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Sports, recreation and the environment *.

A survey of contemporary literature on international sports and law discloses that, in many areas, the more things change the more they remain the same. In ancient Egyptian and Greek times, for example, a central question was how to resolve sporting disputes. These disputes ranged from violence between contestants to brawling between opposing spectators, insulting players from other cities, threats against the referee, throwing objects onto the playing field and disrupting the game. Those ancient issue have a contemporary ring, especially in the context of professional sport, and demonstrate that sporting and recreational activities have long attracted a response from the legal system Today violence in recreation and sport is normally regulated by domestic criminal, contractual, tort(delict) or administrative law.

The continuity of issues is interesting. Of greater interest, however, is what is not discussed in the contemporary literature in the area.. Few, if any, of the modern commentaries mention the impact of sport and recreation on the environment and the law's response to this impact. That is a significant omission because sporting and recreational activity is as much controlled by law as any other social behaviour. A simple example is the effect of a sports stadium which raises such issues as: the size and design of the stadium and its surrounding infra-structure; noise; traffic; drunken behaviour; crime; vendors; littering; advertising.

This paper, then, will focus on the role of environmental protection laws and will use as a model the development of golf courses and golf estates as golf is seen as both a sport and a recreational activity. Golf courses, and especially golf resorts, are man-made re-arrangements of the natural environment. Therefore construction and maintenance of a golf course must conform to the range of modern laws which attempt to ensure that environmental issues are addressed from the outset and that the impact on the environment is monitored constantly. The challenge is to integrate environmental considerations into sustainable development. The argument will be that the environmental issues raised by sport and recreation are matters of global concern. While examples will be drawn from around the world most attention will be paid to the Republic of South Africa.

I. Introduction

"The most notorious debate among golf course development in recent years has been the plan to create a $311 million project consisting of 592 luxury homes, hotels, restaurants, and a 7,276-yard golf course in Tepoztlan, Mexico. Opponents of the golf course claim that golf-course projects use dangerous chemicals and too much water as well as induce higher property taxes and disrupt culturally intact communities. The site of development in Tepoztlan will be located on 462 acres of communal land within a national park and a biological corridor that harbors Aztec ruins and 28 endemic species of animals (Planet ENN, 1996). The high amount of water necessary for the project is estimated by developers to be approximately 800,000 gallons a day for peak irrigation (which is nearly five times that pumped daily by Tepoztlan). This brings about much debate because of the town's ongoing problems with water shortage."

Syrengelas, C., Golf and the Environment (a seminar at the University of California, Irvine, June 1997) darwin.bio.uci.edu/~sustain/global/sensem/Syrengelas97.html last accessed 2005/08/16

"The Estorial Portuguese Open was nearly called off this week because of a dispute over environmental issues on the Oitavos course, host club Quinta da Marinha said. As late as yesterday the club was insisting that areas containing protected species of animals and plants should not be used, but they eventually relented after pressure from the European Tour."

The Australian Friday April 1 2005

"While golf enthusiasts flock to Pebble Beach for its international tournaments and revel in the man-made rearrangement of its natural landscapes, environmentalists have spent the past few decades quietly mourning the intrusion of greens, bunkers and clubhouses on their beloved Del Monte forest. And now their mourning has turned to rampant activism."

The Sunday Independent(UK) May 1st, 2005 at page 16

"Keeping golf courses green and luxurious takes between 1,4 million and three million litres of water a day. Picture this: every household in South Africa is entitled to a basic supply of 6 000 litres of clean water a month. The water used on a single golf course could supply at least 7 000 households with this."

Mail and Guardian(RSA) May 20 to 26 2005 at page 8.

" The golf industry in Spain generates 2,357 million euros every year."

Suplemento Especial in Ronda, (the magazine of the Iberia Group, Spain) June 2005 at page 7

"Developers ride roughshod over laws: (Mail and Guardian) investigates the toothless laws that golf estates developers are ignoring"

Mail and Guardian September 9 to 15 2005 at page 8

" Perhaps no issue is more likely to have a significant impact on the game of golf in the 21st century than that of how golf courses and golf course maintenance affect the environment."

