DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND TOURISM
|
No. R …. |
… 2006 |
REGULATIONS
IN TERMS OF CHAPTER 5 OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
The Minister of Environmental
Affairs and Tourism has in terms of section 24(5) read with section 44 of the
National Environmental Management Act, 1998 (Act No. 107 of 1998), made the
regulations set out in the Schedule hereto.
SCHEDULE
ARRANGEMENT
OF REGULATIONS
CHAPTER 1
INTERPRETATION
AND PURPOSE OF THESE REGULATIONS
1. Interpretation
2. Purpose of Regulations
CHAPTER 2
COMPETENT
AUTHORITIES
3. Identification of competent authorities
4. Where to submit applications
5. Assistance by competent authorities to
applicants
6. Consultation between competent
authorities and other organs of state having
jurisdiction
7. Competent authorities’ right of access
to information
8. Criteria to be taken into account by
competent authorities when considering
applications
9. Timeframes for competent authorities
10. Decision on applications by competent
authorities
11. Registry of applications and record of
decisions
12. Liability of competent authorities as to
costs of applications
CHAPTER 3
APPLICATIONS
FOR ENVIRONMENTAL AUTHORISATIONS
Part 1: General matters
13. Applications
14. Checking of applications for compliance
with formal requirements
15. Combination of applications
16. Activities on land owned by person other
than applicant
17. Appointment of EAPs to manage
applications
18. General requirements for EAPs
19. Disqualification of EAPs
20. Determination of assessment process
applicable to application
21. Criteria for determining whether basic
assessment or scoping and environmental impact assessment is to be applied to
applications
Part 2: Applications subject to
basic assessment
22. Steps to be taken before submission of
application
23. Content of basic assessment reports
24. Submission of application to competent
authority
25. Consideration of applications
26. Decision on applications
Part 3: Applications subject to
scoping and environmental impact assessment
27. Submission of application to competent
authority
28. Steps to be taken after submission of
application
29. Content of scoping reports
30. Submission of scoping reports to
competent authority
31. Consideration of scoping reports
32. Environmental impact assessment reports
33. Specialist reports and reports on
specialised processes
34. Content of draft environmental
management plans
35. Consideration of environmental impact
assessment reports
36. Decision on applications
Part 4: Environmental authorisations
37. Issue of environmental authorisations
38. Contents of environmental authorisations
CHAPTER 4
AMENDMENT
AND WITHDRAWAL OF ENVIRONMENTAL AUTHORISATIONS
39. General
Part 1: Amendments on application by
holders of environmental authorisations
40. Applications for amendment
41. Submission of applications for amendment
42 Consideration of applications
43. Decision on applications
Part 2: Amendments on initiative of
competent authority
44. Purposes for which competent authorities
may amend environmental authorisations
45. Process
46. Decision
Part 3: Withdrawal of environmental
authorisations
47. Circumstances in which withdrawals are
permissible
48. Withdrawal proceedings
49. Suspension of environmental
authorisations
50. Decision
CHAPTER 5
EXEMPTIONS
FROM PROVISIONS OF THESE REGULATIONS
51. Applications for exemptions
52. Submission of applications
53. Consideration of applications
54. Decision on applications
55. Review of exemptions
CHAPTER 6
PUBLIC
PARTICIPATION PROCESSES
56. Public participation process
57. Register of interested and affected
parties
58. Registered interested and affected
parties entitled to comment on submissions
59. Comments of interested and affected
parties to be recorded in reports submitted to competent authority
CHAPTER 7
APPEALS
60. Application of this Chapter
61. Jurisdiction of Minister and MEC to
decide appeals
62. Notices of intention to appeal
63. Submission of appeals
64. Time within which appeals must be lodged
65. Responding statements
66. Processing of appeals
67. Appeal panels
68. Decision on appeals
CHAPTER 8
GENERAL
MATTERS AFFECTING APPLICATIONS AND APPEALS
Part 1: Environmental Management Frameworks
69. Purpose of this Part
70. Draft environmental management
frameworks
71. Contents
72. Adoption
Part 2: National and provincial
guidelines
73. National guidelines
74. Provincial guidelines
75. Legal status of guidelines
76. Draft guidelines to be published for
public comment
Part 3: Other matters
77. Failure to comply with requirements for
consideration of applications and
appeals
78. Resubmission of similar applications
79. Compliance monitoring
80. Assistance to people with special needs
81 Offences
CHAPTER 9
TRANSITIONAL
ARRANGEMENTS AND COMMENCEMENT
82. Definition
83. Continuation of things done and
authorisations issued under previous regulations
84. Pending applications and appeals
85. Existing policies and guidelines
86. Continuation of regulations regulating
authorisations for activities in certain coastal areas
87. Short title and commencement
CHAPTER 1
INTERPRETATION
AND PURPOSE OF THESE REGULATIONS
1. (1) In these Regulations any word or
expression to which a meaning has been assigned in the Act has that meaning,
and unless the context requires otherwise –
“activity” means an
activity identified –
(a) in Government Notice No. R. 386 and No. R. 387
of 2006 as a listed activity; or
(b) in
any other notice published by the Minister or MEC in terms of section 24D of the Act as a listed activity
or specified activity;
“alternatives”, in relation to a
proposed activity, means different means of meeting the general purpose and
requirements of the activity, which may include alternatives to –
(a) the property on which or
location where it is proposed to undertake
the activity;
(b) the type of activity to be undertaken;
(c) the design or layout of the activity;
(d) the technology to be used in the
activity; and
(e) the operational aspects of the activity;
“applicant” means a person who has
submitted or intends to submit an application;
“application” means an application for
–
(a) an environmental authorisation in terms
of Chapter 3 of these Regulations;
(b) an
amendment to an environmental
authorisation in terms of Chapter 4 of these Regulations or
(c) an
exemption
from a provision of these Regulations in terms of Chapter 5 of these Regulations;
“basic assessment” means a process
contemplated in regulation 22;
“basic
assessment report” means a report contemplated in regulation 23;
“cumulative impact”, in relation to an activity, means
the impact of an activity that in itself may not be significant but may become
significant when added to the existing and potential impacts eventuating from
similar or diverse activities or undertakings in the area;
“EAP” means an environmental
assessment practitioner as defined in section 1 of the Act;
“environmental impact assessment”, in relation to an application to
which scoping must be applied, means the process of collecting, organising,
analysing, interpreting and communicating information that is relevant to the
consideration of that application;
“environmental impact assessment report” means a report
contemplated in regulation 32;
“environmental management plan” means an environmental management plan in
relation to identified or specified activities envisaged in Chapter 5 of the
Act and described in regulation 34;
“guidelines” means any national guidelines and provincial guidelines
issued in terms of Chapter 8 of these Regulations;
“independent”, in relation to an EAP or a person compiling a
specialist report or undertaking a specialised process or appointed as a member
of an appeal panel, means –
(a) that
such EAP or person has no business, financial, personal or other interest in
the activity, application or appeal in respect of which that EAP or person is
appointed in terms of these Regulations other than fair remuneration for work
performed in connection with that activity, application or appeal; or
(b) that there are no
circumstances that may compromise the objectivity of that EAP or person in performing such work;
“interested
and affected party” means an interested and affected party contemplated in
section 24(4)(d) of the Act, and which in terms of that section includes –
(a) any person, group of persons or
organisation interested in or affected by
an activity; and
(b) any organ of state that may have
jurisdiction over any aspect of the activity;
“linear
activity” means an activity that is undertaken
across several properties and which affects the environment or any aspect of
the environment along the course of the activity in different ways, and
includes a road, railway line, power line, pipeline or canal;
“ocean-based
activity” means an activity in the territorial waters of the Republic;
“plan of
study for environmental impact assessment” means a document contemplated in
regulation 29(1)(i) which forms part of a scoping report and sets out how an
environmental impact assessment must be conducted;
“public
participation process” means a process in which potential interested and affected parties are given an
opportunity to comment on, or raise issues relevant to, specific matters;
“registered
interested and affected party”, in relation to an application, means an interested and affected party whose
name is recorded in the register opened for that application in terms of
regulation 57;
“scoping” means a process
contemplated in regulation 28(e);
“scoping
report” means a report contemplated in regulation 29;
“significant impact” means an impact that by its magnitude, duration, intensity
or probability of occurrence may have a notable effect on one or more aspects
of the environment;
“specialised process” means a process to obtain
information which –
(a) is
not readily available without undertaking the process; and
(b) is
necessary for informing an assessment or evaluation of the impacts of an activity,
and includes risk assessment and cost benefit
analysis;
“the Act” means the National Environmental Management Act,1998 (Act
No. 107 of 1998).
(2) When a period of days must in terms of
these Regulations be reckoned from or after a particular day, that period must
be reckoned as from the start of the day following that particular day to the
end of the last day of the period, but if the last day of the period falls on a
Saturday, Sunday or public holiday, that period must be extended to the end of
the next day which is not a Saturday, Sunday or public holiday.
2. The purpose of these
Regulations is to regulate procedures and criteria as contemplated in Chapter 5
of the Act for the submission, processing, consideration and decision of
applications for environmental authorisation of activities and for matters
pertaining thereto.
