This was an appeal against the whole of the judgment of the Administrative Court of Zimbabwe handed down on 7 September 2020 as case number ACC87/19, judgment number AC09-20.
The appeal was heard on 20 October 2021.
The court proceeded to give an ex tempore judgment. It dismissed the appeal with costs on a legal practitioner and client scale.
Written reasons have been requested by the appellant. These are they.
BACKGROUND FACTS
The facts of the matter are common cause. The appellant owns a piece of land known as Stand Number 18692 Boundary Road, Harare Township in the District of Harare, which lies within the second respondent's area of jurisdiction.
The first respondent is a Trust that advocates for the protection and preservation of wetlands for sustainable water provisioning within Harare.
The second respondent is the official of the third respondent which is the local planning authority for Harare.
The appellant intended to develop the site to build a church, a school, and a conference centre. It relied on a development permit issued by the third respondent.
The first respondent was opposed to the developments, hence, it noted an appeal in the court a quo.
SUBMISSIONS MADE IN THE COURT A QUO
The first respondent submitted in the court a quo, that, the development permit was unprocedurally issued in violation of its justice rights. It argued that the development permit was unlawful for the following reasons:
(i) That, the second respondent was a local authority and had no power to issue the permit in terms of the tenets of the Regional, Town and Country Planning Act [Chapter 29:12].
(ii) That, the request for the permit was not made in accordance with the application procedure prescribed by the same Act.
(iii) That, the application for the same had expired after three months and could not be relied upon for the current permit.
(iv) That, there was no public notice of the development permit application and consultation of the relevant stakeholders.
(v) That, the permit was vague because it did not clarify the description of the development making it impossible to ascertain the nature of the development proposed.
(vi) That, the development violated the beneficiaries Constitutionally protected environmental rights; and
(vii) That, it violated the Environmental Impact Assessment Certificate issued by the Environmental Management Agency which restricted the development to 0.8169 hectares of the wetland area.
In opposition of the appeal, the appellant argued, that, all the requisite consultations and processes for obtaining the development permit were complied with. It contended, that, the development permit was therefore procured in terms of the law.
It further argued, that, the site for the intended construction is not ecologically sensitive and is therefore suitable for construction.
DETERMINATION BY THE COURT A QUO
The court a quo made the following findings:
The conditions spelt out in the development permit had nothing to do with the location of the proposed conference centre and they lacked specificity and precision. The appellant did not submit an application for a development permit as prescribed by the Regional, Town and Country Planning Act. The appellant, instead, applied for permission to change the use of Stand 18692.
The appellant did not give public notice of the application for a development permit or serve any such notice on every owner of the property adjacent to Stand 18692 as is required in the Regional, Town and Country Planning Act.
The development permit issued to the appellant contradicted the environmental impact assessment certificate which preceded and authorised the issuance of the purported development permit.
The development permit authorised erection of the buildings on 4.633 hectares whereas the environmental impact assessment certificate permitted development on only 0.8169 hectares of the property.
The court a quo consequently upheld the first respondent's appeal.
Aggrieved by that decision, the appellant noted the present appeal on the following grounds:
“GROUNDS OF APPEAL
1. The learned judge in the court a quo erred in finding that there was no application for a development permit.
2. The learned judge in the court a quo erred in not taking into account, that, the development permit would necessarily have to be read with the plans and drawings and would be subject to conditions imposed for the purposes of development.
3. The learned judge in the court a quo erred in law in finding, that, section 26(3) of the Regional, Town and Country Planning Act [Chapter 29:12] was applicable and erred in finding that it was a requirement to give public notice of an application for a development permit.
4. The learned judge in the court a quo erred in finding, that, the development permit contradicted the environmental impact assessment certificate and failed to place any emphasis or sufficient emphasis on the fact that the plans and drawings had been submitted.
5. The learned judge in the court a quo erred in finding, that, the fact that there was no acknowledgement of the application was fatal to the grant of the permit.”
PROCEEDINGS BEFORE THIS COURT
Grounds 1, 2, 3 and 5 raised by the appellant challenge the court a quo's finding that there was no application for a development permit.
Ground 4 challenges the court a quo's finding, that, the development permit contradicted the environmental assessment certificate.
Ground 6 raises the issue of the first respondent's locus standi to participate in the matter before the court a quo, and, by extension, in this appeal.
SUBMISSIONS BY COUNSEL FOR THE APPELLANT
Counsel for the appellant submitted, that, an application was made to the third respondent in compliance with section 26 of the Regional, Town and Country Planning Act. He further submitted, that, in the event that the court finds that section 26 of the Regional, Town and Country Planning Act was not strictly complied with there was substantial compliance, and, section 5 of the Interpretation Act [Chapter 1:01] would save the application.
