WRITTEN CONSENT IN EIA
WHEN IS WRITTEN CONSENT OF A LANDOWNER REQUIRED ?
One of the most controversial, if not, problematic issue in South Africa’s Environmental Impact Assessment (EIA) Regulations has centred around written consent of a landowner to undertake an activity or development which requires an EIA or Environmental Authorisation.
So much so, that subsequent amendments to the EIA Regulations, presumably as a result of intense lobbying by parastatals such as Eskom and the mining industry, have somewhat watered down the requirements for landowner consent under certain circumstances.
And in some cases, as in the case of the mining industry, the Minister of Environmental Affairs did an about-turn in March of 2022, by withdrawing amendments to the EIA Regulations, which would have required mining companies to seek written consent of landowners before embarking on an EIA.
All of this is in stark contrast to the Water Act and the Water Use Licence process, which still requires written consent of the landowner or person in control of the property.
WHEN IS WRITTEN CONSENT REQUIRED?
When a development activity which is a listed activity in terms of the EIA Regulations (and thus requires prior environmental authorisation) is proposed on land owned by a person other than the developer/proponent, then written consent is required from the landowner or person in control of the land.
In terms of Regulation 39(1) of the EIA Regulations, an Applicant must, before applying for environmental authorisation, obtain written consent to undertake the proposed activity on land of the landowner or person in control of the land.
WHEN IS WRITTEN CONSENT NOT REQUIRED?
Regulation 39(2) of the EIA Regulations exempts a number of activities from the requirement to obtain written consent from the landowner.
Written consent from a landowner or person in control of the land is not required for the following activities :
(a) linear activities such as roads, pipelines and electrical powerlines
b) activities constituting, or activities directly related to prospecting, exploration, or extraction and primary processing of a mineral or petroleum resource
(c) strategic integrated projects as contemplated in the Infrastructure Development Act, 2014.
LANDOWNERS MUST STILL RECEIVE WRITTEN NOTICE
It must be noted that WRITTEN CONSENT is entirely different from WRITTEN NOTICE.
While WRITTEN CONSENT from a landowner is not required for the exempted activities under Regulation 39(2), it does not imply that the affected landowner(s) should not be given WRITTEN NOTICE of the proposed project and the EIA.
Regulation 41(2) of the EIA Regulations requires the person conducting a public participation process during an EIA, to give written notice to the owner or person in control of the site where the activity is or is to be undertaken and to any alternative site where the activity is to be undertaken.
