BEPR LEGAL ACTION AGAINST
THE DEVELOPMENT OF REMANINING PHASES OF
The Black Eagle Project Roodekrans has been in a legal wrangle with Landev to prevent the development of Sugarbush Estate since 2006.
This case has still not been completed to date.
1. First application by LANDEV to develop portion 298 of the farm Paardeplats 177 IQ.
In January 2006, the Gauteng Department of Agriculture, Conservation & Environment (GDACE) authorized the development of the southern portion of a proposed 89 hectare residential estate development, “Sugarbush Estate,” situated within the undeveloped Roodekrans-Paardekraal Ridge ecosystem. GDACE’s “Record of Decision” (RoD) approved phase 1 and part of 2 (covering approximately 27 hectares) but denied development of the remaining 62 hectares (i.e. phases 3, 4, 5 and hilltop areas of phase 2) located further to the north.
GDACE granted this partial authorization to LANDEV (Pty) Ltd, despite the entire property comprising undeveloped natural habitat – located in the centre of a Class 3a Ridge area of “high conservation value” – and despite of an internal recommendation from the GDACE Nature Conservation sub-directorate, in January 2005, that authorization of the development in its entirety (i.e. all phases) should be denied.
After considering appeals by interested and affected parties (I&AP’s), the MEC of GDACE took a final decision, in April 2006, to uphold the decision of January 2006, to only approve Phases 1 and part of Phase 2. In reaching this decision however, GDACE had failed to properly address the issues raised by I&AP’s, such as the inadequacy of the developer’s ecological studies (submitted in the 2004 Scoping Report), which played down the ecological sensitivity of the site.
2. Second application by LANDEV to develop remaining phases.
In May 2006 the developer then lodged what was effectively a second application for the development of all remaining phases, in an attempt to gain approval for the phases for which authorization was denied by the MEC in his final decision of April 2006 (i.e. phases 3, 4, 5 and remainder of 2).
The second application was almost identical to the original proposal submitted to GDACE in December 2004. It proposed an even higher number of residential units and significantly less open space than in the first application and no substantively new information was submitted other than a poorly written “motivational memorandum.” Furthermore, this second application also apparently did not go through the GDACE Nature Conservation sub-directorate, as is the required procedure.
Again, I&AP’s objected, citing many of the same issues that were not addressed by GDACE in the first application. Despite widespread objection – as well as no substantively new information – GDACE then issued a positive RoD, on 28 August 2006, authorizing the development of all the remaining phases. This amounted to a complete “about-turn” on their previous decision of January 2006 to deny these phases.
I&AP’s again appealed this RoD, once again raising the same ecological impact issues and other concerns still not addressed by GDACE or the developer. A public petition, representing over 1400 signatories from local communities was also submitted to the MEC – also to no avail.
The comprehensive appeal lodged by the Sisulu Reserve Working Group a sub-committee of the (BEPR), highlighted irregularities in the public participation procedure undertaken by the developer’s environmental consultants African EPA, as well as the critical issues still not addressed – such as the impact of the development in terms of wildlife disturbance and habitat loss as well as the destruction of large areas of indigenous grasslands and pristine protea woodlands.
By way of another letter dated 8 November 2006, the MEC upheld the HoD’s decision (of 28 August 2006) to authorize all remaining phases. Once again the MEC had dismissed all the appeals without a proper explanation or reason, and still not addressing repeatedly expressed concerns regarding ecological impacts, inadequate studies and public participation procedural irregularities.
3. Implications of the MEC’s authorization.
As consistently reiterated by the BEPR, the approval of phases 1 and part of 2 is already a concession that will have serious long-term ecological impacts. The further approval by the MEC of all remaining phases – situated in the heart of the undeveloped Roodekrans-Paardekraal Ridge area – in effect amounts to a ‘death certificate’ for what little wildlife still remains in this area.