James T. Snow, National Director of the United States Golf Association Green Section cited at www.afcee.brooks.af.mil/ec/golf/intro.asp last accessed 2005/08/16

II. Continuity of interests

In late November 2004 the International Association of Sports Law held its 10th Congress. The venue was Athens, home of the modern Olympic Games. The three conference themes would have been comprehensible to ancient Greeks: sports institutions and sports law; resolution of sports disputes; sports law and the Olympic Games. There was a total of sixty-one papers within those three themes and many of the papers would also have been recognized by the ancients. Three examples will make the point: "The influence of the law concerning the Ancient Olympic Truce on shaping the shared perceptions of the Panhellenes"; "The Demosthenes extract on unintentional manslaughter."; "Aggression against referees in Greek basketball." The proceedings were published and join a growing body of literature on sports and law. A leading text in the area is International Sports Law (1) and at the Athens Congress the author was awarded a special prize for academic contribution. The contents of that eminent textbook would also be generally recognizable to much earlier generations. There are chapters on the Olympic Games, on dispute resolution in sports, on the rights, duties and eligibility of athletes, on violence amongst competitors and amongst spectators, on sports as an instrument of foreign policy. Some papers at the Congress, and some chapters in the leading text, would have been foreign to the ancients. "Police electronic surveillance of spectators" and "The prevalence and nature of age discrimination practices in UK sport and recreation organizations" were two papers which may not have been understood by ancient Greeks and Egyptians. Nor would they have necessarily been stirred by a chapter on "Ambush Marketing" or "The Gleneagles Agreement and Code of Conduct" or "Sports Legislation in Mexico." It is also highly unlikely that they would have remarked on the absence of papers and chapters addressing the contemporary issue of environmental protection. Yet to a modern reader the absence of attention in conferences and books to the impact of sporting and recreational activities on the environment is striking. This is all the more remarkable given the existence of legislation directly addressing the issue.

III. The environmental impact of golf

There are numerous jokes about the game of golf. A well-known one is the observation that golf is just a good walk ruined. While that kind of remark is part of folk wisdom there is more serious authority for the proposition that golf is not a mere game or social pastime. Indeed a court has gone as far as ruling that golf is not a mere game or pastime or amusement like bicycling or walking or rowing. This was decided when four golfers appealed their conviction for breaching the then law which prohibited the playing of sport in a public place on a Sunday. Four golfers were charged and convicted but on appeal the conviction was overturned. The appeal court took the view that a game was in the nature of a conflict and that as each golfer was playing for himself then he was not engaged in a game. (2)

That golf is indeed more than a game is illustrated by the observation that in the United States of America, golf is second only to baseball in the frequency with which it gives rise to litigation. (3) Clearly, golf is a very serious business. (4) And it is this recognition of golf as a business which brings us to the central theme of this paper.

The number of persons playing golf is increasing rapidly all around the world. This growth in playing numbers is accompanied by a proliferation of golf courses and, even more importantly, by the proliferation of golf resorts. By the latter is meant, essentially, expensive houses built around, or immediately adjacent to, a golf course. In other words, the massive world-wide interest in golf means that property developers use the availability of golf as a major attraction in marketing their residential projects. In August 2005 a South African commentator observed that "[D]ivide the number of golfing estates among the number of genuine golfers and it's pefectly obvious that there is a massive oversupply of golf estates." (5) Recently Aymerich Golf Management, a company involved in the planning, development and professional management of golf courses in Spain and Portugal, presented a survey on the golf industry in Spain. According to the survey the golf industry generated nearly 2,375 million euros, an increase of 252% since 1997. The survey also estimated that the value of a home increases by an average of 20% through being located close to a golf course. In Spain the turnover produced by the re-evaluation of residential homes located in golf resorts reached 837 million euros in 2005. This has a direct impact on the economic value of the golf industry in Spain. At present the number of Spaniards who play golf is very low by world standards. There is evidence that this is changing fast. Therefore there are optimistic forecasts for the growth of the property business in Spain, the forecast being linked directly to golf resorts. Both golf supply and demand have been growing at a rate of 12% annually in Spain over the past few years which underscores the industry's enormous potential. There are 290 existing courses in Spain with a total of 300 more in the developmental stage. (6) There are currently more than 14,750 golf courses in the U.S. alone, and about three new ones open each week. (7)

