The Lusaka High Court has dismissed an application in which Graduare Property Development Limited, a company which constructed East Park Mall, was seeking leave to commence Judicial review proceedings against Minister of Local Government’s decision to continue implementing the proposed Lusaka Roads Decongestion Project.
Graduare Property Development, which had cited the Attorney General as respondent in the matter, was seeking a declaration that as an owner and operator of a major business in the project area, they had the right to be consulted by the State and that an agreement must be arrived at between them and the Ministry of Local Government before the fly over bridge could be constructed.
They were also seeking an order certiorari quashing the Attorney General’s decision to construct a fly over bridge at the Arcades Road about since there was no approval from ZEMA, and further, an order quashing government’s decision to construct an “illegal fly over bridge” at the Arcades roundabout that is different from the fly bridge being constructed in Makeni area.
Graduare Property Development was further seeking, among other claims, an order of prohibition to restrain the respodent from constructing a 600 meters fly over bridge on Great East that restricts access to East Park mall as a result of applying different specifications to the 1 kilometre fly over bridge being constructed on Kafue road in Makeni.
In an affidavit verifying facts, the company director Diego-Gan Maria Casilli had stated that his company constructed East Park Mall at a cost of US$110,000,000 over the last six years and was still expanding the mall.
Casilli stated on January 26, 2018 the Ministry of Local Government through its consulting engineers, submitted an Environmental and Social Impact Statement (ESIS) to ZEMA in relation to the proposed Lusaka Roads De-congestion Project.
He stated that it was asserted that the Social Impact Statement submitted to ZEMA by government did not contain any specifications in relation to what the project would entail at the Arcades roundabout.
“The Social impact statement only made reference to widening of the Great East Road to six lanes from four lanes with no mention of a fly over bridge at the Arcades roundabout,” read the affidavit.
Casilli stated that the Minister had not consulted and agreed with his company on how the road widening at the entrance of East Park Mall of Great East Road should be conducted.
He stated that the Ministry of Local Government was trying to force Graduare Property Development and the businesses operating in the project area to meet the cost of having the under pass even though the cost should be borne by the developer of the project, which the applicant felt was unfair, irrational and illegal.
Casilli argued that his company believed that the Makeni fly over bridge and under pass was not being paid for by the businesses operating in the Makeni area.
“The applicant was currently working on an additional of more shops amd more investment at East Park Mall and this phase would be relying on its own access to the mall. The applicant would suffer damages in the estimated amount of US$20 million if the illegal construction of the bridge was implemented by the Local Government Ministry,” read the affidavit.
But in response, then Local Government permanent secretary Amos Malupenga stated that he believed all the stakeholders including Graduare Property Development, had been consulted from inception since the year 2017 and engaged on this project to the extent that over K80 million had been paid in form of compensation to private persons and entities affected by the said works.
And in his ruling, judge Chitabo said this was not a fit and proper case to grant leave to commence judicial review proceedings.
He said the court had not been presented with a decision that Graduare Property Development wished to challenge and the applicants were out of time to commence these proceedings.
Judge Chitabo said even if Graduare Property Development had been within time, it had not exhausted all remedies available to it under the Environmental Management Act which had not been sought prior to commencing the proceedings.
He accordingly dismissed the application for leave to commence judicial review proceedings and ordered that each party bears it’s on costs.