A Stinky Problem

 

The following is a response to the City of Cape Town's call for comments on its proposal to extend permits for effluent outfalls at Camps Bay, Green Point, and Hout Bay. This is an extended version of comments submitted to the City.

The City of Cape Town’s proposal to continue piping minimally treated urban wastewater into the open ocean does not meet the requirements of the law and undermines local and national efforts to protect public health and Cape Town’s highly valued coastal ecosystems. The City’s own documentation refutes the City’s assertion in the application that impacts are “minimal” and “insignificant,” and instead suggests both significant impacts to public health and the environment as well as serious gaps in the City’s understanding of the full effect of these impacts. It is therefore incumbent upon the Minister of Forestry, Fisheries and the Environment to deny the City’s renewed application for coastal waters discharge permits related to three existing marine effluent outfalls located in Camps Bay, Green Point, and Hout Bay.

 

The law is clear regarding the government’s duty to protect the public from the environmental and health effects of discharging harmful materials into the open ocean. The Integrated Coastal Management Act, No. 24 of 2008 (“Act”) was passed in order to “preserve, protect, extend and enhance the status of coastal public property as being held in trust by the State on behalf of all South Africans, including future generations.” Act s2(c). Likewise, the National Environmental Management Act, No. 107 of 1998 (“NEMA”), provides that the environment “is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.” NEMA s2(o). Moreover, NEMA expressly notes that “sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores . . . require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.” NEMA s2(r).

 

To ensure its goals are achieved, the Act requires a permit to be approved in order to allow for discharge of effluent from land into coastal waters. Act s69(1). In approving an application, the Minister must take into account all relevant factors, including the interests of the community as a whole, coastal management programmes applicable to the areas, and the cumulative effect of the proposed disposal together with other discharges. Act s69(7). The Minister may not grant an application where the discharge is likely: (a) to cause irreversible or long-lasting adverse effects that cannot be satisfactorily be mitigated; (b) to prejudice significantly the achievement of any coastal management objective contained in a coastal management program; or (c) to be contrary to the interests of the whole community. Act s69(8).

 

The evidence reflects that impacts of effluent discharge from the outfalls at Camps Bay, Green Point, and Hout Bay is contrary to the interests of Capetonians because the City’s own evidence shows it is causing significant and long-lasting impacts without any foreseeable plan or means for mitigation. The discharges also appear to significantly hinder achievement of a coastal management objective contained in the City’s Coastal Management Programme.

 

While the City’s application characterizes the impacts of the discharges as “minimal” and “insignificant” based on a 2015/2016 CSIR study (“Study”), these characterizations are contradicted by the Study itself, which unequivocally concluded that (1) the outfalls do negatively affect the environment and public health, and (2) that these impacts contribute to conditions that posed a significant risk to people and the environment. Study pp. 224-25. For example, the Study calculates that toxic amounts of ammonia and suspended solids exist within the direct plume of the outfalls, affecting those ecosystems. Study p. 224. The Study also found that outfall areas were contaminated by polychlorinated biphenyls (“PCB”), a highly carcinogenic chemical compound that the Study indicates are attributable to effluent discharge. Study p. 225. The Study also determined that counts of faecal indicator bacteria were “high enough to suggest a significant periodic risk to humans recreationally using nearshore and shoreline waters.” Study p. 225. See also Study p. 126. While the Study could not determine the outfalls as the sole source for these bacteria, it does not refute the outfalls role as a cumulative impact on Cape Town’s shores. See Act s69(7).

 

Notably, the Study does not conclude that the overall impacts of the outfalls are insignificant or minimal as claimed by the City, and in fact the Study’s conclusion suggests that these impacts are in fact significant. The Study concludes that “based on the findings of the surveys documented in this report these scientists are of the opinion no immediate ecological disaster is imminent as a result of effluent discharge through the Cape Town outfalls.” Study p. 224 (emphasis added). An impact does not need to imminently result in immediate ecological disaster in order to be considered significant warranting cessation or prohibition (take, for instance, the banning of carcinogenic BCPs). Study p. 224. In short, the Study’s statement admits the impacts’ significance by omission.