CHAPTER 2
COMPETENT
AUTHORITIES
Identification
of competent
authorities
3. (1) All
applications in terms of these Regulations must be decided by a competent
authority.
(2) The competent authority who must consider and
decide an application in respect of a specific activity must be determined with
reference to Government Notice No.
R. 386 and No. R. 387 of 2006,
including any further notices that may be issued in terms of section 24D of the
Act.
(3) Any dispute or disagreement in respect
of who the competent authority should be in relation to any specific
application must be resolved by the Minister and the MEC of the relevant
province or by the Minister and delegated organ of state, as the case may be.
Where to
submit applications
4. (1) If the Minister is the competent
authority in respect of a specific application, the application must be
submitted to the Department of Environmental Affairs and Tourism.
(2) If
an MEC is the competent authority in respect of a particular application, the
application must be submitted to the provincial department responsible for
environmental affairs in that province.
(3) If
the Minister or MEC has in terms of section 42 of the Act delegated any powers
or duties of a competent authority in relation to an activity to which an
application relates to an organ of state, the application must be submitted to
that delegated organ of state.
Assistance
by competent authorities to applicants
5. A competent authority
may, on request by an applicant or an EAP managing an application, and subject
to the payment of any reasonable charges –
(a) give the applicant or EAP access to any
guidelines and information on practices
that have been developed or to any other information
in the possession of the competent authority that is relevant
to
the application; or
(b) advise the applicant or EAP, either in
writing or by way of discussions, of
the nature and extent of any of the processes that must be followed in order to comply with the Act and
these Regulations.
Consultation
between competent authorities and other organs of
state having jurisdiction
6. Where an application in respect of any activity requiring
environmental authorisation in terms of these Regulations must also be made in
terms of other legislation and that other legislation requires that information
must be submitted or processes must be carried out that are substantially
similar to information or processes required in terms of these Regulations, the
Minister or MEC, in giving effect to Chapter 3 of the Constitution and section
24(4)(g) of the Act, must take steps to enter into a written agreement with the
authority responsible for administering the legislation in respect of the
co-ordination of the requirements of the legislation and these Regulations to
avoid duplication in the submission of such information or the carrying out of
such processes.
Competent authorities’ right of
access to information
7. (1) A competent authority is entitled to all
information that reasonably has or may have the potential of influencing any
decision with regard to an application.
(2) Unless
that information is protected by law, an applicant or EAP or other person in
possession of that information must, on request by the competent authority,
disclose that information to the competent authority, whether or not such
information is favourable to the applicant.
Criteria
to be taken into account by competent authorities when considering applications
8. When
considering an application the competent authority must –
(a) comply
with the Act, these Regulations and all other applicable legislation; and
(b) take
into account all relevant factors, including –
(i) any
pollution, environmental impacts or environmental degradation likely to be caused if the
application is approved or refused;
(ii) the impact on the
environment
of the activity which is the subject
of
the application, whether alone or together with existing operations or
activities;
(iii) measures that could be taken –
(aa) to protect the environment from harm as a
result of the activity
which is the subject of the application; and
(bb) to prevent, control, abate or
mitigate any pollution, environmental
impacts or environmental degradation;
(iv) the
ability of the applicant to implement mitigation measures and to comply with any conditions
subject to which the application may
be granted;
(v) any
feasible and reasonable alternatives to the activity which is
the subject of the application and any feasible and reasonable
modifications or changes to the activity that may minimise harm
to the environment;
(vi) any information and
maps compiled in terms of section 24 (3) of the Act, including any
environmental management frameworks compiled in terms of Part 1 of Chapter 8 of these Regulations, to the extent that such information and maps
and frameworks are relevant to the application;
(vii) the information contained in the application form, reports,
comments,
representations and other documents submitted in terms of these Regulations to the competent
authority in
connection with the
application;
(viii) any comments received from organs of state that have jurisdiction over
any aspect of the activity which is the subject of
the application; and
(ix) any
guidelines that are relevant to the application.
Timeframes for competent
authorities
9. (1) A
competent authority must strive to meet timeframes applicable to competent
authorities in terms of these Regulations.
(2) If
the competent authority is an organ of state acting under delegated powers and
duties in terms of section 42 or 42A of the Act and that organ of state is
unable to meet any timeframe set by a provision of these Regulations, the
delegated organ of state must notify the Minister or MEC.
Decision on applications by
competent authorities
10. (1) After a competent authority has reached
a decision on an
application,
the competent authority must, in writing and within 10 days –
(a) notify the applicant of the decision and
of the period within which the applicant must comply with subregulation (2);
(b) give reasons for the
decision to the applicant; and
(c) draw the attention of the applicant to
the fact that an appeal may be lodged against the decision in terms of Chapter 7 of these Regulations, if such appeal is available in the
circumstances of the decision.
(b) draw their attention to the fact that an
appeal may be lodged against
the decision in terms of Chapter 7 of these Regulations, if such appeal is available in the
circumstances of the decision.
Registry of applications and record
of decisions
11. A competent authority
must keep –
(a) a register of all
applications received by the competent authority in terms of these Regulations;
and
(b) records of all decisions in respect of
environmental authorisations.
Liability of competent authorities
as to costs of applications
12. A competent authority is
not liable for any costs incurred by an applicant in complying with these
Regulations.
CHAPTER 3
APPLICATIONS
FOR ENVIRONMENTAL AUTHORISATIONS
Part 1: General matters
Applications
13. (1) An application for environmental
authorisation of an activity must be made to the competent authority referred
to in regulation 3.
(2) An application must –
(a) be
made on an official application form published by or obtainable from the
relevant competent authority; and
(b) when submitted in terms
of regulation 24(b) or 27(b) be accompanied by –
(i) the
written consent referred to in regulation 16(1)
or proof that regulation
16(3) has been complied with, if the
applicant is not the
owner of the land on which the activity is to be undertaken; and
(ii) the
prescribed application fee, if any.
Checking of applications
for compliance with formal requirements
14. (1) On receipt of an application, the
competent authority to which the application is submitted must check whether
the application –
(a) is properly completed and that it
contains the information required in the
application form;
(b) is accompanied by any
reports, other documents and fees required in terms of these Regulations; and
(c) has taken into account any guideline
applicable to the submission of
applications.
(2) The competent authority must, within 14
days of receipt of the
application, and in writing –
(a) acknowledge receipt of the application,
if the application is in order; or
(b) reject the application, if it is not in
order.
(3)
The EAP managing an application that has been rejected in
terms of subregulation (2) may
correct that application and resubmit it to the
competent authority.
(4)
Subregulations (1) and (2) apply afresh to a corrected
application submitted to the
competent authority in terms of subregulation (3).
Combination of applications
15. (1) If an applicant intends undertaking two
or more activities as part of the same development, a single application on one
application form must be submitted in respect of all those activities.
(3) If the competent authority grants
permission in terms of subregulation (2), the application must be dealt with as
a consolidated process in respect of all the activities covered by the
application, but the potential environmental impacts of each activity must be
considered in terms of the location where the activity is to be undertaken.
Activities on land owned by person
other than applicant
16. (1) If the applicant is not the owner of the
land on which the activity is to be undertaken, the applicant must, before
applying for an environmental authorisation in respect of that activity, obtain
the written consent of the landowner to undertake the proposed activity on that
land.
(2) A
written consent contemplated in subregulation (1) must be in a form agreed to
or determined by the competent authority.
(3) Subregulation
(1) does not apply in respect of a linear activity, provided the applicant has
given notice of the proposed activity to the owners of the land on which the
activity is to be undertaken as soon as the proposed route or alternative routes
have been identified.
Appointment of EAPs to manage
applications
17. (1) Before applying for environmental
authorisation of an activity, an applicant must appoint an EAP at own cost to
manage the application.
(2) The
applicant must –
(a) take all reasonable
steps to verify whether the EAP to be appointed complies with regulation 18(a) and (b); and
(b) provide the EAP with
access to all information at the disposal of the applicant regarding the
application, whether or not such information is favourable to the applicant.
General requirements for EAPs
18. An EAP appointed in terms
of regulation 17(1) must –
(a) be independent;
(b) have expertise in conducting
environmental impact assessments, including
knowledge of the Act, these Regulations and any
guidelines
that have relevance to the proposed activity;
(c) perform the work relating to the
application in an objective manner, even
if this results in views and findings that are not favourable to the applicant;
(d) comply with
the Act, these Regulations and all other applicable legislation;
(e) take into account, to
the extent possible, the matters listed in regulation 8(b) when preparing the application and
any report relating to the application;
and
(f) disclose to the
applicant and the competent authority all material information in the possession of the EAP that reasonably
has or may have the potential of
influencing –
(i) any
decision to be taken with respect to the application by the competent authority in terms of
these Regulations; or
(ii) the objectivity of any
report, plan or document to be prepared by the EAP in terms of these
Regulations for submission to the competent authority.
Disqualification of EAPs
19. (1) If the competent authority at any stage
of considering an application has reason to believe that the EAP managing an
application may not be independent in respect of the application, the competent
authority must –
(a) notify the EAP of the reasons for the
belief; and
(b) afford the EAP an opportunity to make
representations to the competent
authority regarding his or her independence, in writing.
