Obtain the correct environmental authorization

Tergniet and Toekoms Action Group v Outeniqua Kreosootpale (Pty) Ltd

By Wandisile Mandlana

Introduction

The recent case of Tergniet and Toekoms Action Group v Outeniqua Kreosootpale (Pty) Ltd (1) highlights the importance of obtaining the correct environmental authorization.

The court stressed that operating with the wrong type of authorization is unlawful, irrespective of whether the authorities were mistaken about the type of authorization required for a particular activity when granting the initial authorization. An operator must therefore ensure that it holds the proper authorization for its activities.

Authorization under the Act

In the Tergniet Case, Outeniqua manufactured creosote-treated wooden poles on a farm in the Western Cape region of South Africa. The manufacturing process included the heating of logs with creosote in a sealed pressurized cylinder. This gave rise to a distinctive odour that was released into the atmosphere.

In an effort to monitor and control the levels of pollution released into the atmosphere, the Atmospheric Pollution Prevention Act (“APPA”) (2) prohibits any person from carrying out a scheduled process in or on any premises without a registration certificate authorizing the activity. (3) The manufacture of creosote-treated poles requires a registration certificate issued under Item 16 of the Second Schedule to APPA. Item 16 authorizes the carrying out of processes in which tar, creosote or any other product from the distillation of tar is distilled or heated in any manufacturing process.

The company was the holder of a registration certificate issued under Item 67 of the Second Schedule to APPA, which authorizes the carrying out of processes in which wood is burned or subjected to heat in a manner that gives rise to noxious or offensive gases. It appears from the judgment that the authorities misunderstood the clear wording of Item 16 and erroneously believed that an Item 16 process could be lawfully carried out under an Item 67 registration certificate, and for that reason issued the company with an Item 67 certificate to manufacture creosote-treated wooden poles.

In addition, the site was situated in an area that was zoned for industrial purposes (Industrial I), which does not include noxious trade. All the activities regulated by APPA relate to noxious trade and should take place in an area zoned as Industrial II.

Application for Appropriate Registration Certificate

The company submitted an application for an Item 16 registration certificate following repeated requests from the Department of Environmental Affairs and Tourism.

The chief air pollution control officer refused the application and recorded that the Item 67 registration certificate held by the company did not authorize the carrying out of Item 16 processes on the site, adding that the decision would be effective only after 90 days.

The company lodged an appeal against the pollution control officer's decision and continued manufacturing creosote-treated wooden poles without the proper authorization.

Proceedings

Before the appeal was heard by the Air Pollution Appeal Board, the Tergniet and Toekoms Action Group, a voluntary association of residents, and certain other residents of the area surrounding the site instituted proceedings against the company. They contended that the company's activities were unlawful because they conflicted with the provisions of APPA and the zoning of the area in which the site was situated.

The residents sought an order that included a declaration that the pollution control officer's decision did not authorize the company to operate any Item 16 processes on the site and that any such activity was unlawful. They also sought an interdict restraining the company from operating any Item 16 processes on the site unless and until it was issued with an Item 16 registration certificate or granted permission under section 13(1)(b) of APPA and the property was zoned as Industrial II.

Acting Without Authorization

Relying heavily on the rule that an appeal generally suspends the execution of a judgment, the company argued that it was entitled to continue manufacturing creosote-treated wooden poles without an Item 16 registration certificate because it had noted an appeal against the pollution control officer's decision. The court found that the rule put the company in the same position as it was before the application was refused (i.e., without a registration certificate authorizing the manufacture of creosote-treated wooden poles).

The company also relied on section 13(1)(b), which permits the continuation of a scheduled process following an appeal. The court found that section 13(1)(b) permits the continuation of a scheduled process only following an appeal where (i) the appellant carried out the scheduled process prior to the decision being appealed against, and (ii) the pollution control officer has given permission that the scheduled process may be continued.

Decision

The court found that the company did not meet the first requirement because it had manufactured creosote-treated poles unlawfully prior to the appeal and the simple noting of an appeal did not grant the company the right to lawfully operate a scheduled process. The court added that the fact that the authorities misunderstood the clear wording of Item 16 and erroneously believed that an Item 16 process could be lawfully carried out under an Item 67 registration certificate, and for that reason issued the company with an Item 67 certificate to manufacture creosote-treated wooden poles, did not detract from the fact that the company was conducting the activity unlawfully.

In terms of the second requirement, the court found that the noting of the appeal automatically suspended the whole of the pollution control officer's decision, including the 90-day determination, so that the respondent continued carrying out an Item 16 process on the site without the necessary registration certificate.

The court did not grant a declaration to the effect that the pollution control officer's decision did not authorize the company to operate any Item 16 processes because the 90-day period had lapsed by the time the matter came to court and the appeal still had to be determined by the appeal board.

The court found that the company's conduct in carrying out an Item 16 process on the site without the necessary authorization or the mechanisms envisaged by the legislature to ensure that the escape of noxious or offensive gases into the atmosphere is eliminated or reduced was a violation of the constitutional right of the residents to an environment that is not harmful to their health or wellbeing. The court also found that the residents had a clear right to resist any attempt to diminish their right to enjoy the use of their properties in line with the zoning scheme and that this was sufficient grounds for a prohibitory interdict.

Accordingly, the court granted an interdict restraining the company from conducting any activity described in Item 16 of the Second Schedule to APPA on the site unless and until it was issued with a registration certificate authorizing it to do so and the property relevant to the site was zoned Industrial II.

Comment

This case highlights the fact that it is important for an operator to ensure that it has the proper authorization for its activities. There are significant risks associated with operating without the proper authorization. These include a fine and imprisonment (4) but more importantly relate to the power that the authorities have to suspend operations. (5)

Endnotes
1 Case 10083/2008 (C) unreported.
2 45 of 1962.
3 Section 9 of APPA.
4 Section 46 of APPA.
5 Section 17 of APPA.

Brought to you by the Environment, Natural Resources and Climate Change Practice Area. For further information on this topic please contact Claire Tucker at Bowman Gilfillan Inc telephone +27 11 669 9000 or fax +27 11 669 9001 or email c.tucker@bowman.co.za.

 
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