Comments on Spatial Land Use Management Bill, 2012 (SPLUMB) 21 August 2012 Western Cape Department...

Comments on Spatial Land Use Management Bill, 2012 (SPLUMB)

21 August 2012

Western Cape Department of Environmental Affairs and Development Planning

This presentation

• Highlights key points of Western Cape Submission of 10 August

2012

• Focus on constitutional matters

Key provisions on constitutional division of powers

Constitutional power Consequence Conflict

Regional planning and development (4A)

both national and provincial govts may make and implement law

S 146

Urban and rural development (4A)

both national and provincial govts may make and implement law

S 146

Provincial planning (5A)

only provincial govt may make and implement law

S 44(2)

Municipal planning (4B)

only local government may make laws but within framework set by national and provincial govt.

S 155(6) and (7)

• Provincial governments have already or are in the process of

adopting provincial planning laws

• Duty to coordinate/consult - S 41(1)(h) Constitution:

“national and provincial governments must co-operate with one

another in mutual trust and good faith by…co-ordinating

their…legislation with one another”

S 146: when does national prevail over provincial, e.g. wrt ‘municipal planning’?

• Cannot be regulated effectively by provincial legislation

• Requires uniformity through norms and standards, frameworks

and national policy

• Necessary for –

o National security, economic unity, common market,

economic activity across provincial boundaries, equal

opportunity/access to govt. services, protection of

environment

• If national law is aimed at preventing unreasonable action by a

province

• (No precedent)

S 44(2): when does national prevail over provincial wrt ‘provincial planning’?

• When national law is necessary for

o national security

o economic unity

o maintain essential national standards

o minimum standards for service delivery

o prevent unreasonable action by a province

‘Plan-led system’ of land use management

1. Intergovernmental consultation around the

NSDF

• S 13(1) “after consultation with other

organs of state”

• more explicit role for provincial and local

government

• more transparency in consultation

2. Alignment with Municipal Systems Act

Alignment with the Municipal Systems Act

• WCape wants to implement a ‘plan-led system’ (NDP 201, 251)

o land use control in line with MSDFs

o municipality may deviate but in terms of a transparent

procedure

• problem: Systems Act made MSDF part of IDP

• IDP is broad strategic document, reviewed every year in

participatory process, ill-suited for land use management

• Consequence: WCape cannot insist on transparency in

deviation from SDFs (hence s 22(2) SPLUMB)

• Recommendation: SPLUMB to remove MSDFs from IDP or

address overlap otherwise

Review cycles

• SPLUMB insists on 5 year review cycles for PSDF, MSDF and

land use schemes

• Current WCape Bill insists on 10 year review cycles for PSDF,

MSDF and zoning schemes

• Why not permit provincial govt. to determine review cycles of

PSDF, MSDF and land use scheme?

Avoid overlapping IGR schemes

• SPLUMB: monitoring, consultation and dispute resolution

mechanisms between provincial govt. and municipalities

o e.g. around support (s 9(1)), MSDFs (S 22(3), land use

scheme (S 27(3)) etc.

• WCape Bill provides for the same

o allow provinces to design provincial-local interface

o SPLUMB to provide fall-back position only

Land use schemes

Example of overlapping regulation that may cause confusion

•SPLUMB

o S 25(2): Land use Scheme = regulations, map + register

o S 28 on application, ‘amend land use scheme by

rezoning’

•WCape Bill:

o zoning scheme = by-law, map + register

o distinguishes actual use and permitted use municipality

amends permitted use by rezoning, it doesn’t amend the

entire land use scheme Municipal Property Rates Act: differentiate between properties on basis of actual use and permitted use

Land use management

• SPLUMB: ‘municipal planning tribunal’

• S 37(3): if council fails to appoint Premier appoints ‘on behalf

of the council’ and determines terms and conditions

o amounts to intervention (s 139 Constitution)

Can provincial govts. take land use decisions?

• Yes, part of ‘provincial planning’ (confirmed by High Court)

• but always ‘alongside’ municipal decision, never instead of

municipal decision (Constitutional Court in Maccsands)

• SPLUMB should recognise that in S 5(2)

• S 5(1)(c) municipal planning excludes control and regulation of

land use ‘where the nature, scale and intensity’ does not affect

provincial planning or national interest’

o suggests that national/provincial then controls and

regulates instead of local government but provincial govt.

controls and regulates in addition to local government

Can national govt. take land use decisions?

• Yes, but alongside municipal and provincial decision making,

not instead of

• When necessary in national interest

• S 52(1): referral to Minister when:

o impacts on exclusive national functions

o strategic national policy objectives

o functional areas of national govt.

• S 52(2): if outcome is prejudicial to -

o interests of one or more provinces/country

o effective performance of functions

• Minister joins application or decides the application

Problem areas in s 52

• S 52(1): referral to Minister when:

o impacts on exclusive national functions

o strategic national policy objectives

o functional areas of national govt.

• S 52(2): if outcome is prejudicial to -

o interests of one or more provinces/country

o effective performance of functions

• Minister joins application or decides the application

Problem areas in s 52

• S 52(1): referral to Minister when:

o impacts on exclusive national functions

o strategic national policy objectives

o functional areas of national govt.

• S 52(2): if outcome is prejudicial to -

o interests of one or more provinces/country

o effective performance of functions

• Minister joins application or decides the application

Needs to be narrowed down

Not in line with principle in Maccsands: each sphere takes decisions within its own competence

What Courts have said about multiple approvals

• Approval in terms of one law doesn’t mean that the activity

may go ahead, other laws may apply.

• If a particular activity needs more than one approval in terms of

different legislation not a legal or constitutional problem

• Maccsands: This principle also applies to overlap between

national, provincial and municipal authority

• This causes red tape but must be solved by creative

alignment, combining processes, joint authorisations etc., but

not by removing one sphere’s constitutional authority

Appeals

• SPLUMB:

o appeal from tribunal to council/executive

o 3rd party may appeal but no changes to rights that have

accrued why would 3rd party appeal unless decision is

suspended?

• WCape Bill:

o lodge objection with MEC who issues recommendation back

to municipality

o can objector still / also lodge internal appeal within

municipality ito s 62 Municipal Systems Act?

Recommendation

• Follow through on Schedule 1, item (z): ‘provincial legislation to

provide for appeal and review procedures’

• Instead, ensure that duplication of section 62 Municipal

Systems Act is addressed amend Municipal Systems Act to

that effect

Schedule 1

• Some contradict text of Bill

o Item (w) and s 40(9): who determines timeframes?

• Some overlap each other

o Items (f) and (g)(ii)

o Items (g) and (l)

• Broadness is hard to square with Bill

o Item (e): “single uniform system for land and development”

Many encroach on municipal planning

• Item (f): establish procedures for rezoning

• Item (g): determine procedures

• Item (i): provide form and content of applications

• Item (m): provide a uniform form and content of determinations

and conditions of approval

• Item (o): provide procedures for amendment of applications,

decision and conditions

• Item

Suggested principle

• SPLUMB to provide framework for national-provincial interface

and principles for provincial and municipal planning

• Leave detail to provincial legislation and by-laws

• SPLUMB to provide detailed rules to fill gaps in regulation of

provincial and municipal planning

• However, if there is no gap no need for detailed rules

• How to do both of that in one law? provide detail in:

o model by-laws;

o provisions or regulations that apply until

replaced by relevant provincial law;

o provisions or regulations that apply until

replaced by relevant municipal law;

but not in SPLUMB itself.

Thank you