(2) If,
after considering the matter, the competent authority is unconvinced of the
independence of the EAP, the competent authority must in writing, inform the
EAP and the applicant accordingly and may –
(a) refuse to accept any
further reports or input from the EAP in respect of the application in
question;
(b) request the applicant to
commission, at own cost, an external review by an independent person of any
reports prepared or processes conducted by the EAP in connection with the
application;
(c) request the applicant to appoint, at own
cost, another EAP –
(i) to
redo any specific aspects of the work done by the previous EAP
in connection with the application; and
(ii) to
complete any unfinished work in connection with the
application; or
(d) request
the applicant to take such action as the competent authority
requires
to remedy the effects of the lack of independence of the EAP on the
application.
(3) If
the application has reached a stage where a register of interested and affected
parties has been opened in terms of regulation 57, the applicant must
inform all registered interested and affected parties of any decisions taken by
the competent authority in terms of subregulation (2).
Determination of assessment process
applicable to application
20. (1) When appointed in terms of regulation 17(1),
an EAP must in accordance with regulation 21
determine whether basic assessment or scoping must be applied to the application,
taking into account –
(a) any guidelines
applicable to the activity which is the subject of the application; and
(b) any advice given by the competent
authority in terms of regulation 5 (b).
(2) An
application must be managed in accordance with –
(a) Part 2 of this Chapter
if basic assessment must be applied to the application; or
(b) Part 3 of this Chapter if scoping must
be applied to the application.
Criteria for determining whether
basic assessment or scoping is to be applied to applications
21. (1) Basic assessment must be applied to an
application if the authorisation applied for is in respect of an activity
listed in –
(a) Government Notice No. R. 386 of 2006; or
(b) a notice issued by the Minister or an
MEC in terms of section 24D of
the
Act identifying further activities for which environmental authorisation is required and
stipulating that the procedure described
in
Part 2 of this Chapter must be applied to applications for environmental
authorisation in respect of those activities.
(2) Scoping
must be applied to an application if –
(a) the authorisation applied for is in
respect of an activity listed in –
(i) Government
Notice No. R. 387 of 2006;
(ii) a
notice issued by the Minister or an MEC in terms of section 24 D of the Act identifying further
activities for which
environmental
authorisation is required and stipulating that the procedure described in Part 3
of this Chapter must be applied to applications for environmental authorisation
in respect of those activities;
(b) permission has been granted in terms of
subregulation (3) for scoping instead
of basic assessment to be applied to the
application;
or
(c) the application is for
two or more activities as part of the same development and scoping must in terms of paragraph (a) or (b) be
applied in respect of any of the activities.
(3) If
an applicant intends undertaking an activity to which basic assessment must be
applied in terms of subregulation (1) and the applicant, on the advice of the
EAP managing the application, is for any reason of the view that it is unlikely
that the competent authority will be able to reach a decision on the basis of
information provided in a basic assessment report, the applicant may apply, in
writing, to the competent authority for permission to apply scoping instead of
basic assessment to the application.
Part 2: Applications subject to basic assessment
Steps to be taken before submission
of application
22. If basic assessment must
be applied to an application, the EAP managing the application must before
submitting the application to the competent authority –
(a) conduct at least a
public participation process as set out in regulation 56;
(b) give notice, in writing, of the proposed
application to –
(i) the
competent authority; and
(ii) any
organ of state which has jurisdiction in respect of any aspect of the activity;
(c) open and maintain a register of all
interested and affected parties in
respect of the application in
accordance with regulation 57;
(d) consider all objections and
representations received from interested
and
affected parties following the public participation process conducted in terms
of paragraph (a), and subject the proposed application to basic assessment by
assessing –
(i) the
potential impacts of the activity on the environment;
(ii) whether
and to what extent those impacts can be mitigated; and
(iii) whether there are any significant issues and impacts that
require further
investigation;
(e) prepare a basic
assessment report in accordance with regulation 23; and
(f) give all registered
interested and affected parties an opportunity to comment on the basic
assessment report in accordance with regulation 58.
Content of basic assessment reports
23. (1) The EAP managing an application to which
this Part applies must prepare a basic assessment report in a format published
by, or obtainable from, the competent authority.
(2) A
basic assessment report must contain all the information that is necessary for
the competent authority to consider the application and to reach a decision
contemplated in regulation 26, and must include –
(a) details of –
(i) the
EAP who prepared the report; and
(ii) the expertise of the EAP to carry out
basic assessment
procedures;
(b) a description of the proposed activity;
(c) a description of the property on which
the activity is to be undertaken and
the location of the activity on the property, or if it is –
(i) a
linear activity, a description of the route of the activity; or
(ii) an ocean-based activity, the
coordinates within which the
activity is to be undertaken;
(d) a description of the environment that
may be affected by the proposed activity
and the manner in which the geographical, physical, biological,
social,
economic and cultural aspects of the environment may be
affected
by the proposed activity;
(e) an identification of all
legislation and guidelines that have been considered in the preparation of the
basic assessment report;
(f) details of the public
participation process conducted in terms of regulation 22(a) in
connection with the application, including –
(i) the
steps that were taken to notify potentially interested and affected
parties of the proposed application;
(ii) proof that notice
boards, advertisements and notices notifying potentially interested and
affected parties of the proposed application have been displayed, placed or
given;
(iii) a list of all persons, organisations and organs of state that
were registered in terms
of regulation 57 as
interested and affected parties
in relation to the application; and
(iv) a summary of the issues
raised by interested and affected parties, the date of receipt of and the
response of the EAP to those issues;
(g) a description of the
need and desirability of the proposed activity and any identified alternatives
to the proposed activity that are feasible and reasonable, including the
advantages and disadvantages that the proposed activity or alternatives will
have on the environment and on the community that may be affected by the
activity;
(h) a description and assessment of the
significance of any environmental impacts,
including cumulative impacts, that may occur as a result of the
undertaking of the activity or
identified alternatives or as a result of any construction,
erection or decommissioning associated with the undertaking of the activity;
(i) any environmental management and
mitigation measures proposed by the
EAP;
(j) any inputs made by
specialists to the extent that may be necessary; and
(k) any specific information required by the
competent authority.
(3) In
addition, a basic assessment report must take into account –
(a) any relevant guidelines; and
(b) any practices that have been developed
by the competent authority in respect
of the kind of activity which is the subject of the application.
Submission of application to
competent authority
24. After having complied
with regulation 22, the EAP managing
the application may –
(a) complete the application form for
environmental authorisation of the relevant
activity; and
(b) submit the completed application form to
the competent authority, together
with –
(i) the
basic assessment report;
(ii) copies
of any representations, objections and comments received in connection with the application
or the basic
assessment report;
(iii) copies of the minutes of any meetings held by the EAP with interested and
affected parties and other role players which
record the views of the participants;
(iv) any
responses by the EAP to those representations, objections, comments and views;
(v) a
declaration of interest by the EAP on a form provided by the competent authority; and
(vi) the prescribed
application fee, if any, and any documents referred to in regulation 13(2)(b).
Consideration of
applications
25. (1) A competent authority must within 30
days of acknowledging receipt of an application in terms of regulation 14(2)(a),
consider the application and the basic assessment report.
(2) If
the competent authority is unable to decide the application on the basic
assessment report alone, the competent authority must request the EAP managing
the application –
(a) to submit such additional information as
the competent authority may
require;
(b) to submit a report on any specialist
study or specialised process as
the competent authority may require in relation to any aspect of the proposed activity;
(c) to suggest, consider or
comment on feasible and reasonable alternatives; or
(d) to subject the
application to scoping and environmental impact assessment.
(3) The
competent authority may reject the basic assessment report if –
(a) it does not comply with
regulation 23 in a material respect; or
(b) it is based on an insufficient public
participation process.
(4) (a) A basic assessment report that has been
rejected in terms of subregulation (3), may be amended and resubmitted by the EAP to the
competent authority.
(b) Comments that are made by interested and
affected parties in respect of an amended basic assessment report must be
attached to the report, but the EAP need not make further changes to the report
in response to such comments.
(5) On
receipt of any information, reports, suggestions or comments requested in terms
of subregulation (2)(a), (b) or (c) or any amended basic assessment report
submitted in terms of subregulation (4), as the case may be, the competent
authority must reconsider the application.
(6) If
the competent authority requests in terms of subregulation (2) (d) that the
application be subjected to scoping, the application must be proceeded with in
accordance with regulations 30,
31, 32, 33, 34,
35 and 36.
Decision on applications
26. (1) A competent authority must within 30
days of acknowledging receipt of an application in terms of regulation 14
or, if regulation 25(2)(a), (b) or
(c) has been applied or if the basic assessment report has been rejected in
terms of regulation 25(3), within 30
days of receipt of the required information, reports, suggestions or comments
or the amended basic assessment report, in writing –
(a) grant authorisation in respect of all or
part of the activity applied for; or
(b) refuse authorisation in respect of all
or part of the activity.
(2) To
the extent that authorisation is granted for an alternative, such alternative
must for the purposes of subregulation (1) be regarded as having been applied
for.
