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.
As regards the finding by the court a quo, that the application was invalid on account of the fact that documents from a previous application (that had lapsed) had been attached, the appellants submitted that these were supporting documents and constituted “such information as may be prescribed” as provided for in the Regional, Town, Country Planning Act. The fact that an application is deemed dismissed, in terms of section 26(7) of that Act does not mean documents from that application cannot be attached or used in a subsequent application.
On the finding by the court a quo, that, the failure to attach the consent of the NMB Bank was fatal, the appellants submitted that the issue had only been very vaguely referred to and that it had been assumed that it had been abandoned.
The parties had not addressed the court on this issue.
Moreover, being a question of fact, the four respondents had not shown whether the bonds in issue were still current.
It was therefore an irregularity for the court to make a finding on an issue of fact not traversed by the parties and which was not founded in the pleadings by the parties.
As regards the finding that the audi alteram partem principle had been violated, the appellants submitted that the four respondents objections contained in letters they had sent to the City Council had been considered before the City Council came up with a decision on the application for a developmental permit. Indeed, the objections were brought to the attention of the appellants who responded to each of the issues raised in the objections.
On the finding by the court a quo, that, the appellants could have adopted less restrictive measures in the usage of their land, they submitted that they were under no such obligation to sell the property to an organisation called Birdlife Zimbabwe. They have the right, in terms of section 72 of the Constitution, to deal with the property as they see fit.
On the further finding by the court a quo, that the precautionary principle applied in this case, they submitted that the appellants had obtained an environmental impact assessment certificate and had, in addition, undertaken a detailed impact assessment which was placed before the Council to enable it to come to a correct decision.
That document set out the measures which were to be taken to minimise any possible damage to the environment.
The fact that the property is situated on a wetland does not mean it cannot be developed. Indeed, in terms of the Ramsar Convention, it is the wise use of wetlands that is encouraged.
In any event, the property had been removed from the list of sites that fell under that Convention.
As regards the environmental impact assessment certificate, they submitted that the certificate had been issued in respect of a cluster development on a Stand identified as being a portion of the Meadows of Monavale. Having acknowledged the existence of the property measuring 16,2338 hectares upon which an intended subdivision, to be called Stand 201, was to be created, the court a quo could not then, at the same time, find that the certificate related to a non-existent property.
In his oral address, counsel made the following further submissions:
That, the issue of the locus standi of the first respondent had been raised during oral submissions but was not dealt with by the court a quo.
The four respondents cannot come to court saying they do not know where the development was to take place when they were involved in the attempt to purchase Stand 201. Everyone knew where the cluster houses were to be constructed, and, the fact that it was not formally subdivided made no difference.
As regards the issue of consent by NMB Bank, he submitted that the issue was neither raised nor argued before the court a quo.
On the documents from a previous application that were attached to the application for a development permit, he submitted that the judge failed to distinguish between the application itself and the supporting documents. There was no need to file the same documents over and over again.
As regards the letters of objection to the development permit application, he submitted that all the letters raised the same issues and were similarly worded.
On the merits of the dispute, he submitted that the court a quo did not address itself to the fact that Harare has a housing backlog.
There was nothing to suggest, that, if construction took place on an area constituting 1.5% of the Monavale vlei, comprising less than ten hectares, it would have the kind of harmful impact that the respondents have attempted to portray.
The court a quo was selective and made no attempt to strike a balance between the need to protect the environment, on the one hand, and the need to provide accommodation on the other.
FIRST TO FOURTH RESPONDENTS SUBMISSIONS
In their heads of arguments, the first to the fourth respondents have submitted that the Ramsar Convention is binding on Zimbabwe, the country having acceded to the Convention and such accession having been ratified by Parliament.
The suggestion that the wetland may have been delisted is incorrect as the Government of Zimbabwe, in order to do so, would have to go through the process of delisting in line with the Convention. That process has not even been initiated, and the country continues to have obligations under the Convention.
In its decisive meeting to consider whether or not to grant the development permit, no consideration was given by the City Council to the ecological status of the land on which the proposed development was to take place, notwithstanding the fact, that, in their objections, the respondents had gone to great lengths to highlight the dire situation faced by residents in accessing water.
The issue before the City Council was of a highly technical nature, and, therefore, required specificity in terms of the size and location of the land to be developed and the exact number of houses to be constructed. This would have assisted the committee to properly assess the possible harm to the environment.
