Transcript Slide 1

Provincial Land Use Legislative Reform
RESEARCH FINDINGS
19 July 2011
Cape Town
Western Cape Province
Provincial Land Use Legislative Reform
STUDY AREA
1 Metro (Cape Town), 5 district municipalities and 24 local municipalities
Western Cape Province
Provincial Land Use Legislative Reform
PURPOSE OF THE STUDY
•To provide an overview of land use / planning legislation in the Western Cape
• To review the state of the present provincial legislation to understand:
 land use laws and procedures in practice;
 law reform processes since the advent of democracy;
 institutional responsibilities;
 decision making structures and processes; and
 the performance of provincial and municipal laws
• To draw conclusions on the status of current land use legislation and see how these
might inform new provincial legislation.
Western Cape Province
Provincial Land Use Legislative Reform
STUDY APPROACH
• Literature review
• Interviews (2 – 3 hours):
 Provincial officials
 City of Cape Town officials
 SAPI (as representing views of the profession)
 Locally based consultants
• Focus of interviews:
 what works well in law? (planning and other related legislation)
 what does not work so well?
 what needs to be changed and what should a new provincial (or national)
law focus on?
 the performance of provincial and municipal laws which focused on
collection of quantitative data (how many applications; what type of
applications; how many appeals, etc.)
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
• There are four key pieces of existing legislation which result in planning
being fragmented and confused
Period
Planning Legislation
Intention / purpose / institutional
responsibility
1967
(first promulgated)
1991
The Physical Planning Act,
Act No. 125, as amended
Permitted the formulation of Structure
Plans to guide land use and procedural
planning in terms of LUPO
1984
The Black Communities
Development Act, Act No.
4
Made provision for the establishment of
‘Black’ Development Areas where Blacks
were permitted to have access to land in
urban areas through a leasehold form of
tenure
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
• There are four key pieces of existing legislation which result in planning
being fragmented and confused
Period
Planning Legislation
Intention / purpose / institutional
responsibility
1985
The Land Use Planning
Ordinance, Ordinance 15
of 1985 (LUPO) read with
1934: Townships
Ordinances, No. 33 where
applicable
To protect the impact of development on
property rights and to demonstrate the
desirability of land use in an area
1991
The Less Formal Township
Establishment Act, Act No.
113
To provide for shortened procedures for the
development of land for less formal forms
of residential settlement
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
• There are at least seven pieces of national legislation, among others,
impacting on planning legislation
1940
Advertising on Roads and Ribbon Development Act, No. 21
1967
Removal of Restrictions Act, No. 84
1970
Subdivision of Agricultural Land, No. 70
1998
National Environmental Management Act, No. 107
1999
Heritage Resources Act, No. 25
2000
Municipal Systems Act, No. 32
2002
Mineral and Petroleum Resources Development Act, No. 28
Note: The Legal Succession to the South African Transport Services Act was amended in 1995
to permit the integration of all parastatal land into conventional land use control systems
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
•
Some legislation has been repealed but regulations are still in in full force e.g.
the BCDA (Chapters VI and VIA and any regulation made thereunder)
•
There is a doubling up of legislation. For example, in 1992 the LUPO was amended
by the addition of ‘Informal Residential Zone’ which made provision that this zone be
deemed to be part of the Zoning Scheme of a relevant authority. This implied that
although a township may be established in terms of LeFTEA, the land use and
zoning of the township, would be determined in terms of this provision of LUPO.
•
The RoRA is a big show stopper to land use applications in terms of time / cost
because it has cumbersome advertising procedures; and no land use application
may be granted which breaches the terms of a restrictive condition of title.
•
Confusion arises as to whether the MSA can have an overriding effect over a Structure
Plan established in terms of Section 4(6) of LUPO. To overcome this, the City of Cape
Town has submitted its SDF for approval by the MEC: Local Government, Environmental
Affairs and Development Planning
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
•
Planning applications may not be granted / refused by a Local Municipality until a RoD
is in place in terms of NEMA. In the past, planning was the coordinating legislation; now
NEMA appears to play this role when it is applicable to a land use application
•
The lack of clear alignment and thus ambiguity between and among various laws is
evident in the application of the Mineral and Petroleum Resources Development Act.
Case No. 4217/2009; 5932/2009 - Matter between City of Cape Town (Applicant) and
Maccsand (Pty) Limited.
