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INTEGRATING
DEVELOPMENT
PLANNING & DECISION
MAKING – the keys to
unlocking administrative
delays
JUSTIN TRUTER
Director and Environmental Practice Head
Werksmans Attorneys
WCPDF, Cape Town, 7 May 2015
PRESENTATION OUTLINE:
Case study: a model of un-cooperative governance
The Constitutional imperatives: the notions of a “Developmental State”
and “Co-operative Governance”: theory versus reality
NEMA principles, Co-operative Governance, Environmental
Implementation Plans and Integrated decision-making mechanisms
The Streamlined Permitting Process or “One Environmental
Management system”
Statutory and Legal Remedies: Habitat Council, Booth, Shelf-Plett,
Clairisons, Uitkamp
DEVELOPMENT APPLICATION TIMELINE: a
model of un-cooperative governance and
cumbersome decision-making processes
2009
NEMA, Heritage, LUPO &
WULA
EAP consults with all organs of state.
2011
NEMA approval
granted by DEA&DP
2012
Minister grants EA on
appeal
2013
LUPO approval granted by
City
Irrational conditions - developer appeals
under the MSA.
2013
MSA appeal upheld
Objectors appeal in terms of LUPO
2014
Minister rejects LUPO
appeal (Habitat CC)
2015
WULA still pending at
DWS!
DEA&DP satisfied with EIA and that
comments addressed. HWC appeal.
Development can’t commence –
remedies?
South Africa: A Developmental state?
 Section 195 of the Constitution provides that:
•
Public administration must be governed by the democratic values and principles enshrined in
the Constitution, including, inter alia, the following principles :

Public administration must be development-oriented.

In South Africa, we have committed to building a developmental state. The notion of a
developmental state underpins the NDP.

A developmental state must be able to direct and support economic development
through:
•
building a strong public service;
•
creating an investor friendly environment;
•
supporting small business development,
•
using state owned enterprises effectively and driving strategic investment initiatives;

The State needs strategic, organisational and technical capacity to play its developmental
role.

It has to make effective use of intergovernmental and integrated planning across
spheres of government and between different government departments.
Principles of co-operative governance and
intergovernmental relations:
 Section 41 of the Constitution provides (inter alia) that:

All spheres of government and all organs of state within each sphere must :
•
provide effective, transparent, accountable and coherent government for the Republic as a
whole;
•
respect the constitutional status, institutions, powers and functions of government in the
other spheres;
•
not assume any power or function except those conferred on them in terms of the
Constitution;
•
exercise their powers and perform their functions in a manner that does not encroach on the
geographical, functional or institutional integrity of government in another sphere; and
•
co-operate with one another in mutual trust and good faith by -

fostering friendly relations;

assisting and supporting one another;

informing one another of, and consulting one another on, matters of common interest;

co-ordinating their actions and legislation with one another;

