Shear, Carolyn Nicola v Eye of Africa Development (Pty) Ltd and Others

The applicant owned property adjacent to land owned by the first respondent (Eye of Africa Development) which was developing a golf estate. In July 2005, the fourth respondent (Gauteng Department of Agriculture, Conservation and Environment) issued an environmental authorization requiring Eye of Africa to use grey water (recycled water from residents) to irrigate the golf course, and specifically prohibiting the use of alternative water sources such as boreholes. In July 2008, Eye of Africa wrote to the fourth respondent requesting an amendment to allow temporary use of alternative water sources (boreholes) until sufficient grey water became available once the development was complete. On 25 July 2008, the fourth respondent amended the authorization to permit temporary use of alternative water sources. Subsequently, DWAF issued a licence on 16 January 2009 authorizing Eye of Africa to extract 490,000 cubic meters of water per annum from a borehole. The applicant sought to review and set aside the fourth respondent's decision to amend the environmental authorization.

• Whether the fourth respondent's amendment to the environmental authorization was procedurally fair and lawful under the National Environment Management Act (NEMA) Regulations
• Whether the amendment constituted a substantive or non-substantive change
• Whether public participation was required before amending the environmental authorization
• Whether the amendment was likely to adversely affect the environment or the rights and interests of other parties
• Whether the fourth respondent properly exercised its discretion in amending the authorization on its own initiative

The fourth respondent's decision to grant the amendment dated 25 July 2008 was set aside. The first and fourth respondents were ordered to pay the costs of the application jointly and severally.

An amendment to an environmental authorization that changes the source of water from grey water (recycled water) to underground borehole water is a substantive amendment, not a non-substantive one. Where an amendment to an environmental authorization is likely to adversely affect the environment or the rights and interests of other parties, the competent authority must conduct a public participation process as required by Regulation 42(3) of the NEMA Regulations before deciding the application. A decision to amend an environmental authorization made without following the prescribed procedural requirements, including public participation where required, is unlawful, unreasonable and procedurally unfair and subject to review and being set aside. Water extraction from underground sources has the potential to adversely affect the environment and other parties where it depletes a limited resource.

The court observed that Eye of Africa faced a 'catch 22' situation whereby it could not generate grey water without residents but could not attract residents without grey water to irrigate the golf course. However, this practical difficulty did not justify bypassing the procedural requirements of the NEMA Regulations. The court noted that the fact that the fourth respondent's decision became incorporated into or was relevant to a licence issued by DWAF (which was subject to separate appeal proceedings) did not remove its characteristics as being an independent reviewable administrative decision.

This case establishes important principles regarding the amendment of environmental authorizations under NEMA. It clarifies that changes to the type or source of water usage in environmental authorizations constitute substantive amendments requiring public participation processes. The judgment reinforces the procedural requirements for amending environmental authorizations and emphasizes that administrative authorities must properly consider environmental impacts and comply with prescribed procedures. The case also demonstrates judicial recognition of water as a scarce resource requiring careful regulatory oversight, and confirms that administrative decisions affecting environmental rights must be lawful, reasonable and procedurally fair. It illustrates the courts' willingness to review administrative decisions in environmental matters where proper procedures have not been followed.