From 2 September 2014 environmental authorisations issued by the Department of Environmental Affairs will be suspended if an appeal is submitted.

“The amendment to the National Environmental Management Act 107 of 1998 (NEMA) will have the unfortunate consequence of delaying much needed developments.  This is particularly as appeals are often lodged without any basis, with appellants relying on minor environmental impacts, without balancing the socio-economic elements of sustainable development and that NEMA requires the impact to be significant and not capable of be mitigated,”  explains Sandra Gore, Director in the Environmental practice at Cliffe Dekker Hofmeyr.

However, previously the law required that where local communities or other parties have identified a serious environmental or socio-economic effect of a project, they would be obliged to resort to the very costly route of instituting proceedings in a High Court to obtain an interdict to stop the project, while they wait for the outcome of their appeal (and possibly also review proceedings if the appeal is dismissed).

“In the interim, significant environmental damage could result.  If interdict proceedings are not immediately instituted and the development has commenced, it is often difficult to obtain an interdict, as the party opposing it cannot show that irreparable harm will be caused and the balance of convenience favours them, which are necessary to prove in an interdict.  If an interdict is not granted, the development generally proceeds and there is little value to the appeal, particularly given the long period generally taken by the authorities to finalise them,” she says.

Gore says this amendment to NEMA, however, brings it in line with other environmental legislation, for example the National Water Act, which also suspends a water use licence when an appeal is lodged.