|
 |
|
|
|
|
Swartland Municipality vs Hugo Wiehahn Louw N.O. and Others (Case Number 13703/09)
Judgement was handed down in the Western Cape High Court on 21 December 2009 in the above matter. The matter concerns the enforcement of the Land Use Planning Ordinance, No. 15 of 1985 (Cape) and the Scheme Regulations promulgated in terms thereof (LUPO) versus the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA).
The dispute in the matter largely relates to the parties' different interpretation of the provisions of the MPRDA, its effect on the LUPO as a subordinate legislation and the constitutionality of parts of the LUPO being pre-constitutional legislation.
The facts are briefly as follows: the 5th Respondent (Elsana Quarry (Pty) Ltd) was granted a mining right in terms of the MPRDA in respect of the farm known as Lange Kloof which falls within Ward 5 of the Applicant (Swartland Municipality). At the time of the granting of the mining right the farm was zoned Agricultural I. Prior to the granting of the mining right, the 5th Respondent applied to the Applicant for the rezoning of the proposed mining area in terms of the LUPO from Agricultural I to Industrial III which permits mining. Subsequent to the submission of the rezoning application, the Respondents were advised by the Department of Minerals and Energy (DME) that the granting of mining rights and the control over mining activities was the exclusive right of National Government represented by the DME. Accordingly, the 5th Respondent withdrew its rezoning application. The 5th Respondent submitted that it is entitled to continue with its mining operations by virtue of the mining right issued to it. This argument was supported by the then Minister of Minerals and Energy (and the 6th Respondent). The Applicant had a different view and submitted that until the zoning of the land to Industrial III is finalised, the 5th Respondent is not permitted to continue with the mining activities on the farm. The Applicant sought an interdict against the 5th Respondents restraining it from continuing with its mining operations pending finalisation of the rezoning application.
Some of the aspects considered by the Court include:
- The relevant legislation and interpretation of various sections of the MPRDA including section 23(6) and section 25(2)(d) which explicitly provides that a mining right is subject to inter alia "...any relevant law...". The LUPO and the fact that it is relevant and binding law which plays a central role in the efforts of local authorities to achieve harmonious use of land and regulates land use planning and provides for matters incidental thereto, such as rezoning.
- Various Constitutional considerations were taken into account and the fact that the Constitution (Act 108 of 1996) gives all municipalities their powers which include municipal planning. In terms of the Local Government: Municipal Structures Act, 117 of 1998 a district Municipality must seek to achieve the integrated, sustainable and equitable social and economic development of its area as a whole by ensuring inter alia integrated planning, promoting bulk infrastructural development and services, building capacity and promoting equitable distribution of resources and services. The LUPO provides for a statutory framework which regulates land use, planning and matters incidental thereto and it directs every local authority to comply and enforce compliance with its provisions.
- The purpose and provision of the Intergovernmental Relations Framework Act, 13 of 2005 (IRFA) were considered as the Respondents argued that the Applicant is not competent to approach the Court by virtue of section 45(1) of the IRFA. The Court found that the IRFA is not applicable in the matter as the Applicant launched the proceedings against the 1st to 5th Respondents to comply with the provisions of the LUPO. The application was not brought in order to settle an intergovernmental dispute.
The Court found that:
- Due to the fact that the MPRDA is silent on the issue of rezoning of land, the only proper interpretation of the provisions of section 23(6) and 25(2)(d) of the MPRDA is that the meaning "...any other relevant law..." includes legislation such as the LUPO. A different view may undermine the proper functioning of municipalities who are obliged in terms of the Local Government: Municipal Structures Act, 117 of 1998 to achieve the integrated, sustainable and equitable social and economic development of its area as a whole;
- Although the application of the LUPO may have an effect on whether mining activities would be undertaken on land falling within the local authority's jurisdiction, it is a consequence of land use planning and recognised in the MPRDA that a mining right is subject to inter alia "...any other relevant law..." The MPRDA cannot be regarded as water-tight to the exclusion of relevant rezoning legislation;
- The LUPO does not intrude into an area of exclusive national legislative competence in purporting to control and regulate the use of land for mining purposes and it is not directed at the control of mining. on a proper interpretation, the LUPO cannot be found to be inconsistent with the Constitution;
- The 5th Respondent acknowledged that the mining right application is subject to a successful application for the rezoning of the property in its EMP and other correspondence compiled in support of its mining right application.
The Court granted the interdict restraining the 5th Respondent for conducting mining activities on the farm Lange Kloof pending rezoning from Agricultural I to Industrial III or any such other rezoning which permits mining activities.
Melissa Grobbelaar
Associate
For the complete judgment, please select this link.
|
|
|
| |
|
| Zoning of Mining Areas | Login/Create an account | Comments |
|
| | Comments are owned by the poster. We aren't responsible for their content. |
|
