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Developers: Green Laws Grow Sharper Teeth

Developers: Green Laws Grow Sharper Teeth

Property owners and developers who breach environmental legislation face substantial penalties, and our courts are getting tougher in applying them.

That’s of course great news for environmentalists, but property owners generally (and developers in particular) need to be aware of the increasing danger of falling foul, even inadvertently, of the raft of environmental laws out there.

For example, if you as a property owner fail to obtain environmental authorisation before undertaking a “listed activity” (the lists are long and varied – take advice in doubt) you risk criminal prosecution and a whopping R5m fine (up from R1m).

Now a recent Regional Court decision has fired a warning shot across the bows of all property owners of yet further risk – penalisation in terms of POCA (the Prevention of Organised Crime Act). You may not think of a statutory contravention as having any relation to organised crime, but POCA’s reach is a lot wider than its name suggests. You could well end up not only paying a hefty fine, but also forfeiting, as “proceeds of crime”, the value of any benefit that the court assesses you to have received through the contravention – your losses could be huge.

The prosecution …..

  • A forestry company decided to widen a forest road on its property by more than 6m.  That’s one of the many “listed” activities requiring an EIA (Environmental Impact Assessment),
  • It commenced construction without obtaining the necessary prior environmental authorisation,
  • It was duly prosecuted, and pleaded guilty to a statutory contravention.

….. and the confiscation order

The Court, holding that offences of this sort are prevalent, with “big companies…….getting away with murder” by disregarding laws relating to the environment, ordered the offending company to pay –

  1. A fine of R180,000, and
  2. On the application of the Asset Forfeiture Unit, a confiscation order of R450,000 (plus interest) representing the amount the company saved by failing to obtain authorisation, and
  3. Costs of the confiscation order application on the punitive attorney and client scale.

The company has been granted leave to appeal the confiscation order but regardless of the outcome there is a clear warning here.  Environmental legislation has teeth that are sharp and getting sharper – ignore them at your peril!

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