ZIYAMBI
JA:
This is an appeal against a judgment of the Administrative Court.
The appellant, an accountant by profession, carries on business as C
& J Accounting and Secretarial Services (Pvt) Limited.
On
20 December 2010, the appellant applied to the respondents for a
permit in terms of section 26 of the Regional Town and Country
Planning Act [Cap 29:12]
(“the Act”) to alter
the
character of the use of Stand 76 Groombridge Township 2 of Lot 39A
Mount Pleasant otherwise known as 162 The Chase, Mt Pleasant, Harare
from residential to business premises, namely, a motor cycle showroom
and offices.
It
is common cause that the appellant was, at the time of the
application, already operating a motor cycle showroom as well as
accounting offices from the said premises.
On
1 June 2012, the City of Harare wrote to the appellant refusing the
application for a permit on four grounds. The letter reads as
follows:
“Dear
Sir,
APPLICATION
IN TERMS OF SECTION 26(3) OF THE REGIONAL TOWN AND COUNTRY PLANNING
ACT, REVISED EDITION (1996), CHAPTER 29:12 PROPOSED CHANGE OF USE
FROM RESIDENTIAL TO OFFICES AND MOTOR CYCLE SHOWROOM ON STAND 76
GROOMBRIDGE TOWNSHIP 2 OF LOT 39A MT PLEASANT (162 THE CHASE) HARARE
You
are hereby notified that in terms of Section 26(3) of the Regional
Town and Country Planning Act Chapter 29:12 Revised Edition (1996),
the City Council of Harare's Environmental Management Committee, as
a Local Planning Authority, on Monday, 30 April 2012 (Minute Item 15)
refused to grant a permit for the use of Stand 76 Groombridge
Township 2 of Lot 39A Mt Pleasant (162 The Chase), For Offices And
Motor Cycle Showroom purposes, because of the following reasons:
(a)
There was no proven local area NEED for the proposed offices as they
are of no benefit to the community. The motorcycle showroom is
prohibited in terms of the operative local plan.
(b)
Mt Pleasant is losing its residential character due to illegal
commercialization of the properties. This application is one such
illegal use. If all these changes are permitted, it will soon cease
to be a low density residential area but a commercial one. The
application is therefore not supported.
(c)
Already we have the Mt Pleasant Business Park to cater for office
needs in the area and retain the residential aspect in the remainder
of the neighbourhood.
(d)
The city of Harare faces an acute shortage of housing. Any one of the
existing housing units should as a result only be converted to any
other use where it is absolutely necessary.
Notice
of Appeal
(i)
Attention is drawn to the provisions of section 38 of the Regional
Town and Country Planning Act, Chapter 29:12 Revised Edition (1996)
under which any person aggrieved by this decision may appeal to the
Administrative Court within one month of this permit or such longer
period as the President of the Administrative Court may, in writing,
authorize, the relevant procedure is set out in the Rules of the
Administrative Court.
Yours
faithfully
DIRECTOR
OF URBAN PLANNING SERVICES”
Aggrieved
by the decision, the appellant appealed to the Administrative Court
in terms of section 38 of the Act.
The
appeal was unsuccessful. The court upheld the decision of the
respondents on all grounds.
Two
grounds of appeal were advanced in the appeal before this Court. They
are:
“1.
The court a
quo
erred in law –
(a)
in finding that there is no local area need for offices for
accounting and secretarial services yet Respondents granted permits
for commercial offices of related businesses in the same
neighbourhood;
(b)
in failing to separate the permit application for accounting and
secretarial offices from the motorcycle showroom thereby refusing to
grant the permit subject to the conditions imposed in respect of
offices; and
2.
In any event, the court a
quo
misdirected itself –
(a)
in failing to take cognizance of the fact that Respondents have
already granted permits with commercial rights to other businesses in
the same neighbourhood thereby discriminating against the Appellant;
(b)
in finding that an acute shortage of residential accommodation or
property in Harare is a basis upon which a permit should be refused.
(c)
in failing to differentiate Appellant's private residential
property from the public duty to provide residential accommodation
which the Respondents have in providing residential accommodation to
Harare residents”.
It
was contended on behalf of the respondents that a decision by the
Administrative Court in terms of section 38 of the Act involves the
exercise of a discretion and that this Court as an appeal court,
could only interfere with the exercise of a discretion by a lower
court in limited circumstances none of which were present in this
case.
