OFFICE OF EXECUTIVE DIRECTOR
STRATEGY AND PLANNING
KANTOOR VAN DIE STADSBESTUURDER
I-OFISI YOMPHATHI WESIXEKO
Enquiries/Navrae/ Imibuzo
Fax./Faks/ Ifeksi
Telephone/Telefoon/ Umnxeba:
E-mail/E-pos/ I-imeyile
Date/Datum/ Umhla
:
:
:
:
Piet van Zyl
021 400 4483
021 400 4007/2186
Ndzuki.Maqungo@capetown.gov.za
31 July 2010
Directorate Staff Circular No 2 of 2010
Attention:
Directors
All Staff
Directorate: Strategy and Planning
Dear Colleagues
CLARIFICATION OF THE REGULATORY POWERS AND OBLIGATIONS OF THE
CITY IN THE LIGHT OF NEMA, NBRBSA AND LUPO
As the consequence of uncertainties regarding the City's powers in respect of
environmental regulation under the legal framework, we have recently
obtained a legal opinion from Advocate Geoff Budlender SC.
The legal opinion dated 18 December 2009, together with a supplementary
opinion dated 22 June 2010, which are attached to this circular for your
convenience, have now been adopted by me as this Directorate’s official
position on how staff should perform the regulatory functions assigned to
them.
All Directorate staff are instructed to apply this position to ensure legal
compliance and a consistent approach in performing our functions and duties
with specific reference to the processing of development applications. You are
therefore required to read and make sure that you understand the content of
the legal opinion and supplementary opinion, together with the principles
contained in Section 2 of the National Environmental Management Act
(NEMA) as these apply to all regulatory functions of the City. Any questions of
clarity on this matter should be directed to your Director or manager.
The legal opinion clarifies a number of legal principles and statements that
need to be highlighted. The following are some of the key statements that
could be drawn from the legal opinion:
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•
The City may only exercise powers that have been conferred upon it by
law. These powers must be given expressively by relevant legislation.
•
The City, when exercising its powers, has an obligation to be responsive to
environmental rights and responsibilities and the need for sustainable
development by applying the principles contained in Section 2 of NEMA.
This obligation does, however, not confer a power on the City, but
provides the City with the direction on how it should exercise its power.
•
Policy guidelines or administrative guidelines do not confer powers, but
only provide decision makers with the guidelines and procedures to be
followed when exercising the powers as conferred by law.
•
The NEMA principles do not confer powers, but guide decision makers in
the interpretation, administration or implementation of any law or action
that may significantly affect the environment.
•
The “Duty of Care” provided for in section 28 of NEMA does not confer any
powers on the City. The duty of care rests on the person causing the
damage to the environment and requires such person to prevent or
minimize the damage. Whenever the City has to consider whether or not
to grant regulatory approval, it must exercise that power with due regard
for the principles contained in section 2 of NEMA, and must seek to ensure
that its decisions do not lead to significant pollution or degradation of the
environment.
•
When imposing conditions on the granting of an authorization the decision
maker must ensure that the authorizing legislation confers the power to
impose conditions and if so, what conditions can be imposed. Conditions
must also relate to the purpose of the authorization.
•
Section 31A of the Environmental Conservation Act authorises the City to
act when damage to the environment is done or could result from an
activity, but stands apart from an application process, be it in terms of
NEMA, NBRBSA and LUPO.
It is also considered appropriate that the specific questions posed to the
Senior Counsel by both this directorate and the CIA be listed with a summary
of the legal opinion given on each of these questions. These questions and
my position on each of them are categorized under the applicable legislation
as follows and must be considered part of this instruction.
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NATIONAL ENVIRONMENTAL MANAGEMENT ACT (NEMA):
Question 1: Is the City bound by the principles set out in Section 2 of NEMA?
Yes, these principles apply to the actions of all organs of state where such
actions may significantly affect the environment.
Question 2: Do these principles confer any power upon a municipality?
No, they only set guidelines and give direction on how an organ of state, such
as a municipality, must exercise its power.
Question 3: Does Section 28(1) of this Act confer any power and
responsibility on a local authority and if so, what are these powers and
responsibilities?
No, the duty of care rests on a person who is causing or may cause significant
pollution or degradation of the environment. In the Hichange Investments
case it was held that “significant pollution or degradation” means that “the
threshold level of “significance” will not be particularly high”. This does not
include the person (authority) who grants an authority which leads to activities
that may cause significant pollution or degradation.
Question 4: Can it be considered that the City enjoys powers of control over
land in terms of section 36 of the Land Use Planning Ordinance (LUPO), as
this would trigger section 28(2) of NEMA?
No, the person in control of land will ordinarily be the owner, lessee, occupier
or developer. A body which has a purely regulatory function is not, in the
sense of the applicable legislation, “in control of” the land. The City must
nevertheless apply the criteria established in section 36 of LUPO (Question
10 below) when considering an application in terms of LUPO.
Question 5: Would the City, as regulator of land use, act unlawfully or
negligently if it is aware of the potential environmental consequences of an
application, but fails to take this into account in its decision in terms of LUPO?
