Sea Front for All and Another v MEC: Environmental and Development Planning, Western Cape Provincial Government and Others (15974/07) [2010] ZAWCHC 69; 2011 (3) SA 55 (WCC) (26 March 2010)

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[2010] ZAWCHC 69
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Sea Front for All and Another v MEC: Environmental and Development Planning, Western Cape Provincial Government and Others (15974/07) [2010] ZAWCHC 69; 2011 (3) SA 55 (WCC) (26 March 2010)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE HIGH COURT, CAPE TOWN]
Case
No: 15974/07
In
the matter between:
SEA
FRONT FOR ALL
First Applicant
SHIRLEY
JOAN RABINOWITZ
Second Applicant
and
THE MEC:
ENVIRONMENTAL AND
DEVELOPMENT
PLANNING, WESTERN
CAPE
PROVINCIAL GOVERNMENT
First
Respondent
THE DIRECTOR:
INTEGRATED
ENVIRONMENTAL
MANAGEMENT,
DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT PLANNING,
WESTERN
CAPE PROVINCIAL GOVERNMENT
Second
Respondent
ON
TRACK DEVELOPMENTS (PTY) LTD
Third
Respondent
THE
CITY OF CAPE TOWN
Fourth Respondent
JUDGMENT
DELIVERED
: 26 MARCH 2010
FOURIE,
J:
INTRODUCTION
[1] This
review application concerns the proposed redevelopment of the unique
Sea Point Pavilion site, Cape Town, on which third respondent
seeks
to erect an up-market hotel with 52 bedrooms and a retail centre,
which would extend below the high water mark and onto the
beach.
[2] The
proposed development entails activities which are prohibited except
with a written authorisation issued under section 22 (1)
of the
Environmental Conservation Act No. 73 of 1989 (“the ECA”). In
particular, authorisation has to be obtained for the change
of land
use from zoned public open space to any other land use, and for
construction which is to take place below the high-water
mark and
impacts upon public resorts and associated infrastructure.
[3] On
8 August 2007, first respondent issued a Record of Decision (“the
2007 ROD”) on appeal in terms of section 35(4) of the
ECA, thereby
granting third respondent the necessary environmental authorisation
for the proposed redevelopment of the site. It is
this decision of
first respondent that is impugned in these proceedings.
THE PARTIES
[4] First
applicant (“SEAFA”) is a voluntary association and juristic
person, established by a constitution. It was established,
inter
alia
,
to protect and maintain for the benefit of present and future
generations the public open space which exists on the coastline on
the seaside of Beach Road, Sea Point, stretching from Mouille Point
to Saunders Rocks. In bringing the application, SEAFA acts in
its own
interest, as well as in the interest of its members, the interest of
the public in general and in the interest of protecting
the
environment.
[5] Second
applicant is an interested party who owns a residential property
across the road from the proposed development. She is
one of the
persons who has lodged an appeal against the original authorisation
granted in respect of the proposed development.
[6] First
respondent is the Member of the Executive Council for Environmental
Affairs and Development Planning in the Western Cape
Provincial
Government (“the MEC”). She is the functionary responsible for
determining appeals against authorisations granted
in terms of
section 22 of the ECA.
[7] Second
respondent is the Director: Integrated Environmental Management of
the Department of Environmental Affairs and Development
Planning in
the Western Cape Provincial Government. Second respondent was the
functionary responsible for granting the original authorisation
on 16
August 2004 in terms of section 22 of the ECA (“the original ROD”),
in respect of the proposed development of the Sea Point
Pavilion
site.
[8] Third
Respondent is On Track Developments (Pty) Ltd (“On Track”), a
private company incorporated under South African Law.
It was granted
the original environmental authorisation by second respondent in
respect of the proposed development.
[9] Fourth
respondent is the City of Cape Town (“the City”). It is the owner
of the immovable property known as the Sea Point
Pavilion site, which
On Track intends to lease from the City and develop in accordance
with the environmental authorisation granted
by the MEC to On Track
in terms of the 2007 ROD.
[10] The
MEC and second respondent initially opposed the application. However,
after the filing of applicants’ supplementary founding
affidavit,
they filed a notice of withdrawal of opposition and intention to
abide the decision of the court. The withdrawal was accompanied
by an
affidavit deposed to by the MEC’s successor, Mr. P Uys (“Uys”).
He conceded the review on one of the grounds raised in
the
supplementary founding affidavit, namely that a material report
considered by the MEC was co-authored by a party with a financial
interest in the approval being granted.
[11] The
City also abides the decision of the court. It is accordingly only On
Track that opposes the application.
THE GROUNDS OF
REVIEW RELIED UPON BY THE APPLICANTS
[12] The
applicants seek to have the 2007 ROD reviewed and set aside on one or
more or all of the following grounds:
The MEC failed to
consider alternatives to the proposed development, as the ECA
required her to do.
The MEC relied on
an expert report co-authored by a party, Commlife Properties
(“Commlife”), which had an undisclosed financial
interest in
the approval sought.
The MEC’s
decision was based on information that was in material respects out
of date.
The MEC took her
decision on the basis of materially incorrect information,
concerning the extent of loss of open space and the
consequences of
the proposed development for traffic and parking.
The MEC failed to
undertake the balancing exercise required of her in terms of the
ECA, namely to weigh up the need for the proposed
development
against any adverse impact on the environment, particularly the
loss of open space.
THE RELEVANT
LEGISLATIVE FRAMEWORK
[13] The
parties are agreed that the point of departure for the proper
consideration of this application is section 24 of the Constitution,
which provides that:
“
Everyone has
the right –
to an
environment that is not harmful to their health or well-being; and
to have the
environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures
that
–
prevent
pollution and ecological degradation;
promote
conservation; and
secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.”
