Provincial Land Use Legislative Reform KwaZulu-Natal

Atelier von Riesen July 2011

Study Area

Study Area

1 Metro, 10 District Municipalities and 50 Local Municipalities

Focus Municipalities

eThekwini Metro and uMgungundlovo District -uMngeni

Focus Municipalities

Msunduzi Municipality – Pietermaritzburg and surrounds

Project Aims

    Understand the historical trajectory of provincial legislation – where have we come from?

Understand the current provincial legislative terrain – where are we now?

Understand elements of future legislative review – where do we need to go?

How would this relate to a provincial legislative framework – lessons from the PDA Atelier von Riesen July 2011 6

Project Methodology

     Understand the context within which the PDA has been introduced Understand contemporary developments – SPLUMB and PDA review process Literature review Detailed assessment of the PDA Telephonic and Face to Face Interviews:  Officials from national department of Rural Development and Land Reform and provincial COGTA  Officials from sector departments - DAEA  Legal practitioners  Planning practitioners  Key SACN municipalities eThekwini and Msunduzi  District municipality – UMngeni - District Planning Shared Services Project Atelier von Riesen July 2011 7

Interviews



During interviews explore the PDA in regard to:-

 What works well? (planning and other related legislation)  What is not working and why?

 How the new provincial law is performing through a review of quantitative data (how many applications; what type of applications; how many appeals, etc.)  What needs to be changed in a review of the PDA  Consider the KZN PDA experience and use lessons from practice to inform other provincial (or national) legal initiatives ? Atelier von Riesen July 2011 8

Interviews Additional Questions

   Need for clarity about constitutional issues and planning roles within the different spheres of governance Debated the impact of planning legal frameworks on the profession Explored the nature of legislation re enabling or prescriptive framework or a comprehensive law – variants of these elements Atelier von Riesen July 2011 9

Interviews Additional Questions

    Definitions – what is municipal planning – DFA judgement Is there a need for a fast track option for housing developments, provision of land or strategic projects?

Discussed the principle/institutional placing of the appeals process Considered the KwaZulu-Natal Land Use Management Systems (LUMS) model in light of the KZ-N PDA Atelier von Riesen July 2011 10

Legislative Context - Starting Point

     National Constitution – overarching framework in which all policies and statues are subsequently written Schedules 4 and 5 dealing with the extent of provincial and municipal planning Understanding that development planning is impacted upon at all levels by legal policies, statutes and regulations Specific land development /environmental/housing/ planning laws – national and provincial level Local by-laws and Land Use/Planning Schemes (TPS’s) also impact on development Atelier von Riesen July 2011 11

Other Key Legislation - Land Use Development

Date

1935 1937

Act/Statute

Sea Shore Act (Act No. 21 of 1935) partially retained /Admiralty Reserve – historical legacy Deeds Registry Act (Act No.47 of 1937) 1967 Removal of Restrictions Act, (Act No. 84 of 1967) 1970 Sub-Division of Agricultural Land Act (Act No. 70 of 1970) 1988 1988 1997 2000 2000 2008 National Water Act (Act No. 36 of 1988) National Environmental Management Act (Act No. 107 of 1988) Land Survey Act (Act No. 8 of 1997) Municipal Systems Act (Act No. 32 of 2000)– IDP’s/SDF’s Promotion of Administrative Justice Act (Act No. 3 of 2000) NEMA: Integrated Coastal Management Act (Act No 24 of 2008)

Current Legislative Terrain

 Physical Planning Act, Act No. 125 of 1991    (intended to be repealed by National Land Use Bill) not used in KZ-N Development Facilitation Act (Act No. 67 of 1995) repealed but applications being processed Less Formal Townships Establishment Act (Act No. 113 of 1991) Remnants of the Natal Town Planning Ordinance No 27 of 1949  KwaZulu-Natal Planning and Development Act (Act No. 6 of 2008 )  Ingonyama Trust Act, (Act No. 3 of 1994) and Ingonyama Trust Amendment Act, (Act No. 9 of 1997) Atelier von Riesen July 2011 13

