A critical appraisal of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd 2019 (5) SA 275 (GP)

ABSTRACT

The recent court judgment of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd 2019 (5) SA 275 (GP) found BP Southern Africa (Pty) Ltd (BP) guilty of environmental offences. The Court held that BP commenced with listed activities related to upgrades and construction work of filling stations without the necessary environmental authorisations (EAs) required by the National Environmental Management Act 107 of 1998 (NEMA) and the Environmental Conservation Act 73 of 1989 (ECA). Section 24 G of NEMA, however, allows for the rectification of the unlawful commencement or continuation of a listed activity conducted in the absence of the required EAs. Section 24 G therefore permits the ex post facto legalising or retrospective authorisation of the unlawful acts. In the case at hand, BP was found guilty, despite having applied for an ex post facto authorisation. This paper engages with the arguments put forward by the court, reflects on insights brought about by the foreign law, and provides possible recommendations for the retrospective environmental authorisation regime in South Africa.

KEYWORDS:

• Section 24G
• environmental impact assessment
• retrospective environmental authorisation

1. Introduction

Environmental Impact Assessment (EIA) is an environmental planning tool applied in various jurisdictions to determine, assess and evaluate the consequences of a proposed development or activity. While an EIA is generally used to obtain permission for undertaking activities that are likely to pose significant impact on the environment, it evaluates the impacts that are likely to arise from a proposed project and identifies solutions or approaches for development that are expected to avert, minimise or mitigate negative impacts. EIA therefore enhances sustainability by introducing foresight into decision-making (Lee and George 2000; Wood 2003; Morrison-Saunders and Fisher 2006; Murombo 2008; Glasson et al. 2012; Kohn 2012; Morgan 2012; Sands et al. 2012; Gibson 2017; Pope at al. 2017; Morrison-Saunders 2018; Martinez et al. 2019).

In the year 1997, with the promulgation of regulations under the ECA (accompanied by the Listing Notices published in Government Notice No. R (GNR) 1182–1184 in Government Gazette (GG) 18,261 of 5 September 1997), EIA became a legal requirement in South Africa. South Africa’s first EIA regulations were repealed almost ten years later when the NEMA and its new EIA Regulations came into effect in 2006 (GNR 385, 386 and 387 in GG 28,753 of 3 July 2006). GNR 982, 983, 984 and 985, published in GG 38,282 of 4 December 2014, provide the latest EIA Regulations and Listing Notices, thereby listing the specific activities that require environmental authorisation (EA), prior to commencement (Kidd 2011; Glazewski 2013) (reprinted in 2013); (Murombo 2008; Kohn 2012; Kidd et al. 2018). Depending on the listed activity triggered, the assessment process may take the form of a limited Basic Assessment (BA) or a lengthier scoping and full Environmental Impact Assessment (S&EIR). Commencing with a listed activity without an EA is an offence in terms of section 24 F of NEMA, which stipulates that a person convicted of such an offence is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding 10 years, or to both such a fine and imprisonment (Kidd 2011; Glazewski 2013 (reprinted in 2013); Kohn 2012; Kidd et al. 2018).

Notably, the South African regulatory framework provides for the notion of a retrospective EA. (Kidd 2011 (reprinted in 2013); Paschke and Glazewski 2006; Kohn 2012; Kidd et al. 2018; Oosthuizen et al. 2018). Where a developer has commenced with a listed activity without an EA, section 24 G of NEMA affords the developer an opportunity to apply for EA post commencement of the listed activity. Essentially, an application in terms of section 24 G of NEMA constitutes an admission, by the applicant, that it ought to have applied for an EA prior to the commencement of the activity, and that it has failed to do so. Section 24 G then provides that an applicant can, based on its application, obtain ex post facto EA.

The recent judgment of Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd 2019 (5) SA 275 (GP) (the Uzani case) came to offer important guidelines for the trajectory towards sustainability in South Africa. It also provides valuable lessons to other countries whose EIA legislation is silent on whether a developer may obtain an EA post commencement of the activities and that contemplate the introduction of an ex post facto EA regime. This paper considers the court’s deliberation in the Uzani case, critically evaluates it, and draws from it possible recommendations for the retrospective EA regime of South Africa.