[14] The
ECA, and in particular sections 21, 22 and 35, provides the
legislative framework against which the 2007 ROD falls to be
considered.
[15] In
terms of section 21 of the ECA, the National Minister of
Environmental Affairs and Tourism (“the Minister”) may, by notice
in the Gazette, identify those activities which in his/her opinion
may have a substantial detrimental effect on the environment,
whether
in general or in respect of certain areas. Pursuant thereto, the
Minister identified these activities in Government Notice
1182 of 5
September 1997 (as amended). The listed activities that are relevant
for purposes of this application, are the following:
15.1
Item
(1e)
The construction,
erection or upgrading of marinas, harbours and all structures below
the high-watermark of the sea and marinas, harbours
and associated
structures on inland waters;
15.2
Item
(1m)
The
construction or upgrading of public and private resorts and
associated infrastructure;
15.3
Item
(2e)
The
change of land use from use for nature conservation or zoned open
space to any other land use.
[16] The
following provisions of section 22 of the ECA are relevant:
16.1 No
person is entitled to undertake an activity identified in terms of
section 21 (1), or cause such an activity to be undertaken,
except by
virtue of a written authorisation by the Minister or competent
authority.
16.2 This
authorisation shall only be issued after consideration of reports
concerning the impact of the proposed activity and of
alternative
proposed activities on the environment, which must be compiled and
submitted as prescribed.
16.3 The
Minister or competent authority may, at his/her or its discretion,
refuse or grant the authorisation for the proposed activity
or an
alternative proposed activity on such conditions, if any, as he/she
or it may deem necessary.
[17] The
process to be followed to obtain authorisation to undertake a listed
activity is set out in the General EIA Regulations,
published in
Government Notice 1183 of 5 September 1997 (“the 1183 ECA
Regulations”). The procedure may be summarised as follows:
17.1 An
application must be made in the prescribed form and submitted to the
competent provincial authority for consideration.
17.2 After
considering the application, the relevant authority may request the
applicant to: (a) submit a plan of study for scoping
for the purposes
of a scoping report; or (b) in a suitable case submit such scoping
report without a prior plan of study. A scoping
report is normally
regarded as the first step of the environmental impact assessment
process, aimed at identifying the respects in
which a proposed
development may impact upon the environment.
17.3 On
being informed by the relevant authority that the plan of study has
been accepted or on receiving a request to submit a scoping
report
without a prior plan of study, the applicant must submit a scoping
report to the relevant authority.
17.4 After
a scoping report has been accepted the relevant authority may decide:
(a) that the information contained in the scoping
report is
sufficient for the consideration of the application without further
investigation; or (b) that the information contained
in the scoping
report should be supplemented by an environmental impact assessment
which focuses on the identified alternatives and
environmental issues
identified in the scoping report.
17.5 Thereafter,
the relevant authority must consider the application and may decide
to: (a) issue an authorisation with or without
conditions; or (b)
refuse the application.
[18] It
should be mentioned that though sections 21 and 22 of the ECA (as
well as the notices and regulations issued pursuant thereto)
are
repealed by section 50 (2) of the National Environmental Management
Act No. 107 of 1998 (“NEMA”) with effect from a date
to be
published in the Government Gazette, such repeal has not come into
operation as yet.
[19] Section
35 (3) of the ECA provides that any person who feels aggrieved at a
decision of any authority of first instance (as defined),
may appeal
against such decision to the Minister or competent authority
concerned (as the case may be) in the prescribed manner,
within the
prescribed period and upon payment of the prescribed fee. It is
common cause that the MEC is the designated competent
authority for
determining appeals in terms of section 35 (3) and (4) of the ECA.
[20] Regulation
11 (2) of the 1183 ECA Regulations, prescribes that an appeal must
set out all the facts as well as the grounds of
appeal and must be
accompanied by all relevant documents or copies of them which are
certified by a commissioner of oaths.
THE
NATURE OF AN APPEAL IN TERMS OF SECTION 35 OF THE ECA.
[21] Counsel
for the parties to the appeal are agreed that an appeal in terms of
section 35 (3) and (4) of the ECA, is a “wide”
appeal. Mr.
Budlender SC, with him Ms Cowen, for applicants, submitted that it is
an appeal which requires the decision-maker to
make a fresh
determination on the merits. As authority for this submission
reliance was placed on the decision in
Tikly
and Others v Johannes NO and Others
1963 (2) SA 588
(T) at 592 A-E.
[22] Counsel
for On Track, Mr. Newdigate SC, with him Ms. Pillay, submitted that
the wide appeal envisaged in section 35, does not
necessarily require
the MEC to make a fresh determination. He pointed to the wording of
section 35 (4), which requires the MEC to
consider
“such
an appeal”
.
This, he submitted, may require the MEC to reconsider an aspect or
aspects of the original ROD, however, the original ROD stands
unless,
having considered an appeal, the MEC varies or sets aside the
original ROD.
[23] As
emphasised by Baxter,
Administrative
Law
(1984) at 255, the precise form that an administrative appeal must
take and the powers of the appellate body will always depend on
the
terms of the relevant statutory provisions. In regard to an
inter-departmental appeal, such as the present appeal to the MEC,
the
learned author expresses the following view at 264-5:
“
If an appeal
does lie to a Minister the power of decision is thereby kept fully
within the departmental hierarchy and the appellate
body (the
Minister) is usually in a position to exercise the widest appellate
jurisdiction. Such appeals therefore normally take
the form of ‘wide’
appeals, or re-hearings de novo.”
