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[2014] ZAWCHC 205
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Durbanville Community Forum v Minister for Environmental Affairs And Development Planning Provincial Government Western Cape and Others (13854/2013) [2014] ZAWCHC 205; [2015] 2 All SA 187 (WCC) (24 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
CASE
NUMBER:
13854/2013
REPORTABLE
DATE
:
24 DECEMBER 2014
In
the matter between:
THE
DURBANVILLE COMMUNITY FORUM
Applicant
And
MINISTER
FOR ENVIRONMENTAL AFFAIRS
AND
DEVELOPMENT PLANNING
PROVINCIAL
GOVERNMENT WESTERN CAPE
1
st
Respondent
THE
CITY OF CAPE TOWN
2
nd
Respondent
ALBERT
FORD MATTHYS LOUW N.O.
3
rd
Respondent
FRANCOIS
LOUW N.O.
4
th
Respondent
JAKOBUS
ABRAHAM LOUBSER N.O.
5
th
Respondent
JUDGMENT
DAVIS,
J
:
INTRODUCTION:
This is an application in terms of
section 6 of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”) for judicial
review of a decision to grant an
environmental authorisation and dismiss appeals pursuant to sections
24 and 43 of the National
Environmental Management Act 107 of 1998
(“NEMA”).
It appears that on 24 November 2011,
following an environmental impact assessment process, Mr Ayub
Mohamed, the Director of Land
Management (Region 1) in the Department
of Environmental Affairs Development and Planning in the Western Cape
Provincial Government
(“the Director”), acting in terms
of section 24 of NEMA and the environmental impact assessment
regulations in terms
of NEMA, approved the following listed
activities in relation to land forming part of Portion 18 (an as yet
unregistered portion
of Portion 17) of the Farm Uitkamp No 189, Cape
Division, Western Cape Province (Portion 18), on the basis of reasons
set out in
his decision:
(1)
Items (1e), (1k), (m), 15 and 18 in the List of
Activities published in GN386 of 2006 (GG28753-21 April 2006) and
equivalent items
in Listing notice 1 of 2010 (GNR544 published in
GG3306 of 18 June 2010) viz items 11, 18 or 22 (there be no
equivalent item in
Listing Notice 1 for item 1(e) in GN386 of 2006).
(2)
Item 2 in the List of Activities published in
GN387 of 2006 (GG28753 – 21 April 2006) and the equivalent item
in Listing Notice
2 of 2010 (GNR545 published in GG33306 – 18
June 2010), viz item 15 and;
(3)
Item 4 in Listing Notice 3 of 2010 (GNR546
published in GG33306 – 18 June 2010)
On 27 February 2013 the first
respondent (“the Minister”), acting in terms of section
43 of NEMA, dismissed an appeal
by the applicants and 14 other
appellants against the Director’s approval for reasons which
were set out in the appeal decision
(‘the Minister’s
appeal decision’).
THE PARTIES:
Applicant is the Durbanville Community
Forum whose membership is open to all legal residents, businesses and
representatives
of organisations which share its aims and
objectives in the Durbanville area. First respondent (“the
Minister”)
is the appellate decision maker. Second
respondent is the City of Cape Town (“the City”).
It has not participated
in these proceedings. Third to fifth
respondents are the trustees of the AFM Louw Familie Trust (“the
Trust”),
which is the owner of the land to which this
application refers. The Trust opposes this application and has
delivered answering
papers.
THE RELIEF SOUGHT:
Applicants seek the following orders:
(1)
Reviewing and setting aside in terms of sections
8(1)(c)(i) of PAJA and / or correcting in terms of section
8(1)(ii)(aa) of PAJA
of:
1.1
The Director’s decision and;
1.2
The Minister’s appeal decision.
(2)
Substituting the Court’s decision for that
of the Minister by upholding the applicant’s appeal in terms of
section 8(1)(ii)(aa)
of PAJA; alternatively remitting the decision
for reconsideration by the Minister with directions.
(3)
Costs in terms of section 32(3)(a) of NEMA,
including the costs of two counsel to by paid by any of the
respondents who oppose the
application.
FACTUAL MATRIX
With this introduction I now turn to
the factual background. The Trust seeks to develop the property
(“Portion 18”)
for residential purposes and a school
campus. The property is approximately 127 hectares in extent
and is located on the
northern edge of Durbanville. It falls
within the Cape Town Metropolitan Area and is approximately 30
minutes drive from
central Cape Town. To the south of the
property and separating it from the suburb of Aurora, is Odendaal
Road.
To the east of the property and separating it from the
suburb of Durbanville is Visserhok Road. To the north of the
property
and separating it from the Westerdale Smallholdings is
Hooggelegen Road. A private nature reserve on Portion 19 on
which
some game is kept lies to the west of the property. The
situation of the property is depicted on numerous annexures to the
Court record to which I shall make brief reference in passing later
in the judgment. In short, the property about land being
used
for a wide variety of land uses, varying from agriculture to urban
and commercial and industrial uses and is 2km from the
CBD of
Durbanville.
No approval was sought for any of the
listed activities on Portion 19 nor was any approval granted in
connection therewith.
As to the future of Portion 19, the Trust
has agreed with the City that it will not be developed but instead
will be incorporated
into a larger conservation area.
For the Trust to develop land it
required certain approvals being the following:
(1)
An environmental authorisation for the listed
activities to which I have already made reference.
(2)
The amendment of the Cape Town Spatial Development
Framework (‘CTSDF’) in terms of section 34(b) of the
Local Government:
Municipal Systems Act 32 of 2000 (“The
Systems Act”) to permit the change in description of the land
from “high
potential and unique agricultural land” to
“urban development”, as well as the amendment of the
urban edge to
incorporate the proposed development.
(3)
The rezoning of the land in terms of section 16 of
the Land Use Planning Ordinance 15 of 1985 (‘LUPO’) from
agricultural
zone to a Sub Divisional area.
(4)
The subdivision of the land in terms of section 25
of LUPO to provide for 646 residential opportunities, a school, a
nature reserve,
private open spaces, private roads, public roads and
a commercial entity to accommodate the estate facilities.
(5)
Subject to the approval in 3 to 4 above, the
rezoning of the existing tourism related buildings on the property to
General Business
1 in terms of section 16 of LUPO to accommodate the
existing tourism related facilities.
(6)
The conditional use of the property in terms of
the transitional arrangements in the new Cape Town Zoning Scheme
permits a place
of instruction for the school.
On 24 April 2014, after the present
proceedings were instituted in relation to the granting by the
provincial authorities of the
environmental authorisation set out in
1 above, the municipal council of the second respondent (the Council
and the City) granted
approval as set out in 2 to 6 above.
THE APPROVED DEVELOPMENT:
The decision makers approved the
preferred layout plan referred to during the environmental impact
process (EIA process) and final
environmental impact report, (final
EIR) which is described as alternative 4 (“alternative 4”).
The Uitkamp residential
area (“the development”) is
divided into southern and northern areas by a middle area comprising
the Clara Anna Fontein
Manor House Complex, a corridor containing a
headwater stream of the Mosselbank River which runs from east to west
(“the
streamline corridor”) and a nature reserve
containing the streamline corridor.
