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Home 5 Uncategorised 5 Environmental Law 2 – National Environmental Management Act 1998 (ACT 107 OF 1998)

Why do I need environmental authorization from the Department of Agriculture and Environmental Affairs (DAEA) for the establishment of a residential estate?
What process do I need to go through?

In the simplest terms an Environmental Impact Assessment is a fact-gathering exercise to systematically identify potential positive and negative impacts on the environment. It is a tool to facilitate good environmental management decisions by examining alternatives to minimize negative and optimize positive effects of certain activities on the environment. The assessment is a method to obtain information in respect of the impact that a project or action might have on the environment to prevent substantial detrimental impacts on the environment.

The establishment of residential estates in the KZN Midlands has been a highly contentious issue over the last couple of years. The impact of such development on the environment has been the cause of much debate. In terms of establishing the environmental legal requirements, the first step is to establish whether one needs Environmental Authorisation at all, and if so, whether one has to follow the Basic Assessment or the full EIA route – this will depend on the scale of development. Herewith are some quick indicators:

A. The Basic Assessment applies in the following listed activities:

  • The transformation of undeveloped, vacant or derelict land to: (a) establish infill1 development covering an area of 5 hectares or more, but less than 20 hectares; or (b) residential, mixed, retail, commercial, industrial or institutional use where such development does not constitute infill and where the total area to be transformed is bigger than 1 hectare.
  • The subdivision of portions of land 9 hectares or larger into portions of 5 hectares or less.

B. The Full EIA applies to the following listed activity:

  • Any development activity, including associated structures and infrastructure, where the total area of the developed area is, or is intended to be, 20 hectares or more.

Therefore, in terms of the above, low density development proposals on rural properties smaller than 20 hectares will generally require a Basic Assessment whilst larger properties will need to undergo a Full EIA. For example, subdividing a 15 hectare property into three 5 hectare plots would not require Environmental Authorization. However subdividing a 15 hectare property into one 10 hectare plot, one 3 hectare plot and one 2 hectare plot would require Environmental Authorization.

However, the listed activities described in points A and B above are just a few of the criteria determining which application route one needs to go, and one needs to consider all other listed activities, applicable guidelines and environmental management frameworks. For example, sewage, roads, water abstraction and important biodiversity also need to be considered when establishing the correct application route. Furthermore, it is important to note that Environmental Authorization is only one part of any development application. Planning permission is also needed in order to proceed with a residential development.

In the next issue we will consider agri-and silvicultural (commercial timber) land transformation and the laws applicable. The author will not be held responsible for misinterpretation of the law, and strongly recommends that readers consult their local DAEA branch for clarification.

NB! Please note: Infill means urban development… in a built up area which is at least 50 percent abutted by urban development and which can be readily connected to municipal bulk infrastructure services.

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Tel: +27(0) 31 303 2835