Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others (CCT67/06) [2007] ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007)

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[2007] ZACC 13
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Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others (CCT67/06) [2007] ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
67/06
[2007]
ZACC 13
FUEL RETAILERS
ASSOCIATION OF
SOUTHERN
AFRICA Applicant
versus
DIRECTOR-GENERAL
ENVIRONMENTAL
MANAGEMENT, DEPARTMENT
OF AGRICULTURE,
CONSERVATION AND
ENVIRONMENT,
MPUMALANGA PROVINCE
First
Respondent
MEC DEPARTMENT OF
AGRICULTURE,
CONSERVATION AND
ENVIRONMENT,
MPUMALANGA PROVINCE
Second Respondent
DEPARTMENT OF
AGRICULTURE,
CONSERVATION AND
ENVIRONMENT,
MPUMALANGA PROVINCE
Third Respondent
MINISTER OF WATER
AFFAIRS AND
FORESTRY

Fourth Respondent
REGIONAL DIRECTOR,
DEPARTMENT
OF WATER AFFAIRS AND
FORESTRY Fifth Respondent
MEC DEPARTMENT OF
TRANSPORT AND PUBLIC
WORKS, MPUMALANGA
PROVINCE Sixth Respondent
MBOMBELA LOCAL
MUNICIPALITY Seventh Respondent
SOPHIA
LEKEISANG INAMA NO Eighth Respondent
MATEBOGO
MARIA INAMA NO Ninth Respondent
PODUDU OWEN INAMA
NO Tenth Respondent
ARCHIBALD INAMA
NO Eleventh Respondent
LOWVELD MOTORS (PTY)
LTD Twelfth Respondent
Heard on : 6 March
2007
Decided on : 7 June
2007
JUDGMENT
NGCOBO J:
Introduction
This application for leave to appeal against the decision of the
Supreme Court of Appeal concerns the nature and scope of the
obligations of environmental authorities when they make decisions
that may have a substantial detrimental impact on the environment.
1
In particular, it concerns the interaction between social and
economic development and the protection of the environment. It
arises out of a decision by the Department of Agriculture,
Conservation and Environment, Mpumalanga province (the Department),
the third respondent, to grant the Inama Family Trust (the Trust)
2
authority in terms of section 22(1) of the Environment Conservation
Act, 1989 (ECA)
3
to construct a filling station on a property in White River,
Mpumalanga (the property).
Section 22(1)
of ECA forbids any person from undertaking an activity that has
been identified in terms of section 21(1) as one
that may have a
substantial detrimental impact on the environment without written
authorisation by the competent authority.
4
It was not disputed that the MEC Agriculture, Conservation and
Environment, Mpumalanga, (the MEC) the second respondent, is
the
competent authority designated by the Minister.
5
Before authorisation can be granted, a report concerning the
impact of the proposed development on the environment must be

furnished. The relevant authority has a discretion to grant or
refuse such authorisation. In granting it, the relevant authority
may impose such conditions as may be necessary to ensure the
protection of the environment.
Section 21(1)
of ECA empowers the Minister of Environmental Affairs and Tourism
(the Minister) to identify activities which in
his or her opinion
may have a substantial detrimental effect on the environment.
6
Subsection (2) sets out some of these activities and they include
land use and transformation.
7
In Schedule 1 of GN R1182, dated 5 September 1997, the Minister
identified the activities that may have a substantial detrimental
effect on the environment. These include the construction or
upgrading of “transportation routes and structures, and
manufacturing,
storage, handling or processing facilities for any
substance which is dangerous or hazardous and is controlled by
national legislation”.
8
It is common cause that the construction of a filling station
falls within this category and thus requires the authorisation
contemplated in section 22(1) of ECA.
The decision
to grant or refuse authorisation in terms of section 22(1) of ECA
must be made in the light of the provisions of
the National
Environmental Management Act, 1998 (NEMA).
9
One of the declared purposes of NEMA is to establish principles
that will guide organs of state in making decisions that may
affect
the environment. One of these principles requires environmental
authorities to consider the social, economic and environmental
impact of a proposed activity including its “disadvantages and
benefits”.
10
The Fuel
Retailers Association of Southern Africa (incorporated in terms of
section 21 of the Companies Act), the applicant, challenged
the
decision to grant authorisation in the Pretoria High Court on
various grounds. However, the only ground that concerns us
in this
application is that the environmental authorities in Mpumalanga had
not considered the socio-economic impact of constructing
the
proposed filling station, a matter which they were obliged to
consider. In resisting the application on this ground the
Department contended that need and desirability were considered by
the local authority when it decided the rezoning application
of the
property for the purposes of constructing the proposed filling
station. Therefore it did not have to reassess these

considerations.
The High Court
upheld the contention of the Department and dismissed the
application. So did the Supreme Court of Appeal. Hence
this
application for leave to appeal.
The
Director-General, Environmental Management in the Department, the
first respondent, as well as the Department and the MEC
are
opposing the application. For convenience they are referred to as
the environmental authorities. The Trust represented
by its
trustees and Lowveld Motors (Pty) Ltd are also opposing the
application.
11
Factual
background
During July
2000, the Trust, through an environmental consultant firm, Globecon
Environmental Management Services (Globecon),
applied to the
Department for authorisation to construct a filling station on the
property in terms of these provisions.
12
A scoping report, a geotechnical and geohydrological report (the
Geo3 report) were submitted in support of the application.
13
The scoping report dealt with, among other matters, socio-economic
factors and the presence of an aquifer in the property.
In
addition, the scoping report contained an evaluation of the impact
of the proposed filling station, identified certain areas
of
concern and proposed recommendations to address these concerns.
Under the
heading “Socio-Economic Components”, the scoping report
referred to the implications of the proposed filling station
for
noise, visual impacts, traffic, municipal services, safety and
crime, and cultural and historical sites. It also dealt with
the
feasibility of the proposed filling station and stated that—
“
Various other locations do
exist for the proposed development, as the positioning of a filling
station is dictated by traffic flow,
visibility, availability of
land and the location of other filling stations in the area.
As the proposed filling station
is directly targeting traffic moving between White River, Hazyview
and the Numbi Gate of the Kruger
National Park, a specific location
along the said route was identified. Once the site was identified a
feasibility study was done
based on locating the filling station at
the specific site. Once the feasibility of the filling station on
the specific site was
identified, and the availability of the
property was confirmed, no other options were considered.”
One of the
issues identified in the report as requiring attention was the
protection of an existing aquifer, a significant clean
groundwater
resource below the surface of the property. In the past this
aquifer had been used to augment the water supply in
White River.
The report noted that the aquifer needed protection from pollution.
The report recommended that the water quality
of the aquifer
through the borehole should be tested bi-annually. It proposed
that if the Department of Water Affairs and Forestry
(Water Affairs
and Forestry) required it, an impermeable layer should be installed
in the base of the pit to ensure that no contaminants
from the
tanks reach the aquifer. In addition, it recommended that a
reconciliation programme should be in place to detect any
leakage.
These recommendations were made in the light of the Geo3 report.
The applicant,
through its environmental consultants, Ecotechnik, objected to the
construction of the proposed filling station
on several grounds,
one being that the quality of the water in the aquifer might be
contaminated. Ecotechnik submitted an evaluation
report which
criticised the consideration of alternatives to the development as
being vague and non-specific and pointed out
that “demand and
activity alternatives were not investigated.” The report also
took issue with the manner in which the public
participation
process had been conducted, pointing out that there were interested
persons who had not had the opportunity to
express their views on a
proposed filling station that might affect them.
There was a
further exchange of reports by the opposing consultants which dealt
with the adequacy or otherwise of the proposed
measures for the
prevention of the contamination of the aquifer.
14
In the light of these reports and in particular, the existence of
the aquifer, the Department referred the Geo3 report together
with
the objections raised by the applicant to Water Affairs and
Forestry for comment.
In a very
brief response, Water Affairs and Forestry accepted the Geo3 report
and, on the issue of underground water, required
“[t]he proposed
developer [to] ensure that no pollution of the groundwater . . .
take[s] place. And [that it] must be monitored
as set out in the
report and in accordance [with] all the relevant Regulations as set
out by the Dept of Water Affairs and Forestry.”
Nothing was said
about the installation of an impermeable layer, which according to
the scoping report was to be installed if
Water Affairs and
Forestry required this. However, it subsequently transpired that
the Water Quality Management and Water Utilization
divisions of
Water Affairs and Forestry had neither received nor commented on
the Geo3 report.
The
application was considered in the first instance by Mr Hlatshwayo,
the Deputy-Director in the Department. On 9 January 2002
authorisation was granted over the objection of the applicant. A
record of decision was issued, which contained the decision
and
conditions upon which authorisation was granted. This decision
authorised the construction of a filling station, three fuel
tanks,
a convenience store, a canopy, ablution facilities and driveways
providing access to and from the nearby streets. The
record of
decision was signed by Dr Batchelor, the Director of Environmental
Management in the Department.
One of the
conditions of the authorisation was that the necessary permits or
approvals must be obtained from other government
departments such
as Water Affairs and Forestry. The record of decision sets out
“key factors” which presumably influenced
the decision. It
noted that the property had “been rezoned from ‘special’ to
‘Business 1’” and that all identified
and perceived impacts
were satisfactorily dealt with in the scoping report.
The applicant
lodged an appeal against this decision. One of the grounds of
appeal was that the need, desirability and sustainability
of the
proposed filling station had not been considered. It was alleged
that this aspect was not addressed in the scoping report
submitted
by Globecon. It was also pointed out that the proposed filling
station was within a radius of five kilometres from
six other
filling stations that adequately served the needs of the community.
The applicant alleged that there had recently
been a decline in
the growth of fuel consumption in White River. The viability of
existing filling stations would be affected
and this had been
exacerbated by the introduction of three new filling stations in
the area.
In support of
its ground of appeal based on need and desirability, the applicant
relied on the Gauteng Provincial Government Guidelines
(Gauteng
Guidelines)
15
which were developed by the Gauteng province to ensure that its
responsibilities in respect of the protection of the environment
are carried out in an efficient and considered manner. One of the
general guidelines provides that new filling stations will
generally not be approved where they will be “within three (3)
kilometres of an existing filling station in urban, built-up
or
residential areas”.
16
This limitation on the distance between filling stations was
influenced by international experience, views of interested persons
and the legislative obligations under ECA and NEMA.
17
A further
ground of appeal related to the inadequacy of the Geo3 report
concerning measures to prevent fuel leaks. The applicants
submitted a report by De Villiers and Cronje, a firm of consulting
engineering geologists, which evaluated the Geo3 report and
expressed the following opinion—
“
It is . . . highly probable
that the residual granitic material at the level of the fuel tanks
will have geo-mechanical properties
that could be conducive to the
spread of petro-chemical pollution into the underlying major aquiver
should a leak occur in the
fuel tanks. This could then contaminate
the aquiver system beyond further utilization.”
It concluded that—
“
It is therefore of the
greatest importance that, in the absence of detail[ed] soil test
results of all the sub-surface material
at and below the level of
the fuel tanks, the current and future value and intended
utilization of the water from the aquiver be
evaluated. (as well as
the presence of any other water borehole situated on the same
aquiver).”
The appeal was
considered and dismissed by Dr Batchelor. It is not clear how Dr
Batchelor could have considered the appeal as
he had signed the
record of decision. No point was taken in this regard and nothing
more need be said about this issue. The
reasons for dismissal are
very scanty, and they are recorded in a letter. In relation to
need, desirability and sustainability
of the proposed filling
station the letter states that these matters had been considered by
the local authority.
The review
proceedings
The applicant
subsequently launched proceedings in the High Court, seeking an
order reviewing and setting aside the decision to
grant
authorisation. The applicant alleged that its cause of action arose
from section 36 of ECA,
18
alternatively the common law, alternatively the Promotion of
Administrative Justice Act, 2000 (PAJA).
19
The decision
to grant authorisation was attacked on eleven grounds. One of the
grounds was the failure to take into consideration
or to properly
consider the requirements of need, desirability and sustainability
in relation to the proposed filling station,
and another, the
failure to obtain the recommendations of Water Affairs and Forestry
in view of the existence of the aquifer.
As pointed out earlier,
the only ground of review persisted with in this Court is the one
relating to need, desirability and
sustainability. It is therefore
this ground only that need concern us.
Both Dr
Batchelor and Mr Hlatshwayo deposed to affidavits explaining how
they dealt with the application. Their evidence is substantially
to the same effect. It amounts to this: need and desirability are
factors that are considered by the local authority when it
approves
the rezoning of a property for the purposes of erecting a proposed
development. As Mr Hlatshwayo put it, the requirements
of need and
desirability must be considered by the local authority whenever
applicants apply for the rezoning of land under the
Town-Planning
and Townships Ordinance, 1986 (the Ordinance).
20
The Department does not reconsider these factors. It is
sufficient for an applicant for authorisation to state that the
property
has been rezoned for the construction of the proposed
development. And if there is no reason to doubt this, based on
this statement,
the Department will “. . . accept that need and
desirability has indeed been considered by the Local Councils . . .
.”
Ms Muller, a
town planner, who specialises in the lodging of applications for
the rezoning of properties for filling stations,
confirmed this
practice. She accepted that environmental issues must be
addressed, but added that it “. . . is not necessary
nor
desirable to duplicate functions between the Local Council and the
different Departments of Agriculture, Conservation and
Environment
of the different provinces.” In the instant case, she has no
personal knowledge of the information that was placed
before the
town-planning authorities or of the decision that was made by the
town-planning authorities in relation to need and
desirability. In
short, the environmental authorities did not themselves consider
need and desirability nor did they check to
consider whether it was
in fact dealt with by the local authority.
It is
necessary to pause here to explain the phrase “need, desirability
and sustainability”. The parties referred to this
phrase when
they were referring to socio-economic considerations. This phrase
does not appear in ECA or NEMA. However, the
phrase “need and
desirability” is used in Schedule 7 of the Regulations
promulgated under the Ordinance.
21
It is one of the factors that the local authority is required to
consider when approving the rezoning of a property. It is
this
factor which the environmental authorities contended must be
considered by the local authority in the context of an application
for authorisation under section 22(1) of ECA. Having regard to the
provisions of ECA and NEMA, the proper reference must be
to
socio-economic considerations. Whether the phrase “need and
desirability” in Schedule 7 bears the same meaning as
socio-economic
considerations in the context of ECA and NEMA is an
issue that is dealt with later in this judgment.
22
The decision of
the High Court
The High Court
upheld the submission of the environmental authorities that the
question of need, desirability and sustainability
are matters that
must be considered by the local authority when an application for
rezoning is made and that it is unnecessary
for the environmental
authorities to consider these factors. It held that the practice
of leaving the consideration of need
and desirability to the local
authority is consistent with the principle of intergovernmental
co-ordination and harmonisation
of policies, legislation and
actions relating to the environment.
23
Having found that there was no merit in the other grounds either,
the High Court dismissed the application with costs, but granted
the applicant leave to appeal to the Supreme Court of Appeal.
The decision of
the Supreme Court of Appeal
The Supreme
Court of Appeal accepted that socio-economic considerations are a
relevant consideration when making decisions under
section 22 of
ECA. Indeed, it accepted that the environment may “. . . be
adversely affected by unneeded, and thus unsustainable,
filling
stations that become derelict . . . ”.
24
However, it found that there was no evidence to suggest that there
was a possibility of this happening.
Like the High
Court, the Supreme Court of Appeal upheld the practice of the
environmental authorities of leaving the consideration
of need,
desirability and sustainability to the local authority. It
reasoned that the local authority has an obligation to consider
need, desirability and sustainability when making a rezoning
decision. The responsibility of the environmental authorities is
to apply its mind to the question whether need and desirability had
been addressed by the local authority. This they can do
by having
regard to the fact that rezoning had taken place and accepting that
need and desirability was therefore considered
by the local
authority during the rezoning stage unless the rezoning decision is
challenged, reasoned the Supreme Court of Appeal.
It accordingly
concluded that having regard to the local authority’s obligation,
when considering an application for rezoning
to consider need,
desirability and sustainability, the environmental authorities had
applied their mind to socio-economic considerations.
In reaching
its conclusion, the Supreme Court of Appeal had regard to the fact
that the rezoning decision was not subject to
attack and that there
was no evidence that circumstances had subsequently changed.
Having found
that there was no merit in the other grounds of review, the Supreme
Court of Appeal dismissed the appeal with costs.
Hence the present
application for leave.
Issues presented
In this Court,
the applicant contended that the environmental authorities
themselves were obliged to consider the socio-economic
impact of
constructing the proposed filling station. The applicant submitted
that this obligation is wider than the requirement
to assess the
need and desirability of the proposed filling station under the
Ordinance. This obligation requires the environmental
authorities
to assess, among other things, the cumulative impact on the
environment brought about by the proposed filling station
and all
existing filling stations that are in close proximity to the
proposed one. This in turn required the environmental authorities
to assess the demand or necessity and desirability, not
feasibility, of the proposed filling station with a view to
fulfilling
the needs of the targeted community, and its impact on
the sustainability of existing filling stations. The applicant
relied
upon the provisions of section 24(b)(iii) of the
Constitution,
25
as well as sections 2(4)(a),
26
2(3), 2(4)(g), 2(4)(i),
27
23
28
and 24
29
of NEMA.
The
environmental authorities accepted that the socio-economic impact
of the proposed filling station had to be considered. However,
they contended that, consistently with the practice that is
followed in Mpumalanga, need and desirability of the proposed
filling
station was considered by the local authority when it
considered the rezoning of the property. They submitted that it
was therefore
not necessary for them to reconsider these factors.
In support of this contention they relied upon section 56 of the
Ordinance
30
read with Schedule 7 of the Regulations
31
promulgated under the Ordinance.
32
The environmental authorities submitted that rezoning forms part
and parcel of the process of an application for authorisation
in
terms of section 22 of ECA.
The applicant
took issue with the submission that rezoning is part and parcel of
the application for authorisation in terms of
section 22 of ECA.
The applicant submitted that the two processes are distinct and
separate. The local authority considers
an application for
rezoning from a town-planning perspective. It focuses, in
particular, on what land uses it will allow on
a particular piece
of land and is constrained by the applicable law to consider
whether there is a need for the proposed land
use and whether it is
desirable. By contrast, the environmental authorities are required
to consider the impact of the proposed
development on the
environment and socio-economic conditions.
The applicant
also drew attention to the fact that the rezoning relied upon by
the environmental authorities had taken place approximately
eight
years prior to the application for authorisation in terms of
section 22 of ECA. It submitted that since the rezoning

