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Elderberry Investments (Pty) Ltd and Another v Department of Economic Development and Environmental Affairs and Others (2 December 2021)

2 December 2021

The judgment of the Eastern Cape High Court, Port Elizabeth is available here.

Neutral citation: Elderberry Investments (Pty) Ltd and Another v Department of Economic Development and Environmental Affairs and Others (2919/21) [2021] ZAECPEHC 64

Judge: Mfenyana AJ

Hearing: 2 November 2021

Judgment delivered: 2 December 2021

Outcome: Environmental Authorisation issued to applicant had not lapsed, listed activity had commenced.

Summary:

The Applicant, Elderberry Investments, obtained an environmental authorisation in 2012 from the Eastern Cape Department of Economic Development and Environmental Affairs (the First Respondent) for the construction of a fuel station. Various other permits and licences where required in order for Elderberry to establish the filling station, and a lengthy process ensued due to litigation and other delays.  In 2021, the Municipality queried whether the environmental authorisation (issued in 2012) had lapsed due to the following condition:

3.1.1 The construction of the filling station and associated infrastructure … must commence within a period of 12 (twelve) months from the date of issue of this Authorisation. If commencement of the activity does not occur within this period, the Environmental Authorisation lapses and a new application for environmental authorisation must be made in order for the activity to be undertaken.

3.1.2 Installation of the underground storage tanks to be completed within six months of commencement.”

Elderberry contended that site preparation for the filling station had commenced. They had placed pegs on the property, strung a rope along the pegs, cleared vegetation and evened out the ground. They argued that these activities constituted the commencement as required by condition 3.1.1 in the environmental authorisation and that the authorisation had therefore not lapsed.

The Respondents argued that the authorisation had lapsed and that the site preparation activities as described by the Applicant did not constitute commencement. The Respondents cited the definition of commencement contained in the authorisation itself which was “Any physical activity on the site that can be viewed as associated with the installation of the underground steel tanks inclusive of site preparation.” The Respondents argued that the placing of pegs and clearing of ground was not closely associated enough with the installation of underground steel tanks.

The court considered the full description of the listed activity and the following definition of “commence” as contained in NEMA:

when used in Chapter 5, means the start of any physical implementation in furtherance of listed activity, including site preparation and any other action on the site or the physical implementation of the plan, policy, program a process, but does not include any action required for the purposes of investigation or feasibility study as long as such investigation of feasibility study does not constitute a listed activity or specified activity…”.

Mfenyana AJ agreed with the Applicant and held that “any physical activity in furtherance of the listed activity” constituted commencement as defined in NEMA. He  went on to hold that:

It seems to me that even the demarcation of a parking lane within the property would constitute commencement, to the extent that it can be characterised as physical activity in furtherance of a listed activity or any activity associated therewith.

The court declared that Elderberry’s environmental authorisation had not lapsed and was in full force and effect. The Respondents were ordered to pay costs.