King Shaka International Airport (KSIA), La Mercy, Durban
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King Shaka International Airport (KSIA), La Mercy, Durban |
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29 October 2008 The Minister of Environmental Affairs and Tourism, Mr. Marthinus van Schalkwyk, has considered the appeals lodged against the Department's decision to grant an environmental authorisation of the construction of the King Shaka Airport on the farm La Mercy No. 15124 in Durban: KwaZulu-Natal North Coast After evaluating all the appeals and relevant information submitted to him, the Minister has come to a decision, a copy of which is attached hereto. To view the complete documentation please visit our website on http://www.environment.gov.za Appeal decision APPEALS AGAINST THE ENVIRONMENTAL AUTHORISATION OF THE DUBE TRADEPORT ALSO KNOWN AS KING SHAKA AIRPORT OR LA MERCY AIRPORT PROJECT REFERENCE 12/20/686 1. Introduction 1.1 In terms of section 22 of the Environment Conservation Act, 1989 (Act No. 73 of 1989 ("ECA"), read with the Environmental Impact Assessment Regulations published in Government Notice No. R. 1183 of 5 September 1997, the Director-General of the Department of Environmental Affairs and Tourism ("the DEAT") issued a Record of Decision ("ROD") for the Dube TradePort on 23 August 2007. The decision was subsequently appealed against and the Appellants have requested that the original decision be reconsidered and set aside. 1.2 Notwithstanding the repeal of relevant sections of ECA by the National Environmental Management Act, 1998 (Act No.107 of 1998) ("NEMA"), section 50(3) of NEMA provides that applications made in terms of sections 21, 22 or 26 of ECA, that had been submitted but not finalised when those sections were repealed, have to be finalised as if those sections had not been repealed. 2. Background 2.1 The Airports Company of South Africa (ACSA) at this stage proposes the development of the King Shaka International Airport (KSIA), also known as the La Mercy Airport, on the Farm La Mercy No 15124 in Durban, KwaZulu-Natal, North Coast. The proposed KSIA will have a 3,700m runway and will have the capacity to handle 7.5 million passengers per annum in 2015. It is intended that KSIA will replace the Durban International Airport (DIA), which can no longer adequately cope with current air traffic. 2.2 It may be mentioned for the sake of completeness that KSIA will eventually form part of a greater complex to be known as the Dube TradePort (DTP). The extent of this larger development of which KSIA will form part is approximately 2060 hectares. The larger development will comprise of the construction of the following four core elements: (a) KSIA; 2.3 However, it must be emphasized that the current application is only for the KSIA, Trade Zone and the Support Zone. The Agri Zone is not part of this authorisation and an application for authorization must still be submitted to this Department. 2.4 The listed activities that relate to this matter are (as quoted from the relevant Government Notice): (d)roads, railways, airfields and associated structures; Item 2 of GN R.1182: 2.5 Consequent upon the positive RoD issued to the Proponent (ACSA) by the Director-General, several Appellants appealed against the decision made by the Director-General and submitted appeals in terms of section 35(3) of ECA. 3. APPEALS 3.1 My office received several appeals from various persons, some in their personal capacities and others representing various organisations. They are listed as follows: 1. Mr T P Dutton 3.2 Several grounds of appeal emerged from the above appeals that can broadly be categorised, as follows: (a) That work started on the site before the ROD was issued; (i)
The wording of the ROD fails to distinguish between the airport and the
full extent of the DTP envisaged for the future as explained in
paragraph 2.1 above; (i) Concerns regarding the socio-economic impact on the Waterloo community. 3.3 In the letters from, inter alia, the La Mercy Airport Environmental Forum (LAEF) further representations on the noise issue were submitted. The appellants questioned the fact that certain studies on aircraft noise that were done at the DIA had not been taken into account in the environmental impact assessment for the KSIA. Relying on a recent article in a professional journal, LAEF also averred that areas close to KSIA will be severely affected by aircraft noise. These submissions will be referred to hereafter as the supplementary submission on noise. 4. Decision 4.1 In terms of section 35(4) of ECA, I have the authority, after considering appeals, to confirm, set aside or vary the decision of, in this case, the Director-General. 