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[2010] ZAWCHC 197
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Joint Owner of Remaider ERF 5216 Hartenbos v MEC of Local Goverment, Environmental Affairs and Develoment Planning, Western Cape Province and Another (23635/2009) [2010] ZAWCHC 197; 2011 (1) SA 128 (WCC) (2 September 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case Number:
23635/2009
In the matter between:
Joint Owners of
Remainder Erf 5216
….........................................
Applicant
Hartenbos
and
Minister for Local
Government,
Environmental Affairs
and Development
Planning Western Cape
Province
…................................................
First
Respondent
Body Corporate of
Pansy Cove
Sectional
Title Scheme
…....................................................................
Second
Respondent
JUDGMENT DELIVERED ON
2 SEPTEMBER 2010
[1] The applicants sought
3 declaratory orders. I deal with the relief sought below.
[2] This application
involves a confined question of statutory interpretation, more
particularly whether the applicants can be said
to have already
commenced an activity listed or specified in terms of section
24(2)(a) or (b) as envisaged in section 24F(1) of
the National
Environmental Management Act 107 of 1998
(NEMA).
[3] It was common cause
in these proceedings that the Minister had in terms of section
24(2){a) of NEMA listed certain activities
in Government Notice 386
of 21 April 2006. This subordinate legislation took effect on 3 July
2006 and any person who intended
to undertake a listed activity
thereafter had to obtain environmental authorisation. However, where
any party had already commenced
any activity in furtherance of a
listed activity by 3 July 2006, that party was exempted from
obtaining environmental authorisation.
[4] In these proceedings,
it was common cause that the applicants intended to undertake various
listed activities in a development
on Erf 5216 Hartenbos (the
Property) situated at Hartenbos in the Western Cape. The development
was to include the following;
(a) A palisade to be
erected along the high-water mark on the beach. All the land above
palisade fence, which currently forms part
of the beach, would be
enclosed;
(b) Lawns to be planted
on the property. The lowest part of the lawns would be 11 metres
above the high-water mark;
(c) Buildings to be
erected on the property. The lowest point of the buildings would be
25 metres above the high-water mark;
(d) The buildings and
lawns would be erected on an existing dune and extended onto the
existing beach.
[5] The applicants
contended that by filling in and compacting a depression on the
property they had commenced all the listed activities
that they would
undertake in their development. It follows that, on the applicants'
version, they are exempted from obtaining environmental
authorisation
for the listed activities. I consider below whether the filling in
and compacting of the depression was an act in
furtherance of all or
any of the listed activities the applicants intend to undertake as
part of the development because if it
did, it would follow that the
applicants do not have to obtain NEMA authorisation to continue with
its intended listed activities.
The
relief sought
[6] The applicants
sought the following relief: (I quote from the Notice of Motion)
",..(2)
Declaring that the applicants are not required, pursuant to section
24F(1) of the National Environmental Management
Act 107 of 1998
(NEMA), to apply for or be granted an environmental authorisation
under NEMA for the development of Remainder
of Erf 5216 Hartenbos,
Mossel Bay ("the property") in accordance with the Site
Layout Plan of Proposed Subdivision
annexed...
(3) Declaring that
the earthworks conducted by the applicants on the property in April
and May 2006 did not constitute the construction,
erection or
upgrading of a road as envisaged in Item 1(d) in Schedule 1 of the
Regulations under section 21 of the Environment
Conservation Act 73
of 1989 ("the ECA") promulgated in GN R1182 dated 5
September 1997. as amended.
(4) Declaring,
accordingly, that the applicants were not required to obtain a
written authorisation in terms of section 22(1)
of the ECA before
being entitled to perform the said earthworks..."
BACKGROUND
[7] The circumstances
that gave rise to this application are largely common cause and
appear from the record to be the following.
(a) The applicants are
the joint owners of the property. The property forms part of the
broader Diaz Beach development at Mossel
Bay.
(b) The development
consists of various erven that were purchased by Stocks &
Stocks, the applicants' predecessor, from the
municipality in 1997.
The entire area was re-zoned and subdivisional rights were granted
in September 1997.
(c) In December 1999,
Stocks & Stocks was granted environmental authorisation in terms
of the Environment Conservation Act
73 of 1998
(the
ECA).
That
authorisation applied to 2 of the erven, being erven 4332 and 4333
and related to the construction of a sectional title caravan
park.
