This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.These are the reasons.THE ...
This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.
After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.
These are the reasons.
THE FACTS
The second respondent is the owner of a certain property known as No.1 Petersham Road, Malborough, Harare (the “property”). The appellants are residents of the neighbourhood within which the property is located. The first respondent is a Municipality, Local Planning Authority and an administrative body tasked with the mandate of rendering services to the residents of Harare.
The second respondent, on 9 December 2021, made an application to the first respondent for change of use of its property from residential to use as a church.
The application was opposed by the appellants who feared that the use of the property, as a church, would cause noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They accordingly filed their objections with the first respondent.
After considering the objections from the appellants, the first respondent granted the application subject to certain conditions. These conditions included, inter alia, a prohibition of the use of certain musical instruments in a way that would disturb the peace of other neighbours. The permit stipulated that the second respondent would construct a sound proof auditorium which was to be inspected by the first respondent's Department of Works.
PROCEEDINGS IN THE COURT A QUO
Dissatisfied by the decision of the first respondent, the appellants lodged an appeal in the Administrative Court (“the court a quo”).
They were challenging the decision of the first respondent on the basis, that, the provisions of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) were not complied with before the application was granted. They averred, that, the second respondent neglected to provide all the relevant information required in applications of that nature, in particular, they alleged that it neglected to provide information relating to the external area to be covered by the building, the number of floors of the building, the extent and location of parking facilities for motor vehicles.
Furthermore, they queried the citation of the name of the second respondent in the application. They submitted, that, the Regional, Town and Country Planning Act requires that the owner of the property makes the application or it be done with the consent of the owner.
Their argument was that the owner of the property in question is Spirit Life Church International yet the application before the first respondent was launched by Spirit Life Church. It was their case that Spirit Life Church is a non-existent entity.
The appellants further argued, that, all the interested parties were not notified of the application for the change of use of the property. It was their case that the large number of people who would attend church service would result in noise pollution despite the stipulated precaution.
They contended, that, the permit did not make provision for the costs associated with connection of a sewer system for the church. They also argued, that, the application was granted after the time frame within which to consider it had lapsed.
In response to the appeal, the respondents argued, that, due process of the law was followed before the application was granted.
They disputed the allegation that the notice was not given to all the interested parties and that the application was considered out of time.
With regards to the citation of the second respondent, it submitted that the omission of the word 'International' did not render the second respondent non-existent. They argued that there was no confusion as to the identity of the second respondent.
Further, it was argued that the application form contained all the relevant information to enable the first respondent to consider the application.
The court a quo dismissed the appeal.
It found, that, the argument that the application was considered outside the time frame provided for by the law was unmeritorious as the timeframe was extended by a letter written by the second respondent to the first respondent dated 30 November 2021.
It also dismissed the argument that the respondent did not provide all relevant information. The court held that the application form was to be filled to the extent appropriate.
It found that all the interested parties were notified.
The court a quo dismissed the argument that the first respondent would incur additional costs associated with constructing a sewer line for the church on the basis that the appellants had not motivated that argument.
Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds:
GROUNDS OF APPEAL
1. The court a quo misdirected itself when it determined the matter on the mistaken basis that the party that had applied for the permit had granted an extension of the period during which the first respondent herein was obliged to determine that application.
2. The court a quo erred when it failed to determine that the second respondent's failure to provide the information that was required under sections 10, 11 and 12 of the application form invalidated the application on the basis that it violated the peremptory provisions of section 26(1) of the Regional Town and Country Planning Act.
3. The court a quo erred when it failed to determine that the application for the development permit was invalid for the reason that the purported applicant therein, Spirit Life Church, does not exist.
4. The court a quo erred when it failed to determine that the permit that was purportedly granted to the second respondent was invalid for failing to make a provision for the cost of connecting the proposed development to the sewer line.
5. The court a quo erred when it failed to nullify the permit on the basis that the same had been granted on the basis of falsehoods which were contained in the application.