[24] In
Administrator,
South
West Africa v Jooste Lithium Myne
(Edms)
Beperk
1955 (1) SA 557
(A), Hoexter JA said the following at 565B-G with
regard to an appeal to the Administrator against the decision of a
mining inspector:
“
In
my opinion the word ‘appeal’ in section 12 is not used in its
ordinary legal sense but in the wider sense which empowers the
appeal
tribunal (the Administrator) to substitute its own finding of facts
and its own decisions on the legal issues involved for
those of the
tribunal of first instance. Both the tribunals concerned are lay
tribunals…In these circumstances I am of the opinion
that the
appeal tribunal is entitled to take whatever steps it may deem
necessary for the decision of the appeal and to substitute
its own
finding of facts and its own decision on relevant questions of law
for those of the inspector…It follows that it is unnecessary
for me
to deal with the findings of fact or the legal conclusions of the
inspector except insofar as they have been adopted by the
Administrator.”
[25] In
the instant matter the power of decision on appeal is also kept fully
within the departmental hierarchy, which, as pointed
out by Baxter
supra
,
results in the appeal normally taking the form of a re-hearing
de
novo
.
Notably too, section 35 (4) confers wider powers on the MEC than
would be the case in a “normal” appeal, namely to confirm,
set
aside or vary the decision of the second respondent or to make such
order as she may deem
fit
.
Regulation
6 (3) (b) of the 1183 ECA Regulations, supplements these wide powers
enjoyed by the MEC, in providing that the appeal authority
may decide
that the scoping report initially submitted, is sufficient for the
consideration of the appeal, or that same should be
supplemented by
an environmental impact assessment which focuses on the alternatives
and environmental issues identified in the scoping
report.
[26] If
one has regard to the contents of the 2007 ROD, as well as the
Principal Reasons furnished by the MEC for purposes of this
review
application, it is clear that she did not merely confine herself to
the appeals lodged against the original ROD, but considered
the
application for granting environmental authorisation
de
novo
.
In paragraph F of the 2007 ROD, the MEC says that she
“hereby
grants authorisation with the conditions contained in this Record of
Decision, for the execution of the activity described
above”
.
She then attaches certain conditions to the authorisation and states
that the authorisation shall lapse if the activity does not
commence
within two years of the date
“of
issue of this authorisation”
.
In paragraph 24 of her Principal Reasons the MEC explains that her
decision was arrived at as follows:
“
I decided to
grant environmental authorisation after a thorough consideration of
the motivations for the proposed development and
the anticipated
impact of each of the three design alternatives and of the no-go
option upon both the bio-physical and socio-economic
environment.”
She
continues, in paragraphs 25 to 60 of her Principal Reasons, to
provide a detailed summary of her
“general
reasons for granting
environmental
authorisation”
.
[27] It
also appears from paragraphs 21 to 23 of her Principal Reasons, that
the MEC was aware that she was entitled to consider new
evidence
which had not originally been placed before the second respondent.
She states that one of the issues that she had applied
her mind to,
was whether
“the
application for environmental
authorisation”
could be decided only on the basis of the scoping report or whether
an environmental impact assessment was called for. She concluded
that:
“
Accordingly,
I carefully applied my mind to the information contained in the final
scoping report. I was of the view that it was sufficient
for
consideration of the application without further investigation and
therefore decided to not call for an EIA report”.
[28] In
these circumstances, I incline to the view that the MEC, in dealing
with an appeal in terms of section 35 (3) and (4) of the
ECA, does
not exercise appeal powers in the ordinary legal sense, but in the
wider sense, which empowers her not only to substitute
her own
findings of fact and legal conclusions for those of the second
respondent, but to conduct a re-hearing of the matter. Whilst
I agree
with Mr. Newdigate that the 96 appeals which were lodged, would be
the MEC’s point of departure, she was, in considering
the appeals,
entitled to consider, and in the instant case did consider, On
Track’s application afresh. That is why the review
before this
court is a review of the decision of the MEC taken in terms of the
2007 ROD, and not a review of the original ROD.
CONSIDERATION OF THE REVIEW GROUNDS
[29] Judicial review is in essence concerned, not with
the decision, but with the decision-making process. Review is not
directed
at correcting a decision on the merits. Upon review the
court is in general terms concerned with the legality of the
decision, not
with its merits. The function of judicial review is to
scrutinise the legality of administrative action, not to secure or to
substitute
a decision by a Judge in the place of the decision of an
administrator.
See Herbstein and Van Winsen,
The
Civil Practice of the High Courts of
South
Africa
, 5
th
Edition, Vol. 2, page 1266/7 and the authorities there cited.
Failure to consider alternatives
[30] Section 22(2) of the ECA, requires the functionary
who has to decide whether the necessary environmental authorisation
should
be granted, to consider reports
“concerning
the impact of the proposed activity and of alternative proposed
activities on the environment”.
This duty
is mandatory as section 22 (2) expressly states that the
authorisation
“shall only be issued after”
consideration of such reports.
[31] In regulation 1 of the 1183 ECA Regulations,
“alternative”
is
defined as
“in relation to an activity, …any
other possible course of action, including the option not to act.”
It follows that the relevant functionary is
obliged to investigate and evaluate alternative proposed activities,
including the option
not to act. To this end, as I have already
pointed out, the functionary is required to consider reports which
should not only concern
the impact of the proposed activity, but also
alternative courses of action, including the option not to act. In
practical terms,
the decision maker in the present matter was
required to also consider, on the strength of a report to this
effect, whether the land
in question ought to continue with its land
use as zoned public open space.
[32] Applicants submit that alternative proposed
activities, in particular the option not to act (referred to in
argument as the
“no-go option”
)
were not properly considered by the MEC, as they were not duly
investigated and reported on, as required by the ECA. They submit
that, due to this failure, the 2007 ROD is unlawful and falls to be
set aside.