4.2 In the event, and after having considered all the information available to me, I have decided not to set aside the Director-General's decision, but to dismiss the appeals, except where the contrary is indicated in paragraph 4.4. 4.3 In reaching my decision, I have considered the information contained in the following documents: (a) The project file, reference 12/12/ 20/686; 4.4 I deal with the reasons for my decision, inter alia, under the following headings: (a) Work started on site before the ROD was issued The proponent denied this allegation, responding that no construction occurred before the ROD was issued. The proponent was granted permission by the Department to store construction equipment on site. No complaints or substantial evidence of construction was received by the Department during the EIA process. (b) The impact of noise Various submissions were made under this heading, namely, that noise was not properly dealt with in the scoping report; that high decibel noise levels caused by heavy aircraft cannot be mitigated against; and that the EIA makes reference to average noise levels and that not enough consideration is given to maximum noise levels which were determined by studies around the DIA. Unfortunately, aircraft noise at and near an airport is unavoidable. However, I am satisfied that the noise related concerns were adequately addressed during the EIA process. I disagree with the allegation that the noise impact cannot be mitigated. The mitigation measures recommended by the International Civil Aviation Organisation (ICAO) must, inter alia, be implemented. In conclusion, it is important to note that the noise study in the EIA utilized the SANS10103:2004 and SANS 10117:2004 standards which stipulate the 55dB limit. I have also considered the supplementary submission on noise referred to in paragraph 3.3 above. I am of the view that the relevant standards have been adhered to but I have included, notwithstanding, additional mitigation measures in the ROD attached to this decision. (c) Limitations on crop spraying and cane burning The concerns raised by the cane growing industry were considered and merits further consideration. I was not satisfied that the rights of the farmers had been adequately addressed and requested ACSA to initiate negotiations with the affected farmers with a view to concluding an agreement with them in order to allow them to continue to engage in crop spraying and cane burning, albeit under controlled circumstances. I have subsequently been informed that procedures in this regard have been agreed upon with the farmers and they have withdrawn their appeal. I have attached, to the ROD, a copy of the procedures agreed upon with the affected farmers in order for them to continue with their farming activities. (d) The magnitude of the project and the unsustainable use of cheap fossil fuels The averment is made that the magnitude of the project has not been fully reflected in the EIA or in a long time viability analysis. Also, it is argued that the expected increase in traffic volumes assumes that there is an almost endless supply of cheap fossil fuels and energy. I have considered these submissions, but have balanced them against other considerations such as the need for the new facility. In my opinion, this ground of appeal stands to be dismissed. (e) The contribution of KSIA to global climate change and global warming I am of the view that there is a real need for the KSIA. The DIA will be replaced by this airport and I am of the view that the increased impacts overall will be less dramatic if consideration to this fact is given. In addition I have taken cognizance of the initiatives to reduce emissions, the use of fuel and related mitigatory measures. (f) Biodiversity impacts One of the appellants made reference to the impact on the barn swallows and other fauna and flora as being "really insignificant when compared to the greater global impact that such a development will make". It was not raised in its own right as a substantive ground of appeal. Nevertheless, I deemed the topic worthy of consideration. I am advised that these birds, which roost in the vicinity of the proposed KSIA, are not threatened by the activity. This matter has been thoroughly investigated in the EIA and the conclusion reached that "Barn Swallows are very resilient*.." and "The roost is unlikely to be displaced by the noise or operation of the aircraft over the site as the species has a long history of cohabitation and co-existence with man." was found to be acceptable. (g) Local community not taken into account: This averment is unmotivated. I am satisfied that there was in fact an extensive public participation