About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 217
|
|
Hausmuller Estate (Pty) Ltd v MEC for the Department of Agriculture Conservation & Environment, Gauteng Province and Others (27811/2009) [2010] ZAGPPHC 217 (6 December 2010)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
CASE
NO: 27811/2009
DATE:
06/12/2010
IN
THE MATTER BETWEEN:
HAUSMULLER
ESTATE (PTY) LTD
............................................
APPLICANT
AND
THE
MEC FOR THE DEPARTMENT OF
AGRICULTURE
CONSERVATION &
ENVIRONMENT,
GAUTENG PROVINCE
..................................
FIRST
RESPONDENT
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
................................................................................
SECOND
RESPONDENT
RENOSTERSPRUIT
NATURE RESERVE
..................................
THIRD
RESPONDENT
THE
GAUTENG DEVELOPMENT TRIBUNAL
........................
FOURTH
RESPONDENT
JUDGMENT
PRINSLOO, J
[1] The
applicant applies for a decision taken by the first respondent in
November 2008 to be reviewed and set aside. The application
is
brought within the ambit of the Promotion of Administrative Justice
Act, 3 of 2000 (“PAJA”).
[2] An
argument
in
limine
raised by the first respondent, to the effect that the application
was premature because the applicant had failed to first exercise
and
exhaust internal remedies at his disposal, as intended by the
provisions of section 7 of PAJA, was not proceeded with.
[3] Only the first
respondent opposed the application.
[4] Before
me, Mr. Rip SC appeared for the applicant and Ms. Moloisane appeared
for the first respondent.
INTRODUCTION AND
BACKGROUND
[5] In
2005, the applicant, a property development company, launched an
application in terms of the Development Facilitation Act,
Act no 67
of 1995 (“the DFA”) to the Gauteng Development Tribunal
(the fourth respondent) to establish a land development
area on
portions 2, 3, 6 and 7 of the Farm Schurveberg 488 JQ (“the
property”).
[6] The property is situated
to the west of Pretoria.
[7] After
a hearing before the fourth respondent on 17 November 2006, a
positive approval was received from the fourth respondent
in terms of
which it approved the land development area for purposes of the
development as proposed in the application. The final
and full
approval of the application and the land development area was
received by the applicant on 18 July 2007. The development
is to be
known as Schurveberg Country Estate.
[8] The
first paragraph of the decision reads as follows:
“Having
considered submissions by all parties, the Gauteng Development
Tribunal approves, in terms of section 33 of the DFA
the
Establishment of the land development area in respect of the
remainder of extent of portion 2, 3, 6 and 7 of the farm Schurveberg
488 JQ to be known as Schurveberg Country Estate.”
[9] According
to the decision the approval includes Conditions of Establishment,
Amendment of the Peri-Urban Areas Town Planning
Scheme 1975 and a
Development Plan Layout.
[10] The
applicant was ordered to finalise a services agreement with the City
of Tshwane Metropolitan Municipality (the present
second respondent).
As I read the papers, this was done, and, in any event, the second
respondent supports the applicant’s
application. The present
third respondent also made submissions to the fourth respondent
before the approval was granted.
[11] When granting the
approval, the fourth respondent imposed the following further
condition:
“The
applicant shall obtain a Record of Decision from GDACE, which ROD
shall address environmental issues as the Tribunal
has duly
considered planning issues.”
GDACE
stands for Gauteng Department of Agriculture Conservation and
Environment. It appears from the opposing affidavit that the
name of
this department has since been changed to the Department of
Agriculture and Rural Development (“GDARD”).
For
present purposes, I shall continue to use the old abbreviation,
“GDACE”, because that is the one freely used in
the
papers to which I will refer.
[12] The
applicant duly applied for a favourable Record of Decision (“ROD”)
from GDACE but, more than two years after
the initial application had
been made to the fourth respondent, a negative ROD was received from
the GDACE. It was signed by the
Head of Department (“HOD”),
dr. ST Cornelius.
