Le Sueur and Another v Ethekwini Municipality
and Others – An Environmental Law Reading
(9714/11) [2013] ZAKZPHC 6 (30 January 2013)
Anél du Plessis & Angela van der Berg
Faculty of Law, NWU
anel.duplessis@nwu.ac.za
angela.vanderberg8@gmail.com
PRESENTATION OUTLINE
• Background
• A brief overview of Le Sueur:
– Facts
– Arguments
– Judgment
• Further discussion
– Confirmations by the Court
– (Conceptual) implications of judgment
– Issues left unattended
• Concluding observations
BACKGROUND
• Constitution came to clothe SA municipalities with novel status,
powers, functions and responsibilities – especially ito chapters 2, 3
and 7
• Judiciary often confronted in past decade with consequential impact
of design and implementation of the 1996 Constitution – especially
with respect to local government
• Implementation of a “new” local government system and
municipalities’ use and implementation of newly acquired powers
and instrumentation continues to reveal legal complexities in
respect of, inter alia:
•
division of functions and powers within local sphere – district and local
• division of functions and powers between three different spheres and their line
functionaries
BACKGROUND
• Since 1996 courts often also confronted by legal challenges based on
constitutional environmental right (s 24) and comprehensive body
of national environmental law and policy
• Courts confronted by complex issues related to:
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Sustainable development
Prevention and redress of different types of pollution
Protection of natural resource base – including water resources and soil
Environmental health
Occupational health and safety
Cultural heritage protection
Conflict between conservation and (industrial) development
Access to environmental information
People’s access to basic amenities dependent on natural resources –e.g water,
sanitation and electricity
– Etc.
• Given broad scope of statutory definition of “the environment” likely
that many more environmental cases will be decided in future
BACKGROUND
In RA Le Sueur v eThekwini
Municipality 2013 JDR 0178 (KZP)
court for first time explicitly
confronted with question as to how far
powers of municipalities go as far as it
concerns nature conservation through
the use of spatial planning
instrumentation specifically.
Case not the first to have dealt with interface
between local government and legal questions
pertaining to people’s environment but it marks
the moment where a court had to cast its view
on the implications of the fact that
‘environment’ is listed in Schedule 4A of
Constitution i.e. as a functional area of
concurrent national and provincial legislative
competence.
BACKGROUND
• Against this background, objective of this presentation is to consider
facts and circumstances of Le Sueur, the parties’ line of
argumentation and the reasoning and judgement of the KZN High
Court and to ask:
What does Le Sueur-case confirm?
What are some of the implications of the judgment?
What remains unknown, unclear and unsettled?
RA Le Sueur v eThekwini
Municipality
2013 JDR 0178 (KZP)
FACTS
• Case prompted by eThekwini Municipality’s (Respondent)
planning measures to protect sensitive environmental areas
in city – including wilderness area around Kloof Waterfall
Hillcrest Plateau
• Respondent inter alia introduced “Durban Metropolitan
Open Space System” (D-MOSS) into town planning schemes
• D-MOSS aims to preserve city's ecological diversity and
enhance living environments
• Initially known as eThekwini Environmental Services
Management Plan – policy directive of Council aimed at
creation of system of open spaces of land and water that
consist of areas of high biodiversity
FACTS
• D-Moss did not enjoy same legislative authority as townplanning scheme – challenged enforcement
• To improve compliance and certainty, Respondent passed
resolution in 2010 to integrate D-MOSS into town planning
scheme
• Prevented residents from undertaking development on
properties without obtaining permission
• Le Sueur (Applicant) affected businessman and property
developer – owned properties in Everton - approached
High Court and challenged amendment of town planning
scheme
• Relief sought: amendments to eThekwini Town Planning
Scheme declared unconstitutional and set aside
Legal Question
• Issue that fell to be resolved:
Whether amendments to eThekwinin Town Planning
Scheme unconstitutional.
• Thus:
Whether Municipality has constitutional authority to
legislate on environmental issues.
