4.3. Screening of applications for construction of filling stations under NEMA EIA Regulations
4.4.4. The SCA judgment
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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.
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judgment of the SCA. She decided to merge need, sustainability and desirability with failure to call for a full environmental impact assessment. This ground she termed ‘failure to take into account socio-economic considerations’.353
The first and second respondent accepted that such factors must be taken into account when considering an application for authorisation to carry on a listed activity. Lewis JA held that it was clear from a number of decisions354 that socio-economic considerations must be taken into account when making a decision under s 22 of the ECA; and that NEMA requires development to be socially, environmentally and economically sustainable.355
The SCA considered the facts of the Fuel Retailers case to be an exception since these factors (socio-economic factors) had been considered by the local authority when it rezoned the land from special to business. According to Lewis JA, it sufficed that the local authority had studied the questions of need and desirability. She agreed, in this regard, with the MEC whose views were supported by an affidavit of a town planner, one Muller, that need, desirability and sustainability were considered when the application for the rezoning of the site was made.356 As a result, it was not clear what additional factors should be considered by the environmental authorities in assessing need, desirability and sustainability once local authority has made its decision.
She held that:
The environment may well be adversely affected by unneeded, and thus unsustainable, filling stations that become derelict, but there was no evidence to suggest that this was a possibility. In the circumstances I consider that Webster J in the in the Court below correctly held that MEC, in having regard to the local authority’s obligations when making the rezoning the rezoning decision, applied his mind to these factors and took them into account when making the decision to allow construction of the filling station.357
353 At para [14].
354 MEC, Agriculture, Conservation and Environment and Land Affairs, Gauteng Sasol v Sasol Oil (Pty) Ltd [2006]
2 All SA 17 (SCA), BP Southern Africa (Pty) Ltd v MEC, Agriculture, Conservation and Environment and Land Affairs, Gauteng 2004 (5) SA 124 (W), Capital Park Motors CC and the Fuel Retailers Association of Southern Africa (Pty) Ltd v Shell SA Marketing (Pty) Ltd unreported judgment of the Pretoria High Court, case number 3016/05 and Turnstone Trading CC v The Director General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga, unreported judgment of Pretoria High Court case number 3104/04.
355 Ss 2(3), 2(4) of NEMA.
356 Para [15].
357 Para [18].
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The Fuel Retailers Association argued that regulation 7(1)(b)358 required that a plan of study for environmental impact assessment ought to include a description of the feasible alternatives identified during scoping that may be further investigated. Lewis J found that no feasible alternatives were placed before the MEC and in the circumstances there were no feasible alternatives for MEC to consider. The Fuel Retailers Association alleged that the installation of fuel storage tanks and the possibility of leaks of fuel into the natural water system are serious hazards. The SCA believed that the mitigatory measures were in place and as a result the applicant’s ground was unwarranted.
The Fuel Retailers Association alleged that the MEC and the Director-General had failed to take into account a report filed by de Villiers Cronje. The report highlighted the Geotechnical data pertaining to the structures and paved areas and the hydro-geological data pertaining to future potential pollution hazards and information that was lacking in the scoping report, that is, the soil test data at the base of the fuel tanks, the permeability data for the residual granite at depths below 3.7 meters, data on the aquifer and concluded by recommending further soil tests and that the current and future value and the intended utilization of the water from the aquifer be evaluated. The SCA held that the complaints that the MEC erred in understanding the opinions of the experts would be a ground of appeal but not review.
The Fuel Retailers Association alleged that, once a decision was made, and the appeal rejected, the MEC and the Director-General ceased to have the power to amend or change their decision. The SCA found that the power to amend the conditions is reserved to cover new or unforeseen environmental circumstances. It held further that, on the authority of regulation 9(3), the relevant authority had the power to review any condition determined by and, if it deemed necessary, delete or amend such condition; or, at its discretion, determine new conditions, in a manner that is lawful, reasonable and procedurally fair. The Court dismissed this ground.
358 ECA EIA Regulations.
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