head of department piet van zyl reference: 15/2 of department piet van zyl reference: 15/3/3...

Head of Department

Piet van Zyl

Reference: 15/3/3

Reference: 15/2

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CIRCULAR: EADP 0023/2014

ALL MAYORS, MUNICIPAL MANAGERS AND CHIEF TOWN PLANNERS, ALL WESTERN

CAPE PROVINCIAL HEADS OF DEPARTMENT, SALGA, SAPI, SACPLAN, AND ALL

ORGANISEATIONS AND PRIVATE-SECTOR BODIES INVOLVED IN THE LAND USE

PLANNING SECTOR IN THE WESTERN CAPE

WESTERN CAPE GOVERNMENT COMMENT ON THE PUBLISHED PROPOSED SPATIAL

PLANNING AND LAND USE MANAGEMENT ACT, 2013 (ACT 16 OF 2013) (SPLUMA)

REGULATIONS

1. PURPOSE

1.1. The purpose of this External Circular is to provide all officials, private sector bodies and other

role-players involved in spatial and land use planning in the Western Cape with:

a. An update on the latest developments relating to the implementation of the national

Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013) (SPLUMA); and

b. The Western Cape Government’s (WCG’s) comments on the proposed SPLUMA

Regulations.

2. BACKGROUND

2.1. As indicated in a previous Departmental Circular (Circular EADP 0021/2014), the Department

of Environmental Affairs and Development Planning (the Department) requested all

Municipalities:

a. NOT to submit their Municipal Land Use Planning Bylaws to their respective Councils for final

adoption, until further clarity on the proposed SPLUMA Regulations can be obtained from

NDRD&LR;

b. To continue with their SPLUMA and LUPA readiness programmes;

c. To provide the Department with comments received through their advertisement of the

Municipal Land Use Planning Bylaws; and

d. To critically review the proposed SPLUMA Regulations and to copy the Department in on

any comments submitted to NDRD&LR.

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In addition, the Department committed itself to communicating any developments in this

regard to the Western Cape Municipalities and to provide the WCG’s comments on the

draft SPLUMA Regulations to all municipalities for their information and support.

3. SPLUMA IMPLEMENTATION DATE

3.1. As indicated in Departmental Circular EADP 0015/2014, the NDRD&LR had previously

communicated that it planned to implement SPLUMA on 1 September 2014. Minister Anton

Bredell submitted a further letter to the national Minister of Rural Development and Land

Reform (and copied to the national Minister of Cooperative Affairs and Development

Planning) on 26 August 2014, again requesting confirmation that the 1 September 2014

implementation date for SPLUMA is not happening. The Department awaits a response.

3.2. During a meeting held on 19 August 2014 between the Department, representatives from the

City of Cape Town and representatives from the NDRD&LR, the implementation date of

SPLUMA was discussed in depth.

3.3. The discussion concluded that the 1 September 2014 implementation date of SPLUMA WILL

NOT happen.

3.4. It was further concluded that a new implementation date for SPLUMA HAS NOT been and WILL

NOT be set at this time. Instead, an alternative approach is being formulated by NDRD&LR.

3.5. This approach will involve the establishment of a set of steps or milestones that need to be

achieved by each municipality and province before SPLUMA can be implemented. The

progress of each municipality in achieving these steps will be tracked by the NDRD&LR in

conjunction with the Provincial Department responsible for planning (in the case of the

Western Cape, it will be my Department of Environmental Affairs and Development Planning).

3.6. The NDRD&LR and the Provincial Department responsible for planning should jointly decide

when SPLUMA can be implemented in that Province, based on the progress made by that

Province’s municipalities.

3.7. Although this alternative approach must still be officially confirmed by the NDRD&LR, based on

the discussions held with them last week it is welcomed by the Department as it will also enable

a staggered implementation of SPLUMA, which is provide for in the Act and will be based on

municipal readiness to implement the Act.

4. WESTERN CAPE GOVERNMENT’S COMMENT ON THE PROPOSED SPLUMA REGULATIONS

4.1. As you are aware, on 4 July 2014 the proposed SPLUMA Regulations were published by the

NDRD&LR for public comment. The Department, in conjunction with the Department of the

Premier, have been drafting the Western Cape Government’s comment.

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4.2. The drafting process involved a number of engagements with key stakeholders including senior

representatives from the NDRD&LR, the City of Cape Town (CoCT), and representatives from a

number of organisations representing the private sector. In addition, the Department

accompanied the Department of Rural Development and Land Reform: Western Cape

(DRD&LR: WC) when they met with municipal representatives on 5 and 7 August 2014.

4.3. The WCG’s comments on the SPLUMA Regulations are attached as a separate Annexure, for

your information. The Department encourages all Municipalities and other stakeholders to

review these comments and to use them to shape your own. The Department has also

requested the NDRD&LR a two-week extension of the deadline for comments (i.e. until 18

September 2014), to enable all the interested and affected parties an opportunity to submit

comments after also having had sight of the assessment made by the WCG. Whilst the

extension has not yet been granted, municipalities are urged to submit their comments within

the published timeframe.

5. STANDARD DRAFT MUNICIPAL LAND USE PLANNING BYLAWS

5.1. As indicated above, Circular EADP 0021/2014 requested that Municipalities hold off on

adopting their Municipal Land Use Planning Bylaws until further clarity on the proposed SPLUMA

Regulations could be obtained. As this clarity has not yet been obtained, the Department

would like to reiterate the request that Municipalities NOT submit their Municipal Land Use

Planning Bylaws to your respective Council’s for final adoption.

5.2. In the interim, the Department continues to incorporate the comments received from

municipalities via their public participation process into the Standard Draft Municipal Land Use

Planning Bylaw. The Department would like to circulate the revised Standard Draft Municipal

Land Use Planning Bylaw by the end of the year. However this date is highly dependent on

when the SPLUMA Regulations will be finalised and, more importantly, the content of these

regulations. The content of the final SPLUMA Regulations will have a significant bearing on the

content of the Department’s Standard Draft Municipal Land Use Planning Bylaw.

6. CONCLUSION

6.1. The Department encourages you to utilise the WCG’s comments on the SPLUMA Regulations

as an input into your own comments – individual organisations or municipalities are free to

submit their own comments or, if they wish, submit the WCG’s comments to the NDRD&LR

under cover of a letter of support/endorsement from your organisation. The Department would

like to thank you for working closely with us in this regard. The alternative implementation

approach being proposed by the NDRD&LR will require that we maintain close collaboration

on this matter into the future.

HEAD OF DEPARTMENT

DATE: 28 August 2014

29 AUGUST 2014 DRAFT CONTENT: FINAL COMMENTS WILL BE CIRCULATED IN DUE COURSE

29 AUGUST 2014 DRAFT CONTENT FOR ANNEXURE TO LETTER SUBMITTING COMMENTS

COMMENTS ON DRAFT SPATIAL PLANNING AND LAND USE MANAGEMENT REGULATIONS IN

TERMS OF THE SPATIAL PLANNING AND LAND USE MANAGEMENT ACT, 2013 (ACT 16 OF 2013)

1. The draft Spatial Planning and Land Use Management Regulations, (“the Regulations”), in terms

of Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013), (“the Act”), were

published by the Minister of Rural Development and Land Reform for public comment.

Comments are due by 4 September 2014.

2. A draft version of the Regulations (“the March 2014 Draft Regulations”) was previously made

available to provinces and municipalities for comment on 28 March 2014. On 7 April 2014, the

Provincial Department of Environmental Affairs and Development Planning submitted comments

thereon. Many of the comments and concerns raised on the previous draft have not been

addressed in the published version of the Regulations and are repeated herein.

3. The Regulations provide detailed procedures in respect of the following:

3.1. the adoption and amendment of zoning schemes (land use schemes);

3.2. the processing and consideration of land development applications and appeals in respect

thereof, including compulsory forms, timeframes, internal structures and processes, the

compulsory categorisation of applications and delegation of powers of decision–making in

respect thereof;

3.3. the publication and notice procedures in respect of applications, appeals and decisions in

respect thereof, including timeframes and the form and content of notices;

3.4. the establishment and operating procedures of Municipal Planning Tribunals (“MPT”),

Appeal Authorities and Appeal Tribunals including timeframes, internal processes and the

delegation of powers of decision–making in respect thereof.

4. In relation to the municipal planning function the Constitutional Court has found that “planning”

in the context of municipal affairs includes the zoning of land and the establishment of

townships. In that context, the term is commonly used to define the control and regulation of

the use of land. (Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and

Others 2010 (6) SA 182 (CC), par 57). The matters listed in paragraph 3 above which are covered

in the Regulations are aimed at the regulation and control of land use and therefore forms part

of municipal planning.

5. Municipal planning is a concurrent national and provincial legislative competence listed in

Schedule 4B of the Constitution. The Regulations may therefore introduce measures that

support and strengthen the capacity of municipalities to manage their own affairs, to exercise

their powers and to perform their functions and may regulate the exercise by municipalities of

their executive authority to see to the effective performance by municipalities of their municipal

planning function listed in Schedule 4 within the meaning of sections 154 and 155(7) of the

Constitution.


6. The Constitutional Court has held that the powers in s 155(7) are “hands-off” and that it does

not represent a substantial power in itself, certainly not a power to control local government

affairs, but has reference to other, broader powers of supervision and control.

7. The court held that the monitoring power does not bestow additional or residual powers of

national or provincial intrusion on the domain of local government, beyond the power to

measure or test at intervals local government compliance with national and provincial legislative

directives or with the Constitution itself. The court confirmed that the Constitution seeks hereby

to realise a structure for local government that, on the one hand, reveals a concern for the

autonomy and integrity of local government and prescribes a hands-off relationship between

local government and other spheres of government and, on the other, acknowledges the

requirement that other spheres of government monitor local government functioning and

intervene where such functioning is deficient or defective in a manner that compromises this

autonomy.

8. It follows that “regulating” in section 155(7) means creating norms and guidelines for the

exercise of a power or the performance of a function. It does not mean the usurpation of the

power or the performance of the function itself. This is because the power of regulation is

afforded to national and provincial governments in order to see to the effective performance by

municipalities of their functions. (Minister of Local Government, Environmental Affairs and

Development Planning, Western Cape v Habitat Council and Others 2014 (4) SA 437 (CC), par 20).

9. In terms of section 164 of the Constitution all matters concerning local government not dealt

with under the Constitution may be prescribed by national or provincial legislation, the latter

within the framework of national legislation. The function of national legislation is restricted to

regulation. The term “regulate” connotes a broad managing or controlling rather than a direct

authorisation function.

10. The Regulations may therefore create norms and guidelines for the exercise of a power or the

performance of municipal planning functions and broad managing or controlling measures for

municipal planning. The aim of such regulation should be to foster the autonomy of local

government.

COMMENTS

11. The Regulations are not supported for the following reasons as set out in more detail in the

comments submitted herein:

11.1. The Regulations are in some respects ultra vires the Act.

11.2. The Regulations impede and compromise the exercise by municipalities of their

functions and provide for intervention in local government and the interpretation of

laws in a manner not authorised by the Constitution.

11.3. The Regulations do not distinguish between the legislative nature of scheme regulations

and policy.

11.4. The Regulations contain concepts, processes and terminology that are not used in most

provinces and in respect of which uniformity in the country is not necessary. These


concepts and processes will confuse and disrupt the planning system and industry in the

Province.

