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[2016] ZAGPPHC 610
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Long Beach Homeowners Association v Great Kei Municipality, Amotole District , Eastern Cape and Others (28064/2014) [2016] ZAGPPHC 610 (26 April 2016)
h
IN THE HIGH
COURT OF
SOUTH AFRICA (GAUTENG
DIVISION,
PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
CASE NO:
28064/2014
DATE:
26 APRIL 2016
IN
THE MATTER BETWEEN
:
LONG
BEACH
HOMEOWNERS
ASSOCIATION
APPLICANT
and
GREAT
KEI
MUNICIPALITY,
AMOTOLE
FIRST
RESPONDENT
DISTRICT,
EASTERN
CAPE
THE
SURVEYOR-GENERAL
FOR
THE
PROVINCE
OF
THE
EASTERN CAPE
SECOND
RESPONDENT
THE
REGISTRAR OF DEEDS FOR THE
PROVINCE
OF
THE
EASTERN CAPE THE
RESPONDENT
THE
DEPARTMENT OF
ECONOMIC
DEVELOPMENT,
ENVIRONMENTAL
AFFAIRS
AND TOURISM
FOURTH RESPONDENT
THE
MEC:
ECONOMIC
DEVELOPMENT,
ENVIRONMENTAL
AFFAIRS
AND
TOURISM
FIFTH RESPONDENT
THE
DEPARTMENT OF
AGRICULTURE,
FORESTRY
AND
FISHERIES
SIXTH
RESPONDENT
THE
MINISTER OF
AGRICULTURE,
FORESTRY
AND
FISHERIES
SEVENTH
RESPONDENT
G SMULDERS
EIGHTH
RESPONDENT
E
J
HARRIS
NINTH RESPONDENT
T THOMAS
TENTH RESPONDENT
M DENISON
ELEVENTH
RESPONDENT
THE
MINISTER
OF
WATER
AND
ENVIRONMENTAL AFFAIRS
TWELFTH
RESPONDENT
JUDGMENT
KOLLAPEN
J:
Introduction
1.
This is an application where the core issue in dispute relates
to the manner in which two constitutional imperatives, namely the
right to have the environment protected, and the right to
ecologically sustainable social and economic development, are to be
given effect to and reconciled to the extent that they may come into
conflict with each other.
2.
In
FUEL
RETAILERS
ASSOCIATION
OF SOUTHERN
AFRICA
v
DIRECTOR-GENERAL:
ENVIRONMENTAL MANAGEMENT, DEPARTMENT
OF
AGRICULTURE,
CONSERVATION
AND ENVIRONMENT,
MPUMALANGA
PROVINCE
AND
OTHERS
2007 (6) SA 4
CC
the
Constitutional Court expressed itself as follows with regard to the
relationship between the need for the protection of the
environment
and the importance of sustainable development, both of which are
encapsulated in section 24 of the Constitution:
'What
is
immediately
apparent from
s
24
is
the
explicit
recognition of the
obligation
t
o
promote
justifiable 'economic and social
development'.
Economic and social development is
essential to the well-be
ing of human
beings.
This
Court
has
recognised
that
socio-economic
rights that
are set out in the
Constitution are indeed vital to the
enjoyment
of other
human
rights
guaranteed in
the
Constitution.
But
development cannot
subsist
upon
a
deteriorating environmental base.
Unlimited development is
detrimental to the environment
and the destruction of the environment
is detrimental
to development.
Promotion
of
development requires the
protection
of
the environment.
Yet the environment cannot
be
protected
if
development
does
not pay
attention
to the
costs
of the
environmental destruction. '
(at
21F-G)
The
Constitution recognises the interrelationship between the environment
and development; indeed it recognises the need for the
protection of
the environment while at the same time it recognises the need for
social development and economic development. It
contemplates the
integration of environmental protection and socio-economic
development. It envisages the environmental considerations
will be
balanced with socio-economic considerations through the ideal of
sustainable development. This is apparent from s 24(b)
(iii) which
provides that the environment will be protected by securing
'ecologically sustainable development and use of natural
resources
while promoting justifiable economic and social development. '
Sustainable development and sustainable use and exploitation
of
natural resources are at the core of the protection of the
environment. '
(at
22C-
D).
The
Long Beach property
The land in question and to which the
dispute relates is located in the Chintsa area which is in the Great
Kei Municipality, situated
along the coast some 40 kilometres north
east of the town of East London and is some 17,925 hectares in extent
and is referred
to as Long Beach.While the papers contain photographs
of the land, the parties after hearing of argument in the matter
suggested
that a site visit be conducted and this occurred on the
22nd
of
February
2016.
A
minute of that visit complied with the input of the parties is
reproduced hereunder simply in order to attempt to better describe
the property and its features.
Minute
following
a
site
visit
to the pro
posed
location of
the
Long
Beach
Development
in
Chintsa
, Eastern
Cape
.
Introduction
Following
the
conclusion
of
argument
in
the
matter between
Long Beach
Homeowners
Association vs
Great
Kei
Municipality,
Amatole District
and Others (case
28064
1
2014)
and
at the unanimous request of all
the
parties, a
visit
to
the
site of
the
proposed
development was
arranged
for
the
22nd
of
February
2016.
The
presiding
Judge,
legal
representatives
of
all
the
parties,
the plaintiff'
s representative
and their expert as well as various experts and officials from the
various
government
departments
involved,
attended the
visit.
The
purpose
of the visit was
not to introduce any new evidence into the proceedings
but was to
acquaint the Judge with the actual layout of the terrain
and to
have any
questions
for
clarity answered.
General
observations
Th
e
full
site is extensive
and not every
part
of the
property
nor every erf
was
inspected.
Four
of
the
erven
as
well
as
the
outbuilding
sites
in respect of
those erven
were inspected.
The
forest
is
in
general, relatively
dense
with
significant
ground vegetation
and
an
abundance
of
trees,
both
mature
as
well
as
saplings in
close
proximity,
resulting in
most
of
the
areas
visited
enjoying
full foilage
.
There are some footpaths that we were able to follow but in other
areas the paths were less defined and the group had to negotiate
relatively dense terrain to move from one place to the next.
In
addition the
various
outbuilding
erven
are
all
situated close to
the boundar
y
fence in the
proximity
of the service
road of the property
while
the
erven
that
they
support
are
located,
in
the main,
closer
to the opposite
boundary
of
the
site
with
some erven
being
located
closer
to the
centre of
the
site.
The
result is
that
there is
some distance to
be traversed
from
the outbuilding
to the erf that supports
it.
Erf
1124
The centre
of this erf
of about
1100
square
metres
is located
in a recessed
part of
the
erf with
steep
slopes
on
all
sides
which
are part of the erf
It
appears
that there was some
attempt
to clear
the erf some
time ago
and
evidence
of
this
i
s
found
i
n
fallen
tree
stumps
on
the
property.
There is a healthy presence of trees
including saplings
on the
erf as
well as
substantial ground
vegetation,
which is
not
as
concentrated
in
the recessed
part of
the
erf
There
are
as
yet
no
building plans
for
the
erf The
foliage
occasioned
by
the
tops
of
the
trees
is
substantial
and provides
almost
total cove
r
for the erf
Erf
1
126
This
erf
of
approximately
600
square
metres
is
also
characterised
by
a recessed
centre
with slopes
on all sides,
though
not
as steep
as
those
on
erf 1124. The foliage covers a
substantial part of the erf but is not as extensive as that on Er/
1124. There is also reasonably
thick undergrowth on the property.
