Zoning matters: A ‘SPLUMA’ score-card one year on

December 1st, 2016
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By Peter Murray

Planning law shapes and determines our daily activities in important and pervasive ways. The buildings in which we work and live; the roads on which we drive; the reservoirs and sub-stations that supply water and electricity, were all planned, authorised, and continue to exist within a complex legal system of interlinked Acts, ordinances, regulations and town planning schemes.

Many participants in the property industry have, for some time believed, that a systemic overhaul of planning law was needed. In 2001 the White Paper on Spatial Planning and Land Use Management described as part of its findings ‘an extraordinarily complex and inefficient legal framework, with planning officials in all spheres of government having to deal with numerous different systems within the jurisdiction of each province, and indeed within most municipalities.’

Pursuant to the White Paper, the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) was passed into law on 1 July 2015. SPLUMA refers in its preamble to the fragmentation, duplication and unfair discrimination, which characterised pre-existing planning law. One of the main aims of the legislation is, therefore, to create a uniform, recognisable and comprehensive system of spatial planning and land use management throughout South Africa (SA).

This article examines whether – one year since its commencement – SPLUMA has changed our understanding of and approaches to spatial planning and land use management, and whether it has succeeded – from the perspective of planning practice – in its stated aim of ushering in a unified and coherent system of planning law.

Pre-existing legislation

Prior to SPLUMA planning legislation consisted principally of provincial ordinances and Acts. Only two provinces (Northern Cape and KwaZulu-Natal) adopted post-1994 legislation to deal with planning matters; the other provinces continue to utilise ordinances that pre-date democratic constitutionalism. Although SPLUMA now applies nationally, pre-existing provincial legislation has not been repealed and it remains in force. A more coordinated approach would have been to enact SPLUMA only when the provinces were in a position to repeal their planning legislation. SPLUMA is, therefore, an overlay to – rather than a replacement of – existing provincial acts and ordinances. It is not clear how long it will take to phase out the existing provincial legislation.

The existence of coinciding national and provincial planning regimes inevitably causes practical difficulties. Both sets of legislation must be read and applied in conjunction and at present rezoning and township applications are simultaneously advertised, motivated, and decided in terms of SPLUMA and the applicable provincial enactment.

SPLUMA attempts to address this difficulty in s 2(2), which provides that legislation other than SPLUMA may not prescribe ‘an alternative or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land development in a manner inconsistent with the provisions of this Act’. In practice, deciding whether an alternative or parallel mechanism is inconsistent with SPLUMA presents considerable interpretive difficulties, and conflicting legal interpretations.

Rather than introducing a uniform system, SPLUMA has added another legislative layer to the already complex myriad of legislation which it sought to replace.

Development principles, norms and standards

One of SPLUMA’s innovations is the introduction of a set of five nationally applicable development principles (s 7), namely –

  • spatial justice;
  • spatial sustainability;
  • efficiency;
  • spatial resilience; and
  • good administration.

Although the modernisation provided by an overarching, nationally applicable set of normative standards is sound, the legislature has not provided concrete and practical definitions of these concepts and this will inevitably lead to a proliferation of interpretive difficulties and disputes. However, practitioners should be aware that all land use applications must be motivated in terms of the five principles.

Furthermore, the Minister of Rural Development and Land Reform, must in terms of s 8 of SPLUMA prescribe a set of norms and standards for land use management and land development. These must reflect national policy and promote social inclusion and spatial equity. The norms and standards have not yet been published; it is also not clear how they will relate to and intersect with the development principles.

Spatial development frameworks

In terms of s 12 of SPLUMA each sphere of government must prepare its own spatial development framework (SDF). The framework interprets and represents the spatial development vision of that sphere of government. SPLUMA sets out extensive checklists for the contents of an SDF.

Three conceptual difficulties arise, namely:

  • The courts have held that planning is, constitutionally, an exclusive area of municipal competence (see, for example, City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC)). The role and function of national and provincial SDFs is, therefore, not clear, and SPLUMA provides no guidance. This apparent conflict between the constitution and SPLUMA’s reference to SDFs is still to be resolved.
  • The Local Government: Municipal Systems Act 32 of 2000 already deals with SDFs. It is not clear why the mechanism has been repeated in SPLUMA and how conflicts between the two enactments must be understood.
  • Section 18 of SPLUMA provides that the Minister may publish an SDF for ‘any region of the Republic’, however, a region is not defined and it is not clear how this will work in practice.

An intractable problem, which causes practical difficulties on a daily basis, arises from s 22 of SPLUMA, which determines the legal status of SDFs. Section 22(1) provides that neither a planning tribunal nor any other authority may make a decision ‘which is inconsistent with a municipal spatial development framework’; in terms of s 22(2) decision-makers may depart from the provisions of an SDF ‘only if site-specific circumstances justify a departure’.

Although this formulation gives significant flexibility to decision-makers, the sub-sections appear contradictory. In their written motivations, and in oral arguments before the tribunal, practitioners will have to set out clearly and with appropriate evidence the site specific circumstances, which justify a decision which departs from the SDF.

Land use change

Chapter 6 of SPLUMA sets out a procedural framework for land use change. In terms of s 33 all land development applications must be submitted to a municipality as the authority of first instance.