 

Indeed, the Study’s avoidance of making any pronouncement regarding the significance of the impacts is itself a major red flag. The Study’s states “[i]t is not the prerogative or the responsibility of the scientists that prepared this report to decide on what constitute major ecological impacts and human health risks in the context of effluent discharge since this may differ from one person to another.” Study p. 224. Yet this is precisely what the Study’s findings are used by the City to represent. Presumably, if there were no significant impacts, the Study would have no problem stating as such even in a qualified manner.

 

Similarly, the Study’s repeated disclaimers regarding the lack of sufficient information with which to make definitive determinations is deeply troubling and, following the precautionary principle, suggests that environmental and health impacts should be considered significant until proven otherwise. See, e.g., Study pp. 125-26 (discussing inability to disassociating the sources of faecal indicator bacteria counts).

 

Even with the uncertainty indicated, the Study’s findings raise conflicts with existing management plans and programmes for the area, which the City leaves unaddressed. For example, the Study notes that “[t]he analysis of long-term trends in faecal indicator bacteria colony forming unit counts in seawater samples collected at 40 shoreline sites in Table Bay and on the Atlantic seaboard of the Cape Peninsula revealed that colony forming unit counts of E. coli and faecal streptococci exceeded guidelines for the Blue Flag programme at all sites.” Study p. 125. The Blue Flag programme refers to a voluntary international eco-certification programme managed by the Danish-based Foundation for Environmental Education. The programme awards municipalities with Blue Flag designation for beaches and marinas that meet strict criteria addressing water quality and environmental management and safety. Compliance with Blue Flag requirements in order to achieve Blue Flag status is one of the aims of Cape Town’s Coastal Management Programme (see Chapter 18). The discharges from the outfalls impede achievement of this element of Cape Town’s Coastal Management Programme, thereby barring permit approval under Section 69(10) of the Act. Continuation of the outfalls also appears to contradict SANPark’s Cape Town Marine Protected Area. Table Mountain National Park Park Management Plan p. 86 (citing sewage effluent dispersal systems as a “major risk” to the Marine Protected Area).

 

Even with qualifications, hedging, and lack of sufficient data to make fully informed conclusions, the Study attached to the application is clear that it is unacceptable to continue the status quo in perpetuity: “It is nevertheless clear the world cannot use the marine environment as a waste receptacle in perpetuity and opportunities for improved and economically and environmentally feasible wastewater treatment, and the feasibility of using alternative strategies for disposing of wastewater to the marine environment should be investigated by the City of Cape Town.” Study p. 225. Yet there are no conditions or commitments attached to the permit application whatsoever. Given the authority provided under the Act to approve permits “subject to any condition contained in the relevant authorization,” Act s 69(6)(c), (10), it would be irresponsible and contrary to law to grant the permit without, at the very least, conditions in line with the Study’s conclusion. Conditions would, at a minimum, provide for enhanced monitoring and a concrete, workable plan to transition towards treating the outfall effluent.

 

Contrary to what the City’s Study states, the pollution that the City discharges from the effluent outfalls at Sea Point, Camps Bay and Hout Bay are not “a price that must be acknowledged for the privilege of using the sea . . . as a receptacle for wastewater.” Study p. 224. Instead, such discharges are an unacceptable degradation of the environment held in trust by the government for the people of South Africa. As the City’s own experts note, this situation cannot be perpetuated, and the City must take steps towards treating the outfall effluent. Short of such action, the City’s application permitting continued pollution must be rejected.

Cape Town's Waste(d) Opportunity

 

The City of Cape Town’s (City) most recent integrated waste management draft plan announces some ambitious and commendable goals for shifting towards a more efficient and sustainable system of managing the city’s material flows. Unfortunately, the strategies meant to implement these goals appear to lack substance or detail, and the proposed allocation of financial resources disproportionately favors status quo processes rather than supporting new needs. To achieve success in shifting Cape Town’s relationship with waste, the City must advance and support new approaches and partnerships that stand the best chance of executing the City’s vision.

