SUBMISSION TO THE PORTFOLIO COMMITTEE ON AGRICULTURE AND LAND AFFAIRS ON THE LAND USE MANAGEMENT BILL

30 JULY 2008

SETTING THE CONTEXT OF THE COMMENTS

South African Planning Institute

• Voluntary body representing over 1500 town and regional planners

• The only body of its kind representing planners from all sectors throughout the country

• Recognised and regularly engages with national, provincial and local government in a consultative and constructive manner

• Part of the South African transformation process

Concept of Development Planning and Land Use Management

• Schedule 4 of Constitution reference is made to “Regional Planning and Development” and “Urban and Rural Development”as concurrent competencies

• Schedule 5 refers to “Provincial Planning” as exclusive competence

• “Municipal Planning” while a local government competence, is also considered in Schedule 4 (Part B) to be a concurrent national and provincial legislature competence

• Constitution does not mention Land or its management - assumed to be a national competence

• Significant - planning is fundamentally about decisions around land use but the roles and responsibilities of government remain legislatively undefined

Development Planning and Integrated Development Plans

• Municipal Systems Act of 2000 requires IDPs to have Spatial Development Frameworks and Land Use Management Systems as part of the such frameworks

• But how land is to be regulated and managed has not been resolved, decision-making around land use is mired in contradictory and confusing processes.

Characteristics of Planning and Regulatory Environment

• Planning functions and definitions are fragmented so the concept is understood differently in all spheres of government as well as the private sector

• While there are attempts to establish co-ordination in spatial planning between sectors, there is uncertainty as to the manner in which such planning relates to the day-to-day management of land development and management

• Administrative mechanisms which deal with the various aspects of land use management are cumbersome, onerous and time consuming

Negative Impact of Regulatory Environment

• Impedes economic investment in land development and fails to establish sufficient certainty for investors

• Fails to address the segregated and unequal spatial patterns inherited from apartheid

• Does not balance the country’s socio-economic needs with those of environmental and heritage conservation

• Land use management system is based on a combination of apartheid-era legislation and new legisaltion - has not only added to bureaucracy and delays, but also increased the incentives for corruption of officials vested with the power of approving applications. Also created opportunities for developers to by-pass one set of authorities (municipality) for another (province) leading to fragmentation in the process

The current situation puts considerable strain on the processes and instruments of co-operative governance in the one area in which co-operation is especially important

The various government actors are unsure of each others’ roles and the private and community sectors are unsurprisingly confused and frustrated

This is not a situation that is conducive either to promoting appropriate investment in land development or to concerted efforts to redress apartheid’s spatial legacy

SPECIFIC COMMENTS ON THE BILL

Development Planning and Intergovernmental Relations

• No reference to the Intergovermental Relations Framework Act and none of the bodies proposed in the Bill relate to the structures established in the Act

• Ignores the co-operative governance procedures provided for in the Municipal Systems Act

• Spatial development frameworks are being regulated by dplg currently and it is clear that IDPs, Spatial Development Frameworks and Land-Use Management have to be managed as part of one continuum

• Spatial planning and land-use not only about land. Also about how the factors of development including social, economic, environment, and infrastructure are related and expressed in physical outcomes that serve particular policy objectives. It therefore requires a cross-cutting regulatory and management process which the Bill does not provide

Removal of Powers from Elected Officials

• Takes away power from elected councillors and MECs. Nowhere in any part of the Bill is provision made for elected officials to play either an executive or an oversight role in decision-making

• All powers of land use decision-making in provinces and are delegated to Municipal Land Use Committees, Provincial Tribunals and Land Use Regulators. Only the National Minister is allocated some role

• Municipal legislation identifies an important role for elected officials to be the ultimate arbiters of decisions emerging from within their organisations

• Also contrary to the intentions of the Public Finance Management Act, the Municipal Finance Management Act

• Might well be unconstitutional

Sustainable Utilisation of Land

• No guidance on the sustainable utilisation of land as a resource. Does not recognise the difference between land use management as defined in the 2001 White Paper and strategic spatial planning.

• The objective is to deal with land use management which has various components – policy, procedures, registers and maps, but focuses mainly on procedures which themselves are confusing and non-sensical because it does not know difference between a land use scheme and a land use management system.

Promoting Parallel Administrative Systems- Post Apartheid Legislation

• Does not recognise the land use management impacts of legislation such as NEMA, HRA, NLTA and ESTA are problematic as they add to the land use management confusion

• It does not merge the procedural aspects of land use management - promotes parallel systems. Each piece of legislation sets up its own process for considering development approval instead of allowing any land development application to be managed through a single process by one team of officials in an integrated manner

• No clarity on what needs to be done according to what process and time frame - some reference to 90 days

• Expects DMs to have LUMS. Was never a role envisaged in either the Constitution or in the Municipal Systems Act.

Dealing with Complexities Created by Apartheid Legislation

• Does not deal with or refer to the complexities created by the continued existence of apartheid-era planning legislation such as LEFTEA.

