Localising Environmental Governance: The Le Sueur Case

In the matter of Le Sueur v Ethekwini Municipality the KwaZulu-Natal High Court decided that municipalities had the power to legislate on environmental issues such as biodiversity and conservation. This note argues that the precedent established in this case is that municipalities have authority to legislate upon environmental matters as an incident of municipal planning, which is an original constitutional power. In contrast to both the judgment and recent commentary, it argues that the source of municipal legislative authority over municipal planning is not based in legislative assignment but in s 156(5) of the Constitution (the "incidental power" provision relevant to local government). This argument is based on understanding the distinction between original and assigned powers, and the nature of the control that the national and provincial spheres exercise over Schedule 4B powers. Notwithstanding this inaccuracy in the judgment, it is argued that the precedent is a welcome one that can be justified not only on the basis of the principle of subsidiarity but also in terms of the emerging and increasingly important theory of social-ecological resilience.

In as much as the amendments to the town planning scheme were legislative instruments, the applicants proceeded, they were unconstitutional and illegal because Schedule 4, Part A of the Constitution identifies "environment" as a functional area of concurrent national and provincial legislative and executive competence, thus excluding the local sphere of government from legislating or exercising executive authority in this area, except by way of legislative assignment. 12 The functions of the national and provincial environmental authorities are distinct and different from those of municipalities, the applicants held. Notwithstanding that the Constitution identifies as one of the objects of local government the promotion of a "safe and healthy environment", 13 municipalities have no authority to legislate in respect of matters such as "environment", "nature conservation" or "biodiversity protection". The applicants pointed out that a municipality has executive authority and the right to administer only those matters set out in Parts B of Schedules 4 and 9 Ethekwini Municipality date unknown http://www.durban.gov.za/City_Services/ development_planning_management/environmental_planning_climate_protection/Durban_Open _Space/Pages/MOSS_FAQ.aspx. 10 Ethekwini Municipality date unknown http://www.durban.gov.za/City_Services/development_ planning_management/environmental_planning_climate_protection/Durban_Open_Space/Pages/ MOSS_FAQ.aspx. T HUMBY PER / PELJ 2014(17)4 5 respectively. 14 This in turn also restricted the scope of its authority to make bylaws. 15 In the Gauteng Development Tribunal case the Constitutional Court had "decreed" that municipalities hold the functional power of "municipal planning" 16 to the exclusion of other spheres of government, and in the Supreme Court of Appeal judgment in the same matter the court had affirmed that "municipal planning" entails "the control and regulation of land use at a municipal level, the zoning of land and establishment of townships". 17 The environmental aspects of both municipal planning, and the meaning of "safe and healthy environment" in s 152(1)(d) of the Constitution could be determined by having regard to the other functional areas listed in Parts B of the Schedules such as air pollution, storm water management services, water and sanitation services, and refuse removal, amongst others. 18 While the Constitution affords municipalities executive authority in respect of any other matter assigned to it by national or provincial legislation, 19 the applicants pointed out that the National Environmental Management Act 20 made no reference to municipalities exercising authority over environmental impact procedures, thus supporting the claim that environment, biodiversity protection and nature conservation remained the exclusive preserve of the national and provincial spheres of government. 21 The municipality (the first respondent) together with the KwaZulu-Natal MEC for Cooperative Governance and Traditional Affairs opposed the application and the applicants' interpretation of local authorities' power in respect of the environment as unduly narrow and incorrect. 22 The City of Cape Town, admitted by the court as an amicus curiae, led evidence substantially in support of the municipality. 23 The Minister of Environmental Affairs and the KwaZulu-Natal MEC for Agriculture and T HUMBY PER / PELJ 2014 (17)4 Environmental Affairs had filed notices indicating their intention to abide by the decision of the court, a stance that the court interpreted in favour of the first and fourth respondents. 24 The applicants additionally maintained that insofar as the introduction of the D-MOSS amendments had not provided for any form of compensation to landowners, they amounted to an unconstitutional "expropriation by stealth". However, this argument had only been raised in reply and was thus ignored by the court as the impermissible submission of a new matter. 25 2.2 Judgment and reasons for judgment Gyanda J roundly dismissed the applicants' arguments, holding that municipalities are in fact authorised to legislate in respect of environmental matters in order to protect the environment at the local level. 26 This power to legislate, the judge held, in no way transgressed or intruded upon the "exclusive purview" of national and provincial governance in respect of environmental legislation. 27 This conclusion was based on an elaborate argument that can be dissected in terms of five distinct, yet interlocking and mutually supporting themes, namely: (1) state obligations imposed by the right to environment in s 24 of the Constitution; (2) the scope of municipal executive and legislative power in terms of s 156 of the Constitution; (3) the constitutional model of co-operative governance; (4) the meaning of "municipal planning"; and (5) national and provincial support for local environmental governance. A brief summary of the judge's deliberation in respect of each of these themes follows.

