Wings Park Port Elizabeth (Pty) Ltd v The Member of the Executive Council for the Department of Economic Development, Environmental Affairs & Tourism: Eastern Cape and Others

Wings Park Port Elizabeth (Pty) Ltd was formed to develop and operate a small-scale private airfield in the Kragga Kamma area of Port Elizabeth. The applicant applied for environmental authorisation under the National Environmental Management Act 107 of 1998 in September 2014, with further submissions in October 2015. The proposed development comprised a 720-metre grass runway, hangars for 25-32 aircraft, a clubhouse and boma, restricted to shareholders. The applicant justified the need by alleging congestion at existing facilities (Port Elizabeth International Airport and Progress Aerodrome) and lack of security of tenure. On 12 May 2016, the second respondent (the provincial Department) refused the application. The applicant appealed to the first respondent (the MEC), who dismissed the appeal on 22 November 2016. The applicant first launched an application in August 2017 (case 3917/2017) seeking to review only the first decision, which was dismissed by Plasket J as academic because the appeal decision remained intact. The applicant then launched this application on 23 October 2018 seeking to review both decisions, more than 180 days after becoming aware of the second decision.

• Whether the applicant's delay in bringing the review application beyond the 180-day period in section 7(1) of PAJA should be condoned and the time period extended in terms of section 9 of PAJA
• Whether the first decision (refusal of environmental authorisation) was reviewable under PAJA on grounds including irrationality, procedural unfairness, or taking into account irrelevant considerations
• Whether the second decision (dismissal of internal appeal) was reviewable under PAJA
• Whether the decisions were rationally connected to the information before the decision-makers
• Whether the decision-makers properly exercised their statutory discretion under the National Environmental Management Act

The application was dismissed. The applicant was ordered to pay the costs of the first, second, third and fourth respondents, including the costs of two counsel where employed.

The binding legal principles established are: (1) Under section 7(1) of PAJA, the 180-day period for challenging administrative action runs from the date the applicant becomes aware of the administrative action and the reasons for it, not from when the applicant receives legal advice about the need to challenge it. A party cannot rely on ignorance of legal obligations to extend time limits. (2) Under section 9 of PAJA, when determining whether the interests of justice require an extension of time, the court must consider: (a) the merits of the legal challenge; (b) the extent and cause of delay; (c) the explanation for delay covering its entire duration; (d) the conduct of the applicant, including any unreasonable tactical decisions; and (e) whether there are obvious and egregious deviations from constitutional prescripts. (3) Courts must exercise judicial deference when reviewing environmental authorisation decisions that involve technical expertise and policy-laden discretion, and may only interfere where the decision was not reasonably supported on the facts, was unreasonable in light of the reasons given, or falls foul of specific PAJA grounds. The court is not entitled to substitute its own view simply because it disagrees with the decision. (4) Under NEMA regulations, a basic assessment report must include: (a) a comparative assessment of feasible and reasonable alternatives describing advantages and disadvantages on the environment and affected communities (regulation 22(2)(h)); (b) an environmental management plan addressing operational phase impacts (regulations 22(2)(l) and 33(b)(ii)); and (c) where specialist reports are amended or supplemented with new information, they must be subjected to the public participation process (regulation 54(6)). (5) A decision-maker may reasonably require practical empirical testing (such as noise measurements during simulated operations) rather than accepting purely theoretical assessments, particularly where long-term nuisance impacts on communities are at issue and a risk-averse approach is mandated by NEMA.

The court made several non-binding observations: (1) It noted that this was not a case involving "obvious and egregious deviation from constitutional prescripts" of the type contemplated in Asla at [63] that would compel setting aside regardless of delay. (2) The court observed that the fourth respondent, as a person whose rights could be materially and adversely affected, was entitled under PAJA to oppose the application for review and claim costs, even though not a direct party to the administrative process. (3) The court commented that the applicant's approach focused on whether noise levels would remain within legal limits rather than addressing the nuisance impact of increased ambient noise levels, which was the concern of objectors and the Department - this distinction between legal compliance and environmental/social impact was relevant to the reasonableness of the decision. (4) The court noted approvingly the second respondent's use of experience from Port Elizabeth International Airport in assessing bird strike risks, suggesting that decision-makers may draw on institutional experience beyond the materials specifically submitted. (5) The court observed that in view of its conclusions on delay and merits, it was unnecessary to decide issues of substitution and joinder that had been raised. (6) The judgment reinforced the distinction between review and appeal, emphasizing Lord Brightman's statement that "judicial review is concerned, not with the decision, but with the decision-making process" and Innes CJ's principle that courts cannot interfere with "a due and honest exercise of discretion, even if it considered the decision inequitable or wrong."

This case is significant for several aspects of South African administrative and environmental law: (1) It clarifies the operation of PAJA's time limits, confirming that the 180-day period runs from when an applicant becomes aware of the administrative action and reasons, not from when legal advice is received about the need to challenge it; (2) It demonstrates that an extension granted in one application does not automatically extend to subsequent applications challenging additional administrative actions that were known at the time; (3) It reinforces the principle of judicial deference in environmental decision-making, particularly where technical discretion is involved, citing Bato Star Fishing and Pharmaceutical Manufacturers; (4) It illustrates the comprehensive nature of environmental impact assessment requirements under NEMA, including the need for comparative assessment of alternatives, operational phase environmental management plans, and practical (not merely theoretical) assessment of impacts like noise; (5) It confirms that in internal appeals under section 43 of NEMA, the MEC conducts a determination de novo and can substitute their own decision; (6) On condonation under section 9 of PAJA, it reinforces that the court must consider the merits of the challenge and the conduct of the applicant when determining whether the interests of justice require an extension, following Asla and Aurecon principles; (7) It demonstrates that procedural irregularities in administrative processes do not automatically lead to setting aside decisions if the substantive decision-making was sound.