[33] Mr. Newdigate’s argument in this regard was
two-fold. First, he submitted that as the Minister’s decision was
given on appeal
in terms of section 35(4) of the ECA, and not in
terms of section 22 of the ECA, she was not required to consider the
reports prescribed
by section 22(2). Second, he submitted that, in
any event, it appears from the MEC’s Principal Reasons that she did
consider the
no-go option as an alternative.
[34] In paragraphs 21-28 above, I have found that, in
dealing with the appeals in terms of section 35(3) and (4) of the
ECA, the MEC
conducted a re-hearing
de novo
.
From this it necessarily follows that the granting of environmental
authorisation for the proposed redevelopment of the site to
On Track,
was an original decision taken in terms of section 22 of the ECA. In
view thereof, I do not agree with the submission of
Mr. Newdigate
that the MEC was not required to consider the reports envisaged in
section 22(2) of the ECA. On the contrary, at the
heart of her
decision-making function, was the duty prescribed by section 22(2),
to consider reports in relation to other possible
courses of action,
including the no-go option.
[35] On Track appointed Chand, specialists in
environmental management and research, to act as its independent
consultant in complying
with the ECA and the regulations. To this
end, Chand prepared a draft scoping report and a final scoping
report, which were submitted
for consideration by second respondent
and subsequently by the MEC. It is clear from the MEC’s Principal
Reasons, that she relied
substantially on the content of these
reports in taking her decision to grant On Track the necessary
environmental authorisation
for the proposed development. It is also
clear from the scoping reports that Chand did not investigate the
question of alternative
proposed activities for the site. The reason
for this appears to be that On Track adopted the stance that the
scoping reports should
focus on implementing the City’s tender
award and not consider alternative types of activities (including the
no-go option) for
the site.
[36] In the draft scoping report of June 2001 (in
respect of design options 1 and 2) Chand expressly acknowledged that
it had not
investigated the desirability of the proposed development
or alternative types of development for the site. The reason for this
was
that it believed that the investigation was limited by the City’s
tender decision, which had
“stipulated the
type of development that should be put on the site”.
[37] In its final scoping report of February 2002, Chand
persisted with this approach and explained it as follows:
“
The scope of this report was pre-determined by the
tender process undertaken by the CTA
(the
City)…
On Track are required to deliver a
project in keeping with the criteria put forth during the tender
phase. For this reason, this environmental
study does not investigate
the desirability of this development or alternative types of
development for the site. However, it is
understood that the CTA in
receiving a number of submissions to the proposal call evaluated the
alternatives received”.
[38] It transpired that the MEC was repeatedly advised
that it was necessary to investigate and consider the alternatives
and that
she could not and should not rely on the City’s proposal
call as determinative of the issue. This advice was given by the City
and by a senior official in the MEC’s own department. Common
Ground, the consultant appointed by her department to consider and
advise on the appeals, also expressed concern about this aspect.
However, it is clear from the 2007 ROD, that the only “alternatives”
considered by the MEC, were the three design options submitted for
this proposed development by On Track. In particular, the 2007
ROD
contains no reference at all to a consideration by the MEC of the
no-go option.
[39] This failure of the MEC to consider reports of
alternative proposed activities and, in particular, the no-go option,
is, in my
view, fatal. The consideration of such reports is a
jurisdictional prerequisite for the exercising of her decision-making
function
in terms of section 22 of the ECA. Also, as a matter of
substance, an expert report on the crucial question whether the land
should
not be retained as public open space, is an indispensable
prerequisite. Absent such a report, I fail to see how the MEC could
lawfully
discharge her decision-making duties.
[40] The Sea Point Promenade has a long history of use
as public open space on a multi-cultural and non-racial basis. The
City describes
the area in the following terms:
“The
area serves as a popular public promenade. It is used for religious
purposes in Ramadaan, as a passive recreation area, and
is utilised
predominantly by pedestrians, joggers, cyclists and sightseers.”
The swimming pool and its surrounding area is
used extensively for recreational purposes, by people who come from
all walks of life
and from all over the Peninsula. It is described as
one of the few open spaces in Cape Town which seems to evoke the
sense that social
equality sought by democracy is in fact being
fostered there.
[41] In an article in the Cape Times of 18 December
2009, Rory Williams and Mokena Makeka, specialists in urban planning,
drew attention
to the fact that public space, as the ancient Greeks
understood, is a foundation of democracy. They lamented, however,
that in Cape
Town great public spaces seem to be as elusive as a
windless summer day. This, unfortunately, is the sad state of affairs
and the
Sea Point Pavilion site is one of the remaining great public
spaces in Cape Town. I am of the view that a decision to allow an
up-market
hotel and retail complex to be erected thereon, should not
be taken without the assistance and guidance of an expert report
investigating
the strategic significance of such a change of land
use.
[42] It is worthwhile referring to a paper delivered by
Karina Landman, a Research Architect/Urban Designer, at the
International
Conference on Private Urban Governance in Mainz,
Germany, in June, 2002. She dealt with the topic of gated communities
in South Africa
and,
inter alia
,
made the following thought-provoking comments:
“
Democracy is not only dependent on political
democracy. Although the first step toward complete democracy…is
clearly political democracy,
it can only be a first step. It is the
first phase of a much longer process required to achieve a true or
more balanced democracy.
Thus democracy cannot only be political, but
should also be institutional, socio-economic and spatial.”