Provincial Legislation Review Outputs

 

Province has been engaged in a review process for a decade Trying to chart the road to a new unitary provincial law

 KwaZulu-Natal Planning and Development Act (Act No. 5 of 1998) Regulations not enacted  KwaZulu-Natal Rationalisation of Planning and Development Act (Act No. 2 of 2008)  KwaZulu-Natal Planning and Development Act (Act No. 6 of 2008) Atelier von Riesen July 2011 14

Performance of the Provincial Acts including the PDA

eThekwini Area

Umhlanga Durban Illovo Pinetown Hillcrest Total Number of Applications dealt with by municipality

Rezoning

6 8 3 10 3 30

LAND USE APPLICATIONS Special Consent Subdivisions

14 16 3 8 15 35 5 6 12 6 85 35

Relaxations

107 526 91 232 32 988

Pre-Scrutiny

0 700 315 609 61 1685

Performance of the Provincial Acts including the PDA



Msunduzi

 Ten outstanding appeal application lodged in terms of the Ordinance;  Approximately four DFA applications still for processing - some of which involve large developments;  Twenty one sub division and consolidation applications;  Six outstanding applications for minor subdivisions lodged in terms of the Extended Powers Ordinance; and,  Five scheme applications in terms of the PDA Atelier von Riesen July 2011 16

Performance of the PDA

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uMgungundlovo District - uMngeni

 49 applications in 2010;  25 applications in 2011;  2 or 3 were consolidated applications – included consolidation/subdivision/rezoning;  13 have been refused;  No applications have been declined;  No full township applications – although these are anticipated; and,  No statistics on withdrawals Atelier von Riesen July 2011 17

Performance of the PDA

  

Key challenge is the time limits of the act

 eThekwini has introduced the pre submission option where the clock is not ticking  Msunduzi is falling behind in terms of processing applications on time – financial and institutional conditions  UMngeni are managing but still encounter difficulty  All have concerns with sector department inputs

Issue of what constitutes a complete application Cannot process appeal applications although these are being prepared

Atelier von Riesen July 2011 18

What works well

     Single unitary approach to address past complexity Direction for municipal level planning regarding schemes, land development applications and procedures Option for a comprehensive application allowing for a number of development issues to be addressed Provision for removal of restrictive conditions in the comprehensive application Specific time limits related to the processing of applications once it is accepted Atelier von Riesen July 2011 19

What works well

    Removal of restrictive conditions as part of the operation of the PDA and in the applications LUMS model – which is being reviewed seems to allow sufficient flexibility for municipalities to create a suite of plans to manage development Ongoing monitoring and evaluation Training through workshops and input from good practice Atelier von Riesen July 2011 20

What is not working

    Key principles – need and desirability/issues of amenity/impact One application procedure fits all – no distinction made in regard to impact – a tuck shop and a regional shopping centre follow the same route 100m notification requirement of the PDA – a tavern where there are informal residents/tenants/owners?

Full application for minor subdivisions even where there is conformity with the scheme Atelier von Riesen July 2011 21

What is not working

     Increased time for processing consolidation/ subdivisions from six weeks to three months – PDA undermining the cadastral system unintentionally Duplication of service provider inputs into environmental and land development applications No time limits for sector departmental inputs into pre submission documents Increased costs of applications Advertising costs R 4-5 000 and for small developments Advertising procedures – act makes this the municipality responsibility but in practice applicants are undertaking this task Atelier von Riesen July 2011 22

What is not working

       Lack of finance to pay back applicants for advertising Lack of understanding in sector departments about the requirement of the PDA Lack of Special Consent options Lack of deemed to be approved option Requirements for registered planners to certify compliance with the PDA – time delays and institutional capacity Interface of planning and institutional aspects of the law Communication between spheres of governance in regard to the PDA – local concerns are not heard Atelier von Riesen July 2011 23