[13] In terms of section 35
of the Environment Conservation Act, Act 73 of 1989 (“the ECA”)
the applicant was allowed
to appeal against this decision to the
first respondent, within 30 days.
[14] The
applicant duly and timeously, on 15 September 2008, forwarded such an
appeal to the first respondent.
[15] On
13 November 2008 the first respondent dismissed the appeal and upheld
the decision of the HOD
supra,
dated 18 August 2008. The decision was taken by the then MEC for
Agriculture, Conservation and Environment Mr Mosunkutu. The
opposing
affidavit in the present application is signed by the present MEC Ms.
Nandi Mayathula-Khoza.
[16] It is this decision by
MEC Mosunkutu which the applicant seeks to have reviewed and set
aside.
Prayers 1 and 2 of the
Notice of Motion reads as follows:
“1. That
the decision of the First Respondent dismissing the appeal of the
Applicant against the negative Record of Decision,
dated 13 November
2008 be reviewed and set aside;
2. That
the matter be referred back to the First Respondent for a
reconsideration of the matter.”
[17] With reference to the
second prayer, the present MEC in concluding her opposing affidavit,
said the following:
“I am advised that in
the circumstances, there is no basis for referring the matter back to
me for reconsideration.”
It is
this remark which prompted the applicant, in reply, to ask the Court
not to refer the matter back in the event of the application
being
successful, but to simply substitute the decision made by the MEC
with one favourable to the applicant. This can be done
in
exceptional cases in terms of the provisions of section 8(1) of PAJA.
During his address before
me, Mr Rip, however, indicated that he was not proceeding with a
request for a substitution order. I
was not addressed any further on
the subject by either counsel.
THE GROUNDS OF REVIEW
RELIED UPON BY THE APPLICANT
[18] In the founding
affidavit, the applicant relies on five review grounds, selected from
those to be found in section 6(2) of
PAJA.
[19] The applicant alleges
that the decision was:
“1. Materially
influenced by an error of law (ground 1);
2. Taken
for a reason not authorised by the
empowering
provisions (ground 2);
3. Taken
because irrelevant considerations were taken into account and
relevant considerations were not considered (ground 3);
4. Taken
arbitrarily or capaciously
(ground 4);
5. Not
rationally connected to the information before the MEC or the reasons
given for the decision by the MEC and by Dr. Cornelius
in his
negative ROD. (Annexure ‘
LFM3’
to the founding papers.)
[20] I
add that the MEC did not give detailed reasons for his decision. He
stated that he had read the contents of the project
file, the appeal
documentation and the department’s response to the appeal. He
then decided that these documents indicate
that:
“1. Authorisation
was denied with due process and compliance with relevant legislation
and regulations;
2. The
Department applied its mind by considering site-specific merits of
the application, the potential environmental impacts
including the
suitability of the development in the local and regional context.”
[21] The
MEC goes on the endorse the decision of the HOD. At least
ex
facie
his notification document, I see no indication of independent
reasoning on the part of the MEC in coming to his decision.
THE
ROLE OF MR TEBOHO
LEKU
[22] In
the founding affidavit it is submitted that the MEC failed to
properly consider that matter in that the Review Agent, Mr.
Leku, had
been appointed by the Department to consider the merits of the
application and do the necessary review and analysis of
the facts.
The applicant’s conservation agent, Prof. Gwen Theron, met Mr
Leku on 5 June 2008. On that occasion, Mr Leku’s
attitude was
that he would not be prepared to consider the granting of a positive
ROD for the purpose of residential housing, but
would only consider
an ROD for a resort on the property, due to the fact that the
property was too far away from Atteridgeville,
so as to create
employment opportunities. It is submitted in the founding affidavit
that Mr. Leku had a pre-determined attitude
towards the application
and that this did not allow for him to properly consider that matter.