[43] In considering democracy on a spatial level,
Landman employs the phrase “democratic space”, which she
describes thus:
“
Democratic space refers to open, secure and
well-developed public urban spaces for all urban residents where
people should be able
to mix with various groups and experience the
benefits of urban environments. Again, the local authority has a
major role to play
in promoting and supporting the development of
democratic urban spaces throughout the City.”
[44] These views of Landman emphasise the fact that
decision-makers who are confronted with applications which involve
the utilisation
of public open spaces, should appreciate the
importance of the decision which they are required to take and not to
proceed with the
decision-making process in the absence of an expert
report dealing fully with the strategic significance of any change of
land use
from zoned open space to any other land use.
[45] I should mention that in her Principal Reasons the
MEC states that she did consider the no-go option. It should,
however, be
borne in mind that the Principal Reasons were only
furnished after the filing of the founding papers in this
application. As mentioned
earlier, the 2007 ROD shows that in taking
her decision, the MEC only considered On Track’s three design
options and no other alternatives,
particularly not the no-go option.
However, even if it is accepted that the MEC did consider the no-go
option before taking her decision,
my aforementioned basic difficulty
remains, i.e. that the scoping reports upon which she based her
decision do not deal with alternative
proposed activities and in
particular the no-go option.
[46] I should mention that in the final scoping report
Chand did draw certain conclusions which would, in their view, follow
if the
proposed development would not take place. These conclusions
cannot, in my view, by any stretch of the imagination be regarded as
a reasoned report in compliance with the provisions of section 22(2)
of the ECA.
[47] In the result, I am in agreement with the
submission of Mr. Budlender, that the 2007 ROD is to be reviewed and
set aside as:
A mandatory and material condition in section 22(2) of
the ECA, read with the 1183 EIA Regulations, was not complied with
(section
6(2)(b) of the Promotion of Administrative Justice Act No.
3 of 2000 (‘PAJA’).
The decision was materially influenced by an error of
law, in that the MEC misunderstood her obligation to consider
information
and reports on alternative land uses (section 6 (2)(d)
of PAJA).
[48] Although this should be the end of the matter, I
deem it convenient to deal with two of the remaining grounds of
review relied
upon by applicants.
Reliance on the Commlife report
[49] A person who applies in terms of section 22 of the
ECA, for authorisation to undertake an activity identified in terms
of section
21 (1) of the ECA, is, in terms of regulation 3 (1) (a) of
the 1183 ECA Regulations, required to appoint an independent
consultant
to comply with certain prescribed responsibilities. The
independent consultant has to prepare the prescribed reports, collate
information
and conduct the required public participation process.
Regulation 3 (1) (c) of the 1183 ECA Regulations, requires the
applicant to
ensure that the consultant has no financial or other
interest in the undertaking of the proposed activity, except with
regard to
the compliance with the said regulations. As submitted by
Mr. Budlender, it is of central importance to the efficacy of the
environmental
impact assessment process that the information upon
which the relevant authorities take their decisions, is impartial.
The purpose
of the independence requirement is to ensure the
integrity of the reports and information upon which a decision is
based.
[50] As mentioned earlier, On Track appointed Chand,
specialists in environmental management and research, to act as its
independent
consultant in complying with the ECA and the regulations.
Chand prepared the scoping reports which were submitted for
consideration
by second respondent and subsequently by the MEC. The
final scoping report was, inter alia, based on an economic report
prepared
by property specialists, Commlife and Diamond Properties.
The report was co-authored by Commlife, which, applicants allege, had
a
financial interest in the approval of On Track’s application for
environmental approval. It is common cause that the alleged financial
interest of Commlife was not disclosed to second respondent or the
MEC. Applicants accordingly submit that the 2007 ROD was compromised
as the mandatory material requirement of a report compiled by an
independent consultant, had not been complied with.
[51] On Track does not dispute that, in principle,
regulation 3 (1) (a) and (c) of the 1183 ECA Regulations, also
applies to an independent
specialist such as Commlife (as opposed to
an independent consultant). However, On Track contends that the
requirement of independence
should not be interpreted to mean that
such independent specialist, must, of necessity, have no involvement
whatsoever with the applicant
for an environmental authorisation. Mr.
Newdigate further argued that, in any event, it has not been shown
that Commlife had a direct
and substantial interest that warranted
declaration to the MEC.
[52] In support of this ground of review, applicants
placed reliance on an internet article in which it was stated that
Commlife
“has been appointed by developers
On Track as sole letting agent for the R60 million redevelopment of
the Sea Point Pavilion.”
On Track denied
that the article is factually correct, explaining that only informal
discussions were held with Commlife regarding
their possible
appointment as a letting agent, but that no agreement had been
reached. These being motion proceedings, On Track’s
version has to
be accepted and there is, in any event, nothing to gainsay On Track’s
version.
[53] The relevant circumstances surrounding the
involvement of Commlife, appear from correspondence between the State
Attorney, Chand
and On Track’s attorneys. This correspondence is
annexed to the affidavit of Uys, which forms part of the papers in
this application.
These circumstances may be summarised as follows:
53.1 On Track’s project manager, Tsepo Lurie Yates,
appointed Commlife and Diamond Properties to provide an expert report
on the
economic impact of the proposed development.
53.2 At roughly the same time that Commlife and Diamond
Properties prepared their combined specialist report, discussions
were held
between On Track and Commlife in relation to the
appointment of Commlife as the sole letting agent for the
development. Commlife
was not, however, given a firm mandate to act
as the letting agent for the development, nor was any written
agreement signed to that
effect.
53.3 Chand would not have been aware of the discussions
between On Track and Commlife in regard to the letting of the
development.
53.4 Any possible appointment of Commlife as the letting
agent would only have occurred upon the development going ahead.