application was approved, there had been significant changes in the
environment, including the construction of three new filling
stations in the area.
It is
therefore common cause that in considering an application for
authorisation under section 22 of ECA, the environmental

authorities were obliged to consider the socio-economic impact of
the proposed filling station. The environmental authorities,
however, equate the need and desirability requirement under the
Ordinance with the requirement to consider the social, economic
and
environmental impact of a proposed filling station. The questions
which fall to be considered in this application are therefore,
firstly, the nature and scope of the obligation to consider the
social, economic and environmental impact of a proposed
development;
second, whether the environmental authorities complied
with that obligation; and, if the environmental authorities did not
comply
with that obligation, the appropriate relief.
Before
addressing these issues, it is necessary to consider two
preliminary matters. The first is the proper cause of action
in
this application. The other is whether the application raises a
constitutional matter, and if so, whether it is in the interests
of
justice to grant leave to appeal.
The
proper cause of action
In the
founding affidavit, the applicant alleged that the review
proceedings were being brought under section 36 of ECA,
33
alternatively the common law, alternatively PAJA.
Neither
the Supreme Court of Appeal nor the High Court considered the
proper cause of action. They approached the matter on the
footing
that there was an overlap in the grounds of review under the common
law, ECA and PAJA. It is apparent that the decision
of this Court
in
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Others
was not drawn to the attention of the courts
below.
34
By the time the matter reached this Court, however, the applicant
had made up its mind; it relied on PAJA, in particular, on
subsections 6(2)(b), 6(2)(e)(iii) and 6(2)(i).
35
It is necessary to address this issue and put in context the
provisions of section 36 of ECA which make provision for a person
aggrieved by a decision made under ECA to approach a high court for
review.
In
Bato
Star
this Court held that “[t]he cause of action for the
judicial review of administrative action now ordinarily arises from
PAJA,
not from the common law as in the past.”
36
Section 36 of ECA does no more than to provide for the review of
decisions of environmental authorities. The grounds upon which
decisions under ECA may be reviewed are those set out in PAJA. The
clear purpose of PAJA is to codify the grounds of review
of
administrative action. The fact that section 36 of ECA allows a
person whose interests are affected by a decision of an