Regarding the alleged contradiction between the environmental impact assessment certificate and the development permit, counsel submitted, that, the conditions specified in the certificate were, by implication, incorporated in the development permit.
The appellant's submissions on ground number 6 were that the first respondent, not having participated in the antecedent proceedings, had no locus standi to appeal against the grant of the permit.
Furthermore, that the first respondent's Deed of Trust does not empower it to act on behalf of the persons that it sought to represent.
SUBMISSIONS MADE BY COUNSEL FOR THE FIRST RESPONDENT
Per contra, counsel for the first respondent submitted as follows:
The issue of the locus standi of the first respondent was not raised in the court a quo by the appellant. The court a quo, therefore, cannot be faulted for not determining an issue that was not before it.
Furthermore, the High Court. per CHINAMORA J, in Harare Wetland Trust & Anor v New Life Covenant Church & Others HH819-19 determined, that, the first respondent had locus standi to challenge the developments that the appellant was undertaking without a development permit.
The application relied on by the appellant did not comply with the peremptory requirements of the Regional, Town and Country Planning Development Regulations RGN 927/1976 as regards giving the public notice of the development and serving such notice on the property owners adjacent to the site.
Furthermore, and, in any event, the application, not having been determined within the stipulated three (3) months period, had been deemed refused by operation of law in terms of section 26(7) of the Regional, Town and Country Planning Act.
There were contradictions between the Environmental Impact Assessment Certificate (the EIAC) and the development permit as to the area of the property on which construction would be undertaken. Further, the conditions set out in the Environmental Impact Assessment Certificate (EIAC) were not included in the development permit, thereby creating the impression that there were no such restrictions imposed.
ANALYSIS
On the, merits, we are persuaded by counsel for the first respondent's submissions, that, the appellant did not possess a development permit.
The record shows, that, no competent application for a development permit was made.
The document the appellant sought to rely on as a permit was an incomplete, unstamped form dated 5 January 2018.
The form was signed by one “Jabula”. There is no indication on the form who Jabula is and that he was signing the form on behalf of the appellant.
A stamp for the third respondent appears on the form and bearing the date 5 December 2019 as reflecting the date of approval of the application.
The record also shows, that, an application for the approval of building plans was submitted to the third respondent sometime in November 2017. The application preceded the alleged date of approval of the application for the development permit.
It would not be conceivable that the appellant would seek approval of development plans before it had been issued with a development permit.
It is therefore apparent that the appellant did not have a development permit.
Assuming that a permit was granted, the purported application for a development permit did not comply with the peremptory provisions of the Regional, Town and Country Planning Act.
The appellant did not give public notice of its intended developments, neither did it notify the interested persons as is required in terms of section 26(3) of the Regional, Town and Country Planning Act. The appellant did not produce, before the court a quo, proof of such public notice. The public notice produced before the court a quo related to the change of reservation application and not the development permit application.
We furthermore agree with the first respondent's submissions, that, assuming that there was a proper application for a permit before the third respondent, it was in any event deemed refused in terms of section 26(7) of the Regional, Town and Country Planning Act.
Section 26(7) of the Regional, Town and Country Planning Act reads:
“If the local planning authority has not determined, in terms of subsection (6), an application in terms of subsection (1), within three months of the date of acknowledgement in terms of subsection (2) of the receipt of the application or any extension of that period granted by the applicant in writing, the application shall be deemed to have been refused by the local planning authority.”
The application for a permit being relied on by the appellant was purportedly made on 5 January 2018. The purported grant of the permit was on 5 December 2019 - this was clearly in excess, by almost two years, of the three (3) months period within which the application ought to have been considered.
The application had therefore been deemed refused by operation of law.
Under the circumstances, the court a quo cannot be faulted for holding, that, the appellant did not have a development permit and neither was the purported application for the permit valid.
Having found that there was no application before the third respondent, and that if there was one, it had been deemed refused by operation of law, it is in our view not necessary to determine the issue of the contradiction between the certificate and the permit.
It was on this basis, that, it was the finding of the court that the appeal had no merit.
Regarding the issue of costs, it is our view that costs on a higher scale are warranted.
The appellant belatedly raised the issue of locus standi which had already been determined in a judgment that it has, to date, not appealed against. In addition, that issue was not raised before the court a quo. The first respondent was unnecessarily put out of pocket and thus unnecessarily prejudiced.
It was for the above reasons that the appeal was dismissed with costs on a legal practitioner and client scale.