It was submitted, correctly, that
it was not the GDACE’s role
to consider the position of employment and planning practices but
only to consider the situation
relating to the environment and the
impact of the proposal on the environment. With regard to the
environment, as it concerns
the relevant property, the following
brief submissions were made in the founding affidavit: the property
currently has resort
rights and a Picnick ground and is known as the
Hennopsriver 4x4 Trail and Picnick Area and is situated on the R511
which is the
road that runs between Sandton and the
Hartebeespoortdam. It is a well known 4 x 4 venue to the west of
Pretoria. The property
has been severely damaged by the 4 x 4 course
and disturbed, obviously from its original agricultural purpose and
zoning by both
the 4x4 trail and the picnick areas. On a general
reading of the papers, all this appears to be common cause between
the parties.
At
present, the existing disturbed areas, which are disturbed as far as
the original use and growth is concerned, constitutes a
total of 81,9
hectares of a total 741,02 hectares or 11.05 per cent of the
property. The idea is that those portions of the disturbed
areas
that will not be taken up in the new development will be completely
rehabilitated. One the development has taken place,
the ecological
system will be considerably improved, rehabilitated and more
sustainable than it presently is with the current land
uses and the
fact that most of the agricultural areas are lying fallow and being
invaded by non-indigenous species.
[23] It
is alleged in the founding affidavit that Mr Leku “appeared to
justify the attitude that he had adopted by the findings
contained in
the negative ROD, annexure ‘LFM 3’”. This is the
document produced by Dr. Cornelius when issuing
the negative ROD. It
is alleged in the founding affidavit that “LFM 3”
contained numerous factual errors, faulty reasoning
and
justifications based on aspects such as planning of cities, which has
nothing to do with the first respondent. I will revert
to this
subject in more detail hereunder.
[24] In
the opposing affidavit, the allegations about the pre-determined
attitude adopted by Mr Leku are neither dealt with nor
specifically
denied. The meeting between Mr Leku and Prof. Theron on 5 June 2008
is admitted. It is pointed out, in the opposing
affidavit, that Mr
Leku, “was well below in the hierarchy or line of command”
and could only make recommendations to
his immediate supervisor, the
deputy-director. It is conceded that Mr Leku inspected the site of
the proposed development and
invited Prof. Theron to the meeting of 5
June 2008 in order to highlight to her the environmental factors that
needed to be addressed
in order to minimise or remedy the negative
ecological impact on the environment in the area of the proposed
development. It is
emphasized that Mr. Leku did not have any powers
to make a decision but those powers vested in the HOD, by virtue of
the power
delegated to him. It was also pointed out, correctly, that
it is not the decision of the HOD, but that of the MEC which forms
the subject of this application.
[25] In the replying
affidavit the following submission is made:
“
What
is of extreme interest is whilst very specific allegations have been
made as to the attitude adopted by Mr. Leku and clearly
the attitude
that was conveyed by him to his superior no challenge to the
statements or events is made showing that his superior
or the head of
department who made the original decision, denying the ROD applied
his mind in any other manner than that of Mr.
Leku.”
[26] In
the replying affidavit it is also emphasised that the only person who
consulted with the applicant’s environmentalist
and who was
ever seen on the site was Mr Leku. The person who was allegedly
authorised to make the decision (presumably the HOD)
never entered
into consultation with the applicant’s representatives or, to
the best of the knowledge of the applicant’s
representatives
ever visited the site. It is submitted in the replying affidavit
that the HOD relied solely on the comments received
from Mr Leku. It
is submitted in the replying affidavit that there was not a fair,
transparent and open administrative process.
[27] In
the appeal documentation, which was submitted to the MEC long before
he took his decision, Prof. Theron, the conservationist
advising the
applicant, who also filed a verifying affidavit in support of this
application, states that, during the meeting of
five June 2008 which
she had with Mr Leku, there was no mention of any environmental
factors that had been considered to be under
threat by the developer.