From Waste to Reuse, the City’s Waste Plan Envisions an Ambitious, and Much Needed, Shift

The draft plan envisions re-orienting municipal waste management by diverting as much solid waste as possible as close to the source of its generation as possible, with particular focus on organic materials and packaging. The idea is to reduce the energy, space, and capital needed to handle waste under the current system, and to reinsert “waste” materials into processes where they can be transformed back into useful and valuable resources. This effort is driven by overburdened landfills and the recognition that avoiding the generation of waste is beneficial ecologically and economically.

The focus on diverting organic and packaging materials is sensible, since these types of materials make up a significant proportion of the overall waste stream and can be converted into valuable new products if properly handled and managed. Organic solid waste composed primarily of plant clippings and food scraps, which according to the draft plan make up 29% of current municipal solid waste flows by mass, is the elemental ingredient for producing compost. Compost in turn is a necessary and valuable input for farming, which grows the food we eat. Packaging is generally composed of materials such as paper and plastic that may be recycled into new products. The draft plan estimates that recyclables make up 35% of municipal solid waste streams. When organic matter and packaging end up sitting in landfills rather than being transformed and recirculated as productive materials, it constitutes a needless and costly loss of valuable material resources and a missed opportunity to promote efficiency and generate employment. In contrast, reuse of these resources can promote food and water security, energy and resources efficiency, and local job creation.

The draft plan’s goals for diverting resource streams from landfills reflect the type of forward thinking necessary to confront the environmental and economic challenges posed by waste management in the city. The draft plan’s strategic deliverables include adoption of the National Waste Management Strategy’s goal of 40% waste diversion from landfills by 2020, increasing to greater than 70% diversion by 2035. Additionally, the draft plan adopts the Provincial waste diversion targets of 50% diversion of organic waste from landfills by 2022 (i.e. next year), increasing to 100% diversion within the next five years. To put this in context, according to the draft plan statistics, the amount of garden greens that the City currently processes for composting constitutes roughly a mere one percent of the total volume of garbage headed to the landfill. These are ambitious targets that are fitting for the type of wholesale shift that is required to right-size the flow and management of urban materials and resources.

In conjunction with ambitious targets for waste reduction, the draft plan proposes to utilize both larger centralized waste facilities and smaller drop-off facilities to “maximise diverted organics and packaging waste,” as well as increase “collection at source” services through reliance on a combination of commercial contracts, business initiatives, entrepreneurs, trash pickers, and small, medium, and micro-enterprises. Building and adjusting Cape Town’s solid waste infrastructure to account for diversion closer to the source of their generation is common sense, and the distributed nature of waste production leads naturally to investment in facilities that are adjusted to meet local needs. Where individual households and businesses produce more waste than they can reasonably process themselves through household composting and reuse of packaging, the City should support connections with the many re-users and processors of such waste, including farmers, commercial composters, waste pickers, and packaging manufacturers.

A Vision Without a Plan

Unfortunately, while the goals of waste diversion are clearly stated, the strategies for implementing these plans are largely absent and poorly articulated where present. Although the draft plan provides for wide scale diversion of solid waste through recycling and composting at drop-off facilities, supported by small business participation, there is absolutely no detailed proposals for how these arrangements will be pursued or implemented.

In fact, the draft plan suggests that current largescale contractors will have both the incentive and capacity to “support and bring the benefits of economies of scale to small operators”. In essence, the draft plan assumes that it is in the interest of the city’s largescale contractors to move away from centralized waste disposal and towards a decentralized diversion model, when these large-scale contractors’ methods suggest the opposite.

The City’s plan for diversion of organic materials from waste streams meanwhile argues for “large scale clean organic waste treatment facilities” at existing large facilities, although the draft plan hopefully suggests that “it is anticipated that there will be strong market demand for clean organics that may obviate the need for [the City’s] developed facilities.” This sounds more like a hope and a dream than a plan for diverting organic materials from overtaxed landfills.

Money Talks

The budget numbers presented in the draft plan reflect that the City is doubling down on status quo solutions, rather than pursuing a shift in priorities. Capital operating expenses projected for the next five years appear to allocate twice as much money towards large facilities as they do small ones. Even more concerning, projected operating expenses linked to these capital expenses for large projects outspend operating expenses devoted to smaller facilities ten to one. One would expect these figures to be reversed if the stated priority of decentralization and waste diversion were to be achieved.

