This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by ...
This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by the sixth respondent (Environmental Management Agency) and a development permit issued consequent thereto by the City of Harare.
The City of Harare, the fifth respondent herein, has also filed a cross-appeal against the same judgment of the Administrative Court.
The gravamen of the grievance before the court a quo was that the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as Environmental Law.
After due consideration of all the papers filed of record, and submissions made by counsel on behalf of the parties, I am not persuaded that, save for the decision of the court a quo to relate to the merits of the dispute inter se, the court a quo was wrong in upholding the appeal.
In the circumstances, subject to that rider, both appeals stand to be dismissed with costs.
FACTUAL BACKGROUND
The first appellant, Sharadkumar Patel, is a director of Meadows (Pvt) Ltd, a company incorporated in accordance with the laws of this country.
It was to him that the development permit for the Meadows of Monavale was granted.
The company, Meadows (Pvt) Ltd, owns a piece of property called The Meadows of Monavale Extension of Mabelreign. It was in respect of that piece of land that the development permit was granted by the City of Harare.
The first respondent, The Cosmo Trust, is a duly registered trust whose powers and objectives include the protection of the environment and natural resources of Monavale in the general interest of its residents.
The second to the fourth respondents occupy separate pieces of land along Fennela Drive that are contiguous to the Meadows of Monavale.
The fifth respondent, the City of Harare, is a local authority which issued the development permit for the construction of residential units on the Meadows of Monavale.
The sixth respondent, the Environmental Management Agency, is a statutory body established in terms of the Environmental Management Act [Chapter 20:27].
The seventh respondent is the Minister of Environment, Tourism and Hospitality Industry (“the Minister”), under whose aegis the sixth respondent falls.
It was also the Minister who dismissed the first to the fourth respondents appeal against the issuance of an environmental impact assessment certificate issued by the sixth respondent, which decision is partly the subject of the present appeal.
The piece of land that lies at the centre of the dispute between the parties, namely, the Meadows of Monavale Extension of Mabelreign, was transferred into the second appellant's name (Meadows (Pvt) Ltd) in June 1987.
It is 16,2885 hectares in extent and borders Fennella Drive and Monavale Road in Monavale.
The property has remained largely undeveloped over the years, although the record shows that the first appellant has a residence on a portion of that property. It is part of a much bigger piece of land known as the Meadows of Monavale which is five hundred and seven (507) hectares in extent and is a wetland known as the Monavale Wetland.
That wetland forms the headwaters of the Marimba River and its tributary, the Avondale stream, and is part of a network of wetlands within the City of Harare, providing a wide diversity of beneficial ecosystems to the city. It is an important component of Harare's water system, through water accumulation from direct rainfall, runoff and groundwater influx; flood flow attenuation, and slow release of water to base flow in streams; groundwater recharge; protection against flooding and the impact of storms; trapping excess sediment from runoff, reducing siltation of dams; and improvement of water quality for household supply through filtration.
Following a proposal by the first respondent and an organisation called Birdlife Zimbabwe, surveys were carried out resulting in the appellants obtaining authority, from the Surveyor-General, for the Meadows of Monavale Extension of Mabelreign to be subdivided into two plots; the first being a 9,35 hectare plot on the northern side of the property which was to be known as Stand 201 and which was to be sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to be retained by the appellants. The subdivision permit subsequently lapsed and the sub-division was never effectuated.
Zimbabwe acceded to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat known as the Ramsar Convention on 3 January 2013.
Upon accession, the country nominated seven sites, including Monavale Wetland, to be included in country's Ramsar list of Wetlands of International Importance. The other sites were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria Falls National Park, Mana Pools and Lake Chivero.
In 2014, the appellants submitted an application for an environmental impact assessment certificate for a housing development on the land.
On 9 July 2014, the Director-General of the Environmental Management Agency dismissed the application on the basis that the land was not suitable for such a development as it was situated in an ecologically sensitive area and ecosystem in need of protection under the Ramsar Convention. The appellants were advised to adopt an alternative land use that would ensure that the area was maintained and protected.
That decision was not thereafter challenged.
In 2015, the appellants submitted an application for a development permit with the City of Harare (“The City Council”). Despite objections, a development permit was issued. The first respondent lodged an appeal against the development permit in the Administrative Court. The permit was set aside, in November 2016, on the basis that the appellants had not, before applying for the permit, secured an environmental impact assessment certificate.
That judgment remains extant although there was an attempt to appeal against it, which was abandoned.
Pursuant to the decision of the Administrative Court, the appellants submitted another application for an environmental impact assessment certificate to the Environmental Management Agency.
The application was made in respect of Stand 201, Monavale.
No stakeholder consultation was conducted with interested parties, notwithstanding the peremptory provisions of section 136 of the Environmental Management Act [Chapter 20:27] (“the EMA”).