In that foregoing recital something important is missing: an analysis of the impact of golf and golf-resort development on the environment. In March 2005 the Portuguese Open golf tournament was nearly called off because of a dispute over environmental issues at the host club. The club was insisting that areas containing protected animals and plants should not form part of the competitive course. Newspaper articles reported that the club" eventually relented after pressure from the European Tour." (8) In May 2005 a United Kingdom newspaper carried a story of a golf resort in California which had gained planning approval for " a major expansion of the resort, including an eighth 18-hole golf course, a resort complex with 160 visitor suites, residential and employee housing, an equestrian centre and a driving range." The article commented that "the problem with the plan is that it will involve chopping down about 17 000 more Monterey pines, increase tourist traffic and augment what is already a less than tender human imprint on the landscape." (9) In the same month a leading South African weekly newspaper carried an article headed "The great golf estate debate" in which it observed that "Golf courses are usually on estates--security villages of a few hundred houses outside existing urban centres--surrounded by high walls with a carefully guarded entrance. This can not only change the landscape, but also limit access to beaches ands other natural areas while increasing land prices and making land restitution difficult." (10) Earlier the Western Cape's Department of Environmental Affairs had commissioned a report on the impact of golf estates. The report found that at least 22 of the proposed developments in the province would result in the loss of prime agricultural land. (11)

The impact of golf courses and golf estates upon the natural landscape, and on the usurpation of agricultural land use, is something which is easy to see. Less visible but of equally dramatic impact are other sources of damage to the environment stemming from golf. In South Africa, and in many other countries, water is an increasingly scarce resource. Golf courses use an astounding amount of water. It is estimated, for example, that to maintain those picture-perfect courses created in the desert at Palm Springs in California up to a million gallons of water a day might be pumped into the ground. (12) The Worldwatch Insitute, which monitors global environmental trends, estimates that in the USA "golf courses cover more than 1.7 million acres and soak up nearly 4 billion gallons of water daily." (13) In the Republic of South Africa it has been reported that "[K]eeping golf courses green and luxurious takes between 1,4 million and three million litres of water a day. Picture this: every household in South Africa is entitled to a basic supply of 6 000 litres of clean water a month. The water used on a single golf course could supply at least 7 000 households with this." (14) South Africa is a water-scarce country with only slightly more fresh water available per capita than Israel. Predictions are that in less than twenty years demand for water will exceed the capacity to supply. As South Africa's population grows, and hopefully becomes more affluent, demand for water will increase. The question thus arises: should allocating water for golf courses be a priority?

Leaving that question aside we should now note that the mentality driving most golfers, and therefore golf course developers, is "the greener the better." This has been described as the Augusta Syndrome. (15) Augusta National is the golf course which hosts The Masters tournament each year. Augusta was created from a former nursery in Georgia. It is a garden of free-blooming azaleas and dogwoods and seemingly weed-free turf with immense areas of manicured fairways alongside multi-hued bushes and shrubs and century-old towering trees. Given a choice a golfer will choose the greener the better and developers will have in mind the Augusta course. "No other golf course is indicative of perfection in every sense" and since its establishment in 1934 Augusta National has been "the yardstick by which other courses are measured." (16) Very few courses, however, have as much water available as Augusta whose "natural" look comes at a price which raises a wide range of other environmental issues surrounding golf. Not all of these issues are immediately apparent to the human eye. An example is the dispute mentioned earlier when a golf club was initially unwilling to host a European Tour event out of concern for protected species of animals and plants. Land appropriated for golf is frequently the habitat of dozens of species of both animals and plants which are vital to a healthy environment. Thus a golf course can easily destroy an environment which has been a source of food and shelter to reptiles, fish, birds, frogs and toads, rats and mice as well as a range of flora. (17) Equally damaging to the environment are all the fertilizers, pesticides, fungicides, and herbicides which are necessary to maintain the course. The New York Attorney General's office found in a 1991 study, for example, that some Long Island golf courses applied more than 25 tons of pesticides annually on courses that were not even used year-round. That's more than six times what farmers typically use per acre. (18) Amongst other things the chemicals necessary to maintain the course leach into waterways and create further damage to the surrounding environment. (19)