(3) On
having reached a decision, the competent authority must comply with regulation 10(1).
Part 3: Applications subject to scoping and
environmental impact assessment
Submission of application to competent
authority
27. If scoping must be
applied to an application, the EAP managing the application must –
(a) complete the application form for
environmental authorisation of the relevant
activity; and
(b) submit the completed
application form to the competent authority, together with –
(i) a declaration of interest by the EAP on
a form provided by the competent
authority; and
(ii) the prescribed
application fee, if any, and any documents referred to in regulation 13(2)(b).
Steps to be taken after submission
of application
28.
After having submitted an application, the EAP managing the application must –
(a) conduct at least the
public participation process set out in regulation 56;
(b) give notice, in writing, of the proposed
application to any organ of state which
has jurisdiction in respect of any aspect of the activity;
(c) open and maintain a register of all
interested and affected parties in respect
of the application in accordance with regulation 57;
(d)
consider all objections and representations received from
interested and affected parties following the public participation process;
(e)
subject the application to scoping by identifying –
(i) issues
that will be relevant for consideration of the application;
(ii) the
potential environmental impacts of the proposed activity; and
(iii) alternatives to the proposed activity that are feasible and reasonable;
(f) prepare a scoping report in accordance
with regulation 29; and
(g) give all registered interested and
affected parties an opportunity to comment
on the scoping report in accordance with regulation 58.
Content of scoping reports
29. (1) A scoping report must contain all the
information that is necessary for a proper understanding of the nature of
issues identified during scoping, and must include –
(a) details of –
(i) the
EAP who prepared the report; and
(ii) the
expertise of the EAP to carry out scoping procedures;
(b) a description of the proposed activity
and of any feasible and reasonable
alternatives that have been identified;
(c) a description of the property on which
the activity is to be undertaken and
the location of the activity on the property, or if it is –
(i) a
linear activity, a description of the route of the activity; or
(ii) an
ocean-based activity, the coordinates where the activity is to be undertaken;
(d) a
description of the environment that may be affected by the activity and the manner in which the physical,
biological, social, economic and
cultural aspects of the environment
may be affected by the proposed activity;
(e) an identification of all
legislation and guidelines that have been considered in the preparation of the
scoping report;
(f) a description of environmental issues
and potential impacts, including cumulative
impacts, that have been identified;
(g) information on the methodology that will
be adopted in assessing the potential
impacts that have been identified, including any specialist studies or specialised processes that will be
undertaken;
(h) details of the public
participation process conducted in terms of regulation 28(a), including
–
(i) the
steps that were taken to notify potentially interested and affected
parties of the application;
(ii) proof that notice
boards, advertisements and notices notifying potentially interested and
affected parties of the application have been displayed, placed or given;
(iii) a list of all persons or organisations that were identified
and registered
in terms of regulation 57 as
interested and affected parties
in relation to the application; and
(iv) a
summary of the issues raised by interested and affected
parties, the date of receipt of and the response of the EAP to
those issues;
(i) a plan of study for environmental
impact assessment which sets out the
proposed approach to the environmental impact assessment of the application, which must include –
(i) a
description of the tasks that will be undertaken as part of the environmental impact assessment
process, including any specialist
reports or specialised processes, and the manner in which such tasks will be undertaken;
(ii) an
indication of the stages at which the competent authority will be consulted;
(iii) a description of the proposed method of assessing the environmental
issues and alternatives, including the option of not proceeding with the activity; and
(iv) particulars
of the public participation process that will be conducted during the environmental impact
assessment process;
and
(j) any specific information required by
the competent authority.
(2) In
addition, a scoping report must take into account any guidelines applicable to
the kind of activity which is the subject of the application.
Submission of scoping reports to
competent authority
30. The
EAP managing an application must submit the scoping report compiled in terms of
regulation 28(f) to the competent
authority, together with –
(a) copies of any
representations, objections and comments received in connection with the
application or the scoping report from interested and affected parties;
(b) copies of the minutes of any meetings
held by the EAP with interested
and
affected parties and other role players which record the views of the participants; and
(c) any responses by the EAP to those
representations, objections,
comments and views.
Consideration of scoping
reports
31. (1) The competent authority must, within 30
days of receipt of a scoping report, consider the report, and in writing –
(b) request the EAP to make such amendments
to the report or the plan of study for environmental impact assessment as the competent
authority may require;
(c) reject
the scoping report or the plan of study for environmental impact
assessment
if it –
(i) does not contain material information
required in terms of these Regulations;
or
(ii) has not taken into account guidelines
applicable in
respect of scoping
reports and plans of study for environmental impact
assessment.
(2) In addition to complying with
subregulation (1), the competent authority may advise the EAP of any matter
that may prejudice the success of the application.
(3) A
scoping report or plan of study for environmental impact assessment that has
been rejected by the competent authority in terms of subregulation (1)(d) may
be amended and resubmitted by the EAP.
(4) On receipt of the amended scoping report
or plan of study for environmental impact assessment, the competent authority
must reconsider the scoping report or plan of study for environmental impact
assessment in accordance with subregulation (1).
Environmental
impact assessment reports
32. (1) If a competent authority accepts a
scoping report and advises the EAP in terms of regulation 31(1)(a) to proceed with the tasks contemplated in the plan of
study for environmental impact assessment, the EAP must proceed with those
tasks, including the public participation process for environmental impact
assessment referred to in regulation 29(1)(i)(iv) and prepare an
environmental impact assessment report in respect of the proposed activity.
(2) An environmental impact assessment
report must contain all information that is necessary for the competent
authority to consider the application and to reach a decision contemplated in
regulation 36, and must include –
(a) details of –
(i) the
EAP who compiled the report; and
(ii) the expertise of the EAP to carry out
an environmental impact assessment;
(b) a detailed description of the proposed
activity;
(c) a description of the property on which
the activity is to be undertaken and
the location of the activity on the property, or if it is –
(i) a
linear activity, a description of the route of the activity; or
(ii) an
ocean-based activity, the coordinates where the activity is to be undertaken;
(d) a description of the environment that
may be affected by the activity and
the manner in which the physical, biological, social, economic and cultural aspects of the environment may be
affected by the proposed activity;
(e) details of the public
participation process conducted in terms of subregulation (1), including –
(i) steps
undertaken in accordance with the plan of study;
(ii) a
list of persons, organisations and organs of state that were registered as interested and
affected parties;
(iii) a summary of comments
received from, and a summary of issues raised by registered interested and
affected parties, the date of receipt of these comments and the response of the
EAP to those comments; and
(iv) copies
of any representations, objections and comments received from registered interested and
affected parties;
(f) a
description of the need and desirability of the proposed activity and
identified
potential alternatives to the proposed activity, including advantages and
disadvantages that the proposed activity or alternatives may have on the
environment and the community that may
be
affected by the activity;
(g) an indication of the methodology used in
determining the significance of
potential environmental impacts;
(h) a description and comparative assessment
of all alternatives identified
during the environmental impact
assessment process;
(i) a summary of the findings and
recommendations of any specialist report
or report on a specialised process;
(j) a description of all environmental
issues that were identified during the
environmental impact assessment
process, an assessment of the significance
of each issue and an indication of the extent to which the issue could be addressed by the adoption of
mitigation measures;
(k) an assessment of each identified
potentially significant impact, including –
(i)
cumulative impacts;
(ii)
the nature of the impact;
(iii)
the extent and duration of the impact;
(iv)
the probability of the impact occurring;
(v)
the degree to which the impact can be reversed;
(vi)
the degree to which the impact may cause irreplaceable loss
of resources; and
(vii)
the degree to which the impact can be mitigated;
(l) a description of any assumptions,
uncertainties and gaps in knowledge;
(m) an opinion as to whether the activity
should or should not be authorised,
and if the opinion is that it should be authorised, any conditions that should be made in respect of that authorisation;
(n) an environmental impact statement which
contains –
(i) a summary of the key findings of the
environmental impact assessment;
and
(ii) a comparative assessment of the
positive and negative implications
of the proposed activity and identified alternatives;
(o) a draft environmental
management plan that complies with
regulation 34;
(p) copies of
any specialist reports and reports on specialised processes complying with regulation 33; and
(q) any specific
information that may be required by the competent authority.
Specialist reports and
reports on specialised processes
33. (1) An applicant or the EAP managing an
application may appoint a person who is independent to carry out a specialist
study or specialised process.
(2) A
specialist report or a report on a specialised process prepared in terms of
these Regulations must contain –
(a) details of –
(i) the
person who prepared the report; and
(ii) the expertise of that person to carry
out the specialist study
or specialised process;
(b) a declaration that the person is
independent in a form as may be specified
by the competent authority;
(c) an indication of the scope of, and the
purpose for which, the report was prepared;
(d) a description of the
methodology adopted in preparing the report or carrying out the specialised
process;
(e) a description of any
assumptions made and any uncertainties or gaps in knowledge;
(f) a
description of the findings and potential implications of such findings on the impact of the proposed activity,
including identified
alternatives,
on the environment;
(g) recommendations in respect of any
mitigation measures that should be considered
by the applicant and the competent authority;
(h) a description of any consultation process
that was undertaken during the
course of carrying out the study;
(i) a summary and copies of any comments
that were received during any
consultation process; and
(j) any other information requested by the
competent authority.