The middle area, which is not suitable
for agriculture, has never been farmed. According to the
papers, it would be conserved,
as among other things, a faunal and
vegetarian corridor. To the west it will link the undeveloped
upper portions of Portion
18, which has large portions of renoster
veld to the underdeveloped Portion 19 and to the east it will link to
the Uitkamp wetland.
The southern corridor consists of:
(1)
297 single residential erven.
(2)
125 group housing sites.
(3)
Private roads.
(4)
A private open space network and;
(5)
Office and estate facilities.
The northern development area consists
of:
(1)
51 single residential erven.
(2)
A retirement village of 176 units.
(3)
A school campus of approximately 8.8ha.
(4)
Private roads and;
(5)
A private open space network.
In total, 646 residential units,
including a retirement village of 176 units, have been authorised.
The school campus, to
which I have already made reference, has been
earmarked for Chesterhouse College which is an expansion of
Chesterhouse School,
an English medium school which has been located
in Durbanville since 2000. It appears that as more and more
families seek
to live in the northern suburbs, the governing primary
and high schools in the area have children enrolled well beyond their
capacities.
Chesterhouse, notwithstanding that it
is as independent school, has, according to the Trust, seen
unprecedented growth in its enrolments
over the past 14 years in
response to the need in Durbanville for an English medium school
offering education in primary and high
schools as is evident by the
large numbers of letters in support of the development submitted
during the EIA and appeal processes.
The Trust informs the
Court that for the past 8 years Chesterhouse has unsuccessfully tried
to find suitable land in the area.
The proposed school and
grounds on Portion 18 will afford more classroom and learning space
and will enhance the school’s
sports and cultural offering.
The applicants have opposed these
developments, both at the stage that the Director considered the
authorisations and at the appeal
process which culminated in the
Minister’s decision. By the time the matter came on
review to this Court, the applicant
had distilled its case in order
to raise three critical issues:
(1)
The alleged conflict of the development proposal
with the existing planning documents: ‘the principal fatal
flaw’, being
that the land is outside the urban edge (this was
referred to in these proceedings as the ‘urban edge issue’).
(2)
The alleged agricultural potential of the land
(referred to in these proceedings as ‘the soil issue’)
and;
(3)
The extent of the Uitkamp Wetlands on the land,
referred to as the ‘Wetland issue’.
I turn therefore to deal with the
applicants’ case in relation to these three issues.
THE URBAN EDGE ISSUE:
When the Minister took the decision on
27 February 2013 to dismiss the appeals and grant environmental
authorisation for the development,
it does not appear to be disputed
that the land was not included within the urban edge designated in
terms of certain forward planning
policies. Applicants submit
that the urban edge delineated in the forward planning policies was a
critical factor and that
the Minister’s failure to take this
factor into account or alternatively accord it sufficient weight,
renders his decision
reviewable in terms of section 6(2)(e)(iii) of
PAJA.
Given the extent of the information
before the Minister concerning the urban edge and the spatial
planning importance of preserving
the urban edge and the disconnect
between this information and the Minister’s decision on appeal,
applicants contend that
the Minister’s decision falls to be
reviewed as well in terms of section 6(2)(f)(ii) of PAJA.
Applicant further submits that the
forward planning policies to which it has made reference and which it
contends applies at the
time that the Minister took his decision
were:
(1)
The CTSDF(Cape Town Spatial Development Framework)
which had been approved by the City on 28 May 2012 as a component of
its integrated
development plan in terms of section 34(b) of the
Systems Act.
(2)
The Western Cape Spatial Development Framework
(the WCSDF) and the Northern Spatial Development Plan.
Mr Taylor, who appeared together with
Mr Magardie, on behalf of the applicant, submitted that the
Minister’s decision to grant
environmental approval for the
proposed development was inconsistent with the clear terms of the
CTSDF which is a component of
the City’s integrated development
plan (IDP). The Minister was not authorised by NEMA to grant
environmental approvals
contrary to the terms of the City’s SDF
and accordingly his decision was reviewable in terms of section
6(2)(a)(i) of PAJA.
In this connection, Mr Taylor noted
that the CTSDF was approved by the Minister on 8
th
of 2012
in terms of section 4(6) of LUPO.
Mr Taylor also referred to section 25
of the Systems Act which requires a municipal council to adopt an
IDP, which is a single inclusive
and strategic plan for the
development of the municipality and which:
“
links,
integrates and coordinates plans, takes into account proposals for
the development of the municipality; aligns the resources,
the
capacity of the municipality with the implementation of the plan and
forms the policy framework and general basis on which
annual budgets
must be based.”
In terms of section 35 (1) (a) of the
Systems Act, an IDP adopted by a municipality:
“
is the
principal strategic planning instrument which guides and informs all
planning and development and all decisions with regard
to planning,
management and development in the municipality.”
The IDP:
“
binds the
municipality in the exercise of its executive authority, except to
the extent of any inconsistency between the municipality’s
integrated development plan and national or provincial legislation,
in which case such legislation prevails.” (sec 35 (1)
(b))
Such an IDP also:
“
binds all
other persons to the extent that those parts of the integrated
development that impose duties or affect the rights of
those persons
have been passed as a bylaw.”
Reference was also made to section 26
(d) of the Systems Act which sets out the core components integrated
development plans.
One of these is:
“
A spatial
development framework which must include the provision of basic
guidelines for a land use, management system for the municipality.”
The SDF therefore forms part of the
municipality’s IDP and has been described as being ‘a
very important town planning
instrument.’
The applicant also referred to the
Local Government Municipal Planning and Performance Administration
and Management Regulations
published in GNR796 of 24 August
2001(‘municipal planning regulations’) which apply to a
municipality’s SDF and
set out some of the requirements for a
SDF. In particular, Regulation 2(4)(a) provides that a SDF must
give effect to the
principles contained in Chapter 1 of the
Development Facilitation Act 674 of 1995 (“the DFA”).
Applicant points
as well to Regulation 2(4)(b) which provides that
the SDF must also set out objectives that reflect and decide the
spatial form
of the municipality.
In terms of Regulation 2(4)(c) the SDF
should contain strategies and policies concerning the manner in which
to achieve these objectives
which must indicate the desired pattern
of land use within a municipality, address the spatial reconstruction
of the municipality
and provide strategic guidance in respect of the
location and nature of the development in the municipality.
Regulation 2(4)(i)
provides that the SDF “must provide a visual
representation of the desired spatial form of the municipality which
representation
... may delineate the urban edge”.
Special provisions apply to the
adoption and amendment of the IDP of which the SDF and the urban edge
form part. Regulation
3 provides for the process for an
amending a IDP. It is not however necessary to reproduce the
contents of this regulation
for the purposes of this judgment.
Mr Taylor submitted that the SDF and
the urban edge which forms part of it, is a statutory planning
instrument which is binding
on a municipality when it considers
planning applications. It is not merely a policy document for
which there can be a deviation,
if there is a reason to so do.