What is not working

   Enforcement aspects of the PDA – perception that the role is now more like the Office of Sheriff rather than planning Large developments will pay the fine and still proceed – project penalties versus enforcements fines PDA perceived to stifle small scale development – termed the bread and butter of the planning practitioners  Appeals process – lack of clarity due to constitutional aspects  Lack of provincial norms and standards Atelier von Riesen July 2011 24

What needs to be changed

      Inclusion of clearer definitions re provincial and municipal planning The definition of municipal planning provided by the DFA ConCourt judgment – too narrow Provision for an option for special consent application similar to the Ordinance Reconsideration of advertising requirements for applications – sub division and consolidation Reconsideration of institutional municipal capacity and requirements of the act Reconsideration of amending conditions of establishment as a full application Atelier von Riesen July 2011 25

What needs to be changed

     Consideration of deemed to be approved where time limits are not adhered to by municipalities (PDA 1998) 28 days period after approval where there are no objections – wasting time and money Appeals process – 2 options  Review/Appeal at the Local or District Level  Review/Appeal at the Provincial Level Inclusion of a fast track procedural option for housing and land provision or strategic project – specific criteria Clarity about the nature of appeals – recommendation versus changing the decision Atelier von Riesen July 2011 26

What needs to be changed

  Role of provincial planning where there are institutional limitations – extension of the DPSS model Reconsideration of the enforcement requirements wrt affixing the notice on site Atelier von Riesen July 2011 27

    

Principles for Legislative Framework or Review

Enabling or prescriptive legal options Flexible framework or comprehensive law – variants of these elements Support for enabling framework for legislation – which would allow provincial law to be aligned with national directives and to guide municipal planning Comprehensive legal framework - could be an option where there is a lack of institutional capacity or for a prescribed time span Prescriptive aspects for procedural components of the legal framework – time limits, costs etc.

Atelier von Riesen July 2011 28

Other Findings

     Legal framework should be inclusive and cover areas that are excluded - informal areas Extension of the Scheme into areas previously administered under other legislative frameworks - a challenge Local institutional reorganization can impact on the implementation of the PDA – Msunduzi and the delegation notice Decrease in the number of small applications – perception of increased costs and onerous application requirements Concern that there will be an increase in illegal developments – by pass the system Atelier von Riesen July 2011 29

Other Findings

    None of the municipalities were concerned about the close of the DFA route perceived as being for commercial developments/by passing the municipalities/encouraging leap frogging Need for revisiting a single application system with environmental and land use management aspects covered Perception that environmental planning has superseded land use development in the application/approval system Debate re the need for an environmental authorisation or ROD prior to submission of the PDA application Atelier von Riesen July 2011 30

Other Findings

     Approved Environmental Management Frameworks (EMF) for the municipalities could assist with land use management applications – reduce need for ROD’s Need for clarity re Act 70 of 70 and adoption of Schemes Level of undue political influence in regard to the approval of some applications Role of the councilors in decision making process – political interference versus representation of the constituency that voted for them Need for a public hearing process for developments that have large impact Atelier von Riesen July 2011 31

Conclusion

 Need a flexible legislative and procedural system that is:  Based on a common vision shared by province and municipalities  Clearly defines provincial/municipal planning   Includes principles – amenity, need/desirability Provides norms and standards  Has prescriptive elements for applications, time periods and institutional aspects  Provides clarity on requirements for different application types – based on impact  Provides for a deemed to be approved option Atelier von Riesen July 2011 32

Conclusion

 Provides clarity on sector department inputs – what to do if they do not contribute  Provides clarity on what constitutes a completed application  Has reasonable time limits for approvals  Provides certainty  Allows for an appeals process  Addresses institutional diversity and skill  Aligns with the Land Use Management System (LUMS) model/framework Atelier von Riesen July 2011 33