High Court, Gauteng
BP Southern Africa (PTY) Limited
Members of Executive Council (MEC) for Agriculture, Conservation, Environment & Land Affairs
BP South Africa (the applicant) sought to construct an oil filling station adjacent to an urban area. However, the Gauteng Provincial Department of Agriculture, Conservation and Land Affairs opposed the proposal. Citing the hazardous nature of petroleum products, they argued against building filling stations near residential areas.
According to the Environment Conservation Act 73 of 1989 (ECA), activities with significant adverse effects on the environment required authorization from the MEC for Agriculture, Conservation, Environment & Land Affairs. Given the potential negative impacts of the filling station, the applicant needed such authorization. However, the MEC refused, citing reasons including the presence of two existing filling stations within 3km of the proposed site and the applicant’s failure to comply with statutory environmental protection requirements.
The applicant sought a review and reversal of the MEC’s denial of authorization and its decision to implement a departmental guideline, prohibiting new filling stations within 3km of existing ones. Additionally, the applicant requested an order to send its application back to the MEC for reconsideration.
The applicant argued that although the MEC justified its decision on environmental grounds, it was actually attempting to regulate the economy and protect the commercial interests of existing filling stations. The applicant contended that such considerations were beyond the relevant department’s mandate and should not factor in their decision-making.
Ultimately, the case hinged on the scope of the MEC’s authority – did it encompass socio-economic factors or not? The applicant maintained that the MEC’s mandate derived solely from the ECA, whereas the respondent argued for a broader mandate rooted in the Constitution, the ECA and its regulations as well as relevant provisions in the National Environmental Management Act (NEMA) and the Development Facilitation Act (DFA).
The Court sided with the MEC, affirming that their mandate allowed for consideration of socio-economic factors. According to the ECA’s definition of “environment,” it encompassed a “composite” right incorporating social, economic and cultural elements essential for achieving environmental balance. Additionally, the Court concurred with the MEC’s assertion that their mandate was grounded not only in the ECA but also in the Constitution, NEMA and the DFA. The MEC was duty-bound to craft environmental law in line with the statutory provisions defining its mandate, including the right to a healthy environment (R2HE) enshrined in the Constitution, NEMA and international law.