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[2020] ZAWCHC 16
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Khanyisa Community Development Organisation and Others v Director: Development Management: Region 2, Western Cape Department of Local Government, Environmental Affairs and Development and Another (10032/17) [2020] ZAWCHC 16; [2020] 2 All SA 485 (WCC) (5 March 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 10032/17
In
the matter between:
KHANYISA
COMMUNITY DEVELOPMENT
ORGANISATION

First Applicant
MASIBAFIKILE
COMMUNITY PROJECTS

Second Applicant
WORCESTER
BUSINESS
FORUM

Third Applicant
and
DIRECTOR:
DEVELOPMENT MANAGEMENT:
REGION
2, Western Cape DEPARTMENT OF
OF
LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS
AND
DEVELOPMENT

First Respondent
MINISTER
OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT
PLANNING,
WESTERN CAPE PROVINCIAL
GOVERNMENT

Second Respondent
CAPE
WINELANDS DISTRICT
MUNICIPALITY                                        Third

Respondent
Coram:
P.A.L. Gamble, J
Date
of Hearing: 16 & 18 September 2019
Date
of Judgment: 5 March 2020
JUDGMENT DELIVERED ON
THURSDAY 5 MARCH 2020
GAMBLE,
J:
INTRODUCTION
1.
The third respondent, the Cape Winelands
District Municipality (“
the
District Municipality
”) was duly
established as such under Chapter 2 of the Municipal Structures Act,
117 of 1998 (“
the MSA
”)
and exercises jurisdiction over a number of Local Municipalities in
the Boland. Its geographical footprint (which covers
a large area) is
effectively split by a series of mountain ranges running north to
south: the western portion of the District Municipality’s

jurisdiction incorporates the municipalities of Stellenbosch and
Drakenstein while the eastern portion serves the municipalities
of
Witzenberg, Breede Valley and Langeberg. In terms of s84(1)(e)(iii)
of the MSA a district municipality is given responsibility
for
establishment of waste disposal sites in the various local
municipalities falling under its jurisdiction.
2.
During 2010 the District Municipality began
a process aimed at the rationalization of its waste management
functions in the eastern
region, the intention being the
establishment of a regional landfill site to accommodate the ever
increasing demand for solid waste
management in the local
municipalities falling within that region.
2.1
The Witzenberg Municipality, which serves
the towns of Op-die-Berg, Prince Alfred Hamlet, Ceres, Tulbagh and
Wolseley, makes use
of a single landfill site in Tulbagh which is
hopelessly over-burdened and is in breach of its statutory permit
conditions.
2.2
In the Breede Valley Municipality, which
serves the towns of Worcester, Rawsonville, De Doorns and Touws
River, there is an existing
landfill site to the south of Worcester
adjacent to the R43 road between Worcester and Villiersdorp which is
also nearing the end
of its lifecycle, and a further landfill site at
De Doorns. Touws River makes use of a transfer station for waste
which is transported
to the Worcester site.
2.3
And, in the Langeberg Municipality,
the towns of Robertson, Ashton, Montague, McGregor and Bonnievale
make collective use of a landfill
site at Ashton.
2.4
In the case of all three Local
Municipalities, solid waste is conveyed by road to the relevant
landfill sites. Accordingly, for
example, Op-die-Berg’s solid
waste is transported some 75 km to Tulbagh via Ceres while Touws
River’s waste is transported
over a similar distance to
Worcester via De Doorns. Likewise, waste from Robertson, McGregor,
Bonnievale and Montague is transported
through to Ashton over
relatively shorter distances of 20 – 30 km
3.
After
conducting a series of studies over a period of time, the District
Municipality sought, and was granted, environmental authorization
on
4 September 2015 by the first respondent (“
the
Director
”)
to construct a new regional landfill at a site
[1]
immediately adjacent to the existing landfill site outside Worcester.
For the sake of convenience this authorization, which was
granted in
terms of s24 of the National Environmental Management Act, 107 of
1998 (“NEMA”), will be referred to as
the “
the
Director’s ROD
”.
Pursuant to such approval, the intention was that all waste in the
eastern region of the District Municipality was to be
transported by
road to the new site at Worcester. Where appropriate, use would be
made of transfer stations at which waste would
be temporarily stored
before onward transmission to the new regional site. So, for
instance, the existing site at Tulbagh would
henceforth serve as such
a transfer station for the towns under the Witzenberg Municipality.
4.
A number of bodies and individuals
exercised their appeal rights against the Director’s ROD. Such
appeals were determined
in favour of the District Municipality on 24
October 2016 by the second respondent (“
the
MEC
”) under s43 of NEMA. It is
common cause that both the MEC’s decision (“
the
appeal decision
”) and the
Director’s ROD constitute administrative action under the
Promotion of Administrative Justice Act, 3 of 2000
(“
PAJA
”)
and in these proceedings the three applicants seek to review both
decisions.
5.
At the hearing of the review the applicants
were represented by Advs.S. Magardie and M. Mbikwa while Advs.A.M.
Breitenbach SC and
R. Matsala appeared on behalf of the respondents.
The court is indebted to counsel for their detailed heads of
argument, their
comprehensive addresses in court and the preparation
of a core bundle of documents, all of which have greatly assisted in
the preparation
of this judgment.
THE
BASIS FOR REVIEW
6.
While there are generalized complaints that
Site E would have adverse cumulative impacts on the health, safety
and well-being of
members of poor communities in the area, and a
reliance on the environmental justice principles contemplated in
s2(4)(c) of NEMA,
the applicants essentially attack the Director’s
ROD and the appeal decision on a fairly narrow ground. It is said
that both
decision-makers failed to have regard to the potential
impact of the traffic conditions which would be occasioned by the use
of
road transport to convey waste from the various local
municipalities to the new landfill site. It is said that the
anticipated
increase in traffic was an important factor which
warranted a specialist study, that the District Municipality failed
to conduct
such a study and that the absence of such information
rendered the decision-making process of the Director (and later the
MEC)
fundamentally flawed.
7.
What this review is not concerned with is
the fact that Site E will introduce an undesirable source of nuisance
to the area –
that argument would manifestly not hold water in
light of the fact that there is already an existing municipal
landfill site in
the area. Nor is it said that the construction of a
larger regional landfill site will exacerbate an existing nuisance.
On the
contrary, the complaint that the existing municipal site is
poorly managed is met with an assurance from the District
Municipality
that the new site will be constructed according to
acceptable standards and properly controlled and maintained by it.
8.
The applicants’ focus is accordingly
on the nuisance, potential danger and inconvenience to the
communities living in the
immediate vicinity of the proposed Site E
which is likely to be occasioned by the daily conveyance of waste
from the various local
municipalities to the site. Such nuisance is
said to include noise pollution, exhaust fumes, noxious
items/substances falling off
the rubbish trucks and the general
inconvenience which increased traffic flow might pose to other road
users, in particular an
increased source of danger to pedestrians and
scholars who might have to cross the R43 to get to nearby schools.
RELEVANT
BACKGROUND FACTS AND CIRCUMSTANCES
9.
At
the commencement of the hearing the parties were informed that the
Court was familiar with the general layout of the area and
that an
inspection in loco was not required.
[2]
In any event, the record contains sufficient photographs and maps to
facilitate a proper understanding of the geography of the
area. Where
the parties have relied on photocopies of the area sourced from
Google Maps, the Court has consulted the original website
to obtain
greater clarity.
10.
Because of the relic of apartheid spacial
planning, the Worcester suburbs of Avian Park, Riverview and Johnson
Park are occupied
by previously disadvantaged communities. By their
very nature these are poor communities who have been forced to live
on the periphery
of the town: the applicants say that approximately
74% of the Worcester population lives within 5km of the existing
landfill site
and that 90% of this population is African Black and/or
so-called Coloured.
11.
The
R43 road, a major regional arterial route to Villiersdorp
[3]
,
lies just to the south of Worcester and the existing landfill site,
in turn, lies to the south of that road – it is located
between
the road and the Breede River, a major watercourse which flows
through the district. For many motorists the R43 is a convenient

