A full bench of the Gauteng High Court has set aside the environmental authorisation for the proposed K148 road development, in Gauteng, ruling that both the original 2016 approval and subsequent 2021 amendment were unlawful.

The court upheld an appeal brought against the road project by private investment company NT55 Investments, overturning decisions by Judge Bashier Vally in the High Court in April 2024.

The High Court set aside the environmental authorisation owing to the approval process not complying with lawful procedural requirements under the National Environmental Management Act (NEMA) and the Promotion of Administrative Justice Act (PAJA).

The court also dismissed arguments that the review was brought too late, finding that the delay was not unreasonable in the circumstances. It further notes that the applicants – NT55 Investments and its CEO Francois Nortjé – only became aware of the environmental authorisation in December 2019 and took action soon afterwards, stressing that the time limits under PAJA should be applied fairly, in context, and not in a strict or technical way.

The court also found that no real prejudice was caused by any delay and that procedural time limits cannot be used to protect an unlawful decision from being reviewed, especially where the internal appeal process was ineffective.

In particular, the court found that the environmental-impact assessment (EIA) process was materially flawed owing to inadequate public participation given the exclusion of some landowners, the incomplete assessment of environmental impacts and irregular amendments to key conditions, including changes affecting floodplain development restrictions.

“What is important is that all potential interested and affected parties must be afforded an opportunity to participate. The separate requirement that registered interested and affected parties be given an opportunity is additional to that obligation.

“The EIA regulations thus required the Gauteng Department of Agriculture and Rural Development (GDARD) to ensure a meaningful process by identifying potential interested and affected parties and affording them an opportunity to participate.

“On the evidence, public sector agency Gautrans failed to invite the appellants, who were known interested and affected parties,” Judge Mpostoli Twala notes.

This ruling effectively removes any valid environmental approval for the road, which forms part of the access infrastructure linked to the proposed Tambo Springs logistics and industrial development in Ekurhuleni, Gauteng.

This dispute dates back to a 2015 EIA process initiated for the K148 road.

Gautrans appointed an engineering firm to oversee the construction, which in turn appointed an environmental consultancy to conduct the assessment.

Only seven of the 15 affected properties were included in the initial EIA process, resulting in limited public participation and objections regarding procedural fairness.

Nortjé says several of the affected landowners were not notified and that key environmental risks were not adequately assessed, and these include the presence of a petrol pipeline and a sewage treatment plant located within the proposed alignment, as well as uncertainty regarding how the road would navigate these constraints.

The initial environmental authorisation was granted in December 2016; however, Nortjé says he only became aware of the approval in 2019, after which he engaged with the GDARD and Gautrans through correspondence, raising concerns about deficiencies in the EIA process. He says these concerns were not resolved to his satisfaction, leading to further legal action.

Subsequent amendments to the environmental authorisation in 2021 added further properties to the assessment footprint, although not all affected land parcels were included.

A key issue raised in the litigation concerned a condition prohibiting development on a floodplain, which was later removed during the amendment process. NT55 Investments has maintained that the proposed road alignment traverses a sensitive wetland system, a critical watercourse and habitat supporting several Red Data-listed bird species.

The judgment effectively requires that any future attempt to proceed with the K148 road construction would need to be with a new environmental authorisation process in compliance with NEMA and PAJA.

NEMA requires an EIA for roads that occupy sensitive areas and the Act also regulates environmental authorisations and enforces principles such as public participation, transparency and environmental protection, while PAJA aims to ensure that all government decisions are lawful, reasonable and procedurally fair, thereby providing the basis for reviewing and setting aside administrative decisions.