Small-scale facilities will need to be the workhorses of the city’s new resource management framework, and the budget should reflect that. Programs for diverting organic waste and packaging will likely require focusing on investing in partnerships and processes rather than capital projects.

Support for New Productive Relationships is Needed

Ultimately, the City needs to focus more on how it can generate, facilitate, and support the relationships and partnerships needed to execute on the City’s vision. A decentralized system will require development of networks that can work together to create the sort of cyclical processes that are desired. The City’s role will be critical in ensuring these connections are made through shepherding stakeholders and building relationships.

To provide one example of new potential productive relationship, organic materials diverted from landfills could go towards supplying compost for local farmers, which will support Cape Town’s fight against food insecurity and for urban resiliency. Support of small urban and peri-urban farms, which are located closer to urban residents and also provide new livelihood opportunities, are naturally situated to both contribute to and benefit from the City’s new vision for resource management. The compost needs of even a small one acre peri-urban farm are sizeable, requiring 20 cubic metres of compost per month, but securing commercial compost is costly. Costs obtaining adequate compost de-incentivizes farmers from switching to regenerative farming techniques, which produce better quality food. Reliance on locally produced compost also mitigates farming’s environmental and climate impact. Local small-scale farmers need the appropriate support to jumpstart this virtuous cycle.

Properly equipping drop-off facilities to handle organic matter in a manner that allows for composting, finding partners to manage this process at various facilities, and connecting these processes and facilities with local farmers can help eliminate waste and generate a valuable resource to boost local food production and local industry. This is the type of planning that needs to show through in the City’s waste management plan.

[Submitted as part of the public comment process to the City of Cape Town on behalf of the PHA Food and Farming Campaign.]

Inclusionary housing in the Western Cape: a new policy, and the risk of doing nothing

 

The stain of Apartheid has left an indelible mark on South African communities. The spatial segregation of people based on race, a foundational aspect of the Apartheid regime’s policy and ideology, is still jarringly present in the Western Cape. Indeed, while inclusiveness is a fundamental principle upon which the new South Africa has been imagined, the exclusionary character of many communities in the Western Cape is as bad as ever more than 25 years after the beginning of democracy in this country. Urban land markets are now perpetuating and exacerbating the unequal and segregated nature of South Africa’s cities, undermining societal principles and limiting the opportunities afforded to urban inhabitants.

The Draft Western Cape Inclusionary Housing Policy Framework May 2021 (“Framework”), under consideration now, is a welcome and overdue step towards establishing mechanisms that guide urban development, redress historical inequalities, and create an integrated and inclusive society. Without taking this and other steps, the Western Cape Provincial Government (“Province”) risks failing to satisfy its constitutional and legal obligations.

Historically in South Africa, planning and land use laws and policies were used expressly to exclude and segregate people based on race, resulting in some of the most extreme urban segregation in the world. This effect, while no longer legally enforced, is now enforced through the market. In the Western Cape, as is the case elsewhere in South Africa and in many other parts of the world, urban land markets entrench historic segregation and inequality with respect to access to the benefits of the city. It is therefore necessary to address the issue of affordable housing in order to dislodge the exclusionary character of these communities. Inclusionary Housing (“IH”) is one such tool.

IH policies originally developed as regulatory land use tools to expressly counter policies and practices that were historically used to exclude access to housing in areas based on race and class. As the Framework notes, while intimately tied to housing, IH is a land use policy at heart, and it may be used to direct and guide land use for the greater public good, just as other land use and zoning policies may do so. Such regulations are an evolution of the law in response to the needs and prerogatives of modern cities, and are now as well established as other older legal means of restricting land use, such as nuisance and trespass.

South Africa’s Constitution and national legislation empower, and arguably obligate, the Province to take steps like the Framework to address inequitable access to housing. South Africa’s Constitution, the supreme law of the land, guarantees the right to adequate housing, and mandates that the government take reasonable legislative and other measures within its available resources to achieve the progressive realization of this right (s26). South African courts have confirmed that the right to housing goes beyond actual “bricks and mortar,” and includes planning and land use regulation and policy. South Africa’s Constitutional Court has interpreted the government’s responsibility under the Constitution broadly with respects to redressing historical inequality and ensuring equitable access to basic rights, such as housing.