adhering to agreed procedures; and

avoiding legal proceedings against one another.
CO-OPERATIVE GOVERNANCE & INTEGRATED
DECISION-MAKING IN REALITY
NEMA
 Objective:
To provide for co-operative environmental governance by
establishing principles for decision making on matters affecting the
environment, institutions that will promote co-operative governance and
procedures for co-ordinating environmental functions exercised by organs of
state; to provide for certain aspects of the administration and enforcement of
other environmental management laws; and to provide for matters connected
therewith.
 Preamble recognizes that the environment is a functional area of concurrent
national and provincial legislative competence, and all spheres of government
and all organs of state must co-operate with, consult and support one another;
 AND that it is desirable that the law develops a framework for integrating good
environmental management into all development activities; that the law should
promote certainty with regard to decision-making by organs of state on matters
affecting the environment;
Co-operative Governance, Environmental
Implementation Plans/Management Plans and
Integrated decision-making mechanisms
 Sections 11 and 12 of NEMA:
 The purpose of environmental implementation plans  co-ordinate
and harmonise the environmental policies, plans,
programmes and decisions of the various national departments that
exercise functions that may affect the environment or are entrusted
with powers and duties aimed at the achievement, promotion, and
protection of a sustainable environment, and of provincial and local
spheres of government, in order to-
 minimise the duplication of procedures and functions; and
 promote consistency in the exercise of functions that may affect the
environment;
 give effect to the principle of co-operative government in Chapter 3 of
the Constitution;
Co-operative Governance and Integrated decisionmaking (Cont.)
 Section 24K of NEMA:
Consultation between competent authorities
and consideration of legislative compliance requirements of other
organs of state having jurisdiction
 The Minister or an MEC may consult with any organ of state
responsible for administering the legislation relating to any aspect of
an activity that also requires authorisation under this Act in order to
coordinate the respective requirements of such legislation and to
avoid duplication.
 After consultation – enter into written agreement between organs of
state in order to avoid duplication in the submission of information or
the carrying out of a process relating to any aspect of an activity that
also requires authorisation under this Act.
Co-operative Governance and Integrated decisionmaking (Cont.)
 Section 24L of NEMA:
Alignment of environmental authorisations
 If the carrying out of a listed activity or specified activity contemplated in
section 24 is also regulated in terms of another law or a specific
environmental management Act, the authority empowered under that other
law or specific environmental management Act to authorise that activity and the
competent authority empowered under Chapter 5 to issue an environmental
authorisation in respect of that activity may exercise their respective
powers jointly by issuing-
(a)
separate authorisations; or
(b)
an integrated environmental authorisation.
 A competent authority empowered under Chapter 5 to issue an environmental
authorisation in respect of a listed activity or specified activity may regard such
authorisation as a sufficient basis for the granting or refusing of an
authorisation, a permit or a licence under a specific environmental management
Act if that specific environmental management Act is also administered by that
competent authority.
SEMA’S
 “specific environmental management Act” means—
 (a) the Environment Conservation Act, 1989 (Act No. 73 of 1989);
 (b) the National Water Act, 1998 (Act No. 36 of 1998);
 (c) the National Environmental Management: Protected Areas Act, 2003 (Act
No. 57 of 2003);
 (d) the National Environmental Management: Biodiversity Act, 2004 (Act No. 10
of 2004);
 (e) the National Environmental Management: Air Quality Act, 2004 (Act No. 39
of 2004),
 (f) the National Environmental Management: Integrated Coastal Management
Act, 2008 (Act No. 24 of 2008);
 (g) the National Environmental Management: Waste Act, 2008 (Act No. 59 of
2008); or
 (h) the World Heritage Convention Act, 1999 (Act No. 49 of 1999),
 and includes any regulation or other subordinate legislation made in terms of
those laws.
THE 2014 NEMA EIA REGULATIONS AND
THE “ONE ENVIRONMENTAL SYSTEM” :
 Culmination of 12 year turf battle between DEA/DEA&DP and Dept. Minerals –
Minister of Water Affairs came on board later - so called “agreement”.
 Aim to truncate and streamline/prevent duplication in the permitting processes
under NEMA, NEMAQA, NEMWA, the NWA and MPRDA – all 5 laws amended
accordingly to give effect to the agreement and the “one environment system”.
 Last of the amendments came into force on 7 December 2014.
 All environmental provisions have be repealed from the MPRDA – now managed
under NEMA;
 The Minister for Environmental Affairs sets the regulatory framework & norms &
standards, & that the Minister for Mineral Resources is the Competent Authority
i.t.o. NEMA & the Licensing Authority i.t.o. NEMWA as far as it relates to
prospecting, exploration, mining or operations;
 The Minister for Environmental Affairs is the appeal authority i.t.o. decisions
issued by the Minister for Mineral Resources i.t.o. NEMA;
 NB. Timeframes are fixed & synchronised for the consideration & issuing of the
decisions i.t.o. the respective legislation.
2014 NEMA EIA Regulations: timeframes
 “receipt” means receipt on the date indicated—
•
(a) on a receipt form if the application or document was hand delivered or sent
via registered mail;
•
(b) in an automated or computer generated acknowledgment of receipt;
•
(c) on an acknowledgement in writing from the CA as the date of receipt if the
application or document was sent via ordinary mail; or
•
(d) on an automated or computer generated proof of transmission in the case of
a facsimile message.
 Reg 3(2): For any action contemplated i.t.o. these Regulations for which a
timeframe is prescribed, the period of 15 December to 5 January must be
excluded in the reckoning of days.
 Reg 3(3): Unless justified by exceptional circumstances, as agreed to by the CA,
the proponent & applicant must refrain from conducting any public participation
process during the period of 15 December to 5 January.
2014 NEMA EIA Regulations: timeframes
(Cont.)