11.5. The Regulations prescribe complicated compulsory hearing processes which do not give

effect to the principle of efficiency prescribed in terms of the Act.

11.6. The Regulations do not contain suitable conflict resolution procedures.

11.7. The Regulations do not differentiate in the implementation of the Act and Regulations

between municipalities and provinces with varying capacity and do not provide for a

suitable exemption from the application of the Regulations.

11.8. The Regulations provide for unreasonable short timeframes.

ULTRA VIRES THE ACT

The long title

12. The long title of the Act indicates that the Act is intended to provide a framework for spatial

planning and land use management. The Regulations should therefore also provide for a

framework. From the detailed content of the Regulations summarised in paragraph 3 it is clear

that the Regulations do not provide a framework but regulate in detail the manner in which

municipalities must exercise their powers over municipal planning matters. The Regulations are

therefore ultra vires the Act.

Regulation 41: Decision of municipality

13. Regulation 42(1)(m) forces a municipality to establish a joint appeal tribunal if it established a

joint MPT. This leaves a municipality with no discretion in this regard, which impermissibly

trenches upon the power of municipalities to exercise legislative and executive control over

municipal planning. The municipality may decide to participate in a joint MPT but would want to

keep its appeal powers to itself, this option should therefore not be precluded. This provision is

also ultra vires the Act as section 51(2) provides a discretion for municipalities on whether an

outside body should assume the obligations of the executive authority in respect of appeals.

Regulation 42(1)(m) restricts the discretion provided in the Act and should be reworded to

“may” and not “must”.

Regulation 52: Categories of applications

14. Regulation 52 appears to be a duplication of Regulation 45 of the March 2014 Draft Regulations.

The comment submitted on 7 April 2014 is therefore reiterated.

15. Section 35(2) of the Act provides that a municipality may authorise an employee to consider

certain applications. Discretion is given to municipalities to delegate the powers and duties to

consider and determine certain applications to an official. It is not an obligation. It then follows

that the categorisation of applications between those that must be considered by an employee

and those that must be considered by the Tribunal is not compulsory.

16. Regulation 52(2) categorises applications by default on behalf of municipalities that have not

done so themselves. If a municipality has exercised the discretion provided in section 35(2) of

the Act not to delegate applications to an employee, the Regulations cannot compel it to do so.

This Regulation is ultra vires section 35(2) of the Act which allows for a discretion. It is suggested

that Regulation 52(1) be omitted from the Regulations or amended to read as follows: “In


categorising applications a municipality may apply the categorisation set out in sections 52(2)

and (3) of the Act”.

17. It should also be noted that there may be many more categorisation options determined by

whether an application is opposed, whether it is in line with a SDF or any other policy, or if an

application is recommended for refusal or approval. The categorisation of applications in the

Regulations should be incorporated in a guideline or standard draft by-law.

Regulation 72: Simultaneous submission of applications

18. Regulation 72(1)(c) compels a municipality to align processes of applications under the Act with

processes of related applications under other laws or to issue integrated decisions. This is

contrary to section 30(1) of the Act which allows for a discretion for a municipality or organ of

state whether their respective powers will be exercised jointly by issuing integrated or separate

authorisations. Regulation 72(1) should be omitted.

Regulation 86: Decisions of tribunal

19. Regulation 86(3) provides for the types of decisions that the MPT may make which is partly a

repetition of section 40(7) of the Act but appears to be more restrictive. This would be ultra vires

the Act as a MPT can make any decision regarding all matters necessary or incidental to the

performance of its functions in terms of section 40 of the Act and is not limited to the decisions

in subregulation (3). This Regulation should be omitted.

Regulation 87: Conditions determined by tribunal

20. Regulation 87(1) appears to duplicate the numbering of (a), (b), (c) and (d). The second (b)

provides for, “the amendment of the municipality’s scheme”. This provision is ultra vires sections

28(4) and 41(2)(d) of the Act which provide that the MPT may not approve an amendment of the

scheme regulations. The scheme regulations have the force of law in terms of sections 26 and

32(1) of the Act and therefore the council which has legislative authority must approve a

legislative amendment of the scheme regulations in terms of section 28(4) and section 14 of the

Local Government: Municipal Systems Act, 2000 (Act 32 of 2000), (“MSA”).

Regulation 88: Non-compliance with conditions determined by tribunal

21. Regulation 88(2) provides that if an applicant does not comply with a condition of an approval

the decision of the tribunal will be deemed to have been refused and all rights are revoked. This

provision appears to be contrary to the Act. Section 43 of the Act provides that a conditional

approval lapses if the applicant does not comply with the condition within 5 years or the period

mentioned in the condition. The period mentioned in the condition may together with any

extension that may be granted, not exceed five years. Regulation 88(1)(b) does not include the

fact that the period determined in a condition may not exceed 5 years and appears to be

contrary to the Act.


Regulation 89: Approval of land development application that requires amendment of land

use scheme

Regulation 89 provides that if an approval of an application result in an amendment of the land

use scheme, the land use scheme must be amended. This provision is ultra vires sections 28(4)

and section 41(2)(d) of the Act. Refer to the comments herein on Regulation 87.

22. How can the MPT, a statutory body with members who are not councillors, make a decision

contrary to the laws that regulate zoning and land use and thereby bind the legislative authority

of the council to amend the scheme regulations? The MPT cannot pre-empt such a decision or

bind the council in this way.

23. The MPT may only amend the land use scheme through rezoning as contemplated in section

28(1) or deviate from the parameters in the scheme regulations as provided for in section 41(2)

(d) of the Act. If a portion of land is rezoned, the zoning scheme map must be amended. This

Regulation is however suggesting an amendment to the scheme regulations, which can only be

effected by the council. The scheme regulations must first be amended and only then may the

MPT approve the application. Regulation 89 should be omitted from the Regulations.

INCONSISTENT WITH THE CONSTITUTION

Impeding and compromising the exercise by municipalities of their functions

24. The detailed provisions of the Regulations as summarised in paragraph 3 impede and

compromise the exercise by municipalities of their functions. In our view these provisions

impermissibly trench upon the power of municipalities to exercise legislative and executive

control over municipal planning, i.e. they exceed the bounds of national support and supervision

permitted by sections 154(1) and 155(7) of the Constitution.

25. The Regulations go too far in regulating the manner in which municipalities must exercise their

powers over municipal planning matters. Instead of providing for norms, guidelines and broad

managing or controlling provisions as authorised in terms of the Constitution, the Regulations

micro-manage municipal planning.

26. Instead of fostering the autonomy of local government, the Regulations are hampering the

autonomy of local government. Currently municipalities cannot finalise their municipal planning

by-laws until the Regulations are finalised as they will have to wait for finalisation of the detailed

timeframes and internal processes and structures created through the Regulations to ensure

that their by-laws are not in conflict with the Regulations. National legislation may not micro-

manage municipal planning in this way.

27. In terms of section 153 of the Constitution a municipality must manage and structure its

administration. A municipality has the right to make by-laws for the matters that it may

administer. The Regulations may not usurp the legislative function of municipalities in this

regard by dictating in detail how it should manage and structure its administration in respect of

municipal planning matters. The national sphere cannot by legislation give itself the power to

exercise executive municipal powers or the right to administer municipal affairs as is done in

terms of the Regulations.

28. The detailed provisions referred to in paragraph 3 should be amended to reflect norms,

guidelines and broad managing or controlling provisions.


29. The detailed provisions of the Regulations may further be converted to a standard draft by-law.

The Minister may in terms of section 14 of the MSA make standard draft by-laws to assist

municipalities which may be adopted by municipalities in terms of their legislative procedures.

30. The detailed provisions of the Regulations set out below are examples of those provisions that

exceed the bounds of national support and supervision permitted by the Constitution. These

Regulations provide for detailed procedures in respect of how municipalities must perform their

functions. These functions are part of municipal planning which must be regulated and

determined by municipalities and should not be regulated by national regulations in such detail.

Regulation 1: Definitions

31. The internal administration and structures of the municipality should be regulated by the

municipality and not by national regulations in such detail as provided in the Regulations.

Therefore the definitions for “administrator”, “land development officer” and “registrar” should

not be included in the Regulations.

Regulation 2: Electronic submissions

32. Regulation 2 prescribes procedures for the submission of electronic documents and the days and

hours when municipalities must accept such submissions. Instead of providing detailed

procedures in respect of the electronic submission of documents, the Regulations should be

revised to include a standard that municipalities must make provision in their planning by-laws

or procedures to accept applications and comments by email or fax in the manner determined

by a municipality. Municipalities should in their determinations make it clear how such

applications or submissions will be accepted and on which days and during which hours.

Regulation 22: Preparation of land use scheme

33. Regulation 22 prescribes various aspects that must be taken into account when a land use

scheme is prepared.

34. Regulation 22(3) requires the municipality to make use of zones prescribed in Annexure B to the

Regulations. Annexure B is not available yet. The Regulations should not require municipalities

to make use of the specific zones referred to in Annexure B when preparing a land use scheme.

This requirement will lead to:

34.1. preventing a municipality from requiring procedures in addition to those imposed by

national or provincial legislation;

34.2. preventing a municipality from having regard to further matters which it considers

relevant; and

34.3. replacing or removing the discretion vested in municipalities by requiring a particular

decision in a particular situation.

35. It is therefore regarded as an impermissible intrusion on municipal planning functions. In

addition, it must be noted that the City of Cape Town recently approved new scheme regulations

and various other municipalities are at an advanced stage with preparing new zoning schemes. If

these scheme regulations will have to be revised again to make provision for the zones in

Annexure B it will have huge cost implications for the City and other municipalities.

36. The Regulations may provide norms and standards and broad provisions in this regard. For

instance it may provide as a minimum standard that the scheme regulations must at least divide

a municipality into residential, commercial, and industrial type zones that are separate from one


another, with the use of property within each district being reasonably uniform. The Regulations

may further provide that zones must at least include specific requirements as to the type of

buildings allowed, location of service infrastructure, restrictions on accessory buildings, building

setbacks from the streets and other boundaries, size and height of buildings, number of rooms,

floor space or area.

Regulation 31: Objections and representations

37. Regulation 31(1) provides that objections must be submitted in the form provided in Annexure C

to the Regulations. National legislation should not prescribe the way in which a notice of

objection to a land use scheme should be submitted. Municipalities should provide for their own

commenting and objection procedures which are informed by local considerations. As a

minimum standard the Regulations may provide that municipalities must allow interested

persons to submit comments and objections to the land use scheme which must be considered

by a municipality before adopting the land use scheme. It is suggested that the following be

omitted from Regulation 31(1): “[in the format as prescribed in Annexure C]”.

Regulation 53: Hearing of applications by tribunal and land development officer

38. The heading of Regulation 53 refers to “Hearing of applications…..”. It creates the impression

that there is no other option but to follow the categorisation of applications as provided for in

the Regulations. In light of the comments on the formal hearing process below, it is suggested

that “Hearing” be replaced with “Consideration” in the heading of Regulation 53.

39. Regulation 53 micro-manages municipalities and their administrative and municipal planning

competencies. Section 35 of the Act provides that applications must be categorised only if a

municipality decides to appoint an authorised official to consider and determine certain

categories of applications. The Regulation creates the impression that there should always be a

categorisation of applications and that it should follow the division as set out in the Regulation.