The national planning framework, provided by the Spatial Planning and Land Use Management Act (“SPLUMA”), specifically adopts as guiding principles and policy goals addressing the planning legacy of racial inequality and segregation and promoting social and economic inclusion through planning (see preamble, ss 3(b), 3(f), 7). SPLUMA requires implementation of land use schemes that promote the inclusion of affordable housing (ss 24(d), 28). As the Framework notes, SPLUMA also specifically authorizes provincial IH policies and requires municipalities to implement such policies through identification of the spatial parameters for implementation (see, s21(i)). Implementation of the Framework, if expressly adopted as the Province’s IH policy identified in s21(i) of SPLUMA, would help give greater effect to the provisions provided in SPLUMA and strengthen the legal basis upon which municipalities could pursue local IH policies.

Housing and development policy entails overlapping spheres of authority by municipal, provincial, and national sphere of government. Housing and urban development are expressly included within the ambit of Provincial competence, while municipalities are responsible for municipal planning and local land use regulation. The Province is tasked with regulating the exercise of municipal functions. The Framework properly acknowledges the central role that municipalities must play in tailoring IH policies to meet the particular circumstances of their jurisdiction, and it provides the needed flexibility to allow municipalities to address their particular context.

A critical contribution of the Framework is to set a clear path for municipalities seeking to implement IH policies. As noted by many observers, this has been a clear stumbling block at the municipal level, particularly in Cape Town. The past 15+ years of discussion over implementing IH policies in the Western Cape—without any actual implementation—demonstrates that there needs to be true governmental commitment to act on such policies. The growing absence of headway regarding adequate housing and equitable access to the city, either through IH or other policies, increasingly exposes all levels of government to legal challenge based on the failure to live up to their constitutional and statutory mandates.

The unfortunate success of Apartheid planning in achieving the sort of spatial segregation seen today in the Western Cape and South Africa is a testament to the impact that planning and land use regulation can have on a society. It is past time to harness planning and land use regulations, such as IH, with the same conviction and dedication but with reverse purpose.

Paving over the PHA, one bus facility at a time

What happens in Cape Town, South Africa, when you illegally infill a farmland dam in a sensitive aquifer recharge area with building rubble? The answer is nothing, apparently, or at least so long as you pave it over and make it an illegal bus parking facility. The aerial images above might be characterized as Exhibit “A” in the local and provincial government’s failure to maintain the integrity of Cape Town's Philippi Horticultural Area ("PHA"): land use decisions allowing a charter bus company to operate on zoned farmland in the heart of the PHA.

For years, farmers and residents in the PHA have complained that the government has neglected and undermined the PHA’s role as Cape Town’s breadbasket. Most plainly, various levels of government have taken outright steps that have destabilized the farming integrity of the area, such as approving the conversion of prime agriculture land into master planned suburban developments (covered elsewhere). But a subtler yet arguably more harmful factor is the government’s failure to enforce existing laws and stop illegal uses inconsistent with farming, such as construction dumping and industrial activities, even when violations are obvious.

For example, early last year the Western Cape Province’s Department of Environmental Affairs and Development Planning (DEADP) received a complaint regarding infill of a farm dam located on Portion 13 of Farm 705 in the PHA, shown in the image above. Although DEADP inspected the site and confirmed that general waste was unlawfully disposed on the property, the land owner argued that City’s Department of Water and Sanitation had no objections. Upon follow up, DEADP reversed course and concluded no violation of environmental laws because “the property had been cleaned up and . . . the land which had been infilled was converted from a dam to a bus parking area”. Although the land is zoned as agricultural land (see here), it is registered as owned by “Parkers Bus Service”. Aerial images from Google Earth show up to 14 buses being parked in and around the site, as well as broader non-agricultural development over the past 10-20 years.

While it is not entirely clear what DEADP’s justification was for not finding a violation, it appears possible that it concluded that the infill was not covered as a “listed activity” under NEMA regulations. However, NEMA includes as a listed activity “infrastructure or structures with a physical footprint of 100 square metres or more where such development occurs . . . within a watercourse.” The term “watercourse” is defined to include “a . . . dam into which, or from which, water flows.” A dam in the middle of the Cape Flats Aquifer recharge zone would seem to fall under this definition, but DEADP did not explain its justification. At a minimum, NEMA’s duty of care principle and DEADP’s mandate require it to more carefully assess impacts such as dam infilling and bus parking lots in a critical aquifer recharge zone.