The affected area is vital to the survival of wildlife considered extremely rare in the Gauteng Metro area, such as Grey rhebok, duiker, jackal, caracal, leopard, porcupine and numerous raptors. The massive habitat loss and peripheral disturbance associated with this planned development – only 250m from the Walter Sisulu Botanical Gardens Nature Reserve – will precipitate an ecosystem collapse and the rapid demise of most remaining species, many of which are already critically low in number.
A number of red data species will also be affected including an exceedingly rare Red data plant species, of which the population recently found on Site (in January 2007) and in an adjacent property, is the world’s only known population. The development as authorized places this population under severe threat and will in all likelihood cause the extinction of this subspecies – particularly in view of the fact that no other populations have been located. The ecological studies carried out by the developer in 2004 failed to locate or mention such sensitivities.
4. Legal proceedings to stop the development of remaining phases
(December 2006 – March 2007).
In terms of a provision in the Environment Conservation Act, the BEPR was allowed 30 days from the date of the MEC’s final decision (8 November 2006), to request comprehensive reasons for his decision. This request was made on 5 December 2006, further asked GDACE to convey to the developer not to undertake any activities on the remaining phases prior to the finalization of this process. The letter further advised that failure to halt construction would result in the attorneys for the BEPR being instructed to submit a review application to the high court on an urgent basis.
GDACE failed to respond within the 30day timeframe allowed, leaving the BEPR with no alternative but to instruct their attorney to inform GDACE and LANDEV, on 8 January 2007, of their intent to proceed with a Review Application to the high court and that an urgent interdict would be necessary in the event that LANDEV did not agree to halt construction on remaining phases. In terms of the permitted timeframe the BEPR had to submit this review application by Monday 5th February 2007.
LANDEV however did not respond to the request and preceded with initial construction activities on the remainder of Phase 2, located on top of the highly sensitive Paardekraal Ridge. This work amounted to the digging of deep trenches for bulk water pipes. The BEPR reported the destruction of proteas and the setting of snares to GDACE, appealing for immediate intervention to halt activities pending the outcome of the review application. GDACE however failed to take action to stop these development activities.
Having exhausted all available remedies the BEPR then took the decision to instruct their legal counsel to draft the necessary Review Application on an urgent basis, citing three respondents, namely the GDACE MEC, the GDACE Head of Department and LANDEV Pty Ltd. This application, which included reports from three independent ecological experts, was submitted on Monday 5th February 2007. The Founding Affidavit contends, inter-alia, that the MEC had no basis for changing his mind and approving the development of remaining phases, that the studies submitted by the developer were inadequate and misleading, and that the development – in view of its potential impacts – cannot be justified in any way.
The notice of motion of this application had two parts:
1. An interdict against the developer (to cease further damage of remaining phases).
2. The review application against GDACE (challenging the decision to authorize development, which was unreasonable and procedurally unfair).
In reply, GDACE indicated that they would oppose the application but not the interdict, while LANDEV indicated that they would only oppose the interdict for the remainder of phase 2 (but not for phases 3, 4, 5). The interdict was to be argued in court on Wednesday 14 February 2007.
LANDEV and BEPR attorneys’ and counsel attempted to reach a settlement agreement in respect of remainder of phase 2, where the developer has commenced activities. An agreement was reached in principle that development would be limited to areas already disturbed, that only two additional bulk pipelines would be established and that there should be no further damage to protea vegetation. As the remainder of phase 2 comprises a highly sensitive ridge top with red data species such as the endangered rock scorpion (Hadogenes gunningi), it was vital that further irreparable damage be avoided.
The developer had until 15 February 2007 to undertake in writing not to develop any areas other than those already disturbed. LANDEV failed to provide such an assurance, resulting in the setting down of an urgent interdict hearing on the 16 February 2007 for argument by BEPR’s counsel. At this hearing the Judge issued a court order that all reasonable measures must be taken by the Developer to avoid further damage to protea vegetation.
