Procedural Law-viz declaratory order.
Procedural Law-viz declaratur.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz urgent chamber application re urgency iro time to act urgency.
Procedural Law-viz interim interdict re the seeking of final relief through urgent chamber applications.
Procedural Law-viz affidavits re founding affidavit iro the principle that a case stands or falls on the founding affidavit.
Procedural Law-viz affidavits re founding affidavit iro the rule that a case stands or falls on the founding affidavit.
Procedural Law-viz pleadings re non-pleaded issues iro the introducing of fresh matters for the first time in the answering affidavit.
Procedural Law-viz pleadings re matters not specifically pleaded iro the raising of new issues for the first time in the answering affidavit.
Procedural Law-viz non pleaded matters re the principle that a case stands or falls on the founding affidavit iro the introduction of new issues in the answering affidavit.
Procedural Law-viz issues not specifically pleaded re the rule that a case stands or falls on the founding affidavit iro the raising of matters for the first time in the answering affidavit.
Procedural Law-viz pleadings striking out of pleadings.
Procedural Law-viz disputes of fact re application proceedings.
Procedural Law-viz dispute of facts re motion proceedings.
Procedural Law-viz conflict of facts re material resolution.
Procedural Law-viz pleadings re withdrawal of pleadings.
Procedural Law-viz pleadings re admissions iro conversion of action proceedings to opposed application proceedings.
Procedural Law-viz pleadings re undisputed facts iro conversion of action proceedings to opposed application proceedings.
Procedural Law-viz jurisdiction re cause of action jurisdiction.
Administrative Law-viz the exercise of administrative discretion re judicial interference with administrative prerogative.
Procedural Law-viz review re Order 33 of the High Court Rules.
Procedural Law-viz review re section 27 of the High Court Act.
Local Authorities-viz land development re section 152 of the Urban Councils Act [Chapter 29:12].
Local Authorities-viz land development re Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
Local Authorities-viz land development re change of use of land iro section 22 of the Regional, Town and Country Planning Act [Chapter 29:12].
Local Authorities-viz land development re planning permit iro section 26 of the Regional, Town and Country Planning Act [Chapter 29:12].
Local Authorities-viz land development re development order iro section 24 of the Regional, Town and Country Planning Act [Chapter 29:12].
Local Authorities-viz land development re regularisation of illegal structures iro section 27 of the Regional, Town and Country Planning Act [Chapter 29:12].
Procedural Law-viz jurisdiction re concurrent jurisdiction.
Procedural Law-viz jurisdiction re statutory ouster provisions iro section 38 of the Regional, Town and Country Planning Act [Chapter 29;12].
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
On the date of hearing the first and second defendants raised certain points in limine, that, in my view, can more conveniently be dealt with together as opposed to separately.
My understanding of the points raised in limine is as follows -
(a) That this court lacks jurisdiction to hear the matter because section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] stipulates that any person aggrieved by a decision of a local planning authority has one month in which to lodge an appeal with the Administrative Court.
In casu, the plaintiff, apart from instituting proceedings in the wrong fora was also now out of time to appeal against the decision made by the second defendant.
(b) That, even if it were accepted that this court possesses review jurisdiction over decisions made by inferior bodies; in casu, the court is precluded from exercising its review powers by reason of non-compliance with Order 33 of the Rules of Court.
I consider that both points in limine are ill-conceived and without merit.
Firstly, an appeal lies with the Administrative Court, only if the decision being challenged is one which was made or deemed to have been made in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. Put differently, not all challenges against decisions made by a local authority lie with the Administrative Court unless they are made in terms of the Regional, Town and Country Planning Act [Chapter 29:12].
This is made abundantly clear when regard is had to the wording of section 38 of the Regional, Town and Country Planning Act. It reads, in relevant part;
"38(1) Any person -
(a) Who is aggrieved by any decision made or deemed to have been made by a local authority in connection with an application for -
(i) A permit or preliminary planning permission; or
(ii) Any permission required in terms of a development order, building preservation order, or tree preservation order; or
(iii) An extension of time as contemplated in paragraph (d) of subsection (1) of section twenty-two or subparagraph (ii) of paragraph (a) of subsection (2) of section twenty-four, may, within one month from the notification of such decision…, appeal to the Administrative Court…,."
All the matters stated in sub-paragraphs (i) to (iii) above are provided for by the Regional, Town and Country Planning Act [Chapter 29:12] i.e. section 26 provides for a planning permit, section 24 for a development order, sections 30 and 31 for building and tree preservation orders, respectively.
It is not in dispute that what transpired in casu is that the second defendant, by virtue of the powers conferred on it by section 152 of the Urban Councils Act, took a decision to lease the Stand to the first defendant.
It is obvious that this decision was neither made nor can it be deemed to have been made in terms of the Regional, Town and Country Planning Act.
In my understanding, the plaintiff is not complaining against the decision made by the second defendant to grant a lease to the first defendant, but, rather, that after obtaining the lease, the first defendant, in complete disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12], went ahead to erect or construct a mast on the Stand.
It is in this latter respect that the plaintiff is seeking redress.
Needless to say, this is not the type of complaint contemplated by section 38 of the Regional, Town and Country Planning Act, and, therefore, no appeal can be said to lie with the Administrative Court.
The above also puts paid to the second point in limine in that the plaintiff has not alleged any procedural irregularity in the manner the second defendant arrived at its decision to grant the lease, but simply alleges that, by omission and commission, he has been deprived of his rights through the defendants disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
In the circumstances, it cannot be said that the plaintiff is asking this court to review the decision made by the second defendant.
It must here be remembered that a review pertains to an alleged irregularity or illegality that is said to have occurred or been occasioned during the decision making process of a body inferior to the High Court: section 27 of the High Court Act.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
On the date of hearing the first and second defendants raised certain points in limine, that, in my view, can more conveniently be dealt with together as opposed to separately.
My understanding of the points raised in limine is as follows -
(a) That this court lacks jurisdiction to hear the matter because section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] stipulates that any person aggrieved by a decision of a local planning authority has one month in which to lodge an appeal with the Administrative Court.
In casu, the plaintiff, apart from instituting proceedings in the wrong fora was also now out of time to appeal against the decision made by the second defendant.