Erf
1127
This
e
r
f
of 580 square metres is like the other erven we saw located on a
recessed portion
of the site
with sloping from
the recessed
area to the upper
part
of the erf
Th
e
foliage
is not complete
in the coverage of
the
e
r
f
but is
substantial.
Erf
l
122
This
e
r
f
is located in an area that it quite high up on the site and is some
400 metres away
from
the outbuilding
site
that
supports
it.
Part
of
the e
r
f
is also located in
a recessed area
with steep slopes on all sides of the recess.
There
is
substantial
foliage
with
extensive
tree presence and
healthy
undercover
vegetation.
The
outbuilding
sites
As
indicated
all
of these
are
located
at some
distance from the
erven they
support.
The
path
between
the
outbuilding
sites
and
the
erven
is relatively
dense and in many instances required us to negotiate through thick
bush and
trees. In
particular the
path from
Erf
1124
(the
outbuilding
site for Erf
1122)
represented
a
steep
climb
of some
400
metres
over
terrain
that
was
reasonably
densely populated
with
trees and
undergrowth.
There
was
some
evidence
of
historical
clearing
of
the
erfs
at
the
site where
the
proposed development
will
occur;
as were
there a number
of
footpaths
leading
to
and
from
the
erven,
some more
overgrown
with encroaching vegetation
than
others.
The nature of the proceedings
4.
The matter comes before this court by way of review of
two decisions, the first taken by the fifth respondent to uphold an
appeal
against the grant of an application for environmental approval
granted by the fourth respondent and by doing so to effectively deny
the applicant an environmental authorisation (referred to hereinafter
as the 'DEDEAT Application') .
5.
The second decision which is the subject of the review is a
decision by the sixth and seventh respondents to refuse to grant the
applicant two forestry licences that it applied for which were
required in order to cut, disturb, damage or destroy indigenous
trees
in a forest (referred to hereinafter as the 'DAFF Application').
6.
Given that the factual background that underpins both reviews
is substantially the same in so far as it relates to the same land
and the same proposed development, it was convenient and expedient to
deal with both reviews together.
7.
Apart from the merits of the review being in dispute and
requiring adjudication, there are a number of interlocutory matters,
relating
in the main to the filing of further and supplementary
affidavits that are also in dispute.
The factual background
8. The applicant is the Long Beach
Homeowners Association ('the Association') which was created to serve
the owners of erven situated
in the Long Beach development, namely
Erven 1120, 1122, 1126, 1127, 1128 and 1123 Chintsa Township
Extension
1
as well as the remaining extent of Erf
1236,
which constitutes a private nature reserve.
9.
The land in question was the subject of various consolidations
and subdivisions that had as its consequence the amendment of the
town planning scheme by the Amatole Regional Services Council (the
predecessor of the first respondent) to create the seven erven
mentioned above as well as seven outbuilding erven and a nature
reserve. This occurred on the
23rd
of December
1993.
It
is common cause that the seven erven and the
outbuilding erven to which they relate are zoned residential while
the remaining extent
of Erf
1236
is zoned Open Space.
1
o.
There were various changes in the ownership of the property since
1993
but for present purposes it suffices to state that the seven
members of the Homeowners Association acquired ownership of the
property
in the period
201112012
during which time they gave attention to, and finalised, their plans
to develop Long Beach. In order to do this they required
environmental authorisation under the National Environmental
Management Act
107
of
1998
('NEMA'), read with the Environmental Impact Assessment
Regulations of
2010
('EIA').
11.
An
application in
this regard was submitted to the fourth respondent and was approved
on the
9th
of May
2013.
It
was
a substantive application to which various reports and studies were
attached including an Environmental Assessment Report, Site
Tree
Surveys, Boardwalk Routes and Designs, Sanitation Systems Report and
a Construction Environmental Management Plan.
12.
The fourth respondent granted the environmental authorisation
in the following terms and in addition, set out six significant
factors
it considered in doing so:
'The Department is satisfied,
on
the
basis
of
information
available
to it and
subject to
compliance
with the
conditions
of this
environmental
authorisation, that
[the
Long
Beach
Homeowners
Association]
should be
authorised
to
undertake
[the
construction
of
seven
single unit residences
and seven garages
on residential stands
in which some Erven 1126,
1127,
1128 and
1133 are
located
within
the
100
metre
high-water mark of the sea
and that
each house
will take up to 50% of each Erf]. '
The six significant factors that it
considered and took into account were described as follows:
1.
The negative impacts associated with the proposed development
can be adequately mitigated provided the conditions of this
environmental
authorisation are adhered to and fully implemented.
11.
Notwithstanding the fact that the site for the proposed
development falls within an environmentally sensitive area both in
terms
of the Coastal Environmental Management Framework and the
Eastern Cape Biodiversity Conservation Plan, the site identified for
this development is zoned as residential, and that a previous
approval was granted by the Department (albeit prior to the
promulgation
of NEMA, the EIA regulations, and the Integrated
Coastal Management Act).
i
i
i
.
While the no-go alternative will have the least impact
on the environment,
it
will not necessarily reduce the negative impacts emanating
from uncontrolled illegal activities such as poaching on the
proposed
development.
1v.
The proposed development is a small scale development with the
units being clustered within an already impacted area and with a
total extent of 1.8% of the area, the bulk of which will be used for
conservation purposes (nature reserve).
v.The proposed development is not in conflict with the Great Kei
Municipality's Development Framework.
vi.
Adequate opportunity was offered for the presentation of views
by all parties with significant economic, social, or environmental
interest.
13.
On the 28th of June 2013, the seventh to the tenth respondents
lodged an appeal against the fourth respondent's decision and in
support of the appeal, advanced various grounds including issues
relating to what they termed 'land use rights anomalies' and
'misplaced
zonation attribution'.
14.
It
was not in
dispute during the hearing of this application that the attack on the
validity of the land use rights could not have
formed the subject of
the appeal that was before the fifth respondent as those rights
acquired in terms of the Town Planning Scheme
continued to remain
valid until set aside and there was simply no attempt to challenge
their correctness and that neither the fifth
respondent nor this
Court, to the extent that there is no proper challenge to the grant
of such land use rights, was entitled to
entertain such a submission
.
(See
OUDEKRAAL
ESTATES (PTY) LTD
v
CITY
OF
CAPE
TOWN AND OTHERS
2004
(6) SA 222
(SCA)
15.
Over and above the land use issues, the seventh to the tenth
respondents raised environmental issues in support of their appeal
including the concerns about the impact of the proposed development
on the environment and sought to challenge and dispute many
of the
factors relied upon by the fourth respondent in support of its
decision.
16.
The applicant was invited to and responded in writing to the
internal appeal on the 28th of July 2013 and during this time the
sixth
respondent also intervened in the appeal and made submissions
opposing the granting of the environmental authorisation.
17.
On the 25th of June 2014, the fifth respondent upheld the
appeal which effectively overturned the environmental authorisation
granted
by the fourth respondent on the
9th
of May 2013. The fifth respondent provided the
following reasons in support of, and in justification of, his
decision :
1.
As a
point
of
departure,
it is
clear that the
site on
which the development is
proposed,
is
located
in
a
sensitive dune
forest
eco-system.
The Eastern
Cape
dune forest is
a
bio- diversity
conservation forest
type worthy of
protection.
