Development in sensitive area

Getting environmental authorisation for developments has changed drastically over recent years. The bad news is that in view of the plethora of environmental legislation, policy documents and court decisions, one standard environmental impact assessment (EIA) is usually not enough anymore. The good news is that good planning, innovative thinking and the adding of value to projects, all repay potential developers handsomely.

This article explains some of the important principles, plans and practices introduced by environmental legislation when a developer proposes a property development in a sensitive area.

PRINCIPLES

Land use on merit

Section 3 of the Development Facilitation Act, 67 of 1995, in establishing General Principles for land development, lays down a principle that reads:

"Each proposed land development area should be judged on its own merits and no particular use of land, such as residential, commercial, conservational, industrial, community facility, mining, agricultural or public use, should in advance or in general be regarded as being less important or desirable than any other use of land".

By applying this principle, the developer must design a land development proposal with merit that optimises the value of all the resources at its disposal such as water courses, scenic views, fynbos and wetlands. It now becomes a challenge to make the most of all the resources. If the non-financial, spiritual, biodiversity, nature conservation, social and economic values are managed cleverly, the financial yield is usually increased dramatically.

Holistic evaluation or managing the ripple effect

Whenever a new project is introduced into an area it will usually cause a ripple effect on the surrounding environment that will either be beneficial or detrimental.The legal duty of the developer is to establish what the ripple effect is likely to be and to avoid any adverse impacts.

The financial opportunity to the developer is to create a development that initiates a positive ripple effect. The advantage to be gained is that a positive impact on land values in bordering areas provides a hedge or guarantee for the continuing financial feasibility and marketability of the project itself.

Sustainable development

Sustainable development in section 1 of the National Environmental Management Act, 107 of 1998 (NEMA), is defined as "the integration of social, economic and environmental factors into planning, implementation and decision-making so as to ensure that development serves present and future generations".

It would therefore be legally wrong to demand environmental protection without ensuring that the project addresses requirements other than environmental considerations as well. The requirement that the development be sustainable is not restricted to environmental or nature conservation factors only. It is also required that social needs such as job creation are met, that it is economically attractive to the developer, and that it leaves the community with a sustainable project. Here sustainability would mean that valuable environmental resources would be protected for future generations. The project should also continue to yield social benefits by addressing poverty and improving the quality of life of people. It must also remain financially valuable to all role players, whether they are shops, property owners or the local Municipality.

The internalisation of external costs

It is inevitable that components of any new development would 'spill over' or have an impact on areas external to the project. To the extent that it is beneficial, it is to be welcomed as it adds value not only to the resources being developed, but also to neighbouring resources. A positive externality is frequently reflected in an increase in property values on neighbouring property if the development property is developed in a sound manner.
To the extent however that the 'spill over' has a detrimental impact, (creates an external cost) it burdens the neighbouring recipient resources with costs for which the neighbouring property receives no benefit. Such external costs must be internalised. This means that the impacts that any development could generate that affect neighbouring properties adversely must be internalised through the removal of the impact or by changing the nature of the impact to render it innocuous or to avoid its detrimental impact.

Trusteeship and Rehabilitation

The principle of trusteeship entails that an owner of land is a trustee on behalf of present and future generations. According to this principle, the value and quality of land must be maintained and all projects must be undertaken according to this principle. To this end the planning process for the entire project should include a strategy that ensures that the process of rehabilitation forms part and parcel of and is executed simultaneously with the entire development.
The process of 'environmental permitting' therefore requires that at the appropriate stage an environmental management plan is generated that contains an ongoing rehabilitation procedure that is integrated into the entire commissioning process. It should succeed in safeguarding the resource for future generations. With this treatment it should also establish a valuable resource that in its own right can yield a handsome income.
PLANS

The structure used in land development to achieve the principles listed above are plans, regardless of whether they are for land-use management plans, a structure plan, an integrated development plan, a town planning scheme, a spatial development framework etc. They form a framework in which development may take place. Regarding structure plans and town planning schemes, the following apply:

Structure Plans

In terms of the Land Use Planning Ordinance 15/1985 (LUPO) applicable in the Western Cape, the purpose of a structure plan is to lay down guidelines for the future spatial development of the area to which it relates, in such a way as will most effectively promote the order of the area as well as the general welfare of the community concerned.

Structure plans usually show future land use options diagrammatically on maps. Generally the use of the area must fall within the restrictions of the plan and no approval for a rezoning of the property may be allowed that is inconsistent with the structure plan. An application may be launched for the amendment of the structure plan. Before such an application is allowed, environmental legal principles such as those listed above must be complied with. For this purpose an environmental assessment in terms of s 24 of the NEMA may be necessary.

Town planning schemes

According to LUPO a zoning scheme determines the use rights for land and provides for control over the utilization of land. As the use of land contrary to its zoning and without a consent use is illegal, the developer may apply for the rezoning of the property. Again an environmental assessment in terms of s 24 of the NEMA might be necessary. Depending on the circumstances, an authorisation may also have to be applied for in terms of the Environment Conservation Act 73 of 1989 (the ECA).

PRACTICES

There are several triggers for doing an environmental impact assessment.

Integrated Environmental Management

Generally speaking, before any development may be undertaken, the minimum requirement is to do a basic environmental investigation in terms of NEMA. NEMA contains a chapter describing the application of the principles of Integrated Environmental Management (IEM). To give effect to the principles of IEM (and this must be done before an activity as defined are implemented), the following must be considered, investigated and assessed:

(1) the potential impact of these activities on the environment;
(2) socio-economic considerations, and
(3) the country's cultural heritage (s24(1) of the NEMA).

The investigation must as a minimum comply with the requirements of s24(7) of the NEMA. This includes aspects such as the potential impact on the environment likely to be significantly affected, including cumulative effects of the activity and its alternatives on the environment, the significance of the potential impact, mitigation measures to keep adverse impacts to a minimum, the no-go option, public involvement and others.

Listed activity in terms of the ECA

The ECA provides that the Minister may identify activities that may have a substantial detrimental effect on the environment. Where an activity is so listed, it may not be undertaken without an authorisation in terms of section 22 of the ECA. Listed activities include certain changes in land use, for example from agricultural or zoned undetermined use to any other use, the construction of roads (in sensitive areas), dams, private resorts and sewage treatment plants. Throughout however, the principles listed above must be applied.

The main purpose of environmental assessments is to ensure that the environmental consequences of development proposals are systematically assessed in conjunction with their likely social, economic and other consequences, when determining development strategies and when approving developments. EIA's should therefore form and shape development proposals.

CONCLUSION

Any developer or authority permitting a development in a sensitive area needs to ensure that all relevant principles, plans and practices are adhered to and thus ensure that such development is sustainable and that the developmental rights rest securely with the developer. Fortunately the nature of the principles and the permitting structure enables a developer to add substantial value to the project while remaining within the authorised parameters.
A flow diagram (with explanatory notes) explaining the abovementioned framework is available for interested parties. Address requests to andreswart@stadlerandswart.co.za
ANDRE SWART
STADLER & SWART ATTORNEYS GEORGE
Cell:082 452 3353
(This article does not constitute legal advice, and should not be relied upon in the absence of specific legal advice.)