route to use as a bypass to avoid going into the town of Worcester
itself. To the north of the R43 lie the suburbs of Riverview
and
Johnson Park, as also a cemetery and the local sewerage treatment
plant, while Avian Park lies to the south of the R43 and
to the west
of the existing site. Johnson Park is the closest suburb and is about
2km north of the existing site, while Avian Park
and Riverview are
approximately 3km away from the existing site. To the north of the
R43 in the vicinity of Avian Park there are
2 schools attended by,
inter alia, learners living in Avian Park.
[4]
Pedestrian traffic across the R43 to the schools (and the Worcester
CBD much further beyond) is regulated by an uncontrolled pedestrian

crossing.
12.
Vehicular access to the new landfill site
might notionally be obtained by a number of routes. Trucks from the
Langeberg Municipality
could approach Site E either from the east by
traveling along the R60 from Robertson and linking up to the R43 or
following the
R60 into the town and travelling south along the route
presently followed by trucks from Worcester running between Riverview
and
Johnson Park. Trucks to the new site from the Breede River
Municipality would most likely follow the existing route used by
extant
transport, while trucks from the Witzenberg Municipality might
approach from the west or north west either via Rawsonville or
through
Worcester itself before linking up with the R43 in the
immediate vicinity of Avian Park.  Either way, trucks from the
Witzenberg
Municipality are likely to travel along the R43 over the
pedestrian crossing already referred to while trucks from the
Langeberg
Municipality may travel along the road which bisects
Riverview and Johnson Park (the Aan de Doorns road) and trucks
servicing the
Breede River Municipality most certainly will continue
to travel along the routes they have up to now i.e. either along the
R43
or the Aan de Doorns road.
13.
The first applicant (“
Khanyisa
”)
is a community-based non-governmental organisation located in
Worcester which seeks to promote and achieved the upliftment
of the
socio-economic conditions of residents in the area. It assists
children, the elderly and disabled persons, and operates
community
food gardens and feeding schemes and youth development.
14.
The second applicant (“
Masibafikile
”)
is an organisation committed to the development and upliftment of all
of Worcester’s communities by means of sustainable
community
projects, the operating of community feeding schemes and food
security projects and securing and optimizing the physical,

spiritual, social, intellectual and emotional well-being of the
residents of the area. The offices of both Khanyisa and Masibafikile

are located in Avian Park.
15.
The third applicant (“
the
WBF
”) is a non-profit
organization that represents over 100 members of the local business
community which seeks to improve the
business environment, general
living conditions and aesthetic appearance of Worcester through
industrial management and guidance.
It also aims to facilitate
economic development and eradicate poverty while protecting the
environment and natural resources.
16.
Of the three applicants, only the WBF
participated in the extensive public participation process which
preceded the Director’s
ROD, while ten organizations (including
the WBF) participated in the appeal process before the MEC.
Notwithstanding their failure
to participate in the earlier rounds of
decision-making, the
locus standi
of
Khanyisa and Masibafikile is not an in issue in these review
proceedings.
17.
Prior to the Director’s ROD the
District Municipality conducted an environmental impact assessment
(“
EIA
”)
as contemplated under NEMA and the then recently promulgated National
Environmental Management: Waste Act, 59 of 2008 (“
NEMWA
”),
consisting of both a scoping phase and an EIA phase during which
there was public participation in both phases. I turn
now to consider
these phases individually, with the focus being on traffic related
issues.
THE
SCOPING PHASE
18.
During 2010 and early 2011, the District
Municipality appointed a firm of consulting engineers (“
SRK
”)
to conduct a desk-top study aimed at identifying potential areas for
the location of a new landfill site in the eastern
region of its area
of jurisdiction. On the recommendation of Resource Management
Services (“
RMS
”)
(the District Municipality’s appointed independent
environmental assessment practitioner (“
EAP
”))
it also appointed Jan Palm Consulting Engineers (“
Palm
”)
as its project manager and project engineer for the establishment of
the new site. SRK and Palm then conducted what has
been referred to
as “
a drive-by reconnaissance
”
to identify candidate sites for the project. They identified six
potential options referred to as Sites A - F respectively.
Four of
those sites, including Site E, were located immediately adjacent to
the existing Worcester landfill site while the remaining
two were on
farms between Worcester and Robertson, some 12 and 35 km distant
respectively.
19.
On 17 June 2011 the District Municipality
submitted an application to the Western Cape’s Department of
Local Government, Environmental
Affairs and Development Planning
(”
the Department
”)
to conduct activities falling within the purview of NEMWA. In August
2011, RMS compiled a Background Information Document
(“
the
BID
”) for the proposed regional
landfill site, identifying the 6 alternative sites already referred
to and on 5 August 2011,
the BID was published for public comment and
the statutory 30 day period for the registration of interested and
affected parties
(“
I&AP’s
”)
commenced running. As I have said, there was extensive public
participation during this stage of the EIA.
20.
A Draft Scoping Report (“
DSR”
)
was compiled by RMS in November 2011, the purpose whereof was to
assess the suitability of each proposed site and to “
identify
issues specific to the preferred (highest ranked) site alternatives
that require further assessment through specialist
studies
.”
In other words, the purpose of the scoping phase was to define the
relevant environment, ascertain the potential effects
on that
environment, and identify the further specialist studies that would
need to be undertaken to properly take those effects
into account.
The DSR did not include Site D which by that stage had been discarded
as a viable option. After obtaining the input
of Palm, RMS also
included in the DSR a “
Landfill
Site Ranking Report
” which
recorded Sites A, E and F as the 3 preferred sites with Site E being
the site which scored the highest overall ranking.
21.
The DSR recommended that these three sites
proceed to assessment in the EIA phase and the District Municipality
duly followed this
recommendation. Also in November 2011, RMS drew up
a Plan of Study in which the proposed process for the EIA was set
out. This
included the conducting of specialist studies to identify
and assess the significance of environmental impacts flowing from the