administrative body under ECA to approach the High Court for
review, does not detract from this. The provisions of section 36
must therefore be read in conjunction with PAJA which sets out the
grounds on which administrative action may now be reviewed.
It is not in
dispute that the decision by the environmental authorities to grant
authorisation under section 22 of ECA is administrative
action
within the meaning of PAJA. It is a decision which was taken by an
organ of state in the performance of a public function
in terms of
ECA. The environmental authorities did not contend otherwise. The
applicant seeks to review the decision of the
environmental
authorities on three grounds. Firstly, the environmental
authorities failed to comply with a mandatory material
procedure or
condition prescribed by ECA (subsection 6(2)(b)). Secondly, in
granting the authorisation, the environmental authorities
took into
account irrelevant considerations and failed to consider relevant
considerations (subsection 6(2)(e)(iii)). Thirdly,
the decision by
the environmental authorities is otherwise unconstitutional and
therefore unlawful (subsection 6(2)(i)).
There is a
significant overlap in these grounds. In the course of oral
argument it became clear that the main ground of attack
was that
the environmental authorities failed to consider the impact of the
proposed filling station on socio-economic conditions,
a matter
which they were required to consider. The central question in this
application therefore is whether the environmental
authorities
failed to take into consideration matters that they were required
to consider prior to granting the authorisation
under section 22(1)
of ECA.
Does the
application raise a constitutional issue?
Section 24 of
the Constitution guarantees to everyone the right to a healthy
environment and contemplates that legislation will
be enacted for
the protection of the environment.
37
ECA and NEMA are legislation which give effect to this provision
of the Constitution. The question to be considered in this
application is the proper interpretation of the relevant provisions
of ECA and NEMA and, in particular, the nature of the obligations
imposed by these provisions on the environmental authorities. The
proper interpretation of these provisions raises a constitutional
issue. So, too, does the application of PAJA. It follows
therefore that the present application raises a constitutional
issue.
Is it in the
interests of justice to grant leave to appeal?
This case
raises an important question concerning the obligation of state
organs when making decisions that may have a substantial
impact on
the environment. In particular, it concerns the nature and scope
of the obligation to consider socio-economic conditions.
The need
to protect the environment cannot be gainsaid. So, too, is the
need for social and economic development. How these
two compelling
needs interact, their impact on decisions affecting the environment
and the obligations of environmental authorities
in this regard,
are important constitutional questions. In these circumstances, it
is therefore in the interests of justice
that leave to appeal be
granted to consider these issues.
In order to
put the issues involved in this case in context and to evaluate the
cogency of the constitutional challenge, it is
necessary to
understand both the constitutional and the legislative frameworks
for the protection and management of the environment.
The relevant
constitutional provision
The
Constitution deals with the environment in section 24 and proclaims
the right of everyone—
“
(a) to an environment that
is not harmful to their health or well-being; and
(b) to have the environment
protected, for the benefit of present and future generations,
through reasonable legislative and other
measures that—
(i) prevent pollution and
ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically
sustainable development and use of natural resources while promoting
justifiable economic and social development.”
Sustainable development
What is
immediately apparent from section 24 is the explicit recognition of
the obligation to promote justifiable “economic
and social
development”. Economic and social development is essential to
the well-being of human beings.
38
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.
39
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 environmental
destruction.
The environment and development are thus inexorably
linked. And as has been observed—
“
[E]nvironmental stresses and
patterns of economic development are linked one to another. Thus
agricultural policies may lie at
the root of land, water, and forest
degradation. Energy policies are associated with the global
greenhouse effect, with acidification,
and with deforestation for
fuelwood in many developing nations. These stresses all threaten
economic development. Thus economics
and ecology must be completely
integrated in decision making and lawmaking processes not just to
protect the environment, but also
to protect and promote
development. Economy is not just about the production of wealth,
and ecology is not just about the protection
of nature; they are
both equally relevant for improving the lot of humankind.”
40
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 and economic development. It contemplates
the
integration of environmental protection and socio-economic
development. It envisages that environmental considerations will
be balanced with socio-economic considerations through the ideal of
sustainable development. This is apparent from section 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.
The concept of
sustainable development in international law
Sustainable
development is an evolving concept of international law. Broadly
speaking its evolution can be traced to the 1972
Stockholm
Conference. That Conference stressed the relationship between
development and the protection of the environment, in
particular,
the need “to ensure that development is compatible with the need
to protect and improve [the] environment for the
benefit of their
population”.
41
The principles which were proclaimed at this conference provide a
setting for the development of the concept of sustainable
development.
42
Since then the concept of sustainable development has received
considerable endorsement by the international community.
43
Indeed in 2002 people from over 180 countries gathered in our
country for the Johannesburg World Summit on Sustainable
Development
(WSSD) to reaffirm that sustainable development is a
world priority.
44
But it was the
report of the
World Commission on Environment and
Development (the Brundtland Report)
45
which “coined” the term “sustainable development”.
46
The Brundtland Report defined sustainable development as
“development that meets the needs of the present without
compromising
the ability of future generations to meet their own
needs”.
47
It described sustainable development as—
“
[i]n essence . . . a process
of change in which the exploitation of resources, the direction of
investments, the orientation of
technological development; and
institutional change are all in harmony and enhance both current and
future potential to meet human
needs and aspirations”.
48
This report
argued for a merger of environmental and economic considerations in
decision-making
49
and urged the proposition that “the goals of economic and social
development must be defined in terms of sustainability”.
50
It called for a new approach to development - “a type of
development that integrates production with resource conservation
and enhancement, and that links both to the provision for all of an
adequate livelihood base and equitable access to resources.”
51
The concept of sustainable development, according to the report,
“provides a framework for the integration of environment[al]
policies and development strategies”.
52
The 1992 Rio
Conference made the concept of sustainable development a
central feature of its Declaration.
53
The Rio Declaration is especially important because it reflects a
real consensus in the international community on some core
principles of environmental protection and sustainable
development.
54
It developed general principles on sustainable development and
provided a framework for the development of the law of sustainable
development.
55
At the heart
of the Rio Declaration are Principles 3 and 4. Principle 3
provides that “[t]he right to development must be fulfilled
so as
to equitably meet developmental and environmental needs of present
and future generations.” Principle 4 provides that
“[i]n order
to achieve sustainable development, environmental protection shall
constitute an integral part of the development
process and cannot
be considered in isolation from it.” The idea that development
and environmental protection must be reconciled
is central to the
concept of sustainable development.
56
At the core of this Principle is the principle of integration of
environmental protection and socio-economic development.
Commentators
on international law have understandably refrained from attempting
to define the concept of sustainable development.
Instead they
have identified the evolving elements of the concept of sustainable
development.
57
These include the integration of environmental protection and
economic development (the principle of integration); sustainable
utilisation of natural resources (the principle of sustainable use
and exploitation of natural resources); the right to development;
the pursuit of equity in the use and allocation of natural
resources (the principle of intra-generational equity); the need to
preserve natural resources for the benefit of present and future
generations (the principle of inter-generational and
intra-generational
equity); and the need to interpret and apply
rules of international law in an integrated systematic manner.
58
The principle
of integration of environmental protection and development reflects
a—
“
. . . commitment to
integrate environmental considerations into economic and other
development, and to take into account the needs
of economic and
other social development in crafting, applying and interpreting
environmental obligations.”
59
This is an
important aspect of sustainable development because “its formal
application requires the collection and dissemination
of
environmental information, and the conduct of environmental impact
assessments.” (Footnote omitted.)
60
The practical significance of the integration of the environmental
and developmental considerations is that environmental
considerations
will now increasingly be a feature of economic and
development policy.
61
The principle
of integration of environmental protection and socio-economic
development is therefore fundamental to the concept
of sustainable
development.
62
Indeed economic development, social development and the protection
of the environment are now considered pillars of sustainable
development. As recognised in the WSSD, States have assumed—
“
. . . a collective
responsibility to advance and strengthen the interdependent and
mutually reinforcing pillars of sustainable development
- economic
development, social development and environmental protection - at
the local, national, regional and global levels.”
63
The concept of
sustainable development has received approval in a judgment of the
International Court of Justice. This much appears
from the
judgment of the International Court of Justice in
Gab
č
íkovo-Nagymaros
Project (Hungary/Slovakia)
where the Court held—
“
Throughout the ages, mankind
has, for economic and other reasons, constantly interfered with
nature. In the past, this was often
done without consideration of
the effects upon the environment. Owing to new scientific insights
and to a growing awareness of
the risks for mankind—for present
and future generations—of pursuit of such interventions at an
unconsidered and unabated pace,
new norms and standards have been
developed, set forth in a great number of instruments during the
last two decades. Such new
norms have to be taken into
consideration, and such new standards given proper weight, not only
when States contemplate new activities
but also when continuing with
activities begun in the past. This need to reconcile economic
development with protection of the
environment is aptly expressed in
the concept of sustainable development.”
64
The
integration of economic development, social development and
environmental protection implies the need to reconcile and
accommodate
these three pillars of sustainable development.
Sustainable development provides a framework for reconciling
socio-economic
development and environmental protection. This role
of the concept of sustainable development as a mediating principle
in reconciling
environmental and developmental considerations was
recognised by Vice-President Weeramantry in a separate opinion in
Gab
č
íkovo-Nagymaros
,
when he said—
“
The Court must hold the
balance even between the environmental considerations and the
development considerations raised by the respective
Parties. The
principle that enables the Court to do so is the principle of
sustainable development.”
65
It is in the
light of these developments in the international law of environment
and sustainable development that the concept
of sustainable
development must be construed and understood in our law.
The
concept of sustainable development in our law
As in
international law, the concept of sustainable development has a
significant role to play in the resolution of environmentally
related disputes in our law. It offers an important principle for
the resolution of tensions between the need to protect the
environment on the one hand, and the need for socio-economic
development on the other hand. In this sense, the concept of

sustainable development provides a framework for reconciling
socio-economic development and environmental protection.
Sustainable
development does not require the cessation of socio-economic
development but seeks to regulate the manner in which
it takes
place. It recognises that socio-economic development invariably
brings risk of environmental damage as it puts pressure
on
environmental resources. It envisages that decision-makers guided
by the concept of sustainable development will ensure that
socio-economic developments remain firmly attached to their
ecological roots and that these roots are protected and nurtured
so
that they may support future socio-economic developments.
NEMA, which
was enacted to give effect to section 24 of the Constitution,
embraces the concept of sustainable development. Sustainable
development is defined to mean “the integration of social,
economic and environmental factors into planning, implementation
and decision-making for the benefit of present and future
generations”.
66
This broad definition of sustainable development incorporates two
of the internationally recognised elements of the concept
of
sustainable development, namely, the principle of integration of
environmental protection and socio-economic development,
and the
principle of inter-generational and intra-generational equity. In
addition, NEMA sets out some of the factors that are
relevant to
decisions on sustainable development. These factors largely
reflect international experience. But as NEMA makes
it clear,
these factors are not exhaustive.
67
One of the key
principles of NEMA requires people and their needs to be placed at
the forefront of environmental management −
batho pele
.
68
It requires all developments to be socially, economically and
environmentally sustainable. Significantly for the present case,
it requires that the social, economic and environmental impact of a
proposed development be “considered, assessed and evaluated”
and that any decision made “must be appropriate in the light of
such consideration and assessment”.
69
This is underscored by the requirement that decisions must take
into account the interests, needs and values of all interested
and
affected persons.
Construed in
the light of section 24 of the Constitution, NEMA therefore
requires the integration of environmental protection
and economic
and social development. It requires that the interests of the
environment be balanced with socio-economic interests.
Thus,
whenever a development which may have a significant impact on the
environment is planned, it envisages that there will
always be a
need to weigh considerations of development, as underpinned by the
right to socio-economic development, against environmental
considerations, as underpinned by the right to environmental
protection. In this sense, it contemplates that environmental

decisions will achieve a balance between environmental and
socio-economic developmental considerations through the concept of
sustainable development.
To sum up
therefore NEMA makes it abundantly clear that the obligation of the
environmental authorities includes the consideration
of
socio-economic factors as an integral part of its environmental
responsibility.
70
It follows therefore that the parties correctly accepted that the
Department was obliged to consider the impact of the proposed
filling station on socio-economic conditions. It is within this
context that the nature and scope of the obligation to consider
socio-economic factors, in particular, whether it includes the
obligation to assess the cumulative impact of the proposed filling
station and existing ones, and the impact of the proposed filling
station on existing ones. But first what are the relevant
provisions of NEMA?
The relevant
provisions of NEMA
The provisions
of NEMA which are relevant to this case and which were relied upon
by the applicant are those that contain the
national environmental
management principles, the general objectives of integrated
environmental management and those that deal
with the
implementation of these principles and objectives. The national
environmental management principles that are relevant
in this case
are those contained in sections 2(2), 2(3), 2(4)(g) and 2(4)(i).
The principles contained in these provisions,
require that:
“
Environmental management
must place people and their needs at the forefront of its concern,
and serve their physical, psychological,
developmental, cultural
and social interests equitably.”
71
“
Development must be
socially, environmentally and economically sustainable.”
72
“
Decisions must take into
account the interests, needs and values of all interested and
affected parties, and this includes recognising
all forms of
knowledge, including traditional and ordinary knowledge.”
73
“
The social, economic and
environmental impacts of activities, including disadvantages and
benefits, must be considered, assessed
and evaluated, and
decisions must be appropriate in the light of such consideration
and assessment.”
74
Section 23
which sets out the general objectives of integrated environmental
management, proclaims as one of those objectives,
the objective to—
“
identify, predict and
evaluate the actual and potential impact on the environment,
socio-economic conditions and cultural heritage,
the risks and
consequences and alternatives and options for mitigation of
activities, with a view to minimising negative impacts,
maximising
benefits, and promoting compliance with the principles of
environmental management set out in section 2 . . . .”
75
Section 24,
76
which deals with the implementation of the general objectives of
integrated environmental management, provides that—
“
In order to give effect to
the general objectives of integrated environmental management laid
down in this Chapter, the potential
impact on—
the environment;
socio-economic conditions;
and
the cultural heritage,
of activities that require
authorisation or permission by law and which may significantly
affect the environment, must be considered,
investigated and
assessed prior to their implementation and reported to the organ of
state charged by law with authorising, permitting,
or otherwise
allowing the implementation of an activity.”
77
The principles
of NEMA that have been relied upon by the applicant must be
understood in the context of the role of these principles
in
decisions affecting the environment, the general objectives of
integration of environmental management and the procedures
for the
implementation of the NEMA principles.
NEMA
principles “apply . . . to the actions of all organs of state
that may significantly affect the environment”.
78
They provide not only the general framework within which
environmental management and implementation decisions must be
formulated,
79
but they also provide guidelines that should guide state organs in
the exercise of their functions that may affect the environment.
80
Perhaps more importantly, these principles provide guidance for
the interpretation and implementation not only of NEMA but any
other legislation that is concerned with the protection and
management of the environment.
81
It is therefore plain that these principles must be observed as
they are of considerable importance to the protection and