process. Satisfactory evidence of this has been provided. (h) The ROD is not legally defensible: (i) Wording of ROD This ground of appeal was found to have merit, as the ROD may indeed create the impression that approval has been granted for the entire development of the DTP. Consequently the ROD has been amended to clearly reflect the correct position. (ii) Date of EIA and chapters I have been advised that there is a good reason for the perceived discrepancy. The first documentation was received in May 2007 and thereafter different chapters of the EIR were submitted at different times. Changing the date of the EIR would have made it difficult to make reference to the EIR. I am satisfied that the manner in which the EIR was compiled discloses no substantial flaw and that the documents were duly taken into account. I therefore dismiss this ground of appeal. (iii) The fuel storage facility It is averred that the ROD issued by the Department authorizes the establishment of a storage facility for fuel without any assessment having been undertaken during the EIA. It is further averred that a risk assessment was also not undertaken during the EIA process. This risk assessment was undertaken and was submitted to the Department. The study concluded that the fuel storage depot does not constitute a major hazardous installation. In addition, the risk assessment report was evaluated by an external expert, appointed by me, who supported the conclusion of abovementioned study. I have accepted the report of the independent expert who has expressed the opinion that the appeal on this point has no merit. The decision on the fuel storage facilities must be upheld as the different sites proposed for the fuel storage facilities were part of the EIA process and were therefore adequately evaluated. Furthermore, the abovementioned study had to be concluded before this facility became operational. The submission from one of the Appellant's that a separate EIA should be done or be included as part of the appeals process is in my view not necessary. (iv) The package plant for waste water It
is averred that the ROD issued by the Department authorizes the
establishment of a package plant for the disposal of waste water
without any assessment having being undertaken during the EIA. (v) Strategic environmental assessment: The averment is made that in terms of the eThekwini Municipality's Integrated Development Plan (IDP), the proposed KSIA should have been reviewed within the context of a strategic environmental assessment (SEA) which has not taken place. In my view, the EIA did assess impacts by taking into account the broader context of the predetermined site location and reference is made to how the project is broadly aligned with the relevant IDPs. In the eThekwini IDP, KSIA is characterized as "the most important economic project for the region". This ground of appeal lacks merit and is not be upheld. (vi) Public transport other than road transport One of the appeals contains the complaint that no provision has been made for public transport other than road transport in the ROD. In fact, the ROD makes no provision at all for public transport. This is because public transport is a municipal and/or provincial competency. (i) The socio-economic impacts on the community: The socio-economic impacts raised in the appeals relate mainly to the effect of noise and its mitigation. I share the concern of the appellants in this regard. According to the Environmental Impact Report (EIR), the proposed airport will impact significantly on communities and land uses in close proximity to the site. Based on the EIR, I have inserted appropriate conditions in the ROD, obliging ACSA to institute certain noise mitigation measures. Among the mitigation measures proposed is that noise monitoring stations must be placed in the existing affected residential communities, namely Mount Moreland and Herrwood, and if the results from these stations indicate that the 55dbA noise levels are exceeded and cannot be further mitigated by operational measures, ACSA must take responsibility for the acoustic treatment of the existing houses as identified above or possible relocation of the residents. Additional mitigation conditions are also inserted in the ROD, which I believe adequately addresses the concerns raised in this appeal. In order to ensure that the development around the airport does not result in conflicting land use, that ACSA actively participate in relevant Municipal and Provincial Planning processes. I have in the course of my decision given consideration to the need for this development from both a social and economic perspective. 