MEC for Environmental Affairs and Development Planning v Clairison’s CC

Clairison’s CC, a property developer, sought to develop a retirement village of 173 units on agricultural land near Plettenberg Bay. To do so, it required (a) an amendment of the land-use designation under the Land Use Planning Ordinance 15 of 1985 and (b) environmental authorisation under the Environmental Conservation Act 73 of 1989. While the structure plan amendment was approved by a previous MEC, the Director of Environmental Affairs refused the environmental authorisation based on provincial policy aimed at preventing urban sprawl and protecting biodiversity. Clairison’s appealed internally to the MEC, who dismissed the appeal. Clairison’s then successfully reviewed the MEC’s decision in the Western Cape High Court, which set it aside on grounds that the MEC failed to consider relevant factors and was reasonably perceived to be biased. The MEC appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the Western Cape High Court was set aside and replaced with an order dismissing the review application with costs, including the costs of two counsel.

The case is a leading authority on the distinction between review and appeal in South African administrative law. It clarifies that while decision-makers must consider relevant factors, the weight attached to those factors is a matter for their discretion. It also confirms that adherence to policy and a predisposition against certain outcomes do not, without more, constitute reviewable bias.