(b) That, even if it were accepted that this court possesses review jurisdiction over decisions made by inferior bodies; in casu, the court is precluded from exercising its review powers by reason of non-compliance with Order 33 of the Rules of Court.
I consider that both points in limine are ill-conceived and without merit.
Firstly, an appeal lies with the Administrative Court, only if the decision being challenged is one which was made or deemed to have been made in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. Put differently, not all challenges against decisions made by a local authority lie with the Administrative Court unless they are made in terms of the Regional, Town and Country Planning Act [Chapter 29:12].
This is made abundantly clear when regard is had to the wording of section 38 of the Regional, Town and Country Planning Act. It reads, in relevant part;
"38(1) Any person -
(a) Who is aggrieved by any decision made or deemed to have been made by a local authority in connection with an application for -
(i) A permit or preliminary planning permission; or
(ii) Any permission required in terms of a development order, building preservation order, or tree preservation order; or
(iii) An extension of time as contemplated in paragraph (d) of subsection (1) of section twenty-two or subparagraph (ii) of paragraph (a) of subsection (2) of section twenty-four, may, within one month from the notification of such decision…, appeal to the Administrative Court…,."
All the matters stated in sub-paragraphs (i) to (iii) above are provided for by the Regional, Town and Country Planning Act [Chapter 29:12] i.e. section 26 provides for a planning permit, section 24 for a development order, sections 30 and 31 for building and tree preservation orders, respectively.
It is not in dispute that what transpired in casu is that the second defendant, by virtue of the powers conferred on it by section 152 of the Urban Councils Act, took a decision to lease the Stand to the first defendant.
It is obvious that this decision was neither made nor can it be deemed to have been made in terms of the Regional, Town and Country Planning Act.
In my understanding, the plaintiff is not complaining against the decision made by the second defendant to grant a lease to the first defendant, but, rather, that after obtaining the lease, the first defendant, in complete disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12], went ahead to erect or construct a mast on the Stand.
It is in this latter respect that the plaintiff is seeking redress.
Needless to say, this is not the type of complaint contemplated by section 38 of the Regional, Town and Country Planning Act, and, therefore, no appeal can be said to lie with the Administrative Court.
The above also puts paid to the second point in limine in that the plaintiff has not alleged any procedural irregularity in the manner the second defendant arrived at its decision to grant the lease, but simply alleges that, by omission and commission, he has been deprived of his rights through the defendants disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
In the circumstances, it cannot be said that the plaintiff is asking this court to review the decision made by the second defendant.
It must here be remembered that a review pertains to an alleged irregularity or illegality that is said to have occurred or been occasioned during the decision making process of a body inferior to the High Court: section 27 of the High Court Act.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
On the date of hearing the first and second defendants raised certain points in limine, that, in my view, can more conveniently be dealt with together as opposed to separately.
My understanding of the points raised in limine is as follows -
(a) That this court lacks jurisdiction to hear the matter because section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] stipulates that any person aggrieved by a decision of a local planning authority has one month in which to lodge an appeal with the Administrative Court.
In casu, the plaintiff, apart from instituting proceedings in the wrong fora was also now out of time to appeal against the decision made by the second defendant.
(b) That, even if it were accepted that this court possesses review jurisdiction over decisions made by inferior bodies; in casu, the court is precluded from exercising its review powers by reason of non-compliance with Order 33 of the Rules of Court.
I consider that both points in limine are ill-conceived and without merit.
Firstly, an appeal lies with the Administrative Court, only if the decision being challenged is one which was made or deemed to have been made in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. Put differently, not all challenges against decisions made by a local authority lie with the Administrative Court unless they are made in terms of the Regional, Town and Country Planning Act [Chapter 29:12].
This is made abundantly clear when regard is had to the wording of section 38 of the Regional, Town and Country Planning Act. It reads, in relevant part;
"38(1) Any person -
(a) Who is aggrieved by any decision made or deemed to have been made by a local authority in connection with an application for -
(i) A permit or preliminary planning permission; or
(ii) Any permission required in terms of a development order, building preservation order, or tree preservation order; or
(iii) An extension of time as contemplated in paragraph (d) of subsection (1) of section twenty-two or subparagraph (ii) of paragraph (a) of subsection (2) of section twenty-four, may, within one month from the notification of such decision…, appeal to the Administrative Court…,."
All the matters stated in sub-paragraphs (i) to (iii) above are provided for by the Regional, Town and Country Planning Act [Chapter 29:12] i.e. section 26 provides for a planning permit, section 24 for a development order, sections 30 and 31 for building and tree preservation orders, respectively.
It is not in dispute that what transpired in casu is that the second defendant, by virtue of the powers conferred on it by section 152 of the Urban Councils Act, took a decision to lease the Stand to the first defendant.
It is obvious that this decision was neither made nor can it be deemed to have been made in terms of the Regional, Town and Country Planning Act.
In my understanding, the plaintiff is not complaining against the decision made by the second defendant to grant a lease to the first defendant, but, rather, that after obtaining the lease, the first defendant, in complete disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12], went ahead to erect or construct a mast on the Stand.
It is in this latter respect that the plaintiff is seeking redress.
Needless to say, this is not the type of complaint contemplated by section 38 of the Regional, Town and Country Planning Act, and, therefore, no appeal can be said to lie with the Administrative Court.
The above also puts paid to the second point in limine in that the plaintiff has not alleged any procedural irregularity in the manner the second defendant arrived at its decision to grant the lease, but simply alleges that, by omission and commission, he has been deprived of his rights through the defendants disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
In the circumstances, it cannot be said that the plaintiff is asking this court to review the decision made by the second defendant.
It must here be remembered that a review pertains to an alleged irregularity or illegality that is said to have occurred or been occasioned during the decision making process of a body inferior to the High Court: section 27 of the High Court Act.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
On the date of hearing the first and second defendants raised certain points in limine, that, in my view, can more conveniently be dealt with together as opposed to separately.
My understanding of the points raised in limine is as follows -
(a) That this court lacks jurisdiction to hear the matter because section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] stipulates that any person aggrieved by a decision of a local planning authority has one month in which to lodge an appeal with the Administrative Court.
In casu, the plaintiff, apart from instituting proceedings in the wrong fora was also now out of time to appeal against the decision made by the second defendant.
