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[2009] ZASCA 90
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Nature's Choice Properties (Alrode) (Pty) Limited v Ekurhuleni Metropolitan Municipality (487/08) [2009] ZASCA 90; [2010] 1 All SA 12 (SCA) ; 2010 (3) SA 581 (SCA) (11 September 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 487/08
NATURE’S
CHOICE PROPERTIES
(ALRODE)
(PTY) LIMITED
Appellant
and
EKURHULENI METROPOLITAN MUNICIPALITY
Respondent
Neutral citation:
Nature’s Choice v
Ekurhuleni Municipality
(487/08)
[2009] ZASCA
90
(11 SEPTEMBER 2009)
Coram:
HARMS DP, NUGENT, MAYA JJA, LEACH AND
BOSIELO AJJA
Heard:
28 AUGUST 2009
Delivered:
11 SEPTEMBER
2009
Updated:
Summary:
Atmospheric Pollution Prevention Act 45
of 1965 – smoke control regulations – plans and
specifications for installation
of boiler required – failure to
comply – effect.
ORDER
On appeal from:
High Court of South Africa (WLD):
Masipa J sitting as court of first instance.
The appeal is upheld with costs.
The order of the court below is amended to read: ‘The
application is dismissed with costs’.
JUDGMENT
HARMS DP (NUGENT, MAYA JJA, LEACH AND BOSIELO AJJA
concurring
)
INTRODUCTION
[1] This appeal deals with environmental issues arising
from the provisions of the Atmospheric Pollution Prevention Act 45 of
1965.
The main purpose of the Act is to prevent pollution of the
atmosphere. It has, accordingly, provisions dealing with the control
of
noxious or offensive gases, atmospheric pollution by smoke, dust
control, and air pollution by fumes emitting from vehicles. It fits
in with the Bill of Rights which guarantees the right to an
environment that is not harmful to health or well-being and to have
the
environment protected for the benefit of present and future
generations through reasonable legislative and other measures that
prevent
pollution and ecological degradation (s 24). In interpreting
the Act and regulations it is necessary to have regard to s 39(2) of
the Bill of Rights which requires of us to promote the spirit and
objects of the Bill of Rights.
[
2
] The
appeal is, more particularly, concerned with smoke control
regulations issued under the Act. The regulations in question apply
to Alberton, which is now part of the respondent municipality, the
Ekurhuleni Metropolitan Municipality. The high court issued an
interdict at the behest of the municipality restraining
Nature’s
Choice
Properties
(Alrode) (Pty) Ltd, the
appellant,
from utilising a coal boiler at its food processing factory in the
Alrode industrial township. The court also ordered Nature’s
Choice to remove the boiler from the property within 30 days and in
the event of a failure to comply, made provision for removal
by the
sheriff. The appeal is before us with the leave of the court below.
[3] The facts on which the municipality relied for the
relief sought were these. Nature’s Choice, as owner of the
property concerned,
erected a coal fired boiler on the property
without the prior consent of the municipality. This, the municipality
alleged, amounted
to a contravention of regulation 3 of its Smoke
Control regulations. They were promulgated under s 18 of the Act.
1
Regulation 3 provides that one may not install any fuel burning
appliance (which includes a boiler)
2
designed to burn solid or liquid fuel in or on any premises, unless
the plans and specifications in respect of such installation
were
approved by the municipality.
3
The right to have the boiler removed was based on regulation 4.
4
Non-compliance with the regulations is, under regulation 9, an
offence.
[4] In the high court Nature’s Choice sought to
meet this case by alleging that the regulations were
ultra vires
the Act and in the alternative that the municipality had been
unreasonable or had acted with an ulterior motive when it refused a
subsequent application by Nature’s Choice to install the
boiler.
[5] The high court found for the municipality on the
basis that the regulations were not
ultra vires
and that the
coal boiler was installed on Nature’s Choice’s property
in conflict with regulation 3 because plans and
specifications for
its erection had not been submitted and approved before installation.
[6] The relief sought in the notice of motion was in
addition based on the provisions of s 17, which deals with nuisance.
If, as a
result of representations made to it, a local authority is
satisfied that smoke or any other product of combustion emanating
from
any premises is a nuisance, it may call on the person
responsible to abate the nuisance within a given period, and to take
all necessary
steps to prevent a recurrence of the nuisance. The
court below did not rule on this alternative and the municipality did
also not
on appeal rely thereon, presumably because the municipality
never called on Nature’s Choice to ‘abate’ any
nuisance
– its case was all along that the boiler had to be
removed.
[7] Reverting to the Act, s 15(1) provides, inter
alia, that one may not install any fuel burning appliance unless it
is so far
as is reasonably practicable capable of being operated
continuously without emitting dark smoke or smoke of a colour darker
than
may be prescribed by regulation, or one designed to burn solid
fuel, unless it is provided with effective appliances to limit the
emission of grit and dust.
