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[2014] ZAWCHC 212
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Langebaan Ratepayers And Residents Association v Western Cape Provincial Minister for Local Government Environmental Affairs And Developmental Planning and Others (4917/2013) [2014] ZAWCHC 212 (19 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 4917/2013
DATE:
19 AUGUST 2014
In the matter
between:
LANGEBAAN
RATEPAYERS AND RESIDENTS
ASSOCIATION
..................................
Applicant
And
THE
WESTERN CAPE PROVINCIAL MINISTER
FOR
......................................
First
Respondent
LOCAL
GOVERNMENT, ENVIRONMENTAL AFFAIRS
AND
DEVELOPMENTAL PLANNING
DORMELL
PROPERTIES 391 (PTY)
LTD
..........................................................
Second
Respondent
SALDANHA
BAY
MUNICIPALITY
........................................................................
Third
Respondent
JUDGMENT
DELIVERED: TUESDAY, 19 AUGUST 2014
SALDANHA,
J
[1.]
This is an application in terms of section 6 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA)
[1]
for the review and setting aside of a decision of the first
respondent to uphold the second respondent’s appeal in terms
of
section 43
[2]
of the National
Environmental Management Act 107 of 1998 (NEMA) and to grant an
environmental authorization in terms of section
24
[3]
of NEMA and Regulation 66
[4]
of
the Environmental Impact Assessment Regulations 2010 (the EIA
regulations, 2010). The decision sought to be impugned is that
of the
first respondent, the Western Cape Provincial Minister of Local
Government, Environmental Affairs and Developmental Planning
taken on
the 1
st
October 2012 in which he upheld an appeal against a refusal by the
Chief Director; Environmental and Land Management Directorate,
Land
Management (Region 2) in the Western Cape Provincial Government taken
on the 7
th
April 2011 for environmental authorization in terms of NEMA for
activities 1(k), 2, 3, 5, 6, 12, 15, 16 and 18 listed in GN R386
of
21 April 2006, activity 2 listed in GN R387 of 21 April 2006,
activities 16 and 18 in GN R544 of 18 June 2010, activity 15 in
GNR545 of 18 June 2010 and activities 12, 13, and 14 in GN R546 of 18
June 2010
[5]
(“the
listed activities”)
in respect of a proposed residential development known as Shark
Bay, by the second respondent on the remainder of farm Oostewal
292 Langebaan
(“the
property”
)
The second respondent is a private company. The first
respondent issued a partial authorization in terms of section
43(6)
[6]
of NEMA granting the
second respondent environmental authorization to develop 69 housing
units (against that initially sought for
109 housing units) for the
listed activities, with the exception of activity 18 (listed in GN
R386 of 21 April 2006),
[7]
and
subject to compliance with twenty-one (21) conditions in respect of
the development as set out in his decision.
[2.]
The applicant is a voluntary association not for gain, lawfully
constituted and whose objectives include the furthering of
the
interests of ratepayers and other residents of Langebaan on a non-
political basis. The protection of the very special
characteristics of the natural environment, more particularly in what
the applicant refers to as the buffer zone between Langebaan
and the
West Coast National Park (WCNP), falls within the ambit of its
objectives with which it is engaged in and interacts with
the third
respondent, the Saldanha Municipality. The applicant was a
registered interested and affected party (I & AP)
in the
administrative processes that are the subject matter of this
application and objected to the proposed development from the
inception of the application for environmental authorization right up
to the first respondent’s decision on appeal.
The
applicant noted the potential interest that South African National
Parks (SANParks), a statutory agency responsible for the
West Coast
National Park (WCNP), had in the matter and caused a copy of the
application to be served on SANParks should it have
sought to support
the application or sought leave to have joined the proceedings.
SANParks did not seek to join the proceedings.
It did
however make submissions to the consultants employed by the second
respondent on the draft and final scoping reports.
It also made
a substantive submission to the first respondent in opposing the
second respondent’s appeal.
The
location of the property.
[3.]
The property is situated on the eastern shore of the Langebaan Lagoon
(designated as a RAMSAR
[8]
site)
adjacent to the West Coast National Park at the southern end of
Langebaan and is approximately 8km west of the R27 (the West
Coast
Road). Park Drive along which the property is situated has
since 1991 been proclaimed as a public road and forms an
arterial
route connecting Langebaan with the WCNP. The property is
bordered to the north by a residential development (Myburgh
Park
phases 1 and 3). There are according to the Environment Impact
Report (EIR) five other properties separating the property
and the
WCNP. The actual sizes of these properties are disputed between
the applicant and the second respondent who contends
that these
properties constitute a sufficient buffer between the WCNP and the
proposed Shark Bay development. The property
is separated from
the Myburgh Park Phase 1 by the Stompneusrots outcrop for which the
applicant relies as creating a natural barrier
between the
residential development of Myburgh Park and the property. The
second respondent has pointed out that the property
is neither part
of the Western Cape Nature Reserve nor is there any agreement in
place that binds the second respondent in terms
of which there are
any conditions that the property is to become part of the WCNP.
The property does not form part of the
WCNP’s published
expansion plans. The property is also not part of a local
authority nature reserve or private nature
reserve nor is it an area
managed by Cape Nature or SanParks. It does not form part of
the West Coast National Park Marine
Reserve. While the property
falls within the buffer zone of the Cape West Coast Biosphere
Reserve, such reserve, second respondent
pointed out, stretches
continuously from Diep River in Cape Town to the Berg River north of
Saldanha which includes within it heavily
developed urban and
industrialized areas. The second respondent emphasized that
certain of the activities in respect of which
the environmental
approval was granted were relevant precisely because of the natural
features and the location of the property
inter alia;
(i)
activities numbers 2, 3, of GN 386, 16 and activity 18 of listing
notice 1/2010 apply where certain construction and similar
activities
are to take place within a certain distance from the sea (including a
lagoon);
(ii)
Activities 5, 12, of GN 386 and 12 and 13 of listing notice
3/2010 apply where indigenous vegetation is to be cleared
within a
critical bio diversity area and/or close to the sea and/or in an area
within ten kilometres of a national park.
(iii)
Activities 16 of GN 386 and 15 of listing notice 2/2010 apply where
undeveloped or vacant land is to be transformed (inter
alia for
residential use).
[4.]
The property was incorporated as part of the municipal area of the
town of Langebaan since 1995 by proclamation 104/1995, as
part of the
final phase of the countrywide restructuring of local government.
The
partial authorization.
[5.]
The approvals by the first respondent which are challenged constitute
environmental authorizations for a development that will
entail:
(i)
a development of 69 houses, in four clusters on approximately 6% of
the property in accordance with architectural and landscaping
design
guidelines;
(ii)
the rezoning of approximately 89% of the property to open space to be
managed as a conservation area and 5% of the remaining
property as a
transport zone; and
(iii)
the construction of public parking and public ablution facilities
at the Langebaan Lagoon shore and the formalization
of public access
to the Lagoon by means of a boardwalk over the property.
[6.]
The approvals were granted pursuant to an environmental impact
assessment process which according to Douglas John Jeffery of
Doug
Jeffery Environmental Consultants (Pty) Ltd, the environmental
assessment practitioner appointed by the second respondent,
were
carried out by a team of qualified experts well known in their
respective fields and which had been undertaken over a long
period of
time with many of the experts having been involved in the project
over many years. Jeffery claimed that the team
was familiar
with the details of the project, the property and the surrounding
area. The specialist reports he stated were
prepared following
a lengthy and iterative process which involved considerable
engagement on a broad range of issues and points
of detail with
interested and affected parties (I & AP’s) and with
officials from the relevant department. According
to Jeffrey
such process resulted in a comprehensive, objective and technically
complete report which he claimed more than met the
requirements of
the EIA regulations. The specialists and the second respondent
indicated their preference for a residential
layout referred to as
alternative 5 (of amongst five other alternatives and a “no
go”-“status quo” option
considered in the
development on the property) which entailed 109 single residential
erven with an average size of 750m,
2
parking and ablution
facilities, public open spaces, conservation areas and internal
roads. The final Environmental Impact
Report (EIR) and
attachments formed part of the record filed by first respondent.
The
basis for the relief sought.
[7.]
The applicant’s central challenge in the review is what it
terms the failure by the first respondent to have taken relevant
considerations into account in relation to the status of the land
sought to be developed, thereby fettering his discretion when
taking
the decision (the substantive challenges), and that the first
respondent had failed to follow mandatory and material procedures
prescribed by NEMA (the procedural challenges).
[8.]
The first respondent and third respondents did not file answering
affidavits in the matter and abide the decision of the court.
The second respondent opposes the relief sought and defends the first
respondent’s decision on the basis that he fully complied
with
the principles of sustainable development as prescribed in the
Constitution of South Africa (Act 108 of 1996), NEMA
and other
relevant environmental legislation; that the first respondent had
fully complied with his obligations as reflected in
the Record of
Decision (ROD); that the first respondent had fully understood the
status of the property and that such status merely
constituted one of
several considerations which the first respondent in the exercise of
his discretion had taken into account.
The second respondent
moreover disputed that there was a sound basis for the procedural
challenges raised by the applicant.
[9.]
Two contentious issues arose during the hearing of oral argument in
the matter which counsel for the second respondent claimed
had not
been properly foreshadowed in the applicants founding papers. The
first related to the initial designation of the property
as a “
nature
area”
in 1984 by the then administrator but which
designation had since been the subject of various statutory
amendments and redefinition
and which designation the applicant
contended prohibited development in the form of a residential
township on the property.
The second issue related to a
challenge of the first respondent`s decision with regard
to whether he had considered
(if at all) and applied his mind to the
relevant provisions of the National Environmental Management:
Integrated Coastal Management
Act No. 24 of 2008 (ICMA) given that
the property fell within a defined coastal zone. I will deal
with these contentions
in the course of the judgment.
[10.]
The applicant seeks an order in terms of section 8(1)(c)(i) of
PAJA
[9]
reviewing and setting
aside the first respondent’s decision and remitting the matter
back to the first respondent for reconsideration.
The
Rule 53 record.
[11.]
In terms of rule 53 of the Uniform Rules of Court the applicant was
furnished with a number of documents which formed part
of the ROD and
also a letter from the municipal manager of the third respondent’s
predecessor in title that set out the background
to an application in
terms of LUPO in respect of the property. The letter
interestingly concludes; “
Soos uit bogenoemde afgelei kan
word is hierdie ʼn baie ingewikkelde aangeleentheid, maar
ek bevestig dat die Raad steeds
van mening is dat die eiendom soneer
is as onderverdelingsgebied en dat dit wel n gelyste aktiwiteit is…”
[12.]
The Rule 53 record also included correspondence between the various
parties, the initial application for environmental authorization,
the
draft and final scoping reports, the report of an external review of
the environmental impact assessment in terms of section
24 I of
NEMA. An internal ‘Memorandum’ of the Department’s
Directorate Land Management (Region 2) dated
4
th
April
2011 addressed to the Chief Director, Environmental and Land
Management to refuse the application. The Department was
of the
opinion, that the sensitivity of the site and the situation within a
Critical Biodiversity Area was sufficient to establish
the
inappropriateness of the proposed development. The basis for
the refusal was stated to be:
“
3.8.1
There is no need and desirability for the proposed development;
3.8.2
The proposed development is not in line with the relevant planning
tools;
3.8.3
The proposed development is not in line with the WC PSDF;
3.8.4
The proposed development is not supported from a botanical point of
view;
3.8.5
The proposed development will alter the sense of place;
3.8.6
The potential benefits are not justifiable and substantive enough
when the negative impacts to the receiving environment
are
considered; and
3.8.7
Additional infrastructure capacity for sewage treatment and
electricity will have to be provided to accommodate
the proposed
development.”
[13.]
The Department also shared a concern with the external reviewer that
the EIR lacked detailed information on certain aspects
and should be
referred back to the consultants. The Department however did
not regard it necessary to request additional
information on the
issues of “
need and desirability”
for the
development as recommended by the external reviewer as the lack of
such information did not constitute a fatal flaw and
which in
its view would not have changed the outcome of the application.
