Department of Environmental Affairs & Development Planning

DISCUSSION DOCUMENT LAW REFORM PROJECT

Integrated planning, environmental & heritage resources legislation

November 2004

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Table of Contents

1. Preamble ............................................................................................................................ 3 2. Policy Statement ................................................................................................................ 4 3. Background........................................................................................................................ 4

3.1 Legal considerations......................................................................................................................... 5 3.2 Motivation for the law reform project .......................................................................................... 6 3.3 Project Structure .............................................................................................................................10 3.4 Stakeholder Engagement...............................................................................................................10 3.5 Project Milestones ..........................................................................................................................11

4. Objectives of the legislation.............................................................................................. 11 5. A ‘straw dog’ – Some Ideas on the Content and Structure of the Proposed Legislation .12

5.1 Chapter 1- Definitions...................................................................................................................13 5.2 Chapter 2 - Principles ....................................................................................................................13 5.3 Chapter 3 – Institutional Arrangements and Issues ..................................................................13 5.4 Chapter 4 – Process/Procedure for plans, programmes and policies ....................................14 5.5 Chapter 5 – Process/Procedure for development applications ..............................................15 5.6 Chapter 6 - Roles and Responsibilities........................................................................................17 5.7 Chapter 7 – Authorisation process ..............................................................................................17 5.8 Chapter 8 - Decision-making........................................................................................................17 5.9 Chapter 9 – Review and Appeal...................................................................................................18 5.10 Chapter 10 – Enforcement and Penalties ...................................................................................19 5.11 Chapter 11 – General and Transitional Provisions ...................................................................19

6. Points for consideration....................................................................................................20

The purpose of this Discussion Document is to provide backgroundinformation on the law reform project and to set out the initial ideas andthinking on matters of principle on the proposed legislation. Thisdocument is supported by a questionnaire, which has been developed tofacilitate comment and input on the proposed legislation. None of thethinking reflected in this document is fixed. Its purpose is to stimulatedebate and input into the law reform process. Please forward comments toMary-Jane Morris by email mega@megateam.co.za or fax (021) 790 5793

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DISCUSSION DOCUMENT: LAW REFORM PROJECT

Integrated Environmental, Planning and Heritage Legislation

1. Preamble The Western Cape government, in conjunction with national government is constitutionally bound to develop policies and laws that will enable sustainable development and use of natural and heritage resources while promoting appropriate economic and social development. Whereas the Western Cape is endowed with a wealth of natural and cultural resources, which require protection, it is also faced with the challenge of creating economic growth and development opportunities for its people. Many inhabitants of the Province live in an environment that is harmful to their health and well-being and there are marked inequalities in the distribution of wealth and resources, with resultant poverty that leads to environmentally harmful practices. Furthermore, access to resources1 is unequal, which serves to exacerbate poverty and to contribute to poor living environments. Inappropriate development in areas of high cultural, ecological or scenic value has also led to degradation of the environment. Accordingly, the point of departure for the Western Cape government in formulating legislation relating to sustainable development is the recognition that long-term human health and well-being of its citizens is inextricably linked to the state of the natural, socio-economic and cultural environment. Pollution of natural resources, loss of natural habitats and species and degradation of ecological systems will ultimately impact negatively on the people of the Western Cape, not only in terms of their physical health but also in terms of their emotional and spiritual well-being. Furthermore, heritage and culture are an important element in the well-being of communities and in building a sense of community. As well as ensuring that existing resources are developed and managed in a sustainable manner, it is also necessary to take action to restore and rehabilitate severely degraded cultural and natural environments. Sustainable development is the overarching goal of the White Paper on National Environmental Management Policy (1997): “ The intention is to move from a previous situation of unrestrained and environmentally insensitive development to sustainable development with the aim of achieving a stable state economy in balance with ecological processes.” There are several initiatives underway in the Province, all of which are focused on achieving the objectives set out in iKhapa elihlumayo, which include sustainable development. One of these projects is the Law Reform project, which has been initiated by the Department of Environmental Affairs & Development Planning (DEA&DP). Its purpose is to develop a provincial Act that will provide principles and procedures for land use management, environment and heritage resources, thereby providing an integrated approach to addressing these issues, within a sustainable development framework. This law will be applicable to the development of policies, programmes and plans (strategic level) and to individual development proposals (project or site level).

1 Resources include land, water, sanitation and housing

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2. Policy Statement In developing this legislation the Western Cape government will be required to take account of the following key elements in the existing legislative environment:

The Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution), which contains the rights regarding culture and the environment and regulates legislative competence for heritage resources, environmental and planning matters.

The White Paper on Environmental Management Policy, which encompasses the principles of sustainable development2. In terms of the White Paper, provincial government is obliged to consult and reach agreement with national government with respect to the development of policies, strategies and legislation. Furthermore, such legislation must comply with national norms and minimum standards.

The National White Paper on Arts, Culture and Heritage.

The National Environmental Management Act, 107 of 1998 (NEMA), particularly section 24, which sets out the minimum requirements in relation to any law that “contemplates the assessment of the potential environmental impact of activities.”

National planning legislation, which is currently under review and the provincial planning legislation such as Land Use Planning Ordinance, 15 of 1985 (LUPO), the Planning and Development Act 7 of 1999 (the PDA).

The National Heritage Resources Act 25 of 1999, which deals with the protection of heritage resources and the requirements for heritage impact assessment, amongst other matters.

