About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2010
>>
[2010] ZAGPJHC 46
|
|
Shear v Eye of Africa Development (Pty) Ltd and Others (09/24998) [2010] ZAGPJHC 46; 2010 (5) SA 129 (GSJ) (18 June 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
09/24998
In the matter between:
SHEAR,
CAROLYN NICOLA
Applicant
and
EYE OF
AFRICA DEVELOPMENT (PTY) LTD
First Respondent
THE PREMIER
OF THE GAUTENG PROVINCE
Second
Respondent
THE MEMBER OF THE EXECUTIVE COUNCIL:
GAUTENG DEPARTMENT OF AGRICULTURE,
CONSERVATION
& ENVIRONMENT
Third Respondent
THE GAUTENG DEPARTMENT OF
AGRICULTURE, CONSERVATION AND
ENVIRONMENT
Fourth Respondent
MINISTER OF ENVIRONMENTAL AFFAIRS
AND
TOURISM
Fifth
Respondent
THE DEPARTMENT OF WATER AFFAIRS
AND
FORESTRY
Sixth Respondent
J U D G M E N T
LAMONT, J
:
[1] The applicant has brought an application to review and set aside
the fourth respondent’s decision to make an amendment
to an
earlier ruling. The applicant is owner of immovable property which
is situated adjacent to and which abuts property owned
by the first
respondent hereinafter referred to as the Eye of Africa.
[2] The Eye
of Africa decided to develop the property which it owned and in the
course of its development wished to establish a
golf estate which
consists of various structures fit for habitation and a golf course.
During the course of the development the
Eye of Africa was required
to comply with the provisions of the Environment Conservation Act No.
73 of 1989 (the ECA). The result
of a protracted application
including appeal was that the fourth respondent on 26 July 2005
inter
alia
directed:
“
8.
The applicant must obtain written confirmation from the Department
of Water Affairs and Forestry (DWAF) with regard to the acceptability
of use of grey water from the envisaged sewerage plant for the
irrigation of the golf course as indicated on page 86 of the scoping
report. The requisite confirmation must be submitted to the
Department before commencement of construction activities on the
site. In addition, the applicant must submit a written confirmation
before commencement of construction activities on the site
to the
effect that no alternative
sources of
water e.g. use of boreholes will be utilised for the purposes of
irrigating the golf course since reliance thereto is
currently on the
use of grey water as indicated above.
”
Grey water is
constituted by recycled water which is of a quality acceptable for
use in the environment. The source of grey water
is excess water used
by residents which has been recycled.
[3] Under and
in terms of the directive the Eye of Africa was required to use grey
water and was not permitted to use alternative
sources of water (e.g.
boreholes). On 7 July 2008 the Eye of Africa’s representative
wrote to the fourth respondent. In
that letter it was pointed out
that the right to use grey water had been allowed and that sufficient
grey water from sewerage plant
for the irrigation of the golf course
would only be possible to be provided once the full development had
been implemented on the
site. As there was a shortfall in available
water to enable it to irrigate the golf course the Eye of Africa
required the temporary
usage or the right to use alternative water
resources until the development was completed. The Eye of Africa
through its representative
pointed out that an application had been
made to the DWAF for the purposes of obtaining a temporary licence to
abstract ground
water to top up the irrigation water which was
required. The Eye of Africa in consequence through its representative
requested
that the condition contained in the permission and referred
to above be reconsidered and be replaced with a condition allowing it
to use any alternative source of water for example boreholes on a
temporary basis only. The Eye of Africa pointed out to the fourth
respondent that the amendment of this clause was conditional as
the person who
was able to furnish the required permission would be DWAF.
This notwithstanding DWAF in the course of issuing the licence seeks
the view and agreement of the fourth respondent.
[4] On 25
July 2008 the fourth respondent notified DWAF of its decision and
argument as follows:
“
Re:
Application for temporary licence in respect of the Farm Alwynspoort
145-IR: Eye of Africa …
Please be
advised that the Department is agreeable to amending the record of
decision issued on 22
nd
July 2005 with the inclusion of Condition 3.2(8)(a) as follows:
‘
The
applicant may use an alternative source of water for the purposes of
irrigating the golf course for a temporary period. When
sufficient
development would have been achieved to allow for the utilisation of
grey water.
’
Confirmation
that you
r
Department has issued the temporary licence to abstract water for top
up irrigation water must be submitted to GDACE by the applicant
…
”
[5] It is this decision which is the subject matter of the review.
On 16 January 2009 DWAF issued a licence in favour of the
Eye of
Africa. That licence contains the following rights:
“
…
conditions of licence water uses:
This
licence authorises the taking of a maximum quantity of four hundred
and ninety thousand cubic meters (490 000 metres cubed)
of water
per annum from borehole EA-3 located on portion 159 of the Farm
Alwynspoort 145IR for the irrigation of some 40 hectares
grass (s
26.360180; E28.021200) …
”
The applicant noted an appeal in terms of section 148(1) of the
National Water Act 1998 (Act No. 36 of 1998) against the grant
of the
licence in the terms referred to above. That appeal presently pends.
