Local government and the protection of the environment : an analysis of the functional areas of 'municipal planning' and 'environment'.'

LL. M. University of KwaZulu-Natal, Pietermaritzburg 2013.

The Constitution brought about fundamental changes to the structure of government in South Africa. The national, provincial and local spheres of government are defined as being distinctive, interdependent and interrelated. Each sphere is obliged to exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere and in addition must not assume any power or function except those conferred on them in terms of the Constitution. The areas for which each sphere has executive and legislative powers are assigned in Schedules 4 and 5 of the Constitution. This is done through the use of functional areas In the context of environmental law, the allocation of these functional areas is a minefield of potential conflict between the spheres of government. As such, defining the scope of the functional areas, and establishing principles in terms of which the spheres of government exercise their constitutionally protected powers is an important issue. This is highlighted in the case of conflict arising between the functional areas of municipal planning (a local government functional area) and environment (a national and provincial functional area). This planning-environment conflict has lead to a range of recent judgments that appear to have crystallised the principles in terms of which the Constitution should be viewed as allocating the functional areas. A key principle is that the three spheres of government should not been seen as having been placed in hermetically sealed compartments and that sometimes the exercise of powers by two spheres may result in an overlap. When this happens, neither sphere should been seen as intruding into the functional area of another. Each sphere would be exercising power within its own competence. Therefore, it is apparent that local government has been saddled with a significant amount of powers to regulate environmental-issues through planning legislation. Whilst this may be appropriate in certain circumstance, the courts must be wary of allowing too broad an interpretation of local functional areas where this would erode into the functional area of environment. In order to further environmental governance, alternative means of defining the functional areas should be adopted. Such alternate means include legislative interpretation, administrative definitions and negotiated definitions. Within this suite of tools, giving effect to the Constitution through effective environmental governance at each sphere of government is achievable.