Sensitive,
vulnerable,
dynamic or stressed
eco-systems
such
as coastal
shores
require
specific
attention. This site
falls
within this category, and this is an importan
t
factor
which
contributed i
n
persuading me
to
uphold the
appeal.
2.1
A
very
r
eal
risk
of
dune
slumping
and
erosion
resulting from the
development
activities
might
occur.
This
may
result
in
a
detrimental effect
on
the
environment
that
will
be
difficult,
if
not
impossible,
to reverse. Ample
evidence that dune
slumping and resulting erosion occur, can b
e
found
all along the dune
system along the east coast to the
north of
East
London.
2.2
The land on which
the development will take
place
is characterised
by
very
steep
slopes and a
sandy sub-strafe
with
a
corresponding
significant risk of dune slumping and erosion which commonly occur
in this particular coastal
area.
I
am
not
satisfied
that
this
risk
has
been adequately
mitigated, or
can
be
adequately
mitigated.
3.
The
site is
furthermore
located in
a
Coastal
Protection Zone as
described
in
the
National
Environmental
Management:
Integrated Coastal
Management Act 24 of 2008
. The
proposed
development will
in my view not
further
the objectives
of a Coastal
Protection
Zone,
as the development
is likely to have
an adverse
effect
on the sensitive
coastal
environment.
4.
The land in issue,
together
with
the adjacent State
land managed
by the Eastern
Cape Parks
&
Tourism
Agency, form
part
of an ecological
corridor which allows
for
the movement of
various animal
species along this particular
coastline.
This corridor
has already
been disturbed
by development in
this
area,
resulting
in
a proliferation
of
boardwalks
crossing
the
corridor.
Fragmentation is
a
serious
environmental
concern and the development is in my view likely to impact adversely
on this
ecological
corridor.
Further
adverse
impacts
on
the
eco-system along
this
coastline
should in
my
view
be
avoided,
in
line
with
the precautionary
principle
enunciated
in
NEMA
.
5.
Although
certain
areas
of the property
have
to some
extent
already been
adversely
impacted
on
by human
activity,
it
is
still
an
important refuge
for
a range of animal
species
and
birds. Despite
the
fact
that a portion of
the
land
has
been proclaimed as
a private nature
reserve (which
is
to be
welcomed) and that
the
proposed
residential
development
will
be of a limited scale,
the development
and the use of the
seven disposed
erven and associated infrastructure are likely to
have an
adverse ecological
impact on the fauna
an
d
flora
and on the
property
as
a
whole, which
constitutes a
significant area.
6.
The development
must be socially, environmentally and economically sustainable.
Environmental
management
must
also place
people and their
needs at the
forefront
of its concern.
The
proposed
development is in
my view not in the interests of the wider community,
but is
primarily in the
interest of the
select
number
of homeowners
who
belong
to
the applicant
's
Homeowners
Association. The
development will
not create a material number of jobs
and will therefore
benefit only a
privileged few. In
my
view
the
socio-economic
benefits
of
the proposed
development will
not be sufficient to outweigh the adverse environmental impact and
risks.
7.
There are a number
of uncertainties and
issues arising
from
the development proposals.
As
a result
of uncertainty
on a number
of issues, I
deem
it
again
appropriate
to
be further
precautionary
or
risk-averse. Some
of these issues which create
uncertainty
include th
e
following:
7.1
The
detailed layout for
individual erven is
not
sufficient and the footprint
of
all
structures to
be
erected is
unclear.
This
includes the dwelling,
access
boardwalk,
any pool/patio or
entertainment/braai
area and th
e
proposed
sewerage
system;
7.2
With
reference to
electricity
I
am
not
convinced
solar-panels will supply
sufficient
energy
without
significant
initial
clearing
of
the
forest canopy
[especially in
the
case
of
some erven},
whereafter the
canopy will have
to
be kept clear to allow sufficient
sunlight
to
reach the
panels. It
must
also
be
noted that
most
of
the
erven
are
currently
situated in depressions
in the sand
dune
system.
Dense
coastal
vegetation prevails, which may lead
to a need
for
additional
clearing
in
order
to ensure
that sufficient sunlight
reaches the
panels
for
a
longer
period.
Overhead power
lines
and underground
cables are
not an option as this will require significant
and
unacceptable
coasta
l
forest
destruction.
7.3 The
design
specifications
for
the boardwalks are
not
sufficiently
clear,
including
the spacing
of
support poles (excavation
into the
dune)
as well
as
the height
of
the boardwalk
above
the ground.
Whilst it could be
possible
to elevate
the boardwalks
to a height
that
will allow
animals such as Bushbuck
and
Blue Duiker
to traverse
the area, this
will still not negate
the adverse
impacts
of constructing
and
maintaining
boardwalks in an
environment
as
sensitive
as this;
7.4 Although I have
noted the assertion of the applicants that the proposed
residential units will not protrude above the
forest canopy, I
am not convinced that a possible negative visual impact and the
possible disturbance of the coastal landscape,
have been
adequately assessed and addressed;
7.
5
With reference
to storm water,
it is
proposed
that the
development
will
entail
rainwater
harvesting
to
minimise
storm
water
runoff,
but there
is
no
indication
what
will
occur
in
the
event
of
excess
rainfall,resulting
in the capacity of the rainwater tanks being exceeded.
If
this is not
managed properly,
it can
lead
to dune
saturation
and
subsequent dune
slumping. In this regard, I have been advised that the saturation of
sand
dune
lessens
the friction
between
the
sand particles,
resulting
in instability
and enhancing the risk of
dune slumping or
erosion;
7.
6
It
is
unclear
how
exactly
sewerage/grey
water
separation
will
be
managed.
If
the
intention
is to
use
septic
tanks, I
am
advised
that
the bacteria
which
enable
a
septic
tank
to function
properly in
terms
of breaking
down
the waste,
are
negative
impacted
upon
by many
of the detergents
used
for
domestic cleaning.
This can lead to
clogging of the septic tanks
and
subsequent
malfunction.
18.
The applicants have sought to review the fifth
respondent's decision of the 25th of June 2014 on a number of grounds
which, however
during argument, crystallised into three main grounds,
namely, the failure to adhere to the
audi
alteram partem
principle, that the decision was so unreasonable that no
reasonable decision-maker would take it, and finally, that there was
a
perception of bias in the manner by which the decision was arrived
at.
I will deal with these later in the
judgment.
Pertinent facts relevant
to the DAFF Application
19.
The
applicants submitted two applications to the sixth respondent in
terms of Section 7(1) of the National Forests Act 84 of 1998
('the
Forests Act') which provides that 'no person may cut, disturb, damage
or destroy any indigenous living tree in, or remove
or receive any
such tree from a natural forest except in terms of a license issued
...'
20.
The license application was linked to the proposed Long Beach
development in that there would be a need to disturb and/or remove
trees and vegetation in order to proceed with the proposed
development on the property.
21.
It
appears that various site visits took place attended by
representatives of the applicant and the sixth respondent, in part to
assess
the nature of the proposed development and its impact on the
forest.
22.
On the 1
oth
of
March 2014 the sixth respondent refused both applications and the
following reason was advanced in support of the refusal:
'Policy Principles and Guidelines
for
Control of
Development
Affecting
Natural
Forests
does
not
allow for the
distribution
of
natural forests save
for
projects
of national, provincial
or
local strategic significance, and
further,
whilst
section 3(3(a)
of the
National Forests Act allows
this
to
happen
'in
exceptional
circumstances' DAFF takes
the
view
that 'residential
development
is
not
considered to
be
an
exceptional circumstance' .