2. Facts of the Uzani case

BP Southern Africa (Proprietary) Limited (BP or the accused), which conducts business in the construction and establishment of filling or service stations and in the supply of petroleum products to filling or service stations, constructed (or upgraded) filling (or service) stations around Gauteng between the years 1998 and 2002 (Uzani case p.15). However, as per GNR 1182 of 5 September 1997, the construction or upgrading of structures and manufacturing, storage, handling or processing facilities for any substance which is dangerous or hazardous is controlled by legislation as an activity that may have a substantial detrimental effect on the environment. In fact, section 22(1) of ECA stipulates that ‘no one shall undertake an activity […] except by virtue of a written authorisation issued by the Minister.’ Section 22(2) of ECA further stipulates that the aforementioned authorisation is to be issued only after the consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environment (Uzani case p.14).

Notwithstanding these legislative provisions, BP continued with construction (or upgrading) activities, with neither reports concerning its impact complied and submitted in terms of section 22(2) of ECA, nor with written authorisation from the competent authority (Uzani case p.15). Activities conducted by BP included ‘the development of facilities or infrastructure, for the storage, or for the storage and handling, of a dangerous good, where such storage occurs in containers with a combined capacity of 80 cubic metres or more but not exceeding 500 cubic metres’ – an activity which, according to GNR 983 in GG 38,282 of 2014, requires a BA process for the application for environmental authorisation. BP also proceeded with ‘the development of facilities or infrastructure, for the storage, or storage and handling of a dangerous good, where such storage occurs in containers with a combined capacity of more than 500 cubic metres’, an activity that requires an environmental authorisation for which a lengthier scoping and EIA process (S&EIR) is mandatory.

What followed was BP’s submission of a retrospective application for the unlawful commencement or continuation of a listed activity in terms of section 24 G of NEMA.

Uzani Environmental Advocacy CC (Uzani), a private environmental advocacy group initiated legal action. Uzani relied on section 24 F(1) of NEMA, whereby no person may commence an activity listed in terms of section 24(2)(a) of the same Act unless the competent authority has granted an EA for the activity. Uzani further relied on section 29(4) of ECA, in terms whereof any person who contravenes a provision of section 22(1) of that Act shall be guilty of an offence and liable on conviction to a fine or to imprisonment. The charges included 21 counts; for the unlawful construction and/or upgrading of 21 filling stations without the requisite reports concerning its impact and without the written authorisations (Uzani case p.15.)

Following multiple hearings, the High Court in Pretoria found BP guilty on eight charges, inclusive of contravening section 22(1) read with sections 21(1) and 29(4) of ECA and items 1(c) of Schedule 1 and Schedule 2 of Government Notice R1182 of 5 September 1997 (Uzani case p.56).

3. Discussion

This paper continues to critically engage with the question whether a section 24 G application, as interpreted and applied in the Uzani case, is indeed suitable and in fact aimed at protecting the environment, and to secure sustainability generally. To this end, in Uzani the prosecution led expert evidence by calling three witnesses. One of them, IJ van der Walt, gave virtually unchallenged evidence regarding 1) the need for EA prior to a filling station’s being erected; and 2) why authorisation post-construction adopts ‘lower standards’ than those demanded by a pre-construction EIA. With regard to the former, Van der Walt testified (with specific reference to underground storage tanks) that it only required a relatively small volume of fuel to pollute a large area of groundwater, and that once pollution occurs it is effectively irreversible (Uzani case p.25). In leading his evidence in relation to the second aspect, Van der Walt argued that a rejection of a section 24 G application, generally, is not expected (Uzani case p.25). In fact, for him it is barely an option in the current socio-economic climate of South Africa, as it could result in job losses. He sceptically proceeded to argue that the process of sanctioning a post-construction application under section 24 G is qualitatively inferior to the more rigorous standards required under an EIA (Uzani case p.25).

Given the questionable interpretation and application of section 24 G applications, it makes sense to turn to and draw insights from existing foreign law with more established understandings of the application and purpose of retrospective EAs. Although the authors hereof acknowledge important differences between the South African and English legal systems, the English planning law is presented as a useful example for the South African regime. Not only was the South African jurisprudence greatly influenced by the English law after colonisation (Thomas et al. 2000; Rautenbach and Bekker 2016) but the countries share a similar procedure with regard to retrospective EAs.

Like the South African regulatory regime, the English planning law requires that an EIA must be undertaken prior to commencement for developmental activities that are likely to have significant environmental impact (Glasson et al. 2012). The EIA requirement in the English planning law derived from the European Community’s (EC) Directive 2014/52/EU. Directive 2014/52/EU is the latest amendment to the first EIA Directive 85/337/ECC. Article 2 of Directive 2014/52/EU provides that the assessment of possible impacts must be undertaken for all activities contained in Annexes I and II (which are lists of developmental activities that require an EIA, and which are referred to as ‘EIA development’ as per regulation 2, prior to issuing the consent or authorisation for their commencement). In England, Directive 2014/52/EU is given effect by the Town and Country Planning (Environmental Impact Assessment) Regulations of 2017.