Reg 3(4): When a State department is requested to comment i.t.o. these Regulations, such
State department must submit its comments in writing within 30 days from the date on which
it was requested to submit comments & if such State department fails to submit comments
within such 30 days, it will be regarded that such State department has no comments.
[Section 24 O(3) of NEMA amended accordingly.]

Reg 3(6): The CA must acknowledge receipt of all applications & documents contemplated in
regulations 16, 19, 21, 23, 29, 31 & 34 within 10 days of receipt thereof. [Application, BAR,
SR, EIR, Amendment apps, & Audit Report)]

BA process to be concluded within 197 : 90 after application days to submit BAR and 107
days after receipt of application to decide on BA application.

S&EIR process to be concluded within 300 days:
•
to submit a Scoping Report: 44 days from receipt of application
•
to decide on a Scoping Report: 43 days from receipt of SR
•
to submit an Environmental Impact Assessment Report: 106 days from acceptance of the
Scoping Report
•
to decide on S&EIR application: 107 days of receipt of the EIAR

Additional 50 days to submit a BAR or EIAR (option not available i.t.o. SR).
2014 NEMA EIA Regulations: timeframes
(Cont.)
 A NEMA EA, a Waste Management Licence, an Atmospheric Emission Licence
(that relate to a mining activity), & a Water Use Licence must all be issued
within the 107 day timeframe.
 Note: No separate Heritage decision i.t.o. the NHRA issued, but integrated into
the NEMA EA.
 If an Atmospheric Emission Licence does not relate to a mining activity, it must
be issued within 60 days after the issuing of the NEMA EA.
 A permit my only be issued or a right only granted i.t.o. the MPRDA once a
NEMA EA has been issued.
 Notification of decision on application
 (1) Unless indicated otherwise, after a CA has reached a decision on an
 application, the CA must, in writing & within 5 days—
•
(a) provide the applicant with the decision;
•
(b) give reasons for the decision to the applicant; &
•
(c) where applicable, draw the attention of the applicant to the fact that an
appeal may be lodged against the decision i.t.o. the National Appeals
Regulations.
2014 NEMA EIA Regulations: timeframes
(Cont.) and Public /Stakeholder
Participation
 (2) The applicant must, in writing, within 14 days of the date of the decision on
the application ensure that—
•
(a) all registered I&APs are provided with access to the decision & the reasons
for such decision; &
•
(b) the attention of all registered I&APs is drawn to the fact that an appeal may
be lodged against the decision i.t.o. the National Appeals Regulations, if such
appeal is available in the circumstances of the decision.
•
Late appeals? Must apply for and motivate condonation. Only in exceptional
circumstances in re. Mining applications. Appeal automatically suspends EA but
shortened timeframes – 20 days to appeal, 20 days to respond and 20 days
from date of recommendation for Minister to decide.
 Combination of public participation processes: Where an EA is required i.t.o. the
2014 EIA Regs & an authorisation, permit or licence is also required i.t.o. a
SEMA, a combined public participation process must be followed as agreed to by
the relevant authorities.
 With respect to every application for EA i.t.o. NEMA & every application for an
authorisation, permit or licence i.t.o. a SEMA, there must be coordination &
cooperation between the Competent Authority/Licensing Authority i.t.o.
NEMA/SEMA & any other organs of State from which an authorisation, permit or
licence in terms of any other legislation is required. [Regulation 7(3) of the 2014
EIA Regulations and 24(4)(a)(i) of NEMA refer.]
STATUTORY & LEGAL REMEDIES
 Internal appeal processes:
 NEMA, NEMAQA, NEMWA, NWA, MPRDA
 MSA – but only applicant, not objector - Reader v Ikin
 LUPO?? Lagoon Bay, Habitat Council and post Habitat.
 Scheme Regs automatic appeal in event of delay?
 Legal Remedies:
 “mandamus application” or application to compel in
terms of PAJA – statutory timeframes exceeded =
unlawful, or where no statutory timeframes =
unreasonable delay. Compensation under PAJA?
 Judicial
review – Clairisons SCA, Shelf Plett,
Uitkamp etc. Applied to LUPO? Desirability? Rogers, J
in Booth.
THANK YOU
JUSTIN TRUTER
7 May 2015
Nothing in this presentation should be construed as formal legal
advice from any lawyer or this firm. Readers are advised to consult
professional legal advisors for guidance
on legislation which may affect their businesses.
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