23. While it appears from the above that
the reason advanced was based solely on the interpretation of the
Policy Principles and
Guidelines, that no residential development
could constitute exceptional circumstances, it does appear
nevertheless that the merits
of the proposed application were indeed
considered by the sixth respondent. The joint site visits attest to
this and the nature
of the 'damage' to the forest which was the
subject of discussion in the site visits point strongly in the
direction that in declining
the application, reliance was not placed
solely on the policy guidelines, but on an assessment of the facts
relevant to the application.
24.
In seeking to review the decision of the sixth respondent, the
applicant seeks to rely on
Section 6(2)(e)(iii)
and Section 6(2)(d)
of the Promotion of Administrative Justice Act ('PAJA') in that it
contends that by simply concluding, based
on a policy, that
residential development could never constitute exceptional
circumstances it gave itself an impermissibly narrow
interpretation
of the Forests Act (irrelevant considerations taken into account and
relevant considerations not considered) and
that secondly it made an
error of law in concluding that Section 3(3)(a) was applicable. The
section deals with situations where
natural forests are destroyed and
it activates the exceptional circumstance principle which the
applicant contends was not relevant
as there was no destruction of
the forest contemplated.
25.
Before proceeding to deal with the issues m dispute
in respect of both applications there are a number of interlocutory
applications
that require adjudication.
Interlocutory
applications
•
In the DEDEAT application
26.
The applicant seeks leave to file a supplementary replying
affidavit. The fourth and fifth respondents oppose the application.
In
addition they take the stance that in the event the Court allows
the filing of the supplementary replying affidavit, they be given
leave to file an affidavit in opposition thereto. The applicant in
tum opposes any attempt by the fourth and fifth respondents
to file
an opposing affidavit to the supplementary replying affidavit.
27.
The need for a supplementary replying affidavit was
foreshadowed by the applicant in its replying affidavit when it
pointed out
that in response to the challenge by the fourth and fifth
respondents to the authority of Mr Rick Tudhope, the deponent to the
applicant's founding affidavit, they would, to the extent that it was
necessary, only be able to procure a signed resolution after
the time
for the filing of the replying affidavit had passed. The replying
affidavit was filed in December 2014 and the applicant's
reason for
not being in a position to file the necessary resolution at the time
was that many of its members were away during December.
28.
In addition another issue to be dealt with in the
supplementary replying affidavit was a response to the expert reports
relied upon
by the fourth and fifth respondents in their answering
affidavit which dealt with the question of dune slumping.
29.
My view is that the supplementary replying affidavit should be
admitted and in this regard the applicant was neither tardy nor
dilatory
in attempting to file it and the reasons for its late filing
were adequately explained in advance.
30.
The court obviously has a discretion in this regard and
according to
Erasmus Superior
Court Practice,
the most important factor to weigh upon a
court when exercising its discretion is fairness:
It
is essentially a question o
f
fairness
to
both sides as to whether or not
further
sets
of affidavits should
be
allowed.
There
should
in
each case be a
proper
and
satisfactory explanation which negatives mala
fides
or
culpable
remissness
as
to
the
cause
of
the
facts
or
information
not
having been
put
before
the court at an earlier stage, and the court must be satisfied
that
no prejudice is caused
by
the filing
of
the additional affidavits.
31.
The above quote from
Erasmus
Superior
Court Practice
pertains to ordinary litigation of an adversarial nature
where the court tries to achieve fairness between competing sides.
However
in applications of this nature the concept of fairness may
well extend beyond the interests of the parties to the extent that
the
environment and its protection may well be said to be an interest
that affects the public at large. The dominant concern in all
litigation concerning the environment is ultimately the environment
itself. In other words Courts must make decisions that are
not only
fair vis-a-vis the parties
inter
se
but
it must also make decisions that place it (the Court
qua
guardian of the environment via NEMA) in the best position to
produce a judgment that is fair and just given what will ultimately
best serve the environment and the general public who have the
constitutional right to enjoy it.
(See
MAGALIESBERG DEPARTMENT OF
PROTECTION ASSOCIATION v MEC: AGRICULTURE, CONSERVATION, ENVIRONMENT
&
RURAL DEVELOPMENT, NORTH WEST PROVINCIAL
GOVERNMENT
2013(3) All SA 416
(SCA)
.
32.
Given the nature of the dispute before this Court, fairness
and a proper ventilation of the issues must compel me in the
direction
of exercising my discretion in favour of the applicant in
admitting the supplementary replying affidavit. For the same reasons
and for the sake of completeness and affording all of the parties the
fullest opportunity to present their cases I will also
exercise
that same discretion in favour of the fourth and fifth respondents in
allowing their affidavit in response to the supplementary
replying
affidavit.
•
The
DAFF
application
33.
The applicants opposed the late filing of the sixth and
seventh respondents' answering affidavit.
It
appears that the parties had agreed that this affidavit
would have been filed by the 21st of November 2014.
It
was filed on the 10th of December 2014 and the sixth
and seventh respondents have brought an application for the
condonation of
its late filing. I made a ruling during the hearing of
the application to grant the application for condonation and to
reserve
the question of costs.
34.
The explanation for the lateness of the sixth and seventh
respondents' answering affidavit, which was some nineteen days
outside
of the time period agreed upon between the parties, was
essentially that the answering affidavit had to traverse the
applicant's
founding affidavit as well as two supplementary founding
affidavits all of which were, in total, in excess of eight hundred
and
fifty pages. In addition there were expert reports that required
consideration and a response.
35.
Given that exercising the discretion that is vested in me
requires me to ensure that the principle of fairness and affording
the
parties a full opportunity to present their case is honoured, I
granted the application for condonation to the extent that it was
fair to do so and would also ensure that in dealing with the
important matters that this application is concerned about, the
stance
of the sixth and seventh respondents as evidenced in their
answering affidavit, serves before the Court.
36.
In addition to the above the applicant also has sought leave
to file a supplementary replying affidavit in response to the
answering
affidavit of the sixth and seventh respondents. The sole
purpose that this affidavit sought to traverse was the number of
trees
that would need to be pruned or moved on Erf 1126 (the only erf
in respect of which building plans have been drawn and submitted
as
part of the application for environmental authorisation). This arose
out of the stance of the sixth and seventh respondents
in their
answering affidavit in disputing the extent of the tree damage and
removal which would be necessitated by the development.
37.
The supplementary replying affidavit accordingly seeks to
offer the evidence of a tree expert to deal with this aspect of the
dispute.
My view, for the reasons already given, is that the
supplementary replying affidavit should be allowed. There is a proper
explanation
for the inability of the applicants to submit this
information at the time of the filing of their replying affidavit and
it certainly
ensures that in adjudicating the dispute that has arisen
between the parties, there is every attempt, within the parameters
and
the spirit of the Rules of Court, to place before the Court all
relevant information which may have a bearing on the adjudication
of
the issues in dispute.
38.
For the very same reasons I would also make an order admitting
the sixth and seventh respondents' response to the supplementary
replying affidavit. In this regard the reserved costs should be costs
in the application.
The issues in dispute
•
The DEDEAT
a
pplication
A.