As regards the need to attach the written consent of NMB Bank, they submitted that the issue had been fully ventilated in their statement of appeal before the court a quo as well as their heads of argument. Moreover, evidence had been placed before the court to confirm that there were current bonds registered over the property.
There was need for the appellants to attach the consent of the Bank because its rights could be prejudiced. Having failed to attach such consent, the appellants further failed to show that any attempts had been made to advise the Bank as required by the law.
On the objections that they had raised in respect of the development permit, they submitted that the letters raised different issues. The chairperson of the first respondent objected on the basis that this was an ecologically sensitive and biologically diverse area which should not be tampered with. The Sopers, on the other hand, objected on the basis that there had been no prior consultation with the residents who were likely to be affected.
Moreover, the City Council, having received a response from the appellants, including a report on soil tests done at their instance, made no attempt to bring the response and new facts to the attention of the respondents.
In oral submissions before this Court, they disputed the suggestion that the first respondent, being a Trust, has no locus standi to institute proceedings against anyone.
The Administrative Court Act [Chapter 7:01], in section 13, provides that where there is a lacuna, the procedure applicable in the High Court would apply.
The High Court Rules allow, in Rule 7 and 8, a Trust to sue.
They further submitted, that, whilst the development permit refers to the entire piece of land and not Stand 201, no environmental impact assessment certificate was issued for the entire property, but, rather for Stand 201.
Counsel for the respondents further submitted, that, once the land was included as part of a Ramsar site, the appellants, as owners, lost the right to do as they pleased.
He also submitted, that, the environmental management committee of the City Council could not have properly considered fourteen applications, including the appellants development permit application, in forty minutes.
Despite the land being part of a wetland, they make no reference to this, and, all they did was recommended that the permit be granted.
Accordingly, the respondents prayed for the dismissal of both appeals with costs.
FIFTH RESPONDENT SUBMISSIONS
The fifth respondent's submissions mirrored its previous submissions before the court a quo. In addition, it also submitted, that, the issue of consent of the Bank had not been raised in the court a quo.
Further, that, although the minutes of the Council meeting refer to only two objections, the objectors concerns had been taken into account.
Lastly, it was submitted that the mere failure to comply with one or other administrative provision does not mean that the whole procedure necessarily becomes void. The absence of the consent of the Bank was therefore not fatal.
ISSUES ARISING FOR DETERMINATION
On a consideration of the above submissions, it seems to me that the issues that arise for determination fall into four broad categories:
(i) The first is whether the first respondent, a Trust, can, in law, sue or be sued?
(ii) The second is whether the Environmental Impact Assessment Certificate, on which the City Council largely relied in coming to the decision to grant a Development Permit, is valid?
(iii) The third is whether the Council was correct in granting the Development Permit?
Depending on the determination of this Court on the above issues, the last issue that may arise is:
(iv) Whether the court a quo was correct in relying on the precautionary principle in coming to the conclusion, that, the land in question could not be developed without endangering its status as a wetland?
THE VALIDITY OF THE ENVIRONMENTAL IMPACT ASSESSMENT CERTIFICATE
As noted earlier in this judgment, a development permit issued in favour of the appellants, in 2015, was set aside by the court a quo on the sole basis that the appellants should have first sought an environmental impact assessment certificate before submitting an application for a development permit with the City Council.
The appellants then submitted a new application, and such certificate was then issued in November 2017.
It was on the basis of that certificate that the appellants then applied for a development permit to the City Council in 2018.
Perusal of the certificate reflects, that, the Environmental Management Agency granted “acceptance” to the appellants to operate a housing development on Stand 201 Monavale (6804). Attached to the certificate were special conditions attaching to the issuance of the certificate.
Whilst the conditions were intended to mitigate against adverse impact on the wetland, as Dr Cunliffe later reported, in his report dated 13 September 2018, little or no guidance was given on how the conditions were to be implemented.
The suggestion that a 50 metre buffer zone be managed in an “environmentally sustainable manner” was not defined. Nor were details given as to the design and operating parameters of the sub-surface flow constructed wetland. The same applied to the retention ponds. No detail was given as to how many such ponds were to be constructed, where they were to be located, their dimensions, and volume of water to be stored.
The certificate also required the construction of special foundations for the houses, but gave no indication how such foundations were to be constructed. There was also no indication as to who was to be responsible for monitoring and overseeing compliance with the conditions. More particularly, the certificate did not indicate who was to manage the buffer zone, monitor and enforce the prohibition against sinking of boreholes, and monitor the functioning of the proposed subsurface flow constructed wetland.
