16 September 2014 by Cliffe Dekker Hofmeyr Environmental Alert

Appeals to suspend environmental authorisations: a barrier to development or proper protection of the environment?

From 2 September 2014, environmental authorisations issued by the Department of Environmental Affairs will be suspended if an appeal is submitted, having the unfortunate potential consequence of delaying much-needed developments.

This is in terms of an amendment to the National Environmental Management Act, No 107 of 1998 (‘NEMA’).

This is particularly as appeals to environmental authorisations are often lodged without any basis, with appellants relying on minor environmental impacts and not balancing the socio-economic elements of sustainable development under NEMA's provisions.

However, prior to the amendment, the law required that where local communities or other interested and affected parties identified a serious environmental or socio-economic impact associated with a development, such parties were obliged to resort to the very costly route of instituting interdict proceedings in a High Court to stop the development, whilst they awaited the outcome of their appeal (and possibly also review proceedings if the appeal was dismissed). In the interim, whilst an appeal to an environmental authorisation was being considered by the competent authority, it was possible that significant environmental damage could result.

If interdict proceedings were not immediately instituted and the development had commenced, it was often difficult to obtain an interdict, as the party opposing it could not show that irreparable harm would be caused and the balance of convenience favoured them, which is necessary to prove in an interdict. If an interdict was not granted, the development generally proceeded and there was little value to the appeal, particularly given the long period generally taken by the authorities to finalise them.

This amendment to NEMA also brings it in line with other environmental legislation, for example the National Water Act, No 36 of 1998, which also suspends a water use licence when an appeal is lodged.

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