[54] The concern raised by Uys in regard to the
involvement of Commlife, is expressed as follows in paragraphs 28 and
29 of his affidavit:
“
I draw no reassurance from the fact that any
actual appointment of Commlife as the sole letting agent would occur
only in the event
that the development went ahead. Since the
development would not be built if environmental authorisation is
refused, Commlife had
a direct interest in casting the development in
a favourable light in its specialist report. In my view, in the
circumstances this
interest compromised Commlife’s independence”.
[55] In its letter of 17 September 2008, the State
Attorney reiterated the concern of Uys as follows:
“
Your client (On Track) does not deny the thrust of
the allegation that it had indicated to Commlife that Commlife would
or could be
appointed sole letting agent in the event that the
proposed development went ahead. In the circumstances, it was clearly
contemplated
that Commlife would or could be appointed as the sole
letting agent of the proposed development”.
[56] In its response, On Track did not deal directly
with this concern. It merely stated that Commlife was not given a
mandate and
that On Track did not create a legitimate expectation on
the part of Commlife that it would be the probable letting agent.
Notably,
however, On Track refrained from providing any detail of the
negotiations with Commlife, nor did it obtain any evidence from
Commlife
as to its expectations in this regard.
[57] In my view, there is justification for the concern
expressed by Uys. His conclusion that Commlife would or could have
had an
expectation or contemplation that it might derive a financial
benefit from the proposed development, seems, in the prevailing
circumstances,
to be reasonably justifiable. The fact of the matter
is that the appointment of Commlife as the sole letting agent was
mooted and
there is no evidence tendered by On Track or Commlife, to
dispel the reasonable inference that Commlife would or could, in the
circumstances,
probably have had an expectation or contemplation that
it might derive a substantial financial benefit from the proposed
development.
This would or could have provided Commlife with the
incentive to cast the proposed development in a favourable light in
its specialist
report.
[58] Mr. Newdigate submitted that, as applicants have
relied on the aforesaid internet article for this ground of review,
which article
has been shown to be factually incorrect, they are
precluded from relying on the correct facts, alluded to by On Track
in its answering
affidavit, as an alternative basis for the review.
He relied on the following principle enunciated in
Administrator,
Transvaal, and Others v Theletsane
and
Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 197 C-D:
“
...the room for deciding matters of fact on the
basis of what is contained in a respondent’s affidavits, where such
affidavits deal
equivocally with facts which are not put forward
directly in answer to the factual grounds for relief on which the
applicant relies,
if it exists at all, must be very narrow indeed.”
[59] It appears to me that the
Theletsane
-case
is clearly distinguishable from the instant matter. First, the
relevant allegations in On Track’s answering affidavit are
put
forward directly in answer to the factual basis upon which applicants
rely for this ground of review, namely Commlife’s alleged
conflict
of interest. Second, the common cause facts in this regard are, in
any event, also to be gleaned from the annexures to the
affidavit of
Uys, which forms part of the body of evidence before us. It follows,
in my opinion, that applicants are entitled to
rely on the factual
basis set out in paragraph 53 above.
[60] On Track seeks to minimise the role played by
Commlife in the joint report, claiming that most of the
investigations and drafting
were done by Diamond Properties. The fact
of the matter, however, is that Commlife was,
ex
facie
the document, jointly responsible for
the report, which is dealt with as follows in the scoping reports:
“
Commlife/Diamond Properties undertook a study to
assess the commercial viability of the proposed redevelopment of the
Sea Point Pavillion.
Their report included the anticipated economic
impacts of the redevelopment on existing businesses. They related the
potential of
the proposed Sea Point Pavillion in becoming a viable
development to the Strand Pavillion and Tygerberg Shopping Centre. It
is the
opinion of Commlife/Diamond Properties that the proposed
redevelopment should, at worst, result in residential property values
in
the surrounding Sea Point areas remaining the same…therefore
property values should definitely not be negatively affected by the
development. In fact, in many instances, it may increase values.”
In arriving at her decision, embodied in the 2007 ROD,
the MEC relied on these scoping reports. The reasonable conclusion to
be drawn
is that the Commlife/Diamond report was material to the
MEC’s decision.
[61] The deponent to On Track’s answering affidavit,
relying on a letter of On Track’s attorneys dated 15 September
2008, alleges
that:
“
The economic specialist report prepared by
Commlife and Diamond-which assessed the impact of two design
options-was moreover entirely
the product of Diamond, which was
responsible for almost all the investigations for, and drafting of,
that report.”
The relevant paragraph in the letter, however, does not
say that the report
“was moreover entirely
the product of Diamond
”. What it says is
that the report was
“apparently”
almost entirely the work of Diamond. It is unlikely that the attorney
who authored the letter, would have had knowledge of the role
that
Commlife played in the production of the report. There is also no
evidence on record as to the extent of the contribution that
Commlife
made to the report. What is common cause, is that Commlife made a
contribution to the report upon which the MEC relied for
her decision
to grant the application for environmental authorisation.
[62] Mr. Newdigate further relied on the allegation in
On Track’s answering affidavit, that Commlife indicated to On Track
that
it did not have the requisite experience to be the letting agent
for an Atlantic Seaboard building and the matter was accordingly
left
there. It is significant to note that this allegation was not made in
the correspondence annexed to the affidavit of Uys. It
also seems
strange that, if this was said by a representative of Commlife, no
details are given as to when it was allegedly said,
nor is the person
who made the statement, or the person to whom it was communicated,
identified. In any event, even if this statement
was made on behalf
of Commlife, it does not, in my view, detract from the fact that the
appointment of Commlife was, at the relevant
time, mooted, with the
result that Commlife probably would or could have had an expectation
or contemplation that it might derive
a substantial financial benefit
from the proposed development. Finally, I wish to re-iterate the
significance of the absence of any
evidence from Commlife, for which
On Track proffers no explanation at all.