IV. The response

A. The Political Response

Given the environmental impact of golf courses and golf resorts and the increased awareness of developers the next question is this: what has been the political response of governments? The answer is that there is a range of responses. The spectrum runs from no regulation, to various levels of intervention and regulation, to prohibitions on development. In Spain, for instance, despite a massive increase in golf course and golf resort construction, there is still no legislation that regulates the construction of such installations. (20) The other end of the spectrum of responses is captured by a report in a South African daily newspaper that the "Land Affairs Minister Thoko Didiza is considering a resolution calling for a moratorium on the development of new game farms and golf estates" in the Province of the Western Cape. (21) The resolution, which supported the shelving of "elitist" developments was endorsed by delegates to the National Land Summit in July 2005. In August 2005 the President of South Africa launched a stinging attack on golf estates saying that they, along with gated communities, " perpetuate apartheid settlement patterns" (22)

An interesting example of a government intervention at a midpoint on the spectrum is found in New Zealand. In August 2004 the Minister for the Environment and the Revenue Minister announced tax changes which are designed to encourage businesses to be more environmentally responsible. "The Government plans to make tax deductions available for environmental expenditure, such as the cost of preventing, mitigating or remedying the discharge of contaminants, monitoring the effects of pollution and testing options for dealing with environmental issues." (23) The relevance to this for golf courses and golf resorts is obvious.

B. The Legal response

Between the extreme positions along the spectrum of intervention are countries which have enacted legislation to regulate land development and to protect the environment. (24) The law can be very narrow and exact or be cast in broad terms. Examples of narrow, directive legislation are found in England, the country with the most courses in Europe, where irrigation systems are permitted to cover only the so-called "green platforms", the most sensitive parts of the course, and in countries in more arid regions which require that irrigation water for golf courses come from waste water treatment or desalination plants. (25)

An example of a broadly expressed piece of legislation is found in New Zealand's Resource Management Act 1991. The purpose of the Act is "to promote the sustainable management of natural and physical resources". Clearly the legislation would apply to any proposed golf course development. Teeth is given to the Act in section 9 which provides that:

"(1) No person may use any land in a manner that contravenes a rule in a district plan or proposed district plan unless that activity is--

a Expressly allowed by a resource consent granted by the territorial authority responsible for the plan; or

b An existing use allowed by section 10 or section 10A"

Clearly the nature of the control will depend on the rules in the particular district plan and is likely to be different for a golf course than for, say, a residential or industrial area. (26)

In the Commonwealth of Australia the State of New South Wales has enacted general environmental planning laws found in the Environmental Planning and Assessment Act 1979 which sets out, in section 79C, the matters which need to be taken into account when deciding whether or not to approve any development. Depending whether the proposal impacts on other matters it may require an environmental impact assessment or be subject to other assessment and specific consents under that or other legislation. For example, if there is any natural water course within the area proposed to be developed, an approval is required under the Rivers and Foreshores Improvement Act 1948. There have been several recent cases on golf courses in the New South Wales Land and Environment Court. (27)

In the Republic of South Africa an examination of laws relevant to protecting the environment begins with the Constitution Act 1996(Act No. 108 of 1996). In that part relating to the "Bill of Rights" section 24(a) provides everyone the right to an environment that is not harmful to a person's health and well-being. Section 24(b) provides everyone the right to have the environment protected through reasonable legislative and other measures. An example of legislation to protect the environment, based on the constitutional power, are sections 21, 22 and 26 of the Environment Conservation Act 1989. Another example, which mirrors the the New Zealand district plans approach in South Africa, is found in the National Environmental Management Act(NEMA)(No. 107 of 1998).

