Local residents have appealed against the GDACE authorisation of the Blue Rose Development. Although many conditions were imposed on the development, many residents felt the conditions were not consistent throughout all 4 projects, or were not sufficiently enforced. Read some of what residents had to say:
From the Deep South Custodians (an association of concerned residents from Drumblade, Hartzenbergfotein & Walkerville)
Dear Madam,
Appeal against the Environmental Authorization in respect of the Proposed Development of Portion 42 of the Farm Alewynspoort 145-IR and Portions 13, 94, 95, 96, 98 Of The Farm Hartzenbergfontein 332-IQ known as “The Valleys” Midvaal Local Municipality
Authorization Register No. Gaut: 002/08-09/N0755
With regards to our notice faxed to you on 13 July 2009, indicating our intention to appeal against the above Environmental Authorisation herewith is our appeal.
This association represents its members who are residents and ratepayers of Wards 5 & 7 of the Midvaal Municipality comprising, inter alia, the Hartzenbergfontein, Drumblade and Walkerville communities which would be affected by the proposed Blue Rose City Developments, as set out below.The association is an interested and affected party registered with Seaton Thomson & Associates. A copy of our constitution is attached.
It is respectfully requested that:
You set aside the environmental authorisation for the above and refuse to authorise the proposed development for the reasons outlined below.
In the alternative, if the proposed development is still authorised to proceed in terms of your decision on appeal, you vary the conditions imposed on the authorisation of the proposed development, in the manner as set out as below.
All original relevant documentation relating to the EIA process is in the possession of the Department and is accordingly available to you for purposes of your consideration of this Appeal.
At the outset, we note that the listed activities in terms of the National Environmental Management Act 107 of 1998 (NEMA) listed activities which have been approved through this environmental authorisation specifically do not include listed activity 12 in terms of GN R386 of 21 April 2006 (as amended) (“The transformation or removal of indigenous vegetation of 3 hectares or more or …”. Accordingly, as such listed activity is not authorised, we understand that less than 3 hectares of indigenous vegetation will be transformed or removed through the proposed development.
GROUNDS OF APPEAL
1. Public Participation Process did not comply with EIA Regulations in terms of Chapter 5 of the National Environmental Management Act, 1998
We wish to draw attention of the MEC to the following specific contraventions of NEMA regulations:
- As the Final EIA correctly states, all registered I&APs were notified of the availability of the draft Scoping Report, which was available from 11 November to 10 December 2008, allowing a 30 day time period within which they had the opportunity to submit comments and concerns once they had reviewed the Report. However in the letter dated 5 February 2009 from the Department to Seaton Thomson & Associates and signed by Dr S T Cornelius it is clearly stated that “The scoping report and plan of study for environmental impact assessment which was submitted by you in respect of the abovementioned application and received by the Department on 27 October 2008 has been accepted by the Department. You may accordingly proceed with the environmental impact assessment in accordance with the tasks that are outlined in the plan of study…..” The Environmental Authorization from the Department to the applicant dated 24 June 2009 also states in Annexure 1 that the Scoping Report was received by the Department on 27 October 2008. The fact that the Scoping Report and plan of study were submitted to the Department more than two weeks before a “Draft” scoping report and plan of study were made available to I&APs clearly contravenes Regulation 58 (2). Furthermore Regulation 58(4) requires written comments received by the EAP from registered I&APs accompany a report when it is submitted.
- In this connection it is also worth noting that while the letter from the Department in terms of Regulation 32(1) authorizing the EAP to proceed with the environmental impact assessment, including the public participation process referred to in Regulation 29(1)(i)(iv) was dated 5 February 2009, Notices to I&APs informing them that the EIA phase had commenced, draft EIA documents were available for review, and comments/submissions were required by 27 February 2009, were issued on the 29 January 2009, some eight days before the date of the authorizing letter and giving 29, not 30, days as stated in the Final EIA for I&APs to comment. Indeed the letter authorizing the EAP to proceed to the EIA stage in respect of the Grace was dated 20 February, nearly one month after I&APs had been notified and a mere 7 days before the final date for submissions/comments. Accordingly on 12 February 2009, an extension of time to 60 days for comment/submissions was requested by this association in conjunction with representatives of the Midvaal Local Council given the fact that in reality four separate draft EIA documents together with their appendices required to be reviewed for these four linked developments. This was initially refused. However as a result of the situation with the Grace this was subsequently reversed and a further 29 days was granted until 21 March 2009, a Saturday and a public holiday.