(b) That, even if it were accepted that this court possesses review jurisdiction over decisions made by inferior bodies; in casu, the court is precluded from exercising its review powers by reason of non-compliance with Order 33 of the Rules of Court.
I consider that both points in limine are ill-conceived and without merit.
Firstly, an appeal lies with the Administrative Court, only if the decision being challenged is one which was made or deemed to have been made in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. Put differently, not all challenges against decisions made by a local authority lie with the Administrative Court unless they are made in terms of the Regional, Town and Country Planning Act [Chapter 29:12].
This is made abundantly clear when regard is had to the wording of section 38 of the Regional, Town and Country Planning Act. It reads, in relevant part;
"38(1) Any person -
(a) Who is aggrieved by any decision made or deemed to have been made by a local authority in connection with an application for -
(i) A permit or preliminary planning permission; or
(ii) Any permission required in terms of a development order, building preservation order, or tree preservation order; or
(iii) An extension of time as contemplated in paragraph (d) of subsection (1) of section twenty-two or subparagraph (ii) of paragraph (a) of subsection (2) of section twenty-four, may, within one month from the notification of such decision…, appeal to the Administrative Court…,."
All the matters stated in sub-paragraphs (i) to (iii) above are provided for by the Regional, Town and Country Planning Act [Chapter 29:12] i.e. section 26 provides for a planning permit, section 24 for a development order, sections 30 and 31 for building and tree preservation orders, respectively.
It is not in dispute that what transpired in casu is that the second defendant, by virtue of the powers conferred on it by section 152 of the Urban Councils Act, took a decision to lease the Stand to the first defendant.
It is obvious that this decision was neither made nor can it be deemed to have been made in terms of the Regional, Town and Country Planning Act.
In my understanding, the plaintiff is not complaining against the decision made by the second defendant to grant a lease to the first defendant, but, rather, that after obtaining the lease, the first defendant, in complete disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12], went ahead to erect or construct a mast on the Stand.
It is in this latter respect that the plaintiff is seeking redress.
Needless to say, this is not the type of complaint contemplated by section 38 of the Regional, Town and Country Planning Act, and, therefore, no appeal can be said to lie with the Administrative Court.
The above also puts paid to the second point in limine in that the plaintiff has not alleged any procedural irregularity in the manner the second defendant arrived at its decision to grant the lease, but simply alleges that, by omission and commission, he has been deprived of his rights through the defendants disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
In the circumstances, it cannot be said that the plaintiff is asking this court to review the decision made by the second defendant.
It must here be remembered that a review pertains to an alleged irregularity or illegality that is said to have occurred or been occasioned during the decision making process of a body inferior to the High Court: section 27 of the High Court Act.
Before dealing with the merits of the case, I wish to make the following observation:
A local authority, such as the City of Harare, is empowered by section 152 of the Urban Councils Act to alienate any land it owns through sell, exchange, lease, donation or otherwise dispose of or permit the use of it. In doing so, the local authority is obliged to comply with the requirements as stipulated in that provision.
In casu, this is exactly what the second defendant did and no criticism can be warranted in that regard.
However, it must be remembered that the fact that a local authority or Council is so empowered should not be construed as exempting it or any other person from complying with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
Thus, where it is intended to develop the land alienated by a local authority, all provisions of Part V aforesaid must be adhered with. This includes applying for a planning permit in terms of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12].
I now turn to determine the case on the merits.
The first issue for determination is whether the first defendant was, by law, required to obtain permission to erect or construct the mast?
The resolution of this issue depends on whether the erection or construction of the mast constitutes development as defined by the Regional, Town and Country Planning Act.
Part V thereof provides for the control of development of land and buildings and section 22 defines what is meant by the term "development".
In terms of subsection 1(a) thereof, the carrying out, on land, of any building constitutes development, and, in terms of sub-section 1(b), the altering of the character of the use of any land also constitutes development.
The facts in casu show that the first defendant erected a cellular base station or mast on the Stand.
To my mind, a structure such as this falls within the definition of a building as provided for by the Regional, Town and Country Planning Act. In this regard, section 2 thereof defines "building" as including 'any structure or erection or part thereof, including a swimming pool'.
It thus follows that, by virtue of subparagraph (a) of subsection. (1) of section 22 of the Regional, Town and Country Planning Act the construction of the mast constituted development and was therefore subject to the requirements of Part V of the Regional, Town and Country Planning Act.
Additionally, and, in any event, the facts, as can be gleaned from the papers, reveal that the Stand, measuring 140 square metres, is part of a piece of land that is designated for use as a recreational park.
As already alluded to, section 22(1)(b) of the Regional, Town and Country Planning Act stipulates that the altering of the character of the use of land constitutes development within the meaning of that term in the Regional, Town and Country Planning Act, save if the new use and the old use both fall within the same prescribed group of land uses (sub-paragraph (b)(i)).
The erection or construction of a cellular mast on land designated for use as a recreational park can hardly be described as simply change of use falling within the same prescribed group of uses of land. It is more than that. It amounts to the altering of the character of the use of land and therefore is development as defined by the Regional, Town and Country Planning Act: see, generally, Mutare City Council v Wildlife Society of Zimbabwe 2001 (2) ZLR 275 (S).
What this means is that, in casu, the first defendant was required, by law, to obtain a planning permit in terms of section 26 of the Regional, Town and Country Planning Act.
Section 24 thereof proscribes the carrying out of any development unless permitted in terms of a development order or in accordance with a permit issued in terms of section 26.
I therefore find that the erection of the cellular mast on the Stand was not carried out in terms of any development order nor was it done in accordance with a permit issued in terms of section 26 of the Regional, Town and Country Planning Act.
It follows that the cellular mast erected by the first defendant on the Stand is an illegal structure and ought not to have been erected without first obtaining a development order or planning permit.
From the foregoing, it is obvious that the second triable issue, as identified at the pre-trial conference, must be answered in the negative.
This is so because on receipt of an application for a planning permit, section 26(3) of the Regional, Town and Country Planning Act obliges the local planning authority to require the applicant to give public notice of his application and to serve notice of the application on every owner of property adjacent to the land to which the application relates.
None of this was done.
The appropriate remedy
The plaintiff seeks, as the main remedy, the removal of the mast and restoration of the Stand to its original condition before the impugned development took place.