Regulation 53 should rather make provision for two aspects, firstly, that a municipality must

make a decision whether or not an authorised official will be appointed to consider and

determine certain land development applications and secondly, if so, guidance on what those

categories may be.

Regulation 54: Land development officer

40. The post designations of land development officer, administrator and registrar are all new to

municipalities. Municipalities are currently not structured in this manner and all these posts will

have to be created as new positions whilst there are already employees dealing with land use

applications and the administration in respect thereof in most municipalities. The Regulations

should not prescribe and micro-manage municipal staff structures to this extent. The

establishment of these new posts will have huge cost implications for municipalities. Has a

regulatory impact assessment been conducted with regard to the cost implications of the

Regulations? If so the outcome should be made available to municipalities. We are of the view

that the internal structures, staff establishment and operating procedures of municipalities

should be determined by municipalities.


Regulation 59: Chairperson of tribunal

41. Regulation 59 directs the work and administration of the tribunal and provides for the registrar

and administrator to assist the chairperson. A specific administrative structure should not be

forced onto a municipality. A municipality should be allowed to manage and structure its own

administration according to its capacity, budget and the needs of the community. Regulation

59(2) should be amended to allow the municipality and MPT to adopt their own rules and

procedures in respect of the processing of applications and the conduct of meetings.

Regulation 61: Powers and duties of administrator

42. The post of administrator should not be forced on a municipality that may already have

administrative staff in the town planning section. Internal procedures and the structure of staff

establishments should be left to municipalities to decide upon. It is suggested that Regulation

61(1) be replaced by the following: “A municipal council must provide administrative support to

the Tribunal to fulfil the following functions:”

43. The functions should further be described without compelling municipalities to follow formal

hearing proceedings.

Regulation 62: Land development registrar

44. Regulation 62(3) makes provision for the appointment of a land development management

registrar. Refer to the comments above on Regulations 59 and 61 which are also applicable to

this Regulation. This Regulation may be problematic in smaller municipalities or where there are

not many land development applications. Regulation 62(3) should be omitted from the

Regulations.

Regulation 65: Filing of documents

45. Regulation 65 provides for the formal filing of applications with the MPT similar to the process

for filing court applications with the Registrar of a court. The MPT may further make orders to

condone any mistakes in the filing of applications. These formal procedures are not suitable for

non-adversarial administrative applications for land use approvals. The Regulations should

further not be prescribing to a municipality how to accept documents. Municipalities should do

so in the normal course of their business within their existing structures. This provision over-

complicates the current system, duplicates existing arrangements and will not be cost effective.

Regulation 65 should be omitted.

46. The Regulations could provide that municipalities must provide for the formal acknowledgement

of applications that are submitted and a recording of the date on which the application is

submitted to the municipality.

Regulation 66: Service of documents and proof of service

47. Municipalities should provide for their own service arrangements and procedures which may be

informed by local considerations and circumstances. Section 115 of the MSA already provides for

standards in this regard. Regulation 66 should be omitted.

Regulation 70: Submission of application

48. Regulation 70 prescribes a compulsory form for the submission of land development

applications. The form is in Annexure A to the Regulations but is not yet attached. Municipalities


should be able to devise their own forms in line with national and provincial norms and

standards. Regulation 70 should be omitted or revised to provide for norms and standards. The

Regulations could provide the standard that municipalities must develop set forms for the

submission of applications which should include certain minimum information.

Regulation 71: Fees and documents to accompany application

49. Regulation 71 prescribes a compulsory list of information that must be submitted with an

application. Not all applications may require all this information. The Regulations do not allow

for municipalities to determine different requirements.

50. It is suggested that Regulation 71 be omitted or revised to provide for norms and standards.

Regulation 71 could provide that an application should be accompanied by a written motivation,

plans, diagrams, studies and information that are necessary to enable the public to submit

representations on the application and the municipality to make an informed decision on the

application. This will constitute an appropriate standard.

Regulations 73 and 74: Screening of application, Registration of application

51. These Regulations provide for detailed procedures in respect of how municipalities must accept

and register applications, including timeframes for each detailed step in the process. These

Regulations should be omitted or revised to contain only the standard and norm that

municipalities must provide for the screening of an application to ensure that it contains all the

relevant information required by the municipality and for applicants to be informed of the

acceptance of an application.

Regulations 75 and 76: Notice of category 1 and 2 land development application

52. Regulations 75 and 76 provide detailed compulsory procedures for the service of notices of

applications and the publication thereof in the media. Municipalities should be allowed to

provide for effective methods of service for the various types of applications according to local

considerations. The Regulations should provide for minimum standards for effective notice.

Section 115 of the MSA already provides for sufficient norms.

Regulations 77, 78, 79 and 80: Objections, Comments pursuant to circulation, Amendments to

application prior to referral, Referral of application by administrator

53. These Regulations provide detailed procedures for the processing of objections to applications

and for the processing of applications, including tight timeframes for each step in the process.

These Regulations should be omitted.

Regulation 81: Decision and determination by land development officer

54. The Regulations may as a minimum standard provide for maximum decision-making periods, but

should allow for deviations in exceptional circumstances so that it does not impede on a

municipality’s ability or right to perform its functions.

55. Regulation 81(1) should be reworded to exclude administrator as this should not be prescribed

in the Regulations.


Regulation 82: Procedure of tribunal

56. The provisions contained in Regulation 82 regarding MPT proceedings should also be deleted as

it is micro-managing municipal processes. Refer to our comments below on the formal hearing

process.

Regulation 84 and 85: Continuation of application by new applicant, Power of tribunal to

conduct site inspection

57. Regulation 84 and 85 prescribe processes for continuing with applications and for site

inspections. The Regulations should provide for the minimum standard that municipalities

should allow for the continuance of applications and for site inspections to consider applications.

Regulation 86: Decisions of tribunal

58. Regulation 86(3) should be reworded to delete the reference to the word “hearing “.

Municipalities may choose to follow procedures that do not include a formal hearing. The time

period should further be provided as maximum time period with the option to deviate in

exceptional circumstances.

Regulation 88: Non-compliance with conditions determined by tribunal

59. Regulation 88(2) provides that if an applicant does not comply with a condition of an approval

the decision of the tribunal will be deemed to have been refused and all rights are revoked.

Refer to our previous comment on this provision which appears to be contrary to the Act.

Section 43 of the Act provides that a conditional approval lapses if the applicant does not comply

with the condition within 5 years or the period mentioned in the condition. The period

mentioned in the condition may together with any extension that may be granted, not exceed

five years.

60. The lapsing of rights and the revocation of rights have different legal effects and it is not clear

how such a deemed refusal will impact on a right of appeal. For years the Western Cape, and

other provinces where the Ordinance is applicable, has effectively worked with the principle of

lapsing of rights if such rights are not utilised within a specified period. This is again a

fundamental difference between the legal framework proposed by the Regulations and the

existing planning legislation in some provinces, (Eastern Cape, Western Cape and Northern

Cape), which will upset the planning system in the Western Cape and these other provinces if it

is now introduced. Regulation 88 should be omitted.

Regulation 91: Notification by administrator of decision of tribunal

61. The reference to “administrator” in Regulation 91(1) and (2) should be replaced with

“municipality” so as to not micro manage the municipality’s staff structure and internal

arrangements.

62. Regulation 91(2) provides for every decision of the MPT to be published in the Provincial

Gazette. If the municipality has complied with Regulation 91(1) there is no need to publish the

decision in Provincial Gazette as well at further costs. It may in any event not reach the target

population. The best would be to publish it on the municipal website. This Regulation should be

amended to provide for the standard that there should be effective notification of decisions

which should at least include notification of the applicant and any person who has objected to

the decision.


Regulation 92, 93: Amendment of approval, Withdrawal of application

63. These Regulations provide detailed procedures for amendment of conditions of approval and

withdrawal of applications. Municipalities should not be compelled to impose cost orders

against applicants who no longer wish to develop their properties. Why may applicants not

choose to withdraw their applications at any time? Why are reasons for withdrawals required?

64. Municipalities may choose to regulate for these matters in a different manner. Applicants are in

any event responsible for the costs of advertising, what additional cost orders should be

imposed? These Regulations should be revised to provide for the standard that municipalities

must provide for procedures relating to the amendment of conditions of approval and for the

withdrawal of applications.

Regulation 95: Establishment of township, extension of boundaries and amendment of

General Plan

65. Regulation 95 further prescribes how townships must be established. The Regulation prescribes

a process that differs from the effective practice followed in the Western Cape and other

provinces, where township establishment is done through subdivision applications. Refer to our

comments below. Regulation 95 should be revised to provide for norms and standards namely

the approval of a general plan by the Surveyor General, the certificate by a municipality

contemplated in subregulation (9) before the first erven may be registered and the vesting of

ownership in the Municipality of public places.

66. Regulation 95 should further be amended to provide for the certificate by a municipality to

include that the provincial and national governments were consulted and that provision has

been made for infrastructure requirements.

Chapter 7: Appeals

67. Chapter 7 prescribes in detail how an appeal authority must operate. This is effectively micro-

managing the internal operations of a municipality in respect of appeals. Chapter 7 should not

be regulating appeal procedures in such detail and should not force municipalities to use these

procedures. It should also not prescribe compulsory structures such as a registrar, administrator

etc., as previously commented herein.

Regulation 212: Location of oral hearing

68. Regulation 121 provides that hearings may not be held in the offices of the MPT or authorised

official. This will lead to an increase in expenditure. These provisions should be omitted or

revised to provide for the standard that appeals should be considered in a manner and in places

are sufficiently separated from the offices of the MPT or authorised official so that there is no

perception of bias.

Intervening in local government

69. Regulation 18(1) provides that where the Minister is of the “option”, (probably meant to be

opinion), that a municipality has ignored or has not taken sufficient account of submissions or

observations made by the Minister to the municipality in respect of a municipal spatial

development framework, (“MSDF”), or the MSDF is not in compliance with the requirements of


the Act, that the Minister may in accordance with this Regulation direct the municipality to take

specified measures. A municipality must comply with that direction. Regulation 18(10) also

provides for the Minister to appoint an inspector who may investigate the matter and make

recommendations to the Minister. This provision is inconsistent with section 139 of the

Constitution. The powers conferred on the national sphere by provisions like sections 154(1) and

155(7) permit the national sphere to enhance the capacity of municipalities to perform their

own functions and to see to it that they do so effectively. It remains the municipality in each

case which exercises its powers, with the support of said national sphere. Such support does not

extend to taking over a function, even temporarily, by issuing a directive as to the content of a

municipal SDF. If an intervention is required, the Province and not the national government must

invoke the provisions of section 139 of the Constitution, which is confined to a failure by a

municipality to exercise its executive obligations (section 139(1)), to pass a budget or any

revenue-raising measures necessary to give effect to the budget (section 139(4)), to provide

basic services or to meet its financial commitments (section 139(5)).

70. A dispute with regard to the content of SDFs must be resolved in terms of the IGR Act or the

specific mediation procedures provided in terms of section 33 of the MSA.

Rules for interpretation of laws

71. Regulation 4 appears to be a duplication of Regulation 5 of the March 2014 Draft Regulations.

The comment submitted on 7 April 2014 is therefore reiterated.

72. Regulation 4 provides for rules of interpretation that would resolve a conflict between various

pieces of planning legislation from the different spheres of government. It is submitted that this

Regulation is inconsistent with the Constitution and that it will further also lead to

interpretational difficulties.

