MEC FOR AGRIC, CONSERVATION, ENVIRONMENT & LAND AFFAIR v.SASOL OIL (PTY) LIMITED,BRIGHT SUNS DEVELOPMENT CC. Pays/Territoire Afrique du Sud Type de cour Nationale - cour supérieure Date Sep 16, 2005 Source UNEP, InforMEA Nom du tribunal High Court of South Africa Siège de la cour Bloemfontein Free State Juge HOWIE P., P.CAMERONMLAMBO, JJANKABINDECACHALIA, AJJAFARLAM, I.G. Langue Anglais Sujet Environnement gén. Mot clé Planification territoriale Résumé This appeal concerns the refusal of a provincial authority to authorise the construction of a filling station in terms of the Environment Conservation Act 73 of 1989 (‘the ECA). It deals with whether: • The relevant authority had the power to refuse such authorisation, • The policy guidelines that it employed in arriving at the decision are ultra vires, • The rationality of the decision. As is the practice in the industry, the second respondent sought authorisation for the construction in terms of s 22(1) of the ECA from the Gauteng Department of Agriculture, Conservation, Environment and Land Affairs (‘the Department). Accordingly the application was supported by a ‘scoping report that the second respondent commissioned for this purpose, and further information that the Department requested later from the second respondent. To assist the Department in the evaluation prospective applicants were advised that: New Filling Stations will generally not be approved where they will be: • Within 100m of residential properties, schools, or hospitals, unless it can be clearly demonstrated that no significant impacts will occur by reason of factors such as noise, visual intrusion, safety considerations or fumes and smells; • Within three (3) Kilometers of an existing filling station in urban, built-up or residential areas; • Within twenty-five (25) Kilometers driving distance of an existing filling station in other instances (i.e. rural areas, and along highways and national roads), or • Within a sensitive area… The Department refused the application. From the reasons furnished, it appears that the application was unsuccessful principally, though not exclusively, because it failed to comply with the spatial stipulations in the guidelines. The respondents then sought an order in the Johannesburg High Court declaring that the guidelines were ultra vires the ECA. In the alternative they sought to review and set aside the decisions of the Department and the MEC. The principal finding of the court a quo was that the Department has the power only to regulate the environmental aspects of the storage and handling of petroleum products on the premises of a filling station but not the environmental aspects of filling stations per se. Flowing from this, the court a quo stated that the guidelines issued by the Department were for the most part ‘totally irrelevant and inappropriate What is in issue is whether a filling station is a ‘storage or ‘handling facility for petroleum products. If it is, the Department and MEC had the power to refuse authorisation for its construction. The respondents complaint is that the decision to refuse the application for the proposed development is irrational because the reasons given by the Department and the MEC evince a rigid adherence to the distance stipulations in the guidelines. This is, so it is contended, because no reference is made to any possible environmental harm that may result from the proposed development. In response the appellant stated that a distance stipulation is a rational basis for controlling an unnecessary and harmful proliferation of filling stations. It allows the establishment of new filling stations where the need therefore exists but has a justifiable bias against allowing new filling stations where no need exists. The purpose of the Guideline is not to play a role in economic regulation but to regulate the consequences of uncontrolled proliferation of filling stations for environmental reasons. The court held that there is therefore no substance to the criticism that the guidelines were applied in a manner that affected the rationality of the decision. The court added that on the contrary, the reasons demonstrate the opposite. The respondents were thus required to demonstrate that there was something exceptional in their application that warranted a departure from the usual application of the guidelines. The appeal therefore succeeds with costs.