22 Oct The Legal and Environmental Fallout of Poor Planning

Posted at 13:01h in Environmental Matters, Legal Articles by Adv. Samantha Jane Martin

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Interesting outcome from the SCA in a matter where I prepared the original application for Bankenveld HOA together with briefing attorney, Van Heerden & Brummer Inc.

At the stage when I pulled in, the township had been proclaimed and a luxury development was already established without any municipal provision for sewer to residents. The development was authorised at Local Level on the premise of a “private sewer system” to be provided by the developer and with municipal services not immediately available. At the time that papers were drawn, there was a mass implosion of service delivery in terms of sewer management, presenting a substantial risk to human and environmental health. This case for me encapsulates the principle that environmental law is essentially about service delivery. And the most immediate form of service delivery in a sustainable manner lies with municipalities. Poor development planning at a municipal level and chronic over-development without holistic assessment of critical infrastructure services, are presenting fertile ground for disputes about responsibility. This matter is also a warning to developers, that the responsibilities recorded in a township application and in a township approval may come back to haunt you, several years down the line.

“[39] There are, however, two fundamental problems with that argument: First, Elmir expressly undertook to construct and operate the plants. It is for this reason that the application was approved subject to condition 2.8 that the activated sludge water reclamation should be installed and operated in a functional condition at Elmir’s costs. Second, in Elmir’s letter to the municipality, dated 5 February 2008, wherein it applies for the amendment of the conditions, it specifically quoted condition 2.8 and stated that, ‘[t]his condition is acceptable to Elmir as developer.’ It then proposed that the township establishment conditions should be amended, effectively to transfer to the Bankenveld HOA the responsibility to operate and maintain the sanitation system, leaving it only with the obligation to construct the plants. But that proposal was emphatically rejected by the municipality and Elmir could therefore not have been under any illusion that it had been relieved of the obligations to operate and maintain the plants.”