Court confirms that municipalities may regulate on environmental matters too

Helene Dagut is a consultant, environmental practice of Cliffe Dekker Hofmeyr.

In the recent case of Le Sueur and Another vs Ethekwini Municipality and Others, the court noted that the national and provincial legislative powers are not exclusive and municipalities may legislate on environmental matters too.

The Durban Metropolitan Open Space System (D-MOSS) (initially known as the eThekwini Environmental Services Management Plan) was introduced as a policy directive of the Municipal Council. It created a system of open spaces of land and water, consisting of areas of high biodiversity.

As directives do not have the same legislative weight as a town planning scheme, it was difficult for the First Respondent (the eThekwini Municipality) to enforce D-MOSS. Although landowners would undertake work on their properties in accordance with its zoning provisions, they were often ignorant of the provisions of D-MOSS.

In order to improve enforcement and certainty, the First Respondent passed a resolution in 2010 to integrate D-MOSS into its town planning schemes. Essentially, D-MOSS would overlay the underlying zoning and create controlled areas. Developments within the controlled areas would require environmental authorisation or support from the Environmental Planning & Climate Protection Department of the eThekwini Municipality, regardless of their underlying zoning.

Contested the First Respondent's authority

The Applicant opposed the integration and contested, among other things, the First Respondent's authority, as local government, to deal with the environmental functional area. The Applicant submitted that, in passing the resolution, the First Respondent had acted ultra vires and unconstitutionally.

The court did not accept the Applicant's argument about national and provincial governments' exclusive legislative authority over environmental matters. The court held that, as confirmed in previous cases, including Maccsand (Pty) Ltd vs City of Cape Town and Others,[2] "the Constitution did not intend ... to allocate legislative powers amongst the three spheres of government in hermetically sealed, distinct and watertight compartments". It is, therefore, possible for two spheres of government to exercise their powers even if this results in an overlap.

Furthermore, in terms of the principles contained in section 2 of the National Environmental Management Act, 1998 ("NEMA"), all organs of state, including municipalities, are required to apply the NEMA principles to actions which may significantly affect the environment.

The action taken by the First Respondent to integrate D-MOSS into its town planning scheme was, therefore, an exercise of the First Respondent's authority to protect the environment and was found to be not only consistent with the Constitution and NEMA, but also consistent with the First Respondent's Integrated Development Plan. As the actions taken were not inconsistent with any other national or provincial legislation either, the application was dismissed.

The court's confirmation of the municipality's legislative authority on environmental issues will require landowners within the specified area to obtain environmental authorisations not previously required. Due to the far-reaching consequences of this decision, it is likely to be taken on appeal.