Subsequent monitoring by the SRWG, however, revealed that further substantial damage to the ridge slopes and associated protea vegetation had taken place in the remainder of February and in the first two weeks of March, despite the court order.
It was established that a significant number of Protea caffra and Protea roupelliae trees had been destroyed between the 16th February and the 12th March in areas peripheral to the trenches excavated on top of the Ridge for the purposes of installing water supply lines and sewage pipes. It was apparent that the disturbance caused by the excavators and other earthmoving machinery affected an unnecessarily wide area – in some instances up to 70m perpendicular distance from the actual excavations. Numerous protea trees, located well away from the immediate construction areas had been unnecessarily pushed over with no attempt made to avoid this damage or to transplant any of these trees. The greatest additional damage done during this period was associated with the installation of a sewage line running along the steep north-facing slopes of the Paardekraal Ridge in the southern portion of Phase 3. This caused massive and irreversible damage to a steep slope that even in terms of the developers development plan was supposed to be reserved as an open space area and buffer zone to protect endangered species such as the rock scorpion, Hadogenes Gunningi.
After compiling substantial photographic evidence of this progressive degradation, the BEPR’s attorneys began preparations in late March for an urgent interdict to prevent further damage to the Site. During this time concerns regarding the further loss of habitats on top of the Ridge and of the potential threat posed by development work to endangered red data species were communicated to LANDEV. A number of Environmental Management Plan (EMP) violations, such as damage to proposed open space areas and steep ridge slopes, were also noted and reported to both LANDEV and the GDACE Compliance and Enforcement Directorate.
5. Update on legal proceedings (April – March 2008)
In April 2007 it became apparent that work on the remainder of Phase 2 had largely ceased. LANDEV furthermore provided a written assurance that developments in Phase 3, 4 and 5 would not proceed in the interim. It was on this basis that a decision was made to withdraw the urgent interdict and focus on the second part – the review application.
As a consequence of withdrawing the interdict, The BEPR was ordered by the court to pay Landev’s wasted costs. These costs were eventually taxed on 4th December at approximately R115 000.00. A bill of costs was delivered by LANDEV’s attorneys to BEPR’s attorneys, only on the 12th December 2007, with a request for the BEPR to deposit the entire amount into LANDEV’s attorneys trust account within two days i.e. by 14th December 2007, failing which LANDEV would issue the BEPR with a warrant of execution.
The BEPR, being a non profit, section 21 company, was only able to raise approximately half of the taxed costs, which was duly paid to LANDEV by 14th December, and an undertaking was given that the balance of the funds would be paid by the end of March 2008.
A few months prior to the above-mentioned payment the BEPR brought an “interlocutory application” in order to amend the description of the BEPR in the Review Application court papers.
This application was argued in the Johannesburg High Court in August and in October the judge approved BEPR’s application, ordering LANDEV to pay the BEPR’s legal costs. However, as this costs order in favour of BEPR was also subject to a lengthy taxation process, it was not possible to use this debt to offset the R115 000.00 owed to LANDEV.
In January 2008 the BEPR was served with a Writ of Execution to attach assets belonging to the BEPR. As the BEPR have no assets an application for the liquidation of the company was served on the Project Co-ordinator, (at that time) Libby Woodcock in February 2008. The BEPR was of the view that the application was an attempt by LANDEV to destroy the BEPR Company, thereby preventing the set down of proceedings for the review application. This view was based on that fact that liquidation in itself is an expensive process, that the BEPR had no assets, and that the only way to repay the balance was to be allowed to continue operating so as to raise funds. The BEPR then embarked on an urgent fundraising drive in order to raise the required balance by the end of March 2008
In an apparent attempt to further incapacitate the BEPR, LANDEV’s attorneys then set down the proceedings for the liquidation application for the 18th March 2008, demanding payment of the outstanding balance of approximately R65000.00 by 12:00 on Monday 17th March. Through the generosity of BEPR’s supporters, the full amount was paid on the 18th March, thus requiring LANDEV to drop their application for liquidation.