In my view, such an order is, at this stage, both incompetent and pre-mature. This is so because section 27 of the Regional, Town and Country Planning Act permits for an application to be made to regularise any development that has been carried out without the requisite development order. It reads -
"27 Regularisation of buildings, uses or operations
Where any development has been carried out in contravention of section twenty-four an application may be made in terms of section twenty-six in respect of that development and the local planning authority shall deal with that application in terms of that section but any permit granted thereunder shall take effect from the date on which the buildings were constructed, the operations were carried out, or the use was instituted, as the case may be."
The first defendant, therefore, has open to it recourse to this provision. It is for this reason that, although finding in favour of the plaintiff, I decline to issue the main order sought, but, instead, will issue the alternative order prayed for.
In the result, the application succeeds and it is ordered as follows -
1. That the first and second defendants comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
2. That the first and second defendant jointly and severally, the one paying the other to be absolved, shall pay the costs of suit.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
On the date of hearing the first and second defendants raised certain points in limine, that, in my view, can more conveniently be dealt with together as opposed to separately.
My understanding of the points raised in limine is as follows -
(a) That this court lacks jurisdiction to hear the matter because section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] stipulates that any person aggrieved by a decision of a local planning authority has one month in which to lodge an appeal with the Administrative Court.
In casu, the plaintiff, apart from instituting proceedings in the wrong fora was also now out of time to appeal against the decision made by the second defendant.
(b) That, even if it were accepted that this court possesses review jurisdiction over decisions made by inferior bodies; in casu, the court is precluded from exercising its review powers by reason of non-compliance with Order 33 of the Rules of Court.
I consider that both points in limine are ill-conceived and without merit.
Firstly, an appeal lies with the Administrative Court, only if the decision being challenged is one which was made or deemed to have been made in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. Put differently, not all challenges against decisions made by a local authority lie with the Administrative Court unless they are made in terms of the Regional, Town and Country Planning Act [Chapter 29:12].
This is made abundantly clear when regard is had to the wording of section 38 of the Regional, Town and Country Planning Act. It reads, in relevant part;
"38(1) Any person -
(a) Who is aggrieved by any decision made or deemed to have been made by a local authority in connection with an application for -
(i) A permit or preliminary planning permission; or
(ii) Any permission required in terms of a development order, building preservation order, or tree preservation order; or
(iii) An extension of time as contemplated in paragraph (d) of subsection (1) of section twenty-two or subparagraph (ii) of paragraph (a) of subsection (2) of section twenty-four, may, within one month from the notification of such decision…, appeal to the Administrative Court…,."
All the matters stated in sub-paragraphs (i) to (iii) above are provided for by the Regional, Town and Country Planning Act [Chapter 29:12] i.e. section 26 provides for a planning permit, section 24 for a development order, sections 30 and 31 for building and tree preservation orders, respectively.
It is not in dispute that what transpired in casu is that the second defendant, by virtue of the powers conferred on it by section 152 of the Urban Councils Act, took a decision to lease the Stand to the first defendant.
It is obvious that this decision was neither made nor can it be deemed to have been made in terms of the Regional, Town and Country Planning Act.
In my understanding, the plaintiff is not complaining against the decision made by the second defendant to grant a lease to the first defendant, but, rather, that after obtaining the lease, the first defendant, in complete disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12], went ahead to erect or construct a mast on the Stand.
It is in this latter respect that the plaintiff is seeking redress.
Needless to say, this is not the type of complaint contemplated by section 38 of the Regional, Town and Country Planning Act, and, therefore, no appeal can be said to lie with the Administrative Court.
The above also puts paid to the second point in limine in that the plaintiff has not alleged any procedural irregularity in the manner the second defendant arrived at its decision to grant the lease, but simply alleges that, by omission and commission, he has been deprived of his rights through the defendants disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
In the circumstances, it cannot be said that the plaintiff is asking this court to review the decision made by the second defendant.
It must here be remembered that a review pertains to an alleged irregularity or illegality that is said to have occurred or been occasioned during the decision making process of a body inferior to the High Court: section 27 of the High Court Act.
Before dealing with the merits of the case, I wish to make the following observation:
A local authority, such as the City of Harare, is empowered by section 152 of the Urban Councils Act to alienate any land it owns through sell, exchange, lease, donation or otherwise dispose of or permit the use of it. In doing so, the local authority is obliged to comply with the requirements as stipulated in that provision.
In casu, this is exactly what the second defendant did and no criticism can be warranted in that regard.
However, it must be remembered that the fact that a local authority or Council is so empowered should not be construed as exempting it or any other person from complying with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
Thus, where it is intended to develop the land alienated by a local authority, all provisions of Part V aforesaid must be adhered with. This includes applying for a planning permit in terms of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12].
I now turn to determine the case on the merits.
The first issue for determination is whether the first defendant was, by law, required to obtain permission to erect or construct the mast?
The resolution of this issue depends on whether the erection or construction of the mast constitutes development as defined by the Regional, Town and Country Planning Act.
Part V thereof provides for the control of development of land and buildings and section 22 defines what is meant by the term "development".
In terms of subsection 1(a) thereof, the carrying out, on land, of any building constitutes development, and, in terms of sub-section 1(b), the altering of the character of the use of any land also constitutes development.
The facts in casu show that the first defendant erected a cellular base station or mast on the Stand.
To my mind, a structure such as this falls within the definition of a building as provided for by the Regional, Town and Country Planning Act. In this regard, section 2 thereof defines "building" as including 'any structure or erection or part thereof, including a swimming pool'.
It thus follows that, by virtue of subparagraph (a) of subsection. (1) of section 22 of the Regional, Town and Country Planning Act the construction of the mast constituted development and was therefore subject to the requirements of Part V of the Regional, Town and Country Planning Act.
Additionally, and, in any event, the facts, as can be gleaned from the papers, reveal that the Stand, measuring 140 square metres, is part of a piece of land that is designated for use as a recreational park.
As already alluded to, section 22(1)(b) of the Regional, Town and Country Planning Act stipulates that the altering of the character of the use of land constitutes development within the meaning of that term in the Regional, Town and Country Planning Act, save if the new use and the old use both fall within the same prescribed group of land uses (sub-paragraph (b)(i)).