73. The introduction to the Regulation provides that the national laws, provincial laws and municipal

by-laws are deemed to be original legislation. It is not necessary to provide for this “legal fiction”

(deeming provision) as municipal planning is an original municipal power in terms of the

Constitution. So too are provincial planning, urban and rural development and regional planning

and development and the regulation of municipal planning, original provincial powers in terms

of the Constitution.

74. A conflict between municipal or provincial laws made in terms of these competencies and

national laws made in terms of national competencies must be resolved in terms of sections 146

to 150 of the Constitution, read with section 156(4) of the Constitution. The rules in Regulation 4

are inconsistent with the principles provided in the Constitution.

75. Regulation 4(c) and (d) basically provide that national legislation will prevail over provincial

legislation unless it relates to provincial planning or a matter referred to in Schedule 1. This

arrangement is inconsistent with the Constitution. Any contradiction between provincial

planning legislation (whether in a principal law or in a regulation) or national legislation is

governed by section 146 to section 150 of the Constitution.

76. Section 146(1) applies to a conflict between national legislation and provincial legislation falling

within a functional area listed in schedule 4, which in this case is the power of the national and

provincial legislatures to regulate aspects of “municipal planning” in Schedule 4B to the

Constitution.


77. Section 146 indicates that national legislation does not always prevail over provincial legislation

when there is a conflict between them. National legislation only trumps provincial legislation if

subsections (2) or (3) of section 146 apply (see section 146(5)). Otherwise, provincial legislation

prevails over national legislation, with the latter becoming inoperative for as long as the conflict

remains (section 149 of the Constitution).

78. Section 146(2) determines those situations in which national legislation that apply uniformly

with regard to the country as a whole prevails over provincial legislation. In our view the

conditions in section 146(2) would not automatically apply to all provisions of a provincial law

that regulates municipal planning. Not all aspects of this area must be regulated nationally, or

cannot be effectively regulated by provinces individually as suggested by Regulation 4.

79. Section 146(3) further provides that national legislation prevails if it aims to prevent

unreasonable action by a province with national ramifications. Minimum standards imposed by

any of the provinces and the regulation of municipal planning imposed by any of the provinces

should not automatically be considered to be unreasonable, or the effect of those provisions

should not automatically be considered to have an impact on the national economy, as

suggested by Regulation 4.

80. Regulation 4(e) further provides that a by-law that is in conflict with a provincial law prevails

over a provincial law as long as it gives effect to the spirit and purport of the provincial law. This

is not consistent with constitutional interpretation of laws. By-laws that are contrary to the

minimum standards set by a provincial law cannot prevail over provincial laws.

NATURE OF SCHEME REGULATIONS AND RELATIONSHIP WITH PROPOSED LAND USE IN THE MSDF

AND OTHER POLICY FRAMEWORKS

81. A land use scheme consists of scheme regulations, a register and a map. In terms of section 26 of

the Act, the scheme regulations have the force of law, it imposes duties and affects rights and

therefore the council who has legislative authority must approve the scheme regulations as

legislation in terms of section 28(4) of the Act and section 14 of the MSA.

82. An amendment to the text of the scheme regulations is legislative action. An amendment is

either municipal wide or affects particular areas or zones in a municipality. It may implement a

policy initiative proposed in a MSDF, such as a change in parameters to a zone. It involves

introducing new text, amending existing text or changing the zoning designation or any

combination of such actions. It is generally unconditional and affects all property equally within

the area. (It is not a forward planning policy document– this is the purpose of a MSDF.)

83. In terms of section 35(1) of the MSA, a MSDF is part of the integrated development plan which is

the principle planning instrument of the municipality that guides planning and development and

decisions in respect thereof. It therefore does not confer rights on any person. Although

required by law, the SDF is only a guide. In terms of section 35(3) of the MSA, a MSDF can only

bind persons by imposing duties and affecting rights if it has been passed as a by-law. Therefore

by itself, the MSDF cannot control or regulate the use of land. Implementation of the MSDF

occurs through zoning decisions and to some extent by amending the zoning text of the scheme

regulations as referred to above. When consistently followed, the MSDF can provide an

important legal foundation for land use decisions. The MSDF is a projection of land use needs

and trends projected forward. Applications that are consistent with MSDFs could be processed

much faster through various mechanisms.


84. The scheme regulations which are legislation and the MSDF which is guiding policy should

therefore be clearly distinguished. From the Regulations set out below it appears that this

distinction is not always made. These provisions appear to elevate the MSDF to subordinate

legislation or a hybrid between legislation and policy which is contrary to the MSA and the Act. It

is also contrary to established planning practice in the Western Cape and other provinces.


85. Regulation 22 appears to assume that a land use scheme is also a forward planning policy, which

it is not. Regulation 22(2)(a), (b), (c), (h), (j), (l), (m), (n), (o), (p), (q), (r) and (s) provides that

certain factors such as the IDP, MSDF, spatial distribution, requirements for social facilities must

be taken into account when a land use scheme is drafted. The land use scheme can at best make

provision for appropriate zones and land uses that are aligned with these policy factors- but

rezoning would have to be done and use rights would have to be allocated in respect of

particular land in terms of application procedures that are administratively just and procedurally

fair.

Regulation 25: Alignment with integrated transport plans

86. Regulation 25 requires that integrated transport plans in terms of the National Land Transport

Act, 2009 (Act 5 of 2009), must be reflected in the land use scheme. An integrated transport

plan contains many aspects from transport needs assessments to existing transport routes and

intended transport routes. It is not clear what should be reflected in the land use scheme. At

best, the zoning of proposed new roads could be used on the maps of a land use scheme in

accordance with approved transportation plans in order to keep future transport corridors clear

of development, but this will have considerable cost implications for municipalities.

87. The Regulations do not distinguish between legislation and policy. In terms of the Act, scheme

regulations are legislation in terms of which zonings and use rights are allocated to land. It

should be distinguished from forward planning policy instruments which guides decisions in

terms of the scheme regulations such as the SDF and former Structure Plans.

Regulation 28: Land use scheme map

88. Regulation 28(d) requires that the map should also indicate intended future zonings of areas of

land. The basic principle is that a land use scheme is not a forward planning policy but one which

records existing land uses and land use rights and in terms of which new rights may be allocated.

Regulation 28(d) should be deleted from the Regulations. Refer also to previous comments on

Regulation 22.

Regulation 32: Consideration of objections and representations

89. This Regulation provides for the municipal manager to consider objections to a land use scheme

and to hold public hearings. Regulation 32(3) further provides that “The municipal manager

must make a decision on the adoption of a land use scheme, within 60 days after.”

90. This Regulation does not take into account that the land use scheme and scheme regulations are

legislation that is adopted in terms of the legislative process in terms of section 14 of the MSA.

This Regulation further provides for the municipal manager to decide on the adoption of a land

use scheme and for the council to decide on the approval thereof in terms of Regulation 33. The

distinction between adoption and approval is not clear. Seeing that the scheme regulations


which forms part of the land use scheme is legislation, only a member or a committee of the

council may introduce that part of the land use scheme. These internal arrangements should be

left to municipalities to administer in terms of internal procedures subject to the legislative

process provided for in the MSA. This Regulation should be omitted.

Regulation 33: Adoption of land use scheme

91. Regulation 33(3) provides that any person may request reasons for decisions by the municipality

in the preparation and amendment of a draft land use scheme. This Regulation does not take

into account that a land use scheme, excluding the map and register, is legislation which

regulates and controls land use rights. Legislative actions of municipal councils, such as the

adoption of a by-law regulating zoning and the enforcement thereof, are not subject to review in

terms of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000). The legislative

process in terms of the MSA provides for the public to be consulted on draft by-laws. The

legislative process does not require that reasons be provided for the adoption and amendment

of laws. Regulation 33(3) should be omitted.

CONFUSING TERMINOLOGY, CONCEPTS AND PROCESSES

92. There are a number of fundamental differences in land use planning practice in the Western

Cape and other provinces to which the Land Use Planning Ordinance, 1985 (Ordinance 15 of

1985), (“the Ordinance”) applies, and other parts of the country.

93. These fundamental differences are:

93.1. The nature of the scheme regulations and the relationship with policy proposals in SDFs

as discussed above.

93.2. In the Western Cape and other provinces, land use applications are ordinarily not

considered by way of formal hearing proceedings. Municipalities should not be forced

to follow formal hearing proceedings to consider applications and appeals in respect

thereof. Comprehensive comments on this aspect appear below.

93.3. The concept of and process for township establishment are different from that of

subdivision which is used in the Western Cape and other provinces. The differences

relate to the following:

93.3.1. Township is defined in the Act as an area of land divided into erven and may include

public places and roads indicated on a general plan. Township establishment relates to

the establishment of such divided areas of land.

93.3.2. The Ordinance (and the Western Cape Land Use Planning Act, 2014 (Act 3 of 2014)

(LUPA) once it comes into operation), provides for the establishment of such divided

areas of land through rezoning, subdivision (which could be done simultaneously) and

confirmation of subdivision.

93.3.3. Different terminology and procedures are followed in the Province to reach the

same goal as township establishment and all procedures and practices are structured

in this manner in the Province. The township establishment procedure as practiced in

Gauteng and accompanying terminology should not be forced onto the Western Cape

and other provinces. The rezoning and subdivision process is effective and it is not

necessary for uniformity across the nation to deal with this matter effectively. Planning

matters have to date been regulated effectively in terms of different laws in different


provinces. Not all aspects of this area must be regulated nationally, or cannot be

effectively regulated by provinces individually.

93.3.4. In fact if the procedures and systems in this regard are changed in the Western Cape

it would mean that municipalities would have to substantially change the manner in

which they are dealing with these matters. This would not be cost effective and would

not ensure effective service delivery. Has a regulatory impact assessment been done to

determine the costs of overhauling the planning system in this respect? Such a change

will also impact on the systems followed by the Registrar of Deeds and the Surveyor-

General in the Province.

FORMAL HEARING PROCEDURES

94. Chapter 6 and Chapter 7 of the Regulations propose hearing and appeal procedures that are

extremely complicated. It was evident at the 28 March 2014 meeting that many small and

medium sized municipalities will not be able to implement these Regulations. Even some

metropolitan municipalities will have challenges in this regard. It is clear that the MPT

procedures are based on the procedures for tribunals in terms of the former Development

Facilitation Act, 1995 (Act 67 of 1995).

95. In the past these procedures were found to be very lengthy and expensive, requiring tribunal

members (especially chairpersons) to be very knowledgeable about a variety of legal matters. It

should be taken into consideration that the Tribunal in terms of the Development Facilitation

Act was a provincially based institution where sufficient professional capacity in various

disciplines existed and finances could be provided. This will not be the case with MPTs.

96. The oral stating of cases, production of evidence, leading of evidence, cross examination of

witnesses and representation of parties are features fundamental to a judicial trial, but is not

necessary in the context of the administrative process. It is clear on the authorities that a person

who is entitled to the benefit of the audi alteram partem rule need not be afforded all the

facilities which are allowed to a litigant in a judicial trial. He or she need not in all circumstances

be given an oral hearing, or allowed representation by an attorney or counsel; he or she need

also not in every circumstance be given an opportunity to cross-examine; and he or she is not

always entitled to discovery of documents. (Heatherdale Farms (Pty) Ltd and Others v Deputy

Minister of Agriculture and Another 1980 (3) SA 476 (T) at par 486).