There can be little doubt that the certificate was very vague in several important respects and that it authorised “a housing development” whatever that meant – on Stand 201 which, it is common cause, never saw the light of day.
It is also clear, that, whilst the parties had been involved in litigation in respect of this piece of land in the past, before the appellants sought an environmental impact assessment certificate in 2017 there had been no stakeholder consultation.
This violated section 136 of the Environmental Management Act.
That section provides that the Environmental Management Agency, amongst other requirements, shall ensure that the rules of natural justice are duly observed, and, in particular, shall take all reasonable steps to ensure that every person whose interests are likely to be affected by the exercise of the function is given adequate opportunity to make representations in the matter.
Further, section 26 of the Regional, Town and Country Planning Act provides that an application for a permit shall be made to a local planning authority and shall be accompanied by the consent in writing of:
(a) The owner of the land; and
(b) Where the application relates to development which involves an alteration —
(i) In the character of the use of any land or building; or
(ii) In the conditions of title to the property;
the holder of any real right registered over the property concerned:
Provided that the local planning authority may dispense with any consent required in terms of this subsection if it is satisfied that —
(a) The applicant has made all reasonable attempts to ascertain the address of the person whose consent is required and has been unable to do so; or
(b) The person whose consent is required has unreasonably failed or refused to give his consent and that the permit, if granted, would not prejudice the rights of such person.”
That the appellant did not attach the consent of NMB Bank, the mortgage holder, is common cause.
It is also common cause, that, the City Council was not requested, at any stage, to dispense with the consent required in terms of paragraph (b) to the proviso. Nor did the appellants themselves attempt to show that they had made reasonable attempts to ascertain the address of NMB or that NMB had unreasonably failed to give its consent and that it would not be prejudiced by the grant of the permit.
Instead, the appellants and the City Council's argument before this Court is that the issue was not raised or argued before the court a quo, and that, in any event, the failure to comply with section 26 of the Regional, Town and Country Planning Act is not fatal to the application.
Although the record before this Court does not contain the verbatim record of the proceedings on the day of the hearing, the record shows that the issue of the consent of NMB Bank was a live issue before the court.
A Deeds Office search form, which forms part of the record, shows that, as at 16 January 2018 i.e. about four months before the appellants submitted their application for a development permit, three mortgage bonds had been registered against the Meadows of Monavale Extension of Mabelreign measuring 16,2885 hectares by NMB Bank Ltd. The mortgage bonds had been registered against the property in March and September 2013 to secure a total amount of almost US$246,000.
The failure by the appellants to comply with section 26 of the Regional, Town and Country Planning Act was raised on at least two occasions before the court a quo.
One of the grounds of appeal to the Administrative Court, against the grant of the development permit by the first to fourth respondents, was that the City Council had failed to find that the application was defective for failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act in that it omitted to include, inter alia “the person holding mortgage bonds over the property.”
The same complaint was made in the respondents heads of argument that “the application does not include the signed consent of NMB Bank whom, according to a search at the Deeds Office, filed in the appellants bundle as Item 39, are persons holding mortgage bonds over the property, contrary to section 26(1)(b) of the Regional, Town and Country Planning Act.”
Contrary to submissions by counsel for the appellants and the City Council, it is clear, therefore, that the issue was very much a live one and was an issue that the court was under obligation to determine.
Its determination was that the failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act was fatal, rendering the application defective.
The further argument by the appellants is that the failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act does not invalidate the application and the permit issued consequent thereto.
On a correct reading of section 26(1)(b) of the Regional, Town and Country Planning Act, there can be little doubt that the failure to comply with its peremptory requirements would inevitably invalidate any application that does not comply with its provisions.
The section provides, that, the application shall be accompanied by the consent, in writing, of the holder of a registered real right.
The section does not stop there.
It further gives the applicant the opportunity to show either, that, despite reasonable attempts to ascertain the address of the holder of the real right, he has been unable to do so, or, alternatively, to prove that the person whose consent is required has unreasonably failed to give his consent and that he will not, in any event, be prejudiced in the event of the permit being granted.
The use of the word “shall” in a statutory provision does not automatically render that provision peremptory. It all depends on the intention of the lawmaker.
In Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC), GUBBAY CJ remarked at p301B–F:
“The categorisation of an enactment as 'peremptory' or 'directory' with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter, substantial obedience or fulfilment will suffice, no longer finds favour.
As was pertinently observed by Van Den Heever J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380, the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.