- Comparison of the Final EIA Report as submitted to the Department with the Draft EIA Report provided to I&APs for review and comment indicates several additions of a material nature, specifically those on page 65. Since I&APs were not afforded the opportunity to either review or comment on these additions this represents a contravention of Regulation 58(2)
Additionally Annexure 1 of the Environmental Authorization states on Page 10 that the following was taken into account by the Department in reaching its decision:
The information contained in the:
The Scoping Report received 27 October 2008;
The Environmental Impact Report dated 24 March 2009; and
The comments received from interested and affected parties as included in the Scoping Report. (our emphasis)
Regrettably it appears that the Department was not able to consider the submissions from interested and affected parties that were prepared and submitted within the requisite period and which were included in Appendix 26.1 of the Environmental Impact Assessment. This conclusion is further supported by the fact that the objections we raised have not been acceded to. The draft EIA document, but more specifically its large number of appendices and specialist reports, contains substantially more information than did the scoping report. Consequently our submissions were correspondingly more comprehensive. The fact that these were not considered by the Department in reaching its decision constitutes a further flaw in the Public Participation Process.
Had our submission been considered, the following contravention would, inter alia, have become evident. In this submission we stated that;
Regrettably the Draft EIA clearly demonstrates that the EAP;
Has not taken into account specialist ecological surveys of the site. Merely overlaying a transparency of the proposed Layout Plan – plan 4 (adjusted to the correct scale) on the Overall Sensitivity Plan – Appendix 12 indicates a building footprint that encroaches significantly on areas designated as of “High Conservation Value”
In so doing the EAP specifically contravened the Department’s letter to the EAP dated 5 February 2009 wherein it was requested that a layout map underlying the total footprint of the proposed activity with all the sensitivity areas be submitted with the Environmental Impact Report.
The Environmental Authorization dealt with this as follows:
The Department requires the submission and approval of a revised layout plan that reflects the exclusions identified in 1.9 -1.11 above prior to commencement of the construction activities on site. The revised layout plan will only be considered adequate if all sensitive areas are excluded from development and incorporated into an open space system
We respectfully submit that this concession to the applicant undermines the intention of the Act and Regulations as they pertain to the Public Participation Process and, as this aspect must certainly be considered substantive together with the fact that the Department’s original request was ignored, we request that the MEC on appeal amend your authorization accordingly, since, as it stands, this condition purports to effectively allow the final decision on the layout for the proposed development to fall outside the formal EIA process (with all its checks and balances to protect the rights of interested and affected parties). At the very least, by our submission, what is required is for the amended layout plan and sensitivity map to be made available to all registered I&APs for their comment before the Department gives its approval (or otherwise) for the proposed layout.
2. Independence Declarations/Assumptions and/or Lack of Knowledge in a Key Specialist Report
Regulation 33(2) states that:
“A specialist report … prepared in terms of these Regulations must contain
(b) a declaration that the person is independent in a form as may be specified by the competent authority;
(e) a description of any assumptions made and any uncertainties or gaps in knowledge”
Appendix 2 Blue Rose City Market Research is a key supporting document for the EIR and for purposes of a decision on appeal. Its statements and conclusions underlie much of Chapter 3 of the Final EIA Report and the Section on Need and Desirability – Section 4.6. Crucially it attempts to estimate job creation and improvements in Gross Geographical Product emanating from these developments. As stated in our submission on the Draft EIA, job creation is a subject that must not be treated lightly in South Africa.
In our submissions on the Draft Scoping Report, at that stage Appendix 2 had not been made available, we requested description of the assumptions made and any uncertainties or gaps in knowledge in relation to the substantial claims being made in Chapter 3. This was ignored but Appendix 2 appeared as an attachment to the Draft EIA Report. We would like to draw to the attention of the MEC that in our opinion and after careful perusal, this specialist report does not appear to carry a declaration in terms of Regulation 33 (2) (b) nor indeed does it provide any description of uncertainties or gaps in knowledge. These are significant apparent oversights for such a key specialist report.
Regrettably though, it does include errors of fact. An example quoted involved a reference to the Heineken Brewery project which was included in the Draft Scoping Report, the Draft EIA, both in the body of the report and in the appendix, and in the Final EIA Report. We are unsighted as to whether it also appeared in the Final Scoping Report as despite requests, a copy has not been made available. It should be stressed that it was included in the Final EIA Report submitted to the Department despite our having clearly pointed out the error in our submission on the Draft EIA Report. It is a concern that even after having highlighted this error, the EAP still considered it unnecessary to amend at least the Final EIA document before submitting it to the Department.