An environmental impact assessment certificate was then issued by the agency on 10 November 2017.
The certificate stated, that, it had been granted in respect of a housing development on Stand 201 Monavale (6804), subject to eight conditions highlighted in an annexure to that certificate.
Armed with the environment impact assessment certificate, the appellants wrote to the City Council requesting the Council to re-issue the development permit previously granted in November 2015. The request was treated, by Council, as a new application for a development permit.
The first respondent then appealed to the Minister against the decision by the agency to issue the certificate.
In the appeal, the first respondent raised a number of complaints; that there was no Stand known as 201 Monavale and that interested persons had not been given the opportunity to make representations in the matter; that the developer had failed to carry out wide consultations with stakeholders before approaching the agency; that, notwithstanding its clear interest in the matter, it had not been notified of the issuance of the certificate; that the decision to grant the certificate violated its environmental rights and those of its members; and that the decision breached the country's international obligations under the Ramsar Convention. Further, that the certificate had not been issued by the agency's Director-General.
In a response penned by the Ministry's Permanent Secretary, the appeal was dismissed on various bases.
That, whilst the agency was not in a position to confirm whether or not Stand 201 existed, the Director General of the Environmental Management Agency could properly delegate the authority to issue the certificate to a junior; that, the documents submitted reflected that there had been public consultation on the part of the developer and that reservations had been taken into account.
Whilst accepting that the agency may have erred in failing to notify interested persons of the issuance of the certificate, he stated that no injustice had been occasioned by such failure; that, whilst the objectors had rights, the appellants also had rights to their property, subject only to the need for any development on the property to take into account the need for the wise use of the land.
Unhappy with that decision, the first respondent noted an appeal to the Administrative Court in June 2018.
In the meantime, the appellants had submitted an application for a development permit with the City Council in May 2018.
On receipt of notification of the application, the first to fourth respondents, individually and separately, filed letters of objection. The Council's Director of Works then advised the appellants of these objections. The appellants responded to those objections and attached supporting documentation, including an environmental impact assessment report prepared at their instance in respect of Stand 201.
The Director of Works did not cause the response to be forwarded to the respondents.
Instead, he compiled a report recommending that the City Council's Environmental Management Committee, a sub-committee of Council, issue a development permit as requested.
The land on which the one hundred and twenty one cluster houses were to be developed was reflected as “Meadows of Monavale Township.”
The Director also suggested a number of conditions, including, ironically, the need to obtain an environmental impact assessment certificate - which had already been issued by the sixth respondent (the Environmental Management Agency).
On 23 July 2018, the City Council's Environmental Management Committee held a meeting to consider a total of fourteen matters, including the building permit application submitted by the appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It recommended the granting of a development permit authorising the appellants to erect one hundred and twenty one cluster houses, subject to the conditions stipulated in the report compiled by the Director of Works.
In September 2018, the first to fourth respondents then filed an appeal with the Administrative Court against the issuance of the development permit.
By agreement between the parties, the two appeals were consolidated for purposes of the filing of the heads of argument and hearing.
PROCEEDINGS BEFORE THE ADMINISTRATIVE COURT
In their grounds of appeal and submissions in respect of the development permit issued by the City Council, the first to fourth respondents attacked the decision to issue the permit on a number of bases:
(i) First, that the Environmental Management Committee of the Council is not a local planning authority, and, consequently, had no power to issue a development permit.
(ii) Second, that no proper application for a development permit had been filed with the Council.
(iii) Third, that the permit had been issued in the absence of a valid environmental impact assessment certificate, since the permit imposed, as one of the conditions for the grant of the permit, the need to secure an environmental impact assessment certificate.
(iv) Fourth, that the proceedings of the committee were tantamount to a kangaroo court as the committee had not adverted to the merits of the matter, and, in particular, the fact that this was a protected wetland, before resolving to grant the permit.
(v) Fifth, that the committee had resolved to grant the permit without affording the respondents the right to be heard. They submitted, that, the development permit had been improperly issued and that it should, as a consequence, be set aside.
In respect of the environmental impact assessment certificate, the respondents submitted as follows:
1. First, that there had been no public participation and the audi alteram partem rule had not been observed.
2. Second, that the certificate was void for vagueness as it did not identify the project, contrary to section 100(5) of the Environmental Management Act.
3. Third, that the certificate had been issued in respect of Stand 201, which did not exist, rendering the certificate void for vagueness; and
4. Fourth, that there had been a failure, on the part of the Minister and the Environmental Management Agency, to appreciate that environmental rights take precedence over private rights to land.
In its heads of argument filed in the Administrative Court, the City Council submitted as follows:
(i) First, that the mere failure to comply with one or other administrative provision does not necessarily result in a nullity. It depends on whether the statute envisages that the failure should result in a nullity. It also depends on its materiality.