[14.]
The record also contains the second respondent’s appeal of the
director’s refusal, submissions in support of and
in opposition
to the appeal, the second respondent’s reply to objections
raised against the appeal and in particular that
of the applicant,
and that of a Mr Jimmy Walsh, Mr Johan Ackron, a consulting
development economist and resident in Myburgh Park,
and SANParks.
Also included is a submission of the Provincial Directorate:
Environment Governance dated 27
th
September 2012 addressed
to the first respondent, which included comments by a
Sub-Directorate: Environmental Appeals Management
to support approval
of a partial environment authorization.
[15.]
The submission of the 27
September 2012 is a detailed
submission from the directorate to the first respondent which sets
out the purpose and nature of the
matter under consideration; the
appeal, it’s background, the planning context, the issues of
need and desirability, the biophysical
context, the visual impact,
the heritage and archaeological context, the socio-economic context,
municipal services, traffic impact,
the alternatives and the public
participation process. The external review procured by the
Department is also referred to.
In a summarized and table
format the submissions contains the appellant’s grounds for
appeal, the responding statements by
I & AP’s, the
answering statements by the appellant (the second respondent)
together with corresponding comments
of the sub-directorate on
each of the issues raised by the parties.
The
property’s development history and zoning status.
[16.]
Myburgh Park (Pty) Ltd (Myburgh) (the second respondent’s
predecessor in title) purchased the land of which the property
formed
a part sometime during the 1980s from RETCO Ltd and proceeded with
the development of phases 1 and 3 of the envisaged Myburgh
Park
residential development. The applicant claimed that at that
stage it was proposed that the property (also referred to
as Phase 2
of the development) would remain a natural area and in due course was
to be transferred to the then National Parks Board
to form part of
the WCNP.
[17.]
On the 14
th
December 1984 the then Minister of Constitutional Development and
Planning, acting in terms of section 4 (1)
[10]
of the Physical Planning Act 88 of 1967 (the PPA), designated as a
“
nature
area”
the Langebaan lagoon itself, the Admiralty zone, portions of
Sestienmylstrand and certain farms in the vicinity of the lagoon,
including the whole of the phase 2 area, in terms of Government
Notice 2747 in Government Gazette 9525.
[18.]
On the 25
th
February 1988 the then Administrator of the
Cape of Good Hope acting in terms of the Land Use Planning Ordinance,
15 of 1985 (LUPO),
granted an application by Myburgh for the rezoning
of the land in question (which included the property as part of the
larger area)
from agricultural zone 1 to a subdivisional area for
township development. The approval was subject to conditions,
one of
which was that “
development takes place in accordance
with the attached plan F.400/1/101-A”
as per a letter dated
25 February 1988 from the Director Local Government. On the
plan F.400/1/101A, the phase 1 area was
divided into erven and roads
and amounted to a conventional development of 1200 erven over 66% of
the site to the north of a line
determined by the permit (permit
line) whereas the phase 2 area which lay generally to the south of
the permit line and off the
ridge adjoining Stompneusrots was devoid
of any erven and was designated “
nature area”.
The exact boundary which was accepted at the time to constitute the
southern border of the built environment was apparently
agreed to on
site between the developer’s surveyor and the then acting
director of the National Parks Board, a Dr.
Gilbert Adrian Robinson.
The Parks Board, it appears was in favour of the incorporation of the
property into the Parks Board
area at some “
appropriate
stage and on an appropriate basis”.
The applicant
referred to a claim made in an affidavit by Robinson in the
matter of
Corium (Pty) Ltd and Others v Myburgh Park Langebaan
(Pty) Ltd and Others 1995(3) SA 51 (CPD)
(which decision I
will refer more to later) where the following is stated;
“
Die
uitsluiting van die natuurgebeid uit die beoogde dorpsontwikkeling
was dus ʼn wesenlike element van sy aansoek gewees en
dit was die
grondslag waarop sy aansoek om hersonering van die betrokke eiendom
toegestaan is. Die hersonering was gevolglik
spesifiek
onderhewig gestel daaraan dat die ontwikkeling volgens plan
400/1/101A sou geskied, wat sou verseker dat die ontwikkeling
nie in
die natuurgebied oorskry nie.”
(paragraph 10 of the
affidavit).
[19.]
The applicant claims that of particular importance was that there was
to have been no development along the lagoon shore (between
the
existing gravel road and the lagoon) to minimize human disturbance of
the sand flats and salt marshes and that no development
was to have
taken place on the south-facing slopes of Stompneusrots because of
the high visual impact. The applicant claimed that
the 1988 grant of
development rights in accordance with plan F.400/1/101A to the
developers involved “
a trade-off”
in terms of
which the property now under consideration was required to be
designated as an interim nature area for incorporation
ultimately
into the WCNP. The agreement was confirmed in a letter written
on behalf of Myburgh Park Langebaan (Pty) Ltd by
its consulting Land
Surveyors, Messrs Blignaut and Rommelare: “…
more than
1/3 of the total property is being given off as an interim nature
reserve and future National Park. The boundary
between the
reserve and the township was decided upon in the field by a Dr
Robinson of the Parks Board and our Mr Blignaut, and
took into
consideration all aspects and particularly the Visual Impact
Concept….”
[20.]
The applicant contended that the Myburgh property was subsequently
zoned as a subdivisional area as a preliminary step to:
(i)
to divide off the area of the original Myburgh Park into two
components namely, a township and a nature area;
(ii)
the subsequent subdivision and rezoning of the permitted township for
development purposes.
[21.]
In its founding papers the applicant placed on record that the
terminology phase 1 and phase 2 although often referred to
in the
documentation was not found on plan F.400/1/101A nor did it appear in
the Administrator’s decision. It appeared
however that
phase 1 related to the township area and phase 2 relates to the area
reserved as the nature area. The
applicant contended that
because of Myburgh’s acceptance that phase 2 would remain a
nature area the applicant does not accept
a reference to phase 2 as
intending to convey that the relevant authority ever approved the
property now under consideration as
the second stage of a phased and
approved development.
[22.]
The parties recorded that the property has to date not been
incorporated into the West Coast National Park and remains
undeveloped
(save for the construction of two structures in terms of
an approval by the third respondent). Applicant claimed that
over
the years there had been attempts to develop the property with
concomitant litigation to prevent any such development.
[23.]
It is necessary to set out the attempts at development with reference
to such litigation. On the 27
th
of October 1989 the then
Langebaan Municipality approved Myburgh’s application to
sub-divide part of the township area (part
of which is referred to on
plan F.400/1/101A for township development) in accordance with
the specific plan of subdivision
as set out in plan F.400/1/101-8
which development later became known as Panorama.
[24.]
In June 1990 Myburgh applied to the Administrator and on the 3
rd
September 1990 was granted a permit pursuant to the Physical Planning
Act 88 of 1967 authorizing development in the undeveloped
portion of
phase 1 and phase 2 in accordance with plan 1.069 which provided for
a layout of cluster housing with relatively large
areas of
undeveloped natural space between them (the Administrator’s
1990 approval). Myburgh’s application included
an
application for the amendment of the condition imposed by the
Administrator’s decision, namely, the restriction of
development
in the area depicted on plan F.400/1/101A as the nature
area, onto which Myburgh sought to extend development. On the
9
th
November 1990 the ministerial representative of the
Department of Local Government, Housing and Public Works approved the
application
for the amendment of the restrictive condition (the
Ministerial 1990 approval).
[25.]
On the 23
rd
November 1990 the then Langebaan Municipality approved the
subdivision of the land into erven in terms of section 24
[11]
of LUPO in accordance with plan 1.069 (the Municipality’s 1990
approval).
[26.]
Pursuant thereto Myburgh installed bulk services and commenced
development in respect of both phases in accordance with
plan
1.069. By late 1991 approximately 95% of the services had been
installed and bulk infrastructure contributions had been
paid to the
Langebaan Municipality. The second respondent stated that
approximately R4 million was expended on this endeavour.
[27.]
In the period 1991 to 1994 an application for the judicial review of
the 1990 approvals was launched resulting in two reported
judgments
namely
Corium (Pty) Ltd and Others v Myburgh Park Langebaan (Pty)
Ltd and Others
1993 (1) SA 853
(C
) (hereinafter referred to as
Corium 1) and Corium (Pty) Ltd and Others v Myburgh Park Langebaan
(Pty) Ltd 1995(3) SA 51 (C)
(referred to as
Corium 2
).
In
Corium 1,
Conradie J granted an interim interdict
preventing Myburgh from proceeding in accordance with the plan 1.069
pending the outcome
of the review of the 1990 approvals. In
October 1992, the Ministerial 1990 approval and the Municipality’s
1990 approval
were set aside by agreement. In
Corium 2
Rose-Innes and Foxcroft JJ set aside the Administrator’s 1990
approval.
[28.]
The applicant has placed much reliance on the decision of Rose-Innes
J in Corium 2 and in particular the views
expressed by
the court with regard to the nature and conservatory value of the
property concerned. In its judgment the court
referred to the
14
th
December 1984 proclamation of the property as a “nature area”
which was defined in Act 88 of 1967 as “
any
area which could be utilized in the interest of and for the benefit
and enjoyment of the public in general and for the reproduction,
protection or preservation of wild animal life, wild vegetation or
objects of geological, ethnological, historical or other scientific
interests.”
A
further step in the planning process took place on the 9
th
June 1989 when the aforementioned “nature area” became
what was termed a “
protected
natural environment”
within the meaning of the Environmental Conservation Act 73 of 1989
as provided for in section 16
[12]
read with section 44
[13]
of
that Act. The provisions stated that the purposes of establishing an
area as a protected natural environment in terms of the
ECA Act was
to promote the preservation of specific ecological processes, natural
systems, natural beauty or a species of indigenous
wild life or the
preservation of the biotic diversity in general.
[29.]
In Corium 2 the court found that the Minister had not been entrusted
under the Physical Planning Act with the power to have
issued the
permits, that he had acted
ultra vires
and on that basis
the permits were set aside. The court however went further and
dealt with a further substantive ground
of challenge to the effect
that the Administrator had acted
ultra vires
in issuing the
permit on the basis that the nature and extent of the rights granted
in terms thereof to allow cluster housing on
land forming part of “a
nature area” and later enacted as “protected natural
environment” in terms of the
Environment Conservation Act were
repugnant to the objects, purposes and policies of the very statute.
The court (at 65H-66A)
stated, “…
that
in considering whether to grant or to refuse the particular permit
with which we were concerned, it was incumbent and necessary
for the
Administrator to apply his mind to whether a permit of this kind
should be granted on ground which by Act of Parliament
was a
protected natural environment. He had to take into account the
policies, purposes and the true intent of the 1989 Act which
established the status of the ground with which it was proposed to
interfere. I have also already mentioned that the Act of 1989
in
express terms states what the purpose of the Act is. I refer to s
16(1)(a).
“
The
express purpose of the Act is the preservation of ecological
processes and natural systems and natural beauty, indigenous wildlife
and biotic diversity. To allow the laying out of a residential
township on ground with that status and which is being preserved
for
that purpose is to flout the provisions of the Act.”
[30.]
With reference to the considerations under sections 2(1)(c) namely,
'the protection of the environment against
disturbance, deterioration, defacement, poisoning, pollution or
destruction as a result
of man-made structures, installations,
processes or products or human activities;'
The
court stated the following at 66E-G “
Residential
houses in a township, roads and sewerage works and electricity pylons
and so forth are man-made structures. The purpose
of this Act is to
prevent such disturbance and defacement in protected
natural environments which are created by the Act,
which Act
enacted that this area with which we are concerned shall be such a
protected natural environment. It is almost as if
the Legislature had
stated as part of the Act that residential townships shall not be
built in protected natural environments.
Nothing could be
clearer. The Administrator was obliged, in granting this permit, to
have that in mind. He did not take into account
considerations which
by law he was obliged to take into account in exercising his
statutory discretion to issue the permits in
question. He could not
have taken these relevant considerations into account because no
reasonable person, doing so, would issue
this permit.”
