A step-by-step guide to the proposed draft NEMA National Appeal replacement regulations

​​Step 1: Submitting an appeal

Although the provisions in the Draft Regulations relating to the submission of the appeal are vastly similar to  those in the Current Regulations, some key changes to note are:

• The Draft Regulations include a new provision that appeals against environmental duty of care directives [section 43(8)], must be submitted within 30 days from the date the decision is sent by the decision-maker. Note: The National Environmental Management Laws Amendment Act 2022 states that an appeal does not automatically suspend a directive, but one can make an application to have the directive suspended. In addition, the submission period remains as 20 days for all other appeals in section 43 of NEMA. The Current Regulations require the appellant to submit a statement of compliance with the timelines applicable to the appeal submission. This requirement is absent from the Draft Regulations.
• The Current Regulations state that the appellant has the obligation to notify interested and affected parties and, where applicable, organs of state, of the appeal submission. In the Draft Regulations, this obligation is shifted to the applicant, which practically makes sense as often appellants do not have the list of registered interested and affected parties.
Step 2: Statements and additional information

 

The most substantive revision is the change in the process of submitting statements following the appeal submission. As per the Current Regulations, an applicant, decision-maker, interested and affected parties as well as organs of state, have 20 days from receipt of the appeal submission to submit their responding statement. No other statements or submissions are provided for. The Draft Regulations propose a new process whereby:

 
• The applicant, decision-maker, interested and affected parties as well as organs of state have 10 days (reducing the 20-day period), from the date they receive the appeal submission, to submit a responding statement.
• Then, the appellant has 20 days from the submission of the responding statement to submit an answering statement to address any relevant new information contained in the responding statement but not in the appeal.
• Furthermore, the appeal administrator has 20 days from the submission of either the responding or answering statement to request any party participating in an appeal process to submit additional information.
  
  All three of these timelines can be extended by written agreement between the appellant, the appeal administrator and where applicable, the applicant. Unfortunately, the Draft Regulations, do not make provision for when consent to the extension of the timeframes is unreasonably withheld.The Draft Regulations create a regime in which the time allowed for the submission of responding statements, answering statements and additional information is between 10 and 50 days (assuming these time periods are not extended by agreement), as opposed to the current 20 days. While this will mean appeals will contain more information and/or evidence, we anticipate that the changes will result, in most cases, in the appeal process taking longer. Moreover, the additional steps will make it difficult to anticipate how long an appeal process will take. At the same time, and despite the extended timelines, the time provided for the submission of a responding statement has been halved. This means that while the appellant will have up to 50 days in total to consider the appeal (ie 20 or 30 days to submit the appeal initially plus 20 further days to submit an answering statement), the applicant will only have 10 days in total to consider the appeal. This is clearly inequitable and should be corrected by the legislature.

  ​ Step 3 (if applicable): Advisory appeal panels and experts

  The Current Regulations further outline that after the submission of the appeal or responding statement, the appeal administrator may be instructed by the appeal authority to source an independent expert or constitute an independent appeal panel, or both, within 10 days. The expert, panel or both must then, within a further 10 days, provide advice to the appeal administrator. The appeal administrator must then, within a further 10 days, make a recommendation to the appeal authority.

  
  

  In terms of the Draft Regulations, if the appeal authority decides to appoint an advisory appeal panel or expert, the appeal panel or expert must be provided with written instructions within 10 days of the decision to appoint them. Within 10 days of receiving the written instructions, the appeal panel or expert must provide their recommendations to the appeal authority.

  Accordingly, the time allowed for step 3 has been reduced from a total of 30 days to a total of 20 days if the appeal authority makes the decision to appoint an expert or panel immediately. Note that the Draft Regulations do not provide a period during which the actual decision to appoint an advisory panel must be made. Accordingly, this reduction in timeframes is welcomed only if the decision to appoint the panel or expert will be made timeously.​
  

  Unlike the Current Regulations, the Draft Regulations do not require the appeal authority to reasonably believe that the appointment of an advisory appeal panel or expert is necessary; instead, they introduce absolute discretion on the appeal authority's part to decide to appoint an advisory appeal panel or expert. Along with this absolute discretion, the Draft Regulations introduce extensive provisions to ensure that the appointed advisory panel members and experts are independent, impartial, and suitably qualified, that they are instructed in writing, and that the chairperson of the advisory appeal panel ensures that any dissenting opinion by a member of the panel is recorded in the written report of the panel. These provisions are welcomed, as they provide greater clarity and transparency to the appeal process.

  

  Step 4: Appeal the authority's decision

  As per the Current Regulations, the appeal administrator has 30 days (regardless of whether an expert or appeal panel is appointed) following receipt of the responding statement to make a recommendation on the appeal to the appeal authority. The appeal authority then has 20 days to reach a decision and notify the relevant parties, coming to a combined 50 days.

  The Draft Regulations propose a regime in which the appeal authority must decide within 30 days of the expiry of the period allowed for submission of answering statements, responding statements, and additional information OR within 30 days of receiving recommendations from the advisory appeal panel or expert, if appointed. This means that in cases involving an advisory appeal panel or expert, the combined steps 3 and 4 will take a total of 50 days, as it currently does. However, in cases not involving an advisory appeal panel or expert (ie where step 3 is not applicable), the process from submission of statements to decision will take 30 days, whereas it previously took 50 days.

  Additionally, if the appeal is classified as a complex appeal, these timelines are extended from 30 days to 50 days. A complex appeal is an appeal that requires:

  (a) the appointment​ of an advisory appeal panel or an expert to assist the appeal authority to render a decision;​​

  (b) the appeal administrator to undertake a site inspection to properly advise the appeal authority; or

  (c) more than one appeal administrator to process the appeal due to the volume of its documents or the technical nature of its subject matter.

  The time between the finalisation of step 2 and the finalisation of step 4 under the Draft Regulations will be a minimum of 30 days and a maximum of 70 days. This is vastly different from the current regime, wherein this period is, in all cases, 50 days. The variability of these new time periods will, again, introduce a level of uncertainty to the appeal process and will inevitably result in appeal decisions taking even longer than they currently take.

  Interested parties have until Monday, 25 September 2023 to submit representations or comments in regard to the Draft Regulations.