Mr Leku was only concerned with planning issues which had been
decided by the fourth respondent and had
nothing to do with the first
respondent or, for that matter, with Mr. Leku. The latter, and the
HOD for that matter, was only
empowered to deal with environmental
issues. In his verifying affidavit, Mr Leku also states that he is
the Acting Director: Environmental
Planning and Impact Assessment of
the GDACE.
[28] Attached
to the appeal documentation, which the MEC would also have had in his
possession before he took his decision, is a
lengthy letter, dated 24
June 2008, two months before the negative ROD was issued, addressed
to Mr. Leku by Prof. Theron. This
letter deals with the
environmental issues.
THE
SEVEN “FINDINGS” ON WHICH THE HOD BASED HIS NEGATIVE ROD
AND THE APPLICANT
’S
COMMENTS THEREON AS CONTAINED IN THE APPEAL DOCUMENTATION SUBMITTED
TO THE MEC BEFORE HE TOOK HIS DECISION.
[29] In
the covering letter
to
which the appeal documentation was attached, and addressed to the MEC
Mr. Mosunkutu , Prof. Theron, on behalf of the applicant,
pointed out
that she had had discussions with several land owners in the area and
it appeared that the area was severely under
pressure from criminals
operating from the surrounding parts. Land owners in the area are
under constant safety and security threats
and the potential
development of the area is absolutely required to ensure the safety
and security of the current land owners and
those living on the land.
There is a great need for work opportunities and this development
will provide significantly to alleviate
this lack of work in the
area. For these reasons, several of the land owners surrounding the
property as well as others in the
area support the appeal against the
negative ROD. The names of these supporters were supplied. I see no
indication that any of
these submissions and statements made by
professor Theron on behalf of the applicant are in dispute.
[30] According
to the professor, it was the opinion of the environmental consultants
working on other applications in the area as
well as the current land
owners that, to save the area from total destruction development must
be allowed within the area.
[31] Rand
Water Bulk Water Supply Line is currently under construction in the
area and this will open the opportunity for development.
Once
potable water is provided to the area there is no reason to prevent
development from taking place in a responsible manner.
[32] The next bulk sewer
treatment plant for the City of Tshwane is planned for the
Schurveberg property. It was not argued before
me that any of these
factual statements were in dispute.
[33] I now turn to the seven
“findings” or reasons offered by the HOD for the negative
ROD. In each instance, the reason
will be followed by the comments
offered in the appeal documentation on behalf of the applicant.
[34] Before listing the
findings or reasons and the comments thereon, I consider it important
to point out the following:
1. In
terms of the prevailing legislation the HOD (and, therefore the
GDACE) and the MEC who took the decision were confined to
concern
themselves only with the environment and how this may or may not be
impacted by the proposed development.
On the
other hand, the fourth respondent’s mandate was confined to
land development and planning issues. As indicated,
these were
decided in favour of the applicant by the fourth respondent, and the
application is also supported by the second respondent
Municipality.
2. The
comments offered in the appeal documentation in opposition to and
criticism of “the findings” of the HOD, are
not dealt
with at all in the opposing affidavit in the sense that they are
analysed and countered in any meaningful manner. This
is despite the
fact that these “findings” and the comments thereon in
the appeal documentation are particularly identified
in the founding
papers and endorsed as the main thrust of the appeal and of this
review application.
[35] I
now turn to the details of the findings offered by the HOD and the
attacks thereon in the appeal documentation.
[36] Finding 1:
“The
total property measures 741,02 ha of which 67,72 ha is proposed for
development. Development includes residential uses,
a resort and
lodge as well as 673,30 ha is for private open space. The
encroachment of development into the ridge constitutes
approximately
16,66 ha whilst the footprint is just below 10 per cent of the site.”
Attack
thereon in appeal documentation: the review agent mislead the HOD in
his recommendation, by providing only a section of
the information.
