Schalkwyk, on administrative appeals against decision to grant authority
10 May 2006
Marthinus van Schalkwyk, Minister of Environmental Affairs and Tourism, has
taken a decision regarding the administrative appeals against the decision to
grant authorisation in terms of Section 22 of the Environment Conservation Act,
No 73 of 1989 on the Expansion of the Cape Town Container Terminal Stacking
Area.
The decision is attached hereto.
The decision can also be viewed on our website at http://www.deat.gov.za
Appeal decision
Minister of Environmental Affairs and Tourism
1. Subject
The National Ports Authority (NPA) lodged an application for the expansion
of the container terminal stacking area at the Port of Cape Town. The intention
is to reclaim a 300m wide section from the existing water's edge, parallel to
and seaward from the existing container terminal, increasing the container
terminal surface by approximately 42 hectares. An environmental Record of
Decision (ROD) was granted for the development, but two appeals were then
received against the proposed development. My decision regarding the
administrative appeals against the decision to grant authorisation in terms of
Section 22 of the Environment Conservation Act, No. 73 of 1989 on the proposed
development is indicated hereunder.
2. Background
In reaching my decision, I have considered the following information -
* The content of the project file;
* The appeal documentation related to the two appeals received as well as the
Council for Scientific and Industrial Research (CSIR) response and appellants
further responses;
* The Department's response to the grounds of appeals contained in the appeal
submissions; and
* An independent specialists' review.
The documents before me indicate that:
Appeals:
The two appeals are based on similar grounds. Indeed, it would appear that
the Dolphin Beach appeal was copied, with the necessary adaptations, from the
Woodbridge document.
The appellants dispute the following key factors for Decision as contained
in the RoD:
* There is a clearly defined need and desirability for the proposed
development;
* The project is intended to expand the container terminal stacking area at the
Port of Cape Town in order to ensure that it has the capacity to deal with the
current and future growth in container traffic; and
* Specific environmental specialist studies in the EIA process indicated that
the impact of the development was acceptable.
The issues raised by the appellants are wide ranging, and included the
following:
* Alternative means to address the need (e.g. improved and increased
equipment, higher stacking of containers, inland storage of containers, etc.)
were not adequately considered;
* The economic viability of the terminal expansion;
* Polluting emissions from ship engines;
* Visual impacts;
* Beach erosion not adequately assessed; and
* Impacts of beach nourishment on nearby communities.
Summary of the CSIRs responses to the above:
The CSIR contends that:
* There is much higher growth in container traffic than averred by the
appellants;
* Constraints relating to suitable equipment do not allow maximum stacking
(5-high) as suggested by the appellants;
* Maximum stacking is not achievable as a norm, is impractical, and impacts
negatively on efficiency;
* There are major objections to the alternative favoured by the appellants,
namely. The partial filling of the Duncan Dock;
* Larger ships mean that fewer vessels call, but carry more cargo - and the new
generation of ships are built to be more fuel efficient and are more
environmentally friendly; and
* The shoreline erosion problem will be mitigated by beach nourishment, where
suitable sand will be deposited near the terminal.
Summary of the appellant's replies to the CSIRs responses:
* The CSIR has no reliable method of forecasting the economic trends in
container traffic;
* The appellants do not accept the CSIRs arguments regarding equipment,
stacking heights and the alleged difficulties with maximum stacking;
* The appellants reiterate that the predicted turnover in containers is
overstated;
* The objections of the CSIR against the filling of the Duncan Dock are minor
irritations and by no means insurmountable; and
* The appellants do not accept the conclusion of the study to the effect that
the erosion in their areas will be minimal or of low impact, and question the
viability of the proposed beach nourishment.
The various arguments included in the afore-going are highly technical and
it is for this reason that I appointed experts to advise me on the appeals. Mr
Willem Botes and Mr Pieter Badenhorst were appointed to conduct such a review.
The report of the specialist's appointed by me consists of inter alia the
following:
Summary of the experts' review of the appeals
* There are potentially significant gaps in the Environmental Impact
Assessment report;
* Not all sensitive areas were identified in the EIR (for e.g. Milnerton
Estuary, Salt River Mouth and Caltex Sea Outfall);
* The model utilised to predict potential coastal erosion was not appropriate
for the study area (a straight line sandy coastline was used as opposed to the
complex nature and composition of the study area);
* The source of material for beach nourishment has not been established. It is
accordingly not clear whether adequate resources (in terms of volumes and
consistency) are available;
* There is information and data available to more accurately model beach
erosion and sediment transportation that should have been employed;
* The "does nothing" alternative and other alternatives should have been
assessed;
* Trucking of material for beach nourishment through residential and holiday
areas will result in substantial impacts on those areas;
* Recommendations of peer reviewers were not included in the report (without
providing reasons for dismissing such recommendations); and
* The practicality of engineering alternatives was not assessed.
In their conclusions, the experts opine, inter alia, that certain aspects of
the previous studies and therefore also the EIR need to be further investigated
to confirm that the "conceptual" design was indeed balanced and is the optimum
with regard to economic, environmental and social benefits to all interested
and affected parties, the coastal zone and existing infrastructure and
properties. The following issues were considered as key issues:
* Lack of critical information;
* Technical limitations and uncertainties;
* Questionable approach followed concerning beach nourishment;
* Coastal management; and
* The EIA process.
The specialists found the EIA process and the EIR to be flawed and
recommended that the appeals be upheld and the National Ports Authority (NPA)
be instructed to repeat and improve certain specified elements of the EIA.
