The National Environmental Management Laws Amendment Bill, 2017 was tabled in Parliament on 24 May 2017, proposing changes to the National Environmental Management Act 107 of 1998 (NEMA). Currently, any decision taken by a regulator under NEMA or a specific environmental management Act may be appealed. When an appeal is lodged, the underlying decision is automatically suspended pending the outcome of the appeal.
The Bill proposes to amend this "automatic suspension" provision in two fundamental ways:
In respect of appeals lodged against a directive [and now a compliance notice]:
- The Bill proposes to remove the automatic suspension of a directive [and now a compliance notice which is proposed to be included] when an appeal is lodged.
- Currently, if a directive is appealed, it is automatically suspended unless the regulator directs that the suspension be uplifted due to an "imminent threat to human health or the environment".
- Going-forward, the Bill proposes that recipients of a directive or compliance notice will have to comply with their provisions even if they lodge an appeal against the administrative process. An application can, however, be lodged to request that the directive or compliance notice be suspended.
In respect of appeals lodged against an environmental authorisation, exemption or any other decision which is the subject of an appeal:
- The Bill does not propose amending the automatic suspension of these decisions, once appealed.
- What the Bill does propose, however, is to allow the suspension to be uplifted, on application, provided that "good cause" can be demonstrated to the regulator.
What does this mean for you?
On a positive front, if an appeal is lodged against a decision to grant an environmental approval, clients can apply for the automatic suspension of the decision to be lifted, provided that good cause can be shown. In our experience, this automatic suspension provision has sometimes been used as a tactic to suspend operations, even if the grounds of appeal are frivolous. The proposed amendments now offer an opportunity to re-commence operations whilst the appeal is on-going, which is encouraging.
On a negative front, if a client appeals a directive or compliance notice that has been issued, the appeal will not suspend the administrative process. This is unfortunate given that administrative processes can sometimes be unsubstantiated, can result in the shutting of operations and compliance therewith is often costly. In such circumstances, at least the proposed changes offer an opportunity to apply for the suspension of the administrative processes pending the outcome of the appeal.
Written By Garyn Rapson, a Partner at Webber Wentzel