The facts are that 9,14 per cent of the property will be developed –
where currently the disturbed areas
are 11,05 per cent. Also, the
areas on he ridge that will be developed are only 3,06 per cent where
5 per cent is allowed on a
class 2 ridge. Furthermore, 90,86 per
cent of the property will be retained in conservation. A proper
table is provided in the
appeal documentation in support of these
statistics.
As to finding 1, it was
argued by counsel for the applicant that review grounds 3 and 5 come
into play: the finding is incorrect
because irrelevant
considerations were taken into account and relevant considerations
were not considered. The decision was also
not rationally connected
to the information before the first respondent or the reasons given
for the decision.
[37] Finding 2:
“
Class
1(south) and class 2 (north) ridge systems cover the biggest part of
the site on the south and north respectively, with lower
valley
between earmarked for this development. In view of this, the
department is concerned that:
2.3.1 the
proposed development will have an ecological impact on the class 1
and 2 ridges.
2.3.2 the
development will disturb suitable habitat for endangered fauna and
flora species.
2.3.3 development
will be located in a way that impacts severely on the connectivity
between ridge systems.”
Attack thereon in the appeal
documentation: the incorrect numbering (2.3.1 etc. in stead of 2.2.1
etc.) makes it clear that the
information in the letter was cut and
pasted from another document – the three points were
specifically addressed in the
original application. The following
was overlooked by the review agent:
(i) the
development will have no ecological impact on the ridges. Only 3,06
per cent of the entire ridge area is affected. The
red data species
that was found has more than a 200m buffer around it. The review
agent fails to indicate that the species was
found and that it is
being adequately protected by the buffer area around it. As a matter
of fact, more than 90 per cent of the
site is being protected and the
red data species can thus roam freely on more than 600 ha.
(ii) the
development is done in only disturbed and adjacent to existing
disturbed areas. The red data species that was found is
more than
adequately protected by a buffer that is in exess of 200m.
(iii) there
are corridors of more than 200m left open for migration between the
two ridges. The development layout is specifically
done in a manner
that provides for the connection between the ridges. There is no
development whatsoever on a class 1 ridge.
It was
argued on behalf of counsel, as to finding 2, that review grounds 3
(
supra
)
4 (the decision was taken arbitrarily or capriciously) and 5 (
supra
)
come into play.
I add
that it appears to be well settled that errors of fact on the part of
the administrator or decision maker are also, in appropriate
cases,
reviewable under PAJA. See the discussion by JR de Ville
Judicial
Review of Administrative Action in South Africa
page 169-172. In this regard, the learned author refers to the
provisions of section 6(2)(f)(ii)(cc) of PAJA. This is covered
by
review ground 5 namely that the decision was not rationally connected
to the information before the first respondent (or, for
that matter,
the reasons given for the decision by the administrator –
section 6 (2)(f)(ii)(dd).
[38] “Finding
3: The site is further traversed and bordered by several
non-perennial and perennial rivers and the department
is concerned
that the proposed activity will alter or pollute the natural drainage
system.”
Attack
thereon in the appeal documentation: the Crocodile river runs
through the site. The water quality of the river is atrocious
and of
an extremely poor quality since it runs through several townships and
urban areas along its course. The proposal is to
treat any water
that is used on the site to a special standard as per DWAF
requirements. The water being released into the streams
and river
will thus be of a much higher quality than the water currently
flowing through the site. Sufficient backup precautionary
measures
are put in place to ensure that the site will not be polluted by
effluent. The City of Tshwane Engineering Department
approved the
treatment plant and its location as well as the proposal to locate a
wetland area below the outflow of the treated
effluent release.
As to
finding 3, it was argued by counsel for the applicant that the
finding is couched the vaguest of terms. This also applies
to most
of the other findings. When the full details and facts are exposed,
as appears from the appeal documentation, it is clear
that review
grounds 3, 4 and 5,
supra,
also come into play.
