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Anél du Plessis & Angela van der Berg Faculty of Law, NWU Le Sueur and Another v Ethekwini Municipality.

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Presentation on theme: "Anél du Plessis & Angela van der Berg Faculty of Law, NWU Le Sueur and Another v Ethekwini Municipality."— Presentation transcript:

1 Anél du Plessis & Angela van der Berg Faculty of Law, NWU Le Sueur and Another v Ethekwini Municipality and Others – An Environmental Law Reading (9714/11) [2013] ZAKZPHC 6 (30 January 2013)

2 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

3 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

4 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: –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

5 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.

6 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?

7 RA Le Sueur v eThekwini Municipality 2013 JDR 0178 (KZP)

8 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

9 D-Moss did not enjoy same legislative authority as town- planning 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 FACTS

10 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. Legal Question

11 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

12 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

13 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

14 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

15 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’

16 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

17 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

18 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 matters

19 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

20 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

21 RA Le Sueur v eThekwini Municipality 2013 JDR 0178 (KZP) What does Le Sueur-case confirm?

22 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 multi- scalar total environmental governance effort

23 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.

24 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

25 RA Le Sueur v eThekwini Municipality 2013 JDR 0178 (KZP) What are some of the implications of the judgment?

26 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 law- making requirements, generally – e.g. non retroactive or retrospective application etc.

27 RA Le Sueur v eThekwini Municipality 2013 JDR 0178 (KZP) What remains unknown, unclear and unsettled?

28 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.

29 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?

30 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”

31 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

32 Additional comments and insights welcome ……….. Additional insights, comments and questions welcome ……

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