[63] I am of the opinion that a specialist, such as
Commlife, should also meet the requirement of having no financial or
other interest
in the undertaking of the proposed activity, as
envisaged by regulation 3(1)(c) of the 1183 ECA Regulations. I
believe that Glazewski,
Environmental Law in
South Africa
, 2
nd
edition, page 240, correctly states the position thus:
“
In stipulating that an independent consultant is
appointed, the view may be held that the requirement of independence
does not apply
to specialists who may be appointed by the consultant
to carry out specific duties. In the writer’s view, the requirement
of independence
applies to both the consultant and the specialists
who may contributed (sic) to the study”.
To allow for a lesser degree of independence on the part
of such a specialist, would, in my view, seriously compromise the
impartiality
and integrity of the specialist’s report, and thereby
undermine the legitimacy and efficacy of the environmental impact
assessment
process. I conclude that, in the prevailing circumstances,
Commlife did not meet the requirement of independence, stipulated by
regulation
3(1)(c).
[64] Mr. Budlender accordingly submitted, correctly in
my view, that, as this jurisdictional requirement of independence had
not been
adhered to, the decision of the MEC, who relied on such
report, was materially compromised. It follows that, as a mandatory
and material
condition prescribed by the empowering provision was not
complied with, the decision of the MEC falls to be reviewed and set
aside
on this ground too, in terms of the provisions of section 6 (2)
(b) of PAJA.
Failure to consider changed circumstances
[65] The MEC’s decision to grant the application for
environmental authorisation, was taken on 8 August 2007. This was
some three
years after second respondent had issued the original ROD.
The MEC’s decision was based primarily on information contained in
the
final scoping report dated April 2003, i.e. some four and a half
years before the MEC took her decision.
[66] Applicants submit that, in deciding whether to
grant environmental approval in 2007, the MEC was obliged to have
regard to the
situation existing at that particular point in time. In
this regard applicants rely on the decision in
Medi-Clinic
Limited v Head, Department of Health, Province of
Western Cape and Others
(2006) JOL 16871
(C) at paragraph 35. See also
Fuel
Retailers Association v DG: Environmental Management
,
Mpumalanga
2007 (6) SA
4
(CC) at paragraph 96.
[67] Applicants contend that, as the appellants
specifically raised the issue of the desirability of the proposed
development having
regard to its negative environmental impact,
particularly in view of the loss of public open space, the MEC was
required to consider
relevant information and not to act, as she did,
on the basis of outdated information. They submit that she
accordingly made the
decision on the basis of irrelevant
considerations and failed to have regard to relevant considerations,
i.e. the prevailing circumstances
in 2007. As this was a wide appeal,
applicants submit that the MEC ought to have called for relevant
current information, in particular
a full and current environmental
impact assessment report. Her failure to do so, applicants contend,
renders her decision unlawful.
[68] Mr. Newdigate, however, contended that it appears
from the MEC’s Principal Reasons, that she did consider whether the
information
she based her decision on, was valid at the time she took
her decision. He accordingly submitted that as the MEC did give
proper
consideration to the issue in question and based her decision
upon such consideration, there is no basis for reviewing her decision
on this ground.
[69] Mr. Newdigate further argued that, insofar as
applicants rely on a change of circumstances, these were not material
considerations
which necessitated the MEC to have regard to new and
further information. He stressed that, in this regard, it is
insufficient for
applicants to allege or prove merely that there has
been a change in circumstances. What has to be shown, in this
context, is that
there was in fact a change which resulted in
relevant considerations not being considered. Put differently,
applicants have to prove
that there was a change in circumstances
which was relevant to the decision and that the MEC in making her
decision, failed to consider
same.
[70] The approach of the MEC is set out in paragraphs 19
to 23 of her Principal Reasons. The relevant passages read as
follows:
“
Although I took three years to decide the appeals
I formed the view that this time lapse did not…necessitate me
acquiring additional
information or taking any further steps before
reaching a decision. From the environmental assessment reports before
me in this matter
and from my own knowledge of the area, I know that
the bio-physical environment of the Sea Point Pavilion had already
been heavily
impacted upon by past development of the site. No
further significant bio-physical impact was likely to have occurred
in the three
years leading up to my decision. The socio-economic
environment is a fully-developed urban setting. It is relatively
stable…in
my view, it was accordingly unlikely that the environment
would have further materially changed in the time since the appeals
were
lodged in September 2004…I carefully applied my mind to the
information contained in the final scoping report. I was of the view
that it was sufficient for consideration of the application without
further investigation and therefore decided not to call for an
EIA
Report”.
[71] From this it follows that, on her own version, the
MEC did not consider any changed circumstances before September 2004,
while
the factual information placed before her by means of the
financial scoping report, was based on the situation in Sea Point in
2001-2002.
Moreover, it is common cause between the experts of On
Track (Ms. Howell and Mr. Gericke) and applicants’ expert (Mr.
Berman),
that the Sea Point area changed dramatically during the
period 2002-2007. On Track’s experts describe the changed
socio-economic
environment in Sea Point as follows:
“
The Sea Point of 2007 is vastly different to the
Sea Point of 2002 due to a number of factors, amongst others:
The work of the CID, established in 2002;
The announcement of the 2010 World Cup venue in May
2004;
The new ‘urban living’ and ‘café-culture’;
Woolworths triggering the ‘Starbucks effect’
followed by estate agents.
In 2002 the retail activity corridor of Main Road had
fallen into disrepair, showing many signs of urban decay and blight.