The error concerned ongoing job creation by the Heineken Brewery project. The market research specialist report had estimated this at 6050. By early 2009 there was however no need for an estimate as the company itself had published in the press in January this year a figure of 250 as the number of jobs it would be creating. This places the exaggeration factor at approximately 16 times; far in excess of what would be acceptable as a margin of error of estimation.
This example was chosen simply because here there was no longer need for assumptions or speculation, the facts had been revealed. And of course because what was being wildly speculated about directly concerned peoples lives – 6050 jobs would have made a great deal of difference to the lives of those demonstrating on the R59 near the Heineken Brewery site recently, and because it had come to our notice that “estimates” from this report were being presented as quasi-facts, quite possibly irresponsibly, to major decision-makers in Gauteng.
Despite our repeated request for a description of the assumptions made or alternately for a specialist report of this pivotal nature to be peer-reviewed, the following response was received from the EAP:
As it happens however the “objectors” are particularly well qualified in this particular instance having within our number both global expertise on the brewing industry and expertise in evaluating market and economic research reports of this nature, gleaned from long experience, first in preparing and presenting them and latterly in evaluating them. This experience not only facilitates honing in on estimates that frequently turn out to be “shaky” but has also indicated that precise accuracy in estimates of this nature is less to be desired than reliable indications. However at the same time there is a world of difference between “not totally accurate” and exaggerating by a factor of 16!
In these circumstances we wish to respectfully draw your attention to Section 24I of NEMA:
24I. Appointment of external specialist to review assessment
The Minister or MEC may appoint an external specialist reviewer, and may recover costs from the applicant, in instances where -
(a) the technical knowledge required to review any aspect of an assessment is not readily available within the competent authority;
(b) a high level of objectivity is required which is not apparent in the documents submitted, in order to ascertain whether the information contained in such documents is adequate for decision-making or whether it requires amendment.
Since the EAP admits openly to a lack of knowledge to review this specialist report which:
- Does not meet the criteria laid down by Regulation 33(2) (b)&(e)
- May well fall within the ambit of Section 24I (b)of NEMA
It is in the interests of good decision-making that the provisions of Section 24I (b) of NEMA are invoked and the Department is provided with reliable and sound information on which to base its deliberations. Until such time as this is to hand we respectfully urge that Environmental Authorization be withheld pending your decision on appeal.
Also while on the subject of Job creation and the Heineken Brewery, the EIA Report (Page 25) highlights a proposed project to recycle spent grain through a large dairy farm project “which will provide jobs and create a constant stream of income for a large number of community and social upliftment projects”. It is hoped that this is indeed the case. However there are a number of issues that could complicate such a project and which may also have significant environmental implications. First the spent grain emerges from the brewery at over 50% moisture. It can be fed to cattle in this form but should only form part of the diet. Traditionally it has been more usual to dry it down to approximately 12%. Dried it is more stable and can be transported over a wider radius but drying uses considerable energy and is rapidly becoming uneconomic. Wet it starts to deteriorate rapidly, giving off large quantities of methane, 21 times more potent as a greenhouse gas than CO2. So this proposed dairy project is crucial not only from a job creation perspective but also from an environmental perspective. The worst of both worlds would be for this dairy project to flounder; no jobs and a significant proportion of the spent grain eventuating into landfill where it creates an environmental problem. In Europe environmental pressures on brewing groups is such that landfill is no longer an option and breweries are in fact subsidizing projects such as these as a means of solving an emissions problem. It however it seems to work better with a little nudge from the environmental authorities.
3. Failure to account for the loss of arable land;
The site of the proposed development was, until the opportunity for property development was presented, a working farm and had been so for several generations.
According to Environmental Authorization dated 24 June 2009, development “is only allowed on areas previously impacted by agricultural activities”.
The Draft Scoping report, made available to I&APs on 11 November 2008, included the “Impacts of the development on the potential loss of high potential agricultural soils” among those issues that “it is envisaged require further investigation in the Environmental impact assessment phase” (Pages 46-47). It continued to state that “further information would be required in respect of determining potential impacts”.
A specialist report in this regard was attached to the Draft EIA report, and subsequently to the Final EIA Report marked Appendices 10 & 10.1. This report was dated June 2008 and no further information seems to have eventuated as a result of the Plan of Study put forward in the Draft Scoping report. This situation is repeated with several of the other specialist reports leading to questions as to whether or not the Draft Scoping report was correct in asserting that “further investigation” was required in the Environmental impact assessment stage. And if so, whether by not being provided with it, the Department’s ability to apply its mind to this authorization was being prejudiced.
