On 8 September 2022, the Minister of Forestry, Fisheries and the Environment, Barbara Creecy published a notice excluding the development and expansion of solar photovoltaic facilities, including any associated activity or infrastructure from the requirement to obtain environmental authorisation in terms of the National Environmental Management Act 107 of 1998 (NEMA). 

Section 24(2)(e) of NEMA authorises the Minister to exclude activities that are prohibited from commencing without obtaining environmental authorisations from the competent authority, from the requirement to obtain an environmental authorisation based on compliance with an environmental management instrument adopted in the prescribed manner. 

The activities that are subject to the exclusion relate to the development or expansion of facilities or infrastructure for the generation of electricity from a solar photovoltaic installation, where such a development or expansion falls within the scope of Listing Notice 1 or Listing Notice 2 of NEMA. This includes the development or expansion of facilities or infrastructure for the generation of electricity from a renewable resource, where the electricity output is between 10 megawatts to 20 megawatts or more, excluding where such expansion of facilities or structure is for photovoltaic installations, and occurs within an urban area. 

The exclusion proposed by the notice will apply where the proposed development or expansion of a solar photovoltaic installation, including any associated activities, occur in areas of medium or low environmental sensitivity and are confirmed to be such by the site sensitivity verification. An exception is made for linear infrastructure, which is necessary and that forms an integral part of such activity, in which case such infrastructure can be in areas of very high or high, medium or low environmental sensitivity. The site sensitivity verification must be undertaken on the site on which the development or expansion is proposed to take place, by a specialist who demonstrates expertise in the field for which they are undertaking the verification. 

At least 15 days prior to the expected commencement date of the proposed development or expansion, such expansion or proposed development must be registered or re-registered with the competent authority. The registration will expire if construction does not commence within three years of the date on which the competent authority registered the proposed development or expansion. Re-registration of the facility and infrastructure is required when there is a change of ownership of a registered solar photovoltaic installation, which occurs prior to the completion of construction, and the development footprint of the facility and infrastructure is to be changed and would fall outside of the verified buffer. It should be noted that the intention of the notice is not that the site sensitivity verification and the report are to be undertaken for the entire site, but just for the area that has not been assessed. A re-registration is required to update the information on the records of the competent authority and to ensure that the new owner declares its intention to implement the mitigation measures in the environmental management programme. 

Within 10 days of receipt of the correctly completed registration form and supporting documentation, the competent authority must register the proposed development or expansion and provide the applicant with a registration number. 

Applications for environmental authorisations for activities listed in Listing Notice 1 and Listing Notice 2, which are pending on the date of coming into effect of the notice, must be finalised in accordance with the procedures of the Environmental Impact Assessment  Regulations, the Renewable Energy Development Zone Notice or the Strategic Transmission Corridor Notice, or may be withdrawn. A valid environmental authorisation in the case of any associated activities necessary for the realisation of photovoltaic facilities is deemed to have been complied with and is regarded as fulfilling the necessary requirements in terms of NEMA. 

Members of the public have 30 days from the date of publication to submit comments on the draft notice. The proposed exclusion for solar photovoltaic facilities presents opportunities for independent, small-scale power producers and is a step forward for the government in terms of its commitment to energy transition and to securing a reliable supply of clean electricity in the country.

Written by Clara Hansen, Candidate Attorney, and Kieran Whyte, Partner and Head of the Energy, Mining and Infrastructure Industry Group, Baker McKenzie Johannesburg