State obligations in terms of s 24
Gyanda J framed his consideration of the municipal power to legislate on the environment in terms of the Bill of Rights and specifically, the constitutional 24 Le Sueur (KZP) para 2. 25 Le Sueur (KZP) para 17. 26 Le Sueur (KZP) para 40. 27 Le Sueur (KZP) para 40. T HUMBY PER / PELJ 2014 (17)4 injunction upon the state to protect, promote and fulfill constitutional rights. 28 Since the government of the Republic is constituted as national, provincial and local spheres of government, 29 the "state" in this regard clearly includes local government in the form of the municipality. The functional areas of competence in Schedules 4 and 5 are further not exhaustive of the ambit of the state's duties and must be read, the judge implied, in conjunction with the Bill of Rights and s 24 in particular. 30 There was nothing in s 24 to suggest that the obligation to promote ecologically sustainable development, or to promote conservation, is binding only upon the national and provincial spheres of government. 31 These protections are binding also upon a municipality when it exercises its powers and performs its functions as delineated in Parts B of Schedules 4 and 5 or gives effect to the obligation to promote a "safe and healthy environment" in s 152(1)(d). The judge then went on to quote from the first certification judgment, 32 in which the Constitutional Court had observed that at a very minimum socio-economic rights must be negatively protected from improper invasion. 33 Gyanda J did not elaborate on this line of thought, but he could have meant either that municipalities must exercise their powers with restraint, in a manner that does not invade s 24 rights, or that municipalities must act in a manner that protects such rights against improper invasion from third parties.

Municipalities' legislative powers in terms of s 156
It was within the context of s 24, the judge held, that the meaning of "municipal planning" in Part B of Schedule 4 needed to be assessed and interpreted. Before delving into the more extended meaning of this term, however, the judge turned to 28 Le Sueur (KZP) para 19. 29 S 40 of the Constitution. 30 After providing that everyone has a right to an environment not harmful to health or well-being, s 24 of the Constitution goes on to state that "everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other mechanisms that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development". 31 Le Sueur (KZP) (17)4 the source of municipalities' legislative authority in respect of the environment. He relied primarily on s 156(1)(b) (allowing for national or provincial legislation to assign any matter to municipalities) and s 156(4) of the Constitution, which indicates that matters reserved for national and provincial legislative authority in Parts A of Schedules 4 and 5 must be assigned to a municipality (by agreement and subject to conditions) if the matter necessarily relates to local government, would be administered most effectively locally, and the municipality has the capacity to administer it. Whilst not identifying, at this point, the exact assignment in terms of which municipalities may be exercising legislative authority in respect of the "environment", Gyanda J preliminarily situated this power within the ambit of s 156(1)(b) by noting that: although matters relating to the environment may be said, in terms of the Constitution, to be the primary concern or sphere of National and Provincial responsibility … Local governments in the form of Municipalities are in the best position to know, understand and deal with issues involving the environment at local level. 34 Prefacing his arguments relating to the model of co-operative government established by the Constitution, he pointed out that the framers of the Constitution had not intended to allocate the functional areas in the constitutional schedules in terms of "hermetically sealed, distinct and water tight compartments". 35 The Constitution has a unitarian focus in establishing the Republic of South Africa as "one, sovereign democratic state" 36 while at the same time constituting national, provincial and local spheres of government. The capacity for the local sphere to exercise legislative authority within this model is confirmed by s 43 of the Constitution, which vests such authority in municipal councils.