(d) The property was
developed for this purpose including the building of ablution and
braai facilities It was used as a caravan
park for approximately 3
years.
(e) In 2003, Krisptrade
Eleven (Pty) Ltd
(Krisptrade)
purchased
Ervens 4332 and 4333. In 2004. these properties were consolidated
and subdivided to form two new erven, which were designated
as Erf
5217 (on which the Pansy Cove Sectional Title Scheme has since been
developed} and remainder Erf 5216, the property.
(f) Pursuant to an
agreement of sale between the applicants and Krisptrade. entered
into on 20 September 2004. the applicants
received transfer of the
property on 14 October 2004.
(g) Even before taking
transfer of the property, the applicants had entered into a
Participation Agreement and had begun planning
for the property's
development as a group housing scheme. The intention was always to
establish 22 dwelling units on the property
connected by an access
road running from the main road abng the (pan/handle) strip on the
Northern side, turning South and then
running along the border with
Erf 5217 to the southern end of the property.
(h)
More
particularly, the applicants' intention was always to subdivide
the
property into 22 individual erven, each to be owned by an
individual
applicant.
(I)
It
was further their intention to hold an erven as common property
between the individual owners. The common property would include
the
access road land subject to a right-of-way servitude running between
Pansy Cove and the beach and the land subject to a public
servitude
lying between the proposed individual erven and the beach.
(j) A right-of-way
servitude was registered over the property to give direct access to
the beach and height restrictions were
placed on any development on
the property
A
(k) In October 2004.
shortly after transfer of the property to them, the applicants
appointed Asritekion & Associates as architects
for the
development of the property. The principal architect was J C Watson
(Watson).
The
architect's tasks included drawing up a site development plan and
design for the houses. The work began immediately and the
first
progress payment was made in November 2004.
(I) On 27 January 2005,
the municipality issued a certificate confirming the zoning of the
property as a general residential area.
The permitted uses under the
zoning included blocks of flats and houses. In April 2005. the
applicants represented by David Jacobus
Horn
(Horn)
applied
to the municipality for the re-zoning of the property to "group
housing" with zoning building lines, and for
the subdivision of
the property as set out above. On 17 May 2005. the municipality
approved the application.
(m) In the course of
2004, development began of the sectional title units on Erf 5217
(Pansy Cove), the property's neighbour.
Pansy Cove appointed Bfison
CC. trading as Ouickslab
(Quickslab)
as
consulting civil and structural engineers. The professional engineer
responsible for that development was A H Brandt
(Brandt).
(n) Due to the proximity
of Pansy Cove to the property, the applicants always intended to
appoint Quickslab as the engineer to
their proposed project because
there were various civil and structural engineering issues that
affected both properties, such
as sewage and storm water disposal.
During 2005, Quickslab began planning for the roads and services,
including the retaining
wall that was envisaged to run next to the
road on the Pansy Cove side of the property. There were various
communications between
the applicants' architects and Quickslab and
in November 2005, the applicants formally appointed Quickslab as
their consulting
civil and structural engineer.
(o) In November 2005,
WKL surveyors surveyed the proposed 22 erven and prepared a
surveyor's diagram to effect the subdivision.
Subsequently, however,
the municipality indicated that it was not prepared to grant written
authorisation for the transfer of
any of the proposed 22 erven until
all infrastructure services had been fully installed.
Filling
in the depression
[8] When the applicants
acquired the property, there was a large depression in its
north-western comer that encroached upon the
neighbouring Erf 5217.
The depression was situated directly in the path of the planned
access road across the property, Given
the size of the property and
the location of the proposed erven, there was no way the road could
be deviated around the depression.
[9] According to Jan
Frederick Ellis (Ellis), one of the applicants in these proceedings,
the access road to be constructed across
the property required
substantial earthworks to be carried out to eliminate the depression
and level the surface. The Pansy Cove
developers also required these
works to enable them to erect a palisade boundary fence. According
to Ellis, the vast majority
of infilling and earthworks to remove
the depression had to be undertaken on the property.
[10] In April 2006.
Pansy Cove wanted to erect the palisade fence. Brandt was of the
view that this task required the applicants"
permission and
cooperation. Pursuant to Brandt's advice, the applicants and
Pansy Cove reached the following agreement.
(I quote from Ellis's
affidavit).
