The provincial department of agriculture, forestry and fisheries has failed to convince the Grahamstown High Court to grant it leave to appeal a ruling allowing 10 milkwood trees to be removed.
Earlier this month, the Daily Dispatch reported that Nanaga Property Trust, owners of land in Kenton-on-Sea, submitted a development plan to Ndlambe municipality which was approved in June 2013 subject to a number of conditions.
One of them was that the trust comply with the National Environmental Management Act (Nema). The trust wanted to develop its property.
According to the act, property owners have to comply with provisions prior to removing any indigenous trees or vegetation.
The trust applied to the department to remove 10 milkwood trees, which are protected by law.
The trust was denied its application by a forester and was not granted a licence to remove the trees.
“Extending the building in a manner that will destroy natural forest cannot be allowed,” the trust was told by the department.
The trust then approached the Grahamstown High Court to review the department’s decision. It was successful.
Judge Belinda Hartle set aside the department’s decision.
Among other things, the judge found that the department had not interpreted the provisions of the National Forest Act correctly.
She further found the official who rejected the trust’s application was not authorised to do so.
The department subsequently applied for leave to appeal.
In its notice of application, the department said Hartle erred in many of her findings.
Some of her findings, now disputed by the department, were:
That the trust’s request was not for the “deconstruction of a forest”. The department says it does not know how she arrived at this viewpoint;
That the department’s sole concern related to the sustainable management of forests;
That the department did not interpret the act correctly;
That the department applied a “strict and conservative approach”; and
That the judge relied on the “concept of sustainable development”.
They said another court could come to a different finding.
In her judgment, Hartle said it was obvious that the anticipated appeal was not directed against the primary reasons indicated in the judgment for setting aside – which was that the person who rejected the application was not authorised to do so.
She said her other remarks were “mere observations”.
“The nature of a is that it does not bind any other court, even lower courts. It is a mere expression of an opinion upon points of law which is not necessary for the decision of the case,” Hartle said.
She dismissed the application for leave to appeal, with costs.