The recent enactment of the National Environmental Management Amendment Act IV (NEMLAA IV) will introduce significant changes to environmental laws, including the NEMA appeal provisions.
Currently, when any appeal is lodged, the underlying decision is
automatically suspended pending the outcome of the appeal, unless the appeal authority directs otherwise and only in exceptional circumstances.
This position will change when NEMLAA4 comes into operation. In future:
- Appeals against environmental permits, exemptions, or their conditions will
continue to automatically suspend the approval. But the holder can apply to the appeal authority showing good cause that the suspension should be lifted, wholly or in part. This is a
positive development. In our experience, this automatic suspension provision has sometimes been used as a tactic to suspend operations, even based on frivolous grounds of appeal. NEMLAA IV will offer an opportunity to re-commence operations while the appeal is ongoing, which is encouraging.
- Appeals against directives or compliance notices (which are issued to address significant harm to the environment)
will not automatically suspend the administrative process. But the recipient can apply to the appeal authority showing good cause that the directive or compliance process should be suspended. This is unfortunate, given that administrative processes can sometimes be unsubstantiated, may result in the shutdown of operations, and complying with them is often costly. At least NEMLAA IV offers an opportunity to apply for the suspension of the administrative processes pending the outcome of an appeal.
