What is environmental authorisation and when do you need it?

The legal framework

Section 24 of the National Environmental Management Act 107 of 1998 requires environmental authorisation before any listed or specified activity may commence. The current EIA Regulations, published in 2014 and amended several times since, set out the assessment procedures, and three Listing Notices identify the specific activities that trigger the requirement.

Listing Notice 1 (GN R327) lists activities generally requiring a Basic Assessment. Listing Notice 2 (GN R325) lists larger scale or higher impact activities requiring Scoping and an Environmental Impact Report. Listing Notice 3 (GN R324) lists activities that trigger authorisation only in specified geographical areas, such as certain sensitive coastal or biodiversity areas, even at a smaller scale than Notice 1 would otherwise require.

Basic Assessment versus Scoping and EIR

A Basic Assessment is a single-phase process: one assessment report covering the activity, alternatives, impacts and mitigation, submitted with one round of public participation. The Regulations set a 107-day statutory decision-making period once the application is accepted, though the practical timeline including the assessment itself typically runs six to twelve months.

Scoping and Environmental Impact Reporting is a two-phase process. The scoping phase defines the issues, alternatives and specialist studies required and is itself subject to public comment and departmental approval before the second, impact assessment phase begins. The statutory decision period is 300 days once the final EIR is accepted, and the realistic overall timeline, including both phases, is commonly twelve to twenty-four months.

Specialist studies and public participation

Specialist studies are commissioned based on the sensitivity of the site and the nature of the activity, and commonly include ecological, heritage, visual, traffic, noise, and where relevant, wetland, geohydrology or air quality assessments. The Regulations require specialists to be suitably qualified and to declare their independence from the applicant.

Public participation is a statutory requirement at each phase, including notifying registered interested and affected parties, placing site notices, and running a formal comment and response process, recorded in a comments and response report submitted with the final application.

Decisions and appeals

Once a decision is issued, any person who submitted comments during the process, including the applicant, may appeal under section 43 of NEMA within the period prescribed by the appeal regulations, generally 20 working days from notification of the decision. An appeal suspends the authorisation until it is finalised, which can materially affect project timelines.

Because an appeal can add several months to a project, addressing objections properly during public participation, rather than leaving them to be raised on appeal, is usually the more efficient approach.

The cost of getting the listing wrong

Misclassifying an activity, for example treating a Listing Notice 2 activity as though it only needed a Basic Assessment, results in a defective application that the authority can refuse outright. Where an activity is started before authorisation is obtained at all, it becomes a section 24G rectification matter with its own administrative fine exposure, rather than a standard application.