[6] Pursuant
to the notice of motion being served the fourth respondent
furnished the record of decision together
with reasons. It
appears from the record that the fourth respondent arrived at the
decision on its own initiative and that the
reason for the amendment
was to accommodate demands brought by an impact on socio-economic
circumstances it being in the interests
of the public to meet the
demand. The Chairman was of the view that he was entitled to make
the amendment on his own initiative
as it was an amendment of a
non-substantive nature.
[7] In the
ruling the fourth respondent noted that Regulation 45(1)(c) provided
that public participation may be appropriate.
It was of the view
that public participation was dispensed with as the amendment was of
a non-substantive nature. The Regulation
referred to is a Regulation
in terms of the National Environment Management Act No. 107 of 1998
(NEMA). The Regulations to NEMA
provide in Chapter 4 for amendment
and withdrawal of environmental authorisations.
[8] Under and
in terms of the Regulation
:-
“
39.
General. – (1) The competent authority referred to in
regulation 3 who issued an environmental authorisation has
jurisdiction
in all matters pertaining to the amendment or withdrawal
of that authorisation.
An environmental authorisation may be amended –
(a) on application by the holder of the authorisation in
accordance with Part 1 of this Chapter; or
(b) on the initiative of the competent authority in accordance
with Part 2 of this Chapter.
An environmental authorisation may be amended by –
(a) attaching an additional condition or requirement;
(b) substituting a condition or requirement;
(c) removing a condition or requirement;
(d) changing a condition or requirement;
(e) updating or changing any detail on the authorisation; or
(f) correcting a technical or editorial error.
An environmental authorisation may be withdrawn by the competent
authority in accordance with Part 3 of this Chapter.
PART 1:
AMENDMENTS ON APPLICATION BY HOLDERS OF ENVIRONMENTAL
AUTHORISATIONS
40. Applications for amendment. – The holder of an
environmental authorisation may at any time apply to the relevant
competent
authority for the amendment of the authorisation.
41. Submission of applications for amendment. – (1) An
application in terms of regulation 40 must be –
(a) on an official application form published by or obtainable
from the competent authority; and
(b) accompanied by the prescribed application fee, if any.
(2) The competent authority must, within 14 days of receipt of an
application, acknowledge receipt of the application, in writing.
42. Consideration of applications. – (1) On receipt of an
application made in terms of regulation 40, the competent authority
–
(a) must consider whether granting the application is likely to
adversely affect the environment or the rights or interests of
other
parties; and
(b) may for that purpose request the applicant to furnish
additional information.
(2) The competent authority must promptly decide the application
if –
(a) the application is for a non-substantive amendment to the
environmental authorisation; or
(b) the environment or the rights or interests of other parties
are not likely to be adversely affected.
(3) If the application is for a substantive amendment, or if the
environment or the rights or interests of other parties are likely
to
be adversely affected, the competent authority must, before deciding
the application, request the applicant to the extent appropriate
–
(a) if
necessary, to conduct a public participation process as referred to
in regulation 56 or any other public participation process
that may
be appropriate in the circumstances to bring the proposed amendment
to the attention of potential interested and affected
parties,
including organs of state which have jurisdiction in respect of any
aspect of the relevant activity; …
”
[9] As appears
from Regulation 39(2) an environmental authorisation may be amended
either in consequence of an application by the
holder of the
authorisation made in accordance with Part 1 of the Chapter or on the
initiative of the competent authority in accordance
with Part 2 of
the Chapter. It is common cause that there was no application by the
Eye of Africa for an amendment. The only form
of application which
there may have been was the letter referred to above.
[10] Assuming
that that letter constituted an application then in terms of Part 1,
Regulation 42(2) the competent authority was
to promptly decide the
application if (a) the application is for a non-substantive amendment
to the environmental authorisation
or (b) the environment or the
rights and or interests of other parties are not likely to be
adversely affected. If a substantive
amendment is in issue or if the
environment or the rights and interests of other parties are likely
to be adversely affected then
the competent authority must if
necessary prior to deciding the application request the applicant to
the extent appropriate, to
conduct a public participation process,
to open and maintain a register of all interested and effective
parties, to conduct such
investigations and assessments as may be
directed, prepare reports, give interested and affected parties an
opportunity to submit
comments and submit to the competent authority
those reports.
[1
1]
The submission was made that the fourth respondent was entitled to
decide the matter without following a public process as the
application was for a non-substantive amendment to the environmental
authorisation alternatively as the environment or the rights
or
interests of other parties were not likely to be adversely affected.