The challenge to the
locus
standi
of the a
pplica
nt
39.
The fourth and fifth respondents take the view that the
applicant does not have standing to bring this application and in
advancing
that, point out that the applicant is not the registered
owner of the properties in question - all are owned by individual
owners
who are not parties to the litigation and the relief which is
being sought relates to various individual erven not owned by the
applicant.
40.
In addition they contend that if regard is had to the
constitution of the applicant, which empowers the applicant 'to
institute
action out of any Court having jurisdiction for all or any
of the obligations and duties imposed upon members in terms hereof ,
these proceedings do not relate to any obligation imposed upon
members in terms of the applicant's constitution and therefore fall
outside the powers of the applicant.
41.
During argument, and while not conceding the challenge
to the applicant's
locus
standi,
Mr
Swanepoel accepted that these proceedings were brought in pursuit of
a constitutional right, namely the right to just administrative
action and that Section 38 of the Constitution created an enlarged
concept of standing where a constitutional right was sought
to be
protected .
42.
In
PHARMACEUTICAL
MANUFACTURERS
ASSOCIATION OF
SA:
IN
RE
EX PARTE PRESIDENT OF
THE
REPUBLIC OF
SOUTH
AFRICA
2000(2)
SA 674
(CC)
the Constitutional Court held that the control of public power
by the courts through judicial review is and has always been a
constitutional
matter. Our courts have consistently taken the view,
with which I fully associate myself, that where a constitutional
right is
sought to be protected, a broad and liberal approach to
standing must be adopted.
43.
In
FERREIRA
v
LEVIN
N.O.
AND
OTHERS
1
996
(1)
SA
984
(CC)
,
the Constitutional Court expressed itself clearly and
unambiguously in the following terms:
'Whilst
it
is
important
that
this
Court
should not
be
required to
deal with
abstract
or
hypothetical
issues,
and
should
devote
its scarce resources
to issues that are properly
before
it,
I
can see
no good
reason
for adopting
a
narrow
approach
to
the
issue
of
standing in constitutional
cases.
On the
contrary,
it is my view
that we should
rather adopt
a
broad
approach
to standing.
This would
be
consistent
with
the
mandate
given
to this
Court
to uphold
the
Constitution
and
would
serve to
ensure
that
constitutional
rights
enjoy
the
full
measure
of
the protection to which
they are
entitled.'
(at 10820-H).
44. In my view the applicant, which was
formed to manage the Long Beach development on behalf of individual
members including
making applications for environmental
authorisation and other approvals, sought to act in the interests of
and on behalf of its
members. The rights to just administrative
action which it seeks to assert in these proceedings on behalf of
the members of the
applicant are precisely the kind of rights
contemplated in Section 38 and to take any other approach would in
my view unduly
restrict the scope and spirit of Section 38.
45. I accordingly conclude that the
applicant has the necessary
locus standi
to bring these
proceedings and that the challenge of the fourth and fifth
respondents must fail
B.
The
challenge to the authority
of Mr Rick Tudhope
46.
While such a challenge was raised in the answering affidavit
of the fourth and the fifth respondents, the filing of a resolution
and power of attorney as part of the supplementary replying affidavit
effectively disposed of this challenge and it was not pursued
any
further.
C.
The review
grounds
•
The failure
by
the fifth
respondent
to
adhere to the principle
of
audi
alteram
partem.
47.
This ground of review forms the main thrust of the applicant's
challenge to the impugned decision of the fifth respondent. In broad
terms it argues that when the fifth respondent upheld the appeal, he
did so on substantially different grounds than were relied
upon by
the appellants and on which the applicants made a substantial
response after being invited to. To the extent that the fifth
respondent upheld the appeal on different grounds and raised new
concerns not previously raised, it is the case of the applicants
that
the principles of
audi
obliged the fifth respondent to share
the new grounds and concerns with them, invite them to respond
thereto and thereafter make
a decision. To the extent that the fifth
respondent did not do so, his decision falls to be reviewed.
48.
The stance of the fourth and fifth respondents on the other
hand is that the reasons advanced by the fifth respondent in
upholding
the appeal, substantially mirror the grounds of appeal
which the applicants had the opportunity to respond to and did do so
in
comprehensive terms and accordingly there was no need for the
fifth respondent to afford the applicants a further opportunity for
response and comment.
49.
There is of course a dispute as to whether the fifth
respondent's reasons and concerns mirror those raised in the appeal.
If
they do then there can be no substance to the challenge
of the applicant on this ground as it could hardly be contended with
any
force of persuasion that the applicant would have become entitled
to a further opportunity to make submissions on substantially
the
same grounds and concerns on which it had previously been invited to
do so.
50.
If
the concerns and grounds relied upon by the fifth respondent
do not substantially mirror the grounds of appeal and could be
considered
as new grounds, then the argument of the applicant becomes
more tenable. Accordingly what is required is a comparison of the
appeal
grounds and the fifth respondent's reasons and concerns to
determine the level of similarity, if any, between them.
51.
Before doing so however it may be opportune at this stage to
record that the appeal that was before the fifth respondent was an
appeal in the wide sense and therefore the fifth respondent was not
confined to the record of the body
a quo
but could embark on a
complete reconsideration of the merits. As I understand it, there is
no quarrel with the fifth respondent
in having raised the concerns
that he did - he was procedurally, at least, entitled to do so. The
complaint of the applicant is
that having done so he was obliged to
have afforded the applicant the opportunity to respond to those
concerns, in particular where
the concerns raised were substantially
different from the those raised by the appellants in the appeal. (See
TIKLY
v
JOHANNES
N.O.
1963 (2)
SA
588
(T).
52.
The comparative exercise between the grounds of appeal
and the fifth respondent's reasons and concerns:
I.
The fifth respondent found that there was a very real
risk of dune slumping and erosion that could result from the
proposed development
activities and was of the view that such risk
was not adequately mitigated nor could it be adequately mitigated.
It
appears that the concern around dune slumping was not
mentioned in the appeal. Mention was however made of 'dune
instability'
but this was only in relation to the proposed boardwalks
and not in relation to the houses and outbuildings to be
constructed.
Accordingly the applicant's stance is that it was
never required to address the real concern regarding dune slumping
which the
fifth respondent used as one of the reasons in support of
his decision.
II.
The fifth respondent in his reasons states that the proposed
development will not, in his view, further the objectives of a
Coastal
Protection Zone in terms of the
National Environmental
Management: Integrated Coastal Management Act 24 of 2008
. The
applicant alleges that no mention is made in the appeal of the
Integrated Coastal Management Act and therefore it did not
have an
opportunity to address same in its response to the appeal.
III.
The
fifth respondent in his reasons states that development forms part of
an ecological corridor which allows for movement of various
animal
species. Fragmentation is a serious environmental concern and the
development of the applicant is in the MEC's view likely
to impact
adversely on the ecological corridor. This was not mentioned in the
grounds of appeal and subsequently the applicant
did not have the
opportunity to address the fifth respondent in this regard.
IV.
The MEC in his reasons, is concerned about the impact of the
development and infrastructure on the fauna and flora and even
though
it will be on a limited scale the MEC came to the conclusion
that the development and the use of the seven disposed erven and
associated infrastructure, is likely to have an adverse ecological
impact on the fauna and flora and on the property as a whole.
