COURT REFUSES TO GRANT INTERDICT: UPPER HIGHWAY AIR NPC v ENVIROSERVE WASTE MANAGEMENT (PTY) LTD

This case concerned an application for an interim interdict brought by Upper Highway Air NPC (Upper Highway Air) restraining Enviroserve Waste Management (Pty) Ltd (Enviroserve) from conducting waste management activities on a landfill site in Shongweni, save measures necessary to mitigate and remedy offensive odours and harmful gases emanating from the landfill site. Enviroserve had been the holder of a waste management licence in respect of the Shongweni landfill site for many years.

Enviroserve’s current licence was issued in 2014 and permitted Enviroserve to carry out certain listed activities such as the storage of general waste, hazardous waste and waste tyres, and the reuse, recycling, treatment and disposal of hazardous waste, and the disposal of general waste. Further, the conditions of the licence included that the activities should be managed and operated in accordance with a documented Environmental Management System which identifies and minimises the risk of pollution amongst other conditions.

During 2016, members of the community started complaining about offensive odours which they said emanated from the site and impacted on the health of people. The complaints related in the main to breathing problems, asthma and itchy eyes and noses.

On 21 October 2016 the Department of Environmental Affairs issued a compliance notice to Enviroserve in terms of section 31L of the National Environmental Management Act 107 of 1998 (NEMA) in respect of the Shongweni site. In terms of the notice Enviroserve was instructed to cease with the disposal of all type one waste at the site and to ensure that all type one waste is routed to alternative sites.

A dispute then arose with regard to the nature, source and cause of the offensive odours. Upper Highway Air, contended that the odours came from the Shongweni site and produced evidence that the disposal of waste by Enviroserve resulted in high sulphate and elevated the landfill temperature.

By April 2017, the Department of Environmental Affairs decided that insufficient progress had made by Enviroserve and suspended its licence on conditions that Enviroserve ceases the disposal of all waste at the site and that Enviroserve had to implement the best practical environmental options in dealing with the odours and gas emanating from the site.

Enviroserve appealed to the Minister of Environmental Affairs against the suspension of its licence. The Minister then confirmed suspension of the licence, however, the conditions of the suspension were varied in the following respect: Enviroserve was to-

• detail how the extraction and treatment of the gases generated from the site were going to be dealt with;
• report on the quantity and quality of gas being produced, as it is an indicator of the bacterial activity on the landfill;
• prevent the occurrence of nuisance conditions, including malodours or health hazards;
• investigate the repositioning of the real-time monitors closer to the site to focus on any emissions leaving the site in the various directions;
• report the above to the Minister and the relevant departments within one month of the commencement of operations at the site; and
• that all complaints relating to the site should continue to be documented and submitted to the Minister and relevant departments on a bi-weekly basis.

Upper Highway Air was not satisfied with the decision of the Minister and brought review proceedings in the High Court, Kwa-Zulu Natal Local Division, Durban which were later extended so as to include a claim for the interdict.

The High Court, KwaZulu Natal Local Division, Durban, however, dismissed the application. The Court found that the matter should be left to be dealt with by the regulator, the Department of Environmental Affairs (DEA), and that intervention by the court was not necessary. According to the Court, the assertion by Upper High Air that those activities are not likely to be effectual was not a basis for interdicting Enviroserve. Despite the fact that Upper Highway Air was unsuccessful, the Court made no order as to costs as the litigation was considered to be in the best interest of the environment/community, and as such whether or not to make a cost order was within the discretion of the Court.