[31.]
The court then dealt with what it considered to be the cogent
evidence in the affidavits of the specialists, Dr Robinson and
Professors Branch and Grindley, with regard to what they referred to
as a ripple effect of ecological destruction of the land if
the
development was to be permitted. Based on the views of these
experts the court was of the view that the establishment
“…
of
this township would contradict sound tenets of nature
conservation.”
The
court found that the Administrator could not exercise his discretion
contrary to the purpose of the Act and that the exercise
of
such discretionary power in a manner which frustrated the clear
purpose of the statutes or renders the provisions of the statutes
nugatory was invalid and had to be set aside. The court also
found (at 68C-68I) that the issue of the permit was “
was
substantially influenced by a material misapprehension of fact on the
part of the Administrator. In a letter dated 10 May 1991,
after the
permit had been granted, the Chief Director of the Directorate of
Nature and Environmental Conservation of the Provincial
Administration, who had been concerned with the issue of the
permit, in reply to a letter from Dr Robinson to the Administrator
protesting the issue of the permit, stated on behalf of the
Administrator as follows:
Dit is verder
belangrik om daarop te let dat die oorspronklike bedoeling was om die
eiendom nie binne die natuurgebied te laat val
nie, vandaar
die bereidwilligheid van beide die Departement van Omgewingsake
en die Kaapse Provinsiale Administrasie om in
belang van geregtigheid
gunstig na permitaansoeke te kyk.'
It
is stated here that an important consideration weighing with the
Administrator in granting the permit was that the original intention
was that this property should not fall within the nature area.
As already indicated, the history of the area since the 1970's
reflects a consistent intention on the part of everyone, including
the public authorities, involved in the preservation of this
area
that this piece of ground upon which the township was proposed should
be included in the nature area and the protected natural
environment.
It was, after all, proclaimed a nature area by the Administrator in
1984. The boundaries of that nature area were
revised with the
specific purpose of keeping this piece of ground in the nature area
and not allowing it to fall in the area where
township development
was being permitted. It is a palpable mistake to say that over the
approximately 20 years that this area has
had the attention of
developers and of the public authorities before the issue of the
disputed permit it was ever the intention
that this piece of ground,
the extended permit area, should be excluded from the nature area.
The contrary is true. The history
of the planning of the area, which
has been sketched in this judgment, demonstrates this. This
misapprehension of the Chief Director
and the Administrator reflects
that they were materially influenced by an erroneous consideration in
granting the disputed permit.
In our view the misapprehension
vitiates the decision to grant a permit on that mistaken ground. It
was an improper consideration
which was taken into account and which
makes the decision ultra vires.”
[32.]
In their response to the applicant’s reliance on the views
expressed by Rose-Innes J the second respondent in its answering
affidavit pointed out that their experts were mindful of the decision
in Corium 2 and had noted that the proposed development with
which
they were dealing was different to that which had been considered by
that court.
[33.]
Further in respect of the background, on the 13
th
November 1992 the then Langebaan Municipality approved plan 3.113.01
for an undeveloped portion of phase 1 to be developed.
[34.]
On the 30
th
March 1998 Myburgh submitted to the then
Langebaan Municipality an application for amendment of the zoning
conditions and for subdivision
of the phase 2 area in accordance with
plan L3-1 which envisaged the development of several detached
clusters of houses with a
total of 109 erven.
[35.]
In 2001 Myburgh brought an application in this division of the High
Court
for
various declaratory orders including whether an environmental
authorization pursuant to the Environment Conservation Act, 73
of
1989 was required to develop “
phase 2”
if such
development constituted a change of the land use from use for nature
conservation or zoned ‘
open space’
to any other
land use. In the matter of
Myburgh Park Langebaan (Pty) Ltd
v Langebaan Municipality and Others
2001 (4) SA 1144
(C)
,
Selikowitz J found, that “
the new development area,”
as he referred to it, was not zoned ‘
open space,’
and in consequence that “
[t]he formal zoning of the phase 2
area – and therefore the development area – is, and, at
all material times, has been,
‘onderverdelingsgebied’
i.e. subdivisional area.”
(At 1163E-G).
[36.]
No further action was taken in respect of this application pursuant
to plan L3-1 (the development of 109 erven).
The
zoning of the property.
[37.]
A principle issue raised by the applicant related to what exactly the
zoning of the property was and the extent that a zoning
status of
subdivision area had influenced the first respondent in the granting
of the environmental approvals.
[38.]
The zoning of the entire property which Myburgh Park Langebaan (Pty)
Ltd acquired was also dealt with by Rose-Innes J in Corium
2 where he
succinctly described the process as follows (At 56C-E): “
On
25 February 1988 the Administrator, acting in terms of the Land Use
Planning Ordinance 15 of 1985 (C), granted an application
by Myburgh
Park Langebaan (Pty) Ltd for the rezoning of the land to permit
subdivision thereof for development purposes. One of
the conditions
imposed by the Administrator to this rezoning of the land was that
such development had to take place in accordance
with the plan
F.400/1/101A. Although the rezoning for township use related to
the whole of the aforementioned property, the
effect of the condition
relating to the plan was to preclude development in the extended
permit area
[that is with reference
to the property under consideration in this matter]
.
According to the plan, township development was limited to the
original permit area, as was the case in terms of the permit
granted
to Retco
[the previous owner of the
property]
in August 1985 by the
Department of Environment Affairs. The extended permit area, however,
was rezoned for township development
use, which had not previously
been the case...”
The
property’s zoning was also considered in the
Myburg Park
2001
judgment where t
he court identified
the use of the property at the time that the regulations were made in
terms of the Environmental Conservation
Act and found (at 1163G-I)
that “
The formal zoning of the
phase 2 area therefore the new development area - is, and, at
all material times, has been, 'onderverdelingsgebied'
i.e.
subdivisional area.”
The
applicant accepted the correctness of the decision of Selikowitz J
with regard to the zoning of the property but added
that Selikowitz J
had not been required to deal with the condition and the designation
of the property as a “
nature
area.”
[39.]
With regard to the meaning of “
subdivisional
zoning”
the second respondent referred to the Langebaan Zoning Scheme which
was deemed to be a zoning scheme in force in terms of LUPO
as
contemplated in section 7(1)
[14]
.
In 1988 the Administrator, acting in terms of section 7(2)
[15]
of LUPO, published scheme regulations which supplemented existing
section 7(1) zoning schemes, including Langebaan’s zoning
scheme. The regulations were published under PN 1047/1988 in
Provincial Gazette 4563 of 5 December 1988. The regulations
contained the following definition of subdivisional area:
“’
Subdivisional
area’ means land contemplated by section 22(1)(a)
[16]
of the Ordinance which, in terms of section 14(4), 16 or 18 and
subject to
1.1.1
a density requirement;
1.1.2
the conditions and stipulations
contained in these regulations;
1.1.3
the planning stipulations of any
applicable structure plan; and
1.1.4
any other condition laid down at
the time of the approval of the rezoning
has
been rezoned to a subdivisional area.”
[40.]
The second respondent contended that a subdivisional area zoning
constituted a zoning “
in a manner permitting of
subdivision,”
as contemplated in section 22(1)(a) of LUPO.
Once a property is zoned subdivisional the owner may apply for
approval of a
specific plan of subdivision, and would not be blocked
by the provisions of section 22(1)(a) of LUPO. A property which
acquired
a zoning of subdivisional area met a condition precedent for
a subdivision application. It was common cause between the
parties
that a zoning to subdivisional area did not in itself change
the purposes for which the property may be used. Unless and
until a plan for subdivision had been confirmed in respect of the
property, the purposes for which the property may be used (i.e.
the
land use rights) are those permitted by the zoning of the property
prior to the subdivisional zoning. For that reason
the
subdivisional area zoning is described as an “overlay zoning”
in the Manual For Applications in terms of Ordinance
15/1985 which
reads as follows:
“
[a]
subdivisional area zoning can be considered as an overlay zoning, in
other words it is a zoning which grants subdivisional rights
and
which applied over and above a land use zoning such as single
residential or industrial….[A]pproval [of a subdivisional
rezoning application] gives a right to develop the site.’
The
“underlying zoning” of the property was agricultural.
[41.]
The second respondent contended that a subdivisional zoning was not
the only approval necessary to proceed with a development
but that it
was an acknowledgment that the relevant property was appropriate for
and compatible with development. That contention
emerged as one
of the fundamental points of departure between the parties as the
applicant contended that the overlay subdivisional
zoning, did not
necessarily “
establish the principle of development on the
site.”
[42.]
The applicant also relied on a zoning certificate issued by the
Municipal Manager of the third respondent on the 18
th
October 2012 which recorded the zoning as follows: “
The
rezoning of the remainder of the farm 292, Langebaan is hereby
certified as AGRICULTURAL.
The
Langebaan Scheme Regulations determine that the property may be
utilized for: Agriculture
And
with council’s special consent.
Additional
dwelling units, farm stall, farm stall intensive feed farming, riding
school, nursery, service trade, tourist facilities
and guest house.”
The applicant pointed out that the
second respondent had itself acknowledged that the zoning of the
property was agricultural as
evidenced in its application dated the
30
th
May 2012 to the third respondent for consent to operate a guest house
on the property. The applicant contended that the property
was
zoned agricultural and plan F.400/1/101-8 remains the only planning
permission with any legal force.
[43.]
In my view it is apparent that the “residual” status of
the property is that which was depicted in plan F.400/1/101-8
where
it is reserved as a “nature area” and was part of the
whole of the land in respect of which Myburgh Park Langebaan
(Pty)
Ltd had applied for rezoning to subdivisional. Both
parties are correct that the underlining zoning of the property
remains agricultural while the overlay zoning is that of
subdivisional area. The real issue though is whether the
“overlay”
zoning (subdivisional) of the property had as
evidenced in the ROD unduly influenced the first respondent in having
granted the
partial environmental authorization. That question must
in my view be considered through a fuller appreciation of the content
of
the ROD and the documents that the first respondent relied upon.
The
urban edge consideration.
[44.]
In its founding affidavit the applicant claimed that the property
fell outside the urban edge of the
third respondent in it`s Spatial
Development Plan. It contended further that at best there was
some uncertainty about it.
The second respondent was however
able to demonstrate with reference to the relevant documentation in
respect of the Spatial
Development Plan adopted by the third
respondent that the property was in deed regarded as having been
depicted within the
urban edge of the Municipality and was
designated as “
intended for nature orientated development.”
At the hearing the applicant abandoned its challenge against
the decision of the first respondent based on its contention
that the
property fell outside the urban edge or that their remained any
uncertainty on the issue.
The
current relevance of the 1984 “
Nature Area”
designation.
[45.]
At the hearing the applicant placed much emphasis on the definition
of ‘
nature
area’
and submitted that such designation prohibited development on the
land unless the owner of the land obtained a permit in terms
of
section 8
[17]
of the Physical
Planning Act 88 of 1967 (the old PPA). To the extent that no
application had been made for the removal of
such restriction there
could be no development on the property. Such application, the
applicant contended, would importantly
have invited a
public participation process to which interested parties would have
been entitled to submit their views on
the lifting of the condition.
The first respondent therefore, so the applicant contended, did not
deal with the property
without such restriction being removed and had
effectively granted development rights on the property through the
environmental
approvals.
[46.]
The second respondent contended that the old PPA did not prohibit
development on land designated as “nature area”
and
neither did it restrict the use of such land to nature or
conservation related uses. (The property in question was zoned
agricultural and farming operations had ensued on the land).
Where it was intended to use the land for a purpose other
than the
purpose for which it was lawfully been used prior to its nature
reservation status (section 4(2)) a section 8 permit was
required.
[47.]