This specialist report identifies 31.0 ha as Moderate-High potential agricultural land and a further 45.4 as Moderate. Reference to Appendix 10.1 indicates that these soils comprise one block.
In our response to the draft EIA report dated 19 March 2009 it was submitted that:
“Regrettably the Draft EIA clearly demonstrates that the EAP
- Has condoned development on what specialist consultants have identified as high potential agricultural land. There is no explanation in the EIA as to why. In the light of current food prices and that South Africa has turned from being a net food exporter to a substantial importer the loss of high potential agricultural land to development without adequate explanation or justification must be regarded as unacceptable.”
Despite both this and the findings of the specialist consultant, the Final EIA report submitted to the Department states (Page 85) that “the report notes that approximately 31 hectares of the site contains moderate to moderate-high potential agricultural soils, which will be lost to the new development footprint.” The specialist report it should be noted identified 76.4 ha in these categories.
It is common cause that the Department’s remit under the new administration emphasizes rural development. It is also well known that South Africa’s, and especially Gauteng’s, stock of viable arable land falls short of current population requirements. Nor is it mere speculation that the effects of Climate change are likely to exacerbate this situation. Regrettably the task of accommodating this scenario mainly lies with government, possibly to the extent of even being required to mitigate the activities of private interests in this regard.
Consequently we urge the MEC to respond to this challenge and if not withdraw this authorization on the above grounds, or at least amend it to protect a national resource.
Altogether these four linked developments propose to remove over 200 hectares of high or moderate potential arable land. This will be a permanent loss and cannot be remedied later. On the other hand, if the current generation of owners either do not have the inclination or the competence to continue farming, AgriSA have a mentorship programme which could well return these resources to productive use. While additionally there are among those currently employed in what now amounts to caretaker roles several individuals who already have agricultural qualifications and who would make ideal candidates for this programme.
4. Failure to account adequately for Post-development Stormwater Run-off
As the Department is aware, this proposed development lies astride rocky ridges comprising some of the highest ground in Gauteng, if not the highest. In our submission on the Draft EIA Report we drew attention to the concerns of adjoining residents, and their insurers, as to stormwater management provisions. These it will be noted are simply to provide for a standard 1 in 5 year storm in terms of the stormwater management within the development while constructing attenuation dams on the lower boundaries to accommodate the difference between pre and post-development run-off on a 1 in 25 year storm basis.
These concerns were dismissed by the EAP in the Final EIA Report on the grounds that traditional design standards were being applied.
We are aware of this, as are the insurers involved.
What the EAP seems to miss is that standard design criteria may no longer apply going forward and that building large attenuation dams in close proximity to existing dwellings could have serious consequences, even leading to loss of life, in the event of these dams not being able to accommodate exceptional stormwater run-off either as a result of storm intensity or duration. The risk is from their bursting. Indeed the actual building of the dam exacerbates the consequences. And the question of course is how exceptional is the risk? It is also unclear if listed activity 1(m) or (n) may be relevant in this context. However it is noted that these have not been authorized.
It is not necessary to be an Environmental Practitioner to appreciate the fact that weather patterns are changing across the globe and that South Africa is not likely to be an exception; although it might be expected that they may be more aware than most of these matters. Moreover the most generally accepted view going forward among those whose job is to know these things is that weather patterns are likely to become even more extreme.
Couple this to placing attenuation dams below the highest watersheds in the region and an expert is not required to evaluate this risk either.
Whilst there are some among our community who are not in favour of building on watersheds and over rocky ridges in general, it was requested that the applicant and/or the EAP accept the inconvenient truth of climate change and seek a less risky method of stormwater management. But in the event of this not being acceptable, a compromise was put forward that the design criteria for stormwater management be adjusted by substituting the difference between pre and post-development run-off as it would pertain to a 1 in 100 year storm occurrence instead of the traditional 1 in 25 year convention.
In the light of the attitude displayed by the EAP in this regard we request that the MEC adjudicate in this matter and amends the Environmental Authorization accordingly. We acknowledge that paragraph 1.27 of the Environmental Authorization does address this issue in terms of requiring the holder of the authorization ensure that operations on the site do not impact negatively on the adjacent properties with regard to, inter alia, storm water flow from the site. However in the light of the above we feel that a more specific requirement in terms of the design of the storm water management system is necessary.
5. Provision of Bulk Services – Environmental Considerations:
Statements are made in the Final EIA Report by the EAP on the cost of providing bulk services to these developments which in turn requires higher density development. We have already commented on how this circular reasoning inevitably leads to urban sprawl, inefficiencies and higher costs. The applicant is fully aware of the fact that these proposed developments lie well outside the Urban Edge and that the provision of bulk services over a considerable distance is inevitable if they are to go ahead as planned.