More broadly, construction of a parking facility in the middle of the PHA raises larger concerns about how various levels of government are failing to properly coordinate in governing and managing the area. The City and Province are in the middle of undertaking a renewed process to update the plans and policies for the PHA area. While both the Province and the City have committed to support farming in the PHA, the view on the ground suggests that enforcement and coordination, not more plans and policies, are necessary.

PHA High Court Decision Recap

Its been a few weeks since the Western Cape High Court handed down its decision in the case regarding the proposed Oakland City development in the Philippi Horticultural Area (I've written some about the case here before). While it's true, as many outlets have covered, that the decision is a major victory for the PHA Food and Farming Campaign on certain issues, it is also true that the decision was mixed. In some ways, the City and Province scored important victories that serve to permanently wittle away protection of the PHA for agricultural and non-urban uses. Here is a recap of the decision and its findings (I've included paragraph numbers for reference):

Who were the relevant parties in the case [2-3]? 

The PHA Food and Farming Campaign (“Campaign”) and Nazeer Sonday, chairperson of the Campaign, were the applicants seeking relief from the Court. 

Respondents alleged to have violated the law were: 

• The Member of the Executive Council for Local Government, Environmental Affairs and Development Planning in the Western Cape (the “MEC”) (named as “first respondent” in the decision). The MEC is an authority of the Provincial government. 

• The Western Cape Department of Environmental Affairs and Development Planning (the “DEADP”) (named as the “second respondent” in the decision). The Department is part of the Provincial government, which the MEC oversees. 

• The City of Cape Town (the “City”) (named as the “sixth respondent”). 

• Oakland City Development Company (Pty) Ltd (“Oakland”). Oakland is the developer seeking to develop a portion of the PHA.

What was the case about [1, 4-6]? 

The PHA consists of approximately 3000 hectares of land located physically within the Cape Town metropolitan area that was formally reserved in 1968 for sand mining and horticultural use. Although physically within the Cape Town metropolitan area, the PHA has historically been designated and protected as agricultural, or more specifically, horticultural, land. Urban development has gradually built up along the edges of the PHA. 

The case concerned Oakland’s proposal to develop 479 hectares of land (approximately 20% of the entire PHA) that it owns in the southeastern portion of the PHA (the “Oakland land”). The Oakland land was formerly considered part of the PHA and, like the rest of the PHA, was formally reserved in 1968 for sand mining and horticultural use. As described by the Court, while some of the Oakland land has been mined, unlike most of the more northern portions of the PHA almost none of it (4%) has been farmed, and no other development has taken place on it. The Oakland land, as well as much of the rest of the PHA, is located above the deepest portion of the Cape Flats Aquifer. Oakland acquired the land in 2008 with the intent to develop it. 

The development as presented to the Court calls for building housing for 15,000 families, schools, commercial and industrial facilities, as well as setting aside 77 hectares for conservation and wetland areas. From 2011 to 2017 the Provincial and Cape Town governments made several administrative decisions approving or otherwise facilitating the Oakland’s proposed development. The Campaign opposed Oakland’s proposed development. C. What issues did the Court consider? The substantive issues to be decided, as presented by the Court, were: 

1. (Whether the Court should designate the entire PHA as “agricultural land” under national and provincial law [25-45].
2. Whether the government illegally shifted the urban edge to exclude the Oakland City land from the rest of the PHA [46-55]. 
3. Whether the Provincial government illegally approved the environmental authorization for the Oakland City proposal [56-109]. 
4. Whether the City of Cape Town illegally approved the rezoning and subdivision of the Oakland City land [110-135]. 

Other issues that the court considered included: 

• Striking from the record portions of the Campaign’s replying affidavits [17-24]. 

• Remedies for any violations [106-109, 135]. 

• Adequacy of notice and opportunity to comment on rezoning and subdivision of land [136-138]. 