proposed regional landfill site.
22.
In June 2012 RMS published its Final
Scoping Report (“
FSR
”)
for public comment. During the draft scoping phase, six specialist
studies had been identified as being necessary for the
purposes of
the EIA process and the following were included in the FSR:
·
Geotechnical Assessment;
·
Geohydrological Assessment;
·
Heritage Assessment;
·
Botanical Assessment;
·
Area Quality Assessment; and
·
Visual Impact Assessment.
23.
The DSR had been made available for public
comment from 2 December 2011 to 13 January 2012, and an open day was
also held on 19
January 2012 at the municipal offices in Worcester.
The DSR was also submitted to the relevant authorities for comment on
13 November
2011. The FSR was published for general comment during
the period 11 June 2012 to 2 July 2012. Save for the inclusion of
responses
to comments and queries on the DSR, the FSR was
substantially the same as the DSR save that in October 2012 an
Amended FSR was
published after the Department had drawn certain
issues to the attention of RMS.
24.
In June 2013 Palm compiled an Environmental
Management Program”(“
EMP”
)
for the proposed landfill site while in August 2013 RMS compiled a
Draft Environmental Impact Report (“
DEIR”
)
which was thereafter published by the Department for public comment.
Included in the DEIR were the six specialist studies referred
to
above. The conclusion arrived at in the DEIR was as follows.
“
Based
on the completion of the numerous impact assessments and the outcomes
thereof which had been highlighted above it is the opinion
of the EAP
that the proposed construction and operation of the… [District
Municipality] Regional Landfill Facility located
on the preferred
Site E, will not result in unacceptable environmental impacts or
risks in the long term; as long as the proposed
mitigation measures
contained in the specialists studies and in the EMP are implemented
.”
25.
In February 2014 RMS compiled and published
for public comment a Final EIR (“
the
FEIR
”). Like the DEIR, the FEIR
recommended that the new regional landfill site be located on the
preferred Site E, as it would
not result in unacceptable
environmental impacts or risks in the long term if the proposed
mitigation measures contained in the
specialist studies and in the
EMP were implemented.
26.
On 25 July 2015 a Waste Management Licence
was issued by the Director: Waste Management in the Department and in
September 2015
the Director issued the requisite environmental
authorization under s43 of NEMA for the new landfill on Site E
subject to the conditions,
and for the reasons, set out in his ROD of
that date. When he dismissed the appeals against the Director’s
ROD in October
2016, the MEC varied certain of the conditions of
approval and added others thereto. I agree with the submission by
counsel for
the respondents that the record reflects that the
decisions of the Director and the MEC were the culmination of an
extensive decision-making
process which included a full-blown EIA.
27.
It is apparent, also, that there was
engagement with all relevant parties who had registered and shown an
interest in the process.
Significantly, neither Khanyisa nor
Masibafikile participated at any stage during the public
participation process and their current
complaints regarding the
traffic issue were therefore not expressly raised before either the
Director or the MEC.
28.
WBF
did register as an I & AP and on 4 October 2013 Boland
Environmental Consultants (“BEC”) submitted a detailed

comment on its behalf.
[5]
BEC
were critical of the scoping process and suggested that insufficient
consideration had been given to alternative sites as also
the method
of transportation and final disposal of waste. A fairly detailed
analysis was undertaken of the cost comparisons between
the use of
Site E and other potential options and the following opinion was
expressed on behalf of WBF.
“
2.5
Importantly, and in our opinion, the increased transport costs could
be offset against other more significant costs to society,
the
economy and the natural environment.
Compared
to the two cheapest alternatives, the Applicants preferred and now
‘
only
’
alternative i.e. the Worcester landfill site (E, F or A) would place
significant costs on:
·
The local population in terms of health,
discomfort, nuisance and safety,
·
The agricultural industry downstream of
Worcester due to the water pollution risk,
·
The growing tourism industry of the area
and along the Worcester - Villiersdorp route,
·
As well as a number of significant
regional developments proposed for Worcester…”
Significantly,
BEC (as specialists in the field) did not comment negatively on the
failure of RMS to procure a TIA nor did they
suggest that this was a
pressing necessity in the circumstances.
29.
In the result, the issues now raised by the
first and second applicants in relation to the consequences of an
increase in vehicle
traffic along the R43 and the failure to
undertake a TIA were not pertinently drawn to the attention of RMS at
the stage of the
DEIR nor the relevant authorities considering the
District Municipality’s application. Of course the lack of
participation
by Khanyisa and Masibafikile does not preclude parties
who admittedly have the requisite
locus
standi
to participate in these review
proceedings from raising any reviewable irregularities in the EIA
process that arise from the record,
but it does not entitle them to
argue, for instance, that issues which they had drawn to the
attention of the authorities earlier
had not received the requisite
attention and that for that reason alone the review should succeed.
30.
Further, as far as WBF is concerned, I did
not understand Mr. Magardie to argue that the comments by BEC were
not considered in
the EIA process and that for that reason the
decisions of either the Director or the MEC fell to be reviewed. That
having been
said, it would have been obvious to both the Director and
the MEC that there was likely to be an increase in heavy vehicle
traffic
if the selected model of a centralised landfill site for the
eastern region with the transportation of refuse thereto was pursued

and clearly they were obliged to give consideration to the issue as
such.
THE
MAIN CONSIDERATIONS UNDERPINNING THE INPUGNED DECISIONS
31.
Counsel for the respondents provided a
useful summation in their heads of argument of the main factors
considered by the Director
in arriving at the ROD. These include the
following.
32.
During the scoping phase feasible
alternatives (including other site layouts) were identified,
investigated and assessed. Use was
then made of a site ranking system
which took into account known physical and biophysical constraints as
well as comments received
from the relevant authorities. That
exercise resulted in the selection of three alternative sites which
were then further assessed
as part of the EIA process which itself
relied on specialist and technical assessments.
33.
The
“
No-Go
”
alternative
[6]
was considered by
the Director but not preferred because it would not result in the
provision of an urgently needed waste management
resource for the
eastern region of the District Municipality, given that the various
local municipalities’ waste sites had
either reached full
capacity or were of a lower standard.
34.
Site A (which is located on the eastern
flank of the existing dumping site) was not preferred because,
amongst other things, the
vegetation on that site was in a good
botanical condition and its development would increase the risk of
the degradation of the
landscape to the east of the existing site.
This impacted on the visual aspect of the area from a tourist point
of view.
35.
Similarly, Site F (located on the southern
flank of the existing dumping site) was not preferred because it
contained good quality
endangered Breede Alluvium Fynbos, presented a
visual impact problem similar to that in relation to site A and had
the highest
potential for on-site odour impact.
36.
Site E (which is located on the western
flank of the existing site) was preferred because its vegetation was
already heavily degraded,
disturbed and not worth rehabilitating. It
was further said to be located outside of a recognised floodplain
wetland and was the
site with the least impact on freshwater
features. Further, its soil, geohydrology and geology was suitable
for landfill. Lastly,
its “
viewshed
”
did not extend to the east and when viewed from the west did not
constitute a significant change to the existing landscape
character.
37.
In relation to the socio-economic impact
assessment, the Director concluded that there was little difference
in the nature and significance
of the potential social impacts
between the three alternative sites. Various impacts and concerns
were identified including a sense
of community and sense of place,
land values, traffic, nuisance, crime, health and safety, new
employment opportunities and local
business opportunities. The
Director was of the view that mitigation that incorporated a
communication strategy and procurement
strategy was advisable. A
Monitoring and Evaluation Framework relating to social and economic
impacts would be implemented as a
condition of the authorisation via
the contemplated EMP.
38.
As far as the Air Quality Impact Assessment
was concerned the specialist report suggested that there was no
preference either way
for any of the three sites from an air quality
point of view. Nevertheless, buffer zones were recommended to take
account of concerns
for an increased risk of cancer. The buffer zone
to the west of the proposed site (i.e. in the direction of Avian
Park) was to
be extended to 1000 m.
39.
The Director further concluded that the new
landfill site would have both negative and positive impacts. On the
negative side there
were temporary construction-related impacts
including site clearance, establishment of the landfill terrain and
roads, dust, traffic
and noise; nuisance factors, including dust and
noise, associated with operations of the site; an increased amount of
road users
and heavy vehicle traffic; an influx of job-seekers and
the potential impact of on-site crime associated with the
construction
phase; the impact on the sense of place from a tourism
perspective and the impact on the sense of community.
40.
As regards positive impacts the Director
observed that the district and local municipalities would benefit
from a regional landfill
site because it would address an urgent need
for additional landfill space and provide a location for improved
solid waste management
in respect of solid waste that could not be
recycled. Further, through the implementation of the recommended
mitigation measures,
the visual impact of the existing landfill would
be reduced along with the existing landfill.
41.
Turning to the appeal decision it will be
observed that the MEC stated that his reasons for confirming the
decision of the Director
were those contained in the environmental
authorisation, waste management licence and in his letter addressing
the issues raised
in the appeal itself. That letter included the
following.
42.
Firstly, the MEC said he was of the view
that the socio-economic impacts had been sufficiently considered and
assessed during the
environmental authorisation and waste management
licence application processes. Further, said the MEC, the
socio-economic impact
assessment conducted by Multi-Purpose Business
Solutions of May 2013 had stated that the sense of community and
sense of place
had the anticipated impact rating of medium-high
negative after mitigation measures had been implemented. However,
with the implementation
of the recommended mitigation measures in the
visual impact assessment, the new landfill facility could be
implemented without
significant change to the landscape character.
43.
According to the MEC, nuisance factors such
as dust, smoke, noise and odours had an anticipated rating of
low-negative after mitigation
measures, including the implementation
of an odour management zone of 90 m around the site, had been
implemented. Further, a monitoring
and evaluation framework relating
to social and economic impacts had been included as a requirement of
the EMP. A communication
strategy and procurement strategy to further
address the socio-economic impact of the landfill would also be
implemented.
44.
The MEC held the view that during the
scoping phase, feasible alternatives including candidate sites and
site layouts were identified
by means of a desktop study and
“
ground-choosing
”
with criteria informed by the National Department of Water Affairs
and Forestry’s “
Minimum
Requirements for Waste
Disposal
by Landfill
”, and were
investigated and assessed to identify and motivate for further
specialist and technical assessments. The preferred
alternatives
assessed as part of the EIA phase were based on the outcome of a
candidate site ranking exercise, which took into
consideration known
physical and biophysical constraints as well as comments received
from the commenting authorities. Ultimately,
a key consideration in
the site selection process was the proximity of the site to the
existing centre of waste generation as this
had a direct impact on
costs and maintenance of road infrastructure which would be used in
accessing the facility.
45.
Importantly it was noted that the landfill
was needed because local municipalities’ waste sites had either
reached full capacity
or operations on the sites were of such a low
standard that it would be advisable to close and rehabilitate those
sites. Further,
the development of a regional landfill site would
provide an advantage in terms of improved site management and
monitoring in that
only one large site would have to be managed
instead of several smaller sites scattered throughout the eastern
region.
46.
Finally, the MEC held the view that the
listed activities associated with the proposed regional landfill on
Site E would not be
in conflict with the general objectives of
integrated environmental management stipulated in Chapter 5 of NEMA
and that any potentially
detrimental environmental impacts resulting
from those activities could be mitigated to acceptable levels.
POLICY-
LADEN DECISION MAKING
47.
Counsel
for the respondents referred the court to the principle established
in a long line of cases that in review applications
a court was
required to accord due deference to the decision-maker in
circumstances where that decision was polycentric and/or