• Does not refer to the legislation pertaining to Agriculture, Building Regulations, water and roads for example.

• It also does not deal with the implications of the Subdivision of Agricultural Land Act being declared unconstitutional

Providing Direction to Provinces

• Does not deal with the provisions of Section 146 of the Constitution which enables it give direction to provinces in their legislative processes by introducing uniform land use regulatory frameworks

• Does not mention the repeal of the apartheid-era provincial ordinances, the basis on which spatial planning at local government occurs even though the Bill assumes that land use management processes are a national competence

KEY CONSIDERATIONS

• By its nature, land development and use is contentious as there are always competing demands and interests

• Require effective systems to be established and managed

• There is an important link between strategic development, spatial planning (IDPs) and LUMS

• Land administration comprises 70% of the work that municipalities do on a day to day basis

• Linked to service delivery, township establishment, processing of development applications for rezoning, subdivision and consolidation of properties, managing and setting property rates, and administering building and other regulations

• Critical that proper municipal-wide LUMS are in place to enable effective land administration - function not allocated or defined in Constitution

WHAT IS REQUIRED?

National Spatial Planning Act

Establish a uniform system of spatial planning across the country

• Define role of each sphere in Spatial Planning - provide clarity to Schedules 4 and 5 of the Constitution

• Establish a system of delegations so that each sphere is able to take decisions autonomously but within a framework

• Establish consistent terminology and definitions for legislation

• Create common threads and cycles within assessment process - to remove duplication and to provide simplified and predictable development assessments procedures

• Define minimum requirements for different categories of applications -an approach that differentiates between strategic, simple and complex applications. Accompanied by defined time frames for assessments

• Provide for Monitoring and Evaluation in land use management

Spatial Categories of Land

• Define the role of the various spheres of government by disaggregating and describing land in terms of “geographic” (or spatial) categories. For example:

– Land for human settlement (such as housing, manufacturing and recreation)

– Land for primary production (such as agriculture, forestry, mining)

– Land for ecosystems, bio-diversity and natural heritage

• To disaggregate the word “land” into definable categories presents an opportunity to help to clarify the roles of the three spheres of government in its management and administration.

Principle of Devolution

• Each sphere is expected to act co-operatively, with the overall role of national government well-recognised. But Section 156(4) of the Constitution allows for Principle of Devolution.

• The other spheres, insofar as they have some responsibility should have mostly legislative and policy functions.

• National government being the custodian of land should:

– Establish the criteria for using land for settlement, primary production and eco-system protection

– Provide the mechanisms needed to ensure co-operative and accountable government should be provided by national government

– Give expression to the above two points in national planning legislation • Provinces should have:

– The legislative role to approve the development plans of all municipalities including cities

– An overall policy formulation role and a support role for those municipalities which are unable to undertake the function on their own

– A mediating role in the case of land use management disputes

Principles of Land Use Management

Legislation dealing with LUMS should promote:

• Clear spatial policies and plans that have integrity and are credible

• Fast and effective in dealing with development applications

• Single governance authority and process with clear steps and timeframes for final decision-making

• Fair and objective processes, in the public interest, and insulated from undue influence and pressure

• Flexibility to address development applications of different type and scale, while being predictable

• Responsiveness to the needs of a growing economy, sensitivity to the natural environment, and the ability of the public sector to provide and maintain adequate infrastructure and services

More specific aspects of principles are in the submission

RECOMMENDED ACTION

• SAPI believes that the Bill does not meet the objectives of the country as established in the Constitution and

– undermines the concept of co-operative governance – impedes economic investment– fails to address the segregated and unequal spatial patterns – does not balance the country’s socio-economic needs with those of

environmental and heritage conservation• The country requires legislation which provides coherent

definitions, spells out the role of each sphere clearly and provides guidance to sector departments, provinces and municipalities

• In this context, we recommend that the Bill be referred to the Department of Land Affairs for re-drafting

Investigation

• A recent Government study included interviews with national 7 national sector departments, various sector departments in 6 provinces, 3 metropolitan municipalities, 3 Category B municipalities and various planning experts. Most called for the Bill either to be scrapped or redrafted

• This Bill has been in the process for almost 7 years and reflects a failure in governance. SAPI calls upon Parliament to investigate how the DLA has been able to undermine the Constitution, Government and Government policy in such a blatant way

• The questions that need answering are:

– What political oversight was provided by the former Minister, the present Minister and Deputy Minister?

– What reports were provided by the senior officials in the Chief Directorate: Spatial Planning and Information?

– Why has it taken this long to propose inappropriate and meaningless legislation?– Why have the proposals made by various government departments, NGOs and

private sector bodies simply been ignored?

We thank you for this opportunity to comment on the Land Use Management Bill.

SAPI prides itself as an organisation that actively participates in the transformation of our country and one which contributes towards our shared future prosperity.

In that context we plead that this Bill not be passed because it will undermine all attempts towards social and economic transformation.

Ashraf Adam, SAPI President