4.3. Screening of applications for construction of filling stations under NEMA EIA Regulations
4.4.3. The High Court and the grounds of review
Eleven grounds of review were raised by the applicant in support of its application. All of them were dismissed by the High Court. They were: the exclusion of relevant considerations by the DWAF, in particular the water utilisation sections of DWAF and the presence of the underground aquifer and the effects of the possible leakage and the consequences thereof;
need and desirability; the attempted delegation of responsibility to the DWAF; shortcomings in the public participation process; that alternatives were not considered; the failure to take into account the report of the applicant’s engineers, Messrs de Villiers Cronje, into consideration; the decision by the 2nd and 1st respondents to reserve the right to amend and change the conditions of authorisation; an alleged piecemeal approach to need, sustainability and desirability; and the failure to call for a full environmental impact assessment.
The applicant’s counsel submitted that the first and the second respondents failed to obtain the input of the water quality management and water utilisation sections of DWAF. He stated that according to the RoD ‘no development may take place on the area of concern without the necessary permits/approvals and/or lease agreements/ where it is relevant, from the following institutions: Department of Water Affairs and Forestry’. It appeared from the RoD that the second respondent had forwarded the application for the filling station to DWAF for comment.
Webster J held that the second respondent had clearly applied its mind to the issue of consulting with DWAF. He held further that the contents of correspondence indicated an honest and genuine concern on the part of DWAF to ensure that the establishment of the proposed filling station posed no threat of contamination to water. The applicant argued that due to the permeability of the soil on the site in question, should leakage occur contamination of the aquifer was a likely consequence. According to the applicant the possibility of a leakage was a justified and serious concern.
However, it appears that the second respondent had entertained certain concerns regarding the contamination of the aquifer and had considered the evaluation report prepared by Ecotechnik (a consultant firm appointed by the proponents of the filling station to lodge an evaluation report dealing with certain aspects of the scoping report). This report was deferred to DWAF for comment and the latter agreed with the report.
66 Webster J held, in the relevant part:
A great deal of technical literature has been introduced by the parties in this application.
Lacking any knowledge in the technical issues raised I find myself unable to utilize my legal knowledge in forming an informed decision on the issues covered by this literature. The only guiding knowledge is that the transportation, handling and storage of fuel can be reduced to a basic level. It is a well-known fact that there is a fuel pipeline from Durban to Gauteng. That pipe crosses literally hundreds of rivers, streams and rivulets. It traverses the greater part of our hunter land and passes through various important catchment areas. It is a well-known fact that there are rigs in the oceans. Some of these are located on the notorious treacherous water like the North Sea. The entire world is, however, either satisfied with the preventive measures that are place or considers them reasonably safe not to advocate the closure of such oil wells. All these activities rely on mitigatory measures. I can find no fault therefore in the second respondent’s evaluation of the impact of the presence of the aquifer and his decision.
In support of this ground the applicant relied on the provisions of ss 2(3), 2(4)(g) and 2(4)(i) of NEMA and on the Gauteng EIA guidelines.338 The gist of these sections is that development must be socially, environmentally and economically sustainable. Also that decision must take into account the needs and values of all interested and affected parties.
The first and second respondents refuted that they failed to take into account the aforesaid considerations. But they averred that need and desirability are requirements that are considered before rezoning can be approved by the Local Council in accordance with the Town Planning and Townships Ordinance339 as well as the Development Facilitation Act.
This argument was supported by an affidavit of a Township planner who deposed that in accordance with the practice that obtained in Mpumalanga need and desirability were dealt with whenever applicants applied for rezoning.
The Gauteng EIA Guideline340 was developed by the Gauteng Department of Agriculture, Conservation, Environment and Land Affairs in 2002 for the purposes of streamlining its approach to the management of applications in respect of the construction and upgrading of
338 EIA Administrative Guideline: Guideline for the Construction and Upgrade of Filling Stations and Associated Tank Installations March 2002.
339 No 15 of 1986.
340 EIA Administrative Guideline: Guideline for the Construction and Upgrade of Filling Stations and Associated Tank Installations March 2002. http://www.eiatoolkit.ewt.org.za accessed April 9, 2014.