As in South Africa, the English planning law permits retrospective environmental authorisation. Under the English planning law, the purpose of retrospective planning permission is to regularise unlawful developments (R (Ardagh Glass Ltd) v Chester City Council & Others 2011). Regulation 36 of the Town and Country Planning (Environmental Impact Assessment) Regulations of 2017 provides that retrospective planning permission may be issued for ‘unauthorised development’ only when the Secretary of State or an inspector has considered environmental information. Unauthorised development is defined in regulation 34 as ‘EIA development which is the subject of an enforcement notice.’ The enforcement notice, in turn, is issued pursuant to section 172 of the Town and Country Planning Act of 1990.

Thus, in terms of English planning law, a developer of ‘unauthorised development’ may apply for retrospective planning permission by submitting environmental information. This position was confirmed in the case of R (Baker) v Bath and North East Somerset Council 2013 (Baker case). The court in the Baker case held that the European Union (EU) law permits the granting of retrospective planning permission for EIA development, that is, where an EIA is undertaken after the EIA development had commenced – but only in ‘exceptional circumstances’. In fact, the English planning law imposes an undertaking on decision-makers to ensure that pre-emptive developers know they will be required to remove their unlawful development unless they can demonstrate that there are exceptional circumstances to justify the retention of the unlawful development (R (Ardagh Glass Ltd) v Chester City Council & Others 2011). While the English law permits retrospective planning permission, it is evident that, unlike the situation in South Africa, the English law circumscribes the scope of the application for retrospective EA. The English law sets out factors such as the consideration of ‘exceptional circumstance’ and an ‘unfair or improper advantage’ that must be taken into account when considering such applications.

This position was affirmed in the case of R (on the application of David Padden) v Maidstone Borough Council and Others 2014 (Padden’s case). The issue in this case was the lawfulness of the retrospective planning permission. In 2003 the Midstone Borough Council (Council) issued planning permission (EA) for development at Monk Lakes. The permission contained various conditions, including the submission of various pre-commencement details. However, these pre-commencement details were not submitted and the developers commenced with activities at Monk Lakes, including the construction of additional recreational fishing lakes, which did not comply with the 2003 permission. In 2009 and 2010 the Council granted retrospective permission for the unlawful development at Monk Lakes. In the year 2011 another (retrospective) planning permission was applied for, which formed the subject matter of dispute before the court. This application for planning permission was accompanied by an environmental statement. In this instance it was argued that the retrospective permission for EIA development should be granted only in ‘exceptional circumstances’ and secondly, only if the developer does not obtain any improper or unfair advantage from the pre-emptive development (Padden’s case para 60).

With regard to the first ground, the claimant alleged that the Council failed to assess whether there were exceptional circumstances justifying the application for retrospective planning permission, and further, that it was not mentioned that the application was for the EIA development (Padden’s case para 65). The Council counter-argued and claimed that there was no need to make use of the word ‘exceptional circumstances’ throughout the report. In fact, the scale of the unauthorised development, involving a lengthy and complex enforcement action had the planning permission not been granted, amounted to exceptional circumstances (Padden’s case para 66). The court noted that it had never been revealed that the application for planning permission in question was for an EIA development, and as such permission should have been an exception and that it raised a question of unfair advantage (Padden’s case para 76).

With regard to the second ground, the claimant argued that retrospective application permission also provided the interested parties with unfair or improper advantage. The environmental statement for the application in issue showed that it was taking the baseline for the assessment to be 2010, with the substantial unauthorised development in place, as opposed to 2003 (the date prior to which the unlawful development commenced). The Council conceded that the environmental statement took its baseline to be 2010 but argued that it could still make a determination on the application considering that information presented to it was sufficient (Padden’s case para 70). Consequently, the court held that the Council unlawfully failed to consider the question of exceptional circumstances. Further, although the Council disregarded the issue of unfair or improper advantage, the retrospective planning permission in question was repealed and quashed (Padden’s case para 102). From this, it seems as if the English courts show a greater degree of intolerance to non-compliance.

