- July 13, 2022
- |Concise Law Reports (CLR), Local Authority Law
LOCAL AUTHORITY LAW – CONDITIONS ATTACHED TO ENVIRONMENTAL CLEARANCE CERTIFICATE ULTRA VIRES APPROVED TOWN PLANNING SCHEME
The Environmental Commissioner had granted an environmental clearance certificate to a property developer in terms of the Environmental Management Act 7 of 2007, in circumstances where the envisaged development was ultra vires a Town Planning Scheme applicable to the land in question. The proposed development was subject to the Aris Town Planning Scheme, which is an approved scheme in terms of section 16 of the Town Planning Ordinance 18 of 1954.
The conditions attached to the environmental clearance certificate were ultra vires the approved town planning scheme. In the appeal to the Minister of Environment and Tourism, the Minister dismissed the appeal, upheld the decision of the Commissioner, and further ordered the parties to settle and jointly ‘submit a carefully harmonized agreement’. The High Court disposed of the matter based on two preliminary issues raised, which gave rise to an appeal. The appeal succeeded with the Supreme Court (per DAMASEB DCJ (SMUTS JA and ANGULA AJA concurring) holding that:
- The pre-eminence of a town planning scheme is clear from sections 6(3) and 29(2) of the Township and Division of Land Ordinance 11 of 1963 which, prohibits the Minister of Regional and Local Government, and Housing (Minister of Local Government) from imposing conditions in respect of land use applications if such conditions conflict an approved Town Planning Scheme.
- A fortiori, a development plan which is not compliant with an approved Town Planning Scheme, and a certificate of clearance sanctioning it, are both bad in law.
- Should the court set aside the Minister’s decision on the ground that it is vague and refer it back to the Minister for a decision afresh, that will not address the illegality of what the Minister sanctioned. Instead, this court would be inviting the Minister to reconsider the very certificate which is contrary to the law. The appropriate relief is that the certificate by the Commissioner is set aside as being void ab initio.
Auas Valley Residents Association v Minister of Environment and Tourism NASC (13 July 2022)