The notion of sustainable development and the balance between competing environmental and property rights has always, and continues to be, at the forefront of environmental law. Sustainable development is defined in the National Environmental Management Act 107 of 1998 as “the integration of (various) factors into … decision making so as to ensure that development serves present and future generations”. Landowners may no longer use their land as they please, they hold the land in trust for future generations, so the balance between the environment and economic development extends well beyond the present generation.
Two new pieces of legislation, the amendments to the National Building Regulations (in effect from 1st October 2008), and the Waste Bill (still to be promulgated) deal with contaminated land and bring this balance into the spotlight again. The former requires an applicant to appoint an approved competent person to undertake a geo-technical investigation where the authority has reason to believe that a development site is contaminated, or where the applicant is aware of such conditions. In the regulations contaminated land refers to “any land that, due to substances contained within or under it, is in a condition that presents an unacceptable risk to the health and safety of occupants or buildings …”. At first glance all seems well. But, taking a closer look, a number of concerns arise. Local authorities already lack skill and capacity to provide many basic services. They now have been saddled with another burden, which requires each municipality to decide, in the absence of norms or standards, whether the land is contaminated as defined in the regulations. How will the authorities decide what an unacceptable risk is? And will each municipality set different benchmarks, resulting in the landowners’ forum targeting those areas where authorities apply lower thresholds? In addition, the person undertaking the investigation is appointed by the applicant, but must advise the local authority on the basis of the investigation whether development should be permitted or not. In the absence of the requirement of independence of the expert, it will be surprising to find a recommendation to the municipality that development should not be permitted.
The Waste Bill requires a land owner to notify a different authority when land is significantly contaminated or if that person undertakes an activity that causes such contamination. That person will then have to appoint, and pay, an independent person to conduct a site assessment. The information required in the report is extensive, and the authorities may order a landowner to remediate the land. If contaminated land is transferred, the purchaser has to be informed, and, if declared a remediation site, the authorities will also have to be notified about the transfer. “Contamination”, in the Waste Bill, means the ‘presence in or under any land, site, buildings or structures of a substance or microorganism above the concentration that is normally present in or under that land, …. which directly or indirectly affects the quality of the soil or the environment adversely’. According to this definition and the courts’ interpretation of ‘significant’, it appears that every piece of land relating to mining, agriculture and most industry will be “contaminated”. How would one determine without extensive historical records, the concentration ‘normally present in that land’? And without threshold limits as a guide, it seems clear that overburdened authorities are once again presented with legislation with all bones and no meat. Without practical solutions it seems the sustainability scales will not tip in favour of the environment.
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