CHATUKUTA
JA: This
was an appeal against the whole of the judgment of the Administrative
Court of Zimbabwe handed down on 7 September 2020 as case number
ACC87/19, judgment number AC9/20.
The
appeal was heard on 20 October 2021.
The
court proceeded to give an ex tempore judgment. It dismissed the
appeal with costs on a legal practitioner and client scale.
Written
reasons have been requested by the appellant. These are they.
BACKGROUND
FACTS
The
facts of the matter are common cause. The appellant owns a piece of
land known as Stand Number 18692 Boundary Road, Harare
Township in the District of Harare,
which lies within the second respondent`s area of jurisdiction.
The
first respondent is a trust that advocates for the protection and
preservation of wetlands for sustainable water provisioning within
Harare.
The
second respondent is the official of the third respondent which is
the local planning authority for Harare.
The
appellant intended to develop the site to build a church, a school
and a conference centre. It relied on a development permit issued by
the third respondents.
The
first respondent was opposed to the developments, hence it noted an
appeal in the court a
quo.
SUBMISSIONS
MADE IN THE COURT A
QUO
The
first respondent submitted in the court a quo that the development
permit was unprocedurally issued in violation of its justice rights.
It argued that the development permit was unlawful for the following
reasons:
(i)
That the second respondent was a local authority and had no power to
issue the permit in terms of the tenets of the Regional, Town and
Country Planning Act [Chapter
29:12].
(ii)
That the request for the permit was not made in accordance with the
application procedure prescribed by the same Act.
(iii)
That the application for the same had expired after three months and
could not be relied upon for the current permit.
(iv)
That there was no public notice of the development permit application
and consultation of the relevant stakeholders.
(v)
That the permit was vague because it did not clarify the description
of the development making it impossible to ascertain the nature of
the development proposed.
(vi)
That the development violated the beneficiaries Constitutionally
protected environmental rights; and
(vii)
That it violated the Environmental Impact Assessment Certificate
issued by the Environmental Management Agency which restricted the
development to 0.8169 hectares of the wetland area.
In
opposition of the appeal, the appellant argued that all the requisite
consultations and processes for obtaining the development permit were
complied with. It contended that the development permit was therefore
procured in terms of the law.
It
further argued that the site for the intended construction is not
ecologically sensitive and is therefore suitable for construction.
DETERMINATION
BY THE COURT A
QUO
The
court a
quo
made
the following findings:
The
conditions spelt out in the development permit had nothing to do with
the location of the proposed conference centre and they lacked
specificity and precision. The appellant did not submit an
application for a development permit as prescribed by the Regional,
Town and Country Planning Act. The appellant instead applied for
permission to change the use of Stand 18692.
The
appellant did not give public notice of the application for a
development permit or serve any such notice on every owner of the
property adjacent to Stand 18692 as is required in the Regional, Town
and Country Planning Act.
The
development permit issued to the appellant contradicted the
environmental impact assessment certificate which preceded and
authorised the issuance of the purported development permit.
The
development permit authorised erection of the buildings on 4.633
hectares whereas the environmental impact assessment certificate
permitted development on only 0.8169 hectares of the property.
The
court a
quo
consequently
upheld the first respondent`s appeal.
Aggrieved
by that decision,
the
appellant noted the present appeal on the following grounds:
GROUNDS
OF APPEAL
1.
The learned judge in the court a
quo
erred
in finding that there was no application for a development permit.
2.
The learned judge in the court a
quo
erred
in not taking into account that the development permit would
necessarily have to be read with the plans and drawings and would be
subject to conditions imposed for the purposes of development.
3.
The learned judge in the court a
quo
erred
in law in finding that section 26(3) of the Regional, Town and
Country Planning Act [Chapter
29:12]
was applicable and erred in finding that it was a requirement to give
public notice of an application for a development permit.
4.
The learned judge in the court a
quo
erred
in finding that the development permit contradicted the environmental
impact assessment certificate and failed to place any emphasis or
sufficient emphasis on the fact that the plans and drawings had been
submitted.
5.
The learned judge in the court a
quo
erred
in finding that the fact that there was no acknowledgement of the
application was fatal to the grant of the permit.