'(37) The latter
advised Horn that this was work that needed to be done as part of
the applicants own development. He recommended
that these earthworks
be conducted subject to the following conditions
(37.1)All such work
would have to be of such quality that the applicants' access road
would be built on it without having to re-excavate
and for the
depression, including the compaction of the material to engineering
standards.
(37.2)Quickslab would
supervise the construction work to ensure that it complied with the
necessary requirements."
[11] The parties also
agreed that the applicants could use 1 363m
3
of material that
belonged to the Pansy Cove developers to fill in the depression.
Ellis said the following about the filling in
process
'(39) The
contractor... commenced with the earth works on 26 April 2006 with
excavations of 238m
3
of in situ material
of which 70m
3
was found by the set
contractor to be unsuitable for the purpose of filling the
depression to engineering road standards. .,.
The earthworks were
completed on 3 May 2006 Brandt has confirmed that a maximum of 200m
3
of fHI was used on
Erf 5217. In other words, the vast majority of earthworks and
incidental construction work relating to the
depression took place
on the property."
[12] The compaction met
the standard that Brandt had in mind.
[13]
I
accept
that the work done constituted partial construction of the access
road. It is so that the work done on the property could
only be done
with the applicants' permission. I accept that the applicants
granted permission because of the advantage of having
the depression
filled in so that they would later be able to construct the access
road over it. The applicants alleged that the
filling in of the
depression was an essential part of the entire development on the
property without which the road to access
the individual erven could
not be built.
Events
post filling in the depression
[14] The applicants
continued with the detailed planning of the development. On 17 June
2006. the applicants entered into a revised
and comprehensive
partition agreement and constitution for the Homeowners Association.
At the same time, they accepted the proposed
site development plan,
erf layout and building designs relating to the development.
[15]
The
architects continued to prepare plans for submission to the
municipality, making their final submission in May 2007. Ellis
alleged that at that stage, the applicants had already completed 70%
of the architectural work
[16] In 2007. the
applicants put out to tender the construction of the services.
Pursuant to that process, the applicants awarded
the tender to
Marracon on 14 June 2007.
Environmental
authorisation required
[17] The municipality
had in principle accepted that the building plans were ready for
approval, although it had indicated that
the applicants should
obtain environmental authorisation from the Department of
Environmental Affairs and Development Planning
(the
Department).
That
requirement has given rise to these proceedings
[18] The applicants
contended that they had commenced the first earthworks in April
2006. That work, on the applicants' version,
was an activity
undertaken in furtherance of the development and consequently in
furtherance of all the listed activities they
intended undertaking
on the property. It followed, so the argument went, that the
applicants were exempted from obtaining NEMA
authorisation.
The
statutory requirements
[19] I deal below first
with the statutory provisions applicable to these proceedings.
[20] Section 24(F) of
NEMA was inserted in that Act by way of section 3 of Act 8 of 2004
with effect from 7 January 2005. It was
later amended by section 5
of Act 62 of 2008 with effect from 1 May 2009. Until its amendment
in May 2009. section 24(F)(1) provided
as follows:
'Notwithstanding the
provisions of any other Act, no person may commence an activity
listed in terms of s24(2)(a) or (b) unless
the competent authority
has granted an environmental authorization for the activity, and no
person may continue an existing activity
listed in terms of
s24(2)(d) if an application for an environmental authorization is
refused'.
[21] The word "commence"
was, until May 2009, defined in section 1 of NEMA as follows:
"Commence, when
used in chapter
5,
means
the start of any physical activity on the site in furtherance of a
listed activity".
[22]
Following
its amendment in 2009, section 24F(1) provided as follows.
'Notwithstanding any
other Act. no person may-
(a) commence an
activity listed or specified in terms ofs24(2)(a) or (b) unless the
competent authority or Minister of Minerals
and Energy, as the case
may be. has granted an environmental authorization for the activity
or
(b) commence and
continue an activity listed in terms of s27(2)(d) unless it is done
in terms of an applicable norm or standard".
[23] The definition of
commence was also amended It now reads as follows:
"Commence, when
used in chapter
5,
means
the start of any physical activity, including site preparation and
any activity on the site in furtherance of
a
listed
activity or specified activity, but does not include any activity
required for the purpose of an investigation or feasibility
study as
long as such investigation or feasibility study does not constitute
a
listed
activity or specified activity".
[24] The applicants'
counsel argued that this matter should be determined with reference
to the current definition. I agree and
proceed on that basis.