3. Background In terms of the provincial structure the Department of Environmental Affairs and Development Planning (DEA&DP) serves as the custodian of the environment in the Western Cape. It is also responsible for development planning, particularly at the strategic/regional level. Hence, the DEA&DP is the responsible provincial authority for administering, implementing, enforcing and ensuring compliance with various statutes pertaining to environmental management and planning issues. It also has a role to fulfil in terms of national legislation on heritage and cultural resources, in that significant provincial heritage resources must be identified. In addition, the legislation requires the establishment of a provincial heritage resources agency, which is Heritage Western Cape. There are several consequences of these legislative responsibilities:

It is difficult to streamline the decision-making processes effectively under the current legislative regime.

The legal requirements for obtaining approval for new developments or projects are confusing for applicants as well as for interest groups and the public who are asked to comment on applications.

2 Aspects of other policies that fall under the umbrella of the White Paper will also need to be addressed.

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There is a lack of capacity within departments to administer and enforce the legislation effectively, with the Environmental Impact Assessment (EIA) Regulations and the heritage resources legislation proving to be particularly problematic. Furthermore, extensive effort (and money) is spent on interpretation of the Regulations due to the vagueness with which responsibilities, procedures and the circumstances in which they apply have been defined – a situation that serves to exacerbate capacity constraints.

Legislation such as the EIA Regulations, which were developed at a national level, do not always provide an appropriate legislative framework for addressing the unique circumstances that prevail at a provincial level.

3.1 Legal considerations As part of the preparatory process for developing integrated planning, environmental and heritage legislation for the Western Cape, a concept paper to address the form that the law (i.e. whether it should be an Act or Regulations) should take was commissioned. This work, undertaken by EnAct International, advised that the proposed legislation should take the form of an Act rather than regulations for the following reasons:

The minimum requirements for such legislation, aspects of which are set out in NEMA, can readily be achieved in a provincial Act.3

Primary provincial legislation (i.e. an Act) carries more weight and can be less easily superseded by subordinate national legislation (i.e. Regulations) unless the subordinate legislation has been approved by the National Council of Provinces and at least one of the conditions set out in section 146(2) and (3) of the Constitution has been satisfied.

There is no appropriate existing provincial Act under which Regulations could be promulgated. It therefore follows that if the legislation were to take the form of Regulations it could be more readily challenged than primary legislation, on the basis that it is not authorised by primary legislation (i.e. it would be ultra vires).

A provincial Act will enable the province to develop legislation that addresses the unique circumstances of the Western Cape. Amongst others are various strategies relating to conservation (e.g. Cape Action for People and the Environment), development planning (e.g. adoption of the bioregional planning approach, Provincial Spatial Development Framework) and strategies relating to economic development (e.g. Growth and Development strategy, Tourism White Paper, Knowledge Economy White Paper).

A national Act or Regulations would supersede provincial legislation if one of the four conditions set out in section 146(2) and (3) of the Constitution were to be satisfied. According to the opinion obtained provided by EnAct, none of them is. The concept paper prepared by EnAct International identified legal issues that will need to be addressed in the law reform project to ensure that effective legislation is developed and implemented:

Under the prevailing legislative environment, were the province to promulgate its own legislation, the fulfilling of its functions as set out in NEMA and the Environmental

3 Account will need to be taken of the NEMA law reform process – it will therefore be necessary to track developments in this regard

closely.

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Conservation Act 73 of 1989 and the associated EIA Regulations (of September 1997) as well as any that may be promulgated under NEMA needs to be clarified. This is because of the potential for duplication of procedures for applicants, which in turn would place an onerous burden on the DEA&DP.

Furthermore, clarity is required on the manner in which the DEA&T (Department of Environment Affairs & Tourism) deals with concurrency. Currently, the mechanism used to achieve concurrent responsibility is to delegate particular roles and functions to the provincial authorities. In the interests of co-operative government it would be wise to resolve this aspect of concurrency.

National land use legislation is currently being developed and the implications for the provinces is not yet clear. In addition, many land use decisions are taken at local government level. It is necessary to resolve the integration of this decision-making role with that in relation to heritage impact and environmental impact, which largely are taken at provincial level, except in certain cases where the decision is made by the relevant national department.

The dovetailing of the decision-making process in terms of NHRA (which is not taken by the Department, but by an agency, either Heritage Western Cape for provincial heritage resource decisions or the South African Heritage Resources Agency in respect of heritage resources of national significance) with the environmental and planning decision-making procedures.

The manner in which the DEA&DP will interface with local government in relation to spatial planning and the making of decisions regarding land use rights.

Changes to existing national legislation to enable effective implementation of the integrated provincial legislation may be required. This will be addressed through ongoing consultation with the relevant national departments.

The requirements in respect of repealing provincial legislation such as the PDA and LUPO will also need to be addressed.

3.2 Motivation for the law reform project There are two key reasons for initiating the law reform project:

There is a need to provide a framework to ensure responsible land use planning and management. Various laws make provision for planning processes, for example Integrated Development Planning (IDPs) in the Municipal Systems Act, 32 of 2000, Environmental Implementation Plans in NEMA and bioregional and biodiversity management plans in terms of the National Biodiversity Act 10 of 2004. Notwithstanding, there is a gap in terms of providing development guidance and the link between these plans and individual development projects is generally weak.

The current procedures for obtaining development approvals/permissions/authorisations are confusing and inefficient in that an application may be required in terms of a number of different laws for one development proposal. Typically, the following may be required:

− A planning or land use approval in terms of planning legislation. − An environmental authorisation in terms of the EIA Regulations (promulgated in

September 1997 terms of the Environment Conservation Act 73 of 1989).