Municipalities are required to establish a municipal planning tribunal (s 35), and they may authorise that certain land use and land development applications may be considered and determined by either an official in the employ of the municipality or by the tribunal. The tribunal consists of at least five members who are either municipal officials or council appointees who have knowledge and experience of spatial planning and land use management. The SPLUMA mechanisms for co-opting experts and expertise are innovative and will hopefully be utilised extensively in practice.

Tribunals have powers to –

  • approve or refuse land use applications;
  • impose reasonable conditions;
  • conduct investigations;
  • give directions relevant to their functions to any person in the service of a municipality; and
  • decide questions of their own jurisdiction.

Various different types of applications are mentioned in s 41, namely –

  • township establishment;
  • subdivision of land;
  • consolidation of land;
  • the amendment of a town planning scheme; or
  • the removal amendment, or suspension of a restrictive condition.

Section 42 sets out the factors, which a tribunal must take into consideration in deciding applications. Previously decision-makers would take into consideration the need for and desirability of proposed land use change. In terms of SPLUMA these factors have been replaced with –

  • public interest;
  • constitutional transformation imperatives;
  • facts and circumstances relative to the application;
  • respective rights and obligations of all those affected;
  • the state of and impact on engineering services, social infrastructure, and open space requirements; or
  • any factors that may be prescribed.

The nature and extent of factors that must be taken into consideration in deciding land use applications has, therefore, been considerably widened and modernised.

In terms of s 45 of SPLUMA applications may be submitted by an owner, an agent, or any person in terms of a land availability agreement. An innovation is that a service provider responsible for the provision of infrastructure to the land may also apply for the rezoning of land.

One of the most notable omissions from SPLUMA is that in providing land use change procedures it does not mention that interested and affected parties may object to applications. This has been a key feature of planning procedures for many decades, and it has provided a valuable procedural remedy to neighbouring property owners, residents, activists, and even competitors who oppose proposed land use change. Regulation 14(1)(d) of the SPLUMA regulations (GN R239 GG38594/23-3-2015) provides that municipalities must provide – in terms of by-laws – for ‘the manner and extent of the public participation process for each type of land development and land use application.’ Some by-laws provide for an objection procedure. It is not inconceivable, however, that some by-laws might not provide one. Practitioners will have to consider the by-laws of the municipality concerned before deciding how best to oppose a land use application or to resist an objection.

Although SPLUMA does not provide a uniform objection remedy across SA it does introduce a new intervener petition process (s 45(2)). Any person who is interested in or affected by proposed land use change may apply for intervener status. The intervener petition may seemingly be launched at any time, even if the window period for objections (in terms of the applicable by-laws) has closed.

Any person whose rights are affected by a decision taken by a tribunal may, within 21 days, lodge an appeal. This is a wider formulation than previous ones where only objectors could lodge appeals.

Appeals are heard either by the executive authority of the municipality (the executive committee or the executive mayor) or by a body or institution outside of the municipality. In terms of reg 23 the appeal authority may hear the appeal by means of a ‘written hearing’ or an ‘oral hearing’. I submit that both formulations are unfortunate. Firstly, in some municipalities the executive authority will serve as the appeal authority. In others, an outside body will be designated. A greater degree of objectivity can, naturally, be expected from outside bodies. Secondly, the decision to hold a hearing or not is discretionary and no objective criteria are set out for purposes of exercising the discretion. In practice, very few appeal hearings are held. In the previous planning paradigm most provinces convened a Townships Board for purposes of hearing appeals. Large amounts of institutional expertise developed within the boards, as well as a high degree of objectivity. This might now have been lost.

Land use management systems

Chapter 5 of SPLUMA deals with land use management.

Section 24 of SPLUMA is a welcome innovation in terms of which every municipality must, after public consultation, and within five years from the commencement of SPLUMA, approve a single land use scheme for its entire area of jurisdiction. At present some municipalities have more than one scheme. Many areas within SA fall outside of the area of a scheme. Areas, which previously did not fall under a town planning scheme, will in the future fall within a unified scheme area.

SPLUMA sets out a checklist of important matters, which must be included in any new land use scheme. Furthermore, s 25 modernises the purpose of a land use scheme and now refers to economic growth, social inclusion, efficient land development and minimum impact on public health, the environment and natural resources. A further innovation is that a municipality must review its land use scheme at least every five years. Previously land use schemes were not reviewed for years or even decades.

Conclusion

Prior to the advent of SPLUMA planning law was severely fragmented, consisting as it did of levels and layers of confusing, disparate legislation. There was a dire need for reform.

SPLUMA constitutes an important step towards a uniform system, which is nationally applicable and more modern in its approach to planning. However, given the central role of planning in guiding and regulating the manner in which our cities, towns and rural areas develop and change, a valuable opportunity has been missed. SPLUMA should have replaced the provincial planning regimes; the time lapse between SPLUMA and the new by-laws is problematic in practice; and the new schemes should have been ready for simultaneous implementation. This is particularly regrettable given the lapse of 15 years between the White Paper and the SPLUMA effective date. Furthermore, some of the procedures in and substance of SPLUMA appear not to have been conceived having sufficient regard for the practice of planning law, and with a clear vision of the systemic change that was and is required. It will remain, unfortunately, for the courts, and future legislative amendments, to iron out the creases.

 

Peter Murray BA (Hons) LLB (Rhodes) is an attorney at Murray van Rensburg Inc in Johannesburg.

This article was first published in De Rebus in 2016 (Dec) DR 26.

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