[39] Finding 4:
“The
site is underlain by dolomite which is associated with the ecological
systems, such as hydrological processes, ground
water dynamics and
cave eco system dynamics. The development will detrimentally affect
the natural functioning of he ecological
processes which are
essential for the maintenance and generation of bio-diversity.
Dolomite is regarded as sensitive and therefore
requires protection
from transforming land uses such as the proposed development.”
Attack thereon in the appeal
documentation: the City of Tshwane (second respondent) is the
custodian of the geological formation
underlying its jurisdictional
area. The second respondent supports the application. A very
extensive study was completed by the
applicant on the geological
formation. The work was submitted to the Council for Geo-Science and
approval was obtained from them
for the development and the
management of water on the site. It is not the responsibility of the
GDACE to address the geological
conditions in such a superficial way.
The geological stability of the site has been thoroughly researched
and the appropriate
approvals were obtained.
The GDACE
does not provide any scientific evidence that supports the statement
made in the ROD by the HOD. The applicant has made
large financial
investments to obtain the opinions and study results of specialists
who are adamant that the ecologically significant
areas on the site
is adequately protected within the proposed development layout.
As to
finding 4, counsel for the applicant also pointed out that this whole
subject was duly considered by the fourth respondent
during the
tribunal hearing resulting in a favourable finding for the applicant.
This subject, for present purposes, falls inside
the ambit of the
fourth respondent’s mandate, namely land development and
planning issues. It falls outside the ambit of
the mandate of the
GDACE. During the tribunal hearing, the subject was fully considered
by the fourth respondent and also by the
second respondent.
Adaptations were made. There would be no building on dolomitic
areas. It appears from the appeal documentation
that the chairman of
the tribunal (fourth respondent) directed that geotechnical surveys
had to be done on each proposed erf because
of the underlying
dolomite.
It also appears from the
appeal documentation that submissions made by the third respondent,
and reservations expressed by the latter,
were considered by the
tribunal.
As to
finding 4, counsel for the applicant argued that review grounds 3, 4
and 5 also came into play. Moreover, review ground 1
(the decision
was materially influenced by an error of law) and review ground 2
(the decision was taken for a reason not authorised
by the empowering
provisions) also come into play. The HOD concerned himself with an
issue which falls beyond his mandate.
[40] Finding 5:
“
The
dolomitic conditions have also resulted in the formation of caves in
the area, and the development, as proposed, will have a
detrimental
impact on the caves. Cave construction is one of the issues
highlighted by IUCN Action Plan for Microchiropteran Bats
(2001) and
the protection of key caves is in fact a recommendation for the
Afrotropical Region (Hudson et al 2001). Caves also
unique and
poorly known groups of animals known as troglobytes or cave dwellers,
and in this particular area significant archaeological
and heritage
resources.”
Attack
thereon in the application documents: on the property only a small
indent was found which is considered to be a cave. It
is known as
Pruimpie
se Gat
.
During the heritage investigation, no artefacts or any signs of any
indication of habitation was found. A small portion of the
proposed
development is located near the cave site, however, and if it will be
necessary to create a buffer around the cave, the
applicant is
willing to remove the proposed units in the area and to reduce the
number of units in the application.
Moreover,
the heritage information was admitted to the SA Heritage and
Restoration Association (SAHRA) and they are satisfied with
the fact
that the site will be protected and not destroyed.
There are
no further caves on the site and the development will not affect any
dolomitic features or cave ecologies. The indent
that is referred to
as a cave on the site has no ecological processes operating in and
around it. It is a dust bucket and if the
review agent took the time
to review the site, he would have known that it is of no
significance. There is no proof that the review
agent was ever on
the site.
In my view, this is another
example of a “finding” having been crafted in the vaguest
and most generalised of terms.
The objection may be applicable to
other cave sites, but on the undisputed evidence mentioned, it is not
applicable to the present
property.
