Sep, 2012

Spatial Planning and Land Use Management Bill: Public Hearing Inputs

By on Sep 29, 2012

I am not quite certain whether the formal hearings have been concluded or not, however the following is a summary of the the foregoing hearings in Parliament on the SPLUMB. Once again, these are reproduced with compliments from the PMG.

The Committee’s Content Adviser and Researcher presented a summary of the comments and submissions made at the public hearing on the Spatial Planning and Land Use Management Bill (B14-2012) (SPLUMB). The comments were divided into general and specific comments. The issues raised in relation to the general comments were in respect of consultation; public participation/consultation; framework legislation; cost of planning; constitutionality of the Bill; land tenure and land use communal areas; alignment with other laws and custodian of the Bill. The issues raised in relation to the specific comments were in respect of intergovernmental support; intervention in functional areas of municipal competence; spatial development frameworks; mining; land use schemes; municipal planning tribunals; time-frames for applications; engineering services/development charges; appeals; exemptions; regulations; transitional arrangements and repeals.

The Department of Rural Development and Land Reform (DRDLR) presented its responses to the issues it had identified from the submissions made at the public hearing. These issues centred on decision making bodies; repeal of laws; transitional provisions; interface with provincial legislation and legal status of Spatial Development Frameworks (SDFs).

Members asked if the Parliamentary Legal Adviser could advise the Committee on the proposals which had been made in respect of the Bill; if the Committee ought to be dealing with the Bill alone or if the Department of Co-operative Governance and Traditional Affairs (COGTA) should also participate in the deliberations on the Bill.

Spatial Planning and Land Use Management Bill: Parliamentary Deliberations – Clauses 34 to 60

By on Sep 29, 2012

The Committee continued with the deliberations on the Spatial Planning and Land Use Management Bill, starting at Chapter 5. Members asked if it was possible for conflicts to arise in respect of clause 34(2) but were assured that the local would have to approach the district municipality. Clause 35 was clarified for Members, who were assured that municipalities did not have to establish tribunals if they had their own officials capable of handling this task, and it was later clarified that clause 40 applied only to situations where the tribunal was established. It was also clarified that clause 42(2) required account to be taken of any existing legislation on environmental matters, that clause 43 required conditions of establishment to be fulfilled within five years, and clause 44 did already allow for differential time frames for consideration of applications, across different municipalities, whilst the circumstances in which compensation could be granted were clarified for clause 47. The meaning of the word “notification” in clause 51 was clarified. Members questioned if clauses 54 and 55 were not granting overly-wide powers on the Minister, but it was pointed out that the Minister could act only on request of the province or municipality. Members asked why the Bill made no reference to orders of community service, and although the Parliamentary Legal Advisor took issue with the sentence of 20 years mentioned in clause 58, other Committee Members did not see it as excessive.

The Department of Rural Development and Land Reform (DRDLR) had proposals for amendment of various clauses. The references to sections were corrected, in clause 37(2) and (3), the word “employment” in subclause (2) would be replaced with “service”, and in (3) “subject to section 139 of the Constitution” was to be added. In answer to a concern from the Parliamentary Legal Advisor and the Committee, the DRDLR was asked to insert a reference to “reasonable grounds” into clause 38(5). Clause 39 was to be amended by including a reference to “an executive authority of the municipality as the appeal authority”. In clause 41(2)(d) the phrase “except any change affecting the scheme regulations in terms of section 25(2)(a)” would be added at the end of the clause. In clause 50 the DRDLR proposed the deletion of clause 50(3), and the proviso to clause 51(1), that referred to the Municipal Systems Act, was to be deleted, as well as the last part of clause 51(3) relating to variation of decisions. In this clause, new subclauses (6) and (7) would be added to deal with appeals. In relation to clause 52, a new subclause (7) was to be inserted stating that all applications to the Minister for land use or land development must firstly be lodged with and considered by the relevant municipality. A new clause 54(2) would be inserted to set out the Minister’s obligations before promulgating regulations. The term “political office holder” would also be inserted into clause 56. A new clause 60(2) was proposed to deal with transitional provisions, to replace the original clause.

Copyright – PMG

Spatial Planning and Land Use Management Bill: Parliamentary Committee Deliberations – Clauses

By on Sep 29, 2012

The following account is a summary of the ongoing deliberations in Parliament. These deliberations are essential for the SPLUMB to fulfill the requirements of the public consultation process, one of the criteria the Bill has to meet before it can be signed into law by the President. This summary is reproduced courtesy of the PMG.

