said Wilkinson.

The municipality is yet to respond to queries sent earlier this week.

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