97. Everything depends on the circumstances applicable to each application. These features may be

appropriate in some circumstances and should not be made the rule in all instances. Too much

insistence upon the forms and procedure to which lawyers are accustomed in court may lead to

an over-judicialisation of the administrative process, this would lose the advantage of flexibility

and might prove counter-productive and costly. (Baxter, Administrative Law page 548). To

ensure fair proceedings, oral proceedings and personal presence is also not required as a rule.

Written submissions would be adequate in most planning applications to convey motivations

and views. Written hearings have the advantage that it is quicker, cheaper and more precise and

reliable. Municipal planning processes should be flexible to allow for oral hearings in those

limited number of applications where it would be appropriate. The leading of evidence and cross

examination of witnesses will further only be appropriate where the accuracy of facts needs to

be promoted. In the ordinary planning application where the zoning of land is not in dispute and

the decision-maker needs to take a decision after considering applicable policy, it is not likely


that the leading of evidence and cross examination to determine facts will be necessary or

appropriate.

98. In rural areas and poorly capacitated municipalities it would be difficult enough to constitute

Tribunals, let alone for them to deal with legal matters such as cost allocation and locus standi,

subpoenas, cross questioning and giving evidence under oath etc. It is strongly suggested to

keep it simple – let the focus be on land use planning merits and let Tribunals decide on their

own procedures. It should be noted that the Western Cape strongly supports the written hearing

procedure for municipal officials, the MPT and the Appeal Authority. The enforcement of oral

hearing procedures in all instances will lengthen proceedings, increase costs for all parties and it

may be too costly for indigent persons to participate in proceedings.

99. All administrative bodies, taking administrative decisions and actions are in any event bound by

the provisions of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) and the

Promotion of Access to Information Act, 2000 (Act 2 of 2000).

100. Furthermore, by making the formal judicial hearing procedure applicable to all matters before

MPTs, the Regulations overstep the Constitutional limit of supporting and overseeing

municipalities by—

100.1. preventing a municipality from requiring procedures in addition to those imposed by

national legislation,

100.2. a municipality from having regard to further matters which it considers relevant; and

100.3. replacing or removing the discretion vested in municipalities to adopt different and more

appropriate procedures in a particular matter.

101. These elaborate court type appeal procedures are too complicated for municipalities.

Metropolitan municipalities may be able to comply with it but other municipalities may not have

the capacity to effectively implement it. It is a highly complicated system, requiring extremely

involved administrative actions, which may lead to many opportunities for errors and abuse. This

may lead to dismissals based on procedural issues where the merits of applications are never

properly considered. It is a system that is suitable for a mature first world country but it is

definitely not suitable for a developing country. The Regulations are therefore not assisting in

improving and streamlining the planning application and development processes. The system

may just grind to a halt. The development and construction sector in South Africa plays an

important role in our economy (in the Western Cape more that 11%) and problems in this

system will hurt the economy severely.

Regulation 109: Intervention by interested person

102. Regulation 109(5) makes provision for the granting of cost orders and the payment of security

for costs. This would exclude indigent members of the community from appealing and should be

omitted from the Regulations.

103. Regulation 109(7) provides for the registrar to resolve disputes as to security for costs and

appeals in respect thereof. Besides the concern regarding the formal hearing process involving

witnesses and costs orders as mentioned before, it should further not be for the registrar to

make these determinations. If the provision is to be retained in a standard by-law, should it not

rather be the presiding officer who determines these matters?


CONFLICT RESOLUTION

104. The Regulations contain detailed procedures regarding conflict resolution. In our view

procedures for conflict resolution are adequately addressed by the Intergovernmental Relations

Framework Act, 2005 (Act 13 of 2005), (“IGR Act”), and it is not necessary to repeat such

provisions or re-write provisions with the same effect.

Regulation 4: Spatial planning and land use management laws

105. Regulation 4(2) to (4) requires that the procedure in Part C or D should be followed in the event

of non-alignment between a provincial spatial development framework and policies of national

government, the plans, policies and development strategies of other provincial departments and

plans, policies and development strategies of a municipality. This section also disregards the

provisions of section 32 and 33 of the MSA which provides for dispute resolution in respect of

MSDFs.

106. There also appear to be wrong references to Part C and D in regulation 4, as regulation 4(3)

appears to make Part D only applicable to a non-alignment between the PSDF with the plans of

other provincial departments, it is clear that part D applies to national departments, provincial

departments or municipalities.

107. Regulation 5: Principles of dispute prevention and resolution

108. This Regulation provides for the Department of Rural Development and Land Reform, a

provincial department or a municipality to adhere to certain principles if there is an

inconsistency between SDFs. This provision should be amended to provide for other national

departments, such as the National Department of Agriculture, Forestry and Fisheries (DAFF) who

are responsible for the administration the Conservation of Agricultural Resources Act, 1983

(Act43 of 1983), and the Subdivision of Agricultural Land Act, 1970 (Act 70 of 1970), to also

address issues relating to land use management.

109. The Regulations should be amended as follows:

“If the Department, another national department, a provincial department or a municipality is of

the opinion that there is conflict or inconsistency between a spatial plan, spatial development

framework or policy, the Department, other national department, provincial department and

municipality must actively seek to achieve the objectives of the Intergovernmental Relations

Framework Act by –“.

Chapter 2, Part D: Institutional Framework for Conflict Management

110. This part provides for a system that includes far too much discretionary power and also vests

too much power in the Minister when disputes might be declared against a national

department. It is also not clear whether an aggrieved party may resort to the courts if they are

not satisfied with the outcome of the dispute resolution, facilitation, mediation and arbitration

processes provided for in these Regulations.

111. It is proposed that a dispute resolution process which is similar to the process provided in

sections 32 and 33 of the MSA be made applicable to disputes in respect of national and

provincial spatial development frameworks. The process in the MSA provides for the spheres of

government involved in the dispute to concur with the appointment of representatives of that


sphere to a mediation committee. Seeing that the MSA process already applies to MSDFs, it is

not necessary to provide for further dispute resolution mechanisms in respect of MSDFs.

Regulation 6: Dispute settlement manager

112. Similar amendments to the amendment proposed to Regulation 5 must be effected to

Regulation 6 (1),(2) and (3)(a), (b), (c), (f) (g) & (h) to allow for the involvement of other national

departments who are responsible for the administration of legislation relating to agriculture.

Regulation 7: Panel of recognised facilitators

113. Regulation 7(4), (5), (6) and (7) appear to allow the Minister free rein to decide what

qualifications, knowledge and experience these facilitators must have and to determine the

terms and conditions of their employment. The chairperson of the panel is also given the power

to decide which facilitators hear a dispute. This allows for political interference.

EXEMPTION CLAUSE AND DIFFERENTIATION IN IMPLEMENTATION AND REGULATION

114. In our view the correct approach is to convert the provisions of the Regulations that micro-

manage municipal planning to a standard draft by-law. The Regulations should only deal with

minimum norms and standards. Despite our previous comments to this effect and the sharing of

an opinion obtained from Senior Counsel which confirms this view, the current version of the

Regulations has not been revised and our previous comments have not been addressed. It

appears that the Department of Rural Development and Land Reform has a different view on the

ambit of the national sphere’s legislative competence to regulate municipal planning.

115. If our suggestions in this regard is again not accepted, an alternative solution will be required to

ensure that legislative actions of the various spheres of government are co-ordinated and that

implementation and interpretation problems do not arise when the regulations come into

operation and municipal planning by-laws regulate the detail of municipal planning in a different

manner as what is proposed in the Regulations. Some municipalities in the Western Cape are

already at an advanced stage in the process of preparing their planning by-laws and are

hampered in the finalisation thereof by the level of detail regulated in the Regulations and the

fact that the Regulations are not yet finalised.

116. In a letter dated 13 March 2014, the Department of Rural Development and Land Reform has

indicated that in cases where a province has taken regulatory action compliant with SPLUMA

prior to the commencement of SPLUMA it will be possible to make provision in the regulations

to SPLUMA that those regulations will not be applicable to such province. Such a provision is not

included in the Regulations.

117. The Act further also makes provision for differentiation between provinces and municipalities in

the implementation of the Act and regulations seeing that the capacity of municipalities and

provinces differ and a one size fits all set of Regulations may not be appropriate. In line with this

principle of differentiation authorised by the Act and the proposal in your letter of 13 March

2014 the following provision could be inserted in the Regulations:

“Application of Regulations and by-laws

(1) If a municipality makes a by-law regulating the matters referred to in subregulations (2) and

(3) regulations 2, 22(3), 31 and Chapter 4: Part F, Chapter 6 and 7 do not apply in respect of that

municipality, unless indicated otherwise in the by-law.


(2) Municipalities must regulate the following in respect of land development in their municipal

areas:

(a) appointment of the tribunal, including nomination procedures if applicable;

(b) qualifications or criteria for appointment of the members of the tribunal including

disclosure of interest;

(c) operating procedures for the tribunal;

(d) criteria for applications;

(e) manner of application including specified forms, information to be supplied and the fees to

be paid;

(f) advertisement and notice of the application;

(g) further information to be provided by the applicant if required;

(i) right of interested and affected persons to make submissions or object including the

manner, time limits and service on applicant;

(j) administrative process for consideration of application or hearing if applicable, including

site inspections;

(k) right of applicant to be heard or make written submissions if refusal is contemplated;

(l) conditions to be attached to an approval;

(m) decisions to be in writing, notice of decisions and effective dates of decisions;

(n) withdrawal of an application before it is decided on;

(o) amendment of approvals;

(p) continuance of application if there is a change in ownership in respect of the land;

(q) manner of exercising right of appeal;

(r) procedure for processing and consideration of appeal; and

(s) powers of appeal authority;

(t) disclosure of interest by appeal authority.

(3) A municipality must regulate the following in respect of a land use scheme for its municipal

area:

(a) the procedures for compilation and consultation of the community and other organs of

state;

(b) the right of interested persons to make submissions or object, including the manner and

time limits;

(c) compliance with the land use scheme and enforcement, including the appointment of

inspectors, the issuing of compliance notices, the right to object to a compliance notice and

the review of compliance notices.”.

118. Note however that such a provision is premised on the view that the national sphere has

legislative competence to regulate the detail of these matters as is done in the Regulations,

which view we do not support and which is contrary to advice we have received from Senior

Counsel. If the Department of Rural Development and Land Reform has obtained legal advice

that confirms that the Regulations are consistent with the Constitution in its current form, we

will appreciate it if you could share such opinion.


TIME FRAMES

119. The timeframes provided in the Regulations should be reconsidered as many of these are very

short or impractical. The Regulations should rather provide for maximum or minimum

timeframes without prescribing the detailed procedures which should be informed by local

considerations and conditions.

SPECIFIC COMMENTS

Regulation 8: Legal indemnification

120. Regulation 8 is also very problematic. It appears to assign costs to a municipality when a claim is

made against a facilitator. This would make it difficult for a municipality to lay a complaint

against a facilitator as they would have to consider the cost implications.

Regulation 18: Ministerial directions regarding SDFs

121. As indicated in our comments above this provision is not consistent with the Constitution.

Furthermore Regulation 18(3) provides that: “…no later than 4 weeks after a plan is made.” The

Regulation is not clear in terms of which date is being referred to. Would the adoption date be

seen as the date the plan is made? There is no clarity as to which date is being referred to.

