The City of Mutare v The Wildlife Society of Zimbabwe

The Wildlife Society of Zimbabwe (the Society) leased approximately 1180 hectares known as the Cecil Kop Nature Reserve from the City of Mutare for 99 years from 1 January 1992. The lease required the Society to use the land as a wildlife sanctuary with public access, and to maintain and preserve it for conservation of flora and fauna. The Society conceived a project to construct three blocks of dormitories to accommodate approximately 75 school children and teachers on educational visits to the Nature Reserve, with funding from an embassy. The accommodation was to be spartan, with outdoor cooking facilities and an ablution block but no dining facilities. They also proposed to offer accommodation to tourists or back-packers when not booked by schools to make the project self-sustaining. After consulting with City officials, the Society was advised it could proceed on the basis of a temporary building permit but at the risk the Council might refuse approval and order demolition. The Society decided to proceed. In April 1999, the City declined approval, issued an enforcement order to discontinue construction, and on 4 May 1999 issued a prohibition order. The Society appealed to the Administrative Court, which allowed the construction but restricted use to persons visiting the Nature Reserve for educational purposes only. Both parties appealed to the Supreme Court.

• Whether the Master Plan for the City of Mutare absolutely prohibited all development in the Cecil Kop Nature Reserve
• Whether the construction of dormitories constituted 'development' as defined in section 22 of the Regional Town and Country Planning Act
• Whether section 22(1)(b)(i) of the Act excluded the building of dormitories from being classified as development
• Whether the Administrative Court was empowered to substitute its own decision for that of the City or whether the matter should be referred back to the City for reconsideration
• Whether public notice was required under section 26(3) of the Act
• Whether the Administrative Court was correct to restrict use of the dormitories to educational purposes only
• Whether costs should be awarded against the City

1. The appeal is dismissed. 2. The cross-appeal is dismissed. 3. The appellant (City of Mutare) is to pay 80% of the respondent's (Wildlife Society) costs of appeal.

A Master Plan prohibition against 'development' in a designated nature reserve does not constitute an absolute prohibition against all building and construction. Such prohibitions should be interpreted as restrictions on commercial, industrial or residential development that would be inconsistent with the character of the designated use. Building and construction that is ancillary or incidental to the main purpose of the designated use (such as visitor accommodation in a nature reserve) may be permitted. The construction of a building on land constitutes 'development' for purposes of the Regional Town and Country Planning Act and is not excluded from the definition of development by section 22(1)(b)(i) of the Act, which relates to changes of use rather than construction. Where the circumstances set out in section 26(3) do not exist, public notice is not required and an appellate court may substitute its own decision rather than referring the matter back to the local planning authority.

McNally JA observed that as long as human beings are allowed into a nature reserve area, there must be some development such as footpaths, railings in dangerous places, toilets, accommodation for game rangers and staff, storerooms, entrance gates etc. The Court noted that almost every national park in Zimbabwe has accommodation for visitors staying overnight, and that Harare's McIlwaine National Park has a facility for educational camps. The Court indicated that while allegations of mala fides were made against the City in its opposition to the application, these were no more than allegations and were not proven. The Court noted it was not argued that the word 'person' in the proviso to section 60 regarding costs should be interpreted to mean 'person other than a planning authority'.

This case is significant in Zimbabwean town planning law as it establishes important principles regarding the interpretation of Master Plans and development restrictions in environmentally sensitive areas. It clarifies that prohibitions against 'development' in Master Plans should not be interpreted as absolute prohibitions against all construction, but rather as restrictions on development inconsistent with the designated character and use of the area. The judgment recognizes that ancillary or incidental development necessary to support the primary designated use of land (such as visitor facilities in a nature reserve) does not offend against general development restrictions. It also provides guidance on when public notice is required under section 26(3) of the Regional Town and Country Planning Act and confirms that appeals on town planning matters are limited to matters of law under section 61 of the Act.