New Life Covenant Church v Trustees of the Harare Wetlands Trust & Others

The appellant owned stand number 18692 Boundary Road, Harare, and intended to develop the site to build a church, school and conference centre. It relied on a development permit purportedly issued by the third respondent (City of Harare). The first respondent, a trust advocating for protection and preservation of wetlands within Harare, opposed the developments and noted an appeal in the Administrative Court. The first respondent challenged the validity of the development permit on various grounds including procedural violations, lack of public notice and consultation, contradiction with the Environmental Impact Assessment Certificate which restricted development to 0.8169 hectares whereas the permit authorized development on 4.633 hectares, and violations of constitutional environmental rights. CHINAMORA J in a related judgment (HH 819/19) had previously found that the appellant was undertaking developments without a proper development permit and that the first respondent had locus standi to challenge such developments.

• Whether the appellant possessed a valid development permit
• Whether the application for the development permit complied with the procedural requirements of the Regional, Town and Country Planning Act [Chapter 29:12] and the Development Regulations RGN 927/1976
• Whether public notice of the development permit application was required and given
• Whether the application had been deemed refused by operation of law under section 26(7) of the Regional, Town and Country Planning Act
• Whether the first respondent had locus standi to challenge the development permit (raised belatedly on appeal)
• Whether there was a contradiction between the Environmental Impact Assessment Certificate and the development permit

The appeal was dismissed with costs on a legal practitioner and client scale. The Administrative Court's judgment declaring the development permit invalid was upheld.

1. An application for a development permit must comply with the peremptory procedural requirements of section 26(3) of the Regional, Town and Country Planning Act [Chapter 29:12], including giving public notice of the intended development and notifying interested persons. 2. Where a local planning authority fails to determine a development permit application within 3 months of acknowledgment of receipt (or any extension granted in writing), the application is deemed to have been refused by operation of law under section 26(7) of the Regional, Town and Country Planning Act. 3. An appellate court will not make itself a second court of first instance by determining issues not raised in the court a quo. 4. A party cannot collaterally challenge findings in a prior extant judgment that has not been appealed against.

The court observed that it would not be conceivable for an applicant to seek approval of development plans before being issued with a development permit, which supported the inference that no valid permit existed. The court also indicated that given its findings on the invalidity of the application and the deemed refusal, it was unnecessary to determine the issue of the alleged contradiction between the Environmental Impact Assessment Certificate and the development permit regarding the area permitted for development. The court noted that the first respondent's locus standi related not only to environmental issues but also to town planning issues concerning the existence of a development permit.

This case establishes important principles regarding compliance with procedural requirements for development permits under the Regional, Town and Country Planning Act [Chapter 29:12]. It emphasizes that the statutory requirements for public notice and consultation in development permit applications are peremptory and not merely directory. The judgment also reinforces the deemed refusal provision in section 26(7) where a local planning authority fails to determine an application within the prescribed 3-month period. The case demonstrates the courts' willingness to uphold environmental protections and wetland preservation, and recognizes the locus standi of environmental advocacy trusts to challenge unlawful developments. It also illustrates the principle that appellate courts will not entertain issues not raised in the court a quo and will respect prior judicial determinations that have not been appealed against. The award of costs on a higher scale serves as a deterrent against raising issues belatedly and unnecessarily.