policy-laden.
[7]
For present
purposes it will suffice to refer to the dictum of Nugent JA and
Swain AJA in
Clairison’s
which neatly summarises the approach expected of a court.
“
[18]
... It bears repeating that a review is not concerned with the
correctness of a decision made by a functionary, but with whether
he
performed the function with which he was entrusted. When the law
entrusts a functionary with a discretion it means just that:
the law
gives recognition to the evaluation made by the functionary to whom
the discretion is entrusted, and it is not open to
a court to
second-guess his evaluation. The role of a court is no more than to
ensure that the decision-maker has performed the
function with which
he was entrusted…
[22]
… The law remains, as we see it, that when a functionary is
entrusted with a discretion, the weight to be attached to
particular
factors, or how far a particular factor affects the eventual
determination of the issue, is a matter for the functionary
to
decide, and as he acts in good faith (and reasonably and rationally)
a court of law cannot interfere. That seems to us to be
but one
manifestation of the broader principles explained in…
Bato
Star.
”
48.
The rationale behind the approach was
explained thus by Moseneke DCJ in
ITAC
.
“
[95]
Where the Constitution or valid relevant legislation has entrusted
specific powers and functions to a particular branch of
government,
courts may not usurp that power or function by making a decision of
their own preference. That would frustrate the
balance of power
implied in the principle of separation of powers. The primary
responsibility of a court is not to make decisions
reserved for or
within the domain of other branches of government, but rather to
ensure that the concerned branches of government
exercise their
authority within the bounds of the Constitution. This would
especially be so where the decision in issue is policy-laden
as well
as polycentric.”
49.
In my considered view, and subject only to
that which is considered below in relation to the traffic issue,
there can be no suggestion
that either the Director’s ROD or
the appeal decision are capable of review on the basis that the
responsible functionaries
did not discharge their duties properly
under the Constitution, NEMA, NEMWA or the applicable environmental
regulations, or that
their findings and recommendations are otherwise
assailable. Indeed, I did not understand Mr. Magardie to argue
otherwise. Rather,
it was the absence of a specialist traffic impact
assessment (“
TIA
”)
which was relied on as establishing the basis for a separate and
discrete ground of review. Implicit in this argument is
the a priori
question as to whether such a TIA was called for in the first place.
THE
ABSENCE OF A SPECIALIST TRAFFIC IMPACT ASSESSMENT
50.
The applicants’ argument that a
specialist TIA was required is based on the contention that there was
the possibility of a
significant increase in traffic along the R43,
in particular the trucks which will transport refuse to and from the
new site, and
that this possibility was alluded to as an issue during
the scoping and EIA processes. As will appear shortly, the point is
that
if there is to be a significant increase in the number of
vehicles travelling along the R43, such increased traffic must give
rise
to a significant adverse impact on other road users and on the
residents of Avian Park and Riverview which abut that road.
51.
The respondents say that this ground of
review is dependent on whether the scoping and EIA processes yielded
sufficient reliable
information regarding the increase of traffic
flow on the R43, and further whether such information showed that the
increase would
be significant or not. They contend that the evidence
demonstrates that any such increase will be insignificant and that a
TIA
was thus not called for.
52.
Applying the approach referred to in
Clairison’s
the question is not whether the assessment of the Director (and later
the MEC) in regard to the impact of any increased traffic
flow on the
R43 was right or wrong: such a decision would encroach on the
specific powers entrusted to the decision-maker. Rather,
the question
is whether there was a failure by the Director to consider the
environmental impact of any increase in traffic flow
as a consequence
of locating the regional landfill on Site E. Anterior to that enquiry
is the question whether there was a failure
on the part of the
District Municipality (and its duly appointed agent RMS) to procure a
specialist traffic assessment in circumstances
where that was
considered necessary.
53.
The
point of departure is Reg 31(2)(l) of the 2010 EIA Regulations (“the
EIA Regs”)
[8]
.
“
31.
Environmental impact assessment
reports
(1)
…….
(2)
An environmental impact assessment report must contain all
information that is necessary for the competent authority to consider

