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 s 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 s 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 s 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 p 62-63, 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