122. Regulation 18 (3) provides that the report of the investigator must be given to the municipal

manager, municipal council and the provincial government “…as quickly as possible..”. This

provision is vague and open for interpretation and possible abuse.

Regulation 19: Resolution to prepare a land use scheme

123. Regulation 19 requires the municipal council to consult with the traditional authorities before

resolving to prepare a land use scheme. It is not clear why consultation is only required with

traditional authorities and not with other stakeholders as well. It is suggested that the

Regulations provide as a norm that all stakeholders, including interested or affected organs of

state and traditional leaders be consulted. A definition for traditional authorities should be

provided to include only recognised traditional leaders. The details of the method for

consultation should be left to municipalities to determine.

124. The provision should be amended as follows:

“Before a municipality commences with the preparation of its land use scheme, the municipal

council must, after consultation with interested or affected organs of state and all the traditional

authorities in its area of jurisdiction, make a resolution to prepare a land use scheme for its entire

area as required by section 24 of the Act.”.

Regulation 20: Minimum content of resolution

125. Section 24(1) of the Act requires that a municipality must adopt and approve a single land use

scheme for its entire area within five years from the commencement of the Act. Regulation 20(b)

requires a listing of the existing town planning schemes applicable in its area of jurisdiction. This

provision is not qualified by indicating that these schemes will be replaced by the single land use

scheme for the entire area.

126. Regulation 20(c) requires a commitment to public participation procedures. Why is there a need

for commitment if consultation is already a prescript in section 24(1) of the Act? The Regulation


should instead provide for minimum standards relating to consultation and public participation

procedures. Such a standard could provide that organs of state should be involved early in the

process to allow sufficient opportunity for them to comment on a land use scheme and to

ensure co-operative governance.


127. Regulation 22 prescribes various aspects that must be taken into account when a land use

scheme is prepared. The Municipal Integrated Waste Management Plan (“IWMP”) is not

included as a document to be considered. In order to make allowance for and to give recognition

to agriculture and the preservation of agricultural resources subregulation (2) should be

amended by inserting subregulation (t) as follows:

“agricultural elements referred to in section 24”.

Regulation 23: Incorporation of environmental requirements into land use scheme

128. The content of a land use scheme should primarily be to record land use rights and zonings

based on existing rights or zonings. All the environmental factors referred to in this Regulation

cannot practically be pre-empted.

129. Regulation 23(1) requires that an environmental database be developed to record

environmental factors that impact on environmental resources and where development is

prohibited in terms of environmental laws. In order to determine whether development is

prohibited in terms of environmental laws, expensive studies and environmental impact

assessments will have to be conducted. Subregulation (2) requires that the database must be

used to identify environmental requirements that must be incorporated into the land use

scheme. Environmental Authorisations in terms of the National Environmental Management Act,

1998 (Act 107 0f 1998), (“NEMA”), regulates the environmental requirements relating to

development and requires environmental impact assessments. It is a duplication to provide for

this in the land use scheme and has huge cost implications for municipalities.

130. With regard to Regulation 23(3) flood line determination is a very expensive and specialised

field and flood lines change over time if upstream developments or damming is done.

131. The entire Regulation 23 contains matters that should be included in an Environmental

Management Plan, as provided for in NEMA which should be taken into account when decisions

are made in respect of land development applications or environmental authorisations and

when SDFs are compiled.

132. The use of an Environmental Management Framework (“EMF”) or a Strategic Environmental

Assessment (“SEA”) instead of an environmental database will be more useful to the

municipality. An environmental database (information required for situation analysis) will be

only one of the aspects of an Environmental Management Framework, for example. It is further

not clear how the environmental requirements that must be incorporated into the land use

scheme will be identified from the environmental database. Regulation 23 fails to provide any

information regarding implementation. Who will decide whether there is an environmental

concern based on the information contained in the database?

133. Regulation 23 further fails to provide local authorities with a clear direction and adequate

information for considering the environmental aspects to be included in the land use scheme.

134. In the event that Regulation 23 is however retained, despite our comment above, the

comments below should be noted.


135. The reference to “environmental factors” as contained in Regulation 23(1)(a) is extremely

broad. An environmental impact assessment will be required to determine which environmental

factors impact on the environmental resources.

136. Regulation 23(1)(b) requires the development of an environmental database which documents

“where development is prohibited in terms of environmental laws.” It is however not clear how

this will be done. Will NEMA, all the specific environmental management (“SEMAs”) and all

subordinate legislation made in terms of these Acts be included on the database? An assessment

of environmental laws will have to be conducted in order to determine this also.

137. Regulation 23(2) requires that “The environmental database must be used by the municipality to

identify the environmental requirements that must be incorporated into the land use scheme.” If

Regulation 23 is retained, Regulation 23(2) must be implemented in consultation with the

provincial environmental authority.

138. Regulation 23(3) requires that “In developing the database referred to in subregulation (1), the

municipality must take into account, if applicable in its area of jurisdiction, the following -

(a) 1:50 year and 1:100 year flood lines;

(b) catchment areas”.

139. If Regulation 23(3) is retained it must be implemented in accordance with the National Water

Act, 1998 (Act 36 of 1998), and on advice of the department responsible for water resource

management.

140. Regulation 23(3)(c) provides for “an environmental management framework, environmental

management plan and an environmental services plan developed in terms of the National

Environmental Management Act.” An environmental services plan and environmental

management plan are however not included in NEMA, so it is uncertain what is being referred

to. NEMA does however provide for an Environmental Management Programme.

141. It appears that some text is missing from Regulation 23(3)(f) and it is not clear what the

Regulation requires in terms of air quality.

142. From Regulation 23(3)(g) it is not clear what is expected from a municipality in terms of climate

change.

143. Regulations 23(3) (i), (j) and (k) must make reference to existing statutory instruments or plans

being used by conservation authorities.

144. Regulation 23(3)(n) refers to “important view sheds or vistas”. Is this based on any specific

legislation, for example, the World Heritage Convention Act,1999 (Act 49 of 1999) or on advice

by a specific authority, for example the SAHRA? This is always a difficult aspect to determine and

is a very subjective issue. Clear guidance is therefore required in this regard.

145. Regulation 23(3)(o) requires taking “coastal management requirements” into account. This

must be done in terms of National Environmental Management: Integrated Coastal

Management Act, 2008 (Act 24 of 2008).

146. Regulation 23(3)(p) should be amended as follows: “any other [element] environmental aspect

that a municipality or environmental authority may identify…”.

147. It is critical that the environmental authority of a particular province has the opportunity to

provide input on the environmental aspects. In addition, provision must be made for the

National Environmental Management: Waste Act, 2008 (Act 59 of 2008), as one of the

environmental requirements. Waste and sewerage management are also not included.


Regulation 24: Incorporation of agricultural land

148. Regulation 24 is problematic as the national and provincial departments of agriculture have the

mandate and expertise to develop the policies prescribed in Regulation 24. Municipalities may

not have the necessary expertise to develop such policies.

149. The allocation of an agricultural zoning to land units should be informed by such national and

provincial policies and a municipality should be advised by the relevant national or provincial

department when considering an application for land development on agricultural land.

150. Municipalities should be advised on agricultural matters by national and provincial agricultural

departments via policy documents and incorporation thereof in a SDF. The Western Cape

Department of Agriculture is in proses of identifying agricultural land and areas that must be

preserved. If other legislation could also address it in the same way or assist in recognising the

need for the preservation thereof, the mandates and goals of agriculture, such as food security,

sensible developments in rural areas, agricultural heritage, protection of the rural character,

conservation of agricultural resources and sustainable units will be promoted.

151. It is suggested that Regulation 24 be amended by inserting the following heading and

subregulations:

“Incorporation of agricultural [land] requirements into the land use scheme”

24. (1) A municipality must, in consultation with the national and provincial departments of

agriculture, develop an agricultural database which documents agricultural factors that

impact on the management of agricultural resources.

(2) The agricultural database must be used by the municipality to identify the agricultural

requirements that must be incorporated into the land use scheme.”.

152. Regulation 24 (1) should be renumbered as Regulation 24(3).

153. Renumbered Regulations 24(4) and (5) should be amended as follows:

“24(4) The areas that have agricultural potential or that is of agricultural significance must

be identified and listed in an agricultural land register and must be considered when the land

use scheme is prepared by using, amongst others, the guidelines contained in the policy

contemplated in subregulation (3).”.

Regulation 26: Consideration of infrastructure regulations

154. The consideration of infrastructure requirements, as provided for in Regulation 26, should be

considered, but is not something that should be guiding a land use scheme. It is recommended

that Regulation 26 be omitted from the Regulations and rather be placed in a policy document

aimed at the drafting of SDFs and land development decision making.

Regulation 27: Land use scheme regulations

155. Regulation 27(b) provides that the scheme regulations must set out the “….procedures for

preparing and adopting the land use scheme”. We are of the view that the Regulations are over

prescriptive in providing that the procedure should be in the scheme regulations. As a norm it

can be provided that a municipality must regulate the procedures for adopting a land use

scheme and certain minimum requirements may be imposed. It further also does not make

sense that the procedures should be provided in the scheme regulations which forms part of the

land use scheme- that will have the effect of providing in a law which has already been made

how that law should have been made or to provide a record of how it was made.


156. Regulation 27(h), (i) and (j) provides that the procedures for dealing with applications must be

contained in the scheme regulations. The Regulations are over prescriptive in providing that the

procedure should be in the scheme regulations. As a norm it can be provided that a municipality

must regulate application procedures. A municipality should decide how it wants to structure its

by-laws. The question arises what procedures would be included in such regulations seeing that

the Regulations already contain all application procedures in the finest of detail.

157. It is further proposed that subregulation 27(f) which provides for special provisions should also

include agriculture. Subregulation 27(f) should be amended as follows:

“(f) special provisions which apply to heritage places and areas, provisions which may apply

in addition to the zone requirements and generally concerns landscape, environmental,

agricultural, built form and land and site management issues;”.

Regulation 28: Land use scheme map

158. Regulation 28(c) provides that a scheme map must contain “a suitable colour notation”. It is not

clear why monochrome notations are not also required as a minimum standard. Colour printing

is expensive. It is suggested that Regulation 28(c) be amended as follows: “a suitable colour or

monochrome notation.”.

Regulation 40: Role of district municipality

159. It is not clear why reference is only made to a joint Municipal Planning Tribunal (“MPT”) and not

to a district MPT, or to a situation whereby two municipalities enter into an agreement to use

two or three of their officials as outside persons, on their respective Tribunals.

160. The role that the Regulations envisage for a district municipality appears to follow a new

approach that was never raised or discussed at any of the National Coordination Forum (“NCF”)

meetings over the last year. This approach will place a huge responsibility on a district

municipality which they may not be prepared for. The role of district municipalities must be

consulted with them and their readiness to take on this responsibility should be ascertained.

161. The current wording of Regulation 40(2) provides no option for two municipalities to have a

joint MPT on their own, other than working through the district municipality. Regulation 40(2)

should only apply in cases where the municipalities have not done so themselves or prefer to

work through the district municipality.

162. The proposed Regulation 40(3) requires the district municipality to administrate land

development application procedures which are functions that have never before been

performed by district municipalities and for which they may not be prepared for. It further

effectively adjusts the division of functions between district and local municipalities by moving

the land use management function from local municipalities to district municipalities. This does

not comply with section 85 of the Local Government: Municipal Structures Act, 1998 (Act 117 of

1998), which requires the MEC for local government to adjust the division of functions in terms

of the process provided in that Act. It is suggested that Regulation 40(3) should be deleted from

the Regulations.