[25] Environment
Conservation Act 73 of 1989
(ECA)
is
also relevant to these proceedings, in particular section 22(1) of
that Act which provides as follows:
'No person shall
undertake an activity identified in terms of s21(1) or cause such an
activity to be undertaken except by virtue
of a written
authorisation issued by the Minister or by a competent authority or
a local authority or an officer, which competent
authority, local
authority or officer shall be designated by the Minister by notice
in the Gazette'
[26] Section 21(1)
permitted the minister by notice in the Gazette to identify those
activities that in his opinion may have a
substantial detrimental
effect on the environment, whether in general or in respect of
certain areas.
[27] The minister issued
such a notice in the form of regulations on 5 September 1997, and
amended it on 17 October 1997. 27 March
1998 and 10 May 2002.
Relevant for purposes of this application is item 1(d) of the
regulations. On 3 May 2002 item 1(d) was
amended to refer to the
construction, erection or upgrading of ... roads, railways,
airfields and associated structures
[28] On 3 May 2002, the
ECA adopted the following definition for road, namely:
"(a) any road
determined to be a national road in terms of section 40 of the South
African National Roads Agency Ltd and
National Roads Act,
7998
(Act No
7 of 1998).Including any pan' of such road;
(b) any road for
which a fee is charged for the use thereof,
(c) any provincial
road administered by a provincial authority;
(d) any arterial road
or major collector street administered by a metropolitan or local
authority;
(e) any road or track
in an area protected by legislation for the conservation of
biological diversity or archaeological, architectural
or cultural
sites or an area that has been zoned open space or an equivalent
zoning;
(f)
any road or track in
an area regarded by the relevant authority as a sensitive area".
DID
THE APPLICANTS COMMENCE THE LISTED ACTIVITIES?
[29] Below is a table of
the listed activities the applicants intended undertaking at the
property.
Activity number
Activity
description
2.
Construction
or earth moving activities in the sea or within 100 metres inland
of the high-water mark of the sea, in respect
of -
(a)
facilities
for the storage of material and the maintenance of
vessels:
(b)
fixed
or floating jetties and slipways:
(c)
tidal
pools,
(d)
embankments;
(e)
stabilising
walls;
(f)
buildings;
or
(g)
infrastructure
Activity
number
Activity
description
3.
The
prevention of the free movement of sand, including
erosion
and
accretion, by means of planting vegetation, placing synthetic
material on dunes and exposed sand surfaces within a distance
of
100 metres inland of the high-water mark of the sea.
5.
The removal or
damaging of indigenous vegetation of more than 10 square metres
within a distance of 100 metres inland of
the high-water mark of
the sea.
6.
The excavation,
moving, removal, depositing or compacting of soil, sand, rock or
rubble covering an area exceeding 10 square
metres in the sea or
within a distance
of
100
metres inland of the high-water mark of the sea.
16.
The
transformation of undeveloped, vacant or derelict land to -
(a)
establish infill
development covering an area of 5 hectares or
more, but less
than 20 hectares; or
(b)
residential, mixed,
retail, commercial, industrial or institutional
use where such
development does not constitute infill and
where the total
area to be transformed is bigger than
1
hectare.
[30] In deciding whether
the applicants had commenced all the activities by filling in the
depression. I had regard firstly to
the provisions of NEMA from
which it appears that:
(a)
the
legislature intended to provide measures to protect the
environment
for this and future generations. The preamble provides that:
"...the State
must respect, protect, promote and fulfil the social, economic and
environmental rights of everyone ....
Everyone has the
right to have the environment protected, for the benefit of present
and future generation, through reasonable
legislation
(b) Section 24{2)(a)
enables the national Minister to identify activities "which may
not commence without environmental authorisation
from the competent
authority".
(c) In these
proceedings, it was common cause that the relevant authority was the
first respondent's predecessor.
(d)
Section 24F(1)(a)
prohibits any person from being allowed to
commence an activity
listed in terms of section 24(2)(a) or (b) unless the competent
authority ... has granted an environmental
authorisation
for
the activity
.."
(my emphasis)
(e)
"Commence" is
used in the definition section in relation to the
furtherance of
a listed activity. "Commence, when used in Chapter 5,
means
the start of any activity, ...in furtherance of a listed activity."
