Delineating municipal powers over land use planning: the post-DFA era

Prof Jaap de Visser 19 November 2012, LOGOLAW Conference University of the Western Cape

2012 – year of municipal planning

• • • • CC deadline for dealing with DFA ran out Spatial Planning and Land Use Management Bill ( SPLUMB ) tabled in Parliament 9 provinces preparing/revisiting provincial planning legislation some metropolitan municipalities preparing municipal planning by-laws

Some pertinent, post-DFA questions:

• • • • • align forward planning ?

municipality the sole management?

decision maker wrt land use municipal by-laws on planning?

appeals ?

how to cut red tape – multiple authorisations?

Perspective of this presentation: role of provincial legislation in all of this

How to align forward planning?

• • • • • • NPC: ‘ plan-led development’ SPLUMB: national, provincial & municipal SDFs WCape: – MSDF must take provincial interests into account – MSDF must be real planning instrument But MSDF regulated in Systems Act (+ regulations)  spatial plan ‘buried’ in IDP Intergovernmental consultation / review – WCape LUPA: further IGR consultation MSDF as planning instrument (amend MSDF = amend IDP)

Municipality the sole decision maker?

• • • • GDT judgment: national/provincial law may not remove municipal power to control and regulate land use But: provincial and national governments also have planning powers (e.g. ‘provincial planning’) Certain developments approved by them (see also

Lagoon Bay

judgment) How?

• • • SPLUMB: national interest could completely remove municipal power WCape: for some developments: MEC’s approval required  when?

– – scale & impact impact on provincial functions sectoral law) ( difficulty: specific approval procedures often already exist in terms of NB! provincial powers exercised alongside, not instead of municipal powers

What about by-laws?

• • • • LUPO: municipality decides applications in terms of provincial law Now: municipality administer its own municipal planning by-law – Nat/prov law determines framework, detail in by-law Problem: municipal capacity to adopt by-laws WCape LUPA: – – regulations fill gap until by-law has been adopted model by-laws

How to deal with appeals

• • • • • Proliferation of appeals + remove appeals to MEC Systems Act: s 62 appeal open only to unsuccessful applicant (SCA’s Reader judgment) SPLUMB: – first decision by Planning Tribunal / official – applicant + third party may appeal to the Council Further / alternative appeal to provincial tribunals? WCape LUPA: no further appeals to the province, MEC comments on municipal appeal

How to manage multiple approvals

• • • • Problem: multiple approvals for one development (LUPO, EIA, Heritage, SALA etc.) Maccsands: that is not unconstitutional Difficulty: one law cannot change processes under other laws Framework for integrated decision making on MOUs between departments) – SPLUMB enables joint authorisations – (based WCape LUPA: joint advertising, allow planning decision on basis of process in terms of other law etc.

In Sum

• greater clarity emerging of powers wrt planning surrounding division • planning framework will differ from province to province • greater clarity will facilitate collaboration

Thank You [email protected]