Regulation 41: Decision of municipality

163. Regulation 41 provides that a municipality may establish a joint MPT and describes the

circumstances when such a decision may be made. The reference to one municipality in

Regulation 41 should be changed to more than one municipality. It is suggested that “if that


municipality” be replaced with “if these municipalities” and therefore also “does” in (a) and (b)

with “do” and in (c) believes with “believe”.

Regulation 42: Agreement to establish joint MPT

164. Regulation 42 must also provide that the categorisation of applications by the participating

municipalities must be provided for in the agreement.

165. Regulation 42(1)(e) should also provide for the appointment of a deputy chairperson, as

provided for in section 36(3)(b) of the Act.

166. There appears to be two full stops included instead of commas in Regulation 42(1)(g). Replace

the two full stops with commas.

Regulation 43: Composition of joint MPT

167. Regulation 43(b) requires the appointment of persons who are not municipal officials. The joint

MPT could possibly consist of, or include, employees from the national or relevant provincial

government with the necessary expertise who could be appointed in terms of this provision. The

reference to service providers in paragraph (b) should then be deleted to allow for such an

option.

168. Regulation 43(1)(b) limits the appointment of persons to the joint MPT from “..a list of service

providers maintained by the district municipality…”. There should be provision for the

participating municipalities to nominate members. It is suggested that “….[appointed from a list

of service providers maintained by the district municipality to serve on the joint Municipal

Planning Tribunal]” be deleted from Regulation 43(1)(b).

169. Regulation 43 should be amended to require that the MPT obtain technical advice from a

registered agricultural scientist when it considers an agricultural related matter to ensure that

agricultural land use management goals are taken into consideration.

170. The requirements in the Act dealing with MPTs will include joint MPTs as well. Regulation 43(2)

which prohibits councillors from serving on the MPT is therefore already provided for in section

36(2) of the Act and should not be repeated in the Regulations. Regulation 43(2) should be


Regulation 44: Application of provisions of the Act to joint MPT

171. The Act already provides for a joint MPT. Regulation 44 is therefore not necessary.

Regulation 46: Power and duties of joint MPT

172. The reference to “regulation 2” in Regulation 46(a) should be “regulation 42”. Given that a joint

MPT is established in terms of the Act and will have to comply with the Act, the inclusion of

Regulation 46(e) is not required. Regulation 46(e) should be omitted from the Regulations.

Regulation 48: Appeal against a decision of joint MPT

173. Regulation 48 forces a municipality to establish a joint appeal Tribunal if it established a joint

MPT. This leaves a municipality with no discretion in this regard. Refer to our previous

comments in this respect. It is suggested that Regulation 48 should rather provide for an appeal

to the appeal authority of the relevant municipality or to an appeal Tribunal established by the

participating municipalities in terms of Chapter 5.


Regulation 49: Appointment of members of appeal tribunal

174. Regulation 49(1) to (5) is not supported. It should not follow that if a municipality forms part of

a joint Tribunal that it must partake in the joint appeal Tribunal, it should be provided for as an

option. Refer to our comments on Regulation 42 regarding this intrusion on municipal planning.

175. Regulation 49(6) empowers the chief presiding officer to designate no fewer than three

members and that such members will then constitute a quorum when an appeal is “heard”.

Allowing for such a designation by the chief presiding officer may lead to abuse and will not lead

to consistency in decision making. Formal hearings should further not be compulsory.

Municipalities and Tribunals should have discretion in this regard to follow appropriate

procedures. Refer to our earlier comments on this aspect.

Regulation 50: Support by district municipality

176. Within the context of the earlier comments made on the role and function of the district

municipality and the appeal Tribunal, the wording of the section should not read “must” but

rather “may” if there is agreement to participate in such an appeal Tribunal. It is suggested that

“must” in Regulation 50 be amended to “may”. In addition, by including “if participating

municipalities decide to establish an appeal Tribunal.”. There should be similar provisions for an

agreement as set out in Regulation 42.

Regulation 55: Tribunal

177. Regulation 55(5) requires that officials of the municipality who are appointed to the MPT must

be nominated before they are appointed. Nominations should only be invited for outside

persons who are not officials from other municipalities. The Regulations should be revised to

ensure that other provisions dealing with nominations exclude officials in the employ of other

municipalities. If it is compulsory to follow hearing proceedings which could continue for several

days, the remuneration for members who are not municipal officials could be rather high. Please

refer to our previous comments on the hearing procedures.

178. Regulations 55(1) and 55(6) appear to be contradictory. It should be indicated that

subregulation (6) refers to members appointed in terms of section 36(1)(b) and subregulation (1)

should indicate that it refers to members appointed in terms of section 36(1)(a).

Regulation 56: Nomination procedure

179. Regulation 56 of the Regulations appear to be a duplication of Regulation 49 of the March 2014

Draft Regulations. The comment submitted on 7 April 2014 is therefore reiterated. It is noted

that regulation 56(1) provides only for a nomination process to fill a vacancy. The initial

appointment and the filling of vacancies should be made subject to the minimum standard that

it should be transparent and that invitations for nominations should also be published. Instead

of providing detailed procedures, minimum standards should be provided for or alternatively the

regulations should be converted to draft standard by-laws.

180. Section 38(4) provides that a member has a conflict of interest if he or she has a pecuniary

interest in a matter before the MPT. Regulation 57(1)(b) excludes an indirect interest held in a

fund or investment. This is very vague and could be open for abuse and misinterpretation and

should be omitted from the Regulations.


Regulation 58: Legal indemnification

181. Regulation 58(a) appears to provide that a tribunal member who “omitted to act in good faith

without negligence” should be indemnified. This provision should be amended to provide as

follows:

“in the case of a civil claim or civil proceeding in respect of a commission or omission by a

member in good faith...”.

Regulation 69: Record of land development applications

182. Regulation 69(2)(b) should be amended to make provision for applications received per

category, if applications are categorised as may be decided by the municipality.

Regulation 96: Allocation of land rights

183. Regulation 96(2) provides that a traditional authority may undertake land use management in

its traditional area. It is unclear what the intention is with this provision and what this power will

entail. Section 38(1) (b) of the Act provides that a member from a Traditional Council may not be

part of the MPT and therefore it is clear that the intention of the Act is that a traditional

authority cannot approve land development. Traditional authorities may in terms of section 23

of the Act participate in the development and approval of a land use scheme. This provision

therefore appears to be contrary to the Act.

Regulation 97: Land development on land in traditional area

184. This Regulation provides that a MPT may not approve land development unless it is sanctioned

by the traditional authority in the area. This provision is contrary to the Act. Refer to comments

above. It is further also not clear what would happen if the traditional authority does not

sanction the development.

Chapter 7: Part C and D of the Regulations

185. There are a number of matters in the Act and in Part C and D of the Regulations which are not

clear. Through guidelines clarity should be provided on the following:

185.1. How will an appeal work if a municipal councillor, municipal department or the

municipal manager wishes to appeal against a decision of the Tribunal or authorised

official?

185.2. Provide more clarity on who constitutes and “interested person” for appeal procedures

and an “intervening party” for Tribunal and appeal purposes.

185.3. The notion of a party being granted “intervener status” must be clarified. This should

include providing clarity on what basis this can happen, in terms of which relevant

considerations and what the timing requirement would be for a party to be granted

intervener status in a Tribunal or appeal proceedings. Guidelines must provide clarity on the

basis for providing a party with intervener status, relevant considerations and what the

timing requirements would be. If a party can only appeal within a specific time period,

should the same not apply for a party wishing to intervene?

Regulation 108: Intervention by Minister or MEC

186. The Minister’s involvement in an appeal should be in line with section 52 of the Act. Despite the

fact that section 52(6) of the Act provides that the “….Minister must, before the exercise of a


power or the performance of a function contemplated in this section and after public

consultation, prescribe a set of criteria to guide the implementation of this section, including….”.

The Regulations fail to address this matter. The Regulations should provide clarity on what

would constitute national interest as contemplated in section 52(6) of the Act.

187. Regulation 108(3) provides for the Minister or MEC to authorise the payment of costs incurred

by a party where there has been an intervention. If the grounds for intervention is properly

prescribed and it is clear on what basis the MEC or Minister may intervene, there would be no

need for the state to pay the costs of private parties. Presumably interventions would take place

in cases where the Minister or MEC were in law required to approve the application. An

applicant should know the law and there can be no obligation on the state to reimburse his or

her costs. This regulation should be omitted.

188. Section 45(2) of the Act provides that a party can also intervene in Tribunal proceedings. It is

noted that this is not mentioned in the Regulations. Guidelines should provide more clarity on

intervener status in relation to a MPT.

Regulation 109: Intervention by interested person

189. Regulation 109(4) refers to the granting of intervener status. The Regulations must provide

more clarity on what the relevant considerations are for granting intervener status, otherwise

such a provision could be abused, be very time consuming, difficult to interpret and could

negatively affect development. The Regulations should provide clarity on relevant

considerations.

190. The reference in Regulation 109(9)(a) to section 34(2) of the Act makes no sense, should it not

be section 45(2)? Section 51(5) of the Act provides for a right of appeal for an interested person

who may be affected by a decision on a land development application. Section 51(5) requires

that such a person must have “a pecuniary or proprietary interest who is adversely affected or

able to demonstrate that she or he will be adversely affected by the decision of the planning

tribunal or an appeal in respect of such a decision.”. Regulation 109(9)(a) requires the opposite,

i.e. “….does not have a direct or indirect pecuniary or proprietary interest…”. Clarity must be

provided in this regard.

191. Regulation 109(9) further requires that such a person must also have made comments during

the initial process. The Regulations therefore provide for intervention and appeal rights and it is

not clear what the difference between these rights is and what the rationale for this provision is.

Regulation 109(9) should be reconsidered, firstly to determine what it really wants to achieve

and secondly to ensure that it is in line with section 45 and 51(5) of the Act.

Regulation 110: Jurisdiction of appeal authority

192. Regulation 110 again illustrates how complicated the land use management system is

becoming. Subregulation (2)(a) to (d) refers to the kinds of defect intended for review by the

High Court as referred to in section 22 of the Superior Courts Act, 2013 ( Act 10 of 2013) namely:

(a) absence of jurisdiction; (b) interest in the cause, bias, malice or corruption on the part of the

judicial officer; (c) gross irregularity in the proceedings; and (d) the admission of inadmissible or

incompetent evidence, or the rejection of admissible or competent evidence. The appeal powers

of the appeal authority is therefore limited to a review, that is a limited re-hearing with or

without additional evidence or information to determine, not whether the decision under


appeal is correct or not, but whether the MPT or authorised employee whose decision is taken

on appeal, had exercised their powers and discretion honestly and lawfully.

193. It is submitted that the appeal authority should consider the appeal on the merits of the

application itself. An appeal in the wide sense is required, that is, a complete re-hearing of, and

fresh determination on the merits of the matter with or without additional evidence or

information and in which the only determination is whether that decision was right or wrong.

194. Although regulation 110(1) provides that an appeal may be heard on merit and provide for

additional evidence or information to be considered by the appeal authority, the grounds listed

in subregulation (2) exclude the merits of the application.