The question however in granting authorization in terms of the EIAs for these developments is whether EIAs are in place for the provision of bulk services to them. If not, granting this authorization effectively forces the Department’s hand when it comes to considering EIAs for the provision of bulk services. In reality the two cannot be considered separately from an environmental perspective.
We therefore seek the MEC’s assurance that the environmental aspects of the provision of bulk services to this and the other three proposed Blue Rose developments have been fully considered by the Department when granting this authorization.
6. Consideration of Alternatives:
In Section 4 of the Final EIA Report merely alternatives related to this specific site are considered. No reference is made to a broader view of where development is more appropriate within the region either from an environmental or socio-economic perspective. This is quite understandable from the standpoint of the applicant, less so from that of the EAP but entirely inappropriate for either local or provincial government.
Three facts stand out:
- There will be an environmental impact as a result of this development, and that impact will be negative although attempts may be made in terms of the Environmental Authorization to mitigate this.
- These proposed developments, however attractive they may seem to the applicants, are not well positioned in terms of regional development. They are extremely costly in terms of the provision of bulk and other services such as clinics, schools, etc; using capital that could be better and more productively employed elsewhere, both from a financial and social perspective.
- Given that the expense of providing services will eventually be compounded into selling prices, price ranges seem likely to place purchase beyond the reach of most. More to the point though is that there is already an oversupply of vacant property at this price range in the immediate vicinity that appears unlikely to vanish any time soon.
In addition what the applicant has ignored but if it is to apply its mind effectively to the issues, the Department should not, is the existence of a more functional development node to the east, namely Midvaal’s R59 Corridor. This contains a major road as a spine but crucially this is complimented by an existing railway spine complete with stations.
Reference to the Gauteng Revised Urban Edge Policy 2007 identifies the importance of this and states the following:
“There is a new awareness that public transport orientated planning makes economic sense:
- Public transport investment has twice the economic benefit to a city of highway investment.
- Public transport can enable a city to use market forces to build up densities near stations where most services are located, thus creating more efficient sub-centres and minimising sprawl.
- Public transport enables a city to be more corridor orientated where it is easier to provide infrastructure.
Transit Orientated Development in the context of Gauteng Province would typically promote densification and infill development around railway stations and modal transfer facilities which would alleviate outward development pressure on the urban edge”
Equally important, this development node/s provides a increasing range of employment opportunities in close proximity and is favoured in terms of development by both the Midvaal Environmental Management Framework and the Midvaal IDP/SDF.
We respectfully urge the MEC to instruct the Department to reapply its mind to this Authorization in the context of these Provincial and Local government policies and to particularly consider the balance between community and private interests in terms of the application and extension of the Urban Edge Policy.
7. Specific Issues in terms of this Authorization:
In the event that the proposed development is allowed to proceed in terms of the MEC’s decision on appeal, we request that the MEC amend certain items in this Authorization so as to provide greater clarity and avoid ambiguity and misinterpretation, viz.
- Item 1.9.1 mentions “the existing structure located to the south of the dirt(y) leading up to the ridge to the towers” Currently the only possibility that might fit this description appears to be a disused earth dam wall. Since this paragraph goes on to indicate that this “structure” marks the “northern most boundary of the area allowed for development”. We request that this northern boundary is set out more clearly to avoid any later discussion or dispute and marked on a plan of the development. Indeed this aspect would most appropriately be dealt with under the revised layout plan discussed above.
- 1.9.2 states that “No development is allowed beyond the eastern boundary of the transformation footprint of the structure mentioned in 1.9.1.The same applies here. If indeed it is the old earth dam wall that is being referred to as a structure, five minutes of attention with earth moving equipment will obliterate all trace of it. We request that this aspect is dealt with by the immediate issuing of a new layout plan as requirement of this authorization rather than as the Authorization currently requires its submission prior to the commencement of construction.
- Similarly with 1.10, the edge of the riparian zone should be clearly demarcated on a map or plan and attached to this authorization.
- 1.20 states that “Energy saving appliances should be installed throughout the development” We respectfully request that this instruction be made more specific by reference to some specific standard. Australia’s “Green Star” system for residential development may provide a useful guide as may the guidelines currently being adopted by Cape Town. If this is not done, the “market failure” alluded to in our submission on the Draft EIA Report will ensure that little happens.
Yours faithfully
A H Ashdown
Chairman
continued Woodacres and Mountain View....
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