4.5 The reasons set out above are not exhaustive and should not be construed as such and I reserve the right to provide comprehensive reasons for my decision should this become necessary. Marthinus van Schalkwyk, MP RECORD OF DECISION BY THE MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM APPEALS AGAINST THE ENVIRONMENTAL AUTHORISATION ISSUED BY THE DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND TOURISM FOR PROJECT REFERENCE 12/12/20/686: THE CONSTRUCTION OF THE KING SHAKA AIRPORT ON THE FARM LA MERCY NO. 15124 IN DURBAN: KWAZULU-NATAL NORTH COAST I, Marthinus van Schalkwyk, Minister of Environmental Affairs and Tourism, hereby in terms of section 22(3) read with section 35(4) of the Environment Conservation Act, (Act No. 73 of 1989[ECA]), authorise the Airports Company of South Africa (hereafter referred to as ACSA) to undertake the activities specified/ detailed below subject to the indicated conditions. 1. DESCRIPTION, EXTENT AND LOCATION OF THE ACTIVITY: 1.1 The applicant, ACSA, proposes the development of the King Shaka International Airport (KSIA) on the Farm La Mercy 15124 in Durban, KwaZulu Natal, North Coast. The proposed KSIA will have a 3,700m runway and will have the capacity to handle 7.5 million passengers per annum in 2015. KSIA will eventually form part of the proposed Dube TradePort (DTP). The extent of this larger development, of which KSIA will be an element, is approximately 2 060 hectares. The development will comprise of the following four core elements: 1.1.1 KSIA; 1.2 This authorisation will include the construction of the following: 1.2.1
KSIA and associated infrastructures (namely Runways, Terminal
Buildings, Telecommunication Towers, Parking, Reservoir, Sewage Works; 1.2.3.1.) 4 X 1 500m3 vertical Fixed roof Jet A-1 storage tanks with a maximum capacity of 6 000m3; 1.2.4 The Trade Zone (Cargo Terminal, dry and perishable cargo and storage facilities); and 1.3 The Agri Zone does not form part of this authorisation and a separate application must be submitted to this Department for authorisation. 1.4 The proposed site falls within the jurisdiction of eThekweni Municipality within the KwaZulu-Natal Province. 2. KEY FACTORS INFORMING THE DECISION: 2.1 In reaching my decision to dismiss the appeals submitted against the environmental authorisation of the project and to issue this record of decision (ROD), I have taken, inter alia, the following into consideration: 2.1.1 The project file, reference 12/12/20/686; 2.2 The reasons for my decision are set out in my Appeals Decision dated 29 October 2008. 2.3 Based on the above, I support the conclusions of the Department captured in the ROD dated 23 August 2007 that the need for the project has been adequately demonstrated and that it will result in socio-economic benefits, not only to the Durban KwaZulu-Natal area, but to the country as a whole and that the principles of the National Environmental Management Act, 1998 (NEMA) can be upheld. However, I believe that there will be negative impacts on the environment which cannot be avoided, but can be adequately mitigated. 2.4 I have consequently decided to vary the decision made by the Director-General and issue the authorisation subject to the conditions and provisions listed below. 3. CONDITIONS 3.1 DESCRIPTION AND EXTENT OF THE ACTIVITY 3.1.1
The authorisation applies in respect of the construction of the
proposed KSIA on the Farm La Mercy No. 15124, Durban: KwaZulu-Natal
North Coast as described in Section 1 of this ROD. "The change of land use from- 3.2 SPECIFIC CONDITIONS 3.2.1 Access 3.2.1.1 Access to the airport will be from the N2 National Road. The interchange design of the access road must be according to the specifications stipulated in Annexure A of the agreement, a copy of which is attached hereto as Appendix 1, reached between ACSA and South African National Roads Agency Limited (SANRAL) dated 3 July 2008. 3.2.2 Water Management 3.2.2.1 Water consumption must not exceed the available water supply of 3.5 Ml/day. 3.2.2.3
No surface or ground water must be polluted due to any activity on the
property/site. The relevant requirements of the National Water Act,
1998 (Act No. 36 of 1998) and other applicable legislation must be
complied with at all times. 3.2.3 Waste Management 3.2.3.1
An integrated waste management approach that is based on waste
minimisation must be used and should incorporate reduction, recycling,
re-use and disposal where appropriate. Any solid waste must be disposed
of at a licensed waste facility. 3.2.4 Waste Water Management 3.2.4.1
Soaps, oils, greases, hydrocarbons and other chemicals must be removed
from the effluent through the cleaning process stipulated in the EIR,
prior to discharge. 3.2.5 Hazardous waste 3.2.5.1
In the event of a spill, hazardous material may be generated. Such