RELIEF SOUGHT
The appellants pray that the appeal be allowed with costs and the decision of the court a quo be set aside and substituted with a decision setting aside the decision of the first respondent to grant the permit, and, that the first respondent dismisses the application for the permit. They also prayed for costs of suit.
ISSUES FOR DETERMINATION
(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent.
(2) Whether or not the incorrect citation of the name of the second respondent, in the application before the first respondent, was fatal.
PROCEEDINGS BEFORE THIS COURT
APPLICATION OF THE LAW TO THE FACTS
(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent
In motivating the appeal, counsel for the appellants argued, that, section 26(1) of the Regional, Town and Country Planning Act was not complied with in that the second respondent omitted to fill in Part 2 and 3 of the application form. His argument was that the permit was granted in the absence of all the relevant information required.
He further argued, that, the application was made by a non-existent entity.
His argument was that the Regional Town and Country Planning Act makes it clear that the application ought to be made by the registered owner of the property or with the consent of the owner.
He based his argument on the authority of John v Delta Beverages Ltd SC40-17 wherein it was held, that, the omission of the word “Pvt” was fatal as there was no party called Delta Beverages Ltd.
Further, he submitted that the permit was a nullity as it did not make provision for the costs associated with construction of a sewer system.
In response, counsel for the first respondent argued, that, section 26(1) of the Regional Town and Country Planning Act does not prescribe the information that ought to be contained in the application form. He submitted, that, the form was filled to the satisfaction of the first respondent, hence, the argument that section 26 of the Regional, Town and Country Planning Act was not complied with lacks merit.
It was his argument, that, the application form was complemented by the justification report which contained the full information required, hence, it cannot be said that insufficient information was supplied when the application for the permit was made.
Counsel for the first respondent further argued, that, the decision by the first respondent involves an exercise of discretion. He submitted that this Court should be slow to interfere with an exercise of discretion. His case was that the appellants do not allege that the discretion was exercised injudiciously warranting interference by this Court.
With regards the citation of the second respondent, he argued that the omission of the word 'International' was not fatal. His case was that unlike the omission of the words '(Pvt) Ltd' the omission of the word International does not have legal connotations. He argued that John v Delta Beverages Ltd SC40-17 was distinguishable from this case.
In addition, he submitted that there was already a sewer line in place which the church could connect to....,.
NON EXISTANT PARTY
The court was inclined to agree with the argument advanced by the second respondent. The case relied upon by counsel for the appellants is distinguishable from the present case.
In John v Delta Beverages Ltd SC40-17, the omission of the word “Pvt” was fatal because the word has legal connotations unlike the omission of the word International.
In any event, there is no confusion as to the identity of the second respondent.
The appellants, in their letter of objection, in the appeal before the court a quo, and the present appeal, cites the second respondent as Spirit Life Church without including the word International.
They cannot, therefore, turn around and claim that Spirit Life Church is a non-existent entity.
To add on, the appellants never raised the objection when the matter was still before the first respondent.
At that stage, the second respondent would have been able to amend its documents.
In Marange Resources (Pvt) Ltd v Core Mining & Minerals (Pvt) Ltd & Ors SC37-16…, this Court commented as follows:
“As for the legal consequences of wrong citations; understandably. very few situations of 'wrong defendants/respondents' or 'wrong plaintiffs/applicants' have had to be decided in our jurisdiction, as such errors, I believe, are routinely rectified in consultation between the parties: see also, for comparison, Paterson TJM, Eckard's Principles of Civil Procedure, Juta and Company Ltd, 2005, 5th ed (2012) p184 where it is stated:
'In the event of these pleas (non-joinder and mis-joinder) being successful, the court will order a stay in the proceedings so that the pleadings can be amended so as to bring the proper parties before the court.'”
In any event, the application for a change of use of a permit before the first respondent did not constitute proceedings in litigation where the strict rules relating to citation of parties apply.
