A NEW PERSPECTIVE ON CONDITIONAL APPROVALS OF LAND DEVELOPMENT APPLICATIONS
COURT JUDGEMENT: EARTHLIFE AFRICA JOHANNESBURG VERSUS MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS
CASE 65662/16 DD 8 MARCH 2017
IN THE HIGH COURT OF SOUTH AFRICA: GAUTENG DIVISION, PRETORIA
1. INTRODUCTION
Decisions on land development applications (more particularly township establishment applications) in terms of municipal By-laws or old order legislation such as the relevant town planning and townships ordinances are often issued by the decision-making authority (mainly the relevant municipality) subject to various conditions. Whilst this is not problematic per se, the nature of the imposed conditions and the manner in which conditions are formulated may affect the validity of the decision.
There are various examples of decisions handed down by a municipality approving the establishment of a township in terms of the relevant legislation whilst imposing so-called “pre-proclamation” condition to the effect that:
“ the township applicant shall prepare a traffic impact assessment report to the satisfaction of municipality; or
the township applicant shall attend to a geotechnical investigation and present the results to the municipality for it’s acceptance; or
the township applicant shall procure the consent from the Gauteng Department of Roads and Transport as contemplated in Section 7 of the Gauteng Transport Infrastructure Act, 2001 (Act 8 of 2001) and submit same to the municipality for incorporation into its decision, etc.”
2. IMPLICATIONS OF CONDITIONAL APPROVALS
The aforesaid conditions are part of a very specific category in that they imply that the decision-making authority (municipality) did not have at its disposal, the results of the investigations required to be conducted, alternatively the authorisation from a different authority and, as result could not have factored such results into its decision in approving the proposed establishment of the township.
Such conditions typically rely on a positive outcome to be achieved by the township applicant in terms of other legislation or other requirements which clearly did not form part of the information before the municipality when it framed its first decision to approve the land development application.
3. SUMMARY OF JUDGEMENT
In the aforesaid court judgement, the Honourable J Murphy set aside a decision by the Department of Environmental Affairs (and the responsible Minister) having authorised the building of a coal fired power station near Lephalale in Limpopo Province in terms of the relevant provisions of the National Environmental Management Act, 1998 (Act 107 of 1998) (NEMA). Such decision was made conditional upon the applicant undertaking a so-called climate change impact assessment prior to the commencement of the project. In other words, the authorisation was granted and was handed down (notwithstanding an appeal to the contrary) whilst placing an obligation on the applicant to conduct a further assessment prior to commencing the construction of the project. In other words, the results of the aforesaid assessment were not before the decision-making authority at the time and, notwithstanding, the authorisation was granted.
Although this judgement deals with entirely separate legislation, the principles of the judgement are clearly relevant to decisions by municipalities with regard to land development applications, especially where such decisions are made subject to requirements to be fulfilled on the part of the applicant to attend to further research or investigations or to procure further authorisations (in terms of other legislation).
In the aforesaid judgement, the decision in terms of NEMA was indeed set aside based primarily on the fact that the results of the climate change impact assessment had not been before the decision-maker at the time of taking its final decision with regard to the NEMA authorisation.
The aforesaid judgement also found that the failure of the decision-maker to consider the results of the required assessment, by extension, implied that the decision-maker had failed to properly apply its mind. As result, the decision fell to be reviewed. It was found that the decision-maker had indeed accepted that the relevant assessment was necessary to inform its decision and, as result, such assessment should have been completed and considered before taking the final decision on whether to grant the authorisation (or not).
4. FUNCTUS OFFICIO
Following the aforesaid, the judgement also focused on the doctrine of functus officio and the implications of the conditional authorisation issued by the decision-maker. The court found that the predominant view in South African law was that the functus officio principle shall apply to final decisions where rights or benefits are granted, after which it would become unfair to deprive a person/body of an entitlement that has already vested as result of such decision.
In the aforesaid case, the decision-maker had made the decision to issue the environmental authorisation, despite the absence of the results of the relevant assessment. Notwithstanding, the decision was considered to be “final” and had vested significant rights in the applicant. When regard is had to a typical decision to approve an application for township establishment, the same basic circumstances arise, given that the decision of the municipality is deemed to be final and results in significant vested rights in favour of the applicant, notwithstanding the prospect that such decision is conditional upon further studies or authorisations as may be required.
Under such circumstances, the court found that the decision to grant the environmental authorisation (albeit conditional) was based on a material error of law. The court found that a material error in law is indeed a ground for review under the principle of legality. Against this background, the decision was found to be reviewable by the court.
Planning Practitioners are therefore cautioned to ensure that, in the interests of the instructing clients, the decision of the relevant authority be structured in a manner which will prevent the aforesaid circumstances arising.
SAACPP: May 2017