The importance which the legislature accords to an SDF is also
evident from section 35(2)
of the Systems Act, which provides:
“
A spatial
development framework contained in an integrated development plan
prevails over a plan as defined in section 1 of the
Physical Planning
Act 125 of 1991.”
A municipal SDF and integrated
development planning generally serve transformational purposes, in
the view of applicants and are
aimed at addressing the inequities of
the past.
In respect of this particular
development, both the Trust and the Minister readily state that one
of the main factors which they
consider to justify the development
is:
“
A current
need for high income residential development in the area.”
Applicant contends that the proposed
development is not one which caters for government subsidised and gap
housing which the CTSDF
recognises to be a basis for extending the
urban edge.
In summary, applicant contends that
this is a development aimed at the wealthy sections of the
community. The City’s
internal review of the previous
development proposed by the Trust, which in applicant’s view is
not dissimilar to the present
development, stated that:
“
This
proposed development is an upmarket development aimed largely at the
historically advantaged for whom there is no real housing
shortage.”
Mr Taylor also referred to policy
guideline 23.2 of the CTSDF which states that:
“
No urban
development should be encouraged beyond the urban edge,
unless
exceptional and unique circumstances exist
.
The guidelines and criteria outlined in Table 5.6 must guide decision
making. It should be noted that the term “urban
development” includes, amongst other things golf estates,
vineyard estates with a residential component, equestrian estates
with a residential component, rural living estates, eco-estates,
gated communities, regional shopping centres and offices.”
Mr Taylor submitted that none of the
circumstances that were found to exist in this case could reasonably
be described as being
either “exceptional” or
“compelling”. Thus no rational basis existed
for finding that these
existed.
Referring to the Minister’s
decision, the applicant notes that it recorded:
“
The reasons
for the confirmation the aforementioned decision of the delegated
officer are contained in the Department’s Environmental
Authorisation granted on 24 November 2011 and below find herewith
specific responses to the appeal issues.”
Applicant contends that it appears
from the Director’s decision that in relation to planning
considerations, the Director
considered the proposed development “as
a form of infill development”, noted “the low
agricultural potential
land” the visual impact of the
development and the impact on service infrastructure and on the
natural environment and found
that these were the “factors and
unique circumstances” which ultimately justified the decision
to approve the development,
notwithstanding that planning documents
did not encourage development on the property.
Applicant submits that, what it
described as the Minister’s laconic statement, that he
“considered the urban edge issue”,
was an insufficient
justification. No objective and proper justification was
advanced to explain why the factors and circumstances
relied on by
the Minister and the Director were of such a “exceptional and
unique” nature that environmental approval
of the development
was warranted, notwithstanding a clear conflict with the existing
planning documents.
In summary, applicant contends that
the Minister’s decision is irrational in that no rational
connection between his ultimate
decision and the information before
him could be sustained. In particular, the CTSDF specifically
and deliberately excluded
the land from the urban edge.
That approval was granted by the Minister before he decided to grant
the environmental
authorisation for the proposed development was
telling.
Further, the explanatory manual of the
WCSDF, which specifically identified the land as a prime example of a
“Celebration
Edge” and the appropriate interface between
the urban areas and the rural area, contain natural environments,
farm lands
and areas of scenic and cultural value was not
properly considered.
I turn to deal with the second of the
issues raised by the applicants.
THE SOIL ISSUE:
Applicant suggests that the soil issue
was inextricably linked with the Minister’s reasoning to grant
the environmental approvals,
notwithstanding that the CTSDF had
designated the land as “high potential and unique agricultural
land worthy of long term
protection”. In answer to
applicant’s contentions regarding the soil issue and the
Minister’s failure to
have proper regard to the agricultural
value of the land, applicant suggests that the Trust relies in the
first instance on the
sub division and consolidation consent granted
to the Trust in October 1996.
The Trust, the Director and the Final
EIR, prepared by the EAP, contended throughout, that the effect of
the consent was that the
land was exempted from the provisions of the
Sub Division of Agricultural Land Act 70 of 1970.
Apart from these points, applicant
contends that, faced with conflicting reports by Dr Valentine and Mr
Schloms with respect to
the agricultural potential of the land, it
was incumbent upon the Minister to invoke the provisions of section
24(I) of NEMA, which
provides that the Minister or MEC may appoint an
external specialist reviewer and may recover costs from the
applicants in circumstances
where:
“
the
technical knowledge required to review any aspect of an assessment is
not readily available within the competent authority or
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.”
Applicants contend that the
information which was placed before the Minister included conflicting
reports from Dr Valentine and
Mr Schloms regarding the agricultural
potential of the land. The Department’s officials, in
applicants view, clearly
lack the technical competence to reach a
determinative and final conclusion on the soil potential of the land
and relied extensively
on input from the Provincial Department of
Agriculture.
Applicant submits, insofar as the soil
issue was integral to the Minister’s decision to approve the
development, notwithstanding
its designation at the time of his
decision as high potential and unique agricultural land, that the
Minister had failed to take
account of the need to obtain an external
specialist review of the soil potential of the land. Insofar as
the failure to
include the so-called Schloms soil map in the final
EIR was concerned, applicant submits this amounted to non-compliance
with a
material condition imposed by the NEMA regulation,
particularly Regulation 56(1) which regulates the public
participation required
in respect of the EIA.
The Regulation entitles interested and
affected parties to comment in writing:
“
on all
written submissions, including draft reports, made to the competent
authority by the applicants to the environmental assessment
practitioner (EAP) managing an application and to bring to the
attention of the competent authority any issues which that party
believes may be of significance for the consideration of the
application.”
In terms of Regulation 56(2) before
the EAP managing an application for environmental authorisation
submits a final report compiled
in terms of these regulations to the
competent authority, the EAP must give registered, interested and
affected parties access
to and an opportunity to comment on the
report in writing. A report to which interested and affected
parties are entitled
to comment includes:
“
Specialist
reports and reports in specialised processes compiled in terms of
regulation 32.”
THE WETLAND ISSUE:
Applicant contends that the exclusion
of the so-called Admins report from the Final EIR was similarly
flawed and constituted non-compliance
with the material conditions
imposed by the EIR regulations. Applicant further submits that
the report which ultimately was
placed before the Minister, that is
of Dr Harding, did not constitute a wetland delineation report as
required by the scoping report,
the approved plans study and the DWAF
guidelines for delineation of wetlands and riparian zones.
While applicant did not contend that
it would be appropriate for this Court to make a determination
regarding the different conclusions
reached by Dr Harding and those
which are contained in the Admins report, given the obligation in
terms of NEMA to adopt a ‘cautionary
approach’, the
conflicting opinions in these reports ought to have raised in the
mind of the Minister the need for a further
specialist report to be
obtained in terms of section 24(I) of NEMA. The Minister, in
applicant’s view, had advanced
no reason why he failed to
exercise discretion in terms of the section when faced with two
conflicting reports by specialists with
regard to the delineation of
the wetlands on the land.