Applicant’s Arguments
• Applicant argued unconstitutional for municipalities
to regulate on environmental matters
• ‘Environment’ listed in Schedule 4A of Constitution
• Legislative power belongs exclusively to national and
provincial government
• Respondent acted ultra vires and unconstitutionally
• By using local planning instrumentation to legislate
on environmental issues - Respondent acted
unconstitutionally + illegally – renders D-Moss
unconstitutional and illegal
Applicant’s Arguments
• Amendments – Respondent inter alia created own process
for Environmental Impact Assessment (EIA) activities at
municipal level
– NEMA - no reference to EIA procedures exercised by municipalities
+ does not empower municipalities to make laws for protection of
environment
• Functions of each sphere of government different + distinct
• Executive authority of municipalities in Schedule 4B and 5B
Constitution – does not include nature conservation
• Highlighted functional areas of local government (air
pollution, water and sanitation, beaches) but none of these
areas cover ‘environment’/‘nature conservation’/
’biodiversity’
Applicant’s Arguments
• Municipalities constitutionally hold function of
‘municipal planning’ – does not encompass
regulatory powers ito environment
• ‘Municipal planning’ – control and regulation
of land use
• May be overlapping between regulation of
matters of land use, such overlapping does not
allow municipalities to legislate in functional
areas that overlap
Respondent’s Arguments
• Applicant’s arguments – unduly narrow and incorrect
• ‘Environment’ broad - many issues/dimensions
• Inclusive reading of Constitution and local government
law renders it impossible for municipalities not to have
environmental mandate with accompanying
government powers
• Ss 7(2) and 24 of Constitution applicable to all spheres
of government – includes local government
/municipalities
• Nothing in Bill of Rights itself suggests environmental
protection afforded by s 24 translates into duties for
only national and/or provincial government
Respondent’s Arguments
• Municipalities may not legislate in conflict with s 24
Constitution
• Ss 24 and 152(1)(d) Constitution bind municipalities
when exercising powers and functions
• Matters relating to environment may be primary
concern of national and provincial government – but
municipalities best position to know, understand and
deal with issues involving environment at local level
• Drafters of Constitution could not have intended to
allocate legislative powers amongst spheres of
government in ‘hermetically sealed, distinct and water
tight compartments’
Judgement
• Court agreed with Respondent – S 40(1) Constitution
obliges all spheres of government to observe and adhere
to principles of co-operative government
• Environment ideal example of an area which collectively
resides in all three spheres of government – has therefore
not been included in more narrow Schedules 4B and 5B
• Where exercise of power by two spheres overlap – each
sphere exercises power within confines of its own
competence
• No reason why two spheres cannot co-exist – Constitution
obliges spheres of government to co-operate in mutual
trust and good faith and co-ordinate actions
Judgement
• Historically municipalities always exercised executive
legislative responsibility over environmental affairs
within municipal areas through planning powers –
drafters of Constitution aware of this fact
• Constitutional drafters consciously and despite overlap
included ‘environment’ in Schedule 4A of Constitution
and ‘municipal planning’ in Schedule 4B
• Impossible as a matter of accepted town planning
practice to divorce environmental and conservation
concerns from town planning principles
Judgement
• S 23(1)(c) Systems Act – statutory duty on every
municipality to contribute with other organs of state to
progressive realisation of inter alia constitutional
environmental right
• IDPs - example of legislative instruments that in part
impose environmental duties on local government
• S 2(a)(f) Municipal Planning + Performance Management
Regulations require spatial development frameworks
(SDFs) contained in IDPs and which should contain
strategic assessment of environmental impacts of SDF
• Town Planning Ordinance of 1949 includes
preservation/conservation buildings…places of natural
interest or beauty – thus, also relates to environmental
Judgement
• Court referred to a number of legislative examples which
illustrate that municipalities are involved in and may
legislate on environmental matters:
-
NEMA
KwaZulu-Natal Environmental Implementation Plan
Environmental Management Framework Regulations
NEM: BA
• Based on these statutory examples court submitted that
national and provincial environmental law acknowledge
and provide for role of local government in
environmental regulation
• Municipalities authorised to legislate iro environmental
matters to protect the environment at local level
Judgement
• D-Moss amendments in no way
transgress upon constitutional
or other environmental powers
of national and provincial
authorities
• Satisfied that D-MOSS
amendments are not
unconstitutional and invalid
• Dismissed application with
costs
RA Le Sueur v eThekwini
What does
Le Sueur-case
Municipality
confirm?