Content of draft environmental
management plans
34. A
draft environmental management plan must include –
(a) details of –
(i) the person who prepared
the environmental management plan; and
(ii) the expertise of that
person to prepare an environmental management plan;
(b) information
on any proposed management or mitigation measures that will be taken to address
the environmental impacts that have been identified in a report contemplated by
these Regulations, including environmental impacts or objectives in respect of
–
(i) planning and design;
(ii) pre-construction and construction
activities;
(iii) operation or undertaking of the
activity;
(iv)
rehabilitation of the
environment; and
(v)
closure, where relevant.
(c) a detailed description of the aspects of the activity that
are covered by the draft
environmental management plan;
(d) an identification of the persons who will be responsible for
the implementation of the measures
contemplated in paragraph (b);
(e) where
appropriate, time periods within which the measures contemplated in the draft
environmental management plan must be implemented; and
(f) proposed mechanisms for monitoring compliance with the environmental management plan and
reporting thereon.
Consideration of
environmental impact assessment reports
35. (1) The competent authority must, within 60
days of receipt of an environmental impact assessment report, in writing –
(a) accept the report;
(b) notify the applicant that the report has
been referred for specialist review in
terms of section 24I of the Act ;
(c) request the applicant to
make such amendments to the report as the competent authority may require for
acceptance of the environmental impact assessment report; or
(d) reject the report if it does not comply
with regulation 32(2) in a material respect.
(2) (a) An environmental impact assessment
report that is rejected in terms of subregulation (1)(d) may be amended and
resubmitted by the EAP.
(b) On receipt of the amended report, the
competent authority must reconsider the report in accordance with subregulation
(1).
Decision on applications
36. (1) A competent
authority must within 45 days of acceptance of an environmental impact
assessment report in terms of regulation 35
or, if the report was referred for specialist review in terms of section
24I of the Act, within 45 days of receipt of the findings of the specialist
reviewer, in writing –
(a) grant authorisation in respect of all or
part of the activity applied for; or
(b) refuse authorisation in respect of all
or part of the activity.
(2) To
the extent that authorisation is granted for an alternative, such alternative
must for the purposes of subregulation (1) be regarded as having been applied
for.
(3) On
having reached a decision, the competent authority must comply with regulation 10(1).
Part 4: Environmental authorisations
Issue of environmental
authorisations
37. (1) If
the competent authority decides to grant authorisation, the competent authority
must issue an environmental authorisation complying with regulation 38 to
and in the name of the applicant.
(2) If
in the case of an application referred to in regulation 15, the competent
authority decides to grant authorisation in respect of more than one activity,
the competent authority may issue a single environmental authorisation covering
all the activities for which authorisation was granted.
Contents of environmental
authorisations
38. (1) An environmental authorisation must specify –
(a) the name, address and
telephone number of the person to whom the authorisation
is issued;
(b) a description of the
activity that is authorised;
(c) a description of the
property on which the activity is to be undertaken and the location of the
activity on the property, or if it is –
(i) a
linear activity, a description of the route of the activity; or
(ii) an
ocean-based activity, the coordinates within which the
activity is to be undertaken;
and
(d) the conditions subject to which the
activity may be undertaken, including
conditions determining –
(i) the
period for which the environmental authorisation is valid, if granted for a specific
period;
(ii) requirements for the management,
monitoring and reporting of the
impacts of the activity on the environment throughout the life
cycle of the activity; and
(iii) the transfer of rights and obligations when there is a change
of ownership in the
property on which the activity is to take
place.
(2) An
environmental authorisation may –
(a) provide that the authorised activity may
not commence before specified
conditions are complied with;
(b) require the holder of the authorisation
to furnish the competent authority
with reports prepared by the holder of the authorisation or a person who is independent, at
specified times or intervals –
(i) indicating
the extent to which the conditions of the authorisation are or are not being complied with;
(ii) providing
details of the nature of, and reasons for, any non- compliance with a condition of
the authorisation; and
(iii) describing any action
taken, or to be taken, to mitigate the effects of any non-compliance or to
prevent any recurrence of the non-compliance;
(c) require the holder of the authorisation
to furnish the competent authority
with environmental audit reports on the impacts of the authorised activity on the environment, at specified times or
intervals or whenever requested by
the competent authority; and
(d) include any other
condition that the competent authority considers necessary for the protection
of the environment.
CHAPTER 4
AMENDMENT
AND WITHDRAWAL OF ENVIRONMENTAL AUTHORISATIONS
General
39. (1) The competent authority referred to
in regulation 3 who issued an environmental authorisation
has jurisdiction in all matters pertaining to the amendment or withdrawal of
that authorisation.
(2) An environmental authorisation may be
amended –
(a) on
application by the holder of the authorisation in accordance with Part 1 of this Chapter; or
(b) on
the initiative of the competent authority in accordance with Part 2 of this Chapter.
(3) An environmental authorisation may be
amended by –
(a) attaching
an additional condition or requirement;
(b) substituting
a condition or requirement;
(c) removing
a condition or requirement;
(d) changing
a condition or requirement;
(e) updating
or changing any detail on the authorisation; or
(f) correcting
a technical or editorial error.
(4) An environmental authorisation may be
withdrawn by the competent authority in accordance with Part 3 of this Chapter.
Part
1: Amendments on application by holders
of environmental
authorisations
Applications for amendment
40. The holder of an environmental authorisation may at any
time apply to the relevant competent authority for the amendment of the authorisation.
Submission of applications for
amendment
41. (1) An
application in terms of regulation 40
must be –
(a) on
an official application form published by or obtainable from the competent authority; and
(b) accompanied by the prescribed
application fee, if any.
(2) The
competent authority must, within 14 days of receipt of an application,
acknowledge receipt of the application, in writing.
Consideration of applications
42. (1) On receipt of an application made in
terms of regulation 40, the
competent authority –
(a) must consider whether granting the
application is likely to adversely affect
the environment or the rights or interests of other parties; and
(b) may for that purpose request the
applicant to furnish additional information.
(2) The competent authority must promptly
decide the application
if
–
(a) the application is for a non-substantive
amendment to the environmental
authorisation; or
(b) the environment or the rights or
interests of other parties are not likely to
be adversely affected.
(3) If
the application is for a substantive amendment, or if the environment or the
rights or interests of other parties are likely to be adversely affected, the
competent authority must, before deciding the application, request the
applicant to the extent appropriate –
(a) if necessary, to conduct a public participation process as referred to in
regulation 56 or any other public participation process
that may be appropriate in the circumstances to bring the proposed amendment to
the attention of potential interested and affected parties, including organs of
state which have jurisdiction in respect of any aspect of the relevant activity;
(b) to open and maintain a register of all
interested and affected parties in
respect of the application in
accordance with regulation 57;
(c) to conduct such
investigations and assessments as the competent authority may direct, to
prepare reports on those investigations and assessments, and, if the competent
authority so directs, to make use of an EAP for this purpose;
(d) to give registered interested and affected
parties an opportunity to submit comments
on those reports; and
(e) to submit to the competent authority
those reports, together with any
comments on those reports from
registered interested and affected parties.
(4) If the environment is likely to be adversely affected
in a way that would significantly impact on the environment, the
competent authority must –
(a) return the application to the applicant;
and
(b) request the applicant to submit an
application in terms of Chapter 3 of
these Regulations as if it is a new application for environmental
authorisation.
Decision on applications
43. (1) On having reached a decision on whether
or not to grant the application, the competent authority must comply with
regulation 10(1).
(2) If an application is approved,
the competent authority must issue an amended environmental authorisation to the
applicant
Part
2: Amendments
on initiative of competent authority
Purposes for which competent
authority may
amend environmental
authorisations
44. The
relevant competent authority may on
own initiative amend an environmental authorisation if it is necessary or
desirable –
(a) to prevent deterioration or further
deterioration of the environment;
(b) to achieve prescribed environmental
standards; or
(c) to accommodate demands brought about by impacts
on socio- economic circumstances and
it is in the public interest to meet those demands.
Process
45. (1) If a competent authority intends amending an environmental
authorisation in terms of regulation 44, the competent authority must first –
(a) notify the holder of the environmental
authorisation, in writing, of the proposed
amendment;
(b) give the holder of the environmental
authorisation an opportunity to submit
representations on the proposed amendment, in writing; and
(c) if necessary, conduct a public participation process as
referred to in regulation 56 or any
other public participation process that may be appropriate in the circumstances
to bring the proposed amendment to the attention of potential interested and affected
parties, including organs of state which have jurisdiction in respect of any
aspect of the relevant activity.
(2) The process referred to in subregulation
(1) must afford an opportunity to –
(a) potential
interested
and affected parties to submit to the competent authority written
representations on the proposed amendment; and
(b) the holder
of the environmental authorisation to comment on any representations
received in terms of paragraph (a) in writing.
(3) Subregulations (1)(c) and (2) need not
be complied with if the proposal is to amend the environmental authorisation in
a non-substantive way.