Counsel
for the applicant submitted that the “finding” may be
part of a general report on the Schurveberg area, but
it has no
application in respect of this particular property. Counsel
emphasised the fact that the appeal documentation was before
the MEC
(first respondent) before the decision now under attack was taken.
There is no sign that the submissions in the appeal
documentation
were considered by the MEC. It was argued that review grounds 3, 4
and 5
supra
are also applicable to this finding.
[41] Finding 6:
“
The
proposed development site is outside the urban edge and this
department is concerned that it will lead to urban sprawl. The
current planning framework for the area has not yet provided any
coherent guideline in terms of a change to residential uses, and
hence the site should be considered for alternative rural uses
compatible with a sensitive environment.”
Attack thereon in the
appeal documentation:
There are
approved agreements with the City of Tshwane (second respondent) to
provide municipal water. The City of Tshwane approved
the sewer
treatment plant and its associated methods of releasing the treated
water. The road upgrades and required outside infrastructure
has
been approved by Gautrans. All the services are approved. It is
most peculiar that a GDACE review agent did not read the
reports and
does not know that the City of Tshwane supports this development with
services. The City of Tshwane is highly concerned
with the
uncontrolled movement of the squatters of Atteridgeville into the
area and wishes to contain the spread of the squatters
by creating a
clear boundary by approving development that will stop the urban
sprawl of squatters. For this and other reasons
the City of Tshwane
supports the development.
It is true that the property
is currently outside the urban edge, but the following further
considerations apply:
(i) there
is a large Rand Water Line running past the site. It is estimated
that development within a 2 km radius from the Rand
Water Line will
easily be able to connect on to one of hundreds of connection points
on the line.
(ii) Atteridgeville
has been growing in the past twenty years and is now only 2 km from
the site. Aerial photographs of the urban
sprawl of Atteridgeville
form part of the appeal documentation.
(iii) The
fourth respondent considered the application and all the planning
merits, including the urban edge, and found it to be
well motivated
and very necessary for the area.
(iv) A
significant social benefit program is put in place that will be
generated from sales and monthly levies of the development.
I add
that included amongst the appeal documents is the socio-economic
benefit program proposed by the applicant. A donation
trust fund
will be established for the benefit of the surrounding community
generally and more specifically the previously disadvantaged.
Certain projects are identified in this area. These include
improvements to the local clinic, the local school, the local crèche
and the local conservancy. Objectives of the trust will be job
creation, entrepreneurship, skills transfer, community upliftment,
conservation, trust asset management, trust asset distribution and
trust beneficiary determination. It appears that this benefit
program was put in place in consultation with the City of Tshwane
Department of Housing, City Planning and Environmental management.
(v) The City of Tshwane
approved the provision of services.
Counsel
for the applicant emphasised in his argument that all the
requirements as to infrastructure and services were approved by
the
relevant planning and other departments. This whole issue came
before the fourth respondent during the hearing. Amongst other
subjects, the fourth respondent also had to consider the question of
sustainability. The application was successful. Finding
number 6
encroaches upon subjects falling outside the ambit of the mandate of
the HOD and the GDACE. For this reason, review grounds
1 and 2 come
into play as do grounds 3, 4 and 5.
[42] Finding 7:
“
An
extension of the services to the proposed development, or the need
for residents to gain access to distant urban systems, will
constitute non-sustainable environmental practice given the sensitive
environment associated with the development site.”
Attack
thereon in the appeal documentation: it is not the mandate of the
GDACE to decide on the provision of services. The City
of Tshwane
will be providing the services and has already agreed to do so.
Moreover, the areas of the site that are proposed for
development are
not sensitive. It is clear that the review agent has not been
reading the information presented by the specialists.
More than
11per cent of the site is disturbed. The applicant wants to restore
the disturbed areas, remove alien vegetation and
only develop on 9,14
per cent of the site – all inclusive of roads, erven and all
infrastructure. The services are designed
to all run along the roads
to limit disturbance in the movement corridors of the animals. The
urban systems are not distant –
it is within walking distance
from the site. The taxi routes run along the R511 which passes the
site on the eastern boundary.