The erection or construction of a cellular mast on land designated for use as a recreational park can hardly be described as simply change of use falling within the same prescribed group of uses of land. It is more than that. It amounts to the altering of the character of the use of land and therefore is development as defined by the Regional, Town and Country Planning Act: see, generally, Mutare City Council v Wildlife Society of Zimbabwe 2001 (2) ZLR 275 (S).
What this means is that, in casu, the first defendant was required, by law, to obtain a planning permit in terms of section 26 of the Regional, Town and Country Planning Act.
Section 24 thereof proscribes the carrying out of any development unless permitted in terms of a development order or in accordance with a permit issued in terms of section 26.
I therefore find that the erection of the cellular mast on the Stand was not carried out in terms of any development order nor was it done in accordance with a permit issued in terms of section 26 of the Regional, Town and Country Planning Act.
It follows that the cellular mast erected by the first defendant on the Stand is an illegal structure and ought not to have been erected without first obtaining a development order or planning permit.
From the foregoing, it is obvious that the second triable issue, as identified at the pre-trial conference, must be answered in the negative.
This is so because on receipt of an application for a planning permit, section 26(3) of the Regional, Town and Country Planning Act obliges the local planning authority to require the applicant to give public notice of his application and to serve notice of the application on every owner of property adjacent to the land to which the application relates.
None of this was done.
The appropriate remedy
The plaintiff seeks, as the main remedy, the removal of the mast and restoration of the Stand to its original condition before the impugned development took place.
In my view, such an order is, at this stage, both incompetent and pre-mature. This is so because section 27 of the Regional, Town and Country Planning Act permits for an application to be made to regularise any development that has been carried out without the requisite development order. It reads -
"27 Regularisation of buildings, uses or operations
Where any development has been carried out in contravention of section twenty-four an application may be made in terms of section twenty-six in respect of that development and the local planning authority shall deal with that application in terms of that section but any permit granted thereunder shall take effect from the date on which the buildings were constructed, the operations were carried out, or the use was instituted, as the case may be."
The first defendant, therefore, has open to it recourse to this provision. It is for this reason that, although finding in favour of the plaintiff, I decline to issue the main order sought, but, instead, will issue the alternative order prayed for.
In the result, the application succeeds and it is ordered as follows -
1. That the first and second defendants comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
2. That the first and second defendant jointly and severally, the one paying the other to be absolved, shall pay the costs of suit.
The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority responsible for and in charge of the Council area within the City of Harare.
On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -
(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.
(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:
(i) Vacate stand 648 Ballantyne Park.
(ii) Remove its cell phone base station.
(iii) Restore stand 648 to the condition it was in prior to erecting the base station.
ALTERNATIVELY:
Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).
(b) Costs of suit.
The facts bringing rise to this suit can conveniently be summarised as follows:
1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").
2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.
3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.
4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.
5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.
6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.
7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -
"Re: Cellphone Mast in Ballantyne Park
I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.
I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.
Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.
I should be grateful if you would give this matter your urgent attention."
8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.
Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.
The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -
"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."
This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.
In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.
He proceeded to dismiss the application in its original form, on the grounds, inter alia, that, it was incapable of resolving without hearing evidence.
Following this, the plaintiff, on or about 8 January 2008, filed this action predicated on the ground that was earlier struck out, namely, that the defendants had failed to comply with and/or had totally ignored the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
At a pre-trial conference held on 23 October 2008, the following issues were identified as requiring determination -
1. Was the first defendant required, by the law, to obtain a development permit?
2. Was the plaintiff given the required notice to object to the development?
3. Does the first defendant's Base Station constitute a nuisance?
Prior to the commencement of the trial, the parties agreed that issues 1 and 2 predominately involved questions of law and would not therefore require the adduction of evidence.
In addition, the plaintiff, on his own volition, formally withdrew the third issue.
The result was that the case effectively proceeded on the basis of an opposed application.
On the date of hearing the first and second defendants raised certain points in limine, that, in my view, can more conveniently be dealt with together as opposed to separately.
My understanding of the points raised in limine is as follows -
(a) That this court lacks jurisdiction to hear the matter because section 38 of the Regional, Town and Country Planning Act [Chapter 29:12] stipulates that any person aggrieved by a decision of a local planning authority has one month in which to lodge an appeal with the Administrative Court.
In casu, the plaintiff, apart from instituting proceedings in the wrong fora was also now out of time to appeal against the decision made by the second defendant.
(b) That, even if it were accepted that this court possesses review jurisdiction over decisions made by inferior bodies; in casu, the court is precluded from exercising its review powers by reason of non-compliance with Order 33 of the Rules of Court.
I consider that both points in limine are ill-conceived and without merit.
Firstly, an appeal lies with the Administrative Court, only if the decision being challenged is one which was made or deemed to have been made in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. Put differently, not all challenges against decisions made by a local authority lie with the Administrative Court unless they are made in terms of the Regional, Town and Country Planning Act [Chapter 29:12].
This is made abundantly clear when regard is had to the wording of section 38 of the Regional, Town and Country Planning Act. It reads, in relevant part;
"38(1) Any person -
(a) Who is aggrieved by any decision made or deemed to have been made by a local authority in connection with an application for -
(i) A permit or preliminary planning permission; or
(ii) Any permission required in terms of a development order, building preservation order, or tree preservation order; or
(iii) An extension of time as contemplated in paragraph (d) of subsection (1) of section twenty-two or subparagraph (ii) of paragraph (a) of subsection (2) of section twenty-four, may, within one month from the notification of such decision…, appeal to the Administrative Court…,."
All the matters stated in sub-paragraphs (i) to (iii) above are provided for by the Regional, Town and Country Planning Act [Chapter 29:12] i.e. section 26 provides for a planning permit, section 24 for a development order, sections 30 and 31 for building and tree preservation orders, respectively.
It is not in dispute that what transpired in casu is that the second defendant, by virtue of the powers conferred on it by section 152 of the Urban Councils Act, took a decision to lease the Stand to the first defendant.
It is obvious that this decision was neither made nor can it be deemed to have been made in terms of the Regional, Town and Country Planning Act.
In my understanding, the plaintiff is not complaining against the decision made by the second defendant to grant a lease to the first defendant, but, rather, that after obtaining the lease, the first defendant, in complete disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12], went ahead to erect or construct a mast on the Stand.