THE INDICATED APPROACH TO THIS DISPUTE
So much for the substantive case which
was made out by the applicant. Before turning to an examination
of these submissions,
which I do by way of an evaluation thereof
together with the case made out by the respondents, I must heed Mr
Newdigate, who appeared
together with Ms Mahomed on behalf of the
first respondent who contended that it would be appropriate to
restate, the basic principles
of judicial review which govern the
determination of this case. I do so because, as will become
apparent in certain of the
components of this evaluation, it is
important to emphasise that this is a review and not an appeal.
It is trite that a review
is not concerned with the correctness of
the decision made by functionary, but whether the functionary
performs the function with
which he or she was entrusted.
When the law entrusts a functionary
with a discretion it means simply this: the law gives recognition to
the evaluation made by
the functionary to whom the discretion is
entrusted and it is not open to a Court to second guess this
evaluation. The role
of a Court in such a case extends no
further than to ensure that the decision maker has performed the
function with which he or
she was entrusted. See
MEC for
Environmental Affairs and Development Planning v Clairison’s CC
2013 (6) SA 224
(SCA) at 239-240.
When a decision maker is entrusted
with a discretion, the weight to be attached to particulars factors
or how far a particular factor
affects the eventful determination of
issues is a matter for the decision maker and, if he or she decides
in good faith, reasonably
and rationally, to make such a decision, a
court should not interfere therewith. See paragraphs 44 to 45
of
Clairison
, supra.
EVALUATION
With this in mind I turn to re-examine
the case dealing with the urban edge. I have spent some time
summarising applicants’
cases. Suffice it to say
that it turns on the following: since the development is said to fall
outside the urban edge,
it is inconsistent with planning policies,
which do not permit the extension of the urban edge. This, in
applicants view,
is a “principle, fatal flaw” in the
decisions which are now impugned. The basis of this decision is
to refer
to various policy and planning documents, which I have
already set out, including the WCSDF, the Guide Plan of the City of
Cape
Town and the NDSDF.
In his answering affidavit, the
Minister notes that none of the relevant planning and policy
documents, to which applicants have
referred, is binding in the sense
that none has the force of law. This proposition, it appears to
me, is common cause.
In applicant’s founding
affidavit deposed to by Mr St Dare, the following appears at para 53:
“
I have been
advised that the Minister and the Director had to assess the
application for environmental authorisation in terms of
NEMA within
the planning policy framework, not in the sense that the competent
authority has to follow such policy slavishly, but
to consider
whether need and desirability required deviation in such policies,
there and now under the circumstances of the particular
case.”
This conclusion is manifestly
consistent with the nature and the content of all the documents to
which applicant has referred.
They are intended to guide. They
are not legally binding. They can therefore be departed from
when the relevant circumstances
justify such a departure. In
his answering affidavit, the Minister referred to the decision of the
Director and specifically
to the question of the relevant planning
policy documents. The relevant portion of the Director’s
decision in this
connection reads thus:
“
Policy:
Regional / Planning context.
Comment regarding the application that
was obtained from this Department’s Directorate Environmental
and Spatial Planning,
who specifically considered the issues raised
regarding the proposed site’s location in relation to the
current urban edge.
Various planning documents should not
encourage urban development on the property. However, other
factors and unique circumstances
were considered in the evaluation of
the proposed development. The strategic importance of the
property needs to be
taken into account. Residential
development abuts the property on the eastern and southern boundaries
in the form of
Aurora and Durbanville residential areas. The
northern boundary of the subject property is bordered by small
holdings which
are semi-urban in nature. The western boundary of the
subject consists of land with a high bio-diversity value, which could
be
consolidated with the area south of the site. The proposed
development is granted as a form of infill development or a rounding
off of urban development in the area.”
The Director, in his written decision,
referred to comment obtained from the Department’s Directorate
Environmental and Spatial
Planning on this very issue. This
report, compiled by Mr C K Rabie, Director Environmental and Spatial
Planning in the Department,
reads, to the extent that it is relevant,
as follows:
“
The
strategic importance of the subject property needs to be taken into
account. It should be noted that township development
(residential) abuts the property on the eastern and southern
boundaries in the form of Aurora and Durbanville residential areas.
The northern boundary on the subject property is bordered by small
holdings which are semi-urban in nature. The western boundary
of the subject property consists of land with a high bio-diversity
value which could be consolidated with the area south of the
site.
It could be argued that the proposed development could be regarded as
a form of infill development or a rounding off
of urban development
depending on the size of the development.
The agricultural potential of the
subject property is also an important matter for consideration.
Although the property is
zoned for agricultural purposes it is clear
from the evaluation and the associated plans from the Department of
Agriculture Western
Cape that the large portion of the subject
property does not consist of high potential agricultural land that
would warrant obtaining.”
These passages, as is evident, were
incorporated, in part, in the Directors decision.
Mr Rabie had made the following
recommendation:
“
This
Directorate therefore recommends this application for approval, on
condition that the agricultural area indicated as medium
high
potential agricultural land as identified in the plan and the report
date of 2 September 2011 from the Department of Agriculture
of
Western Cape, be excluded from the development unless it can be
factually proven that water cannot be obtained for irrigation
purposes. The application may be reconsidered to expand the
line and to include the existing development proposal if proven
information is provided that water is inaccessible.”
The Minister continued in his
affidavit to describe how the issue relating to the property falling
outside the urban edge was raised
and discussed in various of the
other documents which were placed before the Director and inevitably
before himself. Different
views were expressed thereon in these
documents. There were those who supported the application,
notwithstanding that the
property falls outside the urban edge and
those who opposed the application for this reason. According to
the Minister, all
of these submissions were taken into account, both
by the Director and by himself.
I refer in this connection to the
Director’s report:
“
Various
planning documents do not encourage urban development on the
property. However other factors and unique circumstances
were
considered in the evaluation of the proposed development.”
Manifestly these components of the
decision reflect the earlier inputs to which I have made reference.
First respondent, noted
that this issue was fully considered by the
Director who considered it not only in isolation but in context of
“other factors
and unique circumstances” relating to the
property proposed development. From his answering affidavit it
is clear that
the Minister considered the various appeals, including
those of the present applicant and he too considered the issue of the
property
falling outside the urban edge.
He came to the same conclusion as the
Director. This is reflected in his written reasons:
“
1.
The 2012 Cape Town Spatial Development Framework (2002 SDF) states
that ‘the urban edge
is a medium to
long term edge line demarcated in such a position as to phase urban
growth
appropriately or to protect natural
resources.’ Although the proposed site is not within the urban
edge, the urban edge does
not give or take away rights to the land.
The final EIA Report concluded that alternative 4 can be developed on
the site
although it is not situated within
the urban edge.
2.
The site has been previously disturbed by mining for gravel or
agricultural activities. The suburb of Aurora
lies along the south
eastern edge and
Durbanville development
lies along the eastern boundary across Visserhok Road.
3. The stream
alignment, which includes a spring, will be excluded from the
development and will form part
of the corridor which will link the
Renosterveld remnants west of the development to the Uitkamp wetlands
east of the development.
No significant impacts are anticipated
as a result of the development.