Decision
46. (1) On having reached a decision on whether
or not to amend the environmental authorisation,
the competent authority must notify the holder of the authorisation of
that decision.
(2) If
the decision is to amend the environmental
authorisation, the competent authority must –
(a) give to the holder
of the authorisation the reasons for the decision;
(b) draw the attention of the holder to the
fact that an appeal may be lodged against the decision in terms of Chapter 7 of these Regulations, if such appeal is available in the
circumstances of the decision; and
(c) issue
an amended environmental authorisation to the holder of
the authorisation.
Part 3: Withdrawal of environmental
authorisations
Circumstances in which withdrawals are permissible
47. The relevant competent authority may in accordance with
this Part withdraw an environmental authorisation if –
(a) a condition of the authorisation has
been contravened or is not being complied
with;
(b) the authorisation was obtained through –
(i) fraudulent
means; or
(ii) the
misrepresentation or non-disclosure of material information; or
(c) the activity is permanently or
indefinitely discontinued.
Withdrawal proceedings
48. (1) If the competent authority intends to consider the withdrawal
of an environmental authorisation, the competent authority must –
(a) notify the holder of the authorisation,
in writing, of the proposed withdrawal and the reasons why
withdrawal of the authorisation is considered;
(b) give the holder of the authorisation an
opportunity –
(i) to comment on any environmental audit report
submitted to or obtained by the
competent authority in terms of regulation 79(2);
and
(ii)
to
submit any representations on the proposed withdrawal which the holder of the
authorisation wishes to make; and
(c) conduct any appropriate public participation process to bring the proposed withdrawal
to the attention of potential interested and
affected parties, including organs
of state which have jurisdiction in
respect of any aspect of the
relevant activity, if the environment or
rights or interests of other
parties are likely to be adversely affected by
the withdrawal.
(2) The process referred to in subregulation
(1)(c) must afford an opportunity to –
(a) potential
interested
and affected parties to submit to the competent authority written
representations on the proposed withdrawal; and
(b) the holder
of the environmental authorisation to comment on any representations
received in terms of paragraph (a).
Suspension
of environmental
authorisations
49. (1) The
competent authority may by written notice to the holder of an environmental
authorisation suspend with immediate effect an environmental authorisation
which is the subject of withdrawal proceedings in terms of this Part if –
(a) there
are reasonable grounds for believing that the contravention or non-compliance with a condition of
the authorisation causes harm to the
environment; and
(b) suspension
of the authorisation is necessary to prevent harm or further harm to the
environment.
(2) Regulation 48(1)(b), (c) and (2) may be complied with either before or after
a suspension.
Decision
50. (1) On having reached a decision on whether
or not to withdraw the environmental
authorisation, the competent authority must notify the holder of the authorisation of
the decision in writing.
(2) If
the decision is to withdraw the environmental
authorisation, the competent authority must –
(a) give to the holder
of the authorisation the reasons for the decision; and
(b) draw the attention of the holder of the
environmental authorisation to the fact that an appeal may be lodged against the decision in terms of Chapter 7 of these Regulations, if such appeal is available in the
circumstances of the decision.
(3) The provisions of this Part do not
affect the institution of criminal proceedings against the holder
of an environmental authorisation in terms of section 24F(2) of the Act.
CHAPTER 5
EXEMPTIONS FROM PROVISIONS OF THESE REGULATIONS
Applications for exemptions
51. (1) Any person to whom a provision of these Regulations applies
may apply for an exemption from such provision in respect of a specific
activity to the competent authority referred to in regulation 3 who is the competent authority for the
activity in respect of which the exemption is sought.
(2) A person may be exempted from a
provision of these Regulations
requiring or regulating a public participation process, only if the rights or interests of other parties are not
likely to be adversely affected by
exemption from conducting a public participation process.
Submission of applications
52. (1) An application in terms of regulation 51 must be in writing, and must be
accompanied by –
(a) an
explanation of the reasons for the application;
(b) any
applicable supporting documents; and
(c) the
prescribed application fee, if any.
(2) The competent authority must, within 14
days of receipt of an application, acknowledge receipt of the application in
writing.
Consideration of
applications
53. (1) On
receipt of an application in terms of regulation 51, the competent authority –
(a) must consider whether
the granting or refusal of the application is likely to adversely affect the rights
or interests of other parties; and
(b) may for that purpose request the
applicant to furnish additional information.
(2) In addition to complying with
subregulation (1), the competent authority may advise the applicant of any
matter that may prejudice the success of the application.
(3) The
competent authority must promptly decide the application
if the rights or interests of other
parties are not likely to be adversely affected by the proposed exemption.
(4) If
the rights or interests of other parties are likely to be adversely affected by
the proposed exemption, the competent authority must, before deciding the
application, request the applicant –
(a) to
conduct at least a public participation process as set out in regulation 56, or any aspect of such process;
(b) to
open and maintain a register of all interested and affected parties in
respect
of the application in accordance with regulation 57; and
(c) to
submit any comments received from interested and affected parties following
such public participation process, to the competent authority.
Decision on applications
54. (1) On
having reached a decision on whether or not to grant the application, the
competent authority must, in writing and within 10 days -
(a)
notify the applicant of the decision;
(b)
give reasons for the decision to
the applicant;
(c)
draw the attention of the
applicant to the fact that an appeal may be lodged against the decision in
terms of Chapter 7 of these Regulations, if
such appeal is available in the circumstances of the decision
(d)
request the applicant to notify
potential or registered interested and affected parties, as the case may be of
-
(i)
the outcome of the application;
and
(ii)
the reasons for the decision;
and
(e)
request the applicant to draw
the attention of potential or registered interested and affected parties, as
the case may be, to the fact that an appeal may be lodged against the decision
in terms of Chapter 7 of these Regulations, if
such appeal is available in the circumstances of the decision. .
(2) If an application is
approved, the competent authority must issue a written
exemption notice to the applicant, stating –
(a) the name, address and
telephone number of the person to whom the exemption
is granted;
(b) the provision of these Regulations from
which exemption is granted;
(c) the activity in respect of which
exemption is granted;
(d) the conditions subject to which
exemption is granted,, including conditions relating to the transfer of the
written exemption notice; and
(e) the period for which exemption is granted,
if the exemption is granted for a
period.
Review of exemptions
55. (1) A
competent authority may –
(a) from time to time review any exemption
notice issued by it in terms of
regulation 54 ; and
(b) on good grounds, by written notice to
the person to whom exemption was
granted, withdraw or amend the exemption notice.
(2) The competent authority must before
withdrawing or amending an exemption
notice give the person to whom exemption was granted an opportunity to comment on the reasons for the withdrawal or
amendment in
writing.
CHAPTER 6
PUBLIC
PARTICIPATION PROCESSES
Public participation process
56. (1) This regulation only applies where
specifically required by a provision of these Regulations.
(2) The
person conducting a public participation process must take into account any
guidelines applicable to public participation and must give notice to all
potential interested and affected parties of the application which is subjected
to public participation by –
(a) fixing a notice board at
a place conspicuous to the public at the boundary or on the fence of -
(i) the site where the
activity to which the application relates is or is to be undertaken; and
(ii) any alternative site mentioned in the
application;
(b) giving written notice to –
(i) the owners and
occupiers of land adjacent to the site where the activity is or is to be
undertaken or to any alternative site;
(ii) the owners and
occupiers of land within 100 metres of the boundary of the site or alternative
site who are or may be directly affected by the activity;
(iii) the municipal
councillor of the ward in which the site or alternative site is situated and
any organisation of ratepayers that represents the community in the area;
(iv) the
municipality which has jurisdiction in the area; and
(v) any
organ of state having jurisdiction in respect of any aspect of the activity;
(c) placing an advertisement in –
(i) one
local newspaper; or
(ii) any
official Gazette that is published
specifically for the purpose of
providing public notice of applications or other submissions made in terms of these
Regulations; and
(d) placing an advertisement in at least one
provincial newspaper or national
newspaper, if the activity has or may have an impact that extends beyond the boundaries of the
metropolitan or local municipality in
which it is or will be undertaken: Provided that this paragraph need not be complied with if an
advertisement has been placed in an official Gazette referred to in subregulation
(c)(ii).
(3) A
notice, notice board or advertisement referred to in subregulation (2) must –
(a) give details of the application which is
subjected to public participation; and
(b) state –
(i) that
the application has been or is to be submitted to the competent authority in terms of these
Regulations, as the case may
be;
(ii) whether basic assessment or scoping
procedures are being
applied
to the application, in the case of an application for environmental
authorisation;
(iii) the nature and location of the activity to which the application relates;
(iv) where
further information on the application or activity can be obtained; and
(v) the
manner in which and the person to whom representations in respect of the application may
be made.
(4) A
notice board referred to in subregulation (2) must –
(a) be of a size at least 60cm by 42cm; and
(b) display the required information in
lettering and in a format as may be determined by the competent authority .
(5) If
an application is for a linear or ocean-based activity and strict compliance
with subregulation (2) is inappropriate, the person conducting the public
participation process may deviate from the requirements of that subregulation
to the extent and in the manner as may be agreed to by the competent authority.