• Would any of the losing parties pay the winning party’s litigation costs [140-141]. 

What did the Court decide? 

(1) The PHA is not protected as “agricultural land” under the Subdivision of Agricultural Land Act [25-45] 

The Campaign argued that the Court should determine that the whole of the PHA was protected as agricultural land under the Subdivision of Agricultural Land Act 70 of 1970 (“SALA”). Such a determination would require additional approval to develop that Oakland did not receive. The Court found this argument problematic both on procedural and substantive grounds. 

Procedurally, the Court determined that although such a determination would affect all land owners within the PHA, these land owners might not have been provided notice of, or an opportunity to participate in, court proceedings. 

In addition, the Court also agreed with the City’s argument that because the applicable land had been officially designated for both horticulture and sand mining, it was not designated exclusively for agricultural purposes. The Court determined that under the terms of SALA and transitional planning law provisions this double designation excluded the PHA from coverage under SALA. “Consequently,” the Court concluded, “when Oakland submitted its application for the subdivision of its land in June 2015, the land was not agricultural land as defined in the SALA and the provisions of the SALA therefore did not apply.” [45.] 

(2) The City did not illegally shift the urban edge [46-55]

The Campaign argued that the MEC illegally shifted the urban edge in 2011 when he amended the urban structure plan without proper authority to do so, and that this decision “tainted” the separate decision taken in 2012 by the City of Cape Town to adopt the shifted boundaries in the Cape Town Spatial Development Framework (“CTSDF”). 

The Court noted that “[i]n the recommendation put to the MEC by provincial officials no mention was made of the statutory provision in terms of which he was empowered to take such a decision.” [48.] 

However, the Court determined that any potential problem with the MEC’s decision was nullified by adoption of the urban edge shift in the 2012 CTSDF. It is clear from the Court’s decision that it did not follow the Campaign’s argument regarding the connection between the illegality of the 2011 MEC decision and the 2012 CTSDF decision. Indeed, the Court expressly noted that the Campaign’s failure to sufficiently make this claim: “The applicants accept however that no challenge has been brought concerning the validity or otherwise of the 2012 CTSDF. When Mr [sic] Bridgman for the applicants was asked during argument why this was, he indicated that this was a conscious decision taken without the value of hindsight.” [52.] Accordingly, “without a challenge raised to the 2012 CTSDF, a review of the 2011 decision would produce a wholly academic result lacking in any tangible effect.” [54.] 

(3) The Provincial government failed to adequately consider the impact on the aquifer in approving the environmental authorization and exemption for the Oakland City proposal [56-108] 

The City argued that the MEC’s and DEADP’s approval the environmental authorization and exemption for the Oakland City proposal violated the Promotion of Administrative Justice Act (“PAJA”) by failing to take into account relevant considerations regarding the impacts of the proposed development on the aquifer/ground water, food security, climate change, land reform, heritage, the no-development alternative, need and desirability, cumulative impacts, and gaps in knowledge. The Campaign also argued that these decisions were not rationally connected to the information before the decision-maker. 

Regarding scoping reports and the environmental impact assessment prepared for the project, although the Court agreed that “[t]here is merit in the contention that there were impacts not expressly identified, or insufficiently considered” [78], it concluded that “the shortcomings complained of were limited to particular issues and were not sufficient to warrant a conclusion that the entire scoping and assessment was fundamentally flawed and non-compliant with the relevant statutory provisions” [78]. 

Similarly, the Court decided that, with one (significant) exception, DEADP and the MEC on appeal properly considered most of the relevant issues, including food security, heritage, and socio-economic considerations. [94.] 

The one major exception that the Court found to the decision-making involved consideration of the impacts of the proposed development on the aquifer. The Court noted that “[t]here appears to be merit in the applicants [sic] complaint that the groundwater study conducted was ‘wholly inadequate’ for the purposes of assessing the impact of on [sic] the aquifer more generally, with the only groundwater issue identified as a potential impact being ‘post mining ‘exposed’ groundwater’” [100]. The court also noted that the studies relied on in the decision-making were years old and did not address “the broader consideration of the preservation, health and recharge of the aquifer in the context of water scarcity and climate change so as to enable the decision-maker to assess the impact on the aquifer” [100]. 

