TO SEPARATE OR NOT TO SEPARATE
WHY PIECEMEAL EIAs MIGHT NOT BE ABLE TO FLY IN THE WIND
Badenhorst N.O. & 5 Others v Minister of Forestry, Fisheries and the Environment & 4 Others (Eastern Cape Division, Makhanda) (unreported case no. 2229/2020) (Bloem J)).
Regulation 11(3) of the EIA Regulations requires a proponent who undertakes more than one activity as part of the same development, to submit a single application for environmental authorisation.
In the Badenhorst matter, the Makhanda High Court was called upon to interpret, among others, Regulation 11(3) of the EIA Regulations.
The court was of the view that regulation 11(3) must be interpreted to mean that, a single application for environmental authorisation must be submitted for consideration where there is an intention to undertake more than one activity as part of the same development.
The facts in the Badenhorst case
Environmental Authorisations (EAs) were granted for three wind farms, pursuant to applications which had been made separately from applications for EA pertaining to the three grid connections to Eskom.
EAs were granted in the absence of cumulative assessments of impacts of the three wind farms and their connection to the Eskom grid.
The findings of the court
The court held at para [58] that:
Since the companies did not submit a single (consolidated) application for the wind farms and for the grid connections, the purpose of regulation 11(3) was not achieved.
The impacts of activities relating to the grid connections could not and were not, assessed when the EA in respect of the windfarms were considered and issued.
The EAs accordingly deviated materially from the peremptory provision of regulation 11(3).
The Court held further that, it would make sense to assess the activities (of the wind farm and the grid connection) together, by virtue of the nature of the activities.
A wind farm without its grid connection would be useless. Similarly, a grid connection without a wind farm would be useless.
Materiality of the deviation
Non-compliance with a regulatory requirement is not necessarily invalid, if the non-compliance is not material. One has to only refer to s47A of NEMA, to see that deviations from the regulatory requirements can nevertheless be valid.
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013) at paras 28-30.
In the Allpay decision, the Constitutional Court held that there is no reason to conflate procedure with merit. One must evaluate the irregularity/deviation to determine the materiality of the deviation from the legal requirements. This must be established by linking the question of compliance with the purpose of the legal provision.
The purpose of regulation 11(3) is to ensure that, where more than one activity forms part of the same development, the assessment of impacts, including cumulative impacts includes an assessment of all the activities forming part of the development.
In the Badenhorst case, the court found that the purpose of regulation 11(3) was not achieved.
Supreme Court of Appeal decision pending
A word of caution though…
The judgment in Badenhorst has been taken on appeal and judgment is pending before the Supreme Court of Appeal.
The impending judgment may in all probability provide binding authority on how regulation 11(3) ought to be interpreted in light of the applicable facts and circumstances.