management of the environment.
Apart from
these principles, NEMA contemplates the integration of
environmental management activities and to this extent it outlines
the general objectives of integrated environmental management.
Section 23 of NEMA sets out these general objectives. These
include the objectives to promote the integration of the national
environmental management principles into decisions that may
significantly affect the environment;
82
and to identify, predict and evaluate actual and potential impact
on the environment, socio-economic conditions and cultural
heritage.
83
Their apparent purpose is to minimise the negative impact on the
environment and socio-economic conditions and to promote compliance
with the principles of environmental management.
84
The general
objectives of integrated environmental management are furthered by
section 24 which deals with the implementation
procedures. These
require, among other things, that the potential impact on the
environment, socio-economic conditions and cultural
heritage of
activities that require authorisation under section 22(1) of ECA
and which may significantly affect the environment
“must be
considered, investigated and assessed prior to their implementation
and reported upon to the organ of state charged
by law with
authorising . . . the implementation of an activity”.
85
To underscore the importance of this requirement, subsection 24(7)
requires that any investigation “must, as a minimum”
investigate the potential impact, including the cumulative effects
of the proposed development on the environment, socio-economic
conditions and cultural heritage.
86
The provisions of section 24(7) must of course be read and
understood in the light of the regulations that the Minister is

empowered to make concerning the scope and the contents of reports
that must be submitted for authorisation required by section
22(1)
of ECA.
Against this
background, I now turn to consider the nature and the scope of the
obligation to consider socio-economic conditions.
The nature and
the scope of the obligation to consider socio-economic conditions
The nature and
the scope of the obligation to consider the impact of the proposed
development on socio-economic conditions must
be determined in the
light of the concept of sustainable development and the principle
of integration of socio-economic development
and the protection of
the environment. Once it is accepted, as it must be, that
socio-economic development and the protection
of the environment
are interlinked, it follows that socio-economic conditions have an
impact on the environment. A proposed
filling station may affect
the sustainability of existing filling stations with consequences
for the job security of the employees
of those filling stations.
But that is not all; if the proposed filling station leads to the
closure of some or all of the existing
filling stations, this has
consequences for the environment. Filling stations have a limited
end use. The underground fuel
tanks and other infrastructure may
have to be removed and land may have to be rehabilitated.
Apart from
this, the proliferation of filling stations in close proximity to
one another may increase the pre-existing risk of
adverse impact on
the environment. The risk that comes to mind is the contamination
of underground water, soil, visual intrusion
and light. An
additional filling station may significantly increase this risk and
increase environmental stress. Mindful of
this possibility, NEMA
requires that the cumulative impact of a proposed development,
together with the existing developments
on the environment,
socio-economic conditions and cultural heritage must be assessed.
87
The cumulative effect of the proposed development must naturally
be assessed in the light of existing developments. A consideration
of socio-economic conditions therefore includes the consideration
of the impact of the proposed development not only in combination
with the existing developments, but also its impact on existing
ones.
This approach
to the scope of the obligation to consider socio-economic
conditions is consistent with the concept of sustainable
development under our legislation. In this regard it is necessary
to refer to some of the principles of NEMA to illustrate the
point.
First, NEMA
requires all developments to be socially, economically and
environmentally sustainable. Unsustainable developments
are in
themselves detrimental to the environment. This is particularly
true of developments contemplated in section 21 of ECA,
that is,
developments that may have substantial detrimental impact on the
environment, such as a filling station. The proliferation
of
filling stations poses a potential threat to the environment. This
threat arises from the limited end-use of filling stations
upon
their closure.
88
The proliferation of filling stations may ultimately lead to the
closure of one or some of the existing filling stations. The
filling station infrastructure that lies in the ground may have an
adverse impact on the environment. As observed by the Supreme
Court of Appeal, “[t]he environment may well be adversely
affected by unneeded, and thus unsustainable, filling stations that
become derelict . . . .”
89
The inherent danger in the proliferation of filling stations has
led some governments to impose restrictions not only on where
filling stations may be constructed, but also on the distance
between filling stations.
90
Second, NEMA
requires that environmental authorities place people and their
needs at the forefront of their concern so that environmental
management can serve their developmental, cultural and social
interests.
91
The continued existence of development is essential to the needs
of the population, whose needs a development must serve. This
can
be achieved if a development is sustainable. The collapse of a
development may have an adverse impact on socio-economic
interests
such as the loss of employment. The very idea of sustainability
implies continuity. It reflects a concern for social
and
developmental equity between generations, a concern that must
logically be extended to equity within each generation. This
concern is reflected in the principles of inter-generational and
intra-generational equity which are embodied in both section
24 of
the Constitution and the principles of environmental management
contained in NEMA.
92
It is,
therefore, not enough to focus on the needs of the developer while
the needs of the society are neglected. One of the
purposes of the
public participation provision of NEMA is to afford people the
opportunity to express their views on the desirability
of a filling
station that will impact on socio-economic conditions affecting
them.
93
Indeed, if a development is to serve the developmental needs of
the people, the impact of new developments on existing ones
is a
legitimate concern.
Third, NEMA
requires the consideration, assessment and evaluation of the
social, economic and environmental impact of proposed
activities.
This requires the assessment of the socio-economic benefits and
disadvantages of proposed activities.
94
This clearly enjoins the environmental authorities to consider and
assess the impact of a proposed activity on existing socio-economic
conditions which must of necessity include existing developments.
Any doubt on this score is removed by section 24(7)(b), which
requires an “investigation of the potential impact, including
cumulative effects, of the activity and its alternatives on .
. .
socio-economic conditions . . . and assessment of the significance
of that potential impact . . . .”
95
Subsection 23(2)(b) is to the same effect. One of the objectives
of integrated environmental management is to identify the
actual
and potential impact on the environment and socio-economic
conditions in order to minimise negative impacts. ECA, too,
contemplates that the environmental impact report will include “an
estimation of the nature and extent of the effect of the
activity .
. . on the social and economic interests.”
96
What must be
stressed here is that the objective of considering the impact of a
proposed development on existing ones is not to
stamp out
competition; it is to ensure the economic, social and environmental
sustainability of all developments, both proposed
and existing
ones. Environmental concerns do not commence and end once the
proposed development is approved. It is a continuing
concern. The
environmental legislation imposes a continuing, and thus
necessarily evolving, obligation to ensure the sustainability
of
the development and to protect the environment. As the
International Court of Justice observed—
“
in the field of
environmental protection, vigilance and prevention are required on
account of the often irreversible character of
damage to the
environment and of the limitations inherent in the very mechanism of
reparation of this type of damage.”
97
There are two
points that must be stressed here. First, the Constitution, ECA
and NEMA do not protect the existing developments
at the expense of
future developments. What section 24 requires, and what NEMA gives
effect to, is that socio-economic development
must be justifiable
in the light of the need to protect the environment. The
Constitution and environmental legislation introduce
a new
criterion for considering future developments. Pure economic
factors are no longer decisive. The need for development
must now
be determined by its impact on the environment, sustainable
development and social and economic interests. The duty
of
environmental authorities is to integrate these factors into
decision-making and make decisions that are informed by these
considerations. This process requires a decision-maker to consider
the impact of the proposed development on the environment
and
socio-economic conditions.
Second, the
objective of this exercise, as NEMA makes it plain, is both to
identify and predict the actual or potential impact
on
socio-economic conditions and consider ways of minimising negative
impact while maximising benefit. Were it to be otherwise,
the
earth would become a graveyard for commercially failed
developments. And this in itself poses a potential threat to the
environment. One of the environmental risks associated with
filling stations is the impact of a proposed filling station on
the
feasibility of filling stations in close proximity. The assessment
of such impact is necessary in order to minimise the
harmful effect
of the proliferation of filling stations on the environment. The
requirement to consider the impact of a proposed
development on
socio-economic conditions, including the impact on existing
developments addresses this concern.
Finally NEMA
requires “a risk averse and cautious approach” to be applied by
decision-makers.
98
This approach entails taking into account the limitation on
present knowledge about the consequences of an environmental
decision.
This precautionary approach is especially important in
the light of section 24(7)(b) of NEMA which requires the cumulative
impact
of a development on the environmental and socio-economic
conditions to be investigated and addressed. An increase in the
risk
of contamination of underground water and soil, and visual
intrusion and light, for example, are some of the significant
cumulative
impacts that could result from the proliferation of
filling stations. Subsection 24(7)(b) specifically requires the
investigation
of the potential impact, including cumulative
effects, of the proposed development on the environment and
socio-economic conditions,
and the assessment of the significance
of that potential impact.
99
What was
required of the environmental authorities therefore was to consider
the impact on the environment of the proliferation
of filling
stations as well as the impact of the proposed filling station on
existing ones. This conclusion makes it plain that
the obligation
to consider the socio-economic impact of a proposed development is
wider than the requirement to assess need and
desirability under
the Ordinance. It also comprehends the obligation to assess the
cumulative impact on the environment of the
proposed development.
What remains
to be considered now is whether the environmental authorities
complied with this obligation.
Did the
environmental authorities comply with their obligations under NEMA?
It is common
cause that the environmental authorities themselves did not
consider need and desirability. They took the view that
these were
matters that must be “proven, argued and considered by the Local
Council” when an application for rezoning is
made in terms of
section 56 of the Ordinance. As Dr Batchelor put it, these “ . .
. are town-planning factors which are taken
into consideration by
the Local Councils whenever they are confronted with an application
for the change of land use either in
terms of Section 56 of the . .
. Ordinance . . . or an application in terms of the
Development
Facilitation Act of 1995
.”
There is a
fundamental flaw in this approach. Need and desirability are
factors that must be considered by the local authority
in terms of
the Ordinance. The local authority considers need and desirability
from the perspective of town-planning and an
environmental
authority considers whether a town-planning scheme is
environmentally justifiable. A proposed development may
satisfy
the need and desirability criteria from a town-planning perspective
and yet fail from an environmental perspective.
The local
authority is not required to consider the social, economic and
environmental impact of a proposed development as the
environmental
authorities are required to do by the provisions of NEMA. Nor is
it required to identify the actual and potential
impact of a
proposed development on socio-economic conditions as NEMA requires
the environmental authorities to do.
The
environmental authorities assumed that the duty to consider need
and desirability in the context of the Ordinance imposes
the same
obligation as the duty to consider the social, economic and
environmental impact of a proposed development as required
by the
provisions of NEMA. They were wrong in that assumption. They
misconstrued the nature of their obligations under NEMA
and as a
consequence failed to apply their minds to the socio-economic
impact of the proposed filling station, a matter which
they were
required to consider. This fact alone is sufficient to warrant the
setting aside of the decision.
But there are
further considerations which militate against the decision of the
environmental authorities. According to the environmental
authorities, once an applicant for authorisation indicates that the
property has been rezoned for the purposes for which it is
intended
to be used, the environmental authorities “accept that the need
and desirability has indeed been considered by the
Local Council”
in accordance with the town-planning legislation. Their
obligation, as they see it, is to apply their mind
to the question
of whether the property on which the proposed filling station is to
be constructed has been rezoned for that
purpose and from the fact
of rezoning, they conclude that need and desirability aspects have
been addressed.
By their own
admission therefore the environmental authorities did not consider
need and desirability. Instead they relied upon
the fact that (a)
the property was rezoned for the construction of a filling station;
(b) a motivation for need and desirability
would have been
submitted for the purposes of rezoning; and (c) the town-planning
authorities must have considered the motivation
prior to approving
the rezoning scheme. Neither of environmental authorities claims
to have seen the motivation, let alone read
its contents. They
left the consideration of this vital aspect of their environmental
obligation entirely to the local authority.
This in my view is
manifestly not a proper discharge of their statutory duty. This
approach to their obligations, in effect,
amounts to unlawful
delegation of their duties to the local authority. This they
cannot do.
It is clear
that the environmental authorities misconstrued what was required
of them by NEMA. They considered that they did
not have to take
into account socio-economic considerations as required by NEMA.
NEMA required the environmental authorities
to consider the impact
of the proposed filling station on socio-economic conditions and
thereafter to make a decision that is
appropriate in the light of
such a consideration. The mandatory nature and the materiality of
the requirement is manifest.
The conclusion that the environmental
authorities failed to comply with a mandatory and material
condition for the granting of
authorisation is therefore
inescapable. As a result, their decision falls to be reviewed
under section 6(2)(b) of PAJA as they
did not comply with a
mandatory and material condition set by NEMA.
Here NEMA
specifically enjoins the environmental authorities to consider,
assess and evaluate the social and economic impact of
the proposed
filling station, including its cumulative effect on the environment
as well as its impact on existing filling stations
and thereafter
to make a decision that is appropriate in the light of such
assessment. This requirement was included in NEMA
to guide the
environmental authorities in making a decision that may affect the
environment. In these circumstances, failure
by the environmental
authorities to comply with this requirement did not just have
“formal rather than substantive significance”,
as my colleague,
Sachs J, suggests in his dissenting judgment.
100
In my view, it is a failure which goes to the very function that
the environmental authorities were required by statute to perform;
the environmental authorities failed to perform the very function
which they were required by law to perform.
What must be
stressed here is that the question on review is not whether there
is evidence that an additional filling station
posed undue threat
to the environment. The question is
whether the
environmental authorities considered and evaluated the social and
economic impact of the proposed filling station
on existing ones
and how an additional filling station would affect the environment.
Indeed it is difficult to fathom how the
environmental authorities
could have assessed the threat of overtrading to the environment if
they did not apply their minds
to this question at all. They could
have established such threats if they had applied their mind to
this question. They did
not do so. Their decision cannot
therefore stand.
It is no
answer by the environmental authorities to say that had they
themselves considered the need and desirability aspect,
this could
have led to conflicting decisions between the environmental
officials and the town-planning officials. If that is
the natural
consequence of the discharge of their obligations under the
environmental legislation, it is a consequence mandated
by the
statute. It is impermissible for them to seek to avoid this
consequence by delegating their obligations to the town-planning
authorities. What is of grave concern here is that the
environmental authorities did not even have sight of the motivation