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− A requirement (under section 24 of NEMA) to consider environmental issues before permission is granted by any organ of state, where there may be a significant detrimental effect on the environment.

− An approval in terms of the heritage legislation, which involves the undertaking of a Heritage Impact Assessment (HIA).

The result of these shortcomings is that a significant administrative burden is placed on decision-making authorities such as municipalities, the DEA&DP and Heritage Western Cape. This has impacted on the ability of government to meet its service delivery objectives. It has also resulted in frustration amongst developers due to the time delays in processing applications. In order to produce successful provincial legislation, these problems and constraints need to be clearly understood and input4 from stakeholders is welcomed in this regard. The key issues that have been identified at this stage of the project are shown in the following table. These concerns have been derived from:

Workshops with environmental consultants that have been convened by DEA&DP;

Experience gained by the provincial departments in administering the planning, environmental and heritage legislation;

Feedback from other provincial departments through structures such as the inter-departmental liaison committee;

Feedback from informal interaction with practitioners in the fields of planning, environment and heritage resources;

Presentations (e.g. conference papers) on the current legislative regime and associated problems.

ISSUE COMMENTS Sustainability − Unique Western Cape environment (natural and cultural) is often not appreciated or

acknowledged, resulting in decisions that lead to degradation of this asset.

− Precedent is inadequately considered, which results in developments being approved on the basis of similar projects being approved in the past. This leads to the erosion of environmental and cultural resources over time.

− Decision-making does not take sufficient account of the principles of sustainable development. Greater emphasis on these principles is required.

− Cumulative impacts are not adequately considered. Site specific focus

− Currently, environmental assessment of policies, plans and programmes is not required in the EIA Regulations. These Regulations are focused on the assessment of development on individual sites, with the result that development proposals are generally neither examined within a regional context, nor are cumulative impacts adequately considered. This is probably the result of lack of specific provision for Strategic Environmental Assessment (SEA) in the EIA Regulations and NEMA5. A similar constraint applies to the heritage resources legislation, which also has a site-specific focus for the assessment of impacts.

− Planning legislation allows for spatial planning at different scales. Given that spatial plans are often the forerunner for determining where development should be located, these need to take account of environmental and heritage resources issues in their development. This is not being addressed adequately and all too often these plans are changed in an ad hoc manner in response to a motivation report by developers.

4 A questionnaire has been formulated, which comprises questions relevant to this Discussion Document. 5 Section 24(7) of NEMA, which sets out the minimum requirements for assessment, includes consideration of cumulative impacts. This

requirement is not well applied for a number of reasons, one of them being that the EIA methodology is weak in this regard, because it is site focused. SEA is a better tool for addressing cumulative impacts.

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ISSUE COMMENTS Public participation

− No guidance on the level and extent of public participation required is given in the environmental legislation and LUPO does not provide for public participation throughout the process (only required to advertise once the application is complete and submitted to authority).

− The need to obtain approvals in respect of different legislation is confusing for Interested and Affected Parties (I&APs).

− Appeals against decisions are often based on what is considered to be inadequate public participation by Interested and Affected Parties (I&APs).

− It is very difficult to maintain the right balance between having meaningful participation on the one hand and avoiding projects becoming bogged down on the other.

− Public participation is often seen as being inadequate as I&APs find it difficult to determine whether their input influenced the project design or plan or the decision in any way. Decision-making appears to happen in a ‘black box.’

− I&APs often find the documentation associated with development proposals overwhelming in terms of technical detail. This leads to participation fatigue.

− The section that deals with HIA in the heritage resources legislation makes provision for consultation with affected communities and I&APs.

Different triggers for legislation

− Whereas the EIA Regulations and the NHRA apply to activities, planning legislation (in the case of the W Cape, the Land Use Planning Ordinance (LUPO)) applies to sites. Planning applications are generally triggered by changes to land use rights (e.g. rezoning, subdivision) and these rights are attached to particular land (i.e. cadastral units). The environmental and heritage authorisations are granted to the applicant (person or organisation).

− The NHRA sets out the activities for which a Heritage Impact Assessment (HIA) is required. Notably, if an EIA is required, then the HIA is treated as a specialist study within the EIA. The NHRA has made provision for this to avoid duplication. Notwithstanding, this has caused some confusion, as in these circumstances the Heritage Resources Agency plays the role of a commenting authority (on heritage aspects of the EIA), not a decision- making authority. Also, the ‘Listed Activities’ in the NHRA differ form those in the EIA Regulations, which means that they do not always correspond well with each other.

− Currently, the requirement for an EIA6 in terms of the EIA Regulations is solely based on whether the project falls within the Schedule of Listed Activities or not. This means that no account is taken of the sensitivity of the environment7 in determining the need for an EIA in the case of the Regulations.

− Many of the activities have been described and defined in the Schedule 1 of the EIA Regulations in a non-specific manner (e.g. no thresholds prescribed, general terminology used). The result is that they are open to interpretation. There is no means of screening projects so as to exclude those that are insignificant from an environmental point of view. Any project or proposal that falls within the definition of any one of the Listed Activities must go through the required EIA procedure no matter the size, scale or extent of the project or its location.

6 Note that NEMA section 24(1) places an obligation on organs of state to consider environmental issues in decision-making where there

may be significant degradation of the environment. 7 With the exception of the activity relating to roads or tracks where sensitivity as determined by the relevant authority, is the trigger.

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ISSUE COMMENTS Integration of decision-making

− There have been significant problems due to lack of streamlining of decision-making processes. In the past, decisions regarding land use changes were made in the absence of completion of the EIA.

