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Judgment was handed down in the Supreme Court of Appeal (SCA) on 11 September 2009 in the Nature's Choice Properties (Alrode) (Pty) Ltd vs the Ekurhuleni Metropolitan Municipality matter. The SCA held that the Municipality misconstrued its discretion in terms of the Smoke Control Regulations promulgated in terms of section 18 of the Atmospheric Pollution Prevention Act, 45 of 1965. The SCA upheld the appeal and set aside the interdict and order to remove the boiler installed by Nature's Choice which was initially granted by the Court a quo in favour of the Municipality.
In short, the appeal was concerned with the Smoke Control Regulations promulgated in terms of section 18 of the Atmospheric Pollution Prevention Act, 45 of 1965 (APPA) and specifically applicable to Alberton which falls within the jurisdiction of the Ekurhuleni Metropolitan Municipality (GNR 2057 of 21 September 1971). The facts can be summarised as follows:
- Nature's Choice installed a coal fired boiler (fuel burning appliance as defined in the APPA) on its property without submitting plans and specifications to the Municipality prior to the installation and therefore in contravention with regulations 3 of the aforesaid Smoke Control Regulations.
- The Municipality was entitled to have the boiler removed in terms of regulation 5 of the Smoke Control Regulations but instead, called upon Nature's Choice to remedy the situation by submitting plans and specifications for the boiler. Nature's Choice submitted the plans and specifications as requested but was informed that the application was unsuccessful. The reason for the rejection of the application was inter alia that the Municipality will only consider applications for gas fired appliances.
The Municipality approached the High Court for an interdict restraining Nature's Choice from utilising a coal boiler at its food processing factory. The Court granted the interdict and also ordered Nature's Choice to remove the boiler within 30 days. The Court's decision was taken on appeal.
After consideration of the facts, the SCA reverted to section 15(1) of the APPA and stated that the APPA does not prohibit the installation of fuel burning appliances or burners of any particular type. It only prohibits burners that emit smoke and grit in contravention with section 15(1). Furthermore, if smoke is emitted in contravention of any regulation, the local authority may in terms of section 19(1) call on the owner or occupier to cease the emission of the smoke.
The SCA held that the Municipality misconstrued its discretion in terms of the Smoke Control Regulations as it does not have a free discretion to reject plans and specifications for a fuel burning appliance submitted in terms of regulation 3. The purpose of the regulations requiring prior plans and specifications to be submitted is to enable the Municipality to determine in advance whether the fuel burning appliance complies with section 15(1) of the APPA. It was therefore entitled to refuse the application if the boiler's smoke emission did not comply with section 15(1) of the APPA and not to require that the boiler be gas fired instead of coal fired. The Municipality's rejection of Nature's Choice's application was therefore unlawful and the SCA held that the by seeking the interdict, the Municipality was effectively seeking to enforce an illegal decision.
The SCA upheld the appeal with costs and consequently the interdict and order to remove the boiler set aside.
Melissa Grobbelaar
Associate
For the complete judgment, please select this link.
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