DEVELOPERS BEWARE: REZONING ALONE MAY NOT BE ENOUGH FOR YOUR DEVELOPMENT

Section 31A  of the Environmental Conservation Act 73 of 1989 (“ECA”)  provides that if any person performs any activity or fails to perform any activity, as a result of which the environment is or may be seriously damaged, endangered or detrimentally affected, the Minister of Environmental Affairs, a provincial environmental department or municipality (“competent authority”), may in writing direct such person to either cease such activity or within a specified period take such steps as the competent authority may deem fit.

The purpose of such direction will be the elimination, reduction or prevention of damage or danger to the environment. The undertaking of remedial and preventative measures is to be taken at the expense of the person who endangers or causes harm to the environment.  Should one fail to comply with the directive, the competent authority may perform such activity or function itself and then recover the expenses of undertaking the activity from such person.

In the case of City of Cape Town v Really Useful Investments, the following occurred:

• In June 1994 the local authority, Western Cape Regional Services Council, rezoned a portion of land in Hout Bay to enable developers to develop it commercially as a secure residential estate on the beach.
• In March 2007, Really Useful Investments (“Developer”) acquired a large tract of land, zoned as stated above, known as “Hout Bay Beach Club”, which land is located immediately west of a river mouth in Hout Bay valley.
• In March 2011 the Developer began dumping fill material in an area adjacent to the river, believing that it was entitled to do so by virtue of the local authority’s planning approval.
• In April 2011, after having been alerted by the public, the City’s officials came to the view that the dumping by the Developer was unlawful in that it encroached upon the floodplain of the river. The City consequently issued a compliance notice in terms of section 10 of its Stormwater Management By-Law of 2005, (‘the stormwater notice”).
• The Developer having failed to comply with the stormwater notice, the City issued a directive in terms of s31A of the ECA in May 2011 (“the ECA directive”).

Although certain remedial steps were purportedly taken by the developer, the City found that these steps were insufficient. The City instituted legal proceedings to compel the developer to comply with both the stormwater notice and the ECA directive.

Judge Gamble of the Western Cape High Court found that the conduct of the Developer, in and after March 2011 in placing soil, general rubble and fill on land adjacent to the river was contrary to the stormwater directive and the ECA directive.  The Developer was ordered to comply with the ECA directive within 45 days of the order by removing the soil, general rubble and fill that was placed within the floodplain of the river.

The Court’s decision in this case reaffirms the following:

1. Compliance with all relevant legislation is a must, compliance with zoning requirements, only, is not sufficient.
2. Zoning conditions must be complied with.
3. One’s activities may not detrimentally impact on the environment.
4. Section 31A is an additional compliance mechanism with serious consequences such as the closing down of operations, demolition of construction that has already taken place and rehabilitation of impacted areas.
5. This may have dire financial consequences to developers and investors alike.
6. It is advised that one should always ensure that all relevant legislation and licencing requirements are identified and complied with prior to the undertaking of any project.

Please contact Morné Viljoen at morne.viljoen@eoh.co.za for more information or advice.