The Environment Conservation Act 73 of 1989 (the ECA) which came into
force on the 9
th
June 1989, effected certain amendments to
the old Physical Planning Act
inter alia
the following;
(i)
Section 43
[18]
of the ECA
deleted the definition of “nature area” from section 1 of
the old Physical Planning Act;
(ii)
Section 44(2)
[19]
provided
that the land which had been reserved as a ‘nature area’
in terms of the old PPA would be deemed to
be declared a “protected
national environment” in terms of section 16(1) of the
ECA and
(iii)
That the use of such land was restricted
unless a section 8 permit had been issued.
[48.]
The Environmental Conservation Second Amendment Act 115 of 1992 which
came into force on the 8
th
July 1992 amended section 44(2) of the ECA by doing away with the
provision to section 4(2)
[20]
of the old Physical Planning Act continued to apply to protected
natural environments. In terms of section 4(2) of the old
PPA
the use of land reserved by notice as ‘
nature
area’
for any purpose other than the particular purpose for which it was
lawfully being used immediately prior to the date of the notice
was
prohibited except under the authority of a permit.
[49.]
The Physical Planning Act 125 of 1991 (the new PPA) came into force
on the 30
th
September 1991. It repealed inter alia
the whole of section 4 of the old PPA.
[50.]
Section 16 of the ECA empowers a competent authority to declare
“
protected natural environments.”
Section
16(2) of the ECA authorizes the competent authority to “
issue
directions in respect of any land or water in a protected national
environment in order to achieve the general policy and
objects of
this act.”
In terms of section 16(3) the owners of
land within such areas are “
subject to the provisions of
such directions.”
The second respondent pointed out that
neither section 16 itself, nor any other provision of the ECA
directly regulated protected
nature areas or restricted their use.
[51.]
Section 90(2) of the National Environment Management: Protected
Management: Protected Areas Act 57 of 2003 (NEMPAA) which
came into
effect on 1 November 2004 provides that:
“
Sections
16 and 17 of the Environmental Conservation Act, 1989 (Act 73 of
1989, are repealed in a province with effect from the
date of
publication by the MEC of regulations under section 87 prescribing
matters covered by the said sections 16 and 17.”
[52.]
It appears that no regulations as contemplated in section 90(2) were
published in the Western Cape.
[53.]
NEMPAA establishes a system of “protected areas”,
consisting of inter alia national parks, world heritage sites
and
protected environments. Each category of protected area is
described in section 9 of the Act
[21]
.
The purpose for the establishment of protected areas are set out in
section 17
[22]
. They
include management of “
the
interrelationship between natural environmental biodiversity, human
settlement and economic development.”
[54.]
Sections 28, 29 and 30 of NEMPAA deal with the declaration of
“
protected
environments”
and the withdrawal and amendment of such declarations. Sections
28(7) provides that an area “
which
was a protected environment”
immediately before the section took effect must be regarded as having
been declared as a protected environment in terms of section
28.
“
Protected
environment,”
as defined in part (a) of the definition in section 1, is “
an
area declared, or regarded as having been declared, in terms of
section 28 as a protected environment.”
The
second respondent submitted that the Shark Bay development property
had never had the specific formal status of “
protected
environment.”
If however the Shark Bay development property constituted a
“
protected
environment”
in terms of NEMPAA the only restriction to which it was subjected to
was that commercial prospecting and mining activities were
prohibited without the written permission of the
minister and cabinet member responsible for the environment
and
for mining. (section 48(1)(b)).
[23]
[55.]
The second respondent further contended that protected environments
were not subject to the same restrictions in NEMPAA
as are
other categories of “protected areas” for example
national parks. NEMPAA itself imposes restrictions relating
to
national parks, nature reserves, special nature reserves and world
heritage sites which are not imposed in respect of protected
environments. Moreover, regulations have been issued in terms
of NEMPAA regarding the special nature reserves, national parks
and
world heritage sites (but not protected environments) which restrict
activities within those areas.
The
mandate of sustainable and integrated development.
[56.]
The state’s responsibility to protect the environment is
pre-eminently provided for in section 24
[24]
of the Constitution. “
The
reasonable legislative and other measures”
that
the state has taken in giving content to the constitutional right are
provided for in NEMA and the other legislative measures,
policies and
plans. This machinery the second respondent correctly contends
is elaborate in scope, highly developed and prescriptive
in its
detail and surpasses earlier protective measures of the environment.
More importantly the constitutional provisions
and NEMA are
underscored in what Ngcobo J (as he then was)
describes
in relation to the concept of sustainable development
in
the matter of
Fuel
Retailers Association Of Southern Africa v Director-General:
Environmental Management, Department Of Agriculture, Conservation
And
Environment; Mpumalanga Province, And Others
2007 (6) SA 4
(CC),
where at paragraph 44 the following is stated:
“
What
is immediately apparent from s 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. This Court has recognised that
socio-economic rights
that are set out in the Constitution are indeed vital to the
enjoyment of other human rights guaranteed in
the Constitution. But
development cannot subsist upon a deteriorating environmental base.
Unlimited development is detrimental
to the environment and the
destruction of the environment is detrimental to development.
Promotion of development requires
the protection of the environment.
Yet the environment cannot be protected if development does not pay
attention to the costs of
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.”
The
court went on to state (at para [52]): “
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.’
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.) 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.
And
at para 59-61:
“
[59]
NEMA, which was enacted to give effect to s 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'.
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.
[60]
One of the key principles of NEMA requires people and their needs to
be placed at the forefront of environmental management
- 'batho
pele'. 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'.
This is
underscored by the requirement that decisions must take into account
the interests, needs and values of all interested
and affected
persons. (
my underlining)
[61]
Construed in the light of s 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.”
[57.]
It is within this context and the consideration of sustainable
development and the prescripts of NEMA and other relevant
environmental legislation that the decision of the first respondent
to grant the environment authorizations must be considered.
The
Record Of Decision (ROD) of the first respondent
[58.]
As already stated the first respondent on the 1
st
October
2012 upheld the appeal of the second respondent against the decision
of the Chief Director who refused the environment
authorization. His
decision reads, “
By virtue of the powers conferred on me by
section 43 of NEMA and the EIA amended regulations 2010 I hereby
grant environmental
authorization to the applicant to undertake a
list of activities specified in section b below with respect to part
of layout alternative
five described in the final environment impact
assessment report dated May 2010.”
The list of activities
authorized are set out and are subject to a number of conditions.
The first respondent states further,
“
The Shark Bay
development hereby approved refers to part of the preferred layout
alternative 5 and associated infrastructure on
the remainder of farm
Oostewal no 292 Langebaan is approximately 82 hectares in size as
depicted in the attached plan contained
in annexure 1 this amended
layout alternative entails the following;
§
69 single residential erven with an
average size of 750m
2
§
Public parking and ablution
facilities
§
Public opens spaces/conservation area
§
Internal roads.
The
EA of the single residential erven 1-10, 20-37 and 38-49 is refused
along the coastal section of the site and only public parking
and
ablution facilities are authorized along the coastal section of the
site.”
The
decision also indicates a number of mitigation measures which must be
implemented and referred to in the Visual Impact Assessment
of C &
DV Africa amongst others. Annexure 1 to the ROD
diagrammatically indicates the residential units which were not
approved in alternative 5.
[59.]
Annexure 2 of the ROD sets out the reasons for the decision taken by
the first respondent. In its preamble the first respondent
states:
“
In
reaching its decision, I took, inter alia, the following into
consideration-
a)
The information contained in the
application form dated 09 June 2008, the Scoping Report dated March
2009, the EIA Report dated
May 2010:
b)
The information with respect to
the Public Participation Process (“PPP”) and
comments received from (I&AP’s):
c)
The correspondence dated 10
September 2010 which the list of activities applicable in terms
of the EIA Regulations (18 June
2010) and the motivation for the
assessment of these activities in the EIA Report dated May 2010:
d)
Refusal of an EA issued by
the delegated officer of the Department:
e)
Appeal lodged against the
abovementioned refusal of an EA, responding statements and answering
statements;
f)
The relevant planning tools that
are applicable to the proposed site being :
§
The Western Cape Provincial Spatial
Development Framework (WCPSDF);
§
The Saldanha Bay Spatial Development
Framework (2010); and
§
The South African National
Biodiversity institute’s fine-scale biodiversity planning for
the area (2008);
g)
Relevant information contained
in the Department information base; and
h)
The objectives and requirements
of relevant legislation, policies and guidelines, including section 2
of the NEMA.
All
information presented to me was taken into account in the
consideration of the application. A summary of the issues which, in
the (sic) my view, were the most significant is set out below. The
decision is based on the EIA process undertaken with specialist
inputs, input from the organs of state and the public participation
process (“PPP”) undertaken. A summary of
the issues
which in the Minister’s view, were of the most significance is
set out below.”
[60.]
The first respondent thereafter gives a summary of the most
significant issues he considered and in this regard refers to
the
“
planning context, need and desirability”
and
refers to the Saldanha Bay Spatial Development Framework (SDF 2010)
which was approved in terms of the
Local Government: Municipal
Systems Act No.32 of 2000
which situated the property within the
urban edge and earmarked it for “
nature orientated
development.
” He remarks that no explanation is
provided for the meaning of “
nature orientated development.”
He noted that the SDF identified Langebaan as having substantial
tourist potential and the need for the provision of adequate
accommodation.
He noted that the residential erven were to be
integrated within the natural area in the form of small cluster
groups interspersed
between the open spaces. The erven were
situated to afford protection of natural vegetation and allow for
ecological corridors/links,
with due consideration of views and
optimum orientation. The development he noted was in line with
the Western Cape Provincial
Spatial Development Framework and that it
would form part of the original Myburgh Park Development. In
evaluating the environmental
impact of the development and
specifically its need and desirability the first respondent explained
that he took into account the
context of the environmental setting
within which the application had to be considered. He states,
“
It is essential to consider the relevant regional and local
planning framework and in this regard to evaluate and measure the
development
against sustainability and bioregional planning
principles. In principle bioregional planning promotes a
sustainable development
based on three pillars, namely, ecological
integrity, social benefit and financial viability (the triple
bottom-line).”
He states further that he found that
it was imperative that the “
triple bottom-line”
had to be considered in a balanced manner and within the regional
context. In considering whether the development contributed to
sustainable development, one had to take into account the principles
in
section 2
of NEMA and the general objectives of integrated
environmental management contained in
section 23
of NEMA.
[61.]
The first respondent considered the “
biophysical context”
and in this regard relied on the botanical assessment report compiled
by Nick Helm Botanical Surveys dated 7
th
December 2009
which indicated that certain areas on the proposed site had
previously been disturbed, predominantly through farming
operations,
that the natural vegetation of the area consisted of Saldanha Granite
Strandveld and Langebaan Dune Strandveld on the
lower coastal areas.
The Saldanha Granite Strandveld made up at least 69% of the property
and had been transformed (mostly
by agricultural activities) and is
restricted to granite areas near the coast between Langebaan and St
Helena Bay. The National
Spatial Biodiversity Assessment
recognised the vegetation type as endangered. The Langebaan
Dunes Strandveld had been transformed
by 35%. He also noted
that a recent Fine Scale Conservation Plan for the Saldanha Peninsula
indicated that about 85% of the
site was a critical biodiversity
area. He considered the type of vegetation in the area and
noted that the erven proposed
were grouped into small clusters
against the option of a dispersal of units across the entire site.
In terms of the NEMA
principles he recorded that the development had
to be socially, environmentally and economically sustainable and for
that reason
and in the application of the principles in
section 2
of
NEMA he gave partial authorization for layout alternative five.
Helm he noted had stated through the implementation of
layout
alternative five there would be no significant direct impacts on any
areas of “
very high conservation value.”
[62.]
