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PLANNING : A CHANGING LEGISLATIVE CONTEXT
Western Cape Property Development Forum
Kobus Munro
7 May 2015
Outline
1. Planning Law Reform at a Glance
2. Role of the Courts
3. The SPLUMA Scheme for Planning
4. A new Role for Spatial Planning
5. Decision Making Structures
6. What Does This Mean For You?
7. Outstanding Issues
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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1. Planning Law Reform at a Glance
An Incredible Journey
1996
Land Use Planning Ordinance
Less Formal Township Establishment Act
Rural Areas Act
Municipal Ordinance
Divisional Council Ordinance
Removal of Restrictions Act
Black Communities Development Act
Physical Planning Act
Development Facilitation Act
Planning and Development Act 1999
PDA Amendment Bill, 2002
Law Reform Project 2004
Land Management Act 2007
LUPA process 2008
LUP BILL 2009
SPLUMA 2013
WC LUPA 2014
National
Provincial
Municipal
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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Future Legislative Context
• Spatial Planning & Land Use
Management Act (SPLUMA)
National
Provincial
Municipal
© Western Cape Government 2012 |
• Municipal Systems Act (MSA)
• WC Land Use Planning
Act (LUPA) &
Regulations
•Municipal Bylaws on Land
Use Planning
5
THE PLANNING MACHINE
SPLUMA
REGULATIONS
SPLUMA
LUPA
MSA
MSA
REGULATIONS
Zoning
Scheme
© Bylaws
Western Cape Government 2012 | Planning CMS
LUPA
REGULATIONS
Municipal
Planning
Bylaws
6
Because the Constitution says so!
National
Government
National
Planning
Provincial
Planning
Municipal Planning
• pass
legislation
w.r.t. any
matter
• pass legislation
w.r.t. any matter
• Excl provincial
matters
• Legislative function w.r.t.
municipal planning ONLY to:
- Regulate exercise of
municipalities of their
“executive” function.
- Monitor, support, promote
LG capacity.
• IGR
• pass legislation
w.r.t. provincial
matters
• Legislative function w.r.t.
municipal planning ONLY to:
- Regulate exercise of
municipalities of their
“executive” function.
- Monitor, support, promote
LG capacity.
SPLUMA
Provincial
Government
WC LUPA
• Assign & Intervene
Municipal
• IGR
• IGR
• Legislative function w.r.t.
municipal matters (bylaws)
• Executive function of municipal
planning
Municipal
Planning
© Western Cape Government 2012 | Bylaws
Constitutional Scheme for Planning - June 2013
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THE MUNICIPAL PLANNING MACHINE
SPLUMA
SPLUMA
Regulations
WC LUPA
MUNICIPAL
PLANNING
BYLAWS
WC LUPA
Regulations
MSA &
Regulations
© Western Cape Government 2012 | Planning CMS
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2. Role of the Courts
Role of the Courts
4 CONSTITUTIONAL CASES:
Gauteng Development Tribunal – Municipal Planning
Maccsands – Hurdles Principle
Lagoon Bay – Regional & Provincial Planning
Habitat Council - Appeals Co-ordinate Provincial Powers
OTHERS:
Shelfplett – Municipal Planning & Structure Plans
Clairissons – Considering Policy
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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3. The SPLUMA Scheme for Planning
The SPLUMA Scheme for Planning
SDF
• 5 years
• Council Approves
• Highlights Importance of SDF’s
IZS
• 5 Years approval by Council
• Give effect to and be consistent with SDF
MPT
• May not depart from SDF
• Site Specific Circumstances
• Appeals to Executive Mayor
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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4. A NEW ROLE FOR SPATIAL PLANNING
A NEW ROLE FOR SPATIAL PLANNING
FROM ……
Structure Plans – LUPO - Delegations
Structure Plans – Physical Planning Act
Rigid, Non Flexible, Law-type Planning Instruments
Ineffective & probably largest contributing factor for long
delays
TO:
Spatial Development Plans – Core Component of IDP (MSA)
Facilitating, Enabling - Desirable Outcomes
Guidelines, Informants – Taken into consideration
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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SPLUMA on Spatial Planning and Integration
Section 12(6)
• SDF’s must outline specific arrangements
for prioritising, mobilising, sequencing and
implementing public and private
infrastructural and land development
investment in the priority spatial
structuring areas identified in SDF’s
Policies, Guidelines & Planning Frameworks (2)
• A decision-maker may not implement a guideline in a rigid
& inflexible manner*, but must allow for an official to be
open to persuasion that it would be inappropriate to apply
the guideline in a particular instance**.
