Environmental Assessment Not Sufficient To Proceed With Project

by Natural Resources


This case concerned an application for the reviewing and setting aside of the decision made by the Member of the Executive Council: Department of Economic Development, Tourism and Environmental Affairs for the Province of KwaZulu-Natal (“MEC”), in approving an environmental authorisation (“EA”) for a low cost housing project which the Msunduzi Municipality (“Municipality”) wished to embark upon on land owned by it. The EA was granted by the MEC with a requirement for the imposition of a 200 meter buffer zone between the area leased by the Pietermaritzburg Pistol Club (“the Pistol Club”) and the intended housing development, together with the construction of certain embankments and shielding walls.

The MEC, in describing the buffer zone as at a 200 meter “radius” from the Pistol Club’s site, it appeared that the authorisation differed from the recommendations of the “RCMS report” which recommended a 200 meter wide buffer zone which extended along and area parallel to the border with the Pistol Club’s leased site and the unnamed (parallel) tar road, but much further beyond it in a northerly direction up to the Bishopstowe Road.

Based upon the discrepancy between the EA condition and the RCMS report, the Pistol Club contended that the MEC had failed to apply his mind properly in the issuing of the EA and as a result his decision was irrational. Further, in support of this contention, the Pistol Club held that the MEC should have considered how its activities would create a danger to occupants of the adjoining municipal land intended for the housing development.

The MEC and the Municipality, however, contended that the Pistol Club did not have sufficient locus standi, that is, that it had not shown that it had a sufficient legal interest, within the ambit of the Promotion of Administrative Justice Act, to succeed in an administrative review of the MEC’s decision.

The Court held that the environmental authority granted by the MEC to the Municipality did not by itself entitle the Municipality to proceed with the intended low cost housing development. The Court held that the authorisation merely represented a preliminary prerequisite for such a development and as such did not materially affect the rights of the Pistol Club with regard to the use of its leased property. The Court held that the Pistol Club had not shown that any of its direct external legal rights have been affected by the MEC’s decision which it sought to impugn.

The Court concluded that, in its view, it could not be said that the MEC, in arriving at the decision to issue the EA, had based the decision upon any identifiable materially irrelevant considerations, or that the decision was motivated by a failure properly to consider relevant considerations as urged by the Pistol Club. Further, the Court held that in its judgment the decision was also not unreasonable in the light of the information before the MEC at the time. The Court concluded by finding that there were no sufficient grounds shown in order for the Court to set aside the decision of the MEC.

Written by: Morne Viljoen

Department: Natural Resources Department

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