The Committee went through the Spatial Planning and Land Use Management Bill (the Bill) on a clause-by-clause basis, with the State Law Advisors, Department of Rural Development and Land Reform (DRDLR) and Members raising and debating proposals for amendment.

In relation to the definitions, Members questioned whether “national interest” and “provincial interest” should be defined, but accepted the views of the State Law Advisor (SLA) that this would unduly limit them. The definition of “region” was clarified, and it was explained that it related to the preparation of a regional spatial development framework. The definition of “engineering services” was also explained as being limited to land use management. It was pointed out that “land use scheme” did not need to be defined since it was used only in Chapter 5, where it was put in context. The DRDLR proposed a new definition of “development rights”, a new definition of “integrated development plan” that would refer to Chapter 5 of the Municipal Systems Act, and the deletion of definitions of “rezone”, “inclusionary housing” and “erf”. In relation to clause 2, it was noted that substantial comment was raised during the public hearings, on the relationship between the national law and provincial law. DRDLR now proposed that the relationship between them be clarified by inserting a new clause 2(2) to state that no legislation that had not been repealed by the Bill may prescribe an alternative or parallel mechanism, institution or system that would be inconsistent with the Bill. Although a new subclause 2(3) was also proposed, Members pointed out that it was unnecessary, and the DRDLR conceded that point. A Member queried the import of clause 7, and the SLA pointed out that the principle set out in clause 7 was also reinforced by clause 57. A person would only get compensation when the value of his or her land had been diminished to the extent that the land could no longer be used for the purpose originally intended. It was explained that clause 8 deliberately did not state the norms and standards, since they were not fixed items.

DRDRL proposed insertion of a new clause 10(6) stating that provincial legislation that had the effect of regulating land use, land use management and land development within a province must promote the development of local government capacity, to enable municipalities to perform their municipal planning functions. This was accepted by the Committee. The words “mineral resources” were to be added to clause 12(1)(n). New wording was proposed for clause 12(2)(a), and clause 12(5) would be deleted as it added no value to the Bill. Clauses 18(3)(a) and (b) were to be deleted. In clause 19, after debate, it was eventually decided that the words “be consistent with” (environment legislation) be replaced with “comply with”. In clause 21, “and applicable norms and standards” would be added. Clauses 22(2)(a) and (b) would be combined in new wording for clause 22(2). New wording was proposed for clause 23(2), in response to the Committee’s request that traditional councils must participate in schemes or spatial development frameworks that affected their area. In clause 25, the reference to “regulations” was replaced with “regulatory procedures and conditions” since municipalities enacted provisions that were variously referred to as by-laws and regulations, and clause 25(1) would be re-worked so that it read better, and included the words “and applicable norms and standards”. A new clause 28(2)(iv) would be added, to noted that changes to land use schemes must be authorised by a Municipal Council. A Member proposed that documentation should be made available not only at regional, but also public offices, for ease of access, in relation to clause 31(2).

Spatial Planning and Land Use Management Bill: Public Hearings Day 2

By on Sep 1, 2012

The following summary is provided with the compliments of the Parliamentary Monitoring Group.

Summary:

Municipalities and organisations with an interest in the Spatial Planning and Land Use Management Bill (SPLUMB) put forward a wide range of concerns during public hearings on the provisions of the Bill.

The City of Johannesburg stated that there were many universal concerns which had been raised, mainly by the metropolitan municipalities. These related to levels of planning; the compilation of tribunals; reasonable time frames for decisions; the definition of national and provincial interest, monitoring, assistance and support; internal appeal authority; and delegations and transitional arrangements.

The City of Tshwane’s main issues were centred on the consultation process leading up to the Bill; transitional arrangements; and schedule one of the Bill. Several matters included the Bill were covered by other legislation. Concern was expressed in respect of section 26(4) of the Bill, which provided that regardless of any provisions in any other law, the Bill could be used to deal with planning applications. It was argued that the Supreme Court had established that two parallel processes could not exist, and it would therefore be advisable to provide that where provincial legislation was not in place, the Bill could then be used.