the application and to reach a decision contemplated in regulation
35, and must include –
(
a)
– (k)…
(l)
an assessment of each identified potentially significant impact,
including-
(i)
cumulative impacts;
(ii)
the nature of the impact;
(iii)
the extent and duration of the impact;
(iv)
the probability of the impact occurring;
(v)
the degree to which the impact can be reversed;
(vi)
the degree to which the impact may cause irreplaceable loss of
resources; and
(vii)
the degree to which the impact can be mitigated
…”
54.
Reg 31(2)(l) gives content to the
provisions of ss24(a)(iii) and (iv) of NEMA, which require that
procedures for the investigation,
assessment and communication of the
potential consequences or impacts of activities on the environment
must ensure, with respect
to every application for an environmental
authorisation:
54.1
that a description of the environment
likely to be significantly affected by the proposed activity is
contained in such application
(ss iii) , and
54.2
investigation of the potential consequences
for, or impacts on, the environment of the activity and assessment of
the significance
of those potential consequences or impacts is
undertaken (ss iv).
55.
In Reg 1(1) “
significant
impact
” is defined as “
an
impact that by its magnitude, duration, intensity or probability of
occurrence may have a notable effect on one or more aspects
of the
environment”
. Accordingly, where
it is alleged that there has been a failure to comply with the
provisions of Reg 31(2)(l) sufficient to constitute
a reviewable
irregularity, the reviewing court must determine, with reference to
the definition of “
significant
impact
” and the facts placed
before it, whether the impact which was allegedly required to be
assessed and was in fact not assessed,
was indeed “
significant”
.
56.
It must be borne in mind that the envisaged
transportation of solid waste to the new landfill site is to take
place along an established
regional road. It is a road which has been
in use for an appreciable period of time and is designed to carry a
wide variety of
vehicles – from sedan cars, buses and light
delivery vehicles to heavy haulage trucks and farming vehicles. The
road also
serves as a route for vehicles wanting to travel from the
N1 outside Worcester to the N2 to the south of Villiersdorp and the
coastal
areas of the Overstrand to the south of the N2. That much is
evident from the regional maps incorporated in the core bundle of
documents prepared by the parties. The point here is that one is
considering the addition of heavy vehicle traffic on an existing
busy
road rather than the impact of prospective traffic flow on a new
road. In the language of the environmental specialists, we
are
dealing with a “
brown field
”
rather than a “
green field
”
project.
TRAFFIC
CONSIDERATIONS IN THE SCOPING PHASE
57.
Mr. Breitenbach SC submitted that the issue
of traffic volumes was considered both during the scoping phase and
the EIA investigation.
In regard to the former, it was pointed out
that on 29 March 2012, Palm compiled comments on the public queries
received in response
to the DSR. These comments dealt with amongst
other things the financial impact on waste transportation costs if
the regional landfill
location was to be moved from the Worcester
area to either the De Doorns or Touws River areas. In order to do so,
Palm calculated
the total number of trucks travelling from Robertson,
Wolseley and Worcester to the various proposed regional landfill
sites. This
was done using each municipality’s weekly volume of
waste and an assumption, based on the existing standard practice,
that
three six-ton containers would be hauled on each trip.
58.
Palm’s calculations demonstrated that
in March 2012 the municipalities in the region generated the
following volumes of waste:
58.1
Langeberg Municipality – 334.91 tons
of waste per week which would fill 56 containers necessitating 19
weekly trips to the
local landfill site.
58.2
Witzenberg Municipality – 293.86 tons
of waste per week which would fill 49 containers necessitating 17
weekly trips to the
local site.
58.3
Breede River Municipality – 555.71
tons of waste which would fill 93 containers necessitating 31 weekly
trips to the existing
site.
The
aggregate of these weekly trips was 67, thereby averaging just over
13 round trips per day during the assumed working hours
of 08h00 and
17h00. This is said to be the equivalent of an hourly average of 1,5
round trips every working day. Mr. Breitenbach
SC submitted that this
can hardly be described as a significant increase in road usage.
59.
Counsel went on to postulate certain
alternative scenario’s based on the Palm report. So, for
instance he noted that if the
Breede River Municipality’s waste
was not containerised and the municipal refuse trucks from Worcester
continued to deliver
their loads directly to the site then the number
of trucks per week would increase approximately threefold to 93
return trips.
This would translate to just about 26 round trips per
day, 5 days a week with the hourly average increasing to around 3
trips and
it was submitted that this too is not a significant
increase in the number of vehicles using the R43.
60.
The
figures referred to by Mr. Breitenbach SC would have to be
reconsidered if the trucks from the Langeberg Municipality do not

travel through Worcester itself but rather approach Site E from the
east along the R43 after using the short-cut from the R60 across
to
the R43 junction at the Aan-de-Doorns Wine Cellar, which is located
on the R43 to the south east of the site
[9]
.
Also, the assumption (for purposes of argument) that all of the
trucks from the Breede River Municipality will proceed directly
to
the site without using containers is probably incorrect as we know
that the intention is that waste from Touws River and De
Doorns is to
be containerized at a transfer station in De Doorns. If reconsidered,
these scenarios might well lead to a reduction
in the number of
trucks proceeding from west to east (and back again) along the R43 in
the vicinity of Avian Park.
61.
In conclusion regarding the scoping phase,
on 27 July 2012 the Department’s Directorate: Waste Management
made a request of
the District Municipality that it should “
obtain
comments from the relevant Traffic Authority regarding the proposed
waste disposal facility
.” In
reply thereto, RMS noted that such comments would be included in the
EIA process.
TRAFFIC
CONSIDERATIONS IN THE EIA PHASE
62.
The
DEIR submitted to the Department in August 2013 incorporated a
Socio-Economic Impact Assessment of May 2013 by a consultancy
known
as “Multi-Purpose Business Solutions”
[10]
.
The report was prepared for Palm and in it Prof. Bloom remarked that
“
a
traffic impact assessment was not available to assess the impact
,
although
the potential traffic impact during the construction and operation
phase were raised by representatives of stakeholder
groups
.”
I shall return to discuss the impact of this aspect of Prof. Bloom’s
later in this judgment.
63.
Commenting on the DEIR in October 2013 the
Directorate: Land Management (Region 1) in the Department suggested
that in the absence
of a specialist traffic assessment report,
comment should be obtained from the Provincial Department of
Transport and Public Works
which should then be included in the FEIR.
64.
On
10 October 2013 the Executive Manager: Road Network Management in the
said Department of Transport and Public Works wrote to
RMS in
response to the DEIR pointing out that the R43
[11]
was directly affected by the application for the new landfill site
and that the DEIR did not contain information regarding current

traffic volumes or the road condition, the anticipated trip
generation due to the new site, required road improvements in the
form of turning or acceleration lanes nor the state of the existing
access and possible improvements thereto.
65.
Palm responded to these observations on 31
October 2013 in a letter addressed to RMS. I shall recite the
contents hereof in some
detail as it forms a critical part of the
respondents’ case.
“
REGIONAL
LANDFILL: ADDITIONAL TRUCK LOADS
Regarding your request
on the number of additional truck loads that will be generated due to
waste from Langeberg Municipality as
well as waste from Witzenberg
Municipality being transported by road to the proposed new Regional
Landfill adjacent to the existing
Breede Valley landfill, the
following:
From Langeberg
Municipality:
358
tonnes
[12]
of waste per week transported in 30 [cubic] m containers on trucks
carrying 3 containers per truck will result in 20 trucks per
5 day
week, i.e. an average of 4 trucks per weekday. The most likely
approach to the landfill will be from the south east on the
R43.
[13]
From Witzenberg
Municipality:
281
tonnes
[14]
of waste per week transported in 30 [cubic] m containers on trucks
carrying 3 containers per trip will result in 16 trips per 5
day
week, i.e. an average of 3.2 trucks per weekday. The most likely
approach would be from the north west on the R43.
[15]
From
Breede Valley Municipality:
Since the current
waste disposal site for Breede Value Municipality is adjacent to the
proposed Regional Landfill, the traffic loads
from Breede Valley
Municipality will remain unchanged.
The above volumes
represent the worst case scenario when no waste reduction is being
done at source…”
This
letter was appended to the FEIR.
66.
On 25 March 2014, the Executive Manager:
Road Network Management in the aforesaid Department of Transport and
Public Works commented
briefly on the FEIR noting that he had no
further comments in relation to the EIA process.
RESPONDENTS’
CONCLUSIONS ON THE ANTICIPATED TRAFFIC VOLUMES
67.
Mr. Breitenbach SC asked the court to have
regard to the later Palm calculations of October 2013 and to further
make the following
additional assumptions in an endeavour to gauge
the maximum impact of the increased traffic flow –
67.1
Trucks from the Breede River Valley
Municipality would travel to site E from the north west along the R43
main road;
67.2
The number of weekly trips from the Breede
River Valley Municipality would increase at a higher rate than the
weekly trips from
the Langeberg Municipality, say from 31 weekly
trips in March 2012 to 35 weekly trips in October 2013; and
67.3
Waste from the Breede River Valley
Municipality would not be containerised.
It
was then pointed out that the number of round trips past the
residential areas to the north west of the proposed new site (in