Having failed to liquidate the BEPR – the proceedings for the Review Application could continue and BEPR’s attorneys continued to prepare to set a date for the hearing. Furthermore, the costs owed by LANDEV to BEPR in respect of the interlocutory application were set down for 25th March 2008. After the taxation hearing, the BEPR submitted the bill of costs to LANDEV, with a demand for immediate payment.
In respect of the Review Application, the BEPR’s attorneys were confident that a judgement would be made in favour of the BEPR and that GDACE will be ordered to review their decision. As it stands, unless GDACE review their decision on their own accord, which is extremely unlikely, this is the only recourse available to prevent the destruction of this area. Should the case be won by LANDEV, the demise of the Roodekrans-Paardekraal ecosystem will be a certainty.
A highly threatened plant species, recorded by Andrew Hankey, Senior Horticulturist of the South African National Biodiversity Institute, (SANBI), is under direct threat by the continuation of this development. The loss of this population as a result of the direct and peripheral impacts of this development will in all likelihood cause the extinction of this subspecies as it is the world’s only known population. After prolonged lobbying efforts by the BEPR for the implementation of a 600m buffer zone around the recorded population, the GDACE MEC finally indicated – by way of a letter addressed to the BEPR – of his intent to amend the Record of Decision (RoD) to incorporate a 400m buffer zone. To date however, the MEC has failed to reply to a letter requesting confirmation that the RoD will indeed be amended. Even if properly implemented however, this buffer would at best only partially mitigate the impacts of the development.
In April 2010 a field study was done by SANBI (South African National Biodiversity Institute) to record the historical localities of the threatened species. The species was re-evaluated and a new status Endangered applied. According to the study the population found on this development site is the last known remaining population in the country and should be protected at all costs.
In November 2011 Landev’s attorney approached our legal representative to ask if the BEPR was prepared to come to a settlement agreement. The BEPR and Landev with their legal teams met at the proposed site to do a site inspection to clarified the actual boundaries of the site. The BEPR insisted that no construction of rocky ridges, natural grassland and protea woodlands should be destroyed after a thorough investigation in January 2012 by Senior Horticulturalist of SANBI, Andrew Hankey and Ecologist for BEPR, Arthur Albertson as this habitat was important for the survival of small mammals and certain bird species. Two of the associated species being prey base for the verreaux’s eagles. The BEPR requested that a monitoring forum be set up with the relevant role players and meet periodically to oversee the progress of the development.
Landev offered to pay R1,000,000.00 towards an education program, of which the BEPR would donate a portion towards the Wildlife Reserve to save valuable habitat in the area.
The final proposal was delivered to Landev’s attorney on the 16th February 2011 for their perusal and acceptance. Landev declined our proposal for settlement in March 2011 and the BEPR continued with their Review Application by filing a replying affidavit.
As Landev and their attorneys did not respond to the BEPR’s replying affidavit which was delivered to their offices in early 2010 it was decided to wait for the 5 year expiry of the RoD in August 2011, provided the developer had not started construction. Should this be the case Landev would have to apply for a new environmental authorisation in terms of the National Environmental Management Act 107 of 1998.
The BEPR’s attorney sent a letter regarding the lapsing of the authorisation in March 2012 to Landev’s legal representative and informed them we would be filing a supplementary affidavit to set the matter down.
In August 2012 the BEPR’s attorneys sent a notice of motion applying to the court to set the matter down for hearing accompanied with a supplementary affidavit, as the BEPR had new information to include in the application. This was to apply for an interlocutory hearing (a case within a case). This application was accepted by the court and Landev confirmed that they would oppose the application.
In November 2012, Landev’s attorney withdrew their notice of opposition to the application. The respondent’s (Landev) are entitled to respond to the supplementary affidavit and the new information that the BEPR has produced. To date, however, our attorney has not had a response.
The BEPR would like to thank Bell Dewar for their pro bono representation in this matter.