•
There have been three attempts at provincial law reform:
• 1997: Western Cape Provincial and Development Act
• 2004: Integrated Development Law Reform Project
• 2010/2011: The impending Provincial and Development Act
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
The WC: DEA&DP deals with the following applications:
• Removal of Restrictions Act (full applications and relaxations);
• Appeals in terms of LUPO: Non-delegated and out-of-time applications
i.t.o. LUPO
• Structure Plan amendments i.t.o. LUPO and the Physical Planning Act
• Less Formal Township Establishment (LeFTEA)
• Black Communities Development Act Regulations
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
•
The time taken from submission to getting a decision varies on average between 4
and 15 months
•
In 2009/2010 the Province received 1159 applications and finalised 1109 of which
about 40% were appealed with a staff of 48 professionals (excluding seniors)
•
Rezonings are the main type of applications appealed and the majority of appeals
emanate from the City of Cape Town applications
•
Main reasons for delays in processing applications at provincial level:
 Structure plans need to be amended first; thus the application is placed on hold
 Environmental authorisation is required first and therefore the application is on hold
 Appeals in terms of the Municipal Systems Act need to dealt with before LUPO
appeals
 can commence
 The time taken for a Municipality to comment on an application
 Time taken for public participation especially in the case of appeals
 Staff issues
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
•
Local Government is delegated by the provincial government to
administer applications in terms of LUPO subject to conditions and
qualifications
• There are different submission requirements in terms of different
legislation e.g. between LUPO (delegated) and LeFTEA (provincially
administered)
• A Planning Advisory Board has been established in terms of Section 43 of
LUPO to advise the MEC on appeals
• The Western Cape Province does not enforce any land use decisions and
expects the municipalities to take responsibility for enforcement in terms
of section 39(1) of LUPO.
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
What works well?
•The structure and procedure of LUPO work well - easy to understand, familiar and
generally fair
•The procedural steps from submission to decision and appeals processes are clear
in LUPO
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
What does not work so well?
•The LUPO procedure has been impeded by laws such as the RoRA, NEMA, etc. as
their different procedures work in sequence not in parallel - planning should ideally
be the overarching /coordinating legal driver
•Different rights of appeal are available under different legislation (NEMA, HRA and
LUPO). Three different departments are involved resulting in more than one
decision which is not healthy for planning
•Even though a show stopper for planning the RoRA cannot just be repealed /
wished away - this needs to be resolved in new legislation in a systematic manner
•The duplication of law (LeFTEA and LUPO for example) goes against the ideal of a
single point consideration of land use applications
•The calculations for the amount which the creditor (LM) is entitled to impose on
the debtor (applicant / developer) in terms of section 42 of LUPO are not
prescribed in law
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
What does not work so well? (continued)
•
There are numerous zoning schemes e.g. 27 in CoCT exacerbate the problem of fragmented
land use management
•
An Integrated Zoning Scheme has been formulated by the CoCT who has submitted
it to the province
•
In the light of the Constitutional Court’s ruling in the City of Johannesburg case in 2010, it
could be argued that the LUPO requirement that a new zoning scheme be approved by the
province is unconstitutional and that the municipality is entitled to approve it itself
•
While the MSA suggests a stronger link between spatial plans (forward planning) and
the regulatory environment, it does not prescribe procedures or requirements in this regard
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
What needs to be changed?
•
A new Act should not just be about replacing current legislation but understand to what end
such legislation should work effectively at municipal level
•
Matters of principle were ignored in law reform processes to date, such as defining clearly
the competencies that are assigned by the Constitution to the different spheres of
government. Instead of one sphere of government defining these competencies, there
should be an open debate on this matter
•
How to capacitate provincial authorities to support LMs should be addressed rather than just
focusing on replacing the old law with a new one without resourcing provincial institutions to
perform a more positive support role to municipalities
•
National and provincial government should clarify in terms of policy, norms and standards
for: i) competencies; ii) urban rural planning guidance; iii) who does what in terms of the
powers related to land use and spatial planning so that a meaningful by-law can emerge at
local municipal level
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
What needs to be changed? (continued)
• The relationship between forward planning (e.g. the MSA) and the regulatory
environment (e.g. LUPO) must be sorted out
• In respect of appeals, a new provincial law should circumscribe grounds for appeal
as anyone can appeal in terms of the current legislation
• Enforcement on how rights are exercised requires a radical overhaul before
reaching the courts
• As informal settlements are predominantly local and emergency in nature, there
should be minimum regulation only at national and provincial level
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
Overview of implications for provincial legislation
•Existing provincial planning legislation is structurally unable to address the
planning regulatory environment in a coherent and rational fashion
• Existing
provincial planning legislation is also structurally unable to address the
legacy of apartheid planning and land use regulation which has no doubt remained
in cities, towns and rural contexts in the Western Cape
• Outdated
legislation appears to be entrenched to the degree that it is difficult to
simply repeal old legislation and have one single piece of land use planning
legislation which calls for a systematic repeal process
Western Cape Province
Provincial Land Use Legislative Reform
KEY FINDINGS
Overview of implications for provincial legislation (continued)
•
The law reform processes in the Western Cape attempted since 1997 have not
come to fruition for a number of reasons including:
a) the lack of democratic debate among spheres of government;
b) the complexities in respect of planning, environment and heritage
competencies as defined in different pieces of legislation at different levels
of government to design and implement a single point application and
decision making system
•
A new and unified provincial planning law would have implications for
institutional structures, planning officials and practitioners and not only calls for
the reorientation and definition of the role of planners but also the debate as to
whether planning should be the coordinating driver of determining land use
change and development rights
•
Appeal processes are generally long, cumbersome, expensive and too openended for land use decisions to be meaningfully & timeously taken
Western Cape Province
Provincial Land Use Legislative Reform
THANK YOU!
Western Cape Province