(6) When
complying with this regulation, the person conducting the public participation
process must ensure that –
(a) information containing all relevant
facts in respect of the application is made
available to potential interested and
affected parties; and
(b) participation by potential interested
and affected parties is facilitated in
such
a manner that all potential interested and affected parties are provided with a
reasonable opportunity to comment on the application.
Register of interested and affected
parties
57. (1) An applicant or EAP managing an
application must open and maintain a register which contains the names and
addresses of –
(a) all persons who, as a consequence of the
public participation process
conducted in respect of that application in terms of regulation 56,
have submitted written comments or
attended meetings with the applicant
or EAP;
(b) all persons who, after
completion of the public participation process referred to in paragraph (a),
have requested the applicant or the EAP managing the application, in writing,
for their names to be placed on the register; and
(c) all organs of state which have
jurisdiction in respect of the activity to which
the application relates.
(2) An
applicant or EAP managing an application must give access to the register to
any person who submits a request for access to the register in writing.
Registered interested and affected
parties entitled to comment on submissions
58. (1) A registered interested and affected
party is entitled to comment, in writing, on all written submissions made to
the competent authority by the applicant or the EAP managing an application,
and to bring to the attention of the competent authority any issues which that
party believes may be of significance to the consideration of the application,
provided that –
(a) comments are submitted within –
(i) the
timeframes that have been approved or set by the competent authority; or
(ii) any
extension of a timeframe agreed to by the applicant or EAP;
(b) a copy of comments submitted directly to
the competent authority is served
on the applicant or EAP; and
(c) the interested and
affected party discloses any direct business, financial, personal or other
interest which that party may have in the approval or refusal of the
application.
(2) Before
the EAP managing an application for environmental authorisation submits a
report compiled in terms of these Regulations to the competent authority, the
EAP must give registered interested and affected parties access to, and an
opportunity to comment on the report in writing.
(3) Reports
referred to in subregulation (2) include –
(a) basic assessment reports;
(b) basic assessment reports amended and
resubmitted in terms of regulation 25 (4);
(c) scoping reports;
(d) scoping reports amended and resubmitted
in terms of regulation 31(3);
(e) specialist reports and reports on specialised processes compiled
in terms of regulation 33;
(f) environmental impact assessment reports
submitted in terms of regulation 32; and
(g) draft environmental management plans
compiled in terms of regulation 34.
(4) Any written comments received by the EAP
from a registered interested and affected party must accompany the report when
the report is submitted to the competent authority.
(5) A
registered interested and affected party may comment on any final report that
is submitted by a specialist reviewer for the purposes of these Regulations
where the report contains substantive information which has not previously been
made available to a registered interested and affected party.
Comments of
interested and affected parties to be recorded in reports submitted to
competent authority
59. The EAP managing an
application for environmental authorisation must ensure that the comments of interested
and affected parties are recorded in reports submitted to the competent
authority in terms of these Regulations: Provided that any comments by
interested and affected parties on a report which is to be submitted to the
competent authority may be attached to the report without recording those
comments in the report itself.
CHAPTER 7
APPEALS
60. (1) This
Chapter applies to decisions that –
(a) are subject to an appeal
to the Minister or MEC in terms of section 43 (1),
(2) or (3) of the Act; and
(b) were
taken by an organ of state acting under delegation in terms of section 42 or 42A of the
Act in the exercise of a power or duty vested by the Act or these Regulations in a
competent authority.
(2) No appeal in terms of this Chapter lies
against decisions taken by the Minister or MEC themselves in their capacity as
the competent authority for the activity to which the decision relates.
Jurisdiction
of Minister and MEC to decide appeals
61. An appeal against a decision must be
lodged with –
(a) the
Minister, if the Minister is the competent
authority for the activity in relation to which the decision was taken;
(b) the
MEC, if the MEC is the competent authority for the activity in relation to
which the decision was taken or
(c) the delegated organ of
state, where relevant.
Notices of
intention to appeal
62. (1) A
person affected by a decision referred to in regulation 60(1) who wishes to appeal against the decision, must lodge a
notice of intention to appeal with the Minister, MEC, or delegated organ of
state, as the case may be, within 10 days after that person has been notified
in terms of these Regulations of the decision.
(2) If the appellant is an applicant, the
appellant must serve on each person and organ of state which was a registered
interested and affected party in relation to the applicant’s application –
(a) a copy of the notice
referred to subregulation (1); and
(b) a notice indicating
where and for what period the appeal submission will be available for inspection by such person or organ of
state.
(3) If the appellant is a person other than
an applicant, the appellant must serve on the applicant –
(a) a copy of the notice
referred to subregulation (1); and
(b) a notice indicating
where and for what period the appeal submission will be available for inspection by the applicant.
(4) The Minister, MEC or delegated organ of
state, may, as the case may be, in writing, on good cause extend the period
within which a notice of intention to appeal must be submitted.
Submission
of appeals
63. (1) An
appeal lodged with –
(a) the Minister must be
submitted to the Department of Environmental Affairs and Tourism;
(b) the MEC must be submitted to the
provincial department responsible for
environmental affairs in the relevant province or
(c)
the delegated organ of state, where relevant, must be
submitted to.that delegated organ of state.
(2) An appeal must be –
(a) on
an official form published by or obtainable from the relevant department; and
(b) accompanied by –
(i) a
statement setting out the grounds of appeal;
(ii) supporting
documentation which is referred to in the appeal and which is not in the possession of the Minister, MEC
or
delegated organ of state;
(iii)
a statement by the appellant that regulation 62(2) or (3) has
been complied with together with copies of the notices referred to in
that regulation; and
(iv) the
prescribed appeal fee, if any.
(3) When
submitting an appeal, the appellant must take into account any guidelines
applicable to appeals.
Time within which appeals must be
lodged
64. (1) An
appeal must be submitted to the relevant department within 30
days of the lodging of the notice of intention to appeal referred to in
regulation 62(1).
(2) The Minister, MEC or delegated organ of
state, as the case may be, may, in writing, on good cause extend the period
within which an appeal must be submitted.
Responding
statements
65. (1) A
person or organ of state which receives a notice in terms of regulation 62(2), or an applicant who receives a
notice in terms of regulation 62(3),
may submit to the Minister, MEC or delegated organ of state, as the case may
be, a responding statement within 30 days from the date the appeal submission
was made available for inspection in terms of that section.
(2) (a) A
person, organ of state or applicant who submits a responding statement in terms
of subregulation (1), (hereinafter referred to as a respondent), must serve a
copy of the statement on the appellant.
(b) If a respondent
introduces any new information not dealt with in the appeal submission of the
appellant, the appellant is entitled to submit an answering statement to such
new information to the Minister, MEC or
delegated organ of state, as the case may be, within 30 days of receipt of the
responding statement.
(c) The appellant must serve
a copy of the answering statement on the respondent who submitted the new
information.
(3) The Minister, MEC or delegated organ of
state, as the case may be, may, in writing, on good cause extend the period
within which responding statements in terms of subregulation (1) or an
appellant’s answering statement in terms of subregulation (2)(b) must be
submitted.
Processing
of appeals
66. (1) Receipt
by the Minister, MEC or delegated organ of state, as the case may be, of an
appeal, responding statement or answering statement must be acknowledged within
10 days of receipt of the appeal, responding statement or answering statement.
(2) An appellant and each respondent is
entitled to be notified of –
(a) a direction
in terms of section 43(7) of the Act, if the Minister, MEC or delegated organ
of state, as the case may be, issues such a direction; and
(b) the appointment of an
appeal panel in terms of section 43(5) of the Act, if the Minister, MEC or
delegated organ of state, as the case may be, appoints an appeal panel for
purposes of the appeal.
(3) The Minister, MEC or delegated organ of
state, as the case may be, may request the appellant or a respondent to submit
such additional information in connection with the appeal as the Minister or
MEC may require.
Appeal
panels
67. (1) If
the Minister, MEC or delegated organ of state, as the case may be, appoints an
appeal panel, the Minister, MEC or delegated organ of state must furnish the
panel with a written instruction concerning –
(a) the issues in respect of
which the panel must make recommendations; and
(b) the period within which
recommendations must be submitted to the Minister,
MEC or delegated organ of state.
(2) A member of an appeal panel must be
independent.
(3) If an appeal panel introduces any new
information not dealt with in the appeal submission of the appellant or in the
statements of the respondents, both the appellant and each respondent are
entitled to submit to the panel, within a period determined by the panel, any
additional statements rebutting or supporting such new information.
(4) An appeal panel must submit its
recommendations to the Minister, MEC or delegated organ of state, as the case
may be, in writing.
Decision on
appeals
68. (1) When
the Minister, MEC or delegated organ of state, as the case may be, has reached
a final decision on an appeal, the appellant and each respondent must be
notified of the decision and the extent to which the decision appealed against
is upheld or overturned in writing.
(2) Reasons
for the decision must on written request be given to the appellant or a
respondent in writing.