The Ethekwini Municipality raised issues in respect of the capacitating process. It was acknowledged that while section 9 and section 10 of the Bill provided for national and provincial support, the necessary support and capacity should be put in place prior to implementation of the Bill. Another major issue raised was in respect of the alignment of authorisations. It was stated that on a general level, there was a need for close alignment between chapter 4 of the Municipal Systems Act, which dealt with dealing with Integrated Development Plans, Service Delivery Frameworks (SDFs) and the Bill. Ideally, all such requirements should reside in one place.

The South African Local Government Association was of the view that despite the judgment of the Constitutional Court, the Bill still purported to give provinces powers which were supposed to be municipal powers. SALGA was also of the view that the current description of what should be in an SDF was too prescriptive. Further issues were raised in respect of land use schemes and existing property rights. Another basis for concern in the Bill was the provision that when the planning tribunal took a decision on a development application, the derogation of property might not be taken as a consideration. A contentious issue was the issue of appeal tribunals. In respect of the municipal planning tribunal, the Bill made provision for the exclusion of councillors from the decision-making process, but in respect of the appeal tribuna,l the Bill allowed politicians to form part of the composition of the tribunal.

Members asked questions and sought clarity in relation to the amount of time that would be deemed as feasible for the review of the land use scheme; the issue of appeals; interference by the provinces with the day-to-day operations of municipalities; and why the Department of Rural Development and Land Reform (DRDLR) had not considered the issues of mutual consent raised by the municipalities.

The Griqua Royal House complained about the situation in the past, whereby the indigenous people had never been called upon to make their submissions about laws which affected their lands, and reference was made to the injustices suffered during the apartheid regime. Parliament was urged to enforce the implementation of a number of laws, which included the Constitution; the Manila Declaration of 1989; the Johannesburg Summit on Sustainability in 2002; the United Nations Agenda 21(1992); the Earth Charter Initiative; the United Nations Millennium Goals (2000); and the New Biodiversity Act.

The Chamber of Mines stressed the importance of the mining industry for the South African economy and the special attributes of minerals and mining. It was argued that under the Bill there was a two-fold encroachment on mining. The first encroachment was that the mineral rights holder needed to procure zoning of land for mining uses, and previously municipal jurisdiction had been limited to urban and peri-urban areas. However, under the Bill, mineral jurisdiction included even rural areas, where most mining occurred. The second encroachment was that land developments by others for non-mining uses prevented mining uses, and previously the mineral right holder’s consent was required, which would protect existing, known future and even unknown future mining operations. Under the Bil, however,l there was no provision for the consent of existing mineral rights holders. The Chamber offered solutions to these perceived encroachment by the Bill.

The Co-operative Governance and Traditional Affairs, Province of Free State said that since 1894, Cogta Free State had had central land use considerations approval. The townships board had been established in 1894 and work was still been done by the board in considering all land use applications. Cogta Free State was still using the old legislation, such as the Ordinance of 1969 and the Removal of Restrictions Act of 1967 and there was therefore a need to maintain these pieces of legislation and not repeal them, otherwise Cogta Free State would not be able to do anything until there was a new legislation. The fact was stressed that in the Free State there were no town planning schemes. Free State had also never had proper planning legislation and this was why the Bill was a welcome development.

The Western Cape Department of Environmental Affairs and Development Planning (WCDEADP) was concerned about intergovernmental consultation around the National Spatial Development Framework and wanted a more explicit role for provincial and local government, which would involve more transparency in consultation. Further issues were raised in respect of the overlapping regulations that could cause confusion in respect of land use schemes. Appeals to tribunals were also dealt with. The WCDEADP suggested that the Bill should provide a framework for a national-provincial interface and principles for provincial and municipal planning. Details should left to provincial legislation and by-laws. The Bill should provide detailed rules to fill gaps in regulations for provincial and municipal planning.

The Community Law Centre/Urban LandMark (ULM) stated that the ULM had worked closely with the Presidency on supporting earlier drafts of the Bill, especially since the 2008 hearings. A round table talk was being organised to get a group of people who had been working through these issues to discuss openly and informally on how to go about resolving the difficult legal questions. These questions concerned how the law could secure national and provincial interests while simultaneously respecting local government’s role, as confirmed in the City of Joburg DFA judgment; what remedies were available to a party which was dissatisfied with a municipality’s decision; what would the impact of new legislation be on professional and administrative capacity, as local governments assumed greater responsibilities; and how the law could ensure that development management was harmonised across sectors and spheres, especially in the light of the Maccsands and Swartland decisions.