In giving effect to the NEMA principles that the disturbance of
ecosystems and loss of biological diversity should be avoided
or,
where it could not altogether be avoided, such impacts had to
be minimized and remedied, and based on a risk-averse
and
cautious approach, the first respondent explained that he refused
environmental authorization for the erven along the
coast as
proposed in layout alternative five, in respect of erven 1-10,
20-37, 38-49, in the light of the following factors
detailed in the
assessment by Helm: the sewer lines crossed high conservation value
land in the coastal area, service installation
(notably bulk sewers
and detention ponds) would have an additional long term impact
outside of the building footprint and the impacts
of especially low
and high “
along the coast”
conservation value
areas and which pushed up the overall assessment from low to medium
negative (prior to mitigation). No
further layout changes would
be made to layout alternative five as it would be financially
prohibitive. He noted that the
low to medium negative permanent
residential residual impact according to Helm was unavoidable.
In respect of erven 32 and
33 he noted that coastal inland
connectivity would be compromised by the erven in the development as
ecological connectivity was
necessary with the West Coast National
Park. The assessments stated that layout alternative five
represented an appropriate
transition between the intensely developed
Langebaan Residential Zone and the nature zone of the West Coast
National Park.
From a botanical perspective approval of the
coastal area set out in layout alternative five (erven 1-10, 20-37,
38-49) was not
ideal.
He
recorded that Cape Nature had stated that they were not objecting to
the development but required that consideration be given
to
relocating the sewer pipe which lay in a sensitive coastal area.
[63.]
The visual impact of the proposed development was also considered and
first respondent noted that the Visual Impact Assessment
(dated 2009
and compiled by CNDV Africa) concluded that considering that the
“
principle of
development”
on the site had
been established and that it fell within the town of Langebaan,
layout alternative five together with the proposed
restrained
agricultural treatment and maintenance of the maximum amount of
national fynbos would allow for limited development
while at the same
time preserving and protecting the features that have made the site a
popular place for many people in the area.
[64.]
The heritage and the ecological context was considered based on the
assessment by ARCON Architects and Heritage Consultants
who
concluded that a no-development option was not realistic given that
the site had “
development rights.”
The
heritage impact assessments stated that the key issue around which
the heritage assessment revolved was not whether development
should
take place but rather how it should be achieved in terms of the
overall configuration, scale density and extent within its
context.
The first respondent also noted that the archaeological assessment
compiled by the Archaeological Contracts office
of the
University of Cape Town concluded that the archaeological material in
the form of late stone age shell [middens] containing
pottery was
confined to the top of Stompneus Rocks and were unlikely to be
impacted upon.
[65.]
In considering the socio-economic impact the first respondent was of
the view that the project had to advance net social welfare.
The social impact assessment report (dated December 2009 compiled by
Tony Barbour and Schalk van der Merwe) concluded that the
development
would result in the creation of employment, business opportunities
and the opportunity for skills development associated
with the
preferred alternative five. The proposed development was
therefore regarded as acceptable and appropriate.
The
development they argued would not impact on public access to the
major part of the site and the Langebaan lagoon since public
access
to the lagoon would be improved by the provision of a parking area
and ablution facilities.
[66.]
The municipality had confirmed their capacity to provide services
with respect to water, sewerage treatment, solid waste removal
and
electricity. The traffic impact assessment compiled by Arup SA
(Pty) Ltd February 2008 concluded that the development
should be
approved from a traffic engineering point as traffic flows on Sunbird
and Park Drive would be relatively low.
[67.]
In considering the alternatives the first respondent noted that five
layout alternatives were initially considered in the
environment
impact assessment process. However, only two layout
alternatives were considered in the final EIA report, namely,
layout
alternative 1 and layout alternative 5. Layout alternative 1
entailed the following: 109 single residential erven,
internal roads,
parking facilities and natural open space. This alternative was
not preferred since the sensitivity analysis
revealed that the layout
encroached onto a very high conservation value area and that a number
of residential erven were proposed
below the development backline
(were located to close to the lagoon’s edge).
[68.]
First respondent recorded his preference for the fifth alternative
based on the following considerations:
·
“
A
low density, high income development was required in order to
preserve the natural assets and generate sufficient funds for the
rehabilitation and protection.
·
It would ensure the social,
environmental and economic viability of the development and the
successful long term management and
rehabilitation of the property.
·
The concept proposed for the property
attempted to reach the optimum intersection of the three global
imperatives satisfying the
needs of the community, the environment
and the market.
·
The property was situated within the
urban edge of Saldanha Bay Spatial Development Framework.
·
The development would result in the
creation of employment, business opportunities and the opportunity
for skills development.
·
The Municipality had confirmed the
capacity to provide services to the development.”
[69.]
The first respondent stated that the no development option would
result in the status quo of the site being maintained for
the
present. Should no development take place on the site the
following was noted:
“
(i)
The land would retain its zoning of subdivisional area with the
likelihood of future development applications being submitted.
(ii)
In the short term the owner would
be able to construct two residences.
(iii)
There may be continued
degradation of the environment which is currently taking place as a
result of uncontrolled use of the property.
(iv)
There will be no socio-economic
benefits created (extensive portion of the public land created
approximately, 70 hectares public
access to the lagoon from the
roadway and walkway public parking and ablution facilities, public
pathways, job opportunities, residential
opportunities
infrastructural development spin-off to other sectors and revenue to
the local district and central governments.”
[70.]
In respect of the public participation process the first respondent
noted that there had been an identification of interested
and
affected parties. A notice board had been affixed at the
location with regard to where the activity was to be undertaken
and
written notices were given to owners and occupiers of land adjacent
to the site, the municipal counselor for the ward, various
organs of
state and advertisements appeared in “
Die Weslander,”
“Cape Times,”
and “
Die Burger.”
The draft Scoping Report was made available for public review at the
Langebaan Library and at the Saldanha Bay Municipal
offices as well
as on a consultant’s website. The final Scoping Report
was likewise made available. A draft Environment
Impact
Assessment Report was advertised for public comment and I & AP’s
were invited to register and attend an open house
meeting advertised
in “
Die Weslander, Cape
Times
and
Die Burger.”
Copies of the draft EIA were made available. The final
EIA was also available for public comment. The first respondent
noted that during the public participation process concerns and
objections were raised as well as comments in support of the
development.
He noted specifically the comments by Cape Nature
“
that they believed the ideal situation would be to rezone
and formally conserve the entire property as it provides for an
important
buffer between the existing urban edge and the West Coast
National Park. This is probably not feasible in the short and
medium
term unless the land can be purchased specifically for this
purpose.”
He also noted the concerns by I & AP’s
with regard to the proposed development:
·
“
The
proposed development would cause environmental damage and loss of
biodiversity.
·
Whether there was a need for the
development.
·
Available vacant erven in Langebaan
that needed to be developed first.
·
That the proposed development was not
in line with planning policies for the site.”
[71.]
The first respondent also noted that there were comments in support
of the development and that there were further concerns
raised by the
respondents(the applicant and other interested parties) during the
appeal process with regard to the clearance of
vegetation, the
fencing and closing of the road and to the effect that the
incorporation of the site into the urban edge constituted
a
gratuitous urban sprawl inconsistent with the spatial dynamics of
Langebaan as contained in 2010 SDF. The complaints were
investigated and it was found that there was no unlawful commencement
of any of the listed activities and that a condition of approval
had
been to replace the existing fence with an environmentally friendly
fence that was to be acceptable to Cape Nature. A condition
of
approval was imposed that access to the coastal public property as
required under
section 13
[25]
of National Environment Management: Integrated Coastal Management Act
2008 had to be provided for. In terms of the incorporation
of
the site in the urban edge the first respondent referred to the
reasons provided for having only partially approved the development.
[72.]
The first respondent noted that an external review had been
undertaken by the Department in terms of section 24I
[26]
of NEMA. The department had considered the information
contained in the review report compiled by specialist Ms. Bryony
Walmsley.
[73.]
Annexure 3
to the ROD set out in detail the mitigation
measures that were required to be taken during the construction
phase, which measures
included, amongst others, that there had to be
a landscaping and visual screening and fire prevention measures.
The
consideration of development alternatives.
[74.]
The central attack on the decision of the first respondent by the
applicants is that he had failed to properly consider development
alternatives to that proposed by the second respondent and that he
had not properly considered the “no go” option which
entailed that the property should not be developed at all. The
applicant contended that the first respondent in consideration
of the
development alternatives and the “no go” option’
had been unduly influenced by the views of the
experts
that the property had “
developmental rights.”
[75.]
Section 24(4)(b)(i) of NEMA provides that procedures for the
investigation, assessment and communication of the potential
consequences or impacts of activities on the environment “
..
must include… investigation of the potential consequences or
impacts of the alternatives to the activity… including
the
option of not implementing the activity.”
NEMA authorizes
the promulgation of regulations to give further guidance on the
investigation, assessment and communication in
environmental impact
assessment processes.
[76.]
The “
Alternatives”
are defined in the EIA
regulations, 2010 as:
“
in
relation to a proposed activity, means different means of meeting the
general purpose and requirements of the activity, which
may include
alternatives to-
(a)the
property on which or location where it is proposed to undertake the
activity;
(b)the
type of activity to be undertaken;
(c)
the design or layout of the
activity;
(d)
the technology to be used in the
activity;
(e)
the operational aspects of the
activity; and
(f)
the option of not implementing
the activity.”
[77.]
Sub-regulation 31(2)(g) and (i) of the EIA regulations, 2010 requires
all the potential alternatives to the proposed activity
identified
during the environmental impact assessment process to be described
and a comparative assessment of all alternatives
to be conducted.
[78.]
Section 24(4)(b)(i) of NEMA (above) read with sub-regulation 31(2)(g)
and (i) of the EIA regulations, 2010 prescribes a mandatory
and
material procedure or condition.
Section
24O of NEMA is headed “
Criteria to be taken into account by
competent authorities when considering applications.”
A
competent authority is required
inter alia
to “
take
into account all relevant factors, which may include… where
appropriate any feasible and reasonable alternatives to
the
activity…”
(Section 24O(1)(iv).
[79.]
In the Shark Bay development five alternatives and the ‘
no-go’
option were considered during the scoping phase. The scoping
process commenced with alternative one, which was described
by the
second respondent as essentially the plan which had originally been
prepared by Myburgh. Alternatives two to five
were developed
over time as a result of sensitivity analysis conducted on
alternative one (which highlighted issues of concern,
for example,
encroachment and sensitive vegetation, the location of erven below
the development set back line and the like), workshops
and
discussions with the second respondent’s project team during
which issues pertaining to fauna, botany and visual aspects
were
taken into account, and further public participation.
[80.]
At the time at which the final EIA report was submitted to the
Department alternatives 2, 3 and 4 had been “scoped out”
during the scoping phase because of visual considerations and the
need for wider ecological corridors between the clusters of
residential erven. Alternative five had been identified as the
second respondent’s preferred alternative on the basis
that it
was the most appropriate alternative based on what the second
respondent referred to as the iterative process followed
up to that
point and the detailed specialized input. In the final EIA
report alternatives 1 and 5 and the ‘
no -go’
option
were considered.
[81.]
The development alternatives are summarized in the EIA report and
with reference to the physical plans of each alternative
.The
development alternatives are also set out in the planning report by
Planning Partners, Cape Town contracted by Doug Jeffrey,
which
addressed the context in which the development alternatives were
developed, with reference to the land use status of the
property ,
the various court decisions(Corium 2 and Myburgh) and confirmed that
the alternatives were “feasible and reasonable”
alternatives.
[82.]
The electrical report attached to the EIA report advised that
“
regarding proposed electricity services, Alternatives 1 and
5 will have exactly the same development implications …”
and that in relation to the “no go option” “
should
this development not proceed the opportunity to slightly improve
the bulk network security to the adjacent
Myburgh Park area
will be lost or will have to be done by the Municipality at
existing ratepayers expense.”
[83.]
The botanical impact assessment appended to the EIA report assessed
the botanical impacts of each of the five alternatives
as well as the
“no go” option both at the construction phase and the
operational phase. The faunal assessment
dealt with faunal
issues pertaining to each alternative and the “no go”
option and noted that there were also faunal
disturbances caused by
recreational activities along the lagoon. The visual impact
assessment likewise dealt with the visual
impacts of the “no
go” and the five alternatives and so too did the heritage
impact assessment.
[84.]