* MEC for Agriculture, Conservation and Environment v Sasol
Oil (Pty) Ltd and Another [SCA Case No: 368/04 2005], not
reported.
**BP Southern Africa (Pty) Ltd v MEC for Agriculture,
Conservation, Environment and Land Affairs 2004 (5) SA 124
(W) at 154B
Policies, Guidelines & Planning Frameworks (3)
MEC for Environmental Affairs and Development Planning v
Clairison’s CC (408/2012) [2013] ZASCA 82 (31 May 2013)
“If the MEC was predisposed to refusing the application because
it was contrary to the policy of his department that is not
objectionable ‘bias’. A government functionary is perfectly
entitled to refuse an application because it conflicts with predetermined policy. No doubt when exercising a discretion on a
matter that is governed by policy the functionary must bring an
open mind to bear on the matter, but as this court said in Kemp
NO v Van Wyk, that is not the same as a mind that is
untrammelled by existing principles or policy. It said further that
the functionary concerned ‘was entitled to evaluate the
application in the light of the directorate’s existing policy and,
provided that he was independently satisfied that the policy was
appropriate to the particular case, and did not consider it to be a
rule to which he was bound, I do not think it can be said that he
failed to exercise his discretion’. 2005 (6) SA 519 (SCA) para 1.”
5. Decision Making Structures
Decision Making Structures
Municipal Planning Decisions – Municipal Function
National Interest (SPLUMA S 52) – National Department RDLR
Provincial Planning Interest – (LUPA S 53) – Prov DEADP
Municipal Planning Applications:
•
Municipal Planning Tribunal
•
Authorised Official
•
Appeal – Executive Authority
Provincial Planning Interest
LUPA retained a role for WCG in Land Use Planning
•
LUPA Section 53
- Provincial Regional Planning
- Agriculture
•
LUPA Regulations (Section 10)- Extent to which WCG will
Invoke these provisions
Provincial Planning
- Land Use Management
- Spatial Planning
Agriculture
- Land Use Management
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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6. What does this mean for you?
Whilst we now may have constitutionally compliant
Planning Laws - will it improve the position for developers
Will it be faster?
Parallel vs Sequential Application Processes:
•
Structure Plan Amendments
•
Removal of Restrictions
•
EIA’s
Integrated Application Procedures
Delegations
Internal Appeals
Timeframes
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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Will there be Greater Clarity or Predictability
New Role for Spatial Development Framework:
•
Greater Buy-in from LM’s
•
Better ownership (Provincial Structure Plans)
•
Financial Implications
National Interest - Regulations
Provincial Interest – Regulations (Section 10)
Development Contributions
Timeframes
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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7. OUTSTANDING ISSUES
OUTSTANDING ISSUES
Section 53 of LUPA (Regulation 10): Provincial Approval
Section 25 SPLUMA:
“A land use scheme must give effect to and be consistent with a
municipal spatial development framework ……”
Section 42 (1) SPLUMA:
In considering and deciding an application a MPT must
(a)
Be guided by………
(b)
Consistent with: … norms and standards, …..measures to
protect agriculture and ……national and provincial policies…
(c) Take into account ……
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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OUTSTANDING ISSUES (2)
Regulation 22 SPLUMA:
A municipality may provide for an appeal authority to consider an
appeal on one or more of the following:
(a) the administrative action was not procedurally fair as contemplated
in the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000);
(b) the merits of the land development or land use application.
Regulation 26(2)
If the appeal authority revokes a decision of the Municipal Planning
Tribunal or authorised official it may remit the matter to the Municipal
Planning Tribunal or authorised official or replace the decision with any
decision it regards necessary.
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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OUTSTANDING ISSUES (3)
Section 43 (2) SPLUMA:
A conditional approval of an application lapses if a condition is
not complied with within five years…..
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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MUNICIPALITIES EXPOSED
© Western Cape Government 2012 | Land Use Planning Bill, 2013 - February 2013
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Thank you
Contact Us
Kobus Munro
Spatial Planning and Coastal Impact Management
Tel: 021-4834796
Fax: 021-4834796
[email protected]
www.westerncape.gov.za
Atterbury House, Riebeeck Street, Cape Town