− In the past, some local authorities issue ‘in principle’ decisions on land use issues prior to the EIA authorization being issued. This means that inadequate consideration is being given to environmental issues in this decision.

− The fact that permission to develop involves more than one regulatory authority is confusing for developers and for the interested and affected parties. In addition, this makes the development application process complicated and has a negative effect on the efficiency in processing applications and decision-making – there are long delays in the process.

− Difficulty has been experienced in streamlining input from Heritage Western Cape, with the EIA authorisation process, due to capacity constraints within Heritage Western Cape.

− There has been concern about the inclusion of planning issues in conditions attached to EIA authorisations (e.g. density, height of buildings etc.), as this is seen as impinging on the decision-making role of planning authorities.

− Planning decisions include conditions with which the applicant must comply, which generally cover issues such as layout, density of development, architectural style, landscaping, boundary treatment and the like. Environmental and heritage resource issues may also be covered. Where a planning approval and an EIA authorisation is needed, the result may be overlapping or even conflicting conditions. This is confusing for developers and I&APs alike.

Priorities for processing applications

− There is little guidance on the criteria to be applied for the prioritisation of applications. Furthermore, applicants sometimes try to use political leverage to ‘jump the queue’. Theoretically, every application is as important as any other one, which is in line with the Batho Pele principles and equity.

− There is concern that the legislation does not provide for a shortened decision-making processes for applications that address crisis or emergency situations for which approval or authorization is required.

− Guidelines to deal with political intervention in the processing of applications are needed.

Appeals − Appeal processes in respect of planning and environmental decisions are not independent. Hence, whether a decision is upheld or not is at the discretion of the Minister concerned.

− There is uncertainty regarding the extent of the MEC’s powers with respect to appeals in terms of the EIA legislation.

− The planning legislation makes provision for appeals to be made to the Province, with the result that the appeal is not being dealt with by the local authority that made the decision. There is potential tension in this regard.

− There is provision for appeals to be made in terms of both planning and environmental legislation. This means there is lack of streamlining in dealing with appeals where both a planning and EIA appeal is lodged for the same development. In the case of the NHRA, regulations must provide for appeal procedures. These various appeal structures, allowed for in the planning can be confusing for appellants and could result in inconsistent decisions, because the appeals are being dealt with by different entities.

Project cycle − There is a need for the legislation to address management of environmental and heritage resources issues throughout the project lifecycle. Currently the focus is on the planning and construction phase. Whilst the Record of Decision often covers construction and operational issues, this has minimal legislative support in the Regulations themselves.

− The EIA Regulations do not provide for a ‘cradle to grave’ approach.

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ISSUE COMMENTS Monitoring and enforcement of compliance

− Due to lack of capacity and inadequate enforcement provisions in the legislation there has been minimal monitoring and enforcement of compliance with the EIA Regulations and with conditions attached to Record of Decision issued by DEA&DP.

− Lack of effective compliance monitoring means that DEA&DP is not fulfilling its statutory obligations in respect of its environmental management mandate.

− Institutional responsibilities relating to the monitoring of compliance with conditions of authorisation are unclear (e.g. responsibilities of applicant, responsibilities of other government departments).

− In cases of non-compliance, DEA&DP has been making use of directives, which is not a particularly effective enforcement mechanism in that if it is ignored a protracted legal procedure is required to achieve compliance with the directive.

− In general, there is also lack of enforcement of conditions attached to planning approvals, which is related to resource constraints within municipalities.

Exemption − There is confusion on the question of exemption in terms of the EIA Regulations as this has been applied in different ways. Initially complete exemptions from the EIA process were being granted but now the Department only considers exemption from some of the provisions of the regulations.

− The EIA Regulations do not make provision for appeals against exemptions. Cost recovery − No fees are charged to applicants for reviewing applications and issuing

authorisations when appropriate.

− Many other approvals (e.g. town planning) have fees attached to them.

3.3 Project Structure In June 2004, the project received formally endorsement by the Provincial Cabinet and the drafting phase commenced in September 2004. The DEA&DP has set up a Task Team, which is responsible for driving the project. Members of the Task Team have been drawn from relevant provincial departments (planning, environment, agriculture, cultural affairs, local government), Heritage Western cape and the South African Heritage Resources Agency. Representation from relevant national departments has been invited. The project team responsible for developing the legislation comprises legal experts and practitioners. This team also includes facilitators and is therefore responsible for coordinating the stakeholder engagement process. The project team reports to the Task Team.

3.4 Stakeholder Engagement It is proposed that a Consultative Forum be established, comprising representatives from government (i.e. national, provincial and local government), social partners (various non-government sectors including business, labour and civil society) and professional organisations. The Consultative Forum will be established early in 2005, with assistance from the Provincial Development Council. It is envisaged that the Forum will meet 4-5 times during the course of the project. These meetings will be linked to key milestones or project deliverables. The purpose of the Forum is to provide a sounding board for the project, to debate issues and to provide comment and input into the project. Consultative Forum members will be expected to keep their constituencies informed about the project. There will also be opportunities for broad-based participation by I&APs through the following:

Input through group discussion at the PSDF Summit on 29 November 2004;

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Meetings/workshops on draft legislation which will be held in the 6 district municipalities in the province;

Regular project newsletters/updates;

Opportunity to comment on draft legislation, which will be linked to a comment and response process (i.e. there will be feedback on how comments have been addressed).