placed before the local authority relating to need and
desirability, let alone read it. Section 24(1) of NEMA makes it
clear
that the potential impact on socio-economic conditions must
be considered by “the organ of state charged by law with
authorising,
permitting or otherwise allowing the implementation of
[a proposed] activity.”
Our
Constitution does not sanction a state of normative anarchy which
may arise where potentially conflicting principles are juxtaposed.

It requires those who enforce and implement the Constitution to
find a balance between potentially conflicting principles.
It is
founded on the notion of proportionality which enables this balance
to be achieved. Yet in other situations, it offers
a principle
that will facilitate the achievement of the balance. The principle
that enables the environmental authorities to
balance developmental
needs and environmental concerns is the principle of sustainable
development.
There are
further difficulties for the environmental authorities in relying
on the prior rezoning. The record discloses that
the environmental
authorities had in mind the rezoning “from ‘special’ to
‘Business 1’”. This occurred sometime
in 1996 or thereabout.
It is however clear from the application for this rezoning that at
the time, the property in question
had already been rezoned
“special” for the purposes of a filling station and hotel. If
this is true, then the rezoning for
the purposes of constructing a
filling station had been approved earlier than 1996. In other
words the town-planning authorities
had already considered the need
and desirability of the filling station by 1996. If this is so,
then there would have been no
need for the town-planning
authorities to consider its need and desirability in the 1996
rezoning “from ‘special’ to ‘Business
1’”. If this is
so, then certain difficulties arise.
The first is
that reliance by the environmental authorities on the 1996 rezoning
as being the occasion when the need and desirability
of the
proposed filling station was considered by the local authority may
be misplaced, as need and desirability had been considered
by then.
Second, the rezoning for the purposes of a filling station was
probably approved sometime in 1995, that is some six
years prior to
the application for authorisation and some eight years prior to the
granting of authorisation under section 22(1)
of ECA. Thirdly, the
rezoning had taken place prior to NEMA coming into operation, a
statute which establishes the principles
which apply to all
decisions of state organs that may affect the environment.
In these
circumstances, even if the environmental authorities were entitled
to rely on the prior rezoning, I am of the view that
it was
incumbent on the environmental authorities to consider the matter
afresh in the light of the provisions of NEMA. During
the
intervening period, a significant change in the environment could
have taken place. Indeed the record indicates that further
filling
stations were constructed in that period. It is significant to
note that item 10(2)(i) of GN R1183 of 5 September 1997,
contemplates that a decision granting authorisation in terms of
section 22(1) of ECA will be valid for a limited period. This
is a
recognition that changes may occur in the environment after the
authorisation is granted. Indeed the authorisation granted
by the
environmental authorities in this case is valid for two years from
the date of its granting.
In any event,
there is no suggestion that either the town-planning authorities,
or the environmental authorities applied their
minds to the impact
of the proposed filling station on socio-economic conditions. The
scoping report was concerned primarily
with the financial
feasibility of the proposed filling station. In fact, it said
nothing about the impact of the proposed filling
station on the
existing ones. In all the circumstances of this case, the
environmental authorities took a narrow view of their
obligations
and misconstrued their obligations. As a consequence of this, the
environmental authorities failed to apply their
minds to the impact
of the proposed filling station on socio-economic conditions.
Before
concluding this judgment, there are two matters that should be
mentioned in relation to the duty of environmental authorities
which are a source of concern. The first relates to the attitude
of Water Affairs and Forestry and the environmental authorities.

The environmental authorities and Water Affairs and Forestry did
not seem to take seriously the threat of contamination of

underground water supply. The precautionary principle required
these authorities to insist on adequate precautionary measures
to
safeguard against the contamination of underground water. This
principle is applicable where, due to unavailable scientific
knowledge, there is uncertainty as to the future impact of the
proposed development. Water is a precious commodity; it is a
natural resource that must be protected for the benefit of present
and future generations.
In these
circumstances one would have expected that the environmental
authorities and Water Affairs and Forestry would conduct
a thorough
investigation into the possible impact of the installation of
petrol tanks in the vicinity of the borehole, in particular,
in the
light of the existence of other filling stations in the vicinity.
The environmental authorities did not consider the
cumulative
effect of the proliferation of filling stations on the aquifer.
The Geohydrology division of Water Affairs and Forestry
was content
with simply stating that the developer must ensure that there is no
pollution of water and that there must be monitoring
as proposed in
the report and in accordance with the regulations. Neither the
Water Quality Management nor the Water Utilization
divisions of the
Water Affairs and Forestry commented on the reports as they did not
receive them. They became aware of the
development after both the
record of decision and the appeal from it had been issued.
The other
matter relates to the attitude of the environmental authorities to
the objection of the applicant to the construction
of the proposed
filling station. In the Supreme Court of Appeal they argued that
the applicant’s opposition to the application
for authorisation
was motivated by the desire to stifle competition which was “thinly
disguised as a desire to protect the
environment”.
101
In this regard, they pointed to the fact that the main deponent on
behalf of the applicant, Mr Le Roux, owns other filling stations
in
the area. The Supreme Court of Appeal found that “there appears
to be some merit in the contention.”
102
Whatever, the merits of the criticism may be, a matter on which it
is not necessary to express an opinion, an environmental
authority
whose duty it is to protect the environment should welcome every
opportunity to consider and assess issues that may
adversely affect
the environment.
Similarly, the
duty of a court of law when the decision of an environmental
authority is brought on review is to evaluate the
soundness or
otherwise of the objections raised. In doing so, the court must
apply the applicable legal principles. If upon
a proper
application of the legal principles, the objections are valid, the
court has no option but to uphold the objections.
That is the duty
that is imposed on a court by the Constitution, which is to uphold
the Constitution and the law which they
“. . . must apply
impartially and without fear, favour or prejudice.” Neither the
identity of the litigant who raises the
objection nor the motive is
relevant.
The role of
the courts is especially important in the context of the protection
of the environment and giving effect to the principle
of
sustainable development. The importance of the protection of the
environment cannot be gainsaid. Its protection is vital
to the
enjoyment of the other rights contained in the Bill of Rights;
indeed, it is vital to life itself. It must therefore
be protected
for the benefit of the present and future generations. The present
generation holds the earth in trust for the
next generation. This
trusteeship position carries with it the responsibility to look
after the environment. It is the duty
of the court to ensure that
this responsibility is carried out. Indeed, the Johannesburg
Principles adopted at the Global Judges
Symposium underscore the
role of the judiciary in the protection of the environment.
103
On that
occasion members of the judiciary across the globe made the
following statement—
“
We affirm our commitment to
the pledge made by world leaders in the Millennium Declaration
adopted by the United Nations General
Assembly in September 2000 ‘to
spare no effort to free all of humanity, and above all our children
and grandchildren, from the
threat of living on a planet
irredeemably spoilt by human activities, and whose resources would
no longer be sufficient for their
needs’”.
104
In addition, they
affirmed—
“
. . . that an independent
Judiciary and judicial process is vital for the same implementation,
development and enforcement of environmental
law, and that members
of the Judiciary, as well as those contributing to the judicial
process at the national, regional and global
levels, are crucial
partners for promoting compliance with, and the implementation and
the enforcement of, international and national
environmental law”.
105
One of these
principles expresses—
“
A full commitment to
contributing towards the realization of the goals of sustainable
development through the judicial mandate to
implement, develop and
enforce the law, and to uphold the Rule of Law and the democratic
process . . . ”
106
Courts therefore
have a crucial role to play in the protection of the environment.
When the need arises to intervene in order to
protect the
environment, they should not hesitate to do so.
Conclusion
The
considerations set out above make it clear that the decision of the
environmental authorities is flawed and falls to be set
aside as
they misconstrued the obligations imposed on them by NEMA. In all
the circumstances, the decision by the environmental
authorities to
grant authorisation for the construction of the filling station
under section 22(1) of ECA cannot stand and falls
to be reviewed
and set aside. It follows that both the High Court and the Supreme
Court of Appeal erred, the High Court in dismissing
the application
for review and the Supreme Court of Appeal in upholding the
decision of the High Court.
The relief
The
appropriate relief in this case is to send the matter back to the
environmental authorities for them to consider the matter
afresh in
a manner that is consistent with this judgment.
Costs
Then there is
the question of costs. This is a case, in my view, in which the
costs should follow the result. However, I do
not think that the
Trust and its trustees must be saddled with costs. It is true that
they opposed the matter – but this was
to safeguard their
interests. The contest, at the end of the day, was between the
applicant and the first, second and third
respondents. It is these
respondents who should pay the cost of the applicant while the
remaining respondents who opposed the
matter will have to look
after their own costs. The costs payable by the first, second and
third respondents must include those
that are consequent upon the
employment of two counsel.
Order
In the event I
make the following order:
(a) The application for leave to appeal is granted.
(b) The appeal is
upheld.
(c) The order of
the Supreme Court of Appeal is set aside.
(d) The order of
the High Court is set aside.
(e) The decision of the first, second and third respondents granting
authorisation for the construction of the filling station
to be
located on a portion of portion 1, Erf 216, Kingsview extension 1,
White River, Mpumalanga, under section 22(1) of the Environment
Conservation Act 73 of 1989 is reviewed and set aside.
(f) The matter is
remitted to the first, second and third respondents for them to
consider afresh the application for authorisation
for the
construction of the filling station to be located on a portion of
portion 1, Erf 216, Kingsview extension 1, White River,
Mpumalanga,
under section 22(1) of the Environment Conservation Act 73 of 1989.
(g) The first,
second and third respondents are ordered to pay the applicant’s
costs including the costs incurred in the courts
below, which
includes the costs consequent upon the employment of two counsel.
Moseneke DCJ,
Madala J, Mokgoro J, Navsa AJ, Nkabinde J, O’Regan J, Skweyiya J,
and Van der Westhuizen J concur in the judgment
of Ngcobo J.
SACHS J:
It is ironic that the first appeal in this Court to invoke the
majestic protection provided for the environment in the Bill of
Rights
1
comes not from concerned ecologists but from an organised section
of an industry frequently lambasted both for establishing

