Upload
phoebe-parsons
View
216
Download
2
Embed Size (px)
Citation preview
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