[12] The
initial authority contemplated the use of grey water for irrigation
of the golf course. Grey water is water which has
been provided for
use by the residents and which subsequent to its use is of a nature
where it can be re-used. Water so provided
is not water obtained
from any subterranean source. It is also water which is provided in
quantities determined by the number
of people using the water and by
their use of it. Grey water is identifiable as to its nature and as
to its quantity.
[13] It is a
widely established fact that water is a scarce resource. It is
further widely known that water exists in limited
quantities.
Extraction of water from the limited quantities in existence depletes
the quantity available. At the time of the grant
of the initial
authority the water which was subterranean in nature was regarded of
such a nature that it should not be used for
irrigation of the golf
course. The reason is immediately apparent. If that water is used
there is less available both in reserve
and for use by others hence
the use of the water for irrigation has an impact on others. At the
very least the water usage is likely
to have an impact on it. There
is no question that if the water is used the availability of water in
the general environment is
altered. To this extent the usage of the
water has an impact upon the environment. The question is whether or
not that impact is
likely to be adverse to the environment. The use
of the water, by removing it from the subterranean source reduces the
quantity
available. The cache of water available to the environment
is reduced. There is no evidence that the water resource is of such a
nature that the withdrawal of any portion of it will have no effect.
The evidence is to the contrary that previously authority
to use
underground water was not given. This refusal which was made after
investigation ia a factor which leads me to draw the
inference as I
do, that the resource is limited and that water extraction will have
an adverse effect both on environment and on
others in the immediate
vicinity.
[14] The
consequence of this finding is that before the authority could be
varied there should have been put in place the public
participation
process contemplated in Regulation 42(3).
[15] It was
submitted that the amendment was not of a substantive nature. In my
view the amendment so far from not being of a substantive
nature was
of a substantive nature. Prior to the amendment recycled water (grey
water) was to be used to maintain the irrigation
of the golf course.
Subsequent to the amendment fresh underground water could be used to
irrigate the golf course. The two types
of water are materially
different and an amendment in my view is of a substantive nature. To
the extent that the decision was
made pursuant to an application the
decision was irregularly made
.
[16] To the
extent that the amendment was made pursuant to the volition of the
fourth respondent and the Regulations under Part
2 are to be
considered the relevant provision is Regulation 44. It provides that
the authority on its own initiative is entitled
to amend an
environmental authorisation if it is necessary or desirable to
accommodate demands brought about by impacts on socio-economic
circumstances and it is in the public interest to meet those demands.
There was no evidence that there was any socio-economic
circumstance
which required the amendment or that it was in the public interest to
meet the demands before the person who made
the amendment. The only
factors before that person appear to have been the need of the Eye of
Africa to obtain water and the apparent
catch 22 situation facing the
Eye of Africa i.e. it could not generate grey water without
residents, it could not attract residents
without grey water
necessary to irrigate the golf course.
[1
7]
The procedure by which an authority can amend is set out in
Regulation 45. It provides notification of relevant persons
including the holder of the authorisation. It is to afford
the holder of the authorisation an opportunity to submit
representations and should conduct a public participation process if
necessary. The Regulations in Regulation 45 need not be complied
with
if the proposal to amend the environmental authorisation is a
non-substantive amendment.
[18] For the
reasons which I have set out above the amendment is of a substantive
nature. The decision in my opinion was accordingly
neither lawful nor
reasonable nor procedurally fair. See
Smith
v Minister of Environmental Affairs and Tourism: Republic of South
Africa and Another
[2003] 1 All SA 628
(C) at 636. On appeal at
[2003] 4 All SA 1
(SCA).
[1
9] The
fourth respondent submitted that no decision had been taken by fourth
respondent that the decision was part of a process
involving DWAF.
[20] In my
view the simple answer to the proposition is that the fourth
respondent took a decision purporting to act in terms of
the NEMA
Regulations referred to above. That decision once it was made was
forwarded to DWAF to enable DWAF to consider its position
as indeed
DWAF did and pursuant to which DWAF issued a licence.
[21] The
issue of that licence forms the subject matter of different
litigation and that issue of licence is on appeal.
[22] The fact
that the decision of the fourth respondent is relevant to and/or
becomes incorporated into a licence issued by DWAF
does not remove
its characteristics as being a decision.
[23] Insofar
as costs are concerned the application was opposed by first and
fourth respondents and they should jointly and severally
bear the
costs occasioned by the application.
[24] I would
accordingly grant the following order:
The fourth respondent’s decision to grant the amendment dated
25 July 2008 is set aside.
2. The first
and fourth respondents are jointly and severally to pay the costs of
the application.
____________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
Counsel for
Applicant
: Adv.
G. Hulley
Instructed by : Kees Verhage
Counsel for First Respondent : Adv. R. Stockwell SC
Instructed by ; Werksman Incorporating
Counsel for Fourth Respondent : Adv. K. Mokotedi
Date of hearing : 2 June 2010
Date of
Judgment : 18 June 2010