world-wide reliance on non-renewable energy sources and for
spawning pollution. So be it. The doors of the Court are open to
all, and there is nothing illegitimate or inappropriate in the Fuel
Retailers Association of Southern Africa seeking to rely
on legal
provisions that may promote its interests.
The brief
dissent which follows is accordingly not based on factors related
to the motivation of the applicant, but rather on
how I believe the
relevant law should be applied to the facts of this case. In this
respect I would like to associate myself
with eloquent and
comprehensive manner in which Ngcobo J highlights the importance of
environmental law for our society and establishes
the legal setting
in which this matter is to be determined. I also support the way
in which he alerts the Department of Water
Affairs and Forestry to
its legislative responsibilities in this area. I agree with his
conclusion that it was not appropriate
for the authorities simply
to rely on an earlier zoning decision by the Council. They should
indeed have looked at the matter
more broadly and in a more
up-to-date manner. Where I part ways with his judgment is in
regard to the materiality of that failure.
Section 6(2)
of the of Administrative Justice Act
2
authorises—
“
[a] court or tribunal . . .
to judicially review an administrative action if—
. . .
(b) a mandatory
and material
procedure or condition prescribed by an empowering provision was not
complied with”. (My emphasis.)
As Hoexter
observes:
“
It would of course be
delightfully simple if the failure to comply with mandatory
provisions inevitably resulted in invalidity while
ignoring
directory provisions never had this consequence, but the reality is
not so clear-cut. From our case law one sees that
some requirements
classified as ‘mandatory’ need not, in fact, be strictly
complied with, but that ‘substantial’ or ‘adequate’
compliance may be sufficient. The reference in the PAJA to a
‘material’ procedure or condition may indeed be read as
recognising
this.”
3
(Footnote omitted.)
She goes on
(correctly in my opinion) to support an approach which she believes
sensibly links the question of compliance to the
purpose of the
provision,
4
and quotes from
Maharaj and Others v Rampersad
where Van
Winsen AJA stated the following:
“
The enquiry, I suggest, is
not so much whether there has been ‘exact’ ‘adequate’ or
‘substantial’ compliance with [the]
injunction but rather
whether there has been compliance therewith. This enquiry
postulates an application of the injunction to
the facts and a
resultant comparison between what the position is and what,
according to the requirements of the injunction, it
ought to be. It
is quite conceivable that a court might hold that, even though the
position as it is is not identical with what
it ought to be, the
injunction has nevertheless been complied with. In deciding whether
there has been a compliance with the injunction
the object sought
to be achieved by the injunction and the question whether this
object has been achieved are of importance.
”
5
(Her emphasis.)
She notes with
apparent approval the suggestion that this approach shows a trend
away from the strictly legalistic to the substantive.
6
It seems to me
that while the majority judgment did not find it necessary to
evaluate the facts because a mandatory procedure
was not complied
with, if the evidence before the Court suggests that the failure
was not of a material nature, it should not
lead to the decision
being set aside. my view the facts in the present matter as
available from the record do not establish
that having a competitor
to the filling stations owned by an Executive Member of the
applicant
7
posed any measurable threat to the environment that needed to be
considered. On the contrary, the facts reveal that all the
ordinary environmental controls were in place and that any
potential deleterious effect of possible over-trading was
speculative
and remote, in a word, makeweight.
As I analyse
the evidence, the procedural default could have had little bearing
on the overall nature of an enquiry framed by
the principles and
objectives of the National Environmental Management Act (NEMA).
8
Running right through the preamble and guiding
principles of NEMA is the overarching theme of environmental
protection and its
relation to social and economic development.
9
This theme is repeated again and again.
Economic sustainability is not treated as an independent factor to
be evaluated as a discrete element in its own terms. Its
significance for NEMA lies in the extent to which it is
inter-related with environmental protection. Sustainable
development
presupposes accommodation, reconciliation and (in some
instances) integration between economic development, social
development
and environmental protection.
10
It does not envisage social, economic and environmental
sustainability as proceeding along three separate tracks, each of

which has to be weighed separately and then somehow all brought
together in a global analysis. The essence of sustainable
development
is balanced integration of socio-economic development
and environmental priorities and norms.
11
Economic sustainability is thus not part of a check-list that has
to be ticked off as a separate item in the sustainable development
enquiry. Rather, it is an element that takes on significance to
the extent that it implicates the environment. When economic
development potentially threatens the environment it becomes
relevant to NEMA. Only then does it become a material ingredient
to be put in the scales of a NEMA evaluation.
In the present
matter the evidence does not indicate that opening a new filling
station would pose or suggest any undue threat
to the environment.
On the contrary, the relevant environmental authorities made a
finding to the effect that environmental
criteria were met. First
the High Court and then the Supreme Court of Appeal rejected
challenges made to this finding, and in
this Court the applicant
chose not to continue with its earlier attacks on it. Furthermore,
the feasibility study indicated
that the project appeared to be
economically sustainable. As the Court of Appeal pointed out, any
suggestion of a future graveyard
of disused filling stations was
purely hypothetical. I might add that though the precautionary
principle is an important one,
particularly in relation to a
potentially hazardous product such as petrol, it has little
application where the threat to the
environment is remote and any
possible damage would be containable. must accordingly proceed on
the assumption that the normal
question of sustainable development
does not arise, that is, that this case does not require us to
decide whether on balance
the gains made in socio-economic
development by opening up a new enterprise could appropriately
permit a certain degree of negative
impact on the environment.
12
What the
applicant’s argument ultimately boiled down to was that the risk
of overtrading was real and that this was an economic
factor that
should have been taken into account when the question of
sustainable development was being considered. Absent some
consequent threat to the environment, however, the question of
possible overtrading is not one which I believe the decision-makers
in this matter were called upon to consider.
In my view,
commercial sustainability only becomes a relevant factor under NEMA
when it touches on actual or potential threats
to the environment.
Thus, if there were a genuine risk that the introduction of a new
industry would be ruinous to traditional
forms of livelihood,
thereby dramatically changing the character of the neighbourhood,
that could be a significant socio-economic
environmental factor.
Similarly, if there were a real prospect of the landscape ending up
as a disfigured and polluted graveyard
replete with abandoned
petrol tanks not easily removed, that would certainly require
attention.
Conversely, if
some damage to the environment were to be established, the economic
sustainability of a proposed economic enterprise
could be highly
relevant as a countervailing factor in favour of a finding that on
balance the development is sustainable. Thus,
an enterprise that
promised long-term employment and major social upliftment at
relatively small cost to the environment, with
damage reduced to
the minimum, could well be compatible with NEMA. On the other hand
to allow a fly-by-night undertaking either
to spoil a pristine
environment, or to use up scarce resources, or to introduce undue
health hazards, will probably be in conflict
with NEMA.
But there is
no evidence, above the level of speculation, that the arrival of a
new kid on the block doing the same business in
the same way in
competition with existing filling stations would give rise to the
risk of unacceptable degradation either to
the physical environment
or to the socio-cultural environment. I am therefore not persuaded
that the principles of sustainable
development are engaged in this
matter at all. The objective of NEMA, after all, is to preserve
the environment for present
and future generations, and not to
maintain the profitability of incumbent entrepreneurs.
For these
reasons, I would not set aside the determination of the
decision-makers. In substance the decision-makers considered
the
factors to which NEMA required them to pay attention. Though the
Fuel Retailers Association raised an objection that had
technical
merit, the failure by the decision-makers was innocuous as far as
the environment was concerned and had formal rather
than
substantive significance. In my view the High Court and the Court
of Appeal got it right in dismissing the applicant’s
challenge to
the decision authorising the new filling station. I would
accordingly refuse the appeal and uphold the decision
of the Court
of Appeal.
For
the Applicant: Advocate MC Erasmus SC and Advocate J De Beer
instructed by Swanepoel and Partners Inc.
For the First to Sixth Respondents: Advocate J Du Plessis and
Advocate SP Mothle instructed by the State Attorney, Pretoria.
For the Eighth to Twelfth Respondents: Advocate MM Rip SC and
Advocate CM Rip instructed by De Swart Vögel and Mahlafonya.
1
The
decision of the Supreme Court of Appeal is reported as
Fuel
Retailers Association of SA (Pty) Ltd v Director-General,
Environmental Management, Mpumalanga, and Others
2007 (2) SA 163
(SCA).
2
The
Trust was represented in the proceedings by its trustees who are the
eighth to eleventh respondents.
3
Act
73 of 1989.
4
Section
22 of ECA provides:
“
(1) No person shall undertake an activity identified
in terms of section 21(1) or cause such an activity to be undertaken
except
by virtue of a written authorization issued by the Minister
or by a competent authority or local authority or an officer, which
competent authority, authority or officer shall be designated by the
Minister by notice in the
Gazette
.
(2) The authorization referred to in subsection (1)
shall only be issued after consideration of reports concerning the
impact of
the proposed activity and of alternative proposed
activities on the environment, which shall be compiled and submitted
by such
persons and in such manner as may be prescribed.
(3) The Minister or the competent authority, or a
local authority or officer referred to in subsection (1), may at his
or its discretion
refuse or grant the authorization for the proposed
activity or an alternative proposed activity on such conditions, if
any, as
he or it may deem necessary.
(4) If a
condition imposed in terms of subsection (3) is not being complied
with, the Minister, any competent authority or any local
authority
or officer may withdraw the authorization in respect of which such
condition was imposed, after at least 30 days’ written
notice was
given to the person concerned.”
5
These
proceedings were conducted on the footing that Dr Batchelor and Mr
Hlatshwayo were duly designated by the Minister for the
purposes of
considering applications for authorisation in terms of section 22
(1).
6
Section
21 of ECA provides:
“
(1) The Minister may by notice in the
Gazette
identify those activities which in his opinion may have a
substantial detrimental effect on the environment, whether in
general
or in respect of certain areas.
(2) Activities which are identified in terms of
subsection (1) may include any activity in any of the following
categories, but
are not limited thereto:
(a) Land use and transformation;
(b) water
use and disposal;
(c) resource removal, including natural living
resources;
(d) resource renewal;
(e) agricultural processes;
(f) industrial processes;
(g) transportation;
(h) energy generation and distribution;
(i) waste and sewage disposal;
(j) chemical treatment;
(k) recreation.
(3) The Minister identifies an activity in terms of
subsection (1) after consultation with—
(a) the Minister of each department of State
responsible for the execution, approval or control of such activity;
(b) the
Minister of State Expenditure; and
(c) the competent authority of the province
concerned.”
7
Section
21(2)(a).
8
Schedule
1 item 1(c).
9
Act
107 of 1998.
10
Section
2(4)(i).
11
The
Trust subsequently sold its interest in the proposed development to
Lowveld Motors (Pty) Ltd.
12
The
application was made on a prescribed form which is called a Plan of
Study for Scoping.
13
A
scoping report is an environmental impact report that must be
submitted in support of an application for authorisation under

