Wednesday, March 4, 2020

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.

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