It is in this latter respect that the plaintiff is seeking redress.
Needless to say, this is not the type of complaint contemplated by section 38 of the Regional, Town and Country Planning Act, and, therefore, no appeal can be said to lie with the Administrative Court.
The above also puts paid to the second point in limine in that the plaintiff has not alleged any procedural irregularity in the manner the second defendant arrived at its decision to grant the lease, but simply alleges that, by omission and commission, he has been deprived of his rights through the defendants disregard of the mandatory requirements of the Regional, Town and Country Planning Act [Chapter 29:12].
In the circumstances, it cannot be said that the plaintiff is asking this court to review the decision made by the second defendant.
It must here be remembered that a review pertains to an alleged irregularity or illegality that is said to have occurred or been occasioned during the decision making process of a body inferior to the High Court: section 27 of the High Court Act.
Before dealing with the merits of the case, I wish to make the following observation:
A local authority, such as the City of Harare, is empowered by section 152 of the Urban Councils Act to alienate any land it owns through sell, exchange, lease, donation or otherwise dispose of or permit the use of it. In doing so, the local authority is obliged to comply with the requirements as stipulated in that provision.
In casu, this is exactly what the second defendant did and no criticism can be warranted in that regard.
However, it must be remembered that the fact that a local authority or Council is so empowered should not be construed as exempting it or any other person from complying with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
Thus, where it is intended to develop the land alienated by a local authority, all provisions of Part V aforesaid must be adhered with. This includes applying for a planning permit in terms of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12].
I now turn to determine the case on the merits.
The first issue for determination is whether the first defendant was, by law, required to obtain permission to erect or construct the mast?
The resolution of this issue depends on whether the erection or construction of the mast constitutes development as defined by the Regional, Town and Country Planning Act.
Part V thereof provides for the control of development of land and buildings and section 22 defines what is meant by the term "development".
In terms of subsection 1(a) thereof, the carrying out, on land, of any building constitutes development, and, in terms of sub-section 1(b), the altering of the character of the use of any land also constitutes development.
The facts in casu show that the first defendant erected a cellular base station or mast on the Stand.
To my mind, a structure such as this falls within the definition of a building as provided for by the Regional, Town and Country Planning Act. In this regard, section 2 thereof defines "building" as including 'any structure or erection or part thereof, including a swimming pool'.
It thus follows that, by virtue of subparagraph (a) of subsection. (1) of section 22 of the Regional, Town and Country Planning Act the construction of the mast constituted development and was therefore subject to the requirements of Part V of the Regional, Town and Country Planning Act.
Additionally, and, in any event, the facts, as can be gleaned from the papers, reveal that the Stand, measuring 140 square metres, is part of a piece of land that is designated for use as a recreational park.
As already alluded to, section 22(1)(b) of the Regional, Town and Country Planning Act stipulates that the altering of the character of the use of land constitutes development within the meaning of that term in the Regional, Town and Country Planning Act, save if the new use and the old use both fall within the same prescribed group of land uses (sub-paragraph (b)(i)).
The erection or construction of a cellular mast on land designated for use as a recreational park can hardly be described as simply change of use falling within the same prescribed group of uses of land. It is more than that. It amounts to the altering of the character of the use of land and therefore is development as defined by the Regional, Town and Country Planning Act: see, generally, Mutare City Council v Wildlife Society of Zimbabwe 2001 (2) ZLR 275 (S).
What this means is that, in casu, the first defendant was required, by law, to obtain a planning permit in terms of section 26 of the Regional, Town and Country Planning Act.
Section 24 thereof proscribes the carrying out of any development unless permitted in terms of a development order or in accordance with a permit issued in terms of section 26.
I therefore find that the erection of the cellular mast on the Stand was not carried out in terms of any development order nor was it done in accordance with a permit issued in terms of section 26 of the Regional, Town and Country Planning Act.
It follows that the cellular mast erected by the first defendant on the Stand is an illegal structure and ought not to have been erected without first obtaining a development order or planning permit.
From the foregoing, it is obvious that the second triable issue, as identified at the pre-trial conference, must be answered in the negative.
This is so because on receipt of an application for a planning permit, section 26(3) of the Regional, Town and Country Planning Act obliges the local planning authority to require the applicant to give public notice of his application and to serve notice of the application on every owner of property adjacent to the land to which the application relates.
None of this was done.
The appropriate remedy
The plaintiff seeks, as the main remedy, the removal of the mast and restoration of the Stand to its original condition before the impugned development took place.
In my view, such an order is, at this stage, both incompetent and pre-mature. This is so because section 27 of the Regional, Town and Country Planning Act permits for an application to be made to regularise any development that has been carried out without the requisite development order. It reads -
"27 Regularisation of buildings, uses or operations
Where any development has been carried out in contravention of section twenty-four an application may be made in terms of section twenty-six in respect of that development and the local planning authority shall deal with that application in terms of that section but any permit granted thereunder shall take effect from the date on which the buildings were constructed, the operations were carried out, or the use was instituted, as the case may be."
The first defendant, therefore, has open to it recourse to this provision. It is for this reason that, although finding in favour of the plaintiff, I decline to issue the main order sought, but, instead, will issue the alternative order prayed for.
In the result, the application succeeds and it is ordered as follows -
1. That the first and second defendants comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12].
2. That the first and second defendant jointly and severally, the one paying the other to be absolved, shall pay the costs of suit.
OMERJEE J: The
plaintiff is a private person, residing at Stand 64 of Lot 7A Colne
Valley, commonly known as No. 5 Wellburn Drive, Ballantyne Park,
Harare. The 1st
Defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated
in accordance with the laws of Zimbabwe and the 2nd
defendant is the authority responsible for and in charge of the
Council area within the city of Harare.
On
8 January 2008 the plaintiff issued summons and a declaration against
both defendants seeking an order -
(a)
Declaring the lease agreement entered into, on or about 27 February
2007, between 1st
and 2nd
defendants to be of no force or effect.
(b)
Requiring 1st
defendant, on the basis that its cell phone base station encroaches
on his land and constitutes a nuisance to:
(i)
vacate stand 648 Ballantyne Park.
(ii)
remove its cell phone base station.
(iii)
restore stand 648 to the condition it was in, prior to erecting the
base station.