section 22(1) of ECA. Section 26, which empowers the Minister to
make regulations concerning the scope and content of the
environmental
reports envisaged
in
section 22(1), contemplates that reports will include matters such
as the identification of the economic and social interests
which may
be affected by the proposed activity; the extent and the nature of
the effect of the proposed activity on social and
economic
interests; and how the adverse impact is to be minimised. By
regulations regarding activities identified under section
21(1), GN
R1183 of 5 September 1997, the Minister published the regulations
concerning the scope and the contents of reports.
These reports
have come to be known as “scoping reports”. The provisions of
ECA relating to the nature and scope of the environmental
authority’s obligation when considering an application for
authorisation under section 22(1), as well as the scope and contents
of the report that must be submitted in support of such application,
must be understood in the light of the provisions of NEMA.
14
In
relation to the contamination of underground water, Globecon
reiterated that if required by Water Affairs and Forestry, an
impermeable
layer would be installed at the base of the pit and that
this would ensure that no contaminants from the tanks reach the
aquifer.
In relation to the public participation process, it
acknowledged that the neighbours referred to in the Ecotechnik
evaluation
report had not been notified but blamed this on the local
authority which “did not supply the consultant with all the
relevant
information.” In a further response Ecotechnik
criticised the installation of an impermeable layer at the base of
the pit and
the leak detection system as inadequate. It pointed out
that leaks not only occur from tanks but also from pipes. It added
that
in any event, given the present day construction methods, “it
is unlikely . . . [that] constructing impermeable layers . . .
can
be guaranteed to be 100% leak proof.” It questioned the adequacy
of the contamination safeguards suggested in the geological
report.
It expressed the opinion that if an impermeable layer is to be used
it “would have to be provided not only below but
on the sides as
well.”
15
Gauteng
Provincial Government, Agriculture, Conservation, Environmental and
Land Affairs EIA Administrative Guideline: Guideline
for the
Construction and Upgrade of Filling Stations and Associated Tank
Installations (March 2002).
16
Id
at para 2.1.
17
Id
at para 1.
18
Section
36 of ECA provides:
“
(1) Notwithstanding the provisions of section 35,
any person whose interests are affected by a decision of an
administrative body
under this Act, may within 30 days after having
become aware of such decision, request such body in writing to
furnish reasons
for the decision within 30 days after receiving the
request.
(2) Within
30 days after having been furnished with reasons in terms of
subsection (1), or after the expiration of the period within
which
reasons had to be so furnished by the administrative body, the
person in question may apply to a division of the Supreme
Court
having jurisdiction, to review the decision.”
19
Act
3 of 2000.
20
Ordinance
15 of 1986.
21
Schedule
7 of the Regulations made under the Ordinance contains a specimen
application form to be completed by a person who wishes
to apply for
an amendment of a town-planning scheme in terms of section 56 of the
Ordinance. Part C of Schedule 7 lists documents
and reports that
must be submitted together with the application. Item C requires
the applicant to enclose a report which—
“
(a) explains
the proposed maps, annexures and schedules, if any;
(b) provides information on the geotechnical
conditions and use of the land as well as traffic, including public
transport, roads
and parking facilities, where applicable;
(c) contains
a motivation for the need and desirability of the amendment
proposed”.
22
At
para .
23
This
is apparently a reference to section 2(4)(l) of NEMA which provides:
“
There
must be intergovernmental co-ordination and harmonisation of
policies, legislation and actions relating to the environment.”
24
Above
n at para 17.
25
This
provision is set out in full in para .
26
This
provision is set out in full in n below.
27
Sections
2(3), 2(4)(g) and 2(4)(i) are set out in full in para .
28
This
provision is set out in full in para .
29
This
provision is set out in full in para .
30
Section
56 of the Ordinance provides:
“
(1) An owner of land who wishes to have a provision
of a town-planning scheme relating to his land amended may, in such
a manner
as may be prescribed, apply in writing to the authorised
local authority, and at the same time—
(a) he shall pay to the local authority such fees as
may be levied by that local authority; and
(b) he shall give notice of the application—
(i) by publishing once a week for 2 consecutive weeks a
notice in such form and such manner as may be prescribed;
(ii) by posting a notice in such form as may be
prescribed in a conspicuous place on his land, and he shall maintain
such notice
for a period of at least 14 days from the date of the
first publication of the notice contemplated in subparagraph (i):
Provided
that the local authority may, in its discretion, grant
exemption from compliance with the provisions of this subparagraph.
(2) The authorised local authority may, in its
discretion, give further notice of the application—
(a) by posting a notice in such form as may be
prescribed in a conspicuous place on its notice board, and in such a
case it shall
maintain such notice for a period of at least 14 days
from the date of the first publication of the notice contemplated in
subsection
(1)(b)(i);
(b) in any other manner.
(3) The applicant shall submit proof to the
satisfaction of the authorised local authority that he has complied
with the provisions
of subsection (1).
(4) On receipt of an application in terms of subsection
(1) the authorised local authority shall, subject to the provisions
of subsection
(5), forward—
(a) a
copy thereof to—
(i) The Transvaal Roads Department, where the land
concerned or any portion thereof is situated outside an ‘urban
area’ as defined
in section 1 of the Advertising on Roads and
Ribbon Development Act, 1940;
(ii) the National Transport Commission, where the land
concerned or any portion thereof is situated within a ‘building
restriction
area’ as defined in section 1 of the National Roads
Act, 1971;
(iii) the Director-General: Constitutional Development
and Planning, where the application contemplates either the
subdivision of
land zoned for industrial purposes or the zoning of
land for industrial purposes;
(iv) every local authority or body providing any
engineering service contemplated in Chapter V to the land concerned
or to the local
authority contemplated in subsection (1); and
(v) any other department or division of the Transvaal
Provincial Administration, any other state department which or any
other person
who, in the opinion of the local authority, may be
interested in the application; and
(b) a copy of every objection lodged and all
representations made in respect of the application to the applicant,
and the applicant
shall, within a period of 28 days from the date of
receipt of the copy, forward his reply thereto to the local
authority.
(5) An applicant may, in the stead of the authorised
local authority and with its consent, forward a copy of the
application to
any person or body contemplated in subsection (4)(a)
and submit proof to the satisfaction of the local authority that he
has done
so.
(6) Every person to whom or body to which a copy of the
application has been forwarded in terms of subsection (4)(a) or (5)
may,
within a period of 60 days from the date on which the copy was
forwarded to him or it, or such further period as the authorised
local authority may allow, comment in writing thereon.
(7) Where objections have been lodged or
representations have been made in respect of the application, the
authorised local authority
shall, subject to the provisions of
section 131, hear the objections or representations.
(8) After the provisions of subsection (7) have been
complied with, the authorised local authority shall consider the
application
with due regard to every objection lodged and all
representations made, and may for that purpose—
(a) carry out an inspection or institute any
investigation;
(b) request any person to furnish such information,
as it may deem expedient.
(9) Having considered the application in terms of
subsection (8) the authorised local authority may—
(a) approve the application subject to such amendment
which it may, after consultation with the applicant, deem fit or
refuse it;
(b) postpone a decision on the application, either
wholly or in part.
(10) The authorised local authority shall without delay
and in writing notify the applicant, an objector or any person who
has made
representations, of its decision taken by virtue of the
provisions of subsection (9).”
31
Above
n .
32
In
terms of Schedule 7 of the Regulations promulgated under the
Ordinance, an application for amendment of town-planning scheme
must
be accompanied by “a motivation for need and desirability.”
Item C 3(c).
33
See
para .
34
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
2004 (7) BCLR 687
(CC).
35
Section
6(2) provides:
“
A
court or tribunal has the power to judicially review an
administrative action if—
. . .
(b) a mandatory and material procedure or condition
prescribed by an empowering provision was not complied with;
.
. .
(e) the action was taken—
. . .
(iii) because irrelevant considerations were taken into
account or relevant considerations were not considered;
.
. .
(i) if the action is otherwise unconstitutional or
unlawful.”
36
Above
n at para 25.
37
T
he t
ext
of section 24 is set out
in full in para .
38
Declaration
on the Right to Development
adopted by General Assembly Resolution 41/128 of 4 December 1986,
http://www.un.org/documents/ga/res/41/a41r128.htm
,
accessed
on 4 June 2007. Article 1 asserts that “[t]he right to
development is an inalienable human right”. The Preamble

describes development as “a comprehensive economic, social,
cultural and political process, which aims at the constant
improvement
of the well-being of the entire population”.
39
Government of the Republic of
South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC).
40
Report of the World Commission on Environment and Development:
Our
Common Future
(Brundtland Report),
http://www.un.org/esa/sustdev/documents/docs_key_conferences.htm
,
link:
General
Assembly 42nd Session: Report of the World Commission on Environment
and Development
,
accessed on 4 June 2007.
Chapter
1 at para 42.
41
Principle 13 of the
Declaration
of the United Nations Conference on the Human Environment
,
held in Stockholm 1972,
http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=1503
,
accessed on 4 June 2007.
42
Separate
Opinion of Vice-President Weeramantry in
Gab
č
íkovo-Nagymaros
Project (Hungary/Slovakia)
37
I.L.M. 162 (1998).
43
Id.
44
Segger
and Weeramantry (eds)
Sustainable
Justice: Reconciling Economic, Social and Environmental Law
(Martinus Nijhoff, Leiden 2005) 561.
45
Above
n .
46
Sands
Principles of
International Environmental Law
2 ed (Cambridge University Press, Cambridge 2003) 252.
47
Above
n , Chapter 2 at para 1.
48
Id
at para 15.
49
Id
at paras 72-80.
50
Id
at para 2.
51
Above
n at Chapter 1 para 47.
52
Id
at para 48.
53
The United Nations Conference on Environment and Development was
held in Rio de Janeiro, Brazil on 3-14 June 1992,
http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm
,
accessed on 4 June 2007. This Conference adopted among other
instruments, the Rio Declaration on Environment and Development
(the
Rio Declaration).
54
Boyle
and Freestone (eds)
International
Law and Sustainable Development: Past Achievements and Future
Challenges
(Oxford University Press, Oxford 1999) 4.
55
In
this sense, the Rio Declaration provides a benchmark for measuring
future developments and a basis for defining sustainable

development.
56
Above
n at 26.
57
Above
n at 266. Sands identifies five recurring elements which appear to
comprise the legal concept of sustainable development
as reflected
in international agreements. These are:
“
the need to
take into consideration the needs of present and future
generations;
the acceptance, on
environmental protection grounds, of limits placed upon the use and
exploitation of natural resources;
the role of
equitable principles in the allocation of rights and obligations;
the need to
integrate all aspects of environment and development; and
the need to
interpret and apply rules of international law in an integrated and
systemic manner.”
58
Above
n at 8-16.
59
Above
n at 263.
60
Id.
61
Id
at 264.
62
Above
n at 564; above n at 263.
63
United Nations Department of Economic and Social Affairs - Division
for Sustainable Development
Johannesburg
Declaration on Sustainable Development
2002 para 5,
http://www.un.org/esa/sustdev
/documents/WSSD_POI_PD/English/POI_PD.htm
,
accessed on 4 June 2007.
64
Gab
č
íkovo-Nagymaros
Project (Hungary/Slovakia)
37 I.L.M. 162 (1998) 200 at para 140. In a Separate Opinion,
Vice-President Weeramantry held that the concept of sustainable

development is part of international customary law. See Separate
Opinion at 207.
65
Above
n at 204.
66
Section
1(1)(xxix).
67
Section
2(4)(a) of NEMA provides:
“
Sustainable
development requires the consideration of all relevant factors
including the following:
(i) That the disturbance of ecosystems and loss of
biological diversity are avoided, or, where they cannot be
altogether avoided,
are minimised and remedied;
(ii) that pollution and degradation of the environment
are avoided, or, where they cannot be altogether avoided, are
minimised and
remedied;
(iii) that the disturbance of landscapes and sites that
constitute the nation’s cultural heritage is avoided, or where it
cannot
be altogether avoided, is minimised and remedied;
(iv) that waste is avoided, or where it cannot be
altogether avoided, minimised and re-used or recycled where possible
and otherwise
disposed of in a responsible manner;
(v) that the use and exploitation of non-renewable
natural resources is responsible and equitable, and takes into
account the consequences
of the depletion of the resource;
(vi) that the development, use and exploitation of
renewable resources and the ecosystems of which they are part do not
exceed the
level beyond which their integrity is jeopardised;
(vii) that a risk-averse and cautious approach is
applied, which takes into account the limits of current knowledge
about the consequences
of decisions and actions; and
(viii) that negative impacts on the environment and on
people’s environmental rights be anticipated and prevented, and
where they
cannot be altogether prevented, are minimised and
remedied.”
68
Section
2(2).
69
Section
2(4)(i).
70
This
principle was considered in the following cases:
BP
Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation,
Environment and Land Affairs
2004 (5) SA 124
(W) at 140E-151H;
Turnstone
Trading CC v Director General Environmental Management, Department
of Agriculture, Conservation & Development
,
case no 3104/04 (T), 11 March 2005, unreported, at paras 17-19;
MEC
for Agriculture, Conservation, Environment and Land Affairs v Sasol
Oil (Pty) Ltd and Another
2006 (5) SA 483
(SCA) at para 15.
71
Section
2(2).
72
Section
2(3).
73
Section
2(4)(g).
74
Section
2(4)(i).
75
Section
23(2)(b).
76
In
dealing with NEMA in this case it is important to bear in mind that
this statute has, since its enactment in 1998, been amended.