(ii) Second, that a proper application for a development permit had been filed.
(iii) Third, the first to fourth respondents objections had been considered in the Director of Works report, and, therefore, the audi alteram partem principle had not been violated.
(iv) Fourth, that the Ramsar Convention had neither been approved by Parliament nor had it been incorporated into domestic legislation. Therefore, it was not binding on Zimbabwe.
(v) Fifth, that the social rights claimed by the respondents had to be reviewed against the appellants competing right to develop a property that belonged to them.
(vi) Sixth, that the environmental management committee exercised a power vested in it by Council itself.
In their heads of argument, dealing with both appeals, the appellants in this matter submitted as follows:
(a) The decision made by the environmental management committee of the City Council was a decision of the Council itself, as a local town planning authority.
(b) Second, that there was a proper application before the Council which cannot be impugned on the basis, that, having been made by a committee of Council, it had not been made by Council itself.
(c) Third, that the committee was not bound to formally hear the first to the fourth respondents as it was sufficient for written objections to be considered.
(d) Fourth, that the decision of the Administrative Court, holding that the environmental impact assessment certificate had to precede the issuance of a development permit, was wrong.
(e) Fifth, that the Ramsar Convention itself does not prohibit development on a wetland, but, instead, encourages the wise-use of such land.
THE DETERMINATION OF THE ADMINISTRATIVE COURT
In its determination, the court a quo found as common cause, that, the property belonging to the appellants is part of a wetland and that the piece of land on which the appellants intended to erect one hundred and twenty-one cluster homes was virgin and undeveloped. It found that the development was intended to take place on the unregistered Stand 201 measuring 9.35 hectares which the appellants had unsuccessfully attempted to shear off from the main Meadows of Monavale Extension.
It found, further, that, the omission to particularise that portion of the land on which the development was to take place was a serious error which should not have been condoned by Council.
The court further found, that, the failure to attach the signed consent of NMB Bank, which had a mortgage bond registered over the property, was a fatal irregularity.
In doing so, the court took into account the provisions of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the RTCP Act”) which provides, that, an application for a permit shall be accompanied by the consent, in writing, of the holder of any real right registered over the property.
The appellants, not having justified why the application had not been accompanied by the consent in writing of NMB Bank, the court found that the defect rendered the application invalid.
Further, the court found that the development permit related to the larger undivided piece of land owned by the appellants. The environmental impact assessment certificate, to the contrary, related to the unregistered Stand 201 measuring 9.35 hectares.
It therefore found, that, the development permit, which related to the entire 16,2885 hectares, could not be predicated on an environmental impact assessment certificate issued in respect of 9.35 hectares of land. Moreover, the development permit made it clear that it had been issued to enable the erection of one hundred and twenty-one cluster houses.
The environmental impact assessment certificate, on the other hand, stated that it had been granted to the appellants to enable a housing development to take place on Stand 201 Monavale. The court found, that, it was impossible to ascertain the nature of the developments proposed by those two sets of documents.
As regards the application for a development permit filed by the appellants on 15 May 2018, the court a quo found that it relied on documentation annexed to an earlier application submitted in 2015.
It concluded, that, since an application that is not determined within three months is deemed to have been refused in terms of section 26(7) of the Regional, Town Country Planning Act, those documents could not have been relied upon in the application submitted on 15 May 2018.
The court accordingly found, that, the application for the development permit was defective in that respect and that it should not have been processed by the City Council. By necessary implication, it further found that the development permit issued pursuant to that application was also a nullity.
On the objections filed by the first to fourth respondents, the court noted, that, although four letters of objection had been forwarded to the City Council, the Director of Works had referred to only two objections in his write-up to Council. He did not indicate which two of the objections had been considered.
The court also found, that, the City Council had unlawfully shifted the onus of proof to the first to fourth respondents when it determined that their objections were not supported by evidence.
As regards the contention that Council had failed to properly address the implications of granting a development permit on an internationally-protected wetland, the court determined, that, whilst the appellants have the right to deal with the property in a manner they may choose, that right was attenuated by section 86 of the Constitution 2013, which provides that the enjoyment of rights and freedoms must be exercised reasonably and with due regard to the rights and freedoms of others.
It found, that, there was good reason for the view, that, the core of the wetland be left wild, untouched, and suitable for the diverse range of migrant birds, including some that are endangered species that come all the way from countries as far afield as Cameroon, Congo, and Kenya.
The court found, that, the construction of cluster houses would involve digging up foundations, clearing land, and erection of houses.
In these circumstances, so the court concluded, there was need to rely on the precautionary principle which is applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of the proposed development.
On the environmental impact assessment certificate, the court reiterated its earlier finding, that, this had been issued in respect of Stand 201, which does not exist. The certificate was issued in respect of the whole property measuring 16,2338 hectares. The first to fourth respondents had not been consulted during the preparation of the report which preceded the issuance of the certificate.