Clinics and libraries are within
walking distance from the site.
It is clear that the HOD
again went beyond the scope of his powers when relying on this
finding for purposes of his negative ROD.
All five the review
grounds will come into play.
CONCLUSIONS
[43]
For
the reasons mentioned, I have come to the conclusion that a proper
case has been made out for the decision of the HOD to be
set aside on
one or more or all of the PAJA review grounds relied upon.
[44] The
MEC associated himself with the decision of the HOD. I have quoted
the wording of his notice to the applicant, dated 13
November 2008,
containing the decision. The last paragraph of this notice reads as
follows:
“
I
have concluded that the decision reflected in the Environmental
Authorisation was taken correctly. It is therefore my decision
to
dismiss this appeal and uphold the Head of Department’s
decision contained in the Record of Decision dated 18 August 2008.”
It is not clear what is
meant with the term “Environmental Authorisation”. The
decision of the HOD in fact amounted
to a refusal of an authorisation
as intended by the ECA.
[45] When
he took his decision, the MEC was in possession of the appeal
documentation. He nevertheless adopted the reasoning of
the HOD.
When he took the decision, the MEC was the head of the GDACE. The
review grounds listed in the founding affidavit are
aimed at the
decision of the MEC and are also valid in respect of his decision, as
they are in respect of the decision of the HOD.
The decision was
materially influenced by an error of law and taken for a reason not
authorised by the empowering provisions.
It was incorrect because
irrelevant considerations were taken into account and relevant
considerations were not considered. The
decision was taken
arbitrarily or capaciously and was not rationally connected to the
information before the MEC at the time or
to the reasons, such as
they are, given by the MEC for the decision or to the reasons given
by the HOD for his negative record
of decision. These reasons were
adopted by the MEC as his own.
[46] I am
alive to the fact that it has been held by the Supreme Court of
Appeal, that in requiring reasonable administrative action,
the
Constitution does not intend that such action must, in review
proceedings, be tested against the reasonableness of the merits
of
the action in the same way as an appeal. It was held that the review
threshold is rationality. The test is an objective one.
Rationality
is one of the criteria now laid down in section 6(2)(f)(ii) of PAJA.
This is relied upon in the present application
by the applicant, and
more particularly in review ground 5 – see Trinity Broadcasting
(Ciskei) v Independent Communications
Authority of SA
2004 (3) SA 346
SCA at 353I-354C. Moreover, as pointed out by the learned judge of
appeal at 354B, “reasonableness can, of course, be a
relevant
factor, but only where the question is whether the action is so
unreasonable that no reasonable person would have resorted
to it.
(See section 6(2)(h)).” Apart from the fact that the
administrative action of the MEC did not pass the test for
rationality as intended by section 6(2)(f), I am also of the view
that his decision was so unreasonable that no reasonable person
would
have resorted thereto as intended by section 6(2)(h), even though
that review ground is not specifically relied upon.
[47] In all
the circumstances, I have come to the conclusion that the application
ought to be upheld.
THE ORDER
[48] I make
the following order:
1. The decision
of the first respondent (the then MEC] dismissing the appeal of the
applicant against the negative Record of Decision,
dated 13 November
2008, is reviewed and set aside.
2. The matter
is referred back to the first respondent for reconsideration.
3. The first
respondent is ordered to pay the costs of the application, which will
include the costs flowing from the employment
of senior counsel.
WRC PRINSLOO
JUDGE OF THE
HIGH COURT
APPLICATION
HEARD
ON:
5
AUGUST
2010
FOR
THE
APPLICANT:
ADV.
MM
RIP
SC
INSTRUCTED
BY:
TIM
DU
TOIT
ATTORNEYS
FOR
THE
RESPONDENTS:
ADV.
L
MOLOISANE
INSTRUCTED
BY:THE
STATE
ATTORNEY