particular past Avian Park and Riverview) would be 20 round trips per
5 day week from the Langeberg Municipality and 105 round
trips per 5
day week from the Breede River Valley Municipality, i.e. an average
of 25 round trips per weekday (giving an hourly
average of 2,8 trips
per hour during working hours over a 5 day week). It was submitted
that this was not a significant number
of round trips.
68.
The correct figure must of course include
Palm’s most recent calculation regarding the volumes from the
Witzenberg Municipality
being 16 round trips per week. This would
take the total number of round trips per week to 141 i.e.
approximately 28 round trips
per day (and thus approximately 3 trips
per hour between the hours of 08h00 and 17h00) in respect of waste
sourced from the entire
region. And if, as counsel suggested,
Langeberg’s waste was assumed to be conveyed along the R43 from
the north west (which
Palm suggested in October 2013 it would not),
there would be an additional 4 trips per day passing Avian Park which
would increase
the hourly average to 3,5 trips)
69.
On the strength of these calculations
(based as they were on a worst-case scenario) it was submitted that
an increase of 3 to 4
trips per hour (i.e. one truck every 15 to 20
minutes) could not be considered as being sufficiently significant as
to justify
a full-blown traffic impact assessment.
THE
APPLICANTS’ SUBMISSIONS ON THE TRAFFIC ISSUE.
70.
Mr. Magardie did not take issue with the
various calculations and assumptions put forward by Mr. Breitenbach
SC in respect of the
anticipated traffic flow on the R43, nor did I
understand him to suggest that the postulated figures (even in the
worst case scenario)
were cause for concern. It must therefore be
assumed to be common cause that the passage of an additional heavy
vehicle every 15
-20 mins per hour during the working week should not
be regarded as an additional source of nuisance per se. Rather, the
thrust
of Mr. Magardie’s submission was that because there was
no evidence before either the Director or the MEC as to what the
existing traffic flow was (he termed it “
the
baseline
”), one could not proceed
to determine whether the increase was significant or not. It was said
that any such significance
had to be established with respect to a
known quantity or condition.
71.
The applicants’ submissions were made
in the context of the principles mandated under NEMA, which Mr.
Magardie said require
a risk-averse approach with a relatively low
bar being set to determine significance. The point of departure is
s24 of the Constitution,
1996 which reads as follows.
“
Everyone
has the right-
(a)
to an environment that is not
harmful to their health or well-being; and
(b)
to have the environment protected,
for the benefit of present and future generations, through reasonable
legislative and other measures
that-
(i)
prevent pollution and ecological
degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable
development and use of natural resources while promoting justifiable
economic social development
.”
72.
In
Fuel
Retailers
[16]
,
which concerned the environmental approval of a new filling station,
the Constitutional Court suggested that the approach in matters
such
as the present should be as follows.
“
[72]
Apart from this, the proliferation of filling stations in close
proximity to one another may increase the pre-existing risk
of
adverse impact on the environment. The risk that comes to mind is the
contamination of underground water, soil, visual intrusion
and the
like. An additional filling station may significantly increase this
risk and increase environmental stress. Mindful of
this possibility,
NEMA requires that the cumulative impact of a proposed development,
together with the existing developments on
the environment,
socio-economic conditions
and
cultural heritage must be assessed. The cumulative effect of the
proposed development must naturally be assessed in the light
of
existing developments. A consideration of socio-economic conditions
therefore includes the consideration of the impact of the
proposed
development not only in combination with the existing developments,
but also its impact on existing ones.…
[81]
Finally, NEMA requires ‘a risk averse and cautious approach’
to be applied by decision-makers. This approach entails
taking into
account the limitation on present knowledge about the consequences of
an environmental decision. This precautionary
approach is especially
important in the light of section 24(7)(b) of NEMA which requires the
cumulative impact of a development
on the environmental and
socio-economic conditions to be investigated and addressed. An
increase in the risk of contamination of
underground water and soil,
and visual intrusion and light, for example, are some of the
significant cumulative impacts that could
result from the
proliferation of filling stations. Subsection 24(7)(b) specifically
requires the investigation of the potential
impact, including
cumulative effects, of the proposed development on the environment
and socio economic conditions, and the assessment
of the significance
of the potential impact
.”
73.
Furthermore, the EIA Regs expressly define
(and distinguish from any “
significant
impact
”), the cumulative effect
referred to in
Fuel Retailers
:
“
cumulative
impact” in relation to an activity, means the impact of an
activity that in itself may not be significant, but
may become
significant when added to the existing and potential impacts
eventuating from similar or diverse activities or undertakings
in the
area
…”
74.
In the result, I understand it to be the
applicants’ case that, when assessing whether an environmental
impact is “
significant”
under NEMA, consideration must also be given to the “
cumulative
impact
” of the particular
activity in the context of all the other relevant, negative impacts.
A risk-averse approach would thus
require a court to err on the side
of caution in the event that there was such a significant
environmental impact.
THE
RESPONDENTS’
SUBMISSIONS
ON THE TRAFFIC ISSUE
75.
I did not understand Mr. Breitenbach SC to
differ with the applicants’ approach on the law. Rather,
counsel suggested that
the evidence before the court showed that the
traffic issue had been considered by the authorities and that they
had determined
that the issue was not sufficiently significant to
warrant a specialist study in that regard. If that submission is
correct it
is not open to this court to impose its own view on the
matter – that would be to trench impermissibly on the powers of
the
executive.
76.
Counsel submitted that both the scoping and
EIA processes had yielded sufficient information about the increased
traffic flow arising
from the choice of site E to establish that any
such increase would not be significant. Reliance was placed on the
facts and extrapolations
referred to above as also Palm’s
letter to RMS of 31 October 2013.
THE
EVIDENCE IN THE ANSWERING AFFIDAVIT
77.
In
Part C of a detailed affidavit
[17]
the MEC states the following under the heading “
General
Response
”.
“
[104]
It appears from the grounds of review that the Applicants are of the
view that every potential impact must be evaluated
by means of a
specialist study. This however, is incorrect.
[105]
Once the impact of a proposed developments (sic) have been predicted
and described, the significance of the impact is assessed.
It is only
the potential impacts that are deemed to be significant that ought to
have been and will be evaluated by means of a
specialist study. It is
the decision to establish whether the proposed landfill project is
likely to cause significant negative
environmental effects that are
central to the practice, administration and decision-making in EIA.
[106]
For each identified impact, mitigation objectives which would result
in a measurable reduction in impact were provided and
thus the
authorisation was granted subject to the implementation of practical
mitigation measures which would be implemented to
affect the
significance rating and to prevent or reduce
any potential impacts identified to acceptable levels.
[107]
The potential traffic impacts during the construction and operational
phases of the new regional landfill were considered
and it was
established that the proposed project would result in insignificant
impacts. These impacts would in any event be prevented
or reduced to
acceptable levels by implementation of the conditions of the
authorisation included in the EMP
.”
78.
In Part D of his affidavit the MEC deals
expressly with the issue of traffic. After furnishing a summary of
his understanding of
the applicants’ allegations as contained
in the founding and supplementary affidavits, a detailed response is
furnished highlighting
the calculations made around the potential
increase in traffic flow with particular reference to the Palm letter
of 31 October
2013.
“
[120]
The [Palm] indication of additional truck loads letter dated 31
October 2013… confirmed that the potential traffic
impacts are
not significant. The letter described the number of additional truck
loads that will be generated due to the transportation
of waste by
road from the Langeberg and Witzenberg Municipalities to the proposed
new regional landfill…”
After
reciting the details contained in the Palm letter, the MEC concluded
as follows.
“
[122]
The increase in truck round trips on the R43 past Avian Park and
Riverview due to the establishment of the new regional landfill

