ZIYAMBI
JA:
This
is an appeal against a judgment of the Administrative Court refusing
the appellant special consent to establish a residential clinic with
a capacity for fifteen beds at her surgery at Stand 17330 Harare
Township of Salisbury Township lands, otherwise known as 42 Duiker
Crescent, Borrowdale West (“the premises”).
The
appellant is a practising medical doctor. She operates, with the
necessary permit from the respondent, a private surgery on the
premises. She applied to the respondent for a special permit in terms
of s26(3) of the Regional Town and Country Planning Act [Cap
29:12]
to convert the surgery into a residential clinic with fifteen (15)
beds so that patients would be admitted there for treatment and
convalescence.
The
application drew two objections one of which was from a residents'
association which comprised of, inter
alia,
three immediate neighbours of the appellant.
The
grounds of their objection were that the proposed facility would,
expose their families to harmful bacteria carrying infectious
diseases and to litter dropped by persons awaiting visiting hours, or
participants in vending activities outside the Clinic; and that it
would result in increased human and vehicular traffic (including
ambulances at all hours) causing a noise nuisance.
The
application was refused by the respondent on the following grounds,
namely, that –
“(a)
The objections raised are material especially from a health point of
view and there are no special circumstances which justify the Local
Authority to grant a special consent permit for a Residential clinic
within this particular neighbourhood.
(b)
Arising out of the advertising and notification procedures of this
application, two objections (including a residents' petition
against the proposal) were received. This indicates a general
rejection of the proposal within this neighbourhood.
(c)
The size of the stand, which is only 4087 square metres and its
location is neither ideal nor adequate for a residential clinic of
this nature.”
As
indicated above the Administrative Court dismissed the appeal by the
appellant against that decision.
The
grounds of appeal as amended at the hearing are two fold, namely;
(i)
that the Administrative Court misdirected itself in law in taking a
restrictive approach to the issue of need in special consent
applications; and
(ii)
secondly, that the decision of the Administrative Court is one that
could not reasonably be arrived at having regard to the situation of
similar facilities in residential areas, the ability of the court to
grant a permit with conditions addressing the concern raised by the
respondent's department of health, and the unfounded and
unsubstantiated medical fears expressed by one of the objectors.
Mr
Matinenga
contended
that the issue of need was overstated by the court a
quo and
that this approach was contrary to the flexible approach adopted by
this Court in the City
of Salisbury v Sagit Trust Ltd, 1981
ZLR 479 (S).
The
basis on which the court a
quo dismissed
the appeal by the appellant was the following:
“This
property is situated in a crescent and a potentially busy road. There
will be a substantial increase in human and vehicular traffic if the
development is allowed. The vehicles will have to go past the
proposed clinic and houses around the area in order to access the
clinic. This is a one-way traffic (sic)
where
there are no alternatives of accessing and departing from the area.
Borrowdale road is also a very busy road. Putting up a clinic on
Duiker Crescent will necessarily increase traffic on this road and
cause traffic congestion. The single road (Duiker Crescent) may not
be adequate to cope with the anticipated increase in traffic flow.
The extra traffic will cause an increase in activities in that area
which may be a nuisance.
The
stand is 4087 square metres. The respondent's position is that the
stand is neither adequate nor ideal for a residential clinic of the
nature proposed. The stand is small from a traffic point of view and
there is not going to be sufficient parking space. The clinic is
located on a narrow closed road on a sharp curve. It is desirable
that a public place such as a clinic be located on a site where there
is plenty of space. The respondent's contention is that this site
does not have sufficient space for onsite street parking. There was
no evidence proffered as to the number of parking bays currently
available. The city authorities compared this clinic with Avenues
Clinic and West End Clinic in the city centre where there are many
roads and satisfactory road networks accessing these places. The
court's view is that it is not sound town planning to permit a
clinic where there is no free movement of traffic and insufficient
parking space. We are of the view that this issue should be decided
in the respondent's favour.
The
increase in the activities around that area will ultimately result in
noise level going up. This is a residential area which is expected to
be quiet in the night. Once patients are admitted overnight it
follows that there will be activities at the clinic on a 24 hour
basis. If a patient becomes seriously sick at night doctors and
ambulances will need to be called, generating some noise in a
residential area which is expected to be peaceful and quiet during
the night. A surgery has no visitors in the night compared to a
clinic which has patients admitted and has an impact on traffic. The
situation of this property is unsuitable for the proposed use.
The
existence of another clinic in the locality offering similar services
to the public shows that there is no special need for another clinic.
This proposed clinic is about one kilometer away from Dandaro Clinic…
. No pressing need was shown for an additional clinic. The public
would not be seriously disadvantaged if the proposed development was
not permitted.”