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filling stations. It is not clear from the Guideline itself or case law341 whether this Guideline could be adopted and applied in the other eight provinces as well or whether it exclusively applies to Gauteng Province. There could be nothing barring the parties from applying it.
However, the Guideline contains a disclaimer that the Gauteng Department reserves the right to deviate from the Guideline where appropriate.
The Guideline generally prohibits construction of filling stations if they are within three kilometres of an existing filling station in urban, built-up or residential areas. The proposed filling station fell outside the distance stipulation as it was 5 kilometres away from six other filling stations in the area.342 This was referred to by the applicant as failure to consider the need, desirability of the filling station in accordance with ss 2(3), 2(4)(g) and 2(4) (i) of NEMA and the Gauteng EIA Guideline- Webster J held that:
The provisions in section 2(4)(g) and 2(4)(i) of NEMA apply 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. There is a presumption that the legislature is aware of previous similar legislation. Further, government departments perform separate functions.
A Department may not usurp the functions of another department. It is common cause that the relevant Town Planning considered the need, sustainability and desirability of the proposed site when it considered the application for rezoning. Were the applicant’s version accepted, the consequence thereof would be that there is a possibility of more than one view on the same information, data and particulars.343 The Town Planning Council could reach its own conclusion. The first respondent could reach an opposing view. The licensing board when considering the application could reach a different conclusion. That clearly could never have been the intention of the legislature.
The applicant submitted that by attempting to transfer the responsibility of ensuring that no environmental pollution takes place to DWAF, the first and second respondents attempted to delegate their responsibility further. It was further submitted that, by delegating the decision on the issue of environmental pollution the applicant and other interested and affected parties
341 See Sasol Oil (Pty) Ltd and Another v Metcalfe NO 2004 (5) SA 161 (W); BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W).
342 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) at para 16.
343 See M Kidd n 39 at 97.
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were denied their right to public participation and to make inputs to the decision-maker prior to the decision being made.
The applicant’s counsel further submitted that regulation344 9(1) read together with 9(3) permitted the first and second respondent to reach a decision without seeking further comment from DWAF. This ground was also dismissed by the Court. The applicant submitted that the public participation was flawed; and, secondly, that in the same meeting the second respondent delegated its decision-making powers regarding the underground aquifer in that the first respondent did not make a decision on the aquifer but deferred all matters relating to water to DWAF for evaluation.
The applicant averred that the scoping report contained cursory reference to identified alternatives, and that the first and second respondents failed to consider alternatives to the proposed development; accepted the say-so of the thirteenth respondent regarding alternatives; and never considered the alternative not to act.345 According to the Court, the criticisms of the first and second respondents were unjustified. According to the Court, the action adopted by the first and second respondents was the only one that could have been adopted. A site was identified. They considered whether it was suitable or not in accordance with the local authority bye-laws, provincial legislation and relevant national legislation such as NEMA and ECA.
The applicant alleged that the respondent had failed properly to take into account what was set out by the applicant’s expert engineer with specific reference to the aquifer. The Court was, however, satisfied with the respondents’ findings. The court was persuaded that the first and second respondent evaluated reports through various experts, exercised their discretion in good faith and reached their decisions after having applied procedural and substantive fairness. According to Webster J the first and second respondent were not in breach of the provisions of s 6(2)(e)(ii) of the Promotion of Administrative Justice Act.346
The first respondents granted authorisation to the proponents and reserved the right to amend or change the authorisation. This was attacked by the applicant who averred that the
344 Reg 9 of the activities identified under section 21(1) ECA, GN R1183.
345 Reg 7(1)(b) and s 6(2)(e)(iii) of PAJA.
346 Act 3 of 2000.
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respondent could not make a decision and later change or amend it. They argued that the respondents became functus officio and had renounced the right unilaterally to amend or change any condition.
The Applicant submitted that given the sensitive nature of the environmental issues, because of the presence of the aquifer, the first and second respondent erred in issuing the RoD on the scoping report only; and that they should have called for a full environmental impact assessment with specific reference to the underground aquifer.