The applicant argued that section 24(4)(b)(i) of NEMA had not been
complied with in that the final EIA had failed to adequately
address
“
true alternatives”
and, secondly, the “
no
go”
option was “
based on a wholly incorrect
understanding of the land use status of the property.”
The applicant referred specifically to the report of the visual
impact specialist where the following was stated: “
Except
for alternative 1 which was developed by the previous owner,
alternative 2 to 5 are progressive refinements of the basic
design as
new information came to light and new studies were presented.”
The applicant contended that the second respondent and its
predecessors considered nothing except a form of township development
of “
perceived greater or lesser environmental impact.
”
It is in that context that the applicant claims that there were no
true development alternatives placed before the
first respondent for
consideration. In this regard the applicant also claimed that
the second respondent had failed to comply
with the Department’s
request when it accepted the scoping report that the EIA process
should adequately address the development
alternatives in terms of
regulation 29(1) of the April 2009 EIA Regulations.
[85.]
The applicant also relied on the views expressed by the Chief
Director of the Department and the external reviewer.
The
external review was particularly critical of the assessment by the
second respondent’s consultants of the development
alternatives
and the “no-go” option. The external reviewer states
Alternative 1 is not considered to be a “real”
alternative because it had a number of high impacts which would have
constituted fatal flaws if it was still actually being considered
as
a development option. It would appear that this was included as
a “straw dog” to show how much better Alternative
five
was. She adds, “
Most of the specialist studies were done
when only Alternative one was on the table i.e. in 2005/6 and
therefore the impact assessment
of Alternative five was based
on outdated and inadequate information and knowledge.”
[86.]
The Department had suggested that the scale of alternatives
envisaged, “
Would include low tourist type activities
(controlled) as well as environmental education, extensive recreation
and eco-tourism,”
which was also echoed by Cape West Coast
Biosphere Reserve. The external reviewer also stated that, “
The
guidelines for the management of biosphere reserve …clearly
states that the only development that is acceptable in such
an area
is for either educational purposes alternative research.”
The
applicant submitted that inasmuch as the second respondent had no
absolute right to develop the property, in the contemporaneous
regulatory environment the ability to develop the property could
range from no entitlement to considerable entitlement depending
on
the range of factors including in particular the locality of the
property in question and its usage.
[87.]
In response the second respondent referred to the views adopted by
the applicant that there were no true alternatives and
which had also
been the position of the external reviewer who stated that
, “
[a]lternatives need to be considered at two different levels: i) at a
strategic level e.g. alternatives to a housing development;
and ii)
at a project-specific level”
and “
alternative
land uses for the property”
could include “
eco-tourism,
conservation and recreation.”
The second respondent
contended that the express provisions of section 24O(1)(b)(iv) of
NEMA and EIA Regulation 1 defines alternatives
in relation to a
proposed activity –
“
different
means of meeting the general purpose and requirements of the
activity, which may include alternatives to –
(a)
the property on which or location
where it is proposed to undertake the activity;
(b)
the type of activity to be
undertaken;
(c)
the design or layout of the
activity;
(d)
the technology to be used in the
activity;
(e)
the operational aspects of the
activity; and
(f)
the option of not implementing the
activity.”
The
second respondent contended that the applicant’s interpretation
of what is required in relation to the assessment of alternatives
is
incorrect. The second respondent contended, and correctly so in
my view, that the assessment of different layout permutations
of the
residential development in respect of which the environmental
authorization was sought also fell squarely within what was
required
by NEMA and the EIA Regulations.
[88.]
The adequacy of the alternatives considered must also in my view be
considered in the light of the considerations given to
the “
no-go”
option. In the Guidelines on Alternatives (EIA Guidelines and
Information Document Series August 2010) with reference to
NEMA
principles and sections 24(4)(b) and 24(4A) of NEMA it is stated:
“
The
assessment of alternatives must at all times include the “no
go” option as a baseline against which all other alternatives
must be measured. The option of not implementing the activity
[for which authorization is sought] must always be assessed
and to
the same level of detail as the other feasible and reasonable
alternatives. The “no go” option is taken
to be the
existing rights on the property and this includes all the duty of
care and other legal responsibilities that apply to
the owner of the
property. For example, one cannot state that the “no go”
option for a vacant pierce of land
will result in further degradation
or alien plant invasion, as the Conservation of Agricultural
Resources Act…requires that
the landowner keeps their land
clear of alien invasive plants, and section 28 of the NEMA, “Duty
of Care” states that
reasonable measures must be taken to
prevent pollution or degradation from occurring, continuing or
reoccurring. All the
applicable permits must be in place for a
land use to be an existing right (the no-go default) e.g. the zoning
of Agriculture does
not mean land can be cultivated as the no-go
option, as other approvals must first be obtained.”
The
applicant contends that, arising from this description (above) it is
clear that fundamental to a consideration of the “
no-go”
option, “
are the existing rights on the property.”
The concept is qualified further in the guidelines by the phrase “
all
the applicable permits must be in place for a land use to be an
existing right.”
The applicant contends that the
point of departure is the existing zoning of the property. It
claimed that the
first respondent’s consideration of the
option to maintain the
status quo,
i.e. not to develop the
property, was based, as already indicated, on a wholly
incorrect understanding of the land use status
of the property and
was assessed on the erroneous basis that the land had acquired
“development rights” “
through a zoning as a
“subdivisional area” for township development purposes
with the inevitability of further (and
possibly even more
environmentally distressing) applications.”
In this regard
the applicant referred to the visual impact assessment report and the
botanical assessment report that explored
the “
no-go”
option as was required in terms of the guidelines. As noted by
the external reviewer, “
the assumptions underlying the
“no-go” option are flawed”
because it is based
on “
several unfounded assumptions about the future and is
poorly developed.”
The applicant contends that the
first respondent was unduly influenced in his decision when relying
upon the views of the
second respondent’s experts that the
property had acquired developmental rights against which the “
no-go”
option was considered. In the memorandum of the sub-directorate
to the first respondent the following is stated: “
Although
it is argued in the appeal that the property has existing
subdivisional area zoning rights such rights do not exonerate
the
appellant from obtaining permits in terms of other applicable
legislation.”
It is thus apparent that the first
respondent’s attention was drawn to the fact that
notwithstanding whatever “development
rights” referred to
by the experts pertained to the property the second respondent was
still required to obtain the necessary
permits. Such permits
are clearly the authorizations required in terms of NEMA, and whether
the property was zoned agricultural
or subdivisional or was a
designated “protected natural environment” or “protected
area,” the second respondent
was nonetheless required to have
obtained the authorizations in terms of NEMA and the first
respondent was obliged, as he
did, to consider it within the
framework of the overall sustainable development of the area taking
into account the environmental,
social and economic dimensions of the
application.
[89.]
Moreover the EIA report as already pointed to does consider the
“
no-go”
option and its consequences and it is
apparent from the ROD was also considered by the first respondent.
[90.]
The applicant also pointed out that when the specialists considered
the
status quo
option they dealt with what was permissible on
the property in terms of the property’s agricultural status,
such as the construction
of two residences. The applicant
points out that after the director’s decision of the 7
th
April 2011 which refused environmental authorization for the
development the second respondent commenced with the construction
of
a large house in about May 2011 located in the vicinity over
the area which is designated to become erven 37-33 and 28
to 32 of
the approved layout. The second respondent’s town
planning consultants described these buildings as “
labourers”
cottages and the main house. The applicant claimed that it
brought this building work to the first respondent's attention
in
where it stated that:
“…
the
appeal currently before the Authorities cannot be adjudicated outside
the context of these recent developments that in our view
have
changed the configuration of the
status
quo
regarding the property,
have compromised de facto such internal consistency as the original
development proposed might have had
and that will contribute to the
cumulative effect of the activities on site. Given what has
taken place recently on the property
by way of ad hoc development, it
is our respectful contention that the original development proposed
is in material respects no
longer accessible and that what we are
apparently confronted with here is in effect an entirely new
development scenario already
discharged in part. It is our
respectful contention that it no longer is the impact of the original
activities envisaged
on the site in the original development
application that now need to be adjudicated, but in fact the
cumulative impact on those
activities together with those of the
other activities variously indulged in by the landowner on the site
and outside of the context
of its original development proposal
(emphasis in the original).”
It
appeared though from the rule 53 record that the first respondent was
in fact aware of the building work and specifically responded
to the
concerns raised about it.
[91.]
In addition the applicant pointed out that on 30 May 2012 the second
respondent applied for consent use and regulation departures
to build
a double-storey eight roomed guest house. The building of the guest
house commenced with the building plans having been
approved but
without the third respondent having granted the requisite consent use
and departures over the area which is designed
to become erven 16, 17
and 18 of the approved layout. The applicant points out that no
mention was made of the guesthouse/hotel
in the appeal documents.
The applicant contends that the second respondent has significantly
increased the risk to the property
by, amongst other things, building
the main house in an area in which the first respondent considered it
appropriate to impose
considerable environmental restrictions, and
building a guesthouse which did not meet the visual impacts
specialist’s recommendations
that no building should be
double-storey, and making provision for 19 parking bays for the guest
house. The applicant states
that unless the second respondent
is required to demolish the guesthouse and the authorized development
is simply to be built around
it, the second respondent would
effectively have been allowed to develop a variation of alternative 2
which was deemed to be environmentally
unacceptable.
[92.]
The second respondent responds that whatever the merits of the
contention of the applicant in that regard it is no more than
a
practical problem which may, depending on the outcome of these
proceedings, have to be addressed in accordance with the applicable
legal requirements and more importantly, it was not a ground of
review. I accept the second respondent’s view on this issue.
The
challenge based on ICMA.
[93.]
In its founding affidavit the applicant claimed that the property
fell within a coastal protection zone as defined in section
16 of the
National Environmental Management: Integrated Coastal Management Act
24 of 2008
[27]
(the ICMA).
The property was zoned agricultural when the ICMA came into force and
is situated within 1km of the high water
mark of the lagoon.
The applicant contended that inasmuch as an environmental
authorization for coastal activities was being
sought in terms of
section 63(1) the first respondent was required to have taken into
account all the factors listed therein.
In terms of
63(2)(b) the second respondent could not issue the environment
authorization if the development or the activity
for which the
authorization was sought. “
Is
situated within the coastal protection zone and is inconsistent with
the purpose for which a coastal protection zone is established
as set
out in section 17
[28]
.”
[94.]
Applicant submitted that in terms of 63(4) the first respondent could
not issue the environmental authorization because of
subsection (2)
but if the first respondent “believed” as
contemplated in section 63(4) that the issuing of the
authorization
would be in the public interest he ought to have referred the
application for consideration to the National Minister
of
Environmental Affairs in terms of the section. The
applicant's challenge in its founding papers was based on the
lack of
authority of the first respondent to have issued the environmental
authorization as it claimed that it was the National
Minister who
ought to have done so in terms of section 63(4) and (64). The
applicant referred to this ground in its founding
papers as the
“
gravamen of its attack
” against the decision of
the first respondent to have granted the environmental
authorizations. It was also the applicant’s
submission
that in terms of section 25 the first respondent was required to
establish coastal set back lines which it had not done.
The
applicants submitted that the first respondent was therefore not
lawfully able to have considered the appeal.
[95.]
At the hearing of the application counsel for the applicant indicated
that the applicant no longer persisted with the challenge
to the
competence of the first respondent to have issued the authorization
and so too with regard to the challenge in respect of
the failure of
the first respondent to have proclaimed set back lines as
contemplated in section 25. During the course of
argument
counsel for the applicant indicated that it had not entirely
abandoned its challenge on the grounds of ICMA as it persisted
with
the claim (which the respondents’ counsel referred to as being
a “more nuanced” challenge) that the first
respondent had
not considered the provisions of ICMA at all and in particular
sections 63 and 64, as no specific mention was made
thereof in the
ROD.
[96.]