Highlighting a source of legislative authority apart from assignment, he also pointed to s 156(5) of the Constitution, which states that a municipality has a right to 34 Le Sueur (KZP) para 20. 35 Le Sueur (KZP) para 20.  Le Sueur (KZP) para 20. What Gyanda J seems to imply in this passage is that the logic imposed by the division between an A and B part in the Schedules did not comfortably accommodate the environment, which was functionally appropriate to allocate to all three spheres. Inserting "environment" into Parts B of Schedules 4 and 5 would have been unduly restrictive if "environment" was then interpreted -in a fashion similar to "municipal planning" -as an area reserved to the municipal sphere (albeit with the possibility of national and provincial legislative oversight).
T HUMBY PER / PELJ 2014(17)4 always exercised legislative responsibility over environmental affairs within a municipal area. The drafters of the Constitution were aware of this fact and recognised this "… in the manner in which the newer Constitutional dispensation was formulated." 41 Both at the time that the Constitution was drafted, and since then, the judge continued, national and provincial legislation and policies have allocated to municipalities a legislative and executive mandate with respect to environmental matters, "placing such matters squarely within the concept of municipal planning". 42 As evidence for this position, Gyanda J pointed to the manner in which the Local Government Transition Act 43 defined the powers of transitional metropolitan councils (which powers extended to "metropolitan environment conservation") and later, the powers of metropolitan councils and metropolitan local councils (which extended to "the co-ordination of environmental affairs" and "the management and control of environmental affairs" respectively). Councils were required to exercise these powers through the development and implementation of an integrated development plan, which had to be mindful of the land development principles articulated in the Development Facilitation Act. 44 The latter required policy, administrative practice and laws to promote "sustained protection of the environment". 45 Gyanda J saw in these provisions a "specific environmental mandate" on the part of municipalities at the time when the Constitution was enacted in February 1997. 46 The framers of the Constitution must accordingly "be taken to have been aware of the fact that the Turning to the Town Planning Ordinance, as the specific legislative instrument used by the municipality to effect the D-MOSS amendments to the Ethekwini Town Planning Scheme, Gyanda J noted that the matters to be dealt with by schemes included "[t]he preservation or conservation of … places of natural interest or beauty". 51 Further, the courts had recognised the zoning of land for conservation purposes introduced by town planning schemes as imposing a legally enforceable encumbrance. 52 This additionally supported the conclusion that prior to the Constitution "municipal planning" involved the power to regulate land use while taking into account, amongst other factors, the need to protect the natural environment. 53 2.2.5 National and provincial support for localised environmental governance As a final support for the cogency of his argument, Gyanda J presented evidence of national and provincial support for local environmental governance as an aspect of municipal planning.
He first emphasised that none of the respondents (particularly those that had indicated their intention to abide by the decision of the court) supported the applicant's contention that the municipality's "transgression" into the field of 49 Le Sueur para 25. Africa. In this regard Gyanda J highlighted: • The KwaZulu-Natal Environmental Implementation Plan, which lists "municipal planning" as a functional area of competence with environmental relevance. 55 • The NEMA Environmental Management Framework Regulations of 2010, which state that spatial development frameworks must, inter alia, inform conservation of both the natural and built environment, indicate areas in which particular types of land use should be encouraged and others discouraged, and indicate areas in which the intensity of land development could be either increased or reduced. 56 • The National Environmental Management: Biodiversity Act 10 of 2004, which requires co-ordination and alignment of biodiversity plans with integrated development plans adopted by municipalities. 57 • The National Biodiversity Framework, which, whilst recognising that municipalities do not have biodiversity conservation as their core business, ascribes a key role to the local sphere in terms of co-ordinating and integrating the management of biodiversity resources. 58 Gyanda J was thus able to conclude that (i) municipalities had traditionally been involved in regulating matters at an environmental level; (ii) that their functions at this level had been recognised by the drafters of the Constitution and (iii) that national and provincial environmental legislation recognized the part to be played by 54 Le Sueur para 29. 55 Le Sueur para 35. 56 Le Sueur para 36. 57 Le Sueur para 38. 58 Le Sueur para 38.