4. The development
will contribute to the local economy as it would create employment,
contribute to infrastructural
upgrading, social and environmental
uplifting in the Durbanville area and will also include the
construction of Chesterhouse Senior
School.”
When this set of reasons is examined,
it is clear that the Minister considered this issue: not only alone
but in its overall context,
having regard to the particular and
unique circumstances of the case. It was his view that,
notwithstanding that the property
fell outside the urban edge, as
reflected in certain planning policy documents to which applicants
have made reference and which
were reproduced in this judgment, the
application was correctly granted and the appeal stood to be
dismissed on the conditions
as set out in his written decision.
Mr Breitenbach, who appeared together
with Ms Erasmus, on behalf of the Trust (that is third to fifth
respondents) vigorously attacked
what he called the applicant’s
fallacy; that is that the Minister was precluded by the SDF’s
then exclusion of the
property from the urban edge from granting an
environmental authorisation for its urban development. Neither
NEMA nor the
Systems Act, in terms of which the SDF was initially
approved and may be amended, contained any such prohibition. In
this
connection, Mr Breitenbach referred to two important cases
decided by the Constitutional Court, both of which have relevance to
this issue.
In
Minister of Local Government
Environmental Affairs and Development Planning Western Cape v Habitat
Council and Others
2014 (4) SA 437
(CC) at para 19 the
Constitutional Court explained that the powers of the national and
provincial spheres to require environmental
authorisation for
activities which may adversely affect the environment and then to
grant or refuse such authorisations are powers
conferred on the
national and provincial spheres by national legislation (section 24
of NEMA).
These powers must be considered to
exist alongside the municipal planning powers of municipalities.
This particular issue
had been developed further, although in the
earlier case of
Fuel Retailers Association of Southern Africa v
Director General Environmental Management Department of Agriculture
and Conservation
and Environment Mpumalanga Province and Others
2007 (6) SA 4
(CC) at para 85, where the Constitutional Court said
the following:
“
The local
government considers need and desirability from the perspective of
town planning and the environmental authority considers
whether a
town planning scheme is environmentally justifiable. A proposed
development may satisfy the need and desirability
criteria from a
town planning perspective and yet fail from an environmental
perspective. The local authority is not required
to consider
the social, economic and environmental impact of the proposed
development as the environmental authority is required
to do by the
provisions of NEMA, nor is it required to identify the actual
potential impact over a proposed development on socio-economic
conditions as NEMA requires the environmental authorities to so do.”
For similar reasons, Mr Breitenbach
contended that the applicant was simply wrong to submit that the
Minister could not grant an
environmental authorisation for the
development, unless it met the “exceptional and unique”
requirements as provided
in the SDF for urban development outside the
urban edge. There was no such requirement in NEMA which instead
requires the
Minister to consider the social, economic and
environmental impact of a proposed development so as to decide
whether it is environmentally
justifiable.
In this connection the judgment in
Fuel Retailers
at para 4 is instructive:
“
The decision
to grant or refuse authorisation in terms of S 22(1) of the ECA must
be made in the light of the provisions of the
National Environmental
and Management Act 1998 (NEMA). One of the declared purposes of
NEMA is to establish principles that
will guide organs of state
making decisions that may affect environment. One of these
principles requires environmental authorities
to consider the social,
economic and environmental impact for a proposed activity, including
its ‘disadvantages and benefits’.”
As Mr Breitenbach correctly said, this
is not to suggest that the grant of an environmental authorisation
for a proposed development
of land which is zoned agricultural,
situated outside the urban edge, delineated in a municipal IDF can
proceed without more.
What the developer requires, in addition,
to develop lawfully is an amendment of the IDF by the municipal
council in terms of section
34(b) of the Systems Act. Having so
obtained this, the rezoning and sub division of the land by the
municipality in terms
of LUPO.
Guidance is to be found in a dictum in
Maccsand v City of Cape Town
2012 (4) SA 181
(CC) paras 42-43
in which Jafta J, on behalf of the Constitutional Court, said:
“
It is true
that mining is an exclusive competence of the national government.
It is also true that the MPRDA is concerned
with mining and
that LUPO does not regulate mining nor does it purport to do so.
LUPO governs the control and regulation
of the use of all land in the
Western Cape Province. This function constitutes municipal
planning, a functional area which
the Constitution allocates to the
local sphere of government.
These laws, as the Supreme Court of
Appeal observed, serve different purposes within the competence of
the sphere charged with the
responsibility to administer each law.
While the MPRDA governs mining, LUPO regulates the use of land.
An overlap between
the two functions occurs due to the fact that
mining is carried out on land. This overlap does not constitute
an impermissible
intrusion by one sphere into the area of another
because of spheres of government do not operate in sealed
compartments.”
If a municipality refuses to amend its
SDF and consequently refuses to rezone and sub divide the land to
permit township development,
it will have thereby, in effect, vetoed
the environmental authorisation. This is a clearly permissible
consequence of the
division of powers between the three spheres of
government as envisaged by the Constitution. See in this
connection
Habitat Council
at para 19 and
Maccsand
at
paras 47-48.
Insofar as applicants’ reliance
on spatial planning and policy generally, including the WCSDF is
concerned, it is clear that
the Minister was not prevented by these
policies from granting an environmental authorisation. Planning
policies of guidelines
to be considered in the course of the decision
making process and do not constitute binding law which gives or takes
away rights.
See
MEC for Education Gauteng Province and
Others v Governing Body Rivonia Primary School and Others
2013
(6) SA 582
(CC) at paras 54-55.
In summary, it may be possible to
argue for a different conclusion with regard to the urban edge but
this application seeks a review
of the Minister’s decision. It
is not an appeal and the test for the evaluation of the decisions of
the Director and
the Minister must fall within the concept of
review. As the Court said in the
Clairison
judgment
supra at para 22, “the law remains, as we see it, that when a
functionary is entrusted with a discretion, the weight
to be attached
to particular factors or how far a particular factor affects the
eventual determination issue is a matter for the
functionary to
decide and as he acts in good faith (and reasonably and rationally),
a court of law cannot interfere”.
Having set out in detail the
applicant’s case, much of it was based on municipal regulations
and guidelines, as well as the
decision taken by the Minister and his
reasons, it is clear to me that the Minister’s assertion that
he thoroughly considered
the question of the urban edge was not a
bold one, not one that was unsupported by the evidence to which I
have made reference.
In his affidavit, he explains at some
length and details the reasons for his decision to grant the
environmental authorisation,
notwithstanding that the property fell
outside the urban edge. The Minister’s explanation was
borne out by the contents
of the director’s RoD, which was
affirmed by the Minister and the Minister’s own RoD which
justify their conclusion
“that the proposed development is
socially, environmentally and economically sustainable. This is
so for the following
reasons:
(1)
The ecological corridor connects critical
ecological support areas for bio-diversity and the Uitkamp wetlands.
(2)
Development is only planned on the lower section
of the property which the Minister described as “disturbed and
degraded”
with the upper section, with high potential
agricultural soil being conserved in Portion 19 as a nature reserve
and a conservancy.
(3)
The disturbance of eco-systems, loss of biological
diversity, pollution, degradation of the environment are minimised
with the provision
of adequate mitigation measures.
