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Industrial Zone (Pty) Ltd v MEC for Economic Development, Environment, Agriculture and Rural Affairs, Gauteng and Another

25 April 2023

The judgment of the Gauteng High Court, Johannesburg can be found here.

  • Neutral citation: Industrial Zone (PTY) LTD v MEC for Economic Development, Environment, Agriculture and Rural Affairs, Gauteng and Another (7746/18) [2023] ZAGPJHC 376 (25 April 2023)
  • Case number: 7746/18
  • Coram: Wilson J
  • Date delivered: 25 April 2023
  • Outcome: The MEC’s decision to grant the environmental authorisation subject to the alternative of keeping a river flowing in its natural course was upheld by the court. The review brought by Industrial Zone unsuccessful and the developer was ordered to pay costs.

Summary

This is an application for judicial review of a decision by the MEC to grant an environmental authorisation for the development of a light industrial township subject to an alternative provided for in the Basic Assessment Report provided by a developer (Industrial Zone).

On 13 December 2016, Industrial Zone was granted environmental authorisation to develop a light industrial township Johannesburg. The land on which the development was to take place had a heavily polluted stream running across it, which presented an obstacle for Industrial Zone to fully utilize the land for the development.

Industrial Zone presented three options for the development of the township on the property considering the presence of the stream. The developer’s favoured option required diverting the course of the stream in order to maximise use of the land. Industrial Zone also presented two alternatives which included diverting the stream using a cement-lined canal or leaving the stream in its course and building a bridge over it.

The environmental authorisation was granted subject to the second alternative – to leave the stream in its natural course.

Being unhappy with the decision of the Head of Department, Industrial Zone unsuccessfully appealed to the MEC. The MEC dismissed the developer’s appeal on the basis that the option to leave the stream and develop around it was available and presented as an alternative by the developer itself. Furthermore, availing these alternatives created a sense of discretion on the part of the Department to decide on the best option under the circumstances, thereby waiving Industrial Zone’s right to have a preferred choice or alternative.

Although the court disagreed with the idea of presenting alternatives being a way of waiving an applicant’s rights to their preferred option in an environmental authorisation, in considering the principles of the Promotion of Administrative Justice Act (PAJA), the court was satisfied that the Department’s decision was rational. It held that:

the refusal to divert the stream was plainly rational, in the sense that it was rationally connected to the lawful purpose of protecting the environment, the information before the Head of Department and to the reasons both respondents have for it…”

The court was similarly satisfied that the Department’s decision on the alternative development proposal was reasonable.

It went on to emphasise that Industrial Zone as landowners had a duty to rehabilitate the stream regardless of whether or not it was to be diverted.

The review application consequently failed, and the court ordered that:

  • The main review application to set aside the decision of the MEC be dismissed.
  • The applicant pays the costs of the applications, including the costs of two counsel.