3.5 Project Milestones A project programme has been formulated, with the following key project milestones:

Discussion document to enable input from stakeholders during the conceptual stage of the development of the legislation – November 2004;

First draft of the legislation for comment by the Task Team and Consultative Forum – April 2005;

Second draft of the legislation for comment by the Task Team, Consultative Forum and the broader public/I&APs – September 2005;

Final draft for comment by Task Team and Consultative Forum – January 2006

Once the final draft has been revised on the basis of input from the Task Team and Consultative Forum, it will be submitted to the Provincial Cabinet. The process required for enacting the legislation, includes a requirement to publish a draft bill for public comment. Once this process has been undertaken, the law can be considered by the Cabinet and published as a provincial Act.

4. Objectives of the legislation The Task Team and project team have developed the following objectives for the law reform project.

OBJECTIVE WHAT DOES THIS MEAN? To formulate integrated legislation

− Integrate 3 disciplines / sectors – environmental, planning, heritage

− Include requirements of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) into decision-making.

− Application and decision-making processes (how and what) must be work together / be coordinated.

− Interfaces with existing legislation (and recommend changes to national legislation, where necessary) must be established.

To ensure efficiency − Realistic turnaround / response times from perspective of all parties

− Avoid unnecessary administrative burden

− Avoid duplication

− Optimise use of departmental resources

− Have streamlined and simple processes and procedures

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OBJECTIVE WHAT DOES THIS MEAN? To ensure effectiveness

− Ensure quality information from applicant

− Ensure quality response from authority

− Provide certainty

− Provide for effective PPP

− Have clearly defined roles and responsibilities

− Ensure ongoing management of sustainable developments with “feedback” mechanisms so that the relevant authorizing authority can use the information to ensure effectiveness and to “inform” other applications – “checks and balances”

To promote sustainable development

− Balance between environmental conservation, economic growth and social equity

− Provide for a long term view

− Recognise sense of place and cultural environment – entrusted to this generation to pass on to next.

− Recognise human dependence on natural resources / life support systems

− Prioritise collective interest versus individual rights

− Ensure development that is responsible

− Recognise constraints / limits needed so do not have development for development’s sake.

To ensure co-operative governance

− Ensure co-operation between 3 sectors and the spheres of government involved in decision-making and monitoring and enforcement

− Recognise limits of authority To promote participatory decision-making

− Involve affected government departments and stakeholders/publics as this facilitates ownership of decisions

− Involve stakeholder at ‘big’ level/strategic level, working from bottom up. To promote equity and justice

− Provide for equity between people and state and between groups of people

− Provide for equal treatment of all parties (e.g. appeal processes)

− Provide for empowerment of communities To write clear legislation

− Use clear, uncomplicated language

− Make sure definitions are unambiguous

− Ensure a clear logical structure of the law

5. A ‘straw dog’ – Some Ideas on the Content and Structure of the Proposed Legislation

This section sets out ideas regarding the structure and content of the legislation and covers the following:

Definitions

Principles Institutional arrangements Process/Procedure for plans, programmes and policies Process/Procedure for development applications Roles and responsibilities Authorisation process

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Decision-making

Review and appeal process Compliance monitoring and enforcement Transitional provisions

The focus of the legislation is on the process or procedures relating to strategic-level activities (i.e. plans, policies and programmes) and project or site level activities. At this stage it is envisaged that the Chapters that deal with requirements relating to authorisation, decision-making, compliance monitoring and enforcement and appeal and reviews procedures will cover both of these aspects (i.e. strategic-level and project-level). Whether this will work effectively from a practical point of view can only be ascertained once drafting of the legislation is undertaken.

5.1 Chapter 1- Definitions Definitions of terms used in the legislation, including any Schedules, will be dealt with in this section. The focus will be on giving clear, unambiguous definitions and providing definitions that are linked to sections of the legislation will be avoided (e.g. an activity is an activity as defined in section xx of the Act).

5.2 Chapter 2 - Principles This chapter will cover the principles that underpin the provincial legislation. These will be drawn from the Constitution, relevant policies and statutes, provincial policies and strategies (e.g. iKhapa elihlumayo, the Provincial Spatial Development Framework, Cape Action for People and the Environment - CAPE) and feedback received from stakeholders. Guiding principles will be firmly rooted in sustainable development. Whilst these are universal, they are broad, wide-ranging and open to interpretation. Essentially the principles given in this Chapter will provide the framework within which decisions must be made, meaning that they must be borne in mind and guide the decision-maker when ‘applying the mind’ to a decision. Accordingly it will be necessary to consider providing some form of guidance as to how the specific principles should be interpreted and how they will be applied in the decision-making process. It is also necessary to consider how they will be reflected in the decision (i.e. how they were taken into account in making the decision) so as to enhance the principle of transparency and accountability. These principles cannot be mutually exclusive – they will need to be considered together, which will add complexity to the decision-making process, when balancing one principle against another

5.3 Chapter 3 – Institutional Arrangements and Issues It is proposed that Chapter 3 will deal with the powers and functions of the parties involved in making decisions about planning, environmental and heritage resources matters. Currently, decision-making parties are the DEA&DP (planning and environment), Heritage Western Cape (heritage resources) and the municipal (and sometimes provincial) sphere of government (planning), as well as the DEAT and local authorities with regard to the OSCA Regulations (Outiniqua Sensitive Coastal Area), and DEADP with regard to section 38 of the NHRA (if an EIA is being undertaken under the EIA regs). These powers and functions are derived from the constitutional obligations and the proposed integrated legislation must be cognisant of the decision-making mandate of the respective spheres of government. Account will need to be taken of:

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The authority provided for in NEMA and the NHRA and the decision-making powers of the province in respect to environmental and heritage matters, respectively. This will also need to take national competencies in relation to these matters into account.