(4)
A current need for high income level residential
developments in the area is met.
(5)
Job opportunities are created.
(6)
Contributions are made to infrastructural
upgrading and bulk infrastructure.
(7)
Social and environmental upliftment in Durbanville
area is promoted,
inter alia
by the construction of the Chesterhouse College.
(8)
The heritage interest including the spring, the
Clara Anna Fontein Homestead and outbuildings are to be preserved
and;
(9)
The proposed development in its particular setting
“is regarded as a form of infill development or a rounding off
of urban
development in the area.”
When all of this is considered, it
does appear, given the test for review, that the decision makers took
the conspectus of relevant
considerations into account and arrived at
a rational decision which this Court must accord due and appropriate
respect.
In this connection it is relevant to
refer to Cora Hoexter, who in the leading text on the subject
Administrative law in South Africa
, (2
nd
edition)
at 151 writes:
“
The sort of
deference we should be aspiring to in administrative law consists of
‘a judicial willingness to appreciate the
constitutionally
ordained province of administrative agencies’. To
acknowledge the expertise of those agencies and
policy laden or
polycentric issues; to give their interpretations of fact and law due
respect and to be sensitive in general to
the interests legitimately
pursued by administrative bodies and the practical and financial
constraints under which they have to
operate.”
This conclusion is strengthened by the
fact that the Minister did not act as a rubber stamp as is evident
from the amended conditions
in respect of the authorisations
given to the Trust. In his decision, the Minister proposed a
series of amended conditions.
See the decision of 28 February
2013. I do not intend to reproduce these conditions but it is
clear that they constituted
amendments which reflected that due
consideration had given by the Minister to the overall implications
of a positive decisions.
What the applicants seek from this
Court by way of reference to a host of municipal documents is:
(1)
To blur the distinction between a decision taken
under NEMA and a decision which falls within the province of a
municipality, and
further,
(2)
To invite this Court to take over the decision
making process; in short, for the Court to be the ultimate
environmental decision
maker.
A Court must firmly refuse this
invitation for all of the reasons which are set out so eloquently by
Professor Hoexter.
THE AGRICULTURAL POTENTIAL OF THE
LAND:
The applicant, again to summarise its
case, submits that the Minister concluded that the land has low
agricultural value and in
reaching this conclusion relied
impermissibly on the consent granted to the Trust on 25 October 1996
by the National Department
of Agriculture for the consolidation and
sub division of the land to facilitate township development in
Portion 18. Mr Breitenbach
submitted that in this case the
applicant was patently wrong to suggest that the Minister concluded
that the land had low agricultural
value, if by this claim it meant
all of the land comprising the property.
The approved development alternative
(it must be remembered that it was alternative 4 that was so chosen)
excludes from the development
area the upper section of the property
(Portion 18) as a result at which the high potential agricultural
soil is conserved, together
with Portion 19 as a nature reserve by
conservancy. The applicant, in Mr Breitenbach’s view, was
wrong to imply that
the Minister relied solely on the Department of
Agriculture’s decision under the Subdivision Act to approve the
subdivision
of the property for township development.
In response to a complaint made by the
applicant’s Mr St Dare on 27 February 2013, the Minister said
that, “notwithstanding
the withdrawal as agricultural land in
terms of the Subdivision of Agricultural Land Act 1970 .. the
Department sought an authoritative
opinion on the soil’s
potential issue and comment was requested from the Provincial
Department of Agriculture which informed
the decision making process
undertaken by the Department. The Department did not
solely rely on the maps that accompanied
the EIA report and was
definitively advised by the Provincial Department of Agriculture.”
Mr Breitenbach submitted further that
the applicant was wrong to suggest that the Department of
Agriculture’s decision under
the Subdivision Act to approve the
sub division of the property for township development was an
irrelevant consideration.
While not decisive, the fact that a
national organ of state, charged with conserving of the agricultural
resources of the country
consented to urban development of the
property was a relevant consideration. The same logic applied
to the comment received
from the Provincial Department of Agriculture
which resulted in the acceptance by the Director and the Minister of
alternative
4. It implemented “a give and take strategy”
which had been proposed by the Provincial Department of Agriculture
whereby most of the medium high potential soils were conserved in the
ecological corridor and open spaces with Portion 19 as a
nature
reserve and conservancy, that is development was only planned on the
lower section of the property.
Mr Breitenbach also referred to the
applicant’s submissions regarding the information related to
the agricultural potential
of the land in the EIR as being inadequate
and inaccurate and consequently that there had not been
compliance with the notice
and comment requirements in terms of
regulation 56 of the EIA Regulations because it did not contain the
soil map in the report
of Mr Schloms. However, as both Mr
Breitenbach and Mr Newdigate noted, respondent’s papers
revealed that the Trust’s
independent environmental
practitioner (EAP) Mr Jeffrey, attached a map prepared by First Plan
dated August 2013 (“the first
plan soil map), simplifying the
soil map in the Schloms report. The Schloms soil map itself was
consequently not included
in the final EIA.
The reason why a simplified map was
produced was so that members of the public would be enabled to
visualise the land’s potential,
without having to read what was
referred to as a very technical report by Mr Schloms. Far from
undermining the public notice
and common procedure in terms of the
EIA, it was contended that this had represented an attempt to
facilitate this process.
In this connection Mr Newdigate
referred again to what the Minister said in his affidavit:
“
Having
regard to the aforegoing it should be clear that when the Director
took his decision and I took mine, we had before us various
documents
relating to the agricultural potential of the land in question,
including the full Schloms report, together with the
soil map
attached thereto and the two reports of the DOA with the soil maps
attached thereto. The DOA, by means of its reports,
had
clarified the issue of the agricultural potential of the land.
Both the Director and I dealt with these issues in our
written
decisions as indicated above. From the portion of our decisions
quoted above, it should be clear the decisions are
not based upon the
first plan soil map – instead both the Director and I relied
upon the original soil map forming part of
the Schloms report as
explained and interpreted in the Schloms report and moreover as
explained and interpreted by the DOA.”
Applicant had submitted that, as the
EIA contained conflicting reports of Dr Valentine and Mr Schloms
about the agricultural potential
of the land, the Minister should not
have taken the decision without further investigation. As I
have indicated earlier,
applicant’s case was that a specialist
review of the issue in terms of section 24(I) of NEMA was called for
because the officials
lacked the expertise to determine the
agricultural potential relied on and input from the provincial
department of agriculture.
As Mr Newdigate noted, the
Minister had recourse to a detailed report from the department of
agriculture in which its author,
Mr Roux, had concluded as follows:
“
If
irrigation (inadequate volume and acceptable stands for irrigation
purpose according to the National Water Act) could be made
available,
the balance of the retaining agricultural land and development could
be considered. Under this conditions (sic)
the Department of
Agriculture – Western Cape suggests a ‘give and take
strategy’ whereby most of the medium high
potential soils are
retained for ‘possible future agriculture’ should water
become available. It would then also
be recommendation (sic)
that this section of land be consolidated with the adjacent property
of the owner.”