Counsel for the second respondent correctly pointed out that the
“nuanced” challenge to the decision of the first
respondent had not formed part of the applicant’s initial case,
it was not referred to at all in the founding papers but
only vaguely
in the replying affidavit with reference to certain quotations in the
various objections, and then again only in reply
during the course of
argument. In this regard counsel referred to the oft quoted
decision of
Swissborough Diamond Mines (Pty) Ltd & Others v
Government of the Republic of South Africa & Others 1999(2) SA
279 (T)
with regard to the reference to “
trial by
ambush.”
There is in my view merit in the submission
by counsel of the second respondent and moreover the first respondent
(and for
that matter all of the other respondents) had not been given
an adequate opportunity to respond to the new challenge.
Moreover
it appears from the record of the decision that the first
respondent was aware of the provisions of ICMA as he specifically
referred
to section 13 thereof with regard to a condition of approval
being imposed on the second respondent to ensure access to the
coastal
public property as required.
[97.]
Counsel for the second respondent
further placed reliance on the decision of Navsa J in
Magaliesberg Protection Association v
v
Member
of the Executive Council: Department of Agriculture, Conservation,
Environment and Rural Development, North West Provincial
Government
and others
[2013] 3 All SA 416
(SCA)
where
in that matter it was held that even where an MEC has failed to
properly take into account an Environmental Management Framework,
such failure was found to have been inconsequential. Counsel
for the second respondent submitted that the strict adherence
to the
provisions of the ICMA would have been inconsequential given that the
second respondent had given a proper consideration
to the key
environmental, social and economical attributes in respect of the
approvals. I however do not share that view
(that the
consideration is merely inconsequential) but based on the overall
tenor and content of the ROD, I am satisfied that the
first
respondent was mindful that he was dealing with a property that fell
within a coastal protected area.
The
challenge based on the procedural fairness.
[98.]
The applicant contends that the first respondent in approving a
scaled down development of 69 erven acted in a procedurally
unfair
manner as interested and affected parties were not afforded the
opportunity of commenting on the very different alternative
which the
first respondent approved nor was such alternative ever properly
assessed. The applicant claimed that there were
many factors
which might have weighed in favour of a more extensive original
proposal (such as the issues of accommodation, job
creation and the
economic impact on the community) which may have assumed a lesser
status in regard to a smaller development and
the complaints and
objections relating to the environmental impact might have been more
narrowly focused in respect of such lesser
proposal.
[99.]
In response, the second respondent pointed out that in terms of
regulation 35(1)
[29]
of the
NEMA the second respondent enjoyed the necessary power to approve a
reduced development. I agree with that submission.
(see reg.
35(1)(a)).
[100.]
The second respondent also correctly pointed out that an elaborate
public participant process was conducted with regard to
the proposed
development.
[101.]
Moreover in the executive summary of the Final EIA report under
Social Impact Assessment in the final draft report by Tony
Barbour
specific reference is made to the assessment of a reduced number of
units. In this regard they report that the Department
of
Environmental Affairs and Development Planning had requested that an
assessment be undertaken of the impacts associated with
a lower
number of units. For the purpose of the assessment the total
number of units were reduced by 33% (33 units).
They noted that
if a removal of the 33 units occurred from the section along the
lagoon that would reduce the visual and sense
of place impact
associated with the preferred alternative. The potential visual
impact of this node on the adjacent land
owners in Langebaan would
also be removed. In addition 14 units located adjacent to the
lagoon at Shark Bay could also be
removed. That would remove
the visual and sense of place impact associated with the proposed
development. They were
of the view that a 30% reduction of the
number of units represented the positive mitigating measure.
They noted however that
the findings of the various specialists’
studies including the visual and heritage assessments had nonetheless
indicated
that the impacts associated with alternative five were
acceptable and could effectively be mitigated. The possibility
of
a reduced number of residential dwellings being approved by the
first respondent was therefore foreshadowed in the consultants
reports to which the applicant and other I & AP’s had
access to. I am not persuaded that there is any merit to the
applicant’s complaint against the decision of the first
respondent on this ground.
[102.]
The second procedural challenge related to what the applicant
referred to as the first respondent having “
castigated
it”
for having not appointed an environment assessment practitioner and
or specialist to refute the findings of the EIA process and
or the
specialist studies. In this regard the first respondent said,
“
Your
arguments regarding the findings of the specialist botanical
assessment and the EIA report are not accurate as you did not
appoint
independent specialist to question the findings of the specialist
botanical assessment nor an independent environmental
assessment
practitioner was appointed to discredit the findings of the EIA
report”
and
“
your
concern of socio-economic issues does not have merit since you did
not appoint an independent social specialist to refute the
finding of
the social impact assessment.”
The applicant argued that there is no requirement under NEMA that I &
AP’s were only permitted to make comments
which were informed
by specialists. They submitted further that such a position
would be inimical to responsible
government particularly
in a society characterized by extreme wealth and poverty. The
applicant claimed that the first respondent’s
failure to have
properly considered their submissions would also have been in
breach of sections 9
[30]
, 24
and 33(1)
[31]
of the
Constitution. Inasmuch as I am of the view that the remarks by
the first respondent are inappropriately phrased it
does not appear
that the first respondent had not taken the applicant’s
comments into consideration. The ROD as already
indicated lists
the information in the documentation which the first respondent had
taken into account which included “
comments
received from I & AP’s.”
Moreover the second respondent after upholding the second
respondent’s appeal wrote to the applicant advising it of
his decision and responded specifically to the applicant’s
comments including the applicant’s contention regarding
the
botanical and socio-economic issues. The second respondent had
also written to a number of other parties who had made
submissions in
which he referred very specifically to the comments made in their
submissions. I likewise find no merit in
the applicant’s
complaint on this ground.
[103.]
In conclusion it is apparent from the ROD and accompanying documents
that the first respondent had discharged
his
responsibilities under the provisions of NEMA and although he
decided not to preserve the area as a conservation site
which may
have been the “most ideal” of conservation options,
it is not in the purview of the court to
second guess his
choice (see the remarks of Cora Hoexter in Administrative Law
In South Africa pg 151 – 153, and the
remarks of Nugent JA and
Swain AJA in the matter of
MEC For Environmental Affairs and
Developmental Planning v Clairison’s CC
2013 (6) SA 235
(SCA):
“
[20]
It has always been the law, and we see no reason to think that PAJA
has altered the position that the weight or lack
of it to be
attached to the various considerations that go to making up a
decision, is that given by the decision-maker.
As it was stated
by Baxter.
‘
The
court will merely require the decision-maker to take the relevant
considerations into account; it will not prescribe the weight
that
must be accorded to each consideration, for to do so could constitute
a usurpation of the decision-maker’s discretion.’
”
[104.]
Moreover it is apparent that the first respondent had not only taken
environmental considerations into account but
also the
planning instruments, amongst other considerations(such as the social
and economic factors), which
he was obliged to do and as demonstrated
in the ROD he approached the matter not insensitive to conservation
concerns and the ecological
value of the property and for that reason
had only given a partial authorization of the alternative preferred
by the second respondent.
Costs.
[105.]
Section 32(2) of NEMA provides that a court may decide not to
award costs against the person or group who fails to
secure the
relief sought in respect of any breach or threatened breach of the
Act. The applicant is a public interest body
and in my view has
manifestly acted both reasonably and out of concern for the public
interest and in the protection of the environment.
It has
consistently opposed development on the site to secure its natural
conservation. It has approached this court in the
endeavor to
do so albeit unsuccessfully. I am therefore of the view that
the applicant should not be penalized with
an adverse order of
costs for such a public spirited endeavour and its
unrelenting quest to have the natural state
of the property conserved
for environmental posterity.
[106.]
The following order is made:
(i)
The application is dismissed.
(ii)
Each party is ordered to carry their own
costs.
Saldanha
J
[1]
“
6
Judicial
review of Administrative action.
- (1) Any person may institute proceedings in a court or a tribunal
for the judicial review of an administrative action.”
[2]
“
43
Appeals. - (1) Any person may appeal to the Minister against a
decision taken by any person acting under a power delegated
by the
Minister under this Act or a specific environmental
management
Act.”
[3]
Environmental
Authorizations
(1)
In order to give effect to the general objectives of integrated
environmental management laid down in this Chapter, the potential
consequences for or impacts on the environment of listed activities
or specified activities must be considered, investigated,
assessed
and reported on to the competent authority or the Minister
responsible for mineral resources, as the case may be, except
in
respect of those activities that may commence without having to
obtain an environmental authorisation in terms of this Act.
[4]
“
Decision
on Appeal.- (1) The Minister, MEC, Minister of Mineral Resources or
any other competent authority empowered under Chapter
5 of the Act
to make a decision on an appeal, as the case may be, may combine his
decision on appeals contemplated in regulation
60 where such appeals
pertain to the same matter.
2.
The Minister, MEC, Minister of Mineral Resources or any other
competent authority empowered under Chapter 5 of the Act to make
a
decision on an appeal, as the case may be, must reach a final
decision on an appeal or appeals submitted, within 90 days of
receipt of all relevant information, including any statements,
supporting documentation, reports or any other additional
information
requested, or recommendation of an appeal panel which
may assist the Minister, MEC, Minister of Mineral Resources or
designated
organ of state, as the case may be, in the decision
making process.
3.
When the Minister, MEC or Minister of Mineral Resources has reached
a decision on an appeal, the appellant and each respondent
must be notified of the decision within 10 days of the
decision being reached and of the extent to which the decision
appealed is upheld or overturned in writing.
4.
The decision contemplated in sub-regulation (3) must contain reasons
for such decision.”
[5]
LIST
ACTIVITIES AUTHORIZED
Government
Notice No. R386 of 21 April 2006:
Activity
1(k): The construction of facilities or infrastructure, including
associated structures or infrastructure-for the bulk
transportation
of sewerage and water, including storm water, in pipelines with-
(i)
an internal diameter of 0.36 metres or more; or
(ii)
a peak throughput of 120 litres per second or more.
Activity
2: Construction or earth moving activities in the sea or within 100
metres inland of the high-water mark of the sea in
respect of –
(a)
facilities for the storage of material and the maintenance of
vessels ;
(b)
fixed or floating jetties and slipways;
(c)
tidal pools;
(d)
embankments;
(e)
stabilizing walls;
(f)
high buildings; or
(g)
infrastructure.
Activity
3: The prevention of the free movement of sand, including erosion
and accretion, by means of planting vegetation, placing
synthetic
material on dunes and exposed sand surfaces within a distance of 100
metres inland of the high-water mark of the sea.
Activity
5: The removal or damaging of indigenous vegetation of more than 10
square meters within a distance of 100 metres
inland of the
high-water mark of the sea.
Activity
6: The excavation, moving, removal, depositing or compacting of
soil, sand, rock or rubble covering and area exceeding
10 square
metres in the sea or within a distance of 100 metres inland of the
high-water mark of the sea.
Activity
12 The transformation or removal of indigenous vegetation of 3
hectares or more or any size where the transformation
or removal
would occur within a critically endangered or endangered ecosystem
listed in terms of section 52 of the National Environmental
Management: Biodiversity Act, 2004 (Act no. 10 of 2004).
Activity
15 The construction of a road that is wider than 4 metres or that
has a road reserve wider than 6 metres, excluding roads
that fall
within the ambit of another listed activity or which are access
roads of less than 30 metres long.
Activity
16 The transformation of undeveloped, vacant or derelict land to –
(a)
establish infill development covering and area of 5 hectares
or more, but less than 20 hectares; or
(b) residential,
mixed, retail, commercial, industrial or institutional use where
such development does not constitute infill
and where the total area
to be transformed is bigger than 1 hectare.
“
Government
Notice No. R387 of 21 April 2006:
Activity
2: Any development activity, including associated structures and
infrastructure, where the total area of the developed
area is, or is
intended to be 20 hectares or more.
