NEW TWIST IN ENVIRONMENTAL APPEALS
NEW CHANGES TO ENVIRONMENTAL LAWS IN SOUTH AFRICA
As you may have figured out by now, the President has signed into operation as of 21 June 2023, certain sections of the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLAA)
NEW CHANGES TO ENVIRONMENTAL APPEALS
In terms of our environmental law, any person who is aggrieved by a decision in terms of the National Environmental Management Act (NEMA) or a specific environmental management act (such as the Biodiversity Act) has the right of appeal.
Even an alleged offender who has been served a directive or other enforcement notice, has the right of appeal.
What stays the same ?
An appeal against an environmental authorisation suspends the operation of the authorisation, effectively stopping any work from commencing in terms of the appealed authorisation or decision.
What’s new ?
With the new changes to NEMA, a holder of an environmental authorisation or other decision which has been appealed (and thus stalled or suspended) now has the right to apply to the Minister, MEC or Municipal Council and show good cause, why the environmental authorisation should not be suspended, pending the finalisation of the appeal.
If the application is successful, the Minister, MEC or Municipal Council will issue a directive allowing the proponent to commence with development or activity despite the appeal still pending.
I would imagine that prior to issuing such a directive, the Minister, MEC or Municipal Council would need to afford the appellants an opportunity to state their case why such a directive should not be issued in favour of the proponent.
The prospects of success of the appeal, would obviously be an important factor in deciding whether to grant the directive to continue the development.
What about directives or any other enforcement notices ?
A person who has been issued an enforcement notice or directive may still appeal such directive or notice, but the lodging of the appeal does not automatically suspend the operation of the directive, and the person is thus bound to comply fully with the provisions of the directive pending the evaluation of the appeal.
However, a person would need to make an application, showing good cause why the directive or other enforcement notice should be suspended, thus allowing the offender to continue the alleged offending activity.
I would imagine that the input of interested and affected parties would be required prior to any decision being taken to lift the suspension on an enforcement directive. The extent of significant harm to the environment would obviously be an important factor in deciding whether to suspend an enforcement directive.
EFFECT OF THE NEW CHANGES
Insofar as appeals and enforcement notices are concerned, the new changes to our environmental laws now allow developers and offenders the opportunity to continue with an activity or development, despite the outcome of an appeal process still pending.
All that is required is an application in which good cause can be shown.