The Pietermaritzburg High Court has affirmed that the functional area of ‘municipal planning’, a local government competence, includes the power to pass planning legislation directed at the protection of the environment. Although many legal scholars might not view this as being significant (it has been argued that municipalities have traditionally been involved in regulating environmental matters at a local level) this judgment is significant in that the Constitution allocates the specific functional area of ‘environment’ to provincial and national government.

This judgment effectively allows local government to pass laws and regulations dealing with environmental planning, restricting development and protecting threatened environments - something which was previously regulated by only the national and provincial governments.

In October 2010 the eThekwini Municipality, introduced amendments to the eThekwini Town Planning Scheme which were known as the Durban Municipality Open Space Systems (“D-MOSS”) which would be directed at the conservation of a wilderness area and would prevent residents from undertaking development on designated parts of their properties without first obtaining permission from the municipality.

Mr Le Sueur challenged the amendments arguing that it is unconstitutional for municipalities to regulate on environmental matters since the municipality does not have the power to enact ‘environmental’ measures due to such matters falling outside local government competences. Mr Le Sueur also argued that the National Environmental Management Act 107 of 1998 ("NEMA") makes no reference to environmental impact procedures being exercised by municipalities nor does it empower municipalities to make laws relating to environmental protection.

The Court held that there is nothing in the Bill of Rights to suggest that the protection offered by section 24 of the Constitution (that reasonable legislative and other measures to promote ecological sustainable development, justifiable economic and social development as well as the promotion of conservation) are only binding to national and provincial spheres of government. In fact the municipalities must take there into account when it exercises its powers and performs its functions as set out in Part B of Schedule 4 and 5 of the Constitution.

The court also stated that in terms of the Constitution, “a municipality has the right to exercise any power concerning a matter reasonably necessary for or incidental to, the effective performance of its functions” and this includes enacting policy on environmentally sustainable land development practices and processes. Further, NEMA was enacted to give effect to section 24 of the Constitution and therefore recognizes the role of municipalities and municipal duties with regard to the environment in its function of municipal planning. In addition to the above, section 152(1)(d) of the Constitution requires that local government “promote a safe and healthy environment”.

The court quoted the Constitutional Court and stated that “the functional areas allocated to the various spheres of Government are not contained in hermetically sealed compartments. But that notwithstanding, they remained distinct from one another. This is the position even in respect of functional areas that share the same wording, like roads, planning, sports and others. The distinctiveness lies in the level at which the particular power is to be exercised.”

The court went further to state that local government in the form of municipalities are in the best position to know, understand, and deal with issues involving the environment at local level.

The effect of this judgment (if its upheld in the Constitution Court) is that the municipalities in KwaZulu-Natal will be entitled to legislate in respect of environmental matters to protect the environment at a local level and any suck legislation will not transgress or intrude upon the exclusive power of the national and provincial governance in respect to environmental legislation as long as their enactment is not going to conflict with the Constitution or other environmental legislation.