material must be disposed of at a suitable licensed waste disposal
facility, with chain of custody documentation supplied as proof of end
recipient. 3.2.6 Fauna and Flora 3.2.6.1 Flight schedules must be planned around the flight times of the swallows and should be addressed in the OEMP. 3.2.7 Fuel Storage 3.2.7.1 The fuel storage area must be clearly demarcated and restricted to designated staff only. 3.2.8 Noise 3.2.8.1
ACSA must adopt the International Civil Aviation Organisation's (ICAO)
balanced approach to aircraft noise management which includes reduction
at source, land-use planning and noise abatement. 3.2.9 Agriculture (crop spraying and cane burning) 3.2.9.1
The affected sugar cane farmers have the right to continue with their
farming activities, with regard to crop spraying and cane burning
within the controlled airspace referred to in Chapter 13, paragraph
13.3.6 of the EIR, at such times and on the conditions as per the
procedures agreed upon with the cane farmers attached hereto as
Appendix 5. 3.2.10 Other conditions 3.2.10.1
Proposed changes resulting in significant environmental impacts are
only permissible if these changes are approved in writing by the
Department. 3.2.11 Environmental Management Plan (EMP) and Operational Environmental Management Plan (OEMP) 3.2.11.1 The draft construction EMP dated 9 June 2007, which was submitted to this Department is accepted and is seen as a dynamic document. However, any changes to the EMP, which have environmental impacts, must be submitted to the Department for acceptance before such changes can be effected. The EMP is regarded as an extension of the ROD and shall be treated as such in terms of compliance monitoring. The EMP must be amended as follows: - The EMP must form part of the contractor's
tender documentation for all contractors working on the project and
must be endorsed contractually. 3.2.11.2 All contractors working on site must be informed with regard the contents of the EMP. 3.2.12 Environmental Control Officer (ECO) 3.2.12.1
The developer must appoint a suitably qualified Environmental Control
Officer (ECO) who would on behalf of the developer, on a daily basis
monitor the project compliance with conditions of the record of
decision, environmental legislation and recommendations of the EMP. The
cost of the ECO shall be borne by the applicant. - A daily site diary 3.2.12.6 The ECO shall remain employed until all rehabilitation measures, as required for implementation due to construction damage, are completed and the site is handed over to ACSA by the contractor for operation. 3.2.13 Monitoring and auditing 3.2.13.1
Records relating to monitoring and auditing must be made available for
inspection to the Department and the Provincial DAEA in respect of this
development when required by the said departments. 3.2.14 Transportation and handling of hazardous materials 3.2.14.1
During the construction of the airport, an effective monitoring system
must be put in place to ensure safety and to detect any leakage or
spillage. 3.2.15 Compliance with other legislation 3.2.15.1
Archaeological remains, artificial features and structures older than
60 years are protected by the National Heritage Resources Act, 1999
(Act No. 25 of 1999). Should any archaeological artefacts be exposed
during excavation for the purpose of laying foundations, construction
in the vicinity of the finding must be stopped. An archaeologist must
be called to the site for inspection. Under no circumstances shall any
artefacts be destroyed or removed from the site. SAHRA must be
contacted to this effect. Their recommendations should be included in
the construction EMP and be adhered to. 3.3 GENERAL CONDITIONS 3.3.1
This authorisation is granted only in terms of section 22 of ECA, and
does not exempt the holder thereof from compliance with any other
legislation. 4. DURATION OF AUTHORISATION If the activity authorised by this ROD does not commence within 4 (four) years from the date of signature of this letter, the authorisation will lapse and the applicant will need to reapply for exemption or authorisation in terms of the above legislation or any amendments thereto. 5. CONSEQUENCES OF NON-COMPLIANCE The applicant must comply with the conditions set out in this ROD. Failure to comply with any of the above conditions may result in, inter alia, the Minister withdrawing the authorisation, issuing directives to address the non-compliance - including an order to cease the activity - as well as instituting criminal and/or civil proceedings to enforce compliance. Marthinus van Schalkwyk, MP Issued by: Ministry of Environmental Affairs and Tourism
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