facility will range between about 3 and about 7 round trips per day,
the higher number being predicated that (sic) the trucks from
and to
the Langeberg Municipality will also approach the site from the north
west. It also bears mentioning this (sic) is a worst
case scenario
prediction. I submit the increase is not significant.
[123]…
[124]
I accordingly submit these two documents indicated that a specialist
traffic study was not required
.”
79.
The MEC goes on to point out in the section
of the affidavit dealing with the issue of traffic that, even though
a specialist traffic
study was not called for, the EMP makes
provision for “
mitigation measures
that will result in a measurable and acceptable reduction in the
adverse traffic related impacts
”
and highlighted the following.
“
[125.5]
The safety of pedestrians caused by truck movements and increased
traffic near communities in the vicinity of the landfill
site has
been considered and mitigation measures have been prescribed in this
regard. The Monitoring and Evaluation Framework related
to Social and
Economic Impacts…which is incorporated in the EMP, provides
that the site operator must monitor and measure
changes related to
incidents on route to the
landfill
site with particular emphasis on communities within the vicinity of
the landfill site. Focus groups will be convened if
complaints are
received from nearby communities. Once a complaint is received, a
plan will be available to measure and understand
the severity of the
problem and a requirement for continuous monitoring thereafter should
be introduced. A set of indicators will
be developed to monitor
changes in the patterns related to the safety of pedestrians…
[126]
I submit that, together, the above-mentioned mitigation measures in
the EMP will ensure that the adverse traffic impacts are
prevented
or, where they cannot be prevented, reduced to acceptable levels
.”
80.
Finally, it is apparent that the MEC also
considered the cumulative impacts of the proposed new site and
arrived at the following
conclusions in that regard.
“
[131]
In addition, as appears from the Director’s ROD and my appeal
decision, and the documents referred to therein, the construction
and
operation of a new landfill site in accordance with the environmental
authorisation and waste management licence will not have
any material
adverse impacts on the health, well-being and safety of members of
the poor communities in the area.
[132]
Finally in this regard, the Applicants rightly do not contend in
these proceedings that there is no need for a new regional
landfill
or that there are physical or biophysical constraints inherent in
Site Alternative E that militate against its establishment
and
operation there. In the Director’s
and
my assessment there is a strong need for a new regional landfill. As
appears from the Director’s ROD and my statement
of decision,
we reached the conclusion that, overall, siting the new landfill at
Site Alternative E was the best option.
[133]
In reaching the siting decision the Director and I considered all the
impacts associated with the proposed new landfill, negative
and
positive, as well as the proposed mitigation measures. When doing so
we were well aware of the principles in section 2 of NEMA,
including
the principles in sections 2(4)(b) and (c) and the sustainable
development principles in section 2(4)(a) of NEMA which
requires
consideration of, amongst other things, that pollution and
degradation of the environment be avoided, or, where they cannot
be
altogether avoided, they be minimised and remedied and that negative
impacts on the environment and on people’s environmental
rights
be anticipated and prevented, and where they cannot be altogether
prevented, they be minimised and remedied.
[134]
I mention these matters because the siting of a large public landfill
is a difficult, multi-faceted and policy-laden decision.
[135]
…. A key consideration in the site selection process was the
proximity of the site to the centre of waste generation
as this has a
direct impact on costs and maintenance of road infrastructure which
will be used.… Worcester is the centre
of waste generation
(nearly 47% of the waste in the region comes from Worcester). The
site for the new regional landfill is also
situated between the
Langeberg Municipality (to the east) and the Witzenberg Municipality
(to the
west) …
[137]
The siting of a new landfill is controversial because, regardless of
the mitigation measures and other terms and conditions
on which it is
approved, many people in the vicinity of the landfill will prefer
that it be located elsewhere. The present is such
a case. It bears
mention, however, that the new landfill will be just over 2km away
from the nearest residential area and that
it will be surrounded by a
buffer preventing future residential development close by…”
EVALUATION
OF THE RESPONDENTS’ CASE
81.
It cannot be gainsaid that the respective
authorities conducted a detailed and far-reaching environmental
assessment of the proposed
new landfill at Site E, in the process
considering a host of issues deemed to be relevant. That having been
said, it is apparent
from the answering papers read as a whole that
the Director did not at any stage expressly ask himself the question
“
Should I call for a specialist
traffic
assessment
in this EIA?”
, nor was the need
for such an assessment ever raised with him, either in the public
participation process or by any of the experts
who furnished reports.
82.
However, as appears from that which is set
out above, during the course of the environmental evaluation process
the potential impact
of the increase in traffic conveying waste to
and from the site was taken into account by a number of individuals
and, importantly,
at no stage did their consideration of the facts
and figures regarding the anticipated traffic flow send up the
proverbial red
flag. Significantly, too, in the Socio-Economic Impact
Assessment, Prof.Bloom did not stress the need for such a TIA.
83.
The reasonable inference then is that there
was nothing in the evaluation of those facts and figures which served
to alert the authorities
to the fact that the traffic impact was
“
significant”
as contemplated by the statutory regime. I should add that,
considering the figures purely from a layperson’s point of
view,
an increase of traffic to the extent of one additional truck
travelling along the R43 every 15 – 20 minutes does not appear