T HUMBY PER / PELJ 2014 (17)4 the local sphere in managing and controlling the environment. As such it was inconceivable that municipalities were to be excluded from legislating in respect of environmental matters, notwithstanding the listing of "environment" in Part A of Schedule 4. 59

Discussion
The discussion in this note focuses on two questions: Is this judgment consistent with recent Constitutional Court jurisprudence on municipal planning? And secondly, is the court's affirmation of local environmental governance a welcome development?
3. Although this is the function of this section, it should be noted that this court had already examined the obligations of town planning and provincial environmental authorities in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 6 SA 4 (CC) (Fuel Retailers). In Fuel Retailers the court rejected the argument that consideration of the social and economic aspects of a development were reserved for consideration by the local authority (under the mantle of "need and desirability" when determining applications for rezoning), while the provincial authorities were restricted to a consideration of environmental impacts. Rejecting this compartmentalized vision of the allocation of functional powers, which would have excluded the provincial sphere from examining social and economic impacts from the vantage point of their impact upon and relationship with environmental impacts, the court decided that the local authority's consideration of "need and desirability" could not be equated with the province's consideration of the social, economic and environmental impacts of a proposed development in terms of the National Environmental Management Act 107 of 1998 (para 85). As such, the court affirmed a complex, interconnected and layered understanding of the functional areas vesting in the different spheres of government. There is one paragraph in the Fuel Retailers judgment, however, that could lend support to the applicants' argument that environmental considerations are reserved to the national and provincial spheres. For the court had held: "Need and desirability are factors that must be considered by the local authority in terms of the Ordinance. …The local authority is not required to consider the social, economic and environmental impact of a proposed development as the environmental authorities are required to do by the provisions of NEMA" (my emphasis  (17)4 review. 79 She also voices a concern for the "democratic guarantees" legislative processes afford. 80 She agrees with Gyanda J that the D-MOSS amendments are legislative in character, which means, however, that the power to pass such legislation has to be based in legislative assignment (s 156 (1) Bronstein proposes but then dismisses ss 156(2) 85 and 156 (5)  Apart from the division of powers between national/provincial and local spheres of government, the proper characterisation of town planning schemes could be significant for the argument (raised but not considered in the judgment) that the amendments constitute "expropriation by stealth" (Le Sueur (KZP) para 17). The D-MOSS amendments, or municipal planning instruments of a similar nature, could be vulnerable to the claim that they constitute an unconstitutional deprivation or expropriation of property. Constitutionality in both instances requires, after all, the existence of a "law of general application" (s 25, Constitution). If large-scale amendments to town-planning schemes in the nature of the D-MOSS amendments are characterised as executive authority then they would surely fall foul of the constitutional property right. 85 According to 156(2), "[a] municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer". 86 S 156(5) provides: "A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions".   (17)4 in terms of the same provincial ordinance as that used to effect the D-MOSS amendments). After describing the process for the approval of a town planning scheme, the court concluded that "although it is a legislative instrument (on account of its general application), it is not a regulation made by the MEC and it is also not a bylaw passed by the municipality". 96 The true character of a town planning scheme, the court continued, is that "[i]t is a hybrid form of legislation created by resolution in the local sphere of government, and approval and promulgation in the provincial sphere of government, with a public-participation process sandwiched between the two". 97 This accords with Davis J's contention in Van der Westhuizen v Butler 98 that zoning scheme regulations are not sourced in a bylaw. 99 These precedents would seem to dispense with s 156(2) as a candidate for the legislative authority in question. It also quashes the argument that a municipality's legislative authority in respect of environmental matters is embedded in its executive authority over municipal planning; 100 i.e. for a town planning scheme to be viewed as a form of subordinate legislation.
Are we forced then to conclude that the power to pass an instrument such as the D-MOSS amendments must be based in legislative assignment? If this is so, then it is because the power to undertake municipal planning must be based on legislative assignment. It is here that this argument goes off track and where the decision in Le Sueur is also arguably over-stated. The precedent established by Gyanda J's reasoning is not so much that municipalities are authorised to legislate on environmental matters, but that they are authorised to do so as an incident of municipal planning, an original constitutional power. initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution". 106 S 151(4) provides that "[t]he national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions". and executive authority in a manner that regulates or "broadly" manages or controls the exercise of municipal planning by municipalities rather than through a direct authorisation function. 111 This is an approach, Davis J held, that ensures provincial authority is not destructive of or conflated with municipal powers. 112 It is therefore inaccurate to claim that "[l]egislative assignment is an important source of municipal legislative power in the area of 'municipal planning'". 113 Since the national and provincial spheres of government exercise only a framing legislative authority over the functional area of municipal planning, it would be impossible for them to assign the legislative authority for determining the detailed arrangements in this regard to the municipal sphere.