Mr Newdigate also raised a further
important point concerning the complexity of these decisions and the
reason for Courts to adopt
an approach of respect to the decision
maker. He referred to an affidavit from Mr van der Walt of the
Department of Agriculture,
who pertinently had the following to say
(albeit that this affidavit was deposed to subsequent to the
decision):
“
Soil
scientists regularly differ in their opinions due to their personal
experiences as well as due to the risks that they perceive
a farmer
may or may not reasonably take in any given circumstances. The
availability or unavailability of water for irrigation
makes a
significant difference in yield and quality of produce and climatic
factors will have a further bearing on the agricultural
potential of
land. The financial input that a farmer can afford or is
willing to make as part of the development costs will
have a
significant bearing on whether a particular agricultural activity
would be viable or not. The management levels and
skills of the
farm must also be significant in this context. The distribution
of soil may also be significant and in particular
would have a
bearing on matters such as block layout, access roads and
re-delineation of sensitive areas.
As a matter of general approach
therefore, I take cognisance what was said by Dr Ellis (applicants’
expert) on this issue
... However I favour a more
conservative approach which is reflected in the reports drafted by me
on behalf of the
department of agriculture.”
Patently soil science can be a complex
issue. Different experts come to different decisions.
Courts have no expertise
in this area. All a court is required
to do is to examine whether a rational (and depending on the
indicated test in certain
cases a reasonable) decision has been taken
on the available information without seeking to prefer one report
over another.
Again, the reminder that this is a review and not
an appeal serves as a salutary caution. For the same reasons as
I have
articulated with regard to the urban edge, it is clear that,
on the principles of review, applicant has no basis for contending
that the decision should be set aside.
THE WETLANDS:
In summary, applicant submitted that
the Minister’s decision was reviewable because the Trust was
required to produce a proper
wetland delineation report. It
argued that the report which was made available by Dr Harding was not
a wetland delineation
report.
However the evidence suggests that
when Mr Jeffrey took over as the EAP from Mr Lombard, he appointed Dr
Harding, amongst other
things, to review the so-called ‘Admins
Report’ which had been prepared by Mr Lombard in 2007, to
conduct a site visit,
and assess the impact of alternatives on the
wetlands.
Mr Jeffrey acted in this fashion to
create an additional layer of independence. Mr Lombard was the
EAP for the Trust at the
time which he drafted the ‘Admins
Report’. Mr Jeffrey wanted to appoint a specifically
qualified wetlands specialist
which Mr Lombard was not. Dr
Harding is such a specialist. Dr Harding then prepared a report
dated March 2009.
Without reproducing the complete report, the
core of his findings is reflected in the following passage:
“
The Admins
wetland report (November 2007) delineates a wetland, based on soiled
cores, environment south of entrance road.
At the time of
this survey no evidence of such an environment could be. The
value of soil cores at this location, given that
soil has been
removed to a considerable depth and later replaced with material
brought in, is questionable. Examination of
historical
photography of the site for the years 1938 and 1935 do not
indicate any presence of wet zones south of the present
access road
to the homestead. Much of this area has been extensively mined
for material for roads and the original land surface
has been
significantly lowered with all of the topsoil layers having been
removed. This is apparent from the exposure of
the bases of
powerline poles south of the access road. While there may still
be a subsurface movement of water and northwards
alongside the
Visserhok Road, there is, in my opinion, no obvious merit for any
(functional) wetland considerations in this area.
The Admins
report acknowledges the influence that the road will have had in
focusing groundwater flows.”
The final EIR concluded that the
preferred alternative, that is alternative 4, was sensitive to the
wetland on the site and did
not conflict with the streamline as
defined within the proposed ecological corridor boundary lines.
If recourse is had to
annexure “AL41” (photograph of
Uitkamp Wetland Demarcation) it is clear from the solid red lines as
to where the edge
of the streamline valley of the flood plan is
located. The dotted red lines indicate the proposed 10m buffer
inside which
no development will be undertaken. Further, as is
evident from a further annexure “AL50” (Uitkamp current
proposal),
no development is planned in the central wetland
corridor. Alternative 4 allows for the protection of the entire
stream segment
between the source of the stream and the Uitkamp
wetland.
Further, according to the affidavit
deposed to by Mr Loubser, on behalf of the Trust, the Department of
Water Affairs had no objection
to the proposed development. It
is abundantly clear from Dr Harding’s report, especially his
references to the Admins
Report, that the existence of this report
was clearly and openly acknowledged. It was carefully
considered by Dr Harding
and it was included in the environment
impact reporting process. In my view, there is no basis for why
a reasonable decision
maker, in the light of all these circumstances,
could not have relied on the Harding report.
There is one further issue which was
raised by the applicant; indeed it was its main case when the
matter was finally argued.
It concerns procedural fairness.
The applicant contends that the Minister in his appeal decision
repeatedly stated that the
applicant failed to appoint a specialist
to refute the various findings made by Dr Harding and other
specialists, which reports
are contained in the final EIR. In
applicant’s view the Minister, purportedly relied on a judgment
of the North West
High Court in
Magaliesburg Protection
Association
v MEC: Department of Agriculture, Conservation,
Environmental and Rural Development North West Provincial Government
and others
[2013] 3 All SA 416
416 (SCA) that a
“non-specialist cannot express an opinion on technical
issues”.
In applicant’s view, the
Minister’s reliance on this dictum was impermissible and in
effect, rendered nugatory the public
participation requirements
provided for in NEMA and Chapter 6 of the NEMA EIA regulations.
Applicant contended that it is
difficult to understand on what basis
the public was expected to participate effectively in an
environmental decision making processes,
if comments made could be
dismissed on account of a lack of expertise to challenge the opinion
of any of the specialist reports
invoked by the decision maker.
Dealing firstly with the broad
questions of public participation, this submission appears to ignore
the clear evidence which was
provided in the Director’s
decision in which public participation and the process thereof is
meticulously described as follows:
“
The public
participation process during the EIA phase comprised of the
following:
1.
Advertisements were placed in the regional and
local newspapers. The Cape Times, Die Burger and the Tygerburger on
15 April 2009.
2.
Letters notifying I and AP’s of the
availability of the Draft EIA report were sent on 15 April 2009.
3.
Copies of the Draft EIA report were sent to all of
the relevant authorities on 20 April 2009.
4.
The Draft EIA report was made available for public
review in the Durbanville library from 20 April 2009 until 21 May
2009.
5.
Letters notifying interested and Affected Parties
of the availability of the Final EIA report were sent on 31 August
2009.
6.
The Final EIA report was made available for public
review in the Durbanville library from 1 September 2009 until 12
October 2009.
7.
Copies of the Final EIA report were sent to all
the relevant authorities on 2 September 2009.
8.
A Public Open House meeting was held at the “Clara
Anna Fontein” conference facility on 6 May 2009.
9.
At the end of the commenting period, comments
regarding the following received from the general public and were
adequately addressed
in the Final EIA report.”
There then follows in the report a
detailed summary of these comments and responses. In my view,
this is evidence that a comprehensive
process of participation was
conducted, certainly sufficient to pass legal muster.