Section 24(1) was amended in 2004 to delete the reference to social,
economic and cultural impacts. However, in section 23(2)(b)
the
general objectives of integrated environmental management were not
amended. This provision proclaims that one of the general
objectives of integrated environmental management is “to identify,
predict and evaluate the actual and potential impact on the
environment, socio-economic conditions and cultural heritage”.
The provisions of NEMA that are relevant to this case are those
that
were in force at the time when the application for authorisation was
made.
77
Section
24(1) of NEMA.
78
Section
2(1).
79
Section
2(1)(b).
80
Section
2(1)(c).
81
Section
2(1)(e).
82
Section
23(2)(a) provides:
“
The
general objective of integrated environmental management is to
promote the integration of the principles of environmental
management
set out in section 2 into the making of all decisions
which may have a significant effect on the environment”.
83
Section
23(2)(b) provides:
“
The
general objective of integrated environmental management is to
identify, predict and evaluate the actual and potential impact
on
the environment, socio-economic conditions and cultural heritage,
the risks and consequences and alternatives and options for
mitigation of activities, with a view to minimising negative
impacts, maximising benefits, and promoting compliance with the
principles
of environmental management set out in section 2”.
84
Id.
85
See
para .
86
Section
24(7) provides:
“
Procedures
for the investigation, assessment and communication of the potential
impact of activities must, as a minimum, ensure
the following:
(a) Investigation of the environment likely to be
significantly affected by the proposed activity and alternatives
thereto;
(b) investigation of the potential impact, including
cumulative effects, of the activity and its alternatives on the
environment,
socio-economic conditions and cultural heritage, and
assessment of the significance of that potential impact;
(c) investigation of mitigation measures to keep
adverse impacts to a minimum, as well as the option of not
implementing the activity;
(d) public information and participation, independent
review and conflict resolution in all phases of the investigation
and assessment
of impacts;
(e) reporting on gaps in knowledge, the adequacy of
predictive methods and underlying assumptions, and uncertainties
encountered
in compiling the required information;
(f) investigation and formulation of arrangements for
the monitoring and management of impacts, and the assessment of the
effectiveness
of such arrangements after their implementation;
(g) co-ordination and co-operation between organs of
state in the consideration of assessments where an activity falls
under the
jurisdiction of more than one organ of state;
(h) that the findings and recommendations flowing from
such investigation, and the general objectives of integrated
environmental
management laid down in this Act and the principles of
environmental management set out section 2 are taken into account in
any
decision made by an organ of state in relation to the proposed
policy, programme, plan or project; and
(i) that
environmental attributes identified in the compilation of
information and maps as contemplated in subsection (2)(e) are
considered.”
87
Section
24(7)(b).
88
The
background to the Gauteng Guidelines alludes to the limited end-use
of filling stations:
“
Property
zoned for filling stations has limited end-use after closure.
According to Gautrans’ view, the property cannot have
direct
access to roads at the filling station access points should it be
used for another purpose. Given the vast number of applications
that the department received to date, it means that Gauteng would in
future be sitting with ‘graveyard’ sites due to the legacy
of
the petroleum industry. The department thus has to be guided by all
types of developments presently to ensure that Gauteng’s
environment does not exceed a level beyond which its non-renewable
resources are jeopardised. Furthermore, remediation costs are
high.
The reuse of existing sites must therefore be considered.”
89
Above
n at para 17.
90
The
Gauteng Guidelines, for example, require a distance of three
kilometres in urban areas and a 25 kilometre distance for rural
areas. The imposition of distance or limitation criteria was based
on a review of international approaches. The Guidelines indicate,
for example, that in Dublin, guidelines have been published which
indicate that new petrol stations will generally not be permitted
on
national roads or adjoining residential areas and will only be
considered in rural areas if they are in the immediate environs
of
rural villages; in Singapore, existing filling stations located
within one kilometre of an interchange are considered to be
inappropriately located; in Germany, filling stations should only be
erected on rural roads where there is a clear need and there
should
be 25 kilometres between filling stations; and in Denmark, drivers
requiring high octane petrol will have access to a filling
station
within 30 kilometres.
91
Section
2(2).
92
Section
24(b) of the Constitution requires the environment to be protected
“for the benefit of present and future generations
. . . .”
Section 1(1)(xxix) of NEMA defines sustainable development to mean
the integration of social, economic and environmental
factors into
planning implementation and decision-making so “as to ensure that
development serves present and future generations.”
93
Section
2(4)(f) of NEMA provides:
“
The
participation of all interested and affected parties in
environmental governance must be promoted, and all people must have
the opportunity to develop the understanding, skills and capacity
necessary for achieving equitable and effective participation,
and
participation by vulnerable and disadvantaged persons must be
ensured.”
94
Section
2(4)(i).
95
Section
24(7)(b).
96
Section
26(a) of ECA.
97
Above
n at para 140.
98
Section
2(4)(a)(vii).
99
Section
24(7)(b) of NEMA provides:
“
Procedures
for the investigation, assessment and communication of the potential
impact of activities must, as a minimum, ensure
. . . investigation
of the potential impact, including cumulative effects, of the
activity and its alternatives on the environment,
socio-economic
conditions and cultural heritage, and assessment of the significance
of that potential impact”.
100
Sachs
J at para [119].
101
Above
n at para 13.
102
Id.
103
United Nations Environment Programme – Division of Policy
Development and Law,
Global
Judges Symposium on Sustainable Development and the Role of Law
- The Johannesburg Principles on the Role of Law and Sustainable
Development
adopted
at the Global Judges Symposium held in Johannesburg, South Africa on
18-20 August 2002,
http://www.unep.org/dpdl/symposium/Principles.htm
,
accessed on 4 June 2007.
104
Id.
105
Id.
106
Id.
1
Section
24 provides as follows:
“
Everyone
has the right—
(a) to an environment that is not harmful to their
health or well-being; and
(b) to have the environment protected, for the benefit
of present and future generations, through reasonable legislative
and other
measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and
use of natural resources while promoting justifiable economic and
social development.”
2
Act
of 2000.
3
Hoexter
Administrative
Law in South Africa
(Juta
& Co Ltd, Cape Town 2007) at 262.
4
Id
at 263.
5
1964
(4) SA 638
(A) at 646C-E.
6
Hoexter
above n at 263 quoting Van Dijkhorst J in
Ex
Parte Mothuloe (Law Society, Transvaal, Intervening)
1996 (4) SA 1131
(T);
[1996] 2 All SA 342
(T) at 1138D/E-E.
See too Olivier JA in
Weenen
Transitional Local Council v Van Dyk
2002 (4) SA 653
(SCA);
[2002] 2 All SA 482
(SCA) at para 13. The
importance of avoiding a narrowly textual and legalistic approach
was underlined by this Court in
African
Christian Democratic Party v Electoral Commission and Others
[2006] ZACC 1
;
2006 (3) SA 305
(CC) at para 25.
7
The
Executive Member owns two filling stations in the White River area
and had an interest in a third at the time of instituting
proceedings in the High Court.
8
Act
107 of 1998.
9
See
in particular the long title and preamble. The long title makes it
clear that NEMA was adopted “[t]
o
provide for co-operative environmental governance by establishing
principles for decision-making on matters affecting the
environment”.
The preamble reads as follows:
“
.
. .
WHEREAS . . . sustainable development requires the
integration of social, economic and environmental factors in the
planning, implementation
and evaluation of decisions to ensure that
development serves present and future generations;
everyone has the right 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;
promote conservation; and
secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social
development;
.
. .
AND WHEREAS it is desirable—
that the law develops a framework for integrating good
environmental management into all development activities;
. . .
that the law should establish principles guiding the
exercise of functions affecting the environment;
. . . .”
Section 1(1)(xxix)
defines “sustainable development” as “the integration of
social, economic and environmental factors into
planning,
implementation and decision-making so as to ensure that development
serves present and future generations”.
Section 2, which
establishes national environmental management principles, provides
that—
“
(1) The
principles set out in this section . . .
. . .
(b) serve as the general framework within which
environmental management and implementation plans must be
formulated;
(c) serve as guidelines by reference to which any organ
of state must exercise any function when taking any decision in
terms of
this Act or any statutory provision concerning the
protection of the environment;
. . . .”
The section further provides that—
“
(3) Development must be socially, environmentally
and economically sustainable.
(4) (a)
Sustainable development requires the
consideration of all relevant factors
including the following:
(i) That the disturbance of ecosystems and loss of
biological diversity are avoided, or, where they cannot be
altogether avoided,
are minimised and remedied;
(ii) that pollution and degradation of the environment
are avoided, or, where they cannot be altogether avoided, are
minimised and
remedied;
(iii) that the disturbance of landscapes and sites that
constitute the nation’s cultural heritage is avoided, or where it
cannot
be altogether avoided, is minimised and remedied;
(iv) that waste is avoided, or where it cannot be
altogether avoided, minimised and re-used or recycled where possible
and otherwise
disposed of in a responsible manner;
(v) that the use and exploitation of non-renewable
natural resources is responsible and equitable, and takes into
account the consequences
of the depletion of the resource;
(vi) that the development, use and exploitation of
renewable resources and the ecosystems of which they are part do not
exceed the
level beyond which their integrity is jeopardised;
(vii) that a risk-averse and cautious approach is
applied, which takes into account the limits of current knowledge
about the consequences
of decisions and actions; and
(viii) that negative impacts on the environment and on
people’s environmental rights be anticipated and prevented, and
where they
cannot be altogether prevented, are minimised and
remedied.
(b) Environmental management must be integrated,
acknowledging that all elements of the environment are linked and
interrelated,
and it must take into account the effects of decisions
on all aspects of the environment and all people in the environment
by pursuing
the selection of the best practicable environmental
option.”
The “practicable
environmental option” is defined in section 1(1)(iii) “the
option that provides the most benefit or causes
the least damage to
the environment as a whole, at a cost acceptable to society, in the
long term as well as in the short term”.
10
See
Segger and Weeramantry (eds)
Sustainable
Justice:
Reconciling
Economic, Social and Environmental Law
(Martinus Nijhoff Publishers, Leiden 2005) at 2 where it is stated
that—
“
It
[sustainable development] identifies an imperative to meet the
development needs of the present and future equitably, and to
simultaneously meet environmental needs. Sustainable development
provides a ‘conceptual bridge’ between the right to social
and
economic development, and the need to protect the environment.
Accommodation, reconciliation and integration are emphasised.”
At 561 it is stated that “[f]or sustainable
development to be realised, there must be better accommodation,
reconciliation and
(in some instances) integration between economic
development, social development and environmental protection.”
11
Id
at 8:
“
Social,
environmental and economic developments can overlap, or even
conflict. When they do, they are not sustainable. As witnessed
in
recent years, public protests and global tensions, popular struggles
against the privatization of essential services, against
new rules
for trade and investment liberalization, against decisions of
international financial institutions, are centered on this
concern.
Economic laws and policies which do not take social and
environmental elements into account are unlikely to be successful
in
a democratic society. Similarly, environmental laws that ignore
social and economic realities, and social laws that violate
environmental or economic principles, can waste valuable political
and material resources, also leading to failure. The need for
a
balanced integration of socio-economic development and environment
priorities and norms permeates international law and policy
on
sustainable development.”
12
See
Birnie and Boyle (eds)
International
Law & the Environment
2 ed (Oxford University Press Inc, New York 2002) at 86:
“
Sustainable
development contains both substantive and procedural elements. . .
. They include the sustainable utilization of natural
resources;
the integration of environmental protection and economic
development; the right to development; the pursuit of equitable
allocation of resources both within the present generation and
between present and future generations (intra- and
inter-generational
equity), and the internalization of environmental
costs through application of the ‘polluter pays’ principle.”
See also
People United for Better Living in
Calcutta — Public and Another v State of West Bengal and Others
1993 AIR Calcutta 215
, quoted in Segger and Weeramantry above n
at 50, where Benerjee J stated:
“
While
it is true that in a developing country there shall have to be
developments, but that development shall have to be in closest
possible harmony with the environment, as otherwise there would be
development but no environment, which would result in total
devastation, though, however, may not be felt in presenti but at
some future point of time, but then it would be too late in the
day,
however, to control and improve the environment.”
In the present matter
the opening of a new filling station would in reality suggest
economic development providing employment for
several persons at no
apparent environmental cost. Any potential social cost as a result
of competition is purely speculative.