Regulation 114: Representation

195. Representation at oral hearings is not supported. It may be appropriate in metropolitan centres

where suitable expertise may be available. It is doubtful whether it will lead to better decision

making in areas and municipalities outside of metropolitan areas. It will increase the costs of

various parties, some who may never be able to afford it or have access to suitable

representation. It will also lead to an uneven playing field.

196. Representation will also increase the cost of the MPT. Outside members and technical advisors

will have to be paid for attending multiple day hearings without the municipality having control

over such costs.

Regulation 135: Directives to municipality

197. Regulation 135(2) provides that an appeal decision must be published in the Provincial Gazette.

If all parties are informed of the decision, publication thereof in a Provincial Gazette is not

necessary. It will only add to an already expensive system, without adding value to the process.

It is recommended that the requirement to publish the decision in the Provincial Gazette be


Regulation 137: Strategic project

198. The correct citation of the Infrastructure Development Act, 2014 (Act No. 23 of 2014) should be

inserted.

Regulations 139: Functions related to spatial planning

199. Regulation 139(1)(b) refers to a “municipal strategic development framework” which has not

been defined in the Act or in the Regulations, unless the reference should be to a “spatial

development framework”. A municipal strategic development framework must be defined, or

amended to “spatial development framework”.

Regulation 140: Functions related to review of land use scheme

200. The provisions of Regulation 140 are questionable. This will mean that the municipality will be

responsible for incurring costs to determine what matters are of national interest. The

Regulations contain no provision for funding. What if the municipality incurs the expenditure

and approves the land use application on land that the national sphere may not even own at

that stage and the project does not go ahead or is delayed beyond the lapsing period of the

rights. Expensive NEMA applications may also be required.


201. Section 8(4) of the Infrastructure Development Act, 2014 specifies only that “….its future spatial

planning and land use is not in conflict with any strategic integrated project implemented in

terms of this Act.” This certainly does not mean that a municipality must now amend its land use

scheme accordingly. The Regulations should not place an obligation on municipalities to amend

their land use schemes at their own cost. It should only ensure that a municipality’s MSDF will

not be contrary to a proposal for a strategic integrated project.

Regulation 143: Deciding of request for exemption

202. If Regulation 143 is aimed at expedited development and service delivery, then the lengthy

process provided for in the Regulations will not assist in this regard. Consider shortening the

procedures provided for in Regulation 143.

Further general comments

203. In terms of section 8(1) of the Act, the Minister must, after consultation with organs of state in

the provincial and local spheres of government, prescribe norms and standards for land use

management and land development that are consistent with this Act, the Promotion of

Administrative Justice Act, 2000 and the IGRA. The Regulations were not preceded by such a

process of developing norms and standards, which would have been helpful in the drafting of

the Regulations.

204. Section 28(3) of the Act requires that the Minister must, after consultation with the competent

authorities, provide further guidance to provinces and municipalities to achieve national norms

and standards relating to land use changes. This has not been addressed in the Regulations and

will affect the implementation of the Act. The Regulations should address and be preceded by

the Minister providing further guidance to provinces and municipalities to achieve national

norms and standards relating to land use changes.

205. Section 37(2) of the Act provides that the terms and conditions of service of members

appointed in terms of section 36(1)(b) must be determined by the council, in line with norms

and standards published by the Minister. Such norms and standards have not been published yet

and will have an effect on the establishment of MPTs, the operation thereof and the

implementation of the Act. The Regulations should address and be preceded by the norms and

standards referred to in section 37(2) of the Act.

206. Section 52(6) of the Act provides that the Minister must, before the exercise of a power or the

performance of a function contemplated in this section and after public consultation, prescribe a

set of criteria to guide the implementation of this section. The Regulations do not address these

issues. The Regulations should address and be preceded by the Minister prescribing a set of

criteria to guide the implementation of section 52 of the Act.

COMMENTS TO IMPROVE DETAILED PROVISIONS IF INCLUDED IN DRAFT STANDARD BY-LAW

207. We comment on the detail of some of the Regulations in the paragraphs that follow below. Our

comments below are subject to our overarching comment that the detail of the Regulations

impede on municipal planning functions. Although we are of the view that the Regulations

should be revised to only contain norms and standards and broad managing provisions, we

submit the following comments which may assist in improving the provisions should it be

contained in a standard draft by-law.


208. Regulation 2 provides for the electronic submission of documents. The term “electronic

submissions” is not defined in the Regulations. It is assumed that it refers to e-mail submissions

but it is not clear whether sending a fax, a sms, or using social media, such as Twitter or

WhatsApp, or using a web-based application would be classified as an electronic submission. The

provision must clearly define the term “electronic submissions”.

209. Regulation 31(1) should be amended to provide for organs of state to also submit comments on

the land use scheme to address specific outcomes or mandates. The following amendment is

proposed:

“31 (1) Any person or organ of state intending to object to a draft land use scheme or to make

representations thereon must do so in writing by ....”.

210. It is not clear why the municipal manager must in terms of Regulation 31 consider the

objections or representations. It is surely for the council to decide or for the municipality to deal

with this aspect in terms of internal delegations.

211. Regulation 35(2)(b) provides that the inspector must “liaise with community structures

regarding illegal land uses”. It is not clear why there should be liaison with community

structures. If the land use is illegal, the appropriate action should be taken. It is suggested that

Regulation 35(2)(b) be omitted from the Regulations.

212. Regulation 35(2)(h) requires that the findings of non-compliance be referred to the executive

authority. If the purpose is to only inform the executive authority of certain actions then the

Regulations should state so, however currently there appears to be no action or outcome.

Depending on the rationale for referring the findings to the executive authority, these provisions

if incorporated in a standard draft by-law must be amended by inserting “for information”, in

Regulation 35(2).

213. It is not clear why 21 days is provided to the owner to potentially object to the notice in terms

of Regulation 36(2)(d), but Regulation 36(2)(e) still requires the owner to comply with the notice

within 30 days. Will the lodging of an objection suspend the requirement to comply within 30

days? It is recommended that if these provisions are incorporated in a standard draft by-law,

Regulation 36(2)(e) be qualified by requiring compliance with the notice, 30 days after the

outcome of a potential objection submitted in terms of Regulation 36(2)(d).

214. It is not clear what the administrator is required to do once he receives the notice of

compliance in terms of Regulation 36(3). Also, Regulation 36 only refers to a notice of non-

compliance. The Regulations must be clear whether the notice in Regulation 36(3) refers to the

notice of compliance or a notice of non-compliance. These provisions if incorporated in a

standard draft by-law must specify what the administrator is required to do with the notice once

received. In addition, the Regulations must clearly indicate whether it is the same notice being

referred to in the above provisions, and if so, the Regulations must be consistent in the use of

terminology.

215. Regulation 36(1) and (2) refers to a “notice of non-compliance”, Regulation 36(3), 37(1) and (2)

refers to “notice of compliance” and Regulation 37(3) to “the notice”. It is suggested that the

term “notice of compliance” be replaced with “notice of non-compliance”.

216. Regulation 49 should be amended by requiring that a registered agricultural scientist should

form part of the Appeal Tribunal when it is an agricultural related appeal to ensure that

agricultural land use management goals are met.

217. Regulation 71 should be amended to ensure that relevant agricultural documents and

information can be requested that must be taken into account for an agricultural application.


Regulation 71 may be amended by inserting subregulation (j) as follows: “in the case of an

application affecting agriculture, all relevant diagrams, maps, motivations, and studies that are

deemed necessary to enable the municipality to make an informed decision.”.

218. The publication of the notice referred to in Regulation 56(7) should also include the notice in

terms of section 37(4) of the Act in order to save time and costs and to avoid any duplication. It

is suggested that it should be provided that the notice should include the contents of section

37(4) of the Act and may not be published before the other qualifying factors required for this

are in place.

219. It is recommended that Regulation 61(2) be amended to rather provide that when a

municipality appoints a registrar and administrator to the Tribunal, the registrar may give the

administrator directions regarding the exercise of his or her powers under this Chapter. The

same will have to apply to Regulation 61(3).

220. Regulation 72 provides for the administration of simultaneous submission of applications. It is

suggested that provision be made for a prior written request to a municipality for cases where

an integrated application is to be submitted in order to determine the nature thereof, the

notification process, approval process and liaison with other affected organs of state.

221. The word “constitution” should be replaced with “constitute” in Regulation 78(2)(b).

222. Regulation 72 should be amended to make provision for a notice to be served on all organs of

state who are involved in the provision of social infrastructure. Regulation 75(2) should be

amended by inserting subregulation (f) as follows:

“(f) serve a copy of the notice on all organs of state with a responsibility for the delivery of social

infrastructure.”.

223. In order to ensure that agriculture is considered it is proposed that the list in Regulation 82(2)

be amended by adding “agricultural concerns” to the list of matters that must be considered by

a MPT.

224. Regulation 87 (1)(c) must be amended as follows to ensure that farmland which are subject to

conditions are also included:

“(c) the creation of a servitude in favour of the subdivided erven or farm or consolidated erven or

farm or against the subdivided erven or farm or consolidated erven or farm in favour of another

erven or farm;”

225. It is further proposed that Regulation 87(1)(a), (second (a)), should be amended to include “or

notarial link or separate transfer of such portion of land”, to capture provisions of the

Subdivision of Agricultural Land Act, 1970 (Act 70 of 970).

226. The reference to section 26(3) in Regulation 90 should be reworded to read as follows:

“…..contemplated in section 26(3) of the Act that person….” . The Regulation further refers to

“this Act” which should be amended to “the Act”.

227. Regulation 99 refers to the presiding officer of an appeal authority. In municipalities where the

mayoral executive system was established in terms of section 7 of the Municipal Structures Act,

1998 (all municipalities in the Western Cape, except for the City of Cape Town), it is assumed

that the mayor will be the presiding officer. This should be clarified in the Regulations.

228. The reference to judicial functions of the presiding officer in Regulation 99 is not correct and is

confusing. A decision of the appeal authority is administrative action. In terms of the

Constitution judicial authority is vested in the courts. The Act does not establish MPTs as courts

with the status similar to High Courts or Magistrate Courts.


229. It is not clear when the screening provided for in Regulation 106 should take place, i.e. when

the Appeal Authority originally receives the notice to appeal as required in Regulation 104, or

after an amended notice has been served based on the receipt of a notice to object. If the

screening should be done after the original receipt of the appeal, Regulation 106 should be

moved to after Regulation 104. If the screening is only intended to take place after a potential

notice to oppose has been submitted, should the notice not also include the notice to oppose

the appeal as well?

230. Regulation 107(b) should be re-worded as follows: “the municipal planning tribunal, [that] or

the official authorised by the municipality as contemplated in section 35(2) of the Act, who made

the decision;”.

CONCLUSION

231. The Regulations in its current form is not supported. An over-riding concern is that these

regulations are too onerous on municipalities and investors seeking to create and expand

businesses. The municipal planning process is already time-consuming and difficult. These

regulations appear to add layers of bureaucracy and red tape to the process. The Act lists a

number of principles such as efficiency, but the Regulations fail to implement these principles.

232. In conclusion it is submitted that these regulations are over-regulating municipal planning

functions and are impeding on municipal competencies. It covers content that should be

incorporated in standard draft by-laws and fails to identify national norms and standards to

which municipalities should adhere in drafting their own by-laws.

head of department piet van zyl reference: 15/2 of department piet van zyl reference: 15/3/3...

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