The
applicant states in this regard that the impact on the fauna is only
addressed in the appeal insofar as the appellants took
the view that
a private nature reserve was not proclaimed. Given that such a
private nature reserve was in fact established,
there were no issues
pertaining to the impact on the fauna and flora that the applicant
was required to address and as such it
wasnot afforded the
opportunity to deal with the fifth respondent's concerns regarding
the impact of the proposped development
on the fauna and the flora.
v. The fifth respondent states in his
reasons that the development must be socially, environmentally and
economically sustainable
and that in his view, the socio-economic
benefits of the proposed development would not be sufficient to
outweigh the adverse
environmental impact and risks. The stance of
the applicant is that this was never raised in the appeal nor were
they required
to address and respond to this concern.
VI. Finally the fifth respondent raises
what he describes as a number of uncertainties on a number of issues
and they include:
a.
The lack of a sufficient detailed layout for the individual
erven setting out the footprint of all structures.
b.
Whether the solar-panels will supply sufficient energy taking
into consideration the forest canopy.
c.
That the design specifications of the boardwalks are not
sufficiently clear as well as the impact that the boardwalks will
have
on animals in regard to the animals' movement being possibly
obstructed by the boardwalks.
d.
The possibility
of negative visual impact of the residential units on the environment
and the possible disturbance of the coastal
landscape, has not been
adequately addressed.
e.
In relation to storm water and the proposal that rain water be
harvested in
tanks,
the
uncertainty
was
raised
that
in
situations
where
the
capacity
of
the
rainwater tanks
was
exceeded,
there
could be dune saturation
and
subsequently
dune slumping.
The nature
of these
concerns
and uncertainties
were
not raised
in the appeal to
which the applicant
was
invited to respond
and nor
was the applicant afforded
the
opportunity to
deal
with
them
at
any
other stage.
53.
A
cursory
comparison between
the
grounds of
appeal
and
the
concerns
and
reasons
advanced
by
the
fifth
respondent
will
immediately
suggest
that
many
of the
concerns
that
he
had
(which
may
well
have
constituted
valid
concerns)
were
not matters raised by the appellants and
therefore
the
applicant in
its
response to the appeal would not have addressed.
54.
In
addition
there
is
a
distinction
between
reasons
advanced
in
support
of
a
decision and concerns that
may
relate to matters that
are not properly addressed.
Simply
by
way
of
example
the
fifth
respondent
states
that
the detailed
layout
plan
is not
sufficient
and
the
footprint
of all structures
to
be erected
is
unclear.
He
also
raised
what
he
describes
as
uncertainties
on
a number
of
issues
which
relate
to
inter alia,
storm
water
and
sewerage.
An
uncertainty is precisely that -
it
suggests a lack of clarity or sufficient detail to
enable
the
decision-maker
to
apply
his/her mind and
make
a
decision.
It
certainly
is
capable of being
cured by
calling
for
additional
information
and
then
can be resolved
either
in favour of the party
who
seeks the authority
or
against it.
55.
It
is
clear
from
the
fifth
respondent's reasons
that
many of
the
uncertainties
remained
'uncertain' at
the
time
he
took
his
decisions
and
that
there
was
no
opportunity
afforded
to the
applicants
to
address
them,
if
they
could.
In
addition to the
uncertainties,
the other
reasons
advanced by the fifth
respondent
- insofar as they relate to dune slumping, the
adverse impact on the Coastal Protection Zone and the preservation of
the ecological
corridor, were not part of the appeal grounds and
constituted as it were, new matter which the fifth respondent was
certainly entitled
to, and indeed obliged to, consider.
55.
The question for determination however is, having identified
and raised these issues, whether he was under an obligation to afford
the applicant the opportunity to respond to them before making his
decision. It is common cause that he did not.
56.
It
was
argued by
Mr
Swanepoel that the obligation on the part of the fifth
respondent to invite the applicant to respond did not arise as there
was
substantial similarity between his reasons and the grounds of
appeal. I am unable to agree with this submission as the comparative
exercise above compellingly puts paid to that argument.
57.
It
is
common cause that the appeal that served before the fifth respondent
was an appeal in the wide sense which empowered the fifth
respondent
to effectively conduct a rehearing of the matter.
(See
SEA
FRONT
FOR
ALL AND ANOTHER
v
MEC
ENVIRONMENTAL
AND
DEVELOPMENT
PLANNING,
WESTERN
CAPE
AND OTHERS
2011 (3) SA 55
(WCC)
58.
In this regard it is clear
that he was not confined, in dealing with the appeal, to only
consider the issues raised by the appellants
but was entitled to go
outside of them and to consider other matters that would ultimately
have a bearing on his decision. In my
view this is precisely what he
did, which of course he was entitled to do. The question, however, is
having done so whether he
erred in not affording the applicant the
opportunity to respond to and deal with the new issues that had
arisen.
59.
In
SOKHELA
AND
OTHERS
v
MEC
FOR AGRICULTURE
AND ENVIRONMENTAL AFFAIRS (KWAZULU-NATAL) AND OTHERS
2010(5)
SA
574
(KZP)
the Court in dealing with the requirements of procedural fairness
and in particular
Section 3
(2)(b)(ii) of the
Promotion of
Administrative Justice Act 3 of 2000
, concluded that if the ultimate
decision maker 'does not disclose concerns that might lead him or her
to take an adverse decision,
no opportunity to make representations
has been given'.
60.
Clearly what the fifth respondent had identified as concerns
and as reasons to uphold the appeal were significantly different from
those that the applicants had been invited to respond to as part of
the appeal process. The difference in my view was of a significant
and substantial nature which had the effect of activating an
obligation on the part of the fifth respondent to invite the
applicant
to respond, more so to the numerous uncertainties, which by
their very nature would have triggered the call for more information
that could have had the effect of clearing the uncertainty. This also
did not happen.
The principles
that
a
pply
to
audi
61.
In
DOODY
v
SECRETARY OF STATE
FOR
THE HOME
DEPARTMENT AND
OTHER APPEALS
1
993 (3) All
ER
92
(HL)
the manner in which the principle of
fairness is to be exercised was explained as follows:
'What does fairness require
in
the present case?
My
Lords,
I
think
it
is unnecessary
to
refer by
name
or
to
quote
from,
any
of
the
often-cited authorities
in
which
the Courts
have explained what is
essentially
an intuitive
judgment.
They are
far too well
known.
From
them, I
derive
the following: (1)
Where
an
Act of
Parliament
confers an
administrative power
there
is a
presumption that it will
be
exercised
in a manner
which is
fair
in all
circumstances. (2)
The standards
of
fairness
are
not immutable.
They
may
change
with
the passage of
time,
both
in general and in
their application to decisions of a
particulartype. (3)
Theprinciples
of
fairness
are
not to be applied
by rote
identically
in every situation.
What fairness
demands
is
dependent
on
the
context
of
the decision,
and
this
is to
be
taken
into account
in all
its aspects.
(4) An essential feature
of
the
context
is
the
statute
which
creates
the discretion,
as regards
both
its language and
the shape of the legal and
administrative
system
within
which
the decision
is taken.
(5) Fairness will very often require
that a
person
who may be adversely affected
by
the
decision
will
have
an
opportunity
to
make
representations
on
his own behalf
either before the decision is taken with a view t
o
producing
a
favourable
result,
or
after it
is
taken,
with
a
view to procuring
its
modification, or both. (6)
Since the
person
affected usually cannot make worthwhile
representations
without
knowing
what factors may
weigh against
his
interests,
fairness
will often require
that he be
informed of the
gist of the case which he has to
answer.
