Noordhoek Environmental Action Group v City of Cape Town and Others

The City of Cape Town sought and obtained environmental authorisation from the Department of Environmental Affairs and Development Planning for the construction of a 1.2 km road (Houmoed Avenue Extension 1) adjacent to a wetland in Noordhoek. The Noordhoek Environmental Action Group, a non-profit organisation, challenged the decisions granting the authorisation and dismissing its appeal. The applicant argued that the road would disturb the wetland and breeding ponds of the endangered Western Leopard Toad (WLT), potentially causing its extinction. The application process involved a Basic Assessment Report (BAR) prepared by Chand Environmental Consultancy, including specialist studies on freshwater ecosystems and fauna. The competent authority granted authorisation on 22 November 2019, and the MEC dismissed the applicant's appeal on 18 September 2020.

• Whether the failure to commission a specialist anuran/amphibian study on the Western Leopard Toad constituted a reviewable irregularity.
• Whether it was irrational to appoint an amphibian specialist for post-construction monitoring rather than for a pre-construction baseline study.
• Whether cumulative impacts were adequately considered in the environmental assessment.
• Whether the public participation process was inadequate.
• Whether the traffic study was compliant with NEMA and the EIA Regulations.
• Whether the Environmental Assessment Practitioner (EAP) was biased or lacked objectivity.
• Whether the EAP was improperly appointed (a close corporation rather than an individual, and appointed by consulting engineers rather than the City).
• Whether the MEC performed an about-turn regarding the relevance of the previous EIA process.

The application for review was dismissed, and each party was ordered to pay its own costs.

Where a decision-maker has considered environmental impacts through appointed specialists and imposed mitigation measures, a failure to appoint a particular type of specialist does not constitute a reviewable irregularity if the decision is rational and complies with NEMA and the EIA Regulations. The legislative framework does not require complete knowledge before granting environmental authorisation, and mitigation measures involving post-construction monitoring may be rationally related to environmental protection. An EAP may be appointed through a corporate entity, provided individual practitioners meet the regulatory requirements.

The court noted the distinction between an attack on the weight given to environmental impacts and a reviewable irregularity, emphasizing that weight is within the decision-maker's province. It also remarked that the applicant's real difficulty appeared to be the weight attached to the WLT impact, which does not ground a review.

The case affirms the discretion of environmental assessment practitioners in selecting appropriate specialists, the validity of post-authorisation monitoring as a mitigation tool, and the principle that courts will not interfere with the weight given by decision-makers to environmental factors if the decision is rational and procedurally fair. It also clarifies that an EAP may be a corporate entity appointing individual practitioners.