 Although the Court found that the MEC on appeal took into more careful consideration the impact to the aquifer, the Court nevertheless found that the narrow and dated information in the available reports did not include an adequate assessment of the “health of the aquifer given climate change and water scarcity in the area” [102]. As a result, the Provincial government as a whole did not take into account relevant considerations, its approval of the proposed development violated PAJA. Furthermore, “[g]iven the limitations in the information before the MEC in this regard a decision was arrived at which was neither rational nor reasonable” under PAJA as well [103]. 

 The Court’s remedy for the violations was “to set aside the MEC’s ruling on appeal and remit the matter back to him for reconsideration of new evidence and reports relating to the aquifer” [107]. 

(4) The City failed to adequately consider the impact on the aquifer in approving rezoning and subdivision of the Oakland land [110-135] 

The Campaign sought review of the decisions of two City panels, the Interim Planning Committee’s November 2016 approval of the rezoning and subdivision of Oakland land, and the General Appeals Committee’s June 2017 decision to refuse appeal. The Court noted that “where a decision-maker is directed by law to consider particular issues . . . a risk-averse and careful approach especially in the face of incomplete information should be adopted; and the failure to take relevant considerations into account risks a determination that the decision reached was irrational or unreasonable” [130]. Regarding environmental considerations, “[w]hat was required of the relevant decision-makers was a consideration of relevant considerations concerning the preservation of the natural environment and the effect of the application on existing rights” [130]. 

Turning to the specific issue at hand, the Court noted that “[i]n relation to the aquifer, an assessment of the impact of development on it, having regard to the rights set out in s 24 of the Constitution and the provisions of NEMA and its regulations, required consideration of the impact of the rezoning and subdivision sought in relation to the aquifer as a large underground natural resource, its state, future and impact on issues related to water scarcity and climate change” [130]. 

 For largely the same reasons that the MEC did not properly assess the impacts to the aquifer, i.e. a lack of up-to-date reports specifically concerning the health of the aquifer, the Court held that in the case of the City “the relevant considerations were not considered in the determination of the appeal in relation to the aquifer and that this resulted in a decision which was neither rational nor reasonable having regard to the material before the General Appeals Committee on this issue” [134]. 

Other considerations, such as preservation of the nature and developed environment, were adequately taken into consideration by the City, according to the Court, based on the fact that “the Oakland land has not been farmed, does not produce vegetables and does not contribute to food security in the City currently” [131]. 

The Court determined that the appropriate remedy for the violation was to “remit the matter to the General Appeals Committee for a reconstituted appeal process to take place restricted to consideration of the desirability of the applications in the context of the preservation of the natural environment and the effect of the application on existing rights in relation to the aquifer in the context of climate change and water scarcity in the City” [135]. 

(5) Other issues decided by the Court 

The Court also: 

• struck various statements provided in the Campaign’s reply affidavits, describing some of the language “intemperate” and the papers “prolix” [17-24]. 

• held that of notice and opportunity to comment on rezoning and subdivision of land was adequate [136-138]. 

• awarded costs to the Province, City, and Oakland City related to their cross motions for striking various portions of the Campaign’s amended reply; awarded costs to the Campaign related to issues regarding issues on which they prevailed [140-141]. 

What are the big take-aways from the case? 

First, the Campaign scored a major win in nullifying the Province’s environmental authorization and the City’s land use decisions, but the grounds for this victory is narrowly based on impact to the aquifer. Consideration of food security and socio-economic impact were not grounds for review.

Second, because the remedy for the Campaign’s successful claims is reconsideration by the same authorities, the Province and the City will have another chance to decide these issues. This provides the Campaign with further opportunity to make their case, but likewise allows the Province and the City to make the same decision again. 

Finally, the Court’s decision is very unfavourable in that the urban edge shift still stands. While appeal might be possible regarding this issue, a political or administrative solution, i.e. a decision by the City itself to reintegrate the Oakland City land into the PHA, would be a more straightforward position. Given the extensive evidence supporting this area's continued inclusion in the PHA, this decision would be easy for the City to justify, a decision even more compelling if the Oakland City development proposal is ultimately dropped.