'
62.
In the case of
MEC
FOR
ENVIRONAIENTAL
AFFAIRS
AND
DEVELOPMENT
PLANNING
v
CLAIR/SON'S
CC
(
408/2012)
[2013]
ZASCA
82
(31
May
2013)
the following is stated in regard to the
role of the functionary when making an administrative decision with
regard to the Court's
powers upon application of reviewing such a
decision:
'It bears repeating that a review is
not concerned with the correctness of
a decision
made
by a functionary, but
with
whether
he performed the function with
which
he
was
entrusted.
When the
law
entrusts
a
functionary
with
a
discretion
it
means just
that:
the
law
gives recognition to
the
evaluation
made by
the functionary
to
whom
the discretion is
entrusted,
and it
is
not
to
a
court
to
second-guess his evaluation.
The
role
of
the
court
is
no
more
than
to
ensure
that
the decision-maker
has
performed
th
e
function
with which he was entrusted.
Clearly the
court
below,
echoing
what
was
said
by
Clairisons,
was
of the view
that the
factors
we
have
referred
to ought
to have
counted
in
favour
of
the application, whereas the
MEC weighed them against it, butthat is to question the
correctness of the MEC 's
decision, and not whether he
performed
the function with which he was entrusted.'
63.
On this aspect I must accordingly conclude that on what is
before me, the fifth respondent was obliged to afford the applicant
the
opportunity to respond to the reasons and concerns he had
identified and that he intended to rely on in upholding the appeal.
His
failure to do so effectively deprived the applicant of its right
to
audi
and they may well have, as they have sought to
demonstrate, allayed many of his fears and addressed the
uncertainties and concerns
he had. I hasten to add that I do not seek
to conclude that they would have convinced him otherwise - what was
required was the
opportunity to so.
64.
For this reason alone the application must succeed as in my
view there was no reasonable opportunity afforded to the applicant to
make representations to the fifth respondent on the concerns he had
before making the decisions that he did.
The unreasonableness argument
65.
The argument that the decision was so unreasonable that no
reasonable person would take it is not sustainable. The reasons
advanced
by the fifth respondent in upholding the appeal, if valid,
certainly on the face of it, appear to be reasonable having regard to
the duty to protect the environment and the connection between the
reasons advanced in support of the decision and the concerns
pertaining to the proposed development and its adverse impact on the
environment. I am of the view that no proper case has been
advanced
in support of this ground of review.
The
perception
of
bias
66.
The basis for the attack encompassed in this ground
is an email by the tenth respondent (who was an appellant in the
internal appeal)
addressed to the fifth respondent which reads as
follows:'
Dear Mcebisi -
If
I may take liberties with your name for old time 's
sake.
I am writing to you to
request your help with ensuring action on the process of the
development occurring on the banks of the
Chintsa East River where I
now have the great good fortune to live. It is a most beautiful
pristine area with birds, including
eagles, otters, leguaans,
monkeys etc etc.
Sadly
a few months ago I woke up to a tractor on the other side of the
river clearing vegetation and now a fence is going up along
it.
There has been vigorous reaction from people and Forestry and DEAT
and DWAF have been here and found several environmental
transgressions, including the fact that forestry has opened a case
against the developers. But unfortunately the developers just
pushes
on.
I
am attaching a document which sets all this out. I feel strongly that
it needs to stop completely until it is all sorted out
in terms of
the law. And yes I know I am acting in my own interests but I can
honestly say that it is mainly in terms of the environment.
I
am meeting Mr Briant Nnncembu this afternoon, and I would be most
grateful
-
if
you
agree with my
take on this issue
-
for
your
assistance.
Before
all this I was hatching another plan for overall development in
Kyalitsha, Chintsa 's subeconomic area and am about to
do a survey
so I may be knocking on your door again soon.
Yours sincerely,
apologetically, humbly, hopefully etc Trudy (Thomas)
67.
Whatever the intention of the tenth respondent was in penning
the e-mail, there is no evidence that the fifth respondent acted upon
it or was influenced
by
it in
coming to the conclusion that he did. One imagines that
decision-makers are in all likelihood prevailed upon from various
quarters and parties to decide a matter in a particular fashion. That
in itself can hardly constitute a basis for arguing that
there was
bias or the perception of bias. In
S
v
ROBERTS
1999
(4) SA 915
(SCA) the Court in
summarising the test for bias concluded that the suspicion that the
decision-maker might be biased had to rest
on reasonable grounds. In
my view the existence of the e-mail to which reference has been made
cannot satisfy the requirement that
reasonable grounds exist for the
suspicion that the applicant states the e-mail in question triggers.
Even if such a suspicion
could be said to arise out of the e-mail,
which in any event I have doubts about, it remains at best highly
speculative and I would
accordingly not consider this ground of
review as having any substance .
The remedy
68.
I was initially urged by the applicant, in the event
I
concluded that a proper case for review was made out,
to substitute the decision of the fifth respondent with that of the
Court
and in doing so to dismiss the appeal. However it is clear, and
this emerged during argument, that such an option may well have
been
justified if
I
upheld
the review based on the unreasonableness argument and/or the
perception of bias argument. Having concluded that those grounds
of
review are not sustainable and the review having succeeded on the
basis of the failure to adhere to the principle of
audi
alterem partem,
the argument for the Court to
substitute the decision of the fifth respondent with that of the
Court loses its potency.
My view is that the Court is not as well qualified as the fifth
respondent to make the decision and in addition there are many
concerns that would require an opportunity for the applicant to
respond to before a decision is taken that would preclude the Court
from taking on this role.
(See
COMPETITION COMMISSION
v
GENERAL
BAR COUNCIL
2002 (6) SA 606
and
FOODCORP
v
DG
ENVIROMENT
2006
(2)
SA
1
99
(C).
69. My view is that the appropriate
remedy is to set aside the decision of the fifth respondent, refer
the matter back to his office,
direct that an opportunity be given to
the applicant to respond to the concerns the fifth respondent has
(which may not necessarily
be limited to those set out in his letter
and reasons for upholding the appeal) and that following such a
process, the fifth respondent
applies his mind to the matter and
makes a decision on the appeal.
The DAFF review
70.
It
is not in dispute that the grant of environmental
approval would have necessitated an application in terms of the
National Forests
Act No 84 of 1998 ('the Forests Act') to the extent
that the development contemplated some damage or destruction to
indigenous
trees.
71.
The Forests Act sets out a comprehensive list of principles
that should guide decisions affecting forests, it being common cause
that the land in question is a natural forest.
Section 3(a) -
'Natural forests must
not
be destroyed
save
in
exceptional circumstances where, in
the
opinion
of
the
Minister, a
proposed
new land
use
is preferable in
terms
of its economic,
social
or
environmental benefits.'
Section 7(1) -
'No
person
may
cut,
disturb,
damage
or
destroy
any
indigenous
living
tree
in, or remove
or
receive
any such
tree
from,
a natura
l
forest except in
terms
of-
(a)
A
licence issued under subsection
(4) or section
23; or
(b)
An
exemption from the provision
of
this subsection published
by the Minister
in the Gazette on the advice of the Council.'
72.
There is a dispute between the parties as to whether Section
3(a) has application, the stance of the applicant being that the
proposed
development will not lead to the destruction of the forest
and therefore Section 3(a) is not applicable.
