National Appeal Regulations, 2014 (No. R. 993 of 2014)

NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998 (ACT NO. 107 OF 1998) NATIONAL APPEAL REGULATIONS I, Boma Edith Edna Molewa, Minister of Environmental Affairs, hereby make the regulations pertaining to the processing, consideration of, and decision on appeals, under section 44(1)(a) read with section 43(4) of the National Environmental Management Act, 1998 (Act No. 107 of 1998), as set out in the Schedule hereto. BOMO EDITHEDNA MOLEWA MINISTER OF ENVIRONMENTAL AFFAIRS This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 8 DESEMBER 2014 No. 38303 3 GOVERNMENT NOTICES DEPARTMENT OF ENVIRONMENTAL AFFAIRS No. R. 993 8 December 2014 SCHEDULE TABLE OF CONTENTS CHAPTER 1 INTEPRETATION AND PURPOSE OF REGULATIONS 1. Interpretation 2. Purpose of Regulations 3. Application of Regulations CHAPTER 2 ADMINISTRATION AND PROCESSING OF APPEALS 4, Appeal submission 5. Responding statement 6. Appeal panel 7. Recommendations and decisions on appeals 8. Communication CHAPTER 3 GENERAL MATTERS 9. Repeal of regulations 10. Transitional arrangements 11. Short title and commencement Annexure 1: Regulations Repealed This gazette is also available free online at www.gpwonline.co.za 4 No. 38303 GOVERNMENT GAZETTE, 8 DECEMBER 2014 CHAPTER 1 INTERPRETATION AND PURPOSE OF REGULATIONS Interpretation 1, (1) In these Regulations any word or expression 'o which a meaning has been assigned in the Act, and unless the context requires otherwise "appeal administrator" means a holder of an office in the Department or Provincial Department responsible for environmental affairs who administers the appeal on behalf of the appeal authority; "appeal authority" is the Minister, the MEC or a person delegated the power to decide on appeals by the Minister or MEC, as the case may be; "appellant" means any person who is entitled to submit an appeal in terms of the legislation referred to in regulation 3(1) of these Regulations; "decision-maker" means an official who has been delegated the authority to make a decision in terms of the laws referred to in regulation 3(1) of these Regulations; "applicant" means a person to whom a decision has been issued in terms of the Act or specific environmental management Act; "independent", in relation to a person appointed as a member of an appeal panel or a person providing an appeal authority with expert advice as contemplated in regulation 6 of these Regulations, means (a) that such a person has no business, financial, personal or other interest in the appeal in respect of which that person is appointed in terms of these Regulations other than fair remuneration for work performed in connection with that appeal; and (b) that there are no circumstances that may compromise the objectivity of that person in performing such work; "the Act" means the National Environmental Management Act, 1998 (Act No. 107 of 1998). (2) When a period of days must be reckoned in terms of these Regulations, the period must be reckoned as from the start of the day following that particular day to the end of the last day of the period, but if the last day of the period falls on a Saturday, Sunday or public holiday, that period must be extended to the end of the next day which is not a Saturday, Sunday or public holiday, and the period of 15 December to 5 January must be excluded from the reckoning of days. (3) Where a prescribed timeframe is affected by one or more public holidays, the timeframe must be extended by the number of public holiday days falling within that timeframe. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 8 DESEMBER 2014 No. 38303 5 Purpose of Regulations 2, The purpose of these Regulations is to regulate the procedure contemplated in section 43(4) of the Act relating to the submission, processing and consideration of, a decision on an appeal. Application of Regulations 3. (1) These Regulations are applicable to an appeal in terms of section 43 of the Act to the Minister or MEC against a decision taken in terms of the: (a) Environment Conservation Act, 1989 (Act No. 73 of 1989); (b) National Environmental Management Act, 1998 (Act No. 107 of 1998); (c) National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004); (d) National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004); or (e) National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008); and subordinate legislation made in terms of any of these Acts. (2) No appeal is available if the Minister or MEC took the decision himself or herself in his or her capacity as the competent authority, issuing authority or licensing authority. (3) An appeal against a decision by an official or municipal manager acting under delegated authority from a metropolitan, district or local municipality must be submitted, processed and considered in terms of section 62 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000). CHAPTER 2 ADMINISTRATION AND PROCESSING OF APPEALS Appeal