The complaint by the applicant then
turned on the question of a further expert report. In his
decision, the Minister noted:
“
No
independent wetlands specialist was appointed by the appellant to
refute the findings of Dr Harding’s report.”
Applicant could offer no precedent as
to why the Minister was obligated in law to provide the applicant
with an expert in order
to refute Dr Harding’s report. I
should add that, subsequent to the Minister’s decision, the
applicant produced
a report by Dr Ellis, the contents which did not
add much to its case.
In the light of these findings, there
is no basis by which this application can succeed. There are
however two further issues,
which I am obliged to consider. The
first concerns an application to strike out.
STRIKE OUT
The background to this application is
as follows: Applicant did not employ the opportunity granted to it by
Uniform Rule 53 to supplement
its founding papers. However, on
24 November 2014, extremely belatedly (and I might add, unfortunately
in keeping with the
manner in which the applicant has conducted its
case throughout), it filed a replying affidavit which included a host
of further
matter, which is the subject of this application to strike
out.
On 2 December 2014 the Trust brought a
striking out application in relation to this replying affidavit
pursuant to Rule 6(15) of
the Rules of Court and to the following
effect:
(1)
An applicant must stand or fall by the allegations
contained in the founding affidavit. It is not permissible to
advance new
grounds for an application in reply. This is
clearly the law set out most recently in
Van
Zyl v Government of the Republic of South Africa
2008
(3) SA 294
(SCA) at 307-308.
(2)
Rule 6(15) permits a Court a discretion to strike
out any matter which is scandalous, vexatious or irrelevant, provided
it is satisfied
that, if such matter is not struck out, the parties
seeking such relief would be prejudiced. Prejudice in this
context is
something less than that if the allegations remain the
innocent parties chances of success are diminished.
(3)
Hearsay evidence is not permitted in motion
proceedings and must be struck out, irrespective of whether or not
there is prejudice.
The Trust seeks to strike out:
(1)
New matter.
(2)
Irrelevant matter.
(3)
Scandalous, vexatious and defamatory matter and;
(4)
Hearsay evidence.
I do not intend to deal with the new
matter because, frankly, it is irrelevant to the reasoning which I
have already employed to
dismiss this application.
I turn however to deal with irrelevant
matter. The applicant alleges that the City’s municipal
planning decisions, all
of which were taken on 24 April 2014, more
than a year after the Minister took his environmental authorisation
decision on 27 February
2013, are fatally flawed. It goes on to
set out the reasons for this allegation. This is completely
irrelevant for
the present proceedings for reasons already set out
above.
The applicant makes allegations
concerning Mr Louw’s farming operations elsewhere and his
operations on the property.
Again, there is no material
relevance in these averments. Turning to scandalous, vexatious
and defamatory material, both
Mr Newdigate and Mr Breitenbach were at
one, that while none of this material is relevant to the ultimate
outcome, it stands to
be struck out because it is clearly prejudicial
to respondents. The applicant alleges that there was political
manoeuvring
by the City in the course of its environmental commenting
and planning decision making processes. No substantiation for
this
claim is provided. If the applicant wished to raise any
such questions, it may do so, subject to the same strictures, when
it
seeks a review of any decisions taken by the City.
The applicant alleges that this entire
dispute had been allowed to become unnecessarily complex because of
the political lobbying
involved. It alleges that a former
departmental official, Mr Chris Rabie, is involved in inappropriate
lobbying. Again,
no substantiation is provided for this
allegation. This is the kind of unsubstantiated allegation that
should not be included
in any affidavit placed before a Court.
The applicant contends that it is astounded by the Minister’s
“cavalier
attitude”. I am uncertain as to what is
meant by ‘cavalier’. However, for reasons that I have set
out,
the Minister meticulously dealt with the issues which on the
subject matter of this dispute. This is clearly an averment
which has no place in an affidavit.
The applicant alleges it was
threatened by Mr Louw. I have no idea as to what it refers to
in the relevant paragraph (70.2.1
of the replying affidavit) but
again, this should be struck out. The applicant further alleges
the Minister favoured the
Trust procedurally during the appeal
process. See paragraph 84.1 of its replying affidavit.
Again, for lack of
any particularity this stands to be struck out.
The applicant alleges that the Minister did not consider the
documents he
so claimed in his RoD. This is an extraordinary
statement when it is made without any evidential basis.
The applicant alleges that Trust’s
deponent, Mr Loubser, has a tendency to rely on self created
evidence. This is again
an averment without any
substantiation. Hence it is the sort of averment that again
should not, without more, appear in an
affidavit. The applicant
alleges that the Minister’s staff, when confronted by the
applicant with the inconvenient
evidence of the Admins Report came up
with the ‘artful notion that the Harding report being review of
the Admins report’.
This is an unsupported averment must
also be the subject of sanction.
The applicant alleges that when the
appeal unit and the Minister were provided with expert reports that
were not favourable to the
preferred alternative, they chose to
disregard them. On what basis rhetorically it might be asked,
is this averment in paragraph
219.1 made?
There is also a host of hearsay
evidence. The applicant sought to cure some of this hearsay
evidence concerning Dr Ellis by
delivering one day before the hearing
an affidavit made by Dr Ellis on 19 September 2014.
The applicant made no application, let
alone an explanation for the late delivery of this affidavit which
again contains further
matter. See paragraphs 9 and 10 thereof.
Respondents were clearly prejudiced by the applicant’s conduct
which has resulted
in postponement. To postpone this
application further to deal with the contents of this affidavit would
clearly run
incongruently with the proper administration of justice.
This affidavit must be disregarded entirely.
Accordingly, it is my view that the
application to strike out, certainly paragraphs 13, 15, 32.1, 38, 60,
72.1, 84.1, 169, 212,
91.2, 116, 127.4 and 219.1 must be upheld
costs, including the costs of two counsel.
COSTS
I turn to deal with the question of
costs in respect of the substantial application. Respondents
submit that in bringing and
persisting with a merits review, the
applicant has acted unreasonably. Consequently in
accordance with section 32(2)
of NEMA, the Court should order that
the applicant pay the respondents’ costs.
The general procedure is that, in
terms of section 32(2) of NEMA, a Court should not award costs
against a losing party, because
the losing party would have acted out
of a concern for the public interest in the protection of the
environment. There was
a considerable amount of persuasive
argument developed by both Mr Newdigate and Mr Breytenbach with
regard to this issue.
I have some doubt as to how much of the
public interest was pursued by applicant in this case.
However, in my view
it is a borderline case. There is
some doubt in my mind as to the motive of the applicant not in
initiating this litigation,
I am however prepared to give the
applicant the benefit of the doubt.
CONCLUSION
In the result:
(1)
THE APPLICATION IS DISMISSED.
(2)
THE APPLICATION TO STRIKE OUT PARAS 13, 15,
32.1, 38, 60, 72.1, 84.1, 91.2, 116, 127.4, 212.1, 219.1 IS UPHELD
WITH COSTS, INCLUDING
COSTS OF TWO COUNSEL.
DAVIS,
J