The same sentiment was expressed by Milne J in JEM Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine 328B.
This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A) where, after concluding that the provision with which he was concerned was imperative, Van Winsen AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:
'The enquiry, I suggest, is not so much whether there has been 'exact' 'adequate' or 'substantial' compliance with this injunction, but rather whether there has been compliance therewith.
This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be.
It is quite conceivable that a Court might hold that, even though the position as it is not identical with what it ought to be, the injunction has nevertheless been complied with.
In deciding whether there has been a compliance with the injunction, the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'”
However, in Jonathan Nathaniel Moyo & Two Others v Austin Zvoma N.O. Clerk of Parliament & Another 2011 (1) ZLR 345 (S), CHIDYAUSIKU CJ qualified the approach to interpretation in these circumstances, and, instead, held that, at the end of the day, it is the intention of Parliament that is the paramount consideration.
At pp360-362 the learned judge had this to say at para 38-47:
“This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.
In that case, I cited with approval a passage from Bennion Statutory Interpretation at pp21-22, which sets out how courts should approach that issue. The learned author states, that, a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply.
In that case, I had this to say at pp21-23 of the cyclostyled judgment:
'It is the generally accepted rule of interpretation, that, the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory.
In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances, no difficulty arises. The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.
In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.
In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the courts to determine what the consequences of failure to comply should be.
Francis Bennion 'Statutory Interpretation' suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:
'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.
This is an area where legislative drafting has been markedly deficient.
Draftsmen find it easy to use the language of command. They say that a thing "shall" be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet, the courts are forced to reach a decision.
It would be draconian to hold, that, in every case, failure to comply with the relevant duty invalidates the thing done. So, the courts answer has been to devise a distinction between mandatory and directory duties.
Terms used instead of 'mandatory' include 'absolute' 'obligatory' 'imperative' and 'strict'.
In place of 'directory' the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see Craies 'Statute Law' (7th edn, 1971) p61 n74.
However, it is now firmly rooted.
Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). (As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions).)'
Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.
One of these guiding principles is the possible consequences of a particular interpretation.
If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence, and, therefore, the provision is directory.
Maxwell on The Interpretation of Statutes 12ed at 314 says much the same as the above cited excerpt from Bennion.”
At p21 of the judgment above, the learned judge acknowledged the existence of other cases, including Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC), that suggest that non-compliance with a mandatory provision in a statute does not necessarily result in invalidity. He stated:
“Equally, there are decisions of this Court wherein it has been held, that, non-compliance with peremptory statutory provisions does not necessarily lead to a nullity: see Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) and the cases referred to therein.
The above authorities can be reconciled on the basis, that, the use of peremptory language is one of a number of indicators of the legislative intent where such intent is not explicitly stated. This obviously is a departure from the principle of strict exaction of compliance with the wording of the statute that I referred to earlier. In my view, the use of peremptory language, such as the words 'shall' or 'must' in a statute is no longer conclusive evidence of the intention of Parliament, but, remains cogent evidence of such intention.”
I am inclined to agree with CHIDYAUSIKU CJ that the use of the word “shall” is cogent evidence of such an intention.
On the precise issue that falls for determination in casu, I am of the view that the intention of Parliament was to render null and void any application that was not accompanied by the consent, in writing, of the holder of a mortgage bond, or that failing, proof by an applicant that he had made reasonable effort to locate such person but had failed to do so, or that the person had unreasonably refused to consent but would not be prejudiced by the grant of the permit.
The Legislature clearly intended a situation where the owner of land, or holder of real rights, would be made aware of the filing of an application for a development permit.
Aware that it might not always be possible to get such consent, the Legislature went out of its way to allow the applicant to show that he had done all he could to get such consent but could not, either because the person could not be located, or because he had unreasonably refused to consent, and that there would be no prejudice to him.
Clearly, the Legislature would not have gone to these lengths if the intention was that non-compliance would make no difference.
The section captures the Legislature's concern, that, in these applications, there could be prejudice to the owner, or holder of real rights, and that, for that purpose, it is necessary that he/she is made aware of the application.
In the result, therefore, I hold that the failure to get the consent of NMB Bank, or to prove that reasonable effort had been unsuccessfully made to ascertain its address, or that it had unreasonably refused to co-operate despite there being no prejudice to it, invalidated the application.
The court a quo was therefore correct in finding, that, non-compliance with the provisions of section 26(1)(b) of the Regional, Town and Country Planning Act rendered the application invalid.