The Act provides for environmental implementation plans and environmental management plans to be prepared by provincial and national government departments. The purpose of the plans is to coordinate the environmental policies, plans and programmes and decisions of various government departments at a local and provincial level which exercise functions that affect the environment. (28) The aim is to minimise the duplication of procedures and provide consistency in the protection of the environment across South Africa as a whole. In the past the regulation of the environment had been fragmented and sometimes incomplete legislation, mainly at provincial but in some sectors also nationally. At present there are eight national departments exercising functions which may affect the environment (29) and six which exercise functions that involve the management of the environment. (30) The 1998 Act was amended in 2004 by the National Environmental Management Amendment Act, 2004(Act No. 8 of 2004) and the amendments related to new environmental impact assessment regulations. Those regulations are to be promulgated at various times by the Minister of Environmental Affairs and Tourism. (31)

The new co-ordinated approach starts with a process common to many countries and known as an Environmental Impact Assessment (EIA). This is a detailed study of the environmental consequences of a proposed course of action. An environmental assessment or evaluation is a study of the environmental effects of a decision, project, undertaking or activity. It is most often used within an Integrated Environmental Management (IEM) planning process, as a tool to support a decision when different options are compared. More recently there has emerged another instrument for integrating environmental issues into the formulation of plans and programmes. This new approach is described as Strategic Environmental Assessment (SEA). Broadly put, the difference between an SEA and an EIA is that the latter concentrates attention on the effect of the development on the environment, and frequently is focused on minimising individual impacts, while the former identifies the opportunities and constraints which the environment places on development. In other words, the fundamental benefit of an SEA is that it aims to integrate the concept of sustainability into the formulation of plan and programmes. Several SEAs have recently been undertaken in South Africa. The problem is that these studies have been undertaken in the absence of an agreed understanding of the methodology of an SEA. Further, there are no legislative requirements for an SEA in South Africa. It is true that the NEMA makes provision for the development of assessment procedures to ensure that the environmental impact of proposed land use is considered but this a long way short of the SEA approach of integrating sustainability into the development of plans and programmes.

What must not be overlooked in an examination of the legislation which protects the environment is the penalty provisions and an increasing willingness by environmental protection agencies to use these provisions. An example is the United States where the criminalization of environmental law continues to be one of the fastest growing components of the U.S Environmental Protection Agency's enforcement programme. During 2001 the EPA initiated 482 criminal cases and referred 256 of them to the U.S. Department for prosecution. (32) In New Zealand there is increasing attention to "restorative justice processes in the exercise of the enforcement jurisdiction under the Resource Management Act." (33)

C. The Response of the Golf Industry

In some countries legislation is clear as to the obligations on sport and recreational bodies. In the National Sport and Recreation Act (N.110 of 1998) of the Republic of South Africa, for example, is found a specific provision in section 12 which enacts as follows

"Environment and sport and recreation."

1 All sport and recreation activities must be conducted in such a way that the environment is not adversely affected.

2 The governing body of any sport or recreational body must lay down guidelines which are aimed at the protection of the environment."

This type of legislation reflects the government's reaction to the impact of golf courses and golf resorts on the environment and it is therefore not a surprise to learn that golf course developers are quick to assert that they are alert to the need to protect and if possible enhance the environment. (34)

An example of this was reported in a South African newspaper in 2004. The report concerned a new golf estate development on an island in the Vaal River in the north west of the country. The report disclosed that there will be 300 luxury homes and an eighteen hole course on the 110 hectare island. The designer of the development was announced as being the former world number one player, Mr Nick Price. The article further reports that this will be Mr Price's first undertaking in South Africa and that he is "thrilled at the prospect." In the article, humorously headlined " What Price the perfect estate course?", Mr Price is reported as insisting that the houses will not detract from the natural surroundings. He is quoted as saying: "The island is truly a beautiful piece of land ands my goal is to carefully blend the course and the houses into the environment so that everything is easy on the eye." (35)