5
[8] The Act does not prohibit the installation of fuel
burners or burners of any particular type. It only prohibits burners
that emit
smoke and grit in contravention of s 15(1), including the
regulations. Consequently, if smoke is emitted in contravention of
any
regulation, the local authority may call on the owner or occupier
to cease the emission of the smoke (s 19(1)).
6
A failure to comply is an offence (s 19(5)) and if after one month
from the date of the conviction steps have not been taken to the
satisfaction of the local authority to comply, it may take measures
necessary to bring about the cessation of the emission or emanation,
and it may recover the cost incurred (s 19(6)).
[9] To ensure that only burners that comply with s 15(1)
are installed, s 15(2) provides that no person may install any fuel
burning
appliance in respect of which sub-sec (1) applies, unless
prior notice in writing was given to the local authority or the chief
officer
of the proposed installation.
7
Sub-section (5) creates an irrebuttable presumption: a fuel burning
appliance installed in accordance with plans and specifications
approved by the local authority is deemed to comply with s 15(1).
8
And s 16 provides that a local authority may not approve a plan which
provides for the installation of a fuel burning appliance unless
it
is satisfied that it is suitably sited in relation to other premises
in the surrounding areas.
9
It is different with the acceptance of plans for chimneys because
then the municipality is entitled to take the considerations set
out
in s 16(2) into account.
[10] It follows from this that regulations requiring
prior plans and specifications are
intra
vires
, something accepted by Nature’s
Choice on appeal. However, the purpose of such regulations is to
enable the municipality to
determine in advance whether or not the
relevant burner would comply with s 15(1). If it complies, the
municipality is obliged to
accept the plans unless the boiler is not
suitably sited or there are other relevant regulations issued under s
18(1)(b) –
there is not one.
10
In other words, the municipality has no free discretion to reject
plans and specifications.
[11] Against this background I turn to the facts. As
mentioned, Nature’s Choice installed the boiler without having
submitted
plans and specifications. This, it is common cause, was in
contravention of regulation 3. In terms of regulation 4, mentioned
earlier,
the municipality was entitled, but not obliged, to require
of Nature’s Choice to remove the boiler. The municipality
elected,
instead, to require of Nature’s Choice to remedy the
situation by submitting plans and specifications. Nature’s
Choice
was so informed by letter of 7 April 2006, and on 23 May the
necessary application was filed.
[12] On 6 July 2006, the municipality turned the
application down. It gave a number of reasons
11
for the rejection but ultimately the reason was this:
‘
This department will only
consider an application for a gas fired appliance as there will be
minimal pollution although other issues
of heat waves and noise from
the appliance might be a future problem to the neighbouring
residents.’
Importantly, the municipality did not reject the boiler
because it emitted smoke in contravention of s 15(1). It rejected the
application
because it was for a coal burner and not for a gas
burner. The municipality overstepped the mark. It was entitled to
refuse the application
if, and only if, the boiler’s smoke
emission did not comply with s 15(1). It was not, in the absence of
an appropriate regulation,
entitled to require that the boiler had to
be gas fired and not coal fired. As its counsel mentioned, regulatory
power conferred
through enabling legislation is constrained by the
need to stay within well established boundaries such as expressed
within the enabling
Act itself and the constraints of the
Constitution (
Pharmaceutical Society of SA v
Tshabalala-Msimang NO; New Clicks SA (Pty) Ltd v Minister of Health
2005 (3) SA 238 (SCA) at para 41;
Road
Accident Fund v Makwetlane
2005 (4) SA 51 (SCA) at para 19 and 31). If it
had a problem with the positioning of the boiler that was something
it had to raise with Nature’s Choice. Instead it simply refused
the application and made it clear that any further application
for a
coal burning boiler would be refused.
[13] In summary, Nature’s Choice installed the
boiler contrary to the provisions of the regulations. This meant that
the municipality
could have insisted that it be removed. It chose not
to do so and, instead, gave Nature’s Choice the opportunity to
submit
plans and specifications. They were rejected and this was
unlawful. The municipality now wishes to interdict the use of the
boiler
and have it removed. It wishes to revert to the position
before it made its election. The effect of this is that the
municipality
is seeking to enforce an illegal decision, something it
cannot do. To the extent that the municipality sought to argue that
Nature’s
Choice was not entitled to challenge the decision
under the so-called
Oudekraal
principle it misunderstands the scope of the decision. There is
nothing in that case which holds that a subject may not raise the
defence that the underlying administrative decision is unlawful and,
instead, has to comply with it while seeking to set it aside
in
collateral proceedings; the case in fact holds the contrary
(
Oudekraal Estates (Pty) Ltd v City of Cape
Town
2004 (6) SA 222 (SCA)
at para 34).
[14] The appeal must therefore be upheld with costs.
Although Nature’s Choice used the services of two counsel in
both courts
the case does not justify the costs of two counsel.
[15] The order:
The appeal is upheld with costs.
The order of the court below is amended to read: ‘The
application is dismissed with costs’.