ALTERNATIVELY:
Requiring
1st
and 2nd
defendants to comply with the requirements of Part V of the Regional,
Town and Country Planning Act [cap.
29:12]
(“the Planning Act”).
(b)
Costs of suit.
The
facts bringing rise to this suit can conveniently be summarised as
follows -
1.
Sometime in January 2006, the 1st
defendant approached the 2nd
defendant with a view to leasing from the latter, a certain piece of
land measuring 140 square metres, known as Stand No. 648 Ballantyne
Park, Colne Valley, Harare ("the Stand").
2.
The 1st
defendant wished to lease the Stand for purposes of erecting and
subsequently operating a Cellular Base Station ("Mast")
thereon.
3.
In compliance with the provisions of s.152(2)
of the Urban Councils Act [cap.
29:15]
the 2nd
defendant caused to be published notices of its intention to lease
the Stand to the 1st
defendant, in both the Business Herald and the Herald newspapers of
13 and 20 October 2006 respectively.
4.
The twenty-one day limit for lodging objections as required by
s.152(2)(b)
having elapsed without receipt of any objections, 1st
and 2nd
defendants, on or about 27 February 2007 proceeded to conclude a
lease agreement pertaining to the Stand.
5.
Of significance clause 5 of the lease agreement stipulated that the
Stand was to be used for the installation and operation of a Cellular
Base Station.
6.
On the basis of this lease agreement the 1st
defendant commenced to construct or erect a Mast on the Stand.
7.
When plaintiff, whose premises is directly adjacent to the Stand,
noticed what was transpiring, he addressed letters of protest, dated
24 April 2007, to, amongst
others,
the 2nd
defendant and in particular for the attention of the Acting Town
Planner, a Mr. A. Kasiwamhura. This letter read -
"Re:
Cellphone Mast in Ballantyne Park
I
note with concern that a cellphone mast is being erected in
Ballantyne Park adjacent to my boundary wall. I have not had any
notification of this at all and I have checked with the two
neighbours directly opposite who say they have not been notified
either.
I
would like work on this structure stopped with immediate effect as
correct procedures have obviously not been followed. This structure
also extends within the building line on my boundary wall.
Further
to this, there are severe health hazards caused by E.M.R.
[electromagnetic radiation] associated with cellphone masts and they
should not be erected in such close proximity to residential
properties, especially if these house children.
I
should be grateful if you would give this matter your urgent
attention."
8.
Neither defendant was moved by these protestations, as both held the
view that adherence to and compliance with all the necessary legal
formalities had been met and therefore under the circumstances
halting the erection of the mast was not warranted.
Faced
with this scenario the plaintiff, on 8 June 2007, filed with this
court, what he purported to be an urgent chamber application seeking
interim relief compelling the removal of the mast and restoration of
the Stand to its original condition, by the 1st
defendant.
The
matter was placed before my brother Hlatshwayo
J who in declining to hear it on an urgent basis, ruled that -
"the
matter is not urgent because of the delay in instituting legal
proceedings after the encroachment was noticed and because of the
final nature of the interim relief sought. The matter should be set
down on the normal opposed roll."
This
prompted the plaintiff to enrol it on the opposed roll of 31 October
2007 using the same set of papers as originally filed.
In
his initial papers the plaintiff had predicated his case on an
alleged non-compliance with the provisions of s.152
of the Urban Councils Act, but subsequently in his answering
affidavit he introduced the matter of non-compliance with the
requirements of the Planning Act.
My
brother Chitakunye
J who presided over the opposed application ruled that this latter
aspect be "struck out" on the basis that it introduced a
new cause of action.
He
proceeded to dismiss the application in its original form, on the
grounds, inter
alia
that it was incapable of resolving without hearing evidence.
Following
this the plaintiff, on or about the 8 January 2008, filed this action
predicated on the ground that was earlier struck out, namely, that
the defendants had failed to comply with and/or had totally ignored
the requirements of the Planning Act.
At
a pre-trial conference held on 23 October 2008 the following issues
were identified as requiring determination -
1.
Was the 1st
defendant required by the law to obtain a development permit?
2.
Was plaintiff given the required notice to object to the development?
3.
Does 1st
defendant's Base Station constitute a nuisance?
Prior
to the commencement of the trial the parties agreed that issues 1 and
2 predominately involved questions of law and would not therefore
require the adduction of evidence.
In
addition the plaintiff, on his own volition, formally withdrew the
third issue.
The
result was that the case effectively proceeded on the basis of an
opposed application.
On
the date of hearing the 1st
and 2nd
defendants raised certain points in
limine
that, in my view, can more conveniently be dealt with together as
opposed to separately.
My
understanding of the points raised in
limine
is as follows -
(a)
That this court lacks jurisdiction to hear the matter because s.38
of the Planning Act stipulates that any person aggrieved by a
decision of a local planning authority has one month in which to
lodge an appeal with the Administrative Court. In casu,
the plaintiff, apart from instituting proceedings in the wrong fora
was also now out of time to appeal against the decision made by the
2nd
defendant.
(b)
That even if it were accepted that this court possesses review
jurisdiction over decisions made by inferior bodies, in casu
the court is precluded from exercising its review powers by reason of
non-compliance with Order 33 of the Rules of Court.
I
consider that both points in
limine
are ill conceived and without merit.
Firstly,
an appeal lies with the Administrative Court, only
if the decision being challenged is one, which was made or deemed to
have been made in terms of the Planning Act. Put differently, not all
challenges against decisions made by a local authority lie with the
Administrative Court unless they are made in terms of the Planning
Act.
This
is made abundantly clear when regard is had to the wording of s.38.
It reads in relevant part -
"38(1)
Any person -
(a)
Who is aggrieved by any decision made or deemed to have been made by
a local authority in connection with an application for -
(i)
a permit or preliminary planning permission; or
(ii)
any permission required in terms of a development order, building
preservation order or tree preservation order; or
(iii)
an extension of time as contemplated in paragraph (d)
of subsection (1) of section twenty-two
or subparagraph (ii) of paragraph (a)
of subsection (2) of section twenty-four
may,
within one month from the notification of such decision, …, appeal
to the Administrative Court …"
All
the matters stated in subparas
(i) to (iii) above are provided for by the Planning Act i.e. s
26
provides for a planning permit, s.24
for a development order, ss.30
and 31 for building and tree preservation orders, respectively.