Consequently, the court also upheld the appeal against the grant of the certificate.
In the result, having upheld both appeals, the court ordered that the appellants, the City Council, and the Minister pay the costs of suit on the ordinary scale.
It is against that order that the two appeals were noted to this Court by the appellants and the City Council.
GROUNDS OF APPEAL BEFORE THIS COURT
In their notice of appeal, the appellants relied on a number of grounds. I reproduce these hereunder:
“1. The Administrative Court fundamentally erred in failing to find that the first respondent, being a Trust, did not have legal capacity to have mounted the appeals that it mounted in the Administrative Court.
2. The Administrative Court further grossly erred in interfering with the discretion of the 5th respondent in condoning the reference to an undivided portion of the Meadows of Monavale, known as Stand 201 of Monavale, when such condonation had been done in the exercise of the administrative discretion by the 5th respondent.
3. The Administrative Court further erred in finding, that, the application for a development permit submitted to the 5th respondent was defective in that it had been accompanied by documents from a previous application when such attachments did not have the effect of invalidating the application.
4. The Administrative Court grossly erred in finding, that, the appellants failure to attach to their application for a development permit, submitted to the 5th respondent, the consent of NMB Bank was fatal to such application when there was no evidence that the said Bank had an interest in the land and was not argued by the parties.
5. The Administrative Court further erred in finding, that, the 5th respondent had violated the audi alteram partem rule and had therefore not properly considered the objectives of the 1st up to 4th respondents objectives to the development permit.
6. The Administrative Court further erred in its application of the concept of restrictive measures in section 86(2)(f) of the Constitution of Zimbabwe and finding, therefore, that the appellants could not carry out the development on the property in issue as part of the exercise of the right of ownership enshrined in section 71(2) of the Constitution of Zimbabwe.
7. The Administrative Court further erred in relying upon the precautionary principle in prohibiting the development proposed on the piece of land in issue by the appellants.
8. The Administrative Court grossly erred in finding, that, the environmental impact assessment certificate issued by the 6th respondent was void for vagueness when it related to an identifiable property and the correction of the certificate had been placed before the Court.”
The City of Harare, as appellant, also attacked the determination of the court a quo on a number of grounds which I quote verbatim hereunder:
“1. The court a quo erred in finding that the application for a development permit was defective in that it was accompanied by documents from a previous application when such deficiency, if any, did not have the effect of invalidating the permit.
2. The court a quo erred in finding that appellant had violated the audi alteram partem rule by failing to properly consider the objectives when there was clear evidence throughout the record of a consideration of the objections.
3. The court a quo erred in stopping a development on the bases of unproven likelihood of harm to the environment.
4. The Administrative Court erred by failing to arrive at the conclusion, that, the permitted development was consistent with the 'wise use' concept contained in the provisions of the Constitution, the Environmental Management Act, and the Ramsar Convention on the protection of the environment.
5. The court a quo erred in allowing immaterial and irrelevant objections to the permit and the Environmental Impact Assessment Certificate to guide it. It so erred to appreciate that this was a town planning matter and one to be dealt with in the wide sense.
6. At any rate, the court a quo erred in failing to consider that any deviation from the provision of the Regional, Town and Country Planning Act and the Environmental Management Act was not material enough to warrant nullification of the permit. It so erred in that it failed to consider the materiality principle.”
APPELLANTS SUBMISSIONS BEFORE THIS COURT
In their submissions, the appellants submitted as follows:
The first respondent, being a Trust, cannot sue or be sued in its name, but, rather, in the name of the trustees.
The appeal instituted by the Trust against the grant of the Environmental Impact Assessment Certificate was therefore invalid.
Although the High Court Rules 1971 define association to include a Trust, and further allow any such association the locus standi to sue or be sued in its own name, the Rules do not apply to the Administrative Court.
The Administrative Court (Miscellaneous Appeals) Rules 1980 SI 122/1980, do not have a provision similar to the High Court Rules. The first respondent (the Trust) should not, therefore, have been a party to the proceedings before the court a quo.
Further, the appellants submitted that the City Council, being a town planning authority, could quite competently delegate its functions to a committee of Council in terms of section 12(3) of the Regional, Town and Country Planning Act.
They also submitted, that, the Environmental Management Committee of the City Council was entitled to condone mis-references in the papers that were placed before it.
The complaint by the first to fourth respondents, on the incorrect description of the property, was therefore not a fundamental defect that warranted interference by the court a quo, especially because the court had accepted that the development was to take place on the appellants property measuring 16,2885 hectares.
There was no requirement that the appellants identify the specific portion of that land where the development was to take place, particularly in view of the fact that the subdivision previously applied for had lapsed.
The error was not serious and the objectors had been able to lodge their objections.