Similar remarks by developers were carried in a South African golf magazine early in 2005. The magazine carried an article on the plans of a consortium which has acquired an existing game farm which it plans to develop into a world-class golfing estate inside a "best of breed" game reserve and in the process creating " a unique and exciting housing estate and resort facility." The project manager was quoted as saying that "[T]he sensitive integration of the development with the environment as well as the local community is of paramount importance to us. Our housing concepts and the accompanying architectural and landscape guidelines bear testimony to the commitment that we have made to uplifting and enhancing the environment." (36)

It is possible to be cautious about the claims of golf course developers to be environmentally sensitive. One reason is the documented damage reported elsewhere in this paper along with the failure of objectors to win their cases in court. (37) The second is the clear evidence that South African companies tend not to report social and environmental issues that the company faces. (38) Reporting is voluntary and it is likely that some golf development companies decide, perhaps for perfectly good reasons, not to make the report.

On the other hand, it is true that there is evidence of an approach to golf course development which is sensitive to the environment. An illustration is the experience in Canada a decade ago when a course was developed in Toronto. Three trees only were removed and the developers used European native grasses that require very little fertilizer and water and the golf course superintendents use one pesticide and that is for snow mold in the winter. (39) More and more developers are becoming aware that the efficient use of water is directly related to the type of grass which is planted and highly technical water systems are now common. (40) The United States Golf Association has a research project on turf grass and is investigating ways to breed new varieties of grass that require little water, pest control or fertilizers and is analyzing pesticides to find those less likely to leach into ground water. (41) Golf associations worldwide have compiled guidelines to help clubs maintain and improve their facilities in accordance with good environmental practices. The Spanish Golf Federation, for instance, has published three books which have been distributed to each golf club in the country (42) and in South Africa consumer golf magazines now carry regular features educating the public about how a golf course can successfully interact with the environment. (43) In the United States, the US Golf Association has its own Green Section which regularly publishes books for the local golf industry on topics such as bird conservation and water management on golf courses. (44) In the course of the last decade the Green Section has invested more than 20 million euros on an environmental research programme on grass. (45) In 2002 the US Golf Association funded an Executive Summary on the Environmental Impact of Golf and has subsequently provided research papers for the golf industry on such diverse topics as turf management and sharing a golf course with raptors.

In September 1997 an initiative was launched by the Royal and Ancient Golf Club of St. Andrews and the European Tour. The initiative was entitled "Committed to Green" and was based on the belief that sound environmental practices are good for the future of golf. A set of environmental performance indicators is used to measure the impact of golf course development on the environment. The South African Golf Association is a member of the "Committed to Green" initiative and has developed an environmental programme aimed at the conservation of nature and natural resources for the benefit of the game in that country .

The most recent evidence of golf in South Africa being committed to green is found in the magazine Compleat Golfer. Each year the magazine ranks the top courses in the country. The new criteria in the grading process includes examining the course as a whole " adding marks for routing(how the holes fit together), conditioning(general turf management and consistency of greens), memorability, design balance(how the two nines compare) and landscape management(ecofriendliness)." (46)

The English course Royal Birkdale, venue of Open Championships, recently produced a book describing in detail the many plants and animals which made the famous links course their home. In South Africa the crowned plover is probably the most common sight on golf courses, particularly in the Johannesburg area where the birds guard their nest and eggs with jealous aggression. Even when the world's best golfers competed at the Houghton Golf Club in the Dunhill Championship the plover was given right-of-way with cordons around their nests. In ordinary events club golfers are given a free drop if their ball lands too close to a nest. (47) In the Western Cape Province of South Africa is found the Erinvale Golf Club. Not only does the club have an abundance of Egyptian geese but it also has an environmentally sensitive area to the left of the 16th hole. That area cost a professional golfer the South African Open title when he was not allowed to play his ball from this sensitive area and had to take a penalty drop. (48)

In the United States, more and more golf designers are taking as their benchmark the Collier's Reserve Country Club in southwestern Florida. The club opened in 1994 and as a result of its efforts a prestigious environmental award was bestowed on the club. According to manager Tim Hiers, Collier's concentrated on "wildlife conservation, energy efficiency, waste management, water conservation and habitat enhancement. The results are clear to see: 39 acres of created lakes and wetlands. More than 130 acres of habitat preserve. Deer and bird feeders made of 100 per cent post-consumer recycled materials. Some 500,000 newly planted native plants which require little, if any, irrigation, pest control or fertilizers. And stockpiled timber that serves as home to bobcats and possums, foxes and rabbits." (49)