73.
The stance of the sixth and seventh respondents however is
that the development will of necessity require the removal of
indigenous
trees and that given the nature of an ecosystem as
constituting a group of living organisms and their relationship with
each other
and the environment, a conservative approach is necessary
and that the word 'destroy' should enjoy a wide meaning as opposed to
a narrow one as contended for.
74.
The word 'destroy' is not defined in the Forests Act and while
generally it denotes a state of destruction or the bringing to an
end
of the existence of something (see South African Concise Oxford
Dictionary), there may be merit in the suggestion that in the
context
of a natural forest, it may require a different meaning relative to
the context. However, whatever the position may ultimately
be , it
does appear that in order to determine whether or not Section 3(a) is
applicable, a factual enquiry with clear information
with regard to
both the proposed development and its impact on the natural forest
which should include the number of trees that
will be uprooted (and
replanted if needs be), and the number of trees that will require
pruning and cutting, will be necessary.
In the absence of this
information, it becomes speculative to make an assessment as to
whether a proposed development will result
in the destruction of a
natural forest and whether this would then activate the principle as
set out in Section 3(a) of the Forests
Act.
75.
The original license application submitted by the applicant in
terms of Section 7
(1)
of the
Forests Act was dated the 6th of December 2013 and was confined to
'pruning, delimbing or in any other way damage forest
trees'.
It
was sought in respect of all of the residential erven,
including the boardwalks and garages that would from part of the
development.
The relevant section of the application form that would
require details of the proposed pruning or delimbing states that 'The
trees
have been previously pruned and require further pruning to
allow for access' and in response to the question as to the number of
trees affected, the answer given is 'numerous'.
76.
It
does
appear however that trees will have to be removed and certainly in
the case of Erf 1126, it is envisaged that some six trees
will have
to be removed. The applicant has undertaken that all trees so removed
will be replanted under the supervision of the
sixth respondent.
There is no further information with regard to the nature and extent
of the damage to trees or their possible
removal in so far as it
relates to the garage site for Erf 1126 as well as the route which
will provide access from the garage
site to the residential erf .
77.
The garage site is some distance away from the residential erf
and the route is generally covered by trees and vegetation. Some
clearing, and possibly removal of trees, must be contemplated in
respect of these additional areas but the scope and extent thereof
is
not clear.
78.
All of the above only relates to Erf 1126 where there are
building plans that have been developed. The situation in so far as
it
relates to the other erven in respect of which the Section 7(1)
license is applied for is unclear as there are no plans for such
erven and accordingly it would be impossible to quantify the effect
of any proposed development on the vegetation and indigenous
trees.
79.
It
is
this lack of detail, both in respect of Erf 1126 (in particular the
garage site and the access route from the garage site to
the
residential erf) that prevents a proper quantification from taking
place with regard to any possible forest destruction and
the related
question as to whether Section 3(a) is triggered.
80. The applicant, in its supplementary
replying affidavit, now takes the stance that they only seek a
license in respect of Erf
1126 (where there are plans for the
proposed home). From this it would be reasonable to conclude that
they no longer persist with
the licenses they sought in respect of
all of the other erven and the relief they sought consequent upon the
refusal by the sixth
respondent to grant those licenses.s1.
81. The difficulty in the stance of the
applicant in this regard is multi-pronged:
i.
It
suggests that an application in terms of Section 7(1) can
be dealt with separately in time for each proposed residential
development.
I am not sure if this is possible given the
interconnectedness of the development and the manner in which there
is a proposed
linkage between all the erven.
ii
In addition, and in dealing with the effect of the proposed
development on the natural forest, it becomes extremely difficult to
assess whether there will be destruction of the forest on a
piece-meal basis. Ultimately this was seen as a single development
and it is the impact of the totality of the development that will
determine the footprint of the development in general and
in
specific the number of trees affected (removed, pruned or delimbed).
iii.
The absence of any detail makes such an assessment an
impossible task.
iv.
In addition and while the notice of motion was not amended to
seek the relief now being sought only in respect of Erf 1126, the
lack of detail in respect of the garage site and the connection
between garage and residence present their own difficulties.
82.
Under these circumstances where the nature of the
relief sought has appeared to change and even in respect of the
'amended' relief
there appears to continue to be areas of uncertainty
in respect of the damage to the natural forest, to conclude that the
sixth
and seventh respondents' decision to refuse the license
applications in respect of all of the erven, would not be justified
simply
by reference to the facts to which reference has been made. In
this regard and for the reasons already given, I am not satisfied
that it could be said that sixth and seventh respondents erred in
relying exclusively on the policy position that a residential
development could never constitute exceptional circumstances. The
engagement between the parties and the dispute that developed
around
the scope and nature of the impact of the development suggests
compellingly that regard was indeed given to the merits of
the
application. In addition, and for the reasons given, the continuing
uncertainty with regard to the number of trees that will
be affected
by the development in its entirety must all stand in the way of a
proper assessment as to whether Section 3(a) is applicable
as well as
the scope of the license sought in terms of Section 7(1) . Given the
linkage between the license process in terms of
the Forests Act and
the environmental authorisation which the fifth respondent will be
seized with, there may well be further detail
and clarity provided
with regard to the proposed development which could resolve some of
these difficulties.
83.
It
may
well be onerous to require each prospective homeowner to develop
detailed plans for the development on their property. On the
other
hand something less than detailed plans may well suffice. The nature
of the proposed development and its impact is what the
applicants are
required to place before the sixth respondent and it may appear that
this has happened in respect of Erf 1126 only.
84.
Under the circumstances, I would not be inclined for the
reasons already given to grant the relief sought in this part of the
application.
My view, further, is that no order should be made with
regard to costs given that the applicant was ultimately seeking to
protect
a right enshrined in the Constitution and that its stance in
advancing the application was well-intentioned. This is not a case
where an adverse costs order is justified.
Order
85.
In the circumstances I would make the following order:
In the DEDEAT
application
I.
The
decision of the fifth respondent of the 25
th
of June 2014 upholding the appeal of the seventh to
the tenth respondents is reviewed and set aside.
II.
The matter is referred back to the fifth respondent to
consider the appeal afresh and in doing so the fifth respondent
is
directed to afford the applicant the opportunity to address
him on any concerns and uncertainties he may have regarding the
appeal and which may not necessarily be confined to the reasons,
concerns and uncertainties the fifth respondent provided
in his
decision of the
25th
of
June
2014.
Ill.
The fourth and the fifth respondents are ordered to pay
the costs of the applicant, including the costs of senior counsel,
in respect
of this part of the review.
In respect of the DAFF
Application
i.
The application is dismissed
ii.
No
order is made as to costs.
N KOLLAPEN
JUDGE
OF THE HIGH
COURT OF
SOUTH AFRICA
28064/2014
HEARD
ON:
25, 26, 27
&
28
January
2016
FOR
THE APPLICANTS: ADV. K HOPKINS
INSTRUCTED
BY: BOUWER KOBEL! MORABE ATTORNEYS
FOR THE
4
th
&
5
th
RESPONDENTS: ADV. M G SWANEPOEL SC
INSTRUCTED BY: THE STATE ATTORNEY (EAST LONDON)
FOR THE
3
rd
,
6
th
,
7
th
&
12
th
RESPONDENTS: ADV.
G BOFILATOS SC
INSTRUCTED BY: THE STATE ATTORNEY
(PRETORIA)