If the enactment and amendment of town planning schemes is then a "hybrid form of legislation" that is neither an exercise of executive authority (as subordinate legislation), nor a bylaw, the obvious candidate for the source of municipal legislative authority in this regard is s 156 (5)  mandate and (ii) should not increase the functional ambit of local government but rather enhance the efficacy of an existing functional area. 118 It is difficult to see how the legislative authority to enact a town planning scheme (including its environmental aspects) could not be seen as "necessary for" or "incidental to" developmentally-oriented planning, given that the courts in the Gauteng Development Tribunal have now confirmed that municipal planning includes land use control. This incidental power does not increase the functional ambit of local government but rather enables it to conduct municipal planning effectively. As the court in JDJ Properties remarked, this legislative authority is sui generis, involving a hybrid allocation of power between the local and provincial spheres, but not in a manner that denudes municipalities of all legislative authority whatsoever.
This interpretation of the source of municipal legislative authority in respect of The idea of determining a "total allowable catch" of marine resources on an annual basis is an example of this "optimization" philosophy.
128 An oft-cited example of this is how the natural characteristics of the Florida Everglades are changing in response to large-scale water diversions and conversions of marshland to agricultural land. An example closer to home is how the natural system of dolomitic springs on the Witwatersrand has been irreversibly transformed by more than a century of gold mining into a system capable of generating large-scale acid mine drainage. system to self-organise and the quality of that self-organization as well as the degree to which a system can build and increase the capacity for learning and adaptation. 130 Later theoretical developments in resilience theory have highlighted the importance of biodiversity in processes of reorganization and regeneration. 131 While only a small number of species are responsible for keeping an ecosystem within a certain "domain of attraction" (ie with the same kind of structure, form and feedbacks) at any one time, the existence of species groupings in terms of the functions they perform has been highlighted as playing a critical role in how well a system is able to reorganise and regenerate after a disturbance. 132 This highlights redundancy as a valuable attribute in ecosystem functioning. There is also an emerging understanding that social-ecological systems operate at different scales (local-regional-national-global) and that cross-scale dynamics can affect the rate at which different systems adapt and transform over time. 133 Change at a local scale can frequently drive changes in larger systems, as when the cumulative effect of many individual land use changes (from undisturbed natural vegetation to agriculture, for instance) drives changes in the manner in which groundwater operates in an entire region, 134 or affects the turbidity of freshwater lakes.
New understandings of the complexity of linked social-ecological systems has led to the proliferation of new governance models for responding to and dealing with such complexity. The concept of "adaptive governance", in particular, has been proposed as a form of governance that incorporates the reflexive, iterative and scientifically based forms of management necessary to understand the dynamic nature of social  (17)4 section 24. How different local governments respond, and how in particular they are able to overcome capacity and resource constraints and the contortions of local politics, will require careful observation in the future.

Conclusion
The precedent in the Le Sueur matter is essentially that municipalities have authority to legislate upon environmental matters as an incident of municipal planning, which is an original constitutional power. The note has suggested that characterising town planning schemes as the exercise of legislative authority is important for purposes of meeting the requirements of the constitutional property right but has argued that contrary to both the judgment and recent commentary, the source of such legislative authority is not based on legislative assignment (invoking ss 156(1)(a) and 156(4) of the Constitution), but in s 156(5) -the provision that allows a municipality to exercise any power reasonably necessary for or incidental to the effective performance of its functions. This argument is based on understanding the distinction between original and assigned powers, and the nature of the control that the national and provincial spheres exercise over Schedule 4B powers.
Notwithstanding this inaccuracy in the judgment, it has been argued that the precedent is a welcome one that can be justified not only on the basis of the principle of subsidiarity, but also in terms of the emerging and increasingly important theory of social-ecological resilience.