The decision-making role of municipalities in the land use management and planning arena.

The cooperative governance requirements which include provisions of effective, transparent, accountable and coherent government and respecting the powers, functions and institutional integrity of the respective spheres of government.

In addressing institutional arrangements, it will be necessary to provide clarity on the circumstances under which applications must be submitted to the relevant national Department and which applications will be handled at a local authority level. The question of delegation of decision-making on environmental and heritage matters will have to be addressed with caution, given the potential for local government to be the “player” and the “referee”. Hence delegation of authority to local government to deal with certain applications should probably be highly specific and limited. Provision may need to be made for the province to develop policies, minimum requirements or norms and standards for dealing with applications at municipal level.

5.4 Chapter 4 – Strategic Process/Procedure Legislation in relation to the development of plans is relatively complex, with several Acts containing sections that deal with this issue. For example, planning legislation (Local Government: Municipal Systems Act, 32 of 2000) provides for the formulation of integrated development plans (IDPs), including a spatial component (spatial development framework) and the interface with this process will need to be addressed. Furthermore, there are provisions relating to plans in NEMA (for example, the Environmental Implementation Plan) and the recently promulgated National Biodiversity Act (Act 10 of 2004) includes provisions for different types of plans. Consideration will also need to be given to provincial-level initiatives such as the Provincial Spatial Development Framework (PSDF). It is envisaged that this chapter will deal with regional planning, which is a provincial responsibility and that it should support effective municipal planning, thereby giving effect to the Province’s constitutional obligations. Ultimately, the objective of this chapter will be to set out a process both for formulating and evaluating plans, policies and programmes. This chapter will, therefore, be concerned with providing a proactive approach to facilitate responsible development. It is necessary to ensure that provision is made for a consultative approach in developing plans, programmes or policies. Furthermore, the objective is to direct development to appropriate areas. It is envisaged that provision will be made for the formulation of plans that have a spatial component, together with objectives, an implementation approach and monitoring and evaluation mechanisms. It will be necessary to ensure that the relationship between this strategic-level process and individual development proposals and activities is clear. Consideration needs to be given to whether a development proposal (such as a project on a particular site) if aligned to an approved plan, should be fast-tracked (i.e. it has a shorter evaluation process). A key element of this chapter, therefore, is likely to be to make provision for the formulation and regular review of strategic plans (that are spatial in nature) to ensure that they are always current, based on sustainable development principles, within which development proposals at a local, project or site-specific level can be considered.

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This Chapter will be supported by Schedules that will set out the circumstances (‘triggers8) under which the requirements of this part of the legislation will be applicable. Consideration will need to be given to the format of these ‘triggers’ and definitions to ensure that they are clear, will have to be provided.

5.5 Chapter 5 – Process/Procedure for development applications Chapter 5 will set out the minimum requirements for the process applicable at the project or site level development proposals, taking cognisance of NEMA section 24(7), NHRA sections 34 and 38 and relevant planning legislation. An outline with explanatory notes is provided in the form of a flow diagram. It is envisaged that this chapter will provide the framework for the process, rather than being so specific that it will be onerous to administer – over regulation must be avoided. This means that it should not specify activities in a purely sequential manner – rather it should focus on the requirements that need to be fulfilled to provide sufficient and adequate information to facilitate informed decision-making. Consideration will need to be given to providing for a simplified process for projects that fall within the area covered by an approved plan or development programme/strategy (Refer to Chapter 4). Issues such as minimum requirements for identifying and assessing alternatives and for dealing with cumulative impacts will need to be considered in formulating this chapter. The assessment process will comprise several steps and initial thinking in this regard is as follows:

Application and screening process, which will make provision for the screening of an application, to determine which route it should follow. Depending on the complexity of the project and/or the nature of the receiving environment9 the process will vary from simple to detailed. Applications will be considered and, based on a range of factors10, will be categorised as requiring no assessment, standard impact assessment or requiring complete or full assessment. Provision can be made for the submission of additional information for applications that involve a standard or simple project, but where such information is needed to enable a final decision about the assessment route to be made. It is proposed that a constraints and opportunities analysis11 will also form part of this phase. Consideration is being given to developing the ‘triggers’ in such as way as to be able to allocate an application to a particular assessment route. Provision for a shortened process and hence, prompt decision-making where a project is in line with an existing approved regional plan, programme or strategy needs to be considered.

Scoping process, which will focus on “issues gathering” and the minimum requirements for public participation. This will form the first step in a full assessment process (i.e. for project that are allocated to the full assessment route).

8 The use of the term ‘triggers’ refers to the criteria, specifications or factors that will cause the process set out in the legislation to be

activated. ‘Triggers’ determine whether the legislation is applicable or not. 9 Note that the receiving environment refers to the planning, environmental and heritage resources environment. Similarly, impact

assessment means the evaluation of the implications of the development proposal in terms of planning, heritage resources and environment.

10 These factors include consideration of existing land use rights, alignment with existing plans, the location of the project relative to known sensitive environments and the nature of the proposed development (scale of development, emissions, resource use)

11 This will involve reviewing existing information sources to identify ‘red flags’. It will not be a detailed specialist study. It should be seen as part of the feasibility study (which tends to focus on financial aspects) phase of the development, and should be undertaken as part of this exercise.

Assessment process, which will set out the minimum requirements for impact assessment and public participation. The impact assessment requirements will be relevant to all three disciplines, namely, planning, heritage and environment.