Government
Notice No.544 of 18 June 2010:
Activity
16 Construction or earth moving activities in the sea, or within the
literal active zone or a distance of 100 metres
inland of the
high-water mark of the sea or an estuary, which ever is greater, in
respect of –
(i)
fixed or floating jetties and slipways;
(ii)
tidal pools
(iii)
embankments;
(iv)
rock revetments or stabilizing structures including
stabilizing walls;
(v)
buildings of 50 square metres or more; or
(vi)
infrastructure covering 50 square metres or more
but excluding
(a)
if
such construction or earth moving activities will occur behind a
development setback line; or
(b)
where such construction or earth moving activities will occur
within existing ports or harbours and the construction or ear moving
activities will not increase the development footprint or throughout
capacity of the port or harbour;
(c)
where such construction or earth moving activities is
undertaken for purposes of maintenance of the facilities mentioned
in (i)-(vi)
above, or
(d)
where such construction or earth moving activities is related
to the construction of a port or harbour, in which case
activity
24 of Notice 545 of 2010 applies.
[6]
(6)The
Minister or an MEC may, after considering such an appeal, confirm,
set aside or vary the decision, provision, condition
or directive or
make any other appropriate decision, including a decision that the
prescribed fee paid by the appellant, or any
part thereof, be
refunded.
[7]
“
Activity
18 The subdivision of portions of land 9 hectares or larger into
portions of 5 hectares or less.”
[8]
The Langebaan Lagoon was designated as a protected wetland on the
25
April 1988 in terms of the International Convention on Wetlands.
The property does not form part of the RAMSAR site.
[9]
“
8
Remedies in proceedings for judicial review
(1)
The court or tribunal, in proceedings for judicial review in terms
of section 6 (1), may grant any order that is just and
equitable,
including orders-
(a)…
(i)…
(ii)…
(b)…;
(c)
setting aside the administrative action and-
(i)
remitting the matter for reconsideration by the
administrator, with or without directions; or …”
[10]
Section
4(1)(b) of the PPA as it read on 14
th
December 1984.
4.
(1) The Minister may after consultation with the Minister of
Agriculture and Fisheries, the Minister of Mineral and Energy
Affairs and the Minister of Water Affairs, Forestry and
Environmental Conservation and the Administrator of the province
concerned
by notice in the Gazette reserve the land defined in such
notice-…
(b)
as a nature reserve.”
[11]
“
24.
Applications for subdivision.
—(1)
An owner of land may apply in writing for the granting of a
subdivision under section 25 to the town clerk or secretary
concerned, as the case may be.
(
e
)where
the Administrator may act under section 25 (1), obtain the relevant
comment of the council of the said town clerk or secretary
and
furnish the director with a copy thereof and with any documents
required by the director
(3)
Failing observance of the provisions of subsection (2) within a
period prescribed by regulation, action shall be taken in
accordance
with the regulations.
(4)
The director shall, in relation to an application in respect of
which the Administrator may act under section 25 (1)—
(
a
)
obtain such comment and information as in his opinion are still
required, and
(
b
)
notify the applicant, the local authority concerned and the
Surveyor-General concerned of the Administrator’s decision
thereanent and where applicable furnish them with a copy of any
conditions imposed by the Administrator.
[12]
“
16.
Protected natural environment.
—
(1)
A competent authority may by notice in the Official Gazette
concerned declare any area defined by him, to be a protected natural
environment and may allocate a name to such area: Provided that such
protected natural environment may only be declared—
(a) if in the
opinion of the competent authority there are adequate grounds to
presume that the declaration will substantially
promote the
preservation of specific ecological processes, natural
systems, natural beauty or species of indigenous wildlife or the
preservation of biotic diversity in general; and…”
[13]
“
44.
(1) Amends s.4(1) of the Physical Planning Act, No.88 of 1967, by
deleting the definition of “nature area.”
[14]
“
7.Existing
town-planning schemes.
—
(1) Any
town-planning scheme in terms of the Townships Ordinance, 1934
(Ordinance 33 of 1934), which in the opinion
of the Administrator is
in force immediately prior to the commencement of this Ordinance,
shall be deemed to be a zoning scheme
which is in force in terms of
this Ordinance.”
[15]
“
(2)
The Administrator shall with effect from the date of commencement of
this Ordinance make scheme regulations as contemplated
in section 9,
supplementary to all scheme regulations existing under subsection
(1) of this section, in order to give effect
to section 9 (1).
[16]
”
“
22. Zoning
to precede subdivision.
—
(1) (a) No
application for subdivision involving a change of zoning shall be
considered in terms of this
Chapter, unless and until the land
concerned has been zoned in a manner permitting of subdivision, in
terms of Chapter II
[17]
8. Issue
of permits.
—
(1) The
Minister may in his discretion—…
(2) The
Minister may
—
(
a
)
at the request of the owner of land on whose application a permit
has been issued under this section or of his successor in title,
revoke or amend such permit; or…
(3) A
permit issued under
subsection
(1) (
a
)
(iii)
or
(iv)
shall lapse if at any time after the issue thereof the land
concerned is not used for a continuous period of two years for any
purpose authorized in the permit.
[
S.
8
amended by
s.
8
of
Act
No. 73 of 1975
and substituted by
s.
7
of
Act
No. 51 of 1981
.
Sub-s.
(3)
added by
s.
3 (
b
)
of
Act
No. 104 of 1984
.]
[18]
“
Amends
section 1 of the Physical Planning Act, No. 88 of 1967, by deleting
the definition of “nature area”
[19]
“
Section
44 (2)
(2) At
the commencement of this Act, land reserved as a nature area in
terms of section 4 (1) (b) of the Physical Planning
Act, 1967 (
Act
No. 88 of 1967
), shall, notwithstanding the provisions of
subsection
(1)
, be deemed to be declared a protected natural environment in
terms of section 16 (1) of this Act, and the provisions of section 4
(2) of the Physical Planning Act, 1967, shall continue to
apply to
such land.
.”
[20]
44.
(1) Amends
section 4 (1) of the Physical Planning Act,
No.
88 of 1967
,
by deleting paragraph (b).
(2) At
the commencement of this Act, land reserved as a nature area in
terms of section 4 (1) (b) of the
Physical Planning Act,
1967 (
Act
No. 88 of 1967
),
shall, notwithstanding the provisions of
subsection
(1)
,
be deemed to be declared a protected natural environment in terms of
section 16 (1) of this Act.”
[21]
“
9
Kinds of protected areas
The
system of protected areas in South Africa consists of the following
kinds of protected areas:
(a) special
nature reserves, national parks, nature reserves (including
wilderness areas) and protected environments;[Para.
(a) substituted
by s. 3 (a) of
Act
31 of 2004
.]
(b) world
heritage sites;
(c) marine
protected areas;[Para. (c) inserted by s. 3 (b) of
Act
31 of 2004
.]
(d) specially
protected forest areas, forest nature reserves and forest wilderness
areas declared in terms of
the National Forests Act, 1998 (
Act
84 of 1998
);
and
(e) mountain
catchment areas declared in terms of the
Mountain Catchment Areas
Act, 1970
(
Act
63 of 1970
).”
[22]
“
17
Purpose of protected areas
The
purposes of the declaration of areas as protected areas are-
(a) to
protect ecologically viable areas representative of South Africa's
biological diversity and its natural
landscapes and seascapes in a
system of protected areas;
(b) to
preserve the ecological integrity of those areas;
(c)
to
conserve biodiversity in those areas;
(d)
to
protect areas representative of all ecosystems, habitats and species
naturally occurring in South Africa;
(e)
to
protect South Africa's threatened or rare species;
(f)
to
protect an area which is vulnerable or ecologically sensitive;
(g)
to
assist in ensuring the sustained supply of environmental goods and
services;
(h)
to
provide for the sustainable use of natural and biological resources;
(i)
to
create or augment destinations for nature-based tourism;
(j)
to
manage the interrelationship between natural environmental
biodiversity, human settlement and economic development;
(k)
generally,
to contribute to human, social, cultural, spiritual and economic
development; or
(l)
to
rehabilitate and restore degraded ecosystems and promote the
recovery of endangered and vulnerable species.
[23]
“
48
Prospecting and mining activities in protected area
(1)
Despite other legislation, no person may conduct commercial
prospecting or mining activities-
(a) …
(b) in
a protected environment without the written permission of the
Minister and the Cabinet member responsible
for minerals and energy
affairs; or…”
[24]
“…
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.”
[25]
13
Access to coastal public property
(1) Subject to
this Act and any other applicable legislation, any natural person in
the Republic-
(a) has
a right of reasonable access to coastal public property; and
(b) is
entitled to use and enjoy coastal public property, provided such
use-
(i) does
not adversely affect the rights of members of the public to use and
enjoy the coastal public property;
(ii) does
not hinder the State in the performance of its duty to protect the
environment; and
(iii) does
not cause an adverse effect.
(2) This section
does not prevent prohibitions or restrictions on access to, or the
use of, any part of coastal public property-
(a) which
is or forms part of a protected area;
(b) to
protect the environment, including biodiversity;
(c) in
the interests of the whole community;
(d) in
the interests of national security; or
(e) in
the national interest.
(3)
No fee may be charged for access to coastal public property without
the approval of the Minister.
(4)
The Minister, before granting approval for the imposition of a fee,
must require a public participation process in accordance
with Part
5 of Chapter 6 to enable interested and affected parties to make
representations.
(5) Subsections
(3) and (4) do not apply to coastal public property-
(a) that
has been leased; or
(b) that
is, or forms part of, a protected area or the sea that forms part of
a harbour or a proclaimed fishing
harbour
[26]
“
24I. Appointment
of external specialist to review assessment.
—
(1) The
Minister or MEC may appoint an external specialist reviewer, and may
recover costs from the applicant, in instances
where—
(a)
the technical knowledge required to review any aspect of an
assessment
is not readily available within the competent authority;
(b)
a high level of objectivity is required which is not apparent in
the
documents submitted, in order to ascertain whether the information
contained in such documents is adequate for decision-making
or
whether it requires amendment.”
[27]
“
16
Composition of coastal protection zone
(1)
Subject to subsection (2), the coastal protection zone consists of-
(a)…
(b)…
any
part of the littoral active zone that is not coastal public
property;
(c)…
(d) any
land unit situated wholly or partially within one kilometre of the
high- water mark which, when this
Act came into force-
(i) was
zoned for agricultural or undetermined use; or
(ii) was
not zoned and was not part of a lawfully established township, urban
area or other human settlement;…”
[28]
“
17
Purpose of coastal protection zone
The
coastal protection zone is established for enabling the use of land
that is adjacent to coastal public property or that plays
a
significant role in a coastal ecosystem to be managed, regulated or
restricted in order to-
(a) protect
the ecological integrity, natural character and the economic, social
and aesthetic value of coastal
public property;
(b) avoid
increasing the effect or severity of natural hazards in the coastal
zone;
(c) protect
people, property and economic activities from risks arising from
dynamic coastal processes, including
the risk of sea-level rise;
(d) maintain
the natural functioning of the littoral active zone;
(e) maintain
the productive capacity of the coastal zone by protecting the
ecological integrity of the coastal
environment; and
(f)
make
land near the seashore available to organs of state and other
authorised persons for-
(i) performing
rescue operations; or
(ii) temporarily
depositing objects and materials washed up by the sea or tidal
waters.”
Regulation
35.
(1) A competent authority must within 45 days of acceptance of
an environmental impact assessment report in terms of regulation
34
or, if the report was referred for specialist review in terms of
section 241 of the Act, within 45 days of receipt of the findings
of
the specialist reviewer, or within 30 days of the lapsing of the 60
days contemplated in regulation 9(2), in writing—
(a)
grant
authorization in respect of all or part of the activity applied for;
or
(my underlining)
(b) refuse
authorization in respect of all or part of the activity. (my
underlining)
(2) To the
extent that authorization is granted for an alternative, such
alternative must for the purposes of sub-regulation (1)
be regarded
as having been applied for.
(3) On having
reached a decision, the competent authority must comply with
regulation
10
(1).
(4) The Minister
of Mineral Resources may only issue an authorization if the
provisions of section 24P(1) of the Act have been
complied with.
[30]
“
Equality
.-
(1)Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
[31]
Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair.”