VEXATIOUS ENVIRONMENTAL APPEALS
VEXATIOUS ENVIRONMENTAL APPEALS
STALLED DEVELOPMENTS AS A RESULT OF APPEALS LODGED AGAINST ENVIRONMENTAL AUTHORISATIONS & WATER USE LICENCES
Just last week, one of my clients asked me - What is there to stop a flood of unsubstantiated appeals against environmental authorisations and water use licences?
Well, the short answer is - absolutely nothing !
The long answer is…
LEGAL STANDING
For environmental authorisations, NEMA basically confers legal standing to bring an appeal, on any person, irrespective of whether they previously objected to the development during the application process, or not.
For water use licences, the Water Act confers legal standing on appellants appealing against the issue of a licence, in somewhat narrow terms.
The appellant must be a person who has timeously lodged written objections during the application process (usually the public participation process).
Therefore, not just anybody may lodge an appeal against a water use licence.
While this may prevent any Johnny Come Late from lodging an appeal, it doesn’t prevent those like your neighbour (who has religiously lodged petty objections at every stage of the process) from launching an appeal aimed primarily at stalling a development for no reason.
It then becomes necessary for the applicant/developer to be able to counteract this state of affairs.
SUSPENSION OF LICENCE OR AUTHORISATION
The effect of an appeal against a water use licence and environmental authorisation is that it immediately suspends the operation of the licence or authorisation, meaning that the development cannot proceed.
There are ways around this predicament in terms of the National Water Act, depending on the specific circumstances of the matter.
Currently, this is not the case with NEMA appeals, and a development is stalled until the appeal is decided in favour of the development.
However, all this will change when the National Environmental Management Laws Amendment Act comes into effect, where it may be possible to circumvent this predicament, as is currently the case with the Water Act.
But until then, developers are at the mercy of appellants in NEMA appeal cases.
References:
NATIONAL WATER ACT 36 OF 1998
NATIONAL ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998 (NEMA)
NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT ACT 2 OF 2022