_____________________
L T C HARMS
DEPUTY PRESIDENT
For Appellant: S JOSEPH SC
M SMIT
Instructed
by: FELDMAN & NANCE-KIVELL
JOHANNESBURG
LOVIUS BLOCK
BLOEMFONTEIN
For Respondent: J C UYS
Instructed by: KLOPPER-JONKER INC
c/o BOTHA & SUTHERLAND
JOHANNESBURG
WESSELS & SMITH
BLOEMFONTEIN
1
Administrator’s Notice R2057 of 21
September 1979. The procedure is set out in s 18(5) which reads:
‘
No
such regulation shall have any force or effect unless it has been
approved by the Minister on the recommendation of the committee
(and
in the case of any regulations under paragraph (d) or (h) of
subsection (1) also after consultation with the Minister of Trade
and Industry, and has been promulgated by the Minister by notice in
the Gazette.’
2
Section 1:
‘“
fuel
burning appliance” means any furnace, boiler or other
appliance designed to burn or capable of burning liquid fuel or
gaseous fuel or wood, coal, anthracite or other solid fuel, or used
to dispose of any material by burning or to subject solid fuel
to
any process involving the application of heat.’
3
Regulation 3:
‘
No
person shall install or cause or permit to be installed or alter or
extend or cause or permit to be altered or extended any fuel
burning
appliance designed to burn solid or liquid fuel in or on any
premises, unless the plans and specifications in respect of
such
installation, alteration or extension have been approved by the
Council.’
4
Regulation 4:
‘
If any fuel burning appliance has been
installed, altered or extended in contravention of regulation 3, the
Council may by notice
in writing require the owner or occupier of
the premises in question to remove, within a period specified in the
notice and at
his own expense, such fuel burning appliance from such
premises.’
5
Section 15(1):
‘
No
person shall install or cause or permit to be installed in or on any
premises—
(a) any
fuel burning appliance, unless such appliance is so far as is
reasonably practicable capable of being operated continuously
without emitting dark smoke or smoke of a colour darker than may be
prescribed by regulation: Provided that in applying the provisions
of this paragraph due allowance shall be made for the unavoidable
emission of dark smoke or smoke of a colour darker than may be
so
prescribed during the starting up of the said appliance or during
the period of any breakdown or disturbance of such appliance;
or
(b) any
fuel burning appliance designed—
(i) to burn
pulverised solid fuel; or
(ii) to
burn solid fuel in any form at a rate of one hundred kilograms or
more per hour; or
(iii) to
subject solid fuel to any process involving the application of heat,
unless such appliance is provided with effective
appliances to limit
the emission of grit and dust to the satisfaction of the local
authority or the chief officer, as the case
may be.’
6
Section 19(1):
‘
If
smoke is emitted or emanates from any premises in contravention of
any regulation made under section eighteen, the local authority
concerned may, subject to the provisions of subsection (3), cause to
be served on the owner or occupier of such premises, a notice
in
writing calling upon him to bring about, within a period specified
in the notice, the cessation of the emission or emanation
of such
smoke from those premises.’
7
Section 15(2):
‘
No
person shall install any fuel burning appliance in respect of which
sub-section (1) applies, in or on any premises unless prior
notice
in writing has been given to the local authority or the chief
officer, as the case may be, of the proposed installation
of such
appliance.’
8
Section 15(5):
‘
A
fuel burning appliance which has been installed in accordance with
plans and specifications approved by the local authority concerned,
shall not for the purposes of subsection (1) be deemed to have been
installed in contravention of the provisions of that subsection,
but
nothing in this subsection shall be construed as precluding any
action under section seventeen or nineteen in respect of any
such
fuel burning appliance.’
9
Section 16:
‘
(1) No
local authority shall approve of any plan which provides for the
construction of any chimney or other opening
for carrying smoke,
gases, vapours, fumes, grit, dust or other final escapes from any
building or for the installation of any fuel
burning appliance,
unless it is satisfied—
(a) . . .
(b) in the
case of any such fuel burning appliance, that it is suitably sited
in relation to other premises in the surrounding
areas.’
10
Section 18(1)
‘
A
local authority may make regulations—
(a) . . .
(b) prohibiting
the installation in any premises or the alteration or extension of
any fuel burning appliance which does not comply
with such
requirements as may be specified in such regulations or determined
by a person authorized thereto by or in accordance
with such
regulations or otherwise than in accordance with and subject to such
conditions as may be so specified or determined;
. . .
11
‘Your application has been rejected taking the following into
consideration;
the location of your premises which is bordering a
neighbouring residential area, (Mayberry Park)
the type of fuel burning appliance to be used
the type of fuel to be used
the start-up of the boiler which will result in black
smoke emissions and subsequent complaints from residents.
Soot blowing procedures which is allowed by current
air pollution legislation in order to prevent clogging of boiler
tubes will
cause a problem because soot will end up in neighbouring
residential premises resulting in (swimming pool water covered with
soot, clothes on washing lines with black soot spots etc)
complaints
the distance between the fuel burning appliance and
residential premises is of great concern
the sensitivity of the neighbouring residents with
regard to air and noise pollution.
Complaints from neighbouring residents.
Noise from the appliance and delivery of coal.’