to be a matter of great import or inconvenience (“
significant
impact
”) to the local residents
and the failure to call for a TIA does not appear to me to be
unreasonable or irrational in the
circumstances.
THE
RELEVANT CONDITIONS CONTAINED IN THE EMP
84.
Finally, it is important to note that one
of the conditions of authorization granted by the Director (and
confirmed by the MEC)
was the implementation of the EMP compiled by
Palm in June 2013. In the EMP there are specific mitigation measures
intended to
result in a measurable and acceptable reduction in any
adverse traffic related impacts. These include –
84.1
The re-routing of transport to avoid
residential areas as far as practically possible, including a
limitation on the number of vehicle
movements;
84.2
Adequate mitigation measures to control
littering including ensuring that no waste remains behind in open
body vehicles after disposal,
as also the employment of litter
pickers to collect litter;
84.3
The provision of wheel cleaning facilities
at the new site to reduce the impact of mud on the roads;
84.4
The provision of a complaints’
register at the new dumpsite where any issues relating to traffic
impacts affecting the community
and the public at large can be
recorded and monitored by the authorities;
84.5
An obligation on the site operator to
monitor and measure changes related to incidents en route to Site E
with particular emphasis
on communities in the immediate vicinity of
the site. In this regard it is contemplated that focus groups will be
convened if complaints
are received from such communities and, once
such a complaint is received, a plan will be available to measure and
understand the
severity of the problem and the continuous monitoring
thereafter in the event that it is necessary. Further, a set of
indicators
is to be developed to monitor changes, if any, in the
patterns related to the safety of pedestrians;
84.6
Requiring the site operator to monitor and
measure changes in noise emission levels caused by trucks
transporting waste to Site
E. Such changes will be monitored by focus
groups if complaints are received and remedial action will be
determined with a requirement
for continuous monitoring thereafter;
and, finally,
84.7
The compilation of a workbook with
worksheets for the assessment of each relevant impact which is to be
completed on an annual basis.
Such indicators will be evaluated and a
baseline determined to enable the establishment of a suitable
benchmark to be used to determine
the difference between the actual
outcome and baseline expectation as part of the verification project.
85.
In the result, the authorities have taken a
number of positive steps to pro-actively address any negative impacts
occasioned by
any increase in vehicle traffic travelling to and from
Site E for the purposes of waste disposal. I did not understand Mr.
Magardie
to take issue with the adequacy of the EMP.
APPLICATION
OF THE PRINCIPLES OF ENVIRONMENTAL JUSTICE
86.
In his heads of argument, Mr. Magardie also
submitted that the authorities had failed to apply the principles of
environmental justice
implicit in NEMA and further failed to consider
the human aspects of the receiving environment. While the focus of
counsel’s
oral argument was on the traffic impact issue, he did
touch on this aspect too. I shall accordingly deal therewith for the
sake
of completeness.
87.
The point of departure is s2(c) of NEMA
which provides that
“
environmental
justice must be pursued so that adverse environmental impacts shall
not be distributed in such a manner as to unfairly
discriminate against any person,
particularly vulnerable and disadvantaged persons
.”
It
was argued that the principle of environmental justice is to address
the injustices of apartheid-based spatial planning decisions
so that
when it was apparent that adverse environmental impacts would occur,
such impacts would not felt inequitably, particularly
by vulnerable
and disadvantaged persons.
88.
In
Fuel
Retailers
[18]
the Constitutional Court noted that the section in question did not
only provide guidelines to organs of State in the proper exercise
of
their functions that might have an effect on the environment, it
stressed that the principles comprised norms which were required
to
be observed since they were of considerable importance to the
protection and management of the environment.
89.
Yet, said Mr. Magardie, the authorities had
failed to properly apply the principles of environmental justice in
approving site E
and had essentially inverted their statutory duty by
stating in the answering affidavit that
“…
the
new landfill is a development of the same kind as what is already
there. The event will therefore not bring about a significant
change
to the current landscape character
.”
90.
As I read the MEC’s affidavit it
appears that the authorities did in fact consider the environmental
justice principles when
coming to their conclusions in relation to
Site E. They concluded that locating the new landfill at Site E would
not distribute
adverse environmental impacts in such a manner as to
unfairly discriminate against vulnerable and disadvantaged persons in
the
residential areas in the immediate vicinity. They observed that
those areas were more than 2 km distant and that the combination
of
buffer zones and mitigation measures should ensure persons living in
the vicinity would not be materially adversely affected
by the
construction and operation of the new landfill site.
91.
Landfill
sites are a very necessary part of an ever expanding society. As we
endeavour to promote growth and redevelopment we necessarily
increase
the solid waste imprint on our fragile planet. For instance (and
purely anecdotally), the so-called “
Great
Pacific
Garbage
Patch
”,
a floating island which constitutes the largest accumulation of
plastic waste in the world, is an enormous and permanent
blight on
the north-central Pacific Ocean.
[19]
The authorities accordingly ignore the effects of failing to
adequately dispose of solid waste at their peril and to the detriment

of all of humanity.
92.
In
this matter the District Municipality duly recognized the pressing
need to effectively control the management of solid waste
in the
eastern half of its area of jurisdiction for the benefit of all of
its residents and businesses and its decision in principle
to
establish a regional landfill site is understandably not attacked by
the applicants. In so doing, the District Municipality
and the
relevant decision-makers were acutely aware of the fact that the
location of any such site had the potential to pollute
the immediate
environment surrounding it. And of course, when that happens the
“
Nimby
”
[20]
response is invariable and understandable.
93.
The case for the Director and the MEC is
that they applied their collective minds to a variety of options
available to them. They
say that they had good, evidence-based
reasons for selecting Site E. It is said to be approximately in the
middle of the waste
generation area it covers and therefore serves
economies of scale, particularly with reference to the cost of
transporting waste
from the local areas. They go on to contend that
the location of the new landfill at Site E was the most practicable
environmental
option because the assessments and information
contained in the EIR established that the construction and operation
of the landfill
site there would occasion the least possible damage
to the environment as a whole, given that there was already such
degradation
arising from the existing site. As stated earlier, the
separation of powers principle precludes the Court from interfering
on the
basis that it considers the decision to be the wrong option.
94.
In the result, I do not see that the
applicants have made out a clear and established failure by the
authorities to adhere to the
NEMA principles in the circumstances.
Moreover, as I have said, there is an EMP which can (and must) be
carefully monitored so
as to alleviate the deleterious effects of the
new landfill on the immediate adjacent communities.
CONCLUSION
95.
In the result, I conclude that the
applicants have not made out a basis for the review of either the
Director’s ROD or the
MEC’s decision on appeal. The
absence of a specialist TIA before the decision-makers is not
considered to be legally relevant
(and therefore reviewable) as it
was not considered to be of significant impact. Further, I am
satisfied that due consideration
was given to the environmental
justice provisions contemplated in the Constitution and NEMA.
96.
As
regards costs, Mr. Breitenbach SC accepted that the
Biowatch
[21]
principle
applied, given that the applicants sought to vindicate their
constitutional rights, and did not ask for a costs order
against them
in the event of the application not succeeding.
Accordingly
it is ordered that
:
A.
The applicants’ applications for
review are dismissed.
B.
There will be no order as to costs.
__________________
GAMBLE,
J
APPEARANCES:
For
the applicants
Adv.S.Magardie,
with him Adv. M.Mbikwa
Instructed
by the Legal Resources Centre, Cape Town.
For
the First and Second Respondents
Adv.A.M.Breitenbach
SC, with him Adv.R.Matsala
Instructed
by The State Attorney, Cape Town.
No
appearance for the Third Respondent.
[1]
Referred throughout the environmental assessment process as “
Site
E
”.
[2]
The Court had previously heard an unrelated interdict application in
2018 relating to aspects of the illegality of the Tulbagh
dumpsite
and the prospect of the new regional site was referred to
extensively in that matter. See
Rijks
Cellar (Pty) Ltd v MEC for Local Government, Environmental Affairs
and Development Planning and another
,
Case No 14349/17.
[3]
According to Google Maps the R43 commences at Ceres and runs
generally in a southerly direction through Worcester, terminating
at
Villiersdorp just less than 100 km away.
[4]
There is also a primary school located in Avian Park itself.
[5]
The document commences at p3027 of the Rule 53 record
[6]
As
prescribed by s24(4)(b)(i) of NEMA
[7]
See
for example
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
2004(4) SA 490 (CC) at [44] & [45];
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618
(CC) at [95] (“
ITAC
”);
MEC for
Environmental Affairs and Development Planning v Clairison’s
CC
2013 (6) SA 235
(SCA) at [18] – [22]
[8]
These Regulations were published under Government Notice R543 in
Government Gazette 33306 and commenced operation on 2 August
2010.
While they have since been replaced by a new set of regulations
promulgated on 4 December 2014, it is common cause that
the old
regulations are applicable in this case because the District
Municipality’s environmental approval application
was made
before
the latter date.
[9]
Looking at the road layout on Google Maps the use of this preferred
route, the distance would be significantly shorter: literally
one
side of a triangle rather than two.
[10]
The 73 page document was prepared by Prof. Jonathan Bloom, a
professor in Business Management at Stellenbosch University
specialising
in business development and support. He is said to have
“
conducted
more than 60 socio-economic impact assessments as an independent
consultant for developments throughout South and Southern
Africa
over the past 16 years.
”
[11]
Referred to officially as “
Trunk
Road 30/2
”
[12]
This figure reflects an increase from the 334 tons referred to in
58.1 above
[13]
This accords with the route referred to in 60 above
[14]
This is a reduction from the figure of 293 tons referred to in 58.2
above
[15]
This approach would take the trucks past Avian Park.
[16]
Fuel
Retailers Association of South Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation

and Environment, Mpumalanga Province and others
2007 (5) SA 4 (CC)
[17]
The document runs to 119 pages
[18]
At [67]
[19]
See
www.biologicaldiversity.org
[20]
“
Not
in my backyard
”
[21]
Biowatch
Trust v Registrar, Genetic Resources and others
2009 (6) SA 232
(CC)