CHAPTER
8
GENERAL
MATTERS AFFECTING APPLICATIONS AND APPEALS
Part 1: Environmental management frameworks
Purpose of
this Part
69. (1) The purpose of this Part is to provide –
(a) for
the Minister or MEC with concurrence of the Minister to initiate the
compilation of information and maps referred to in section 24(3) of the Act
specifying the attributes of the environment
in particular geographical areas; and
(b) for such information and maps to be used as environmental management frameworks in the
consideration in terms of section 24 (4)(i)
of the Act of applications for environmental authorisations in or affecting the geographical areas to
which those frameworks apply.
(2) The provisions of this Part may not be
read as purporting to affect the powers of the Minister or MEC in terms of
section 24(3) of the Act to compile information and maps specifying the attributes
of the environment in specific geographical areas.
Draft environmental management
frameworks
70. (1) The Minister or MEC with the concurrence
of the Minister may initiate an environmental management framework for an area.
(2) In
order to initiate an environmental management framework for an area, the
Minister or MEC must –
(a) compile a draft environmental management
framework;
(b) subject the draft to a public
participation process by –
(i) making
the draft available for public inspection at a convenient place; and
(ii) inviting
potential interested and affected parties by way of
advertisements
in newspapers circulating in the area and in any other appropriate way to
inspect the draft and submit representations, objections and comments in connection
with the draft to that person or organ of state; and
(c) review the draft in the light of any
representations, objections and comments
received.
Contents
71. A draft environmental
management framework must –
(a) identify
by way of a map or otherwise the geographical area to which it applies;
(b) specify
the attributes of the environment in the area, including the sensitivity, extent,
interrelationship and significance of those attributes;
(c) identify any parts in the area to which those attributes
relate;
(d)
state the conservation status of
the area and in those parts;
(e)
state the environmental
management priorities of the area;
(f) indicate the kind of activities that would have a
significant impact on those
attributes and those that would not;
(g) indicate the kind of activities that would be undesirable in
the area or in specific parts of the area; and
(h) include any other matters that may be specified.
Adoption
72. (1) If the Minister or MEC adopts with or
without amendments an environmental management framework initiated in
terms of regulation 70, the environmental management framework must be taken
into account in the consideration of applications for environmental
authorisation in or affecting the geographical area to which the framework
applies.
(2) When an environmental management
framework has been adopted, notice must
be given in the Government Gazette or the official Gazette of the relevant province of –
(a) the adoption of the environmental management framework; and
(b) the
place where the environmental management framework is available for public scrutiny.
Part 2:
National and provincial guidelines
National guidelines
73. (1) The Minister may by notice in the Government Gazette issue
national guidelines on the implementation of these Regulations with regard to –
(a) any particular environmentally sensitive
area or kind of environmentally
sensitive areas, or environmentally
sensitive areas in general;
(b) any particular environmental impact or
kind of environmental impact, or environmental
impacts in general;
(c) any particular activity
or kind of activities, or activities in general ; and
(d) any particular process contemplated in
these Regulations.
(2) A delegated organ of state may, in
consultation with the Minister, by notice in the Government Gazette issue
guidelines, which must be consistent with any national guidelines issued in
terms of regulation 73, on the implementation of these Regulations, including
guidelines with regard to the matters set out in 73(1)(b), (c), (d) or any
matter incidental thereto, in relation to activities in respect of which the
organ of state is the competent authority.
Provincial guidelines
74. (1) An MEC may by notice in the official
Gazette of the province issue provincial guidelines on the implementation of
these Regulations, including guidelines with regard to the matters set out in
regulation 73(a), (b), (c) or (d), in relation to applications in
respect of which the MEC is the competent authority.
(2) Provincial
guidelines issued in terms of subregulation (1) must be consistent with any
national guidelines issued in terms of regulation 73.
Legal status of guidelines
75. Guidelines
issued in terms of regulation 73 or 74 are not binding but must be taken
into account when preparing, submitting, processing or considering any
application in terms of these Regulations.
Draft guidelines to be published for
public comment
76. Before
issuing any guidelines in terms of regulation 73 or 74, the Minister or MEC must publish the
draft guidelines in the relevant Gazette
for public comment.
Part 3: Other matters
Failure to
comply with requirements for consideration of applications and appeals
77. An application or appeal
in terms of these Regulations lapses if the applicant or appellant after having
submitted the application or appeal fails for a period of six months to comply
with a requirement in terms of these Regulations relating to the consideration
of the application or appeal.
Resubmission of similar applications
78. No
applicant may submit an application which is substantially similar to a
previous application by the applicant which has been refused, unless –
(a) the new application contains new or
material information not previously submitted
to the competent authority; or
(b) a period of three years has elapsed
since the refusal.
Compliance
monitoring
79. (1) If a competent authority
reasonably suspects that the person who holds an environmental authorisation or
who has been granted an exemption in terms of Chapter 5 of these Regulations
has contravened or failed to comply with a condition of the authorisation or
exemption, the competent authority may request that person, in writing, to
submit an explanation for the alleged contravention or non-compliance.
(2) If
the competent authority reasonably suspects that the alleged contravention or
failure has caused, or may cause, harm to the environment, the competent
authority may request the person concerned, in writing, to submit an
environmental audit report on the harm or suspected harm to the environment or
on any specific matter determined by the competent authority.
(3) An
explanation and environmental audit report requested in terms of subregulation
(1) must be submitted in a form and within a period determined by the competent
authority.
(4) The
competent authority may require a person contemplated in subregulation (1) to
appoint an independent person approved by the competent authority to perform
the environmental audit.
(5) A person
contemplated in subregulation (1) is liable for all costs in connection with
the environmental audit, including the preparation and submission of the audit
report.
(6) If a
person contemplated in subregulation (2) is requested to submit an
environmental audit report and fails to submit the report within the period
determined in terms of subregulation (3), the competent authority may –
(a) appoint an independent person to perform the audit; and
(b) recover the cost of the audit from that person.
Assistance to people with special
needs
80. The competent authority
processing an application or the Minister or MEC processing an appeal in terms
of these Regulations must give reasonable assistance to a person desiring to
object against the application or to lodge an appeal against a decision in
respect of the application if that person is unable to comply with a
requirement of these Regulations due to –
(a) a lack of skills to read or write;
(b) disability; or
(c) any other disadvantage.
Offences
81. (1) A person is guilty of an offence if that
person –
(a) provides incorrect or misleading
information in any document submitted in
terms of these Regulations to a competent authority;
(b) fails to comply with regulation 7(2);
(c) fails to comply with a request in terms
of regulation 79(2);
(d)
contravenes or fails to comply with a condition subject to
which an
exemption
in terms of Chapter 5 of these Regulations has been granted
or
(e)
continues with an activity where the environmental
authorisation was
withdrawn
in terms of regulation 50 or suspended in terms of regulation 49.
(2) A
person is liable on conviction of an offence in terms of subregulation (1) to
imprisonment for a period not exceeding two years or to a fine not exceeding an
amount prescribed in terms of the Adjustment of Fines Act, 1991 (Act No. 101 of
1991).
CHAPTER 9
TRANSITIONAL ARRANGEMENTS AND COMMENCEMENT
Definition
82. In this Chapter –
“previous
regulations” means the regulations published in
terms of sections 26 and 28 of the Environment Conservation Act, 1989 (Act No.
73 of 1989), by Government Notice R. 1183 of 5 September 1997, as amended by
Government Notice R. 1355 of 17 October 1997, Government Notice R. 448 of 27
March 1998 and Government Notice R. 670 of 10 May 2002.
Continuation
of things done and authorisations issued under previous regulations
83. (1) Anything
done in terms of the previous regulations and which can be done in terms of a
provision of these Regulations must be regarded as having been done in terms of
the provision of these Regulations.
(2) Any authorisation
issued in terms of the previous regulations and which is in force when
these Regulations take effect, must be regarded to be an environmental
authorisation issued in terms of these Regulations.
Pending applications and appeals
84. (1) An application for authorisation of an
activity submitted in terms of the previous regulations and which is pending
when these Regulations take effect, must despite the repeal of the previous
regulations be dispensed with in terms of the previous regulations as if the
previous regulations were not repealed.
(2) An appeal lodged in terms of the
previous regulations which is pending when these Regulations take effect or an
appeal lodged against a decision taken by virtue of the application of
subregulation (1), must despite the repeal of the previous regulations be
dispensed with in terms of the previous regulations as if the previous
regulations were not repealed.
(3) Any
authorisation issued following an application in terms of subregulation (1) or
an appeal in terms of subregulation (2) must be regarded to be an environmental
authorisation issued in terms of these Regulations.
Existing policies and guidelines
85. Guidelines
adopted by the Minister or MEC before these Regulations took effect for the
purpose of facilitating the implementation of the previous regulations, must to
the extent compatible with the Act and these Regulations be regarded to be
national or provincial guidelines issued in terms of Part 2 of Chapter 8 of these Regulations.
Continuation
of regulations regulating authorisations for activities in certain coastal
areas
86. These
Regulations do not affect the continued application of the regulations
published in
terms of sections 26 and 28 of the Environment Conservation Act, 1989 (Act No.
73 of 1989), by Government Notice R. 1528 of 27 November 1998.
87. These Regulations may be cited as
the Environmental Impact Assessment Regulations, 2006, and take effect on a date
determined by the Minister by notice in the Government Gazette.