Municipal environmental regulation and the property developer

With increasing emphasis being placed on environmental matters, conservation, sustainable development and ‘going green’, we are also seeing more and more environmentally-related matters turn in court and address seminal issues relating to the development of our environmental law. A recent case of relevance is Le Sueur and Another v eThekwini Municipality and Others (KZP).

In order to provide for a system of efficient governance, the South African Constitution provides for the allocation of powers to the various spheres of government, namely national, provincial and local. Each sphere is then constitutionally provided with the authority and duty to legislate and manage that area of functionality/competence. With regards to the environment, this specific area of competence is vested in national and provincial government.

In the Le Sueur case, the eThekwini Municipality in KwaZulu-Natal amended its town-planning schemes, to create controlled environmental areas over and above the designated zoning of such areas. The effect thereof was that any new developments within such controlled areas would be subject to environmental authorisation, in addition to the authorisation needed in terms of the zoning.

This decision by the Municipal Council was challenged on the basis that the Municipality had no jurisdiction to regulate environmental matters, in that the Constitution did not allocate the necessary competence to regulate environmental matters to local authorities. The court, however, pointed out that the Constitutional assignment of these powers to the national and provincial spheres did not mean that the local sphere of government had no authority to legislate on the environmental aspects of developments. As municipalities have the best knowledge of the environmental character and conditions within their areas of governance, they are well-equipped to identify certain areas as non-development zones or as sensitive environmental areas.

Additionally, the court stated that the Constitution calls for a model of developmental local governance. Essentially this means that a municipality must co-operate with its community in meeting their needs (social, economic and environmental) in a sustainable manner, so as to continually improve their overall quality of life. In order to truly achieve this goal, it is essential that municipalities work in harmony with provincial and national spheres of government. Municipalities must work in congruence with provincial plans, but are at liberty to legislate stricter requirements than those set in place by national or provincial government to have effect within their areas of competence.

A specific functional area of municipal competence is “municipal planning.” Municipalities are to take a holistic approach to all planning matters. This means that, in addition to social and economic factors, environmental considerations must be taken into account, and that municipalities have to also take responsibility for the environmental condition within their jurisdictional areas. The Le Sueur decision emphasized the fact that environmental conservation forms part of urban planning and thus also forms part of the “municipal planning” mandate of municipalities.

How will the decision affect developers? Unless overturned on appeal, the decision implies that municipalities can incorporate additional environmental considerations in addition to zoning requirements in respect of environmentally sensitive zones, which in turn will impact on the required planning by developers to accommodate environmental considerations. This approach will require greater synergy and understanding between municipalities and developers to ensure that environmental aspects are balanced with development outcomes.

February 4, 2014
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