Yes, but only if it has been established that the City has acted “unlawfully” or
has intentionally or negligently committed an act or omission. It can, however,
not be unlawful if the City has failed to exercise a power it does not have. The
question will be whether the City appreciated that the act or omission might
detrimentally affect the environment and nevertheless committed the act or
omission.
ENVIRONMENT CONSERVATION ACT (ECA):
Question 6: Does Section 31A of this Act still apply? And, assuming that it
does, does this section confer powers or responsibilities in the context of
applications made in terms of the National Building Regulations and Building
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Standards Act (NBRBSA) and/or LUPO and the Zoning Scheme; and, if so,
what are these powers and responsibilities?
Yes, Section 31A is still in operation and it does provide powers to a
municipality. These powers relate to the process in which notice is served on
an offending party which performs or fails to perform any activity where the
environment is or may be seriously damaged, endangered or detrimentally
affected. It is however different and stands apart from an application process,
be it in terms of NEMA, NBRBSA and LUPO, and does not authorise the
decision maker to impose conditions on the granting of environmental
authorisation. Section 31A of the ECA may therefore be applied to activities
that are outside the scope of considerations that may be applied to a LUPO
application (Question 10).
NATIONAL BUILDING REGULATIONS AND BUILDING STANDARDS ACT
(NBRBSA):
Question 7: Does section 2 of NEMA constitute “applicable law” for the
purposes of section 7(1)(a) of the NBRBSA?
No, but as already mentioned these principles serve as guidelines on how the
decision maker should make its decision.
Question 8: May the decision maker impose conditions when approving a
building plan in terms of section 7 of the NBRBSA?
No, because the NBRBSA does not confer the power to impose conditions
when approving a building plan. In assessing the applicability of the criteria
set out in section 7(1)(b)(ii) of the NBRBSA, the City is bound by the principles
contained in section 2 of NEMA. Those principles may affect the opinion
which the decision maker forms in relation to the section 7(1)(b) questions. It
is important to underline that they do not entitle the decision maker to
consider questions other than those which are referred to in section 7(1)(b). In
some instances and only when the legislation confers such power, such as
when a demolition permit is issued, the decision maker may impose
conditions. In this regard conditions to be imposed must be limited to safety,
health and convenience of the public, or for the safety of any other building or
installation.
LAND USE PLANNING ORDINANCE (LUPO):
Question 9: May conditions be imposed when approving an application in
terms of LUPO?
Yes, section 42 of LUPO confers the power to the decision maker to impose
conditions.
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Question 10: What sort of conditions may be imposed under LUPO?
Section 42 of LUPO stipulates that the decision maker may impose such
conditions “it may think fit”. This provision does however not give carte
blanche to the decision maker when imposing conditions. Section 42(2) give
some direction in this regard as it stipulates the circumstances such as “the
cession of land or payment of money” under which conditions may be
imposed. It does, however, give no further direction. In reading section 36 of
LUPO which deals with the grounds on which an application may be refused,
further direction is given to the sort of conditions that may be imposed. In this
regard conditions should be relevant to:
•
Compliance with the guideline proposals in a relevant structure plan;
•
The effect on existing rights;
•
The safety and welfare of the community concerned; and
•
The conservation of the natural and developed environment concerned.
It does not follow that any condition may be imposed that is relevant to the
above. A condition must be directly related to the development and to the
authorisation which is requested. If the activity which is to be authorised may
have an effect on the conservation of the natural and developed environment
concerned, then the authorisation may be subject to conditions which are
relevant to the conservation of that environment. It is not permissible to
impose a condition which is unrelated to the authorisation sought.
Question 11: Can conservation criteria be incorporated into the chain of
decision-making under section 36 of LUPO?
Yes, but only where they are relevant to the criteria set out in the answer of
Question 10 and therefore relevant to and directly related to the development
and the authorisation which is requested.
Question 12: Would the City be empowered to call for an EIA as ‘additional
information’ as contemplated under LUPO?
The City has no regulatory authority over EIAs in terms of NEMA. However,
the City may indicate that additional information is required to make an
appropriate decision in terms of LUPO. When such additional information is
required it may not be formulated as a ‘mini EIA’. It is a matter of requesting
specific information or an evaluation which will enable the decision maker to
make its decision on the application in the light of the criteria in section 36 of
LUPO. Thus, the information requested should specifically relate to the
particular environmental concerns which the decision maker may have with
regard to that application.
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The legal opinion further contains a number of useful examples of specific
development scenario’s to guide you during the assessment of development
applications where you need to comment on such development application, or
need to draft conditions and/or need to draft a report for decision makers. You
should therefore carefully read through these examples to ensure that you
understand its application.
Staff in the Directorate must ensure that all administrative actions taken,
all instructions issued and all decisions made, are to be strictly in
accordance with the legal principles and statements contained in the
attached legal opinion.
In the event that your Director or Manager is not in a position to clarify any
issue contained in the legal opinion you are welcome to forward such
questions of clarity to my office.
PIET van ZYL
EXECUTIVE DIRECTOR:
STRATEGY AND PLANNING
Annexures: A: Legal Opinion dated 18 December 2009
B: Supplementary Legal Opinion dated 22 June 2010
C: Principles for Sustainable Development (Section 2 of NEMA)
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