Me. Koomaren Ramasamy, Head of Chambers successfully appeared in the appeal case of Mr. Sailesh Gokool and Ors v The Ministry of Housing and Land Use Planning [ELAT 2059/21] before the Environment and Land Use Appeal Tribunal. The Appellants in this matter applied for a Permit for the subdivision of a plot of land of an extent of 1046m² into 3 lots for residential purposes at Palma, Quatre Bornes and same got rejected by the respondent.  The sole ground of refusal was that the site lies within the gazetted boundary of Palma SSIP.

The Appellant appealed on the following grounds:

a)    The respondent has not made an ‘in concreto’ assessment of the proposed subdivision.

b)     There are already residential developments in the vicinity.

c)     The site has not been cultivated since the year 2009.

d)    Water supply and electricity supply are readily available.

e)    The site is found along a tarred public road.

f)      The appellants are not paying any dues for irrigation, in accordance with Section 19(2) Of the Irrigation Authority Act 1978, as approved by the Minister of Agro-Industry and Food Security since the land is not subjected to irrigation facilities.

g)    For any other reasons that may be given at the hearing on issues of Law.

In cross examination of the Representative of the Respondent, it came out that for the Morcellement Board to consider an application of this nature there was no mandatory requirement to obtain a land conversion permit. The requirement for a land conversion permit only became a live issue only after the lodging of the appeal i.e. through an amended Statement of Defence of the Respondent.

The Tribunal also stated:

“Our observation is that the plan produced as Annex to Document D clearly indicates zones which are outside settlement boundary. The land in lite is not shown to fall within that zone but rather it is indicated as being in the irrigation zone. It is otherwise found to be on the edge of the settlement boundary, which, had it not been in the irrigation zone, could qualify for development under Policy SD3 of the Outline Planning Scheme for the area, if the criteria for such development are met with.

The planner from the Municipality of Quatre Bornes deposed to confirm the presence of residential constructions in the vicinity of the land in lite, but these were found in the residential area which is demarcated from the irrigation zone by a physical boundary, namely a road, which came out to be a tarred public road.

The Planners from the Respondent Authority as well as the Municipal Council of Quatre Bornes too rested their position on the “irrigation zone” without addressing other planning considerations and this despite the Planner of the Municipal Council conceding under cross examination that the state of the land and its proximity with other residential developments created a demand for such development.

The Tribunal held: This “chicken and egg approach” in the assessment process raises concern. It is our view that the cry for an “in concreto” assessment as raised by the Appellant in his grounds of appeal seems justified.

We uphold the first ground and remit the decision back to the Respondent authority to consider the application in the light of the details provided by the Appellant and the planning parameters, in particular the context of the area and the pressure to develop given the urban context.

This summary is only provided to assist in understanding the Tribunal’s decision. The full determination of the Tribunal is available at https://eluat.govmu.org/Documents/Determination%202024/2059-21_1._Mr_Sailesh_Gokool_and_Ors_VS%20Ministry_of_Housing_and_Land_Use_Planning.pdf.