[31] I have no doubt
that the filling in of the depression qualified as "any
activity". Innes CR in the matter of
R
v
Hugo
AD
1926 271 interpreted the word "any' as being of wide and
unqualified generality. I can therefore not agree with the
submission that because the filling in was "limited in the
extreme" it does not qualify as any activity". In any
event, it appears from the record that the filling in involved
substantial work even though it involved a relatively small area
[32] Mr Budlender, the
first respondent's counsel, argued that "in each instance one
has to relate the activity in question
to the listed activity".
This must be correct because sections 24(F)(1)(a) and (b) prohibit
the commencement of "an
activity ...the Minister...has granted
authorisation for the activity...".
[33] In addition section
24(E) provides that "every environmental authorisation must as
a
minimum
ensure that adequate provision
is
made
for the ongoing management and monitoring, of the impacts of the
activity on the environment throughout the life cycle of
the
activity." (
mv
emphasis)
[34] Clearly, the
objective is to manage comprehensively the impact of the activity on
the environment. The applicants' counsel
argued that the first
respondent had a long-standing practice of granting environmental
approvals "not ...on an 'activity-by-activity'
basis, but with
reference to the development as a whole." In support of the
allegation, the applicants annexed a sample
approval from which the
following appears:
•
DECISION
In terms of Section
22 ...I, Minister.., hereby grant authorisation with conditions,
.for the execution of the activity described
above but excluding the
Group Housing component...
In
terms
of
Section 22 .1.. hereby refuse authorisation for the execution of the
following...'
[35] The sample provided
does not support the submission to the extent that it was suggested
that a consideration of the impact
of the individual activity is not
the focus of the authorisation.
[36] The applicants have
not attempted to show any link between the infill and compacting,
and any of the listed activities they
intended undertaking. Instead,
they alleged that because the filling and compacting were essential
for the development, it was
carried out in furtherance of every
listed activity that would be undertaken in the development. Ellis,
who attested to the founding
affidavit, said the following in his
replying affidavit:
'...It was a
substantial civil engineenng exercise In any event, the First
Respondent's reliance upon the extent of the activity
is misplaced,
given the low statutory threshold (any physical activity'). The
extent of the potential environmental impacts is
also not relevant:
the whole purpose of the provision is to ensure that certain
developments, which would have been lawful before
NEMA EIA
regulations were enacted, can continue without environmental
approvals. Finally, there is a real and substantial connection
between the commencement of the road and the development as a whole,
since the road is essential to enable dwellings to be constructed.
It is therefore clear physical activity in furtherance of listed
activities (another low statutory threshold)."
[37] As indicated above
the authorisation pertains to the "activity' instead of the
development. That has to be correct because
the legislature
prohibited the start of environmentally risky activities without
authorisation; in this way. NEMA does not interfere
with economic
and other activities not considered environmentally risky.
[38] Section 24(1)
requires that "the potential consequences for or impacts on the
environment of listed activities ...must
be considered,
investigated, assessed and reported on...". Since, some
activities may be authorised and others not. depending
on the
environmental impact, it follows that the relevant authority would
have to assess each individual activity.
[39] I agree with the
applicants that the "statutory threshold ('any physical
activity')" is low. Nevertheless, they
have to show a link
between that activity and each listed activity they intend
undertaking. A development consists of many activities,
most of
which are not affected by the provisions of NEMA and ECA, The
legislator in selecting activities that should form the
subject of
NEMA and ECA was acting in compliance wilh its mandate in terms of
section 24 of the Constitution which provides that:
'Environment
Everyone has the
right-
(a) to an environment
that is not harmful to their health or wellbeing: and
(b) to have the
environment protected, ... through reasonable legislative or other
measures...."
[40] Not every activity
the applicants intended to undertake in their development can
remotely be considered as even potentially
harmful to the
environment. It follows that only those activities, the listed
activities, form the subject of the NEMA and ECA
enquiry. NEMA
requires an applicant to apply for and obtain authorisation in
respect of each listed activity it intends undertaking
in a
development.
[41] For an activity to
qualify as having been "in furtherance" of a listed
activity, there must be evidence that it
advanced the activity i.e.
some reasonably direct connection between the physical activity and
the listed activity. I say this
because the activity and its impact
until completion are the focus of NEMA. it follows that any
advancement must relate to the
activity in a direct manner.
[42] As indicted above,
the applicants have not attempted to show a connection between the
activity and the individual listed
activities, instead, they relied
on a connection between the activity and the development A
development consists of many activities.