submission 4. (1) An appellant must submit the appeal to the appeal administrator, and a copy of the appeal to the applicant, any registered interested and affected party and any organ of state with interest in the matter within 20 days from: This gazette is also available free online at www.gpwonline.co.za 6 No. 38303 GOVERNMENT GAZETTE, 8 DECEMBER 2014 (a) the date that the notification of the decision for an application for an environmental authorisation or a waste management licence was sent to the registered interested and affected parties by the applicant; or (b) the date that the notification of the decision was sent to the applicant by the competent authority, issuing authority or licensing authority, in the case of decisions other than those referred to in paragraph (a). (2) An appeal submission must be (a) submitted in writing in the form obtainable from the appeal administrator; and (b) accompanied by (i) a statement setting out the grounds of appeal; (ii) supporting documentation which is referred to in the appeal submission; and a statement, including supporting documentation, by the appellant to confirm compliance with regulation 4(1) of these Regulations. Responding statement 5. The applicant, the decision-maker, interested and affected parties and organ of state must submit their responding statement, if any, to the appeal authority and the appellant within 20 days from the date of receipt of the appeal submission. Appeal panel 6. (1) If the appeal authority reasonably believes that expert advice must be sought or that an appeal panel must be appointed, the appeal administrator must source an independent expert or Constitute an independent appeal panel, or both, within 10 days from the date of receipt of an instruction from the appeal authority. (2) The appeal panel contemplated in subregulation (1) may consist of such number of independent experts and with such expertise as the Appeal Authority may deem necessary under the circumstances; (3) The expert or appeal panel must provide advice to the appeal administrator within 10 days from the receipt of an instruction from the appeal administrator. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 8 DESEMBER 2014 No. 38303 7 Recommendations and decisions on appeals 7. (1) The appeal administrator must make a recommendation on the appeal to the appeal authority within 30 days of receipt of the responding statement referred to in regulation 5 of these Regulations, in the event that an independent expert has not been sourced or an independent appeal panel has not been constituted. (2) The appeal administrator must make a recommendation on the appeal to the appeal authority within 10 days of receipt of the advice referred to in regulation 6(2) of these Regulations, in the event that an independent expert has been sourced or an independent appeal panel has been constituted, (3) The appeal authority must reach a decision on an appeal, and notify the appellant, applicant, and any registered interested and affected party, within 20 days of the recommendation on the appeal by the appeal administrator, (4) The decision contemplated in subregulation (3) must contain written reasons for the decision. Communication 8. (1) A person may deliver documents in terms of these regulations by using one of the delivery methods referred to in section 47D of the Act. (2) In order to meet the time periods determined in these regulations, the person referred to in subregulation (1), must also email, fax or hand deliver the document to the recipient, if the document is delivered by ordinary mail or registered mail. CHAPTER 3 GENERAL MATTERS Repeal of regulations 9. The regulations mentioned in the Table in Annexure 1 to these Regulations are hereby repealed or amended to the extent set out in the third column of the Table. This gazette is also available free online at www.gpwonline.co.za 8 No. 38303 GOVERNMENT GAZETTE, 8 DECEMBER 2014 Transitional arrangements 10. (1) An appeal lodged prior to the commencement of these Regulations, and which is still pending when these Regulations takes effect, must be finalised in terms of the legislation that applied at the time when the appeal was lodged. (2) An appeal lodged after the commencement of the. Environmental Impact Assessment Regulations, 2014 must be submitted, processed and considered in terms of these Regulations. Short title and commencement 11. These Regulations are called the National Appeal Regulations, 2014, and take effect on the date of publication in the Gazette. This gazette is also available free online at www.gpwonline.co.za STAATSKOERANT, 8 DESEMBER 2014 No. 38303 9 ANNEXURE 1 REGULATIONS REPEALED Date and year of publication Short title Extent of repeal Government Notice No. R.543, Gazette No, 33306 of 18 June 2010. Environmental Impact Assessment Regulations, 2010. Chapter 7. This gazette is also available free online at www.gpwonline.co.za 10 No. 38303 GOVERNMENT GAZETTE, 8 DECEMBER 2014