...High-rise
apartment blocks had decayed into cheap rental
tenements. As the restaurants had discarded it in favour of the V &
A Waterfront,
vacancies were common place. …Perpetual crime and
grime spiralled, with Nigerian drug cartels, prostitutes, and a flood
of homeless
people and opportunists.”
[72] The same experts describe the Sea Point of 2007 in
the following terms:
“
The crime is under control and ‘seedy’
elements are being dealt with.
Retail vacancies have dropped to less than 2%
compared to more than 30% in 2005.
The number of estate agencies has grown by 30% since
2002. Virtually all the major players are represented.
There are 14 recent and imminent developments on
Main Road, changing the face of this corridor – 8 of which were
estimated to
represent an investment of R380 million in 2005.
Growth in supermarket turnover in Sea Point at 12.5
per annum is significant. The upgrade is evident in Woolworth’s
upgrade and
establishment of two new stores in Sea Point.
The number of international visitors/tourists to the
Western Cape has recently grown by a minimum of 4.1% p.a. and the
Sea Point
swimming pool shows a growth in visitors of 8.5% per annum
since 2002.
With the new inputs the model shows that the
proposed warranted retail floor space can be achieved with only 3%
of the retail potential
in the primary catchment.”
[73] The material change of circumstances in the period
2002-2007, referred to by the experts of the parties, ought, in my
view, to
have been taken into account by the MEC in her
decision-making process. The fact of the matter is that, to the
extent that the MEC
purported to consider socio-economic changes
after September 2004, this was on the basis of outdated and erroneous
information. It
did not reflect the socio-economic changes which, it
is common cause, had taken place. The integrity of the environmental
impact
assessment process will be seriously undermined if
decision-makers are to base their decisions on substantially outdated
information.
In fact, I find it inexplicable that the MEC decided to
grant the application, while information on which she had to base her
decision,
was some 4½ years out of date. In my view, this is a case
where the information in the final scoping report ought to have been
augmented
by a comprehensive current environmental impact assessment.
In failing to call for such an updated assessment, the MEC took her
decision
on the basis of irrelevant considerations (information which
was out of date and no longer correct), and failed to have regard to
relevant considerations (the current situation in Sea Point).
[74] Mr. Newdigate, however, argued that applicants have
failed to show that the MEC’s failure in this regard was material,
having
particular regard to the relationship of such failure to the
environmental context. Relying on the decision of
Fuel
Retailers Association of SA v D-G
:
Environmental Management, Department of
Agriculture, Conservation
and
Environment, Mpumalanga Province,
supra, he
contended that applicants have not shown that the MEC’s failure to
call for updated socio-economic information, has had
a substantial
detrimental effect on the environment. In the
Fuel
Retailers-
case, the following was said at
paragraph 45:
“
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
the socio-economic
considerations through the ideal of sustainable development.”
[75] In my view, the short answer to this submission of
Mr. Newdigate is that, in relying on outdated and erroneous
information, the
MEC precluded herself from properly performing the
required balancing exercise. In the absence of information regarding
the current
socio-economic environment in Sea Point, she could not
decide whether the proposed redevelopment of the site would, in fact,
serve
a socio-economic need. Therefore, she was unable to balance the
socio-economic consequences of the development against the (negative)
environmental consequences.
[76] I accordingly conclude that the 2007 ROD is liable
to be set aside on this ground too, in terms of section 6(2)(e)(iii)
of PAJA.
ORDER
[77] In view of the aforesaid, the application has to
succeed. As to the issue of costs, the parties are agreed that same
should be
debated after we have made our decision on the merits of
the application.
[78] Mr. Budlender submitted, correctly in my view, that
in the event of the application succeeding, the matter should be
remitted
for reconsideration by the MEC, with suitable directions, as
envisaged by section 8(1)(c)(i) of PAJA.
[79] In the result I propose that the following order be
made:
The first respondent’s decision taken in terms of
section 35(4) of the Environmental Conservation Act No. 73 of 1989
(“the ECA”),
as contained in first respondent’s Record of
Decision dated 8 August 2007, granting written authorisation to
third respondent
to undertake certain activities identified in
section 21 (1) of the ECA on erven 151, 153 and 318 Sea Point West,
Cape Town, is
reviewed and set aside.
The matter is remitted for reconsideration by first
respondent, taking account of the principles outlined in this
judgment.
The issue of costs is to stand over for later
determination.
___________
P B Fourie, J
I agree and it is ordered accordingly.
__________
S Desai, J
REPORTABLE
I
N
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE HIGH COURT, CAPE TOWN]
Case
No: 15974/07
In
the matter between:
SEA
FRONT FOR ALL
First Applicant
SHIRLEY
JOAN RABINOWITZ
Second Applicant
and
THE MEC:
ENVIRONMENTAL AND
DEVELOPMENT
PLANNING, WESTERN
CAPE
PROVINCIAL GOVERNMENT
First
Respondent
THE DIRECTOR:
INTEGRATED
ENVIRONMENTAL
MANAGEMENT,
DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT PLANNING,
WESTERN
CAPE PROVINCIAL GOVERNMENT
Second
Respondent
ON
TRACK DEVELOPMENTS (PTY) LTD
Third
Respondent
THE
CITY OF CAPE TOWN
Fourth Respondent
Advocate
for Applicants : Adv. G Budlender SC
: Adv.
S Cowen
Advocate
for Third Respondent : Adv. JA Newdigate SC
: Adv. K
Pillay
Attorney
for Applicants : Edward Nathan Sonnenberg
Attorney
for Third Respondent : Cliffe Dekker Hofmeyr
Date
of hearing : 4 December 2009 and
26 February 2010
Date of
Judgment : 26 March 2010