It
is not in dispute that what transpired in casu
is that the 2nd
defendant by virtue of the powers conferred on it by s.152
of the Urban Councils Act took a decision to lease the Stand to the
1st
defendant.
It
is obvious that this decision was neither made nor can it be deemed
to have been made in terms of the Planning Act.
In
my understanding the plaintiff is not complaining against the
decision made by the 2nd
defendant to grant a lease to the 1st
defendant but rather that after obtaining the lease the 1st
defendant in complete disregard of the mandatory requirements of the
Planning Act went ahead to erect or construct a mast on the Stand.
It
is in this latter respect that the plaintiff is seeking redress.
Needless
to say this is not the type of complaint contemplated by s.38
of the Planning Act and therefore no appeal can be said to lie with
the Administrative Court.
The
above also puts paid to the second point in
limine
in that the plaintiff has not alleged any procedural irregularity in
the manner 2nd
defendant arrived at its decision to grant the lease, but simply
alleges that by omission and commission he has been deprived of his
rights through the defendants disregard of the mandatory requirements
of the Planning Act.
In
the circumstances it cannot be said that the plaintiff is asking this
court to review the decision made by the 2nd
defendant.
It
must here be remembered that a review pertains to an alleged
irregularity or illegality that is said to have occurred or been
occasioned during the decision making process of a body inferior to
the High Court (s.27
of the High Court Act).
Before
dealing with the merits of the case I wish to make the following
observation.
A
local authority, such as the City of Harare, is empowered by s.152
of the Urban Councils Act to alienate any land it owns through sell,
exchange, lease, donation or otherwise dispose of or permit the use
of it. In doing so the local authority is obliged to comply with the
requirements as stipulated in that provision.
In
casu
this is exactly what the 2nd
defendant did and no criticism can be warranted in that regard.
However,
it must be remembered that the fact that a local authority or Council
is so empowered should not be construed as exempting it or any other
person from complying with the requirements of Part V of the Planning
Act.
Thus
where it is intended to develop the land alienated by a local
authority, all provisions of Part V aforesaid must be adhered with.
This includes applying for a planning permit in terms of s.26
of the Planning Act.
I
now turn to determine the case on the merits.
The
first issue for determination is whether the 1st
defendant was by law required to obtain permission to erect or
construct the mast?
The
resolution of this issue depends on whether the erection or
construction of the mast constitutes development as defined by the
Planning Act.
Part
V thereof provides for the control of development of land and
buildings and s.22
defines what is meant by the term "development".
In
terms of subs.
1(a)
thereof, the carrying out, on land of any building constitutes
development and in terms of subs.
1(b)
the altering of the character of the use of any land also constitutes
development.
The
facts in casu
show that 1st
defendant erected a cellular base station or mast on the Stand.
To
my mind a structure such as this falls within the definition of a
building as provided for by the Planning Act. In this regard s.2
thereof defines "building" as including 'any
structure or erection or part thereof, including a swimming pool'.
It
thus follows that by virtue of subpara.
(a)
of subs.
(1) of s.22
of the Planning Act the construction of the mast constituted
development and was therefore subject to the requirements of Part V
of the Planning Act.
Additionally
and in any event the facts as can be gleaned from the papers reveal
that the Stand, measuring 140 square metres, is part of a piece of
land that is designated for use as a recreational park.
As
already alluded to s.22(1)(b)
stipulates that the altering of the character of the use of land
constitutes development within the meaning of that term in the
Planning Act, save if the new use and the old use both fall within
the same prescribed group of land uses (subpara.
(b)(i)).
The
erection or construction of a cellular mast on land designated for
use as a recreational park can hardly be described as simply change
of use falling within the same prescribed group of uses of land. It
is more than that. It amounts to the altering of the character of the
use of land and therefore is development as defined by the Planning
Act. (See generally Mutare City Council v Wildlife Society of
Zimbabwe 2001 (2) ZLR 275 (S)).
What
this means is that, in casu,
1st
defendant was required by law to obtain a planning permit i.t.o.
s26
of the Planning Act.
Section
24 thereof proscribes the carrying out of any development unless
permitted in terms of a development order or in accordance with a
permit issued in terms of s.26.
I
therefore find that the erection of the cellular mast on the Stand
was not carried out in terms of any development order nor was it done
in accordance with a permit issued in terms of s.26
of the Planning Act.
It
follows that the cellular mast erected by 1st
defendant on the Stand is an illegal structure and ought not to have
been erected without first obtaining a development order or planning
permit.
From
the foregoing it is obvious that the second triable issue as
identified at the pre-trial conference must be answered in the
negative. This is so because on receipt of an application for a
planning permit s.26(3)
obliges the local planning authority to require the applicant to give
public notice of his application and to serve notice of the
application on every owner of property adjacent to the land to which
the application relates.
None
of this was done.
The
appropriate remedy
The
plaintiff seeks as the main remedy the removal of the mast and
restoration of the Stand to its original condition before the
impugned development took place.
In
my view such an order is, at this stage, both incompetent and
pre-mature. This is so because s.27
of the Planning Act permits for an application to be made to
regularise any development that has been carried out without the
requisite development order. It reads -
"27
Regularisation of buildings, uses or operations
Where
any development has been carried out in contravention of section
twenty-four
an
application may be made in terms of section twenty-six
in
respect of that development and the local planning authority shall
deal with that application in terms of that section but any permit
granted thereunder shall take effect from the date on which the
buildings were constructed, the operations were carried out or the
use was instituted, as the case may be."
The
1st
defendant, therefore, has open to it recourse to this provision. It
is for this reason that, although finding in favour of the plaintiff,
I decline to issue the main order sought but instead will issue the
alternative order prayed for.
In
the result the application succeeds and it is ordered as follows -
1.
That 1st
and 2nd
defendants comply with the requirements of Part V of the Regional,
Town and Country Planning Act [cap.
29:12].
2.
That 1st
and 2nd
defendant jointly and severally, the one paying the other to be
absolved, shall pay the costs of suit.
Byron
Venturas & Partners, for
plaintiff
Mtetwa
& Nyambirai, for
1st
defendant
Kanokanga
& Partners,
for 2nd
defendant
