A Chinese-owned property developer has opposed an urgent High Court application by 26 upmarket Glen Lorne residents seeking to halt construction on a disputed wetland.
The developer, through its lawyers Madzima Chidyausiku Museta (MCM) Legal, argues that the case is premature, the residents lack sufficient standing and the property’s registered owner was wrongly left out of the proceedings.
Zhuomu International (Private) Limited, through its director Wu Jing, filed the opposing affidavit on Thursday, a few days after an interim order was granted by consent stopping works in the disputed area pending further determination of the matter.
The dispute centres on Stand 4717 Glen Lorne Township, a 9.2-hectare property on which Zhuomu proposes a residential development comprising 89 cluster housing units.
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The residents, led by prominent businessman Shingai Mutasa, approached the High Court arguing that construction of a perimeter wall, trenching, grading and other works had encroached into an area excluded from development under the project’s Environmental Impact Assessment certificate.
The consent order granted in Chambers by Justice Samuel Deme earlier this week temporarily halted works while the legal process continues and the parties explore an out-of-court settlement.
But Zhuomu has now mounted a broad challenge to the residents’ application, insisting that it has not been shown that any works took place inside the restricted area.
The company also cites that it has all the permits required to do the construction and has operated within the confines of the law
Wu said he was the registered owner of the property in his personal capacity and argued that his omission from the case was fatal.
“The application is materially defective for non-joinder of the registered owner of the property.”
He said the relief sought would directly affect his property and approvals issued in his name.
“I therefore have a direct and substantial interest in both the subject matter and the order sought. My interest as registered owner and holder of those approvals is distinct from, and is not extinguished by, my position as a director and representative of the First Respondent.”
Zhuomu also disputed the residents’ claim that they had established a sufficient personal interest in the case, saying they had not disclosed their addresses, identified their properties or demonstrated their proximity to the disputed site.
“The Applicants’ general assertion that they reside in the vicinity of the property does not establish the personal, direct and substantial interest alleged.”
The developer further challenged the urgency of the application, arguing that the residents had known about the development activities since July but only approached the court later.
Wu said an environmental expert, Dr Rob Cunliffe, had allegedly visited the property on July 9 and reported seeing grading, clearing, fencing, earth-moving machinery and drilled boreholes.
“The Applicants do not explain why relief was not sought then.”
The developer’s opposition centres heavily on permits and approvals it says were already in place.
According to Wu, EMA issued an Environmental Impact Assessment certificate on May 6, valid until May 6, 2028, allowing housing development subject to conditions, including confinement of the project to a specified non-wetland area.
Zhuomu accepts that condition but disputes that it breached it.
“The First Respondent does not dispute the existence or binding effect of that condition. Its position is that the Applicants have not established, through a survey or other reliable technical evidence, that the activities complained of occurred outside the area permitted by the certificate.”
The developer said the City of Harare had also issued a development permit on July 2 authorising construction of the perimeter wall and approved Building Plan No. 19682.
Wu said the approvals contradicted the residents’ suggestion that the wall was being built without planning or building authority.
He, however, acknowledged that the municipal approvals did not override environmental requirements.
“The First Respondent does not contend that the City approvals displace or override the conditions of the Environmental Impact Assessment Certificate.”
Zhuomu also said it had obtained a provisional groundwater abstraction permit from the Mazowe Catchment Council on August 19 covering seven boreholes and allowing annual abstraction of up to 70,000 cubic metres.
Wu argued that the residents had not challenged or sought to suspend the permit.
“The existence of the permit is material because the draft order seeks to prohibit groundwater abstraction without acknowledging that such abstraction is presently regulated by an extant permit.”
The company disputed allegations that its activities had entered a wetland, saying the residents had failed to produce a verified survey showing that the wall, trenches, boreholes or deposited material fell within the environmentally restricted area.
“The Applicants have not produced any verified evidence establishing that the wall works, trenches, boreholes or deposited material fall within the restricted area.”
Wu also attacked the technical evidence relied upon by the residents, particularly Cunliffe’s report and maps, saying they had not been properly verified.
“Without proof that the activities occurred within a prohibited area, the alleged contraventions of section 113 of the Environmental Management Act and section 20 of the Environmental Management (Environmental Impact Assessment and Ecosystems Protection) Regulations, 2007 are unsupported and unsustainable.”
The developer further argued that the residents were seeking a broad final interdict before identifying precisely which administrative decisions they intended to challenge.
“The application is therefore premature and legally incompetent.”
It said the residents had alternative remedies, including seeking information from public authorities, compelling authorities to perform statutory duties and challenging specific administrative decisions through review or appeal proceedings.
Wu also criticised the breadth of the proposed order, arguing that it could effectively stop activities across virtually the entire property and remain in force indefinitely while the residents sought documents and formulated future litigation.
“The proposed automatic lapse is therefore illusory, and the restraint may continue indefinitely.”
The residents had argued that the court needed to preserve the wetland while they obtained records from EMA, the City of Harare, ZINWA and water authorities before launching substantive proceedings.
They allege that works including trenching, grading and wall construction had entered the environmentally restricted portion of the property and posed risks to the Umwinsi headwater wetland system, which drains towards the Nyagui and Mazowe rivers.
Zhuomu, however, said the residents had failed to establish the legal requirements for a final interdict.
“The Applicants have established neither clear right, an injury actually committed or reasonably apprehended, nor the absence of an adequate alternative remedy.”
The company is seeking dismissal of the residents’ application with costs on a legal practitioner-and-client scale.
Read the original article on New Zimbabwe.
