■ Louise Agenbag, Polygon Environmental Planning
There were some headlines recently that sent shock waves through the environmental and agricultural industries in recent weeks, after a Clanwilliam farmer, Tierhoek Boerdery, was fined a whopping R3.5 million for 11 transgressions relating to the construction of two dams without the necessary authorisations.
Comments on the case ranged from outrage that a farming operation, which plays a vital role in the local economy and by all accounts also makes a significant socio-economic contribution to their local community, should be slapped with such a big fine to concerns that the fine was not big enough to deter big developers who may be weighing their options about proceeding without authorisation.
The charges sprang from two off stream irrigation dams which were constructed by Tierhoek, and for which they failed to obtain the required authorisations, including a Water Use Licence (WUL) for storage of water, Environmental Authorisation (EA), licence to construct a dam with safety risk and registration of dams with safety risk after completion of construction amongst others.
Two years after the activities were first identified during an “Enforcement and Monitoring Blitz” by the Department of Water and Sanitation (DWS) in 2017, Tierhoek Boerdery has now been fined for six transgressions of water-related legislation and five environmental transgressions. This farming business was ordered to pay R1,25m to DWS, R1,25m to the Western Cape provincial Department of Environmental Affairs and Development Planning, and R1m to the National Prosecuting Authority.
This is still far below the maximum penalties allowed for in legislation. The National Environmental Management Act (NEMA, 1998, as amended) makes provision for fines of up to R10m per transgression (and there may be several transgressions as part of one development) and/or imprisonment of up to 10 years, while the National Water Act (NWA, 1998, as amended) allows for a fine and/or imprisonment of up to five years for a first conviction or up to 10 years for a second or subsequent conviction.
It is important to note that in terms of both NEMA and NWA, penalties become harsher when it is not the first conviction, to discourage repeat offenders. Potential penalties for transgressions have become more significant over the course of the last two decades since NEMA and NWA were promulgated, and enforcement has also been progressively tightened by the authorities.
Louise Agenbag from Polygon Environmental Planning shared these guidelines for prospecting farmers and developers regarding this issue.
The old saying, “It’s easier to say sorry than to ask permission”, definitely does not hold water. But what can be done to ensure that such people stay on the right side of the law and prevent a scenario where they face fines and/or prison time? These few basic steps should keep you safe:
Remember, not knowing is not an excuse. It’s tough keeping up with evolving environmental legislation, especially if that’s not your primary business. However, the authorities won’t excuse a transgression just because you genuinely didn’t know that authorisation was required. That’s where an environmental consultant comes in. It is their job to know what is required and to give advice accordingly.
When in doubt, approach an expert. When planning any new activity, expansion or upgrading of existing activities, consult an environmental consultant. An environmental consultant will quickly be able to tell if an activity is likely to trigger authorisation in terms of environmental, water or related legislation, and will likely provide that advice for free.
Cooperate with the authorities. They are more interested in solving the problem (non-compliance which should be brought into compliance) than in simply punishing a farmer or developer for the sake of punishment.
If a department such as LEDET (Limpopo Department of Economic Development, Environment and Tourism) or DWS approaches farmers or developers about suspected non-compliance, provide them with the requested information.
And if you receive a “pre-compliance notice”, a notice of intention to issue a compliance notice, make sure to respond within the specified timeframe, which is usually 14 days.
Don’t try to hide any activities. It always comes to light sooner than later. While the authorities themselves don’t have the resources to scrutinise every property for possible non-compliance, unlawful activities usually get exposed either by neighbours or members of the public, or if you apply later for authorisation for another activity on the property and the original one is discovered.
If you have already undertaken activities without authorisation for whatever reason, there are processes by which you can apply for late authorisation.
Polygon Environmental Planning in Tzaneen would be happy to do a screening of planned or existing activities in order to advise on the authorisations required, as well as to undertake the required applications from start to finish, ensuring that a project is fully compliant.