PROCEEDINGS
BEFORE THIS COURT
Grounds
1, 2, 3 and 5 raised by the appellant challenge the court a
quo's
finding that there was no application for a development permit.
Ground
4 challenges the court a
quo's
finding that the development permit contradicted the environmental
assessment certificate.
Ground
6 raises the issue of the first respondent's locus
standi
to
participate in the matter before the court a
quo
and by extension, in this appeal.
SUBMISSIONS
BY COUNSEL FOR THE APPELLANT
Mr.
Hashiti,
for the appellant, submitted that an application was made to the
third respondent in compliance with section 26 of the Regional, Town
and Country Planning Act. He further submitted that in the event that
the court finds that section 26 was not strictly complied with there
was substantial compliance and section 5 of the Interpretation Act
[Chapter
1:01]
would save the application.
Regarding
the alleged contradiction between the environmental impact assessment
certificate and the development permit, counsel submitted that the
conditions specified in the certificate were by implication,
incorporated in the development permit.
The
appellant's submissions on ground number 6 were that the first
respondent, not having participated in the antecedent proceedings,
had no
locus standi
to appeal against the grant of the permit.
Furthermore,
that the first respondent's Deed of Trust does not empower it to
act on behalf of the persons that it sought to represent.
SUBMISSIONS
MADE BY COUNSEL FOR THE FIRST RESPONDENT
Per
contra,
Miss Mahere,
for the
first
respondent, submitted as follows:
The
issue of the locus
standi
of the first respondent was not raised in the court a
quo
by the appellant. The court a
quo
therefore, cannot be faulted for not determining an issue that was
not before it.
Furthermore,
the High Court per CHINAMORA J, in Harare
Wetland Trust & Anor v New Life Covenant Church & Others
HH819/19 determined that the first respondent had locus
standi
to challenge the developments that the appellant was undertaking
without a development permit.
The
application relied on by the appellant did not comply with the
peremptory requirements of the Regional, Town and Country Planning
Development Regulations RGN 927/1976 as regards giving the public
notice of the development and serving such notice on the property
owners adjacent to the site.
Furthermore,
and in any event, the application, not having been determined within
the stipulated 3 months period, had been deemed refused by operation
of law in terms of section 26(7) of the Regional, Town and Country
Planning Act.
There
were contradiction between the Environmental Impact Assessment
Certificate (the EIAC) and the development permit as to the area of
the property on which construction would be undertaken. Further, the
conditions set out in the EIAC were not included in the development
permit, thereby creating the impression that there were no such
restrictions imposed.
ANALYSIS
The
sixth ground of appeal related to the question of the first
respondent's locus
standi.
The
court a
quo
did not make any pronouncement on the question. The
point is
not properly before this Court.
This
is so because firstly, the matter was not raised a
quo
despite the first respondent's contention that it had been raised.
The
issue which Mr Hashiti
alluded to as having been raised by the appellant in the court a
quo
relates to the jurisdiction of the second and third respondents and
not to the first respondent's locus
standi.
The
appellant's contention on the first respondent's locus
standi
therefore seeks to make this Court a second court of first instance.
This court cannot do so as it is an appellate court. (see Lungu
& Others v RBZ
SC26/2021).
The
circumstances of this case do not warrant such a course of action.
Furthermore,
and significantly so, in the related judgment by CHINAMORA J in
Harare
Wetland Trust & Anor v New Life Covenant Church & Others
(supra)
it
was determined that the first respondent had the requisite locus
standi
to challenge the developments in issue as they were being undertaken
without a development permit.
The
appellant had challenged the first respondent's locus
standi
to apply for an order declaring the developments on
Stand 1892 Boundary Road unlawful.
CHINAMORA J remarked at p9 that:
“In
light of the objectives stated in their constituent documents, I am
satisfied that the applicants have a direct and sufficient interest
in the subject matter and outcome of the litigation before me, and
are not mere meddlesome busybodies. The first applicant's principal
concern is the conservation of the wetland area where construction
work is being undertaken. That concern, in my view, implies a genuine
interest in the health and well-being of the residents proximate to
the construction area who may be affected by any interference with
the riverbank or public stream that flows near the site. The locus
standi
of the second applicant has not been challenged. I will not dwell on
that since the first respondent seems to have accepted that the
second respondent has the right to represent the interests of
residents in the neighbourhood of Newlands.”