Section
38 of the Act provides, in part, as follows:
“38.
Appeals
(1)
Any person —
(a)
who is aggrieved by any decision made or deemed to have been made by
a local planning authority in connection with an application for -
(i)
a permit or preliminary planning permission; or
(ii)…
(iii)…;
may,
within one month from the notification of such decision; or
(b)…
(c)…
or
such longer period as the President of the Administrative Court may
in writing authorize, appeal to the Administrative Court in such
manner as may be prescribed in rules and the Administrative Court may
make
such order as
it deems fit”.
(My
emphasis)
A
wide discretion is conferred on the Administrative Court by this
provision.
DISCRETION
An
appeal court will only interfere with a decision which involves the
exercise of discretion by a lower court in very limited
circumstances. These were set out by this Court in Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S) at p62-63, where the Court said:
“The
attack upon the determination of the learned judge that there were no
special circumstances for preferring the second purchaser above the
first – one which clearly involved the exercise of a judicial
discretion – may only be interfered with on limited grounds. See
Farmers Co-operative
Society (Reg.) v Berry
1912 AD 343 at 350. These grounds are firmly entrenched.
It
is not enough that the appellate court considers that if it had been
in the position of the primary court, it would have taken a different
course. It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle, if
it allows extraneous or irrelevant matters to guide or affect it, if
it mistakes the facts, if it does not take into account relevant some
consideration, then its determination should be reviewed and the
appellate court may exercise its own discretion in substitution,
provided always has the materials for so doing. In short, this court
is not imbued with the same broad discretion as was enjoyed by the
trial court”.
Contrary
to the appellant's allegation that the learned President
misdirected himself, it would appear to me that the court a
quo
was alive to the principles to be applied in a matter such as this
and went on to apply those principles.
For
example, it was guided by the judgment in Doves
Morgan (Pvt) Ltd v The City of Salisbury
1973 (1) RLR 50 which set out the applicable principles to be the
following:
“… the
special consent procedure is inserted in town planning schemes to
allow an obtrusive activity to be carried on in an area if the
applicant can establish that there is a need for the use in that
area, in the sense that the members of the public who are in that
area would suffer serious disadvantage if such activity is not
allowed to be carried out in that area”.
The
learned President took into account that Stand 76 is located in an
area set aside primarily for residential houses; that motor cycle
showrooms are prohibited in that area; and that use of buildings in
that area for other purposes may be permitted with the special
consent of the local planning authority, the respondents.
He
found that “conversion of the appellant's residential property
into a motor cycle showroom and offices would constitute
disharmonious development in the area”. Such a development, the
President found, would have disrupted the harmonious and co-ordinated
development of properties in that area as there would be more noise
and motor cycle traffic than would be the case in a quiet residential
area.
He
took into account that the respondents have an obligation in terms of
the Act to formulate policies for the co-ordinated and harmonious
development of the use of land in its area of jurisdiction and
therefore concern themselves with the interests of the members of the
public in the area as opposed to individual interests.
In
its submissions, the appellant stated that no less than seven stands
along The Chase in Mount Pleasant have been converted from
residential stands to commercial uses.
The
response by the respondents was that most of these businesses were
operating illegally and that proceedings for redressing that
situation were in progress.
As
observed by the learned President, the fact that other residents had
illegally changed the use of their residences to commercial use was
not a factor which the appellant could rely on in advancing the
justice of his case.
The
court found that not only had no need been proved but that there was
adequate office space provided at Mount Pleasant and Arundel business
parks which were designed for that very purpose.
In
the final analysis, this Court is unable to interfere with the
judgment of the learned President unless there has been a
misdirection as set out above in Barros
v Chimpondah
(supra).
I
find no such misdirection in the judgment of the learned President.
He took into account all the relevant factors and was alive to the
law applicable in such cases.
It
was for the above reasons that, after hearing submissions from
Counsel, we dismissed the appeal with costs and indicated that
reasons for our decision would follow.
GWAUNZA
JA: I
agree
GOWORA
JA: I
agree
Muhonde
Attorneys,
appellant's legal practitioners
Messrs
Mbidzo Muchadehama & Makoni, respondents
legal practitioners