V. Conclusion

Golf has come nearly full circle in its relationship to the environment. The game began as an ecologically benign pursuit. There was little impact on the landscape. This continued for generations. Then in the second half of the 20th century golf development ran roughshod over the environment. Of recent times there has been increasing legal regulation and a growing awareness by developers of both legal and societal responsibilities. The legislation is often very broad and this allows golf designers and developers, and existing clubs, to go beyond what is required by law. Many do go beyond the legal requirements and have adopted environmental principles which guide their activities. The adoption of these principles, and their expression in handbooks and other publications, makes it clear that the golf industry recognizes that the most significant challenge facing golf in the 21st century is how courses and their maintenance affect the environment.. This has overturned the mid-twentieth century notion that golf and the environment are opposed concepts. Today there is a widespread, and growing, awareness that every golf course must be developed and maintained in a manner which recognizes the unique conditions of the ecosystem of which it is a part.

(1) Nafziger, James, International Sports Law (Second Edition, 2004, Transnational Publishers, New York)

(2) Oehley and Others v Rex (1908) EDC 38. Other laws, also long repealed, forbade the playing of sport in a public place on a Sunday. A prosecution against golfers failed, the court holding that the venue, a private golf course, was not a public place: S v Rosenberg and Another 1972(3) SA 91(T)

(3) Parmanand, Sports Injuries in the Civil Law(1987) 156

(4) For an illustration of this see Cobra Golf Ltd v Rata [1997] 2 All ER 150(a trade mark and unlawful competition dispute involving the use by a manufacturer of golf clubs of the logo and design of another manufacturer).

(5) Sunday Times 21 August 2005 in Business Times Section at page 1

(6) The data on Spain is drawn from the Suplemento Especial inserted in Ronda, the magazine of the Iberia Group, June 2005.

(7) Proquest, Green Golf, proquest.umi.com.ezproxy.lib.monash.edu.au/pqdlink?index=7&sid=1&srchmode last accessed 2005/08/16

(8) The Australian Friday 1 April 2005. It is tempting to ask the nature of the "pressure" exerted? It is most likely that it was commercial pressure.

(9) The Sunday Independent, May 1st 2005 at page 16.

(10) Mail and Guardian May 20 to 26 2005 at page 8.

(11) ibid.

(12) supra note 6

(13) "Thirsty golf courses drive environmental protests", Scripps Howard News Service, http://www.knoxstudio.com/shns/story.cfm?pk=GOLFCOURSE-04-22-04&cat=AN last accessed 2005/08/16

(14) Op cit note 8

(15) supra note 5 at page 19

(16) Golf Course Environmental Management http://www.afcee.brooks.af.mil/ec/golf/mangolf.asp last accessed 2005/08/16

(17) The destruction of the Monterey pines at Pebble Beach mentioned earlier is a dramatic example. See note 7 supra.

(18) Proquest, Green Golf, http://proquest.umi.com.ezproxy.lib.monash.edu.au/pqdlink?index=7&sid= 1&srchmode= Last accessed 2005/08/16

(19) Science Blog: Golf Courses and the Environment http://www.scienceblog.com/cms/node/8578 last accessed 2005/08/16

(20) supra note 5. The same seems to be the case in Mexico

(21) Sunday Times, August 7 2005 at page 12

(22) How golf became the President's bogey", Sunday Times 21 August 2005 in the Business Times section at page 1. In the following month a different South African weekly publication carried a detailed analysis the central theme of which was that : "When President Thabo Mbeki criticised golfing and polo estates for being elitist empires, he probably had no idea quite how difficult it is to stop them rolling on." The article gave a number of illustrations, including recent court cases in which objectors to developments lost their cases: Mail and Guardian September 9 to 15 2005 at page 8.

(23) Law Talk Issue 632, 30 August 2004 at page 10.

