BRIDGE OVER TROUBLED WATERS
BRIDGE OVER TROUBLED WATERS
The Importance of Feasible and Reasonable Alternatives in Environmental Impact Assessment
Industrial Zone (Pty) Ltd v MEC for Economic Development, Environment, Agriculture and Rural Affairs, Gauteng and Another (7746/18) [2023] ZAGPJHC 376 (25 April 2023)
This case, recently decided in the Johannesburg High Court, shows why identifying alternatives just for the sake of paying lip service to the EIA process, can end in disaster.
THE LIGHT INDUSTRIAL TOWNSHIP IN DENVER
The Applicant wished to develop two properties in Denver, southeast of Johannesburg as a light industrial township. However, a stream crossing both the properties rendered them largely undevelopable.
The Applicant applied for environmental authorisation to the Gauteng Department of Environmental Affairs, whereby it sought to divert the stream through a grass-lined channel, which would allow development of a much greater portion of the properties. This was the applicant’s preferred alternative.
The developer (applicant) supplemented its development proposal with two further alternatives.
The second alternative was to divert the stream through a cement-lined canal.
The third alternative was to retain the stream as it was and to build a bridge over it, and to develop what remained of both the properties, beyond a 30m non-development buffer on either side of the stream.
THE AUTHORISATION & APPEAL
On 13 December 2016, the Head of Department granted Industrial Zone’s environmental authorisation, subject to the third alternative: that the stream remains on its present course, and that the properties be developed for light industrial purposes around it.
The Applicant then appealed to the MEC arguing that:
The HOD should have granted authorisation for the Applicant’s preferred alternative ( the stream diversion through the grass lined channel);
Development of the properties was rendered unfeasible by the authorisation of the third alternative;
The stream was in any event highly polluted and not on its original course.
The appeal was subsequently dismissed.
THE HIGH COURT REVIEW
Industrial Zone thereafter approach the Johannesburg High Court to review and set aside the decision of the HOD and the MEC.
The Applicant indicated in the Basic Assessment Report, that it would not be able to implement an economically viable development on the property unless the stream is diverted.
The court found that environmental legislation empowers competent authorities to place limits on the environmental impact of economic activity and that their decision to approve the third alternative (which did not involve diverting the stream) was not unreasonable.
The court subsequently dismissed the review application.
ALTERNATIVES IN EIA
The identification and assessment of alternatives forms an important component of the EIA process.
Regulation 1 of the EIA Regulations defines “alternatives”, in relation to a proposed activity, as different means of meeting the general purpose and requirements of the activity.
According to the IEM Information Series 11 published by the Department of Environmental Affairs, key criteria when identifying alternatives are that they should be “practicable”, “feasible”, “relevant”, “reasonable” and “viable”.
In terms of s24O of NEMA, one of the criteria to be taken into account by competent authorities when considering applications for environmental authorisation is whether there are any feasible and reasonable alternatives to the activity which is the subject of the application.
Therefore, a proponent is compelled to identify and assess feasible and reasonable alternatives to the activity. Identification and assessment of alternatives which are not feasible nor reasonable, fails to meet the legislative requirements nor the requirements of IEM.
The identification and assessment of unfeasible alternatives during the EIA process can be misleading to interested and affected parties and can be seen as an attempt by the proponent at window-dressing the EIA process.
And it can have severe consequences to the proponent as became clear in the Industrial Zone case.
The court in this case confirmed that competent authorities are not compelled to authorise the proponent’s preferred alternative and that a decision which aims to protect the environment, despite imposing additional costs on the proponent, was not an unreasonable decision.
REFERENCES
DEAT (2004) Criteria for determining Alternatives in EIA, Integrated Environmental Management, Information Series 11, Department of Environmental Affairs and Tourism (DEAT), Pretoria.
National Environmental Management Act 107 of 1998
EIA Regulations, 2014