It
is the court's view that the core issues before the learned Judge
emanated from the appellant's conduct of commencing developments on
the property without a development permit.
The
appellant had challenged the application, arguing that it was in
possession of a development permit issued by the third respondent.
The
court remarked at p15 that:
“Consequently,
I do not find anything in the letter of 9 May 2016 which authorizes
the development.”
The
question of a development permit was therefore one of the issues at
the core of the application before CHINAMORA J.
Such
an issue is a town planning issue and not just an environmental
issue.
The
pronouncement by CHINAMORA J on the first respondent's locus
standi
therefore related to the existence of a development permit.
The
submission by Mr
Hashiti
that the learned Judge had been called upon to determine only
environmental issues and that the question of the first respondent's
locus
standi
related to that issue only therefore lacks merit.
The
judgment by CHINAMORA J is extant. It has not been appealed against.
The
appellant cannot therefore be seen to be challenging the finding in
HH819/19 in this appeal.
On
the, merits, we are persuaded by Miss
Mahere's
submissions that the appellant did not possess a development permit.
The
record shows that no competent application for a development permit
was made.
The
document the appellant sought to rely on as a permit was an
incomplete, unstamped form dated 5 January 2018.
The
form was signed by one “Jabula”. There is no indication on the
form who Jabula is and that he was signing the form on behalf of the
appellant.
A
stamp for the third respondent appears on the form and bearing the
date 5 December 2019 as reflecting the date of approval of the
application.
The
record also shows that an application for the approval of building
plans was submitted to the third respondent sometime in November
2017. The application preceded the alleged date of approval of the
application for the development permit.
It
would not be conceivable that the appellant would seek approval of
development plans before it had been issued with a development
permit.
It
is therefore apparent that the appellant did not have a development
permit.
Assuming
that a permit was granted, the purported application for a
development permit did not comply with the peremptory provisions of
the Regional, Town and Country Planning Act.
The
appellant did not give public notice of its intended developments
neither did it notify the interested persons as is required in terms
of section 26(3). The appellant did not produce before the court a
quo
proof of such public notice. The public notice produced before the
court a
quo
related to the change of reservation application and not the
development permit application.
We
furthermore agree with the first respondent's submissions that,
assuming that there was a proper application for a permit before the
third respondent, it was in any event deemed refused in terms of
section 26(7) of the Regional, Town and Country Planning Act.
Section
26(7) reads:
“If
the local planning authority has not determined in terms of
subsection (6) an application in terms of subsection (1) within three
months of the date of acknowledgement in terms of subsection (2) of
the receipt of the application or any extension of that period
granted by the applicant in writing, the application shall be deemed
to have been refused by the local planning authority.”
The
application for a permit being relied on by the appellant was
purportedly made on 5 January 2018. The purported grant of the permit
was on 5 December 2019. This was clearly in excess, by almost two
years, of the 3 months period within which the application ought to
have been considered.
The
application had therefore been deemed refused by operation of law.
Under
the circumstances, the court a
quo
cannot
be faulted for holding that the appellant did not have a development
permit and neither was the purported application for the permit
valid. Having found that there was no application before the third
respondent, and that if there was one, it had been deemed refused by
operation of law, it is in our view not necessary to determine the
issue of the contradiction between the certificate and the permit.
It
was on this basis that it was the finding of the court that the
appeal had no merit.
Regarding
the issue of costs, it is our view that costs on a higher scale are
warranted.
The
appellant belatedly raised the issue of locus
standi
which had already been determined in a judgment that it has, to date,
not appealed against. In addition, that issue was not raised before
the court a
quo.
The first respondent was unnecessarily put out of pocket and thus
unnecessarily prejudiced.
It
was for the above reasons that the appeal was dismissed with costs on
a legal practitioner and client scale.
Gill
Godlonton & Gerrans,
appellant's
legal practitioners
Zimbabwe
Lawyers for Human Rights,
first
respondent's legal practitioners