(24) Space does not allow a full examination of the wide range of relevant legislation. Two examples of legislation which will not be dealt with here but which have a direct impact on golf course development are found in South Africa. One is the National Environmental Management Biodiversity Act(No 10 of 2004). Another is the Gauteng Tourism Act 1998.

(25) Supra note 6 at page 20

(26) To ensure that each district plan is considered the New Zealand Environment Court publishes its roster of hearings. An example is the roster for January to June 2005 which was published in Law Talk, Issue 637, 6 December 2004 at page 8. Law Talk is the official journal of the New Zealand Law Society and is published fortnightly.

(27) Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council No. 40286 of 1996 [1997] NSWLEC 109(8 August 1997); Bardwell Valley Golf Club Limited v Rockdale Council [1994] NSWLEC 50(13 April 1994); Friends of Katoomba Falls Creek Valley Incorporated v Minister for Planning No. 40034 of 1995 [1995] NSWLEC 6 (31 January 1995)

(28) Interestingly, the New Zealand parliament has recently amended the Resource Management Act 1991 with the expressed objective of " improving decision-making under the Act." See comments In Law Talk Issue 637, 6 December 2004 at page 8.

(29) Those Departments are listed in Schedule 1 to the National Environmental Management Act 1998 and are: Environmental Affairs and Tourism; Land Affairs; Agriculture; Housing;Trade and Industry; Water Affairs and Forestry; Transport;Defence.

(30) Ibid: Environmental Affairs and Tourism;Water Affairs and Forestry;Minerals and Energy; Land Affairs;Health;Labour.

(31) It is significant that the same problem of fragmented and sometimes incomplete legislation and the absence of comprehensive national legislation has also charcaterised the regulation of bio-diversity in South Africa. An attempt to address this problem is found in the National Environmental Management: Biodiversity Act (No.10 of 2004) which entered into effect on 1 September 2004.

(32) Whitely, Weinstein, Arnold, Meezan, "The expanding criminalization of environmental laws", Florida Bar Journal, Jan. 2003, page 30.

(33) Law Talk, Isssue 637,6 December 2004 at page 8

(34) See for example Earthyear (Mail and Guardian, Auckland Park, South Africa) Volume 6, 2004 pages 60-63; Suplemento Especial supra note 5.

(35) The Star (Johannesburg), Thursday 29 July 2004 at page 25

(36) Golf Digest (South Africa) February 2005 page 67.

(37) See notes 12-15, 18-20,22-23,28, 18 and 23 supra

(38) KPMG's survey of Integrated Sustainability Reporting in South Africa for 2003 reveals that while more and more companies are providing some disclosure on environmental matters much of this disclosure is at best superficial and general.: KPMG(2003), Integrated Sustainability Reporting in South Africa at page 2

(39) Leonetti, C., "Green Golf " in The Environmental Magazine, Norwalk, May 1995, Vol. 6, Issue 3 at page 22

(40) Suplemento Especial op cit

(41) supra note 33

(42) Suplemento Especial op cit

(43) Earthyear supra note 34 at page 61.

(44) Ibid at page 60.

(45) supra note 14 at page 20.

(46) Sunday Times Sport 21 August 2005 at page 21 (emphasis added). Interestingly, a rival magazine which also ranked the top one hundred golf courses in 2005 makes no mention of the environment in its list of seven criteria: see Golf Digest South Africa, February 2005 at page 60.

(47) supra note 12 at page 63.

(48) ibid.

(49) Leonetti supra note 33.

by Brian Brooks **

* This contribution is an elaborated version of a paper that was presented at the Eleventh Annual Congress of the International Association of Sports Law (IASL) in Johannesburg (South Africa), 28 November/1 December 2005.

** Professor Brian Brooks, BA,MA,Ll.M, Dip.Juris is Head of the School of Business and Economics at MonashSA. He expresses his thanks to two colleagues at MonashSA: Claudia Holgate of the School of Arts for her guidance in matters environmental and Jean Struweg of Buseco for his research assistance in matters golfing.
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Title Annotation:PAPERS
Author:Brooks, Brian
Publication:The International Sports Law Journal
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Date:Jan 1, 2006
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