The specialist's report was further reviewed by Dr A E F Heydorn, both in
his capacity as a former staff member of NRIO/CSIR closely involved in the
coastal studies in the area in question in the early 1980s and in his capacity
as independent coastal ecologist and consultant. He indicated that he fully
supports the recommendations by the two experts, and made additional comments
under the following headings:
* Coastal processes and ecology;
* Economic impacts;
* Aesthetic/visual impacts; and
* Human health and welfare.
Dr Heydorn's comments are summarised below:
Coastal processes and Ecology
Dr Heydorn points out that it is a well known fact that the intensity of
extreme (or episodic) storm events is creating high risk situations of
magnitudes not experienced previously in many coastal regions worldwide, and
that Table Bay cannot be assumed to be an exception. The assessment of these
risks needs to be addressed in far greater detail through in depth modelling.
Regarding the proposed mitigatory measures through various forms of sand
pumping, his opinion is that these are entirely inadequate. Fishing, both
commercial and recreational, will be affected. The effectiveness of mitigation
through sand pumping, and the risk that sand pumping holds, requires proper
assessment. In the light of these uncertainties, the Precautionary Principle
cannot be ignored.
Economic impacts
The EIR for the proposed expansion of the container terminal does not take
cognisance of the exceedingly high risk of negative impacts on the industry,
infrastructure, residential development and tourism of Cape Town and the
country.
Aesthetic/visual impacts
The region holds unique aesthetic/visual values which are recognised
throughout the world. If the configuration of the coast or its ecological
viability is further disrupted, the economic consequences will be severe and
incalculable. This aspect is also not addressed in the EIR.
Human health and welfare
Thousands of people live in the Table Bay area and their total financial
ability may be invested in properties such as those owned by persons
represented by the appellants. Erosion of the beach/dune zone, or the silting
up or other forms of degradation of Rietvlei, could be an unmitigated disaster
for such people. There will also be health risks if Rietvlei was to lose its
ability to absorb effluent from the sewage works, because water exchange with
the sea is impeded by changes in the configuration of its mouth. This may not
be overlooked.
3. Decision
Having had cognisance of the above, I have accordingly concluded as
follows:
a). The non-disclosure by the CSIR of the concerns and recommendations
highlighted by their expert renders the EIA process flawed and reflects a
serious breach of responsibility;
b). Notwithstanding the contention in paragraph (a) above, there is a clearly
demonstrated need to increase capacity to deal with container import and export
associated with Table Bay to meet the current and foreseeable future
need;
c). Calculations and investigations of the NPA confirm the financial and
economical feasibility of increasing the container capacity at Table Bay
Harbour;
d). Indications are that alternative locations, such as Saldanha are unlikely
to be feasible;
e). The NPA confirmed in relation to 3(b) above two possible options in meeting
the demands, namely:
1. To either find an inland alternative at Table Bay Harbour (e.g. through
redesign of the harbour) or;
2. Their preferred solution, expansion of the Container Terminal by reclaiming
areas from the sea.
The acceptability and severity of Environmental Impacts associated with the
latter are contested by appellants and some of their concerns are confirmed by
the expert external reviewers. Major issues of concern relate to:
* Beach erosion and associated impacts on coastal communities;
* Adequacy of beach nourishment proposals to counter beach erosion;
* Source material for beach nourishment;
* Impacts on communities related to beach nourishment;
* Impacts on sensitive areas, specifically the Milnerton and Rietvlei
Estuaries;
* Visual impacts; and
* Pollution caused by ships.
With the exception of the latest two I concur with the concerns raised
above, (for which limited substance could be provided). I am concerned about
impacts on the beach and sensitive ecosystems due to erosion and adequacy of
mitigation measures proposed. I am also concerned about the impacts on local
residents brought about by the proposed mitigation and management measures. It
is my view that if these impacts cannot be altogether avoided, more appropriate
mitigation must be found.
I have accordingly decided to partially uphold the appeals submitted in this
regard, set aside the ROD, and direct that the applicant is required to do
additional work and compile reports to be submitted to me for consideration.
Such reports, the content and extent of which are detailed below, together with
the information already compiled and submitted, will inform a revised decision
to be issued within 60 days of submission of such reports as hereby required.
Such work must include the following:
* Thorough investigation of inland solutions through harbour redesign, and
only if this is not at all feasible (and proven by means of reports in this
regard), investigation of viable and adequate mitigation measures for impacts
associated with reclamation of the sea through an expansion of the container
terminal;
* On the assumption that the structure would result in significant increase in
beach erosion, revisit mitigation measures to find nourishment solutions that
are scientifically and technically viable(the applicant may opt to revisit the
model used to estimate erosion to have more accurate estimates of trends to be
countered by nourishment);
* A monitoring programme needs to be developed to constantly evaluate
achievement of (b) above;
* Even should the applicant successfully confirm the findings of the model
previously used, nourishment alternatives and related monitoring mechanisms
would need to be refined as per USACE (2003a);
e) Identify adequate and appropriate sources for beach nourishment;
f) Investigate impacts caused or likely to be caused as a result of the
expansion of the structure. A management plan to counter or manage such impacts
as might be identified must also be included; and
g) Investigate and assess impact on marine ecology and coastal processes as
identified by Dr Heydorn's report and referred to in the content of this
decision under paragraph two. A management plan to counter or manage any
impacts identified through such investigation must also be included in the
report to be submitted to me.
On submission of the above information, being adequate and complete, I will
issue a revised Record of Decision that will give effect to these changes and
will stipulate the conditions to which any authorisation will be subject.
Issued by: Ministry of Environmental Affairs and Tourism
10 May 2006