In
support of his contention Mr Matinenga,
referred us to the following passage of the judgment of the court a
quo –
“Appellant
states in her application to the authorities that the project is,
'necessary and valuable to the community because it brings medical
facilities to proximity'. She did not allude to the existence of
another clinic in her application. There is no doubt that this clinic
would be valuable to the community. Whether it is necessary is the
issue in view of the existence of another clinic in the vicinity and
the objections raised. The need here is clearly for appellant's
commercial benefit and not for the benefit of the public. The fact
that her immediate neighbours objected to the proposed development
means that no public advantage will be seen to accrue if the proposed
development goes ahead. No good and sufficient reasons have been
shown for appellant to be permitted to develop a clinic.
The
respondent on the other hand was able to show that the place is not
appropriate for the development of a clinic from a town planning
point of view. Appellant was unable to show that the public will be
disadvantaged if the proposed use is not allowed. As put by PITTMAN J
in Amalgamated
Sales (Pvt) Ltd v The City of Salisbury T 1280;
'It
is not enough for the applicant to show that the proposed use would
in some way be of advantage to the public in the area. There must be
a positive need for the use in the sense that the public will suffer
serious disadvantage if the obtrusive use is not allowed. There is a
difference between a use which if allowed will be of advantage to the
public, and a use which if not allowed will put the public at a
disadvantage. That difference must be recognized because otherwise
special consent uses instead of being jealously controlled as
obtrusive but necessary will become obtrusive and frequent…'.
It
is the duty of every town planning authority to be satisfied before
it grants any special consent, that there is a real need for that
particular development in that area. It has to be satisfied that the
residents of that area will be disadvantaged if that development is
disallowed. The appellant has failed to establish the need for this
clinic.”
This
Court, in City
of Salisbury v Sagit Trust Ltd (supra) at
p488-9 quoted with approval the following passage from Edwards
J's judgment in Tobacco Warehouse & Export Co. (1946) Ltd v
City Council of Salisbury & Ors (1966) T.1002 and T.1012:
“Need
is a factor proper to be taken into account before a special consent
is granted, but it is not in all cases essential. The claim of
convenience or other planning considerations may, without amounting
to positive need be strong enough to justify granting consent. For
example, a particular type of use may be a non-conforming use in a
particular zone, but, in a particular instance - the present is one -
its non-conformity may be so little obnoxious that its advantages may
justify its introduction even if the public would not be gravely
disadvantaged if it were not introduced. The essential test is
whether the proposed use or development is desirable….”
Thus
the approach of the courts in recent decisions, as set out in the
Sagit
case (supra), is
that although need is a factor to be taken into account before
special consent is granted, the essential test is whether the
proposed development is desirable.
It
seems to me that the court a
quo in
coming to a conclusion gave careful consideration to all aspects of
the matter.
For
example it took into account not only the respondent's views as to
the unsuitability of the place for the proposed use both from a
health and a nuisance point of view but also the appellant's views
as to the desirability of, and necessity for, a clinic in the area.
It considered whether the discretion of the respondent had been
properly exercised. Having agreed with the finding of the respondent
that the property was unsuitable for the proposed use, it went on to
consider whether there was a need for the proposed development and
found that no need had been shown to exist for it.
The
court a
quo adopted
the correct approach. As it was said in the Sagit
case,
(supra),
at
p490F-491A:
”In
any scheme which is concerned with human activity such as living in a
modern city a degree of flexibility is necessary to achieve at the
right balance. It is because hard and fast rules do not always
produce the best results that the scheme provides for a special
consent procedure. It would be wrong to so minimize that flexibility
by a rigid application of a rule to detract from its advantages. It
is necessary for the court in every case to apply its mind to all the
facts and circumstances, as well as to the need for some degree of
certainty and uniformity. But it should not shrink from looking
carefully at all the separate considerations to see just how strictly
to apply the guide-lines that have been evolved by its experience. It
must nevertheless be on guard against allowing an obtrusive activity
to be established which will upset the amenities of the area, and it
must not be persuaded to allow this by 'a welter of excuses for a
use for which no real need exists', to use the words of PITTMAN P,
in MacWelond's
case (supra).”
In
the circumstances it cannot be said that the issue of need was
overstated.
The
appellant had alleged in her application that the proposed
development was necessary. In my view it was proper for the court a
quo,
having found the proposed development to be undesirable, to consider
whether, notwithstanding its undesirability, it was necessary.
With
reference to the second ground of appeal, I am of the view that the
conclusion by the court a quo was sound and based on a careful
analysis of all the evidence. I therefore find no merit in the second
ground of appeal.
Accordingly
no basis has been shown for interference with the decision of the
court a
quo.
The
appeal is therefore dismissed with costs.
SANDURA
JA: I agree
GARWE
JA: I agree
T
H Chitapi & Associates,
appellant's legal practitioners
Kanokanga
& Partners,
respondent's legal practitioners
