Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court of the Republic of South Africa, Eastern Cape Division, Grahamstown, is available here.

Neutral citation: Wings Park Port Elizabeth (Pty) Ltd v Member of the Executive Council for the Department of Economic Development Environmental Affairs and Tourism: Eastern Cape and Others [2019] ZAECGHC 123 (12 November 2019)

Case Number: 3172/2018

Judge: Ronaasen AJA

Heard: 27 and 27 June 2019 and 15 July 2019

Judgment delivered: 12 November 2019

Outcome: Application dismissed

Summary:

The Applicant (Wings Park) was formed to develop and operate a private airfield and applied for environmental authorisation under NEMA from the Eastern Cape Department of Economic Development, Environmental Affairs & Tourism (DEDEAT).

DEDEAT refused to grant environmental authorisation and the Applicant appealed this decision to the MEC. The MEC dismissed the internal appeal. The Applicant then approached the High Court seeking to review the original decision of DEDEAT in which it declined to grant environmental authorisation. The judgment of Plasket J in this matter is available here.

Plasket J held that the DEDEAT decision was administrative action under PAJA, and that the Applicant had launched its application three months after the 180 day timeframe required by section 7(1) of PAJA. This failure to comply with the 180 day requirement was condoned by the court. The court held that the Applicant’s failure to review the appeal decision of the MEC meant that the matter was moot. Plasket J held that even if the DEDEAT decision was set aside, the appeal decision of the MEC in which the application for environmental authorisation was also dismissed remained valid and therefore the Applicant would still not be able to begin construction of the airfield.

The Applicant approached the High Court for a second time, a year later. This time it sought to review the decision of the MEC (the appeal authority) to refuse environmental authorisation, amongst other decisions, and to condone its failure to comply with the 180 day PAJA requirement.

Ronaasen AJA considered whether it was in the interests of justice to condone the failure of the Applicant to comply with the 180 day requirement. After considering precedent and various factors he decided that it was not in the interests of justice to grant condonation and on this basis the application failed. The court however also examined the merits of the application and in particular the assessment of alternative sites for the proposed development in its Final Basic Assessment Report, possible congestion at alternative sites, deficient public participation processes, noise impact assessment, draft environmental management programme and bird and geohydrological studies. Ronaasen AJA found that the decisions of the MEC and DEDEAT were rational, reasonable, supported by facts, not influenced by errors of law or irrelevant considerations.

The court had a number of observations relating to the conduct of the Applicant which militated against granting condonation for the delay.

The Applicant was ordered to pay the costs of the respondents.