I can therefore not
determine whether there is a reasonably direct connection between
the act of filling in the depression and
any of the listed
activities. It follows that the applicants are not entitled on these
papers to a declaration that they are
not required to apply for or
be granted environmental authorisation under NEMA.
The
applicants require ECA authorisation
[43] Even if I am wrong,
the applicants cannot rely on the start of the road because they did
so in contravention of item 1(d)
in Schedule 1 of the Regulations
promulgated in terms of section 21 of ECA. The regulations were
promulgated in Government Notice
1182 dated 5 September 1997 as
amended.
[44] Sections 21 and 22
of ECA. prohibit the undertaking of activities the Minister has
identified that "in his opinion may
have a substantial
detrimental effect on the environment..." The Minister had, in
Government Notice R 1182 Item 1(f) of
Schedule 1. identified:
"(f) any road or
track in an area regarded by the relevant authority as a sensitive
area".
[45] The applicants
alleged that the relevant authority had not published its regard"
in any official notice or indeed by
any other means. That was common
cause in these proceedings. However, the applicants had not disputed
the validity of the Notice;
it follows that its provisions are
binding. (See
Oudekraal
Estates (Pty) Ltd
v
City of
Cape Town and Others
2004
(6) SA 222
(SCA) para 26)
[46] I am satisfied that
the relevant authority, the first respondent's predecessor, regarded
the area as sensitive, for the following
reasons:
(a) As indicated in para
7(c) above, in December 1999. the relevant authority granted Stocks
& Stocks ECA authorisation related
to the construction of a
sectional title caravan park
(b) As appears from the
background set out above. Stocks and Stocks was one of the
applicants' predecessors.
(c) The following
appears from the authorisation:
'ENVIRONMENTAL
EXEMPTION RECORD OF DECISION
....Condition 1; The
setback line for development is 60 metres beyond the 2.0m + MSL
contour. No development, construction or
gardening is allowed
between the 60 metres setback line and the sea. A palisade
fence (which allows
sand to move through) shall be erected on the 60 metres setback
line..."
The extract is in my
view clear evidence of the "regard" in which the first
respondent's predecessor (the relevant
authority) held the
property.
In addition, in 1997
the Cape Nature Conservation, the then relevant authority's
Conservation wing, proposed conditions that
should apply to
re-zoning and subdivision approval for certain erven including the
property. Ellis had in the founding papers
annexed the Municipal
approvals issued to Stocks and Stocks in September 1997; the
following appear from the correspondence:
With reference to
your application...my Council resolved... on 9 September 1997 as
follows:
(1) That the
rezoning, subdivision and departures of Diaz Beach ...be approved.
…
...
(8.2) The southern
dunes on both sides, the beach and in the estuary mouth ...have very
high conservation value and all attempts
should be made conserve
these areas in an environmentally acceptable way
An access road
through this area may not be constructed....
(8.10) The coastline
is physically highly sensitive and appropriate (sixty metres
minimum) set-back line for development must
be ...determined..."
[47] It follows that if
the road or any part of rt falls within the area regarded as
sensitive, the applicants must obtain ECA
authorisation. Francois
Myburgh Naude, an assistant manager in the Department of
Environmental Affairs and Development Planning,
Western Cape,
attested to an affidavit in these proceedings and said that:
"The road will
at its lowest points be 51 metres above the high-water mark."
[48] The applicants have
not disputed that allegation. It is correct that the documents
referred to above "pre-dated the
acquisition of the property by
the Applicants, they also materially pre-date the introduction of
'road' in the EIA regulations
in May 2002." However, this does
not detract from the fact that there exists objective evidence that
the relevant authority
regarded the area as sensitive for purposes
of development.
[49} Ellis said that the
road would only marginally encroach onto the 60 metre setback tine.
I therefore accept that the road
will intrude on an area regarded as
a "sensitive area" by the relevant authority. The
applicants did not obtain ECA
authorisation prior to filling and
compacting the depression. It follows that they are not entitled to
orders in terms of their
prayers 3 and 4 of the Notice of Motion.
[50] Because the
applicants started the road in contravention of ECA it can also not
rely on the filling and compacting as an
activity in furtherance of
any listed activity.
CONCLUSION
[51] For the reasons
stated above. I make the following order,
(a) The application is
dismissed with costs.
BAARTMAN,
J
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