4. Lessons distilled

From the above, it is possible to distil lessons for South Africa’s retrospective authorisation regime. Firstly, it is apparent that retrospective environmental authorisation (labelled as retrospective planning permission in terms of English planning law) for unlawful developments that require EIA prior to commencement is permissible in both the South African and the English regulatory frameworks.

The retrospective environmental authorisation application procedure is meant to regularise the unlawful developments, thereby bringing unlawful developments back into the regulatory loop and enabling the developers to correct the wrong they committed. Retrospective environmental authorisations can therefore be seen as a step towards pursuing environmental sustainability. In South Africa this is due to the fact that section 24 G empowers the competent authority to request the developer to assess and report on the impact of the development, to remedy any adverse impact, to mitigate, and to consider other alternatives that may be adopted in continuing with the development in a sustainable manner. As is clear from the English example, however, this does not negate the fact that an application for retrospective planning permission may be refused, and a directive to demolish may very well follow such refusal.

Secondly, while South African legislation does not circumscribe the circumstances under which retrospective EA may be issued, save for having contravened section 24 F, the English courts hold a view that the competent authorities must consider if there are exceptional circumstances warranting the issuing of retrospective authorisation. The English courts are also of the view that the competent authority must determine if the developer has not obtained an unfair or improper advantage. It is therefore argued that the scope of application of the retrospective planning permission regime in England is narrower than that in South Africa. In England the retrospective authorisation is seen as an exception.

A third lesson can be drawn from the Padden’s case, in terms whereof the claimant argued that the environmental statement was inadequate due to the incorrect baseline that had been used. Notably, the court held that the Council could have requested further information. In fact, the inadequacy was cured by representations that had been made. It is therefore submitted that while retrospective authorisation may seem less rigorous and adopts lower standards, the competent authorities are vested with power to issue directives which may determine the extent of the assessment that the developer must undertake. This English law example refutes an important argument advanced in the Uzani case by an expert witness, Van der Walt, that held that a retrospective authorisation adopts a lower standard and is less rigorous than the normal EIA process. In fact, section 24 G(1) provides that the competent authority may request the developer to undertake an assessment. Although section 24 G does not indicate which assessment procedure is to be followed between BA or S&EIR, the competent authority may prescribe which procedure is to be followed. Further, the competent authority is empowered to request further information from the developer in the event that it considers the reports to be insufficient. Therefore, the challenge does not lie with the process’ being of a lower standard or less rigorous, but with the competent authorities and how they implement the provision.

In the fourth instance, the fact that the retrospective planning permission was quashed by the English court in Padden’s case gives an indication that refusal of retrospective planning permission is indeed practically possible despite the fact that the Uzani case stated the contrary. This therefore refutes the second argument by Van der Walt in the Uzani case, namely that the refusal of an ex post facto environmental authorisation is not an option within the current socio-economic climate of South Africa.

5. Concluding remarks and recommendations

This case note has critically engaged with arguments advanced in the recent Uzani case, which pertained to a corporate giant (BP) that commenced listed activities related to upgrades and construction work of filling stations in South Africa without the necessary EAs required by the EIA regulatory framework. The Uzani case flagged the meaning and correct application of ex post facto EAs and whether they are, in fact, conducive to achieving sustainability. The paper has critically reflected on the South African regulatory framework but has also drawn some valuable lessons for interpretative guidance from the English planning law.

This paper confirms that an ex post facto EA in South Africa, albeit not the best tool, does work towards the pursuit of sustainability, in that it offers developers of unlawful activities an opportunity to bring their activities back into the regulatory loop. It requires them to undertake an assessment of the impact of their activities and to report on the same. The discussion has also indicated that the expert witness in the Uzani case may have erred in holding that an ex post facto assessment in South Africa is necessarily of a lesser standard. This paper confirmed that the competent authorities may determine which assessment procedure must be followed and can request further information, thereby elevating the standard of assessment. In fact, as the English example showed, an application for EA may be refused or an ex post facto EA which has already been issued by the competent authority may even be quashed.

Against the foregoing it is submitted that section 24 G must be retained in NEMA. However, it is recommended that section 24 G be legislatively amended. Considerations to this end include that the provision for prosecution under section 24 G should be expunged to minimise the chances of deterring future developers of unlawful activities from applying for rectification of the unlawfulness of their activities. Further, in the light of the English example, and to curb the chance of a section 24 G process’ being used as an option instead of an exception to the normal EIA process, section 24 G of NEMA must be amended to include the provision that ex post facto EAs may be issued only under special circumstances and where the developer has not obtained any unfair or improper advantage.