2013 JDR 0178 (KZP)
CONFIRMATIONS
• Blurredness of almost formalistic division of legislative and
executive competence with respect to the environment in
Schedules 4 and 5 of Constitution is real and has
consequences - yet, division of legislative (and executive)
powers amongst 3 spheres not casted in “hermetically
sealed, distinct and water-tight compartments”
• Entire government responsible in terms of a fiduciary duty
entrenched in Constitution and local government and
environmental law for nature conservation – part of an
incredibly necessary collective multi-level and multiscalar total environmental governance effort
CONFIRMATIONS
• Principle of institutional subsidiarity judicially applied
with reference to semi-federal state construct of SA – also
in environmental context
• Municipal planning spontaneously developed over the
years in its nature and functioning in response to inter
alia novel urban and rural challenges and concerns – e.g
climate change impacts, population growth and urban
sprawl
Municipal planning continues to produce new instrumentation and
to refine existing planning tools in line with international trends and
based on new technologies and locally relevant needs.
CONFIRMATIONS
• Municipal planning encompasses both legislative and
executive power of municipalities to regulate
environmental affairs albeit in line with national and
provincial laws - affirmed in Spatial Planning and Land-Use
Management Act, 2013
• Municipal spatial plans such as zoning schemes and SDFs
as well as land use schemes have power of law and create
legally binding rules to same extent that a national or
provincial law or a municipal bylaw would do
RA
Le Sueur
v eThekwini
What
are some
of the
Municipality
implications of the
judgment?
2013 JDR 0178 (KZP)
IMPLICATIONS
• Municipalities recognise and (may) use their ordinary local
governance instrumentation e.g. planning, local tax and other
financial instrumentation to regulate in areas not necessarily listed
in Schedules 4B and 5B – e.g. natural resource conservation
• More sophisticated municipal planning instruments result in
developers and residents being faced by “new (less known)
regulatory instrumentation” with “new legal requirements” e.g.
eThekwini’s D-Moss, City of Cape Town Metropolitan Open Space
System and Tshwane Open Space Framework
• With planning instruments creating law – important that
development and implementation of such instruments meet lawmaking requirements, generally – e.g. non retroactive or
retrospective application etc.
RA Le Sueur v eThekwini
What remains
unknown,
Municipality
unclear and unsettled?
2013 JDR 0178 (KZP)
REMAINING CLARIFICATIONS /
AREAS LEFT UNATTENDED
• Court emphasises notion of cooperative government but
as in many other judgments in recent years:
– fails to fully develop understanding of how organs of state could
best deal with overlapping areas of (environmental) governance
powers
• Court misses opportunity to explain interconnectedness of
the environment and pursuit of sustainability in reasoning
why drafters of Constitution could never have intended
not to include municipalities in regulation of
environmental issues other than air pollution, water
services provision, noise control etc.
REMAINING CLARIFICATIONS /
AREAS LEFT UNATTENDED
• Court failed to explain legal nature and meaning of “open space” as
a form of land-use that may be recognised through a municipality’s
planning or zoning schemes:
Open space or open space system referring to “the creation of a sustainable
interconnected and managed network of different categories of both developed
and undeveloped land that will support interaction between ecological, social
and economic activities”
• Clearly a land-use directed at balance of sustainability interests
• Raises issue / question about what is discretionary and compulsory
for municipalities:
– puts “may” and “must” into the equation
– arguments of Respondent in Le Sueur were not based on “eThekwini has the
right to …” it was based on “eThekwini has the duty to ….”
• What about municipalities in biologically sensitive areas who fail
to take action towards nature conservation?
CONCLUSION
• Internationally, increased emphasis on “New
governance” and non-traditional governance actors
of which local government is one – see e.g. work of
ICLEI
• In SA national policy, increased details on
environmental role and function of municipalities
e.g. National Climate Change Response White
Paper (2011) and Vision 2030
• Office of the Auditor-General in some provinces
already extending auditing mandate to
“environmental audits”
CONCLUSION
• Municipalities (e.g. eThekwini, Cape Town) that unlock governance
potential of constitutional and statutory “general local government”
instrumentation e.g. planning and financial instrumentation in the
pursuit of sustainability must be lauded
• But, municipalities should also be mindful:
– Conservation of nature is but one dimension of the total pursuit of
sustainability – requires balance of social, environmental, economic and
cultural considerations
– Conservation measures may affect (constitutional) property rights
– Conservation measures may in short and long term affect LED
– Conservation measures – its rationale and likely impacts – must be explained
and communicated as widely as possible for it to serve its function well
Additional comments
and insights welcome
………..
Additional insights,
comments and questions
welcome ……