4.5. The judgment of the Constitutional Court
4.5.2. Environmental authorizations and social and economic considerations: How, by whom
How, by whom and what stage?367
The court in Fuel Retailers stated that:
Need and desirability are factors that must be considered by the local authority in terms of the Ordinance. The local authority considers the need and desirability from the perspective of town-planning and an environmental authority considers whether town-planning scheme is environmentally justifiable. A proposed development may satisfy the need and desirability criteria from a town-planning perspective and yet fail from an environmental perspective. The local authority is not required to consider the social, economic and environmental impact of a proposed development as the environmental authorities are required to do so by NEMA. Nor is it required to identify the actual and potential impact of the proposed development on socio-economic conditions as NEMA requires the environmental authorities to do.368
366 Para 61.
367 M Kidd n 39 above at 95.
368 At para [85].
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Kidd’s position is that there is no material difference between need and desirability and socio-economic considerations.369 His argument is that the Court’s statement above ignores s 2(1) of NEMA which requires the principles of environmental management to be applied to all actions of organs of state that may significantly affect the environment. He writes that:
When a local authority decides on a rezoning application such as the one in Fuel Retailers, the decision may significantly affect the environment. What this means, then, is that the local authority in deciding on a rezoning, which involves adjudicating upon the need and desirability of that activity, must consider, assess and evaluate the social, economic and environmental impacts of that rezoning .370
Kidd has asked: ‘If there is no difference between the two responsibilities, why is the developer required to go through two decision-making processes that essentially consider the same factors?’371 Webster J in the High Court was of the opinion that the provisions in sections 2(4)(g) and 2(4)(i) are applicable throughout the country. In so far as they relate to local authorities that already have provision that need, sustainability and desirability are requirements for granting of authority to undertake a business or commercial activity, these provisions are redundant. Webster J’s fear was that, there was a possibility of more than one view on the same information, data and particulars. The Town Planning Council could reach its own conclusion and the first respondent could reach an opposing view. The licensing board when considering the application could reach a different conclusion too. According to Webster J this could have not been the intention of the legislature.372
In line with this thinking, is the view expressed by van Reenen who observes that, in addition to their mandate to pursue environmental interests, local authorities have an explicit mandate to achieve a sustainable and equitable social and economic development.373 This view is underpinned by a number of statutory provisions. Amongst others, he cites the Local
369 M Kidd n 39 at 95.
370 M Kidd n 39 at 96.
371 M Kidd n 39 at 97.
372 Fuel Retailers Association of South Africa (Pty) Ltd v Director-General Environmental Management, Department of Agriculture Conservation and Environment for Mpumalanga Province and Others unreported Judgment of the High Court Transvaal Provincial Division case no. 35064/2002.
373 T van Reneen ‘Rudiments of a jurisprudential methodology of sustainable development: the judgment of Ngcobo J in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga, and Others 2007 (6) SA 4(CC)’ (2008) 15 SAJELP 169.
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Government: Municipal Systems Act374 which has as its purpose to provide an enabling legal framework for the ‘the overall social and economic upliftment of communities in harmony with their local natural environment’; and, in its Preamble, the Act is committed to developmental needs of the local government and to empower municipalities to move progressively towards the social and economic upliftment of communities and the provision of basic services to all people, and specifically the poor and disadvantaged.
The point noted by Kidd, however, is that not every rezoning will require environmental authorization in terms of NEMA; and that not every activity requiring authorization in terms of NEMA will have had to go through rezoning. He then advises that where the activity requires approval in terms of both the town planning legislation and NEMA the authorities could exercise one of the following options; first, ‘narrow down the responsibilities of either or each of the local authority or environmental authority, so that they are not required to consider duplicated issues’.375 Second, ‘do away with the requirement that one or other authority make a decision and make it a single-decision process.376
There is, however, another school of thought pursuing a different line of argument.
According to Retief and Kotzé377 ‘environmental authorities, as their name suggests, are not adequately equipped to consider socio-economic impacts; these considerations are best left to other authorities’. Further, that ‘it therefore seems particularly unfair for the Court to
“coerce” environmental authorities into accepting responsibilities beyond their mandate by using incorrect means to an end, namely EIA’.378 Whereas, they agree that sustainability demands the assessment of environmental, social and economic considerations their discomfort lies in the extent to which the EIA was used to consider the above factors in isolation - that is, EIA - ‘a project-level assessment tool should be used to consider biophysical impacts only in relation to their social and economic implications’.379 According to Bray ‘… it seems that the inherent flaw, which admittedly eventually culminated in an
374 Act 32 of 2000.
375 M Kidd n 39 above at 97.
376 M Kidd n 39 above at 98.
377 F Retief and LJ Kotzé n 298 above at 152.
378 F Retief and LJ Kotzé n 298 above at 152.
379 F Retief and LJ Kotzé n 298 above at 152.
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improper authorization, points to a breakdown in proper co-operative governance and intergovernmental relations during EIA process’.380