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CHALLENGING AN ENVIRONMENTAL AUTHORISATION
HOW TO LODGE AN APPEAL AGAINST AN ENVIRONMENTAL AUTHORISATION
WHEN TO APPEAL
In some cases, the objections and comments of interested and affected parties are not considered adequately during the EIA process, or are just plainly ignored.
In other instances, procedural requirements are side-stepped and the EIA process steamrolls its way towards an environmental authorization.
It then becomes necessary for an interested or affected party to appeal the decision by the environmental authority to grant the environmental authorization.
The same can be said of an applicant or developer who has complied with all the requirements of an EIA process and submitted a professionally crafted EIA report, only to have the environmental authorisation refused on some arbitrary ground.
A developer or applicant also has the right to appeal the refusal of the authorisation if he or she is not happy with the overall decision or even a part or condition of the decision.
Appeals must be lodged with the Minister or MEC for environmental affairs, if the national or provisional department had issued the environmental authorisation/license.
No appeal is available if the Minister or MEC issued the authorisation/license in the first instance.
You must lodge the appeal within 20 days of being notified of the granting of the authorisation/license.
THINGS TO CONSIDER WHEN APPEALING AN ENVIRONMENTAL AUTHORISATION
Get someone to assist you. While there is nothing stopping you (as an individual interested or affected party) from lodging and arguing the appeal on your own, it is best to get an expert to lodge and prosecute the appeal on your behalf.
Why? – well for starters, they know the law (statute and case law), they can formulate new and bolster existing grounds of appeal.
They can communicate your appeal more succinctly and professionally.
They can advise you on the chances of your appeal succeeding, and can advise what to do when your appeal fails, if you want to take the matter further.
As this is an appeal process, you may want to ascertain whether you intend introducing any new evidence (such as the results of a recent scientific study, or an independent study which supports your grounds of appeal) which should have been considered during the EIA.
If you are acting on behalf of a voluntary association, make sure the Association has officially resolved to appoint you as its representative to prosecute the appeal, and has authorised you to sign all documents in this regard on its behalf.
The same would apply if the Association has appointed lawyers to represent it in the appeal. It would need to provide a resolution to the effect that it has authorised the lawyers to act on its behalf and prosecute the appeal.
You might want to consult the GUIDELINE ON THE ADMINISTRATION OF APPEALS, issued by the Department of Environmental Affairs to assist you in drafting the appeal document.
SUBMITTING THE APPEAL
The appeal must be submitted to the Appeal Administrator and a copy to the Applicant (the developer or holder of the authorisation) and any interested and affected party and organ of state.
The appeal submission has to consist of a:
Statement setting out the grounds of appeal;
Supporting documentation which you can include as annexures to the appeal document; and
Statement (including supporting documentation) which confirms that the appellant has sent copies of the appeal submission to the applicant, any stakeholders and organs of state.
DRAFTING THE APPEAL
The appellant is required to structure the appeal according to the Grounds of Appeal.
Grounds of Appeal could divided into procedural grounds and substantive grounds.
The appeal must be structured and be concise as possible, taking care not to become emotional and stating irrelevant facts and grounds of appeal.
You must aim to show that the decision maker (the environmental department/HOD/DG) didn’t follow the correct procedure, acted unlawfully, or irrationally or took a decision which was patently wrong considering X, Y and Z.
The grounds of appeal must be relevant to the EIA / environmental authorisation and the mandate of the Minister or MEC. It is useless raising issues relating to areas of law which fall outside the mandate of the Minister or MEC.
Apart from the grounds of appeal, the appeal should state the relief sought if the appeal is upheld. Usually the relief of an objector to the authorisation would relate to praying for the authorisation to be set aside in its entirety.