This Chapter will be linked to schedules, which will provide the triggers for site-specific or project-level applications (i.e. set out clearly when an application will be required). The schedules will cover triggers for applications in respect of planning, heritage and environmental approvals/authorisations/permits/licenses. This ‘triggers’ should provide clarity in this regard. It is envisaged that the schedules will cover:

A list of projects/activities/proposed actions that require authorisation/approval;

A list of characteristics (environmental, heritage and planning), where approval will be required for development proposals within these ‘environments.’

This approach is in line with best practice both in developed and developing countries. It must be noted, therefore, that depending on the nature of the proposal, it may require assessment in terms of planning, environmental and heritage resources issues or any combination of these three areas. The triggers must be stated in clear terms and definitions provided where relevant, to ensure that they are not open to interpretation. Another factor that will require consideration in formulating this chapter is that of whether to set thresholds or not. The notion of setting up the ‘triggers’ in a way that allows development proposals to be allocated to an assessment route upfront has been mentioned. This could be achieved through setting up the schedules in the following format:

A schedule of projects and land uses, which are known to have significant consequences (generally large scale and complex developments) and would therefore require full assessment.

A schedule of known/designated sensitive environments (based on heritage resources, environmental or land use characteristics) and would therefore require full assessment.

A schedule based on a matrix approach specifying projects and land uses in relation to characteristics of the receiving environment (planning, heritage resources, environment), which would serve to allocate projects to a standard assessment or no assessment12 route.

The schedules will provide the key mechanism for determining the circumstances under which an application (and hence approval/authorisation) will be required. In this regard, depending on the nature of the application, approval may only be required in one (e.g.. planning) of the three areas covered by the legislation. It is envisaged that the process will be the same, no matter whether only one or all three approvals are required (i.e. one process for all 3 disciplines, not 3 separate processes). In addition, it is proposed that there be a catch-all provision which will allow authorities to request an impact assessment in circumstances where the proposal does not fall into any of the Schedules (i.e. it does not ‘trigger’ the legislation) but the authority considers an assessment to be necessary. Such a catch-all could be framed in a proactive way, in the same way that section 24(1) of NEMA currently is.

12 It must be borne in mind that even if an application is allocated to the no assessment or standard assessment route, the project could

be re-allocated due it being determined, on the basis of information provided in the application, that this route is not appropriate.

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5.6 Chapter 6 - Roles and Responsibilities Chapter 6 will deal with the roles and responsibilities of the applicant/developer, the regulatory authority and the relevant professionals/consultants. It will also set out responsibilities for the appeal phase. Clarity on the responsibilities of the applicant and the consultants or professionals13 involved in applications in respect of this legislation must be provided. On the part of the decision-maker, the key responsibility is that of “applying of the mind” when making the decision, an issue that has a clear link to that of competency, as discussed in Chapter 3. In addition, the role and responsibility of interested and affected parties (I&APs) could be addressed in this chapter. The applicant, regulatory authority and the environmental professional have distinct roles and responsibilities, whilst that of I&APs is less easy to define as there can be wide-ranging groups with many different views and expectations. It is necessary to provide certainty for all parties regarding what is acceptable conduct and what is not. Attempts to address this issue have been considered elsewhere, for example, at a governmental level there is the Aarhus Convention (Norway). There are also various examples at an industry level, from which criteria and principles could be drawn. A Code of Conduct could be included in a Schedule to the Act. One of the considerations arising from this chapter is that of whether a system of penalties/fines should be provided for in the enforcement chapter to deal with non-compliance with these responsibilities.

5.7 Chapter 7 – Authorisation process It is proposed that this chapter will deal with the authorisation process and will therefore need to address the following:

The processing of the application by the three areas encompassed by this legislation (planning, environmental and heritage resources), such as the sequence for the handling of applications. Liaison between the three disciplines involved in the decision-making process (i.e. environmental, planning and heritage resources) will have to be addressed such that a streamlined and efficient process results.

The interface between: − provincial and local government decision-making, where a decision is required from

both levels of government (e.g. planning decision at local government level and environmental decision at provincial level);

− provincial and/or local government decision-making and that of agencies that are involved in decision-making (e.g. Heritage Western Cape);

− provincial and/or local government decision-making and national government decision-making.

5.8 Chapter 8 - Decision-making This chapter will deal with the form of the decision, its content and requirements in terms of altering the conditions attached to a decision (for project-level decisions) or for changing approved plans, programmes or policies.

13 A question that needs to be addressed is that of the independence of the professionals concerned. This will require consideration of

certification requirements and the examination of issues related to the appointment and payment of professionals.

Accordingly, for project-level decisions, the following will need to be addressed:

The form of the decision, that is, whether it will be a permit, licence, approval or authorisation with or without conditions of approval attached.

The manner in which the three areas (environmental, planning and heritage resources) that are covered by the decision will be integrated in to one decision covering all three areas (e.g. one decision covering the three areas or three decisions issued concurrently).

Making provision, for the decision to deal with all phases of the project – construction, operation and decommissioning. Hence, the decision should cover the monitoring and reporting requirements14 that the applicant/developer needs to fulfil.

Making provision for a mechanism that enables conditions to be changed15.

Incremental decision-making, which is of particular relevance where linear developments are being proposed in phases over several years or where developments will pass through a conceptual design and detailed design stage16 (e.g. package of plans approach). Hence, the legislation may need to make provision for a hierarchy of decisions to enable developers to obtain an appropriate level of certainty at key stages in the project.

The manner in which differences in decision-making and conflicts between decisions will need to be addressed. Conflict resolution mechanisms may need to be provided. In addition, it will be necessary to set out the decision-making result, if there is a rejection of the application by any one of the three disciplines (i.e. planning, heritage or environment). In this regard, if one of the three areas does not approve the application, then the overall result will be refusal of the application. Decision-making regarding plans, programmes and policies is a relatively complex issue to address since there are many laws that require plans to be developed, as explained in Section 5.3. Hence, decision-making will need to take account of the responsibilities and mandate of different organs of state. It is preferable to have a system whereby all the relevant authorities approve a plan, policy or programme that has a bearing on land use management, heritage resources and environment (e.g. a spatial plan for a region is subject to approval from all three authorities). The manner in which changes to approved plans, programmes, policies or strategies should be dealt with, will also need to be addressed.

5.9 Chapter 9 – Review and Appeal The appeal process must cover decisions made in respect of Chapter 4 and 5. A key issue that needs to be addressed in respect of the appeal process is that of independence. In the case of heritage approvals, the decision itself is made by an outside body, which brings a level of independence into the process (i.e. Heritage Western Cape).

14 This would include provisions for negotiation between the project proponent/applicant and the regulatory authorities when

circumstances dictate that permit conditions need to be changed. 15 Such changes include the removal or addition of conditions that are no longer valid (e.g. due to changes at a facility such as removal of

a chemical from a production process) or for making conditions more or less stringent in response to changed circumstances (e.g. environment has degraded over time, so more stringent conditions are required).

16 This is fairly common in change of land use developments where the “package of plans” approach is adopted, or in cases where rezoning to subdivisional area is being considered.

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It is envisaged that the review and appeal process will be based on the principles of independence and objectivity and the necessary technical expertise to make a sound decision . Hence, the appeal mechanism should involve a review body (e.g. Appeal Panel) consisting of a pool of experts in the different sectors who could be drawn on depending on the nature of the appeal. It will be necessary to determine if the independent body will make the final decision on the appeal, or whether its role will be to advise the relevant MEC. In terms of independence, the former option can be considered to be preferable. Finally, consideration could be given to making provision for a fee to be charged for appeals – this must, however, take account of access to the appeal process by impoverished parties.

5.10 Chapter 10 – Enforcement and Penalties Enforcement of legislation is an ongoing challenge in South Africa. Given the current resources of the Department, extreme difficulty is being experienced in this area. Whilst enforcement provisions are critical, these need to be focused and specific so as to avoid imposing a significant administrative burden on the Department. Enforcement in relation to project-level decisions should focus on at least:

Provisions relating to compliance with the legislation, namely the Act (and associated policies/guidelines/norms and standards).

Compliance with the decision, that is the approval/permit/authorisation that results from the procedures set out in this Act.

Consideration needs to be given to the question of self-regulation, which could be linked to incentives (financial or otherwise). The consequences of non-compliance should be sufficiently onerous to encourage compliance (i.e. make non-compliance not worth it) and must include responsibilities associated with remediation/rehabilitating damage to the environment in cases where development is taking place illegally or the conditions associated with the permit/approval/authorisation are not being met. Consideration could be given to providing for a system of spot fines, although it is unlikely that these could be set at a level that will serve as a deterrent to non-compliance. LUPO does provide for a contravention levy and a similar model could be considered. Two key issues need to be addressed with regard to the financial side of enforcement:

The requirements to enable departmental officials to issue fines (applicable only if a system of fines is introduced), including their status as law enforcement officers;

The question of retaining funds that arise from fines within the Department.

Enforcement in relation to approved policies, plans and programmes is less clear. It is envisaged that the focus will need to be on preventing ad hoc changes to these. Accordingly, the focus with respect compliance monitoring and enforcement may need to be placed on specifying the reporting requirements on how the plan, policy or programme is being implemented and what is being achieved in terms of the objectives or goals set out in the plan, policy or programme.

5.11 Chapter 11 – General and Transitional Provisions The question of transitional arrangements needs to be addressed to set out the requirements for dealing with applications that the DEA&DP is processing under the old regulatory regime (i.e. the national EIA Regulations, the NHRA and LUPO/PDA). The types of issues that will need to be addressed in this chapter include:

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The handling of existing applications.

The status of existing authorisations, particularly from an enforcement perspective.

The form of the decision for existing applications.The manner in which issues related to NEMA law reform, if incomplete, will be handled.

It will also be necessary to specify which provincial legislation, if any, is being repealed in terms of this Act.

6. Points for consideration The Project Team and Task Team have identified various points that require consideration in the course of developing the legislation:

The role of policy and guidelines decision-making and the legal standing of these (i.e. give some ‘legal teeth’).

Independence of consultants/practitioners involved in evaluation of planning, heritage and environmental issues related to applications.

Quality of information provided by practitioners.

Formulation of ‘triggers’ for the legislation, such that applications are allocated to a particular route (i.e. detailed or simple process).

Provision of a simplified process where planning is in place.

Consideration of cumulative impacts/effects.

Provision of incentives.

Provisions to ensure effective compliance monitoring and enforcement.

Integration of biodiversity into planning.

Approval attached to a site, not the developer.

Time period for approvals and response from Department during the process.

Existing land use rights.

Alignment of process where decision-making involves more than one sphere of government.

Nature/form of the decision (permit/authorisation/approval) to cover heritage resources, environment and planning.

Decision-making body/structure and process.

Interfaces with national and municipal decision-making responsibilities (ensure the provincial law does not impinge on these).

Mechanism to change conditions of approval.

Conflict resolution mechanisms.