PLANNING & BUILDING DEVELOPMENT MANAGEMENT DEPARTMENT
DEVELOPMENT POLICY, PROCESSES & LEGISLATION BRANCH
General Planning and Legal
FAQ database
Nr
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Category
Advertising
Question
Answer
In communities / areas where registered mail is guaranteed
not to be collected, should one continue serving notices by
registered mail?
Yes, as required by legislation affected parties need to be
notified of applications. This is done by means of registered
letters. For this purpose the contact details of property
owners are used as per the City’s latest database. Failure
to comply with this may render an application process
reviewable. The City’s Notification Policy does however
state that, where applicable, this is the minimum
requirement. Where appropriate, delegated officials may set
additional requirements to overcome this problem (e.g.
letter drops by applicants).
2
If for example a Removal of Restrictions and rezoning
application was advertised in August 2007 and the
application is only ready for report writing 36 months
thereafter, the application needs to be re-advertised in
terms of Section 6.7 of the Notification Policy, in lieu of the
time period lapsed. Who bears this re-advertising cost Council or the applicant? Does Paragraph 6.2 of the
Notification policy also apply in this instance?
The period is actually 30 months. Unless the delays are due
to Council’s negligence or fault, Par 6.2 applies and the
applicant is responsible for the additional advertising cost.
3
In case of RoR applications where a whole township must
be consulted (and as a result of the significant costs
involved) can separate applications be advertised together
Yes, press advertisements can be done combined but
separate individual notices (can be put in same envelope to
save costs) must still be served on affected property
General Planning and Legal advice - FAQ database Posted_7 May 2012
to save costs?
owners.
4
Building Plans
What happens when an approved building plan is still valid,
but the implicit (approved) departure therein has lapsed –
can the building plan still be implemented?
Although the previously approved building plan would now
be based partly on a lapsed departure, and unless
specifically set aside by a court, there is no mechanism to
prevent implementation of the building plan as long as it
remains valid (ie the approval stand). However, if a ryder
plan is to be considered, this should not be finalised before
a fresh departure approval is issued. Where departures are
still valid and extension of the validity of the building plan is
requested, this should only be granted up to the end of the
departure validity period.
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CTZS
Interpretation of “base level” – what happens in the case of
a site which has to be remodelled to comply with the Flood
Plain Management Policy? In such a situation would the
new finished ground level be seen as the base level?
There is no ‘finished ground level’ per se anymore in the
CTZS, but the new scheme does permit limited raising of a
ground floor up to a maximum of 1,5m (which creates a
new base level, from which height is measured) – see
18.6.1(a).
In the definitions of “floor space” paragraph (ii) allows that
“any area required for external fire escape” may be
excluded from floor space yet (viii) of the same definition
states that in a multi-level building any stairwell shall only
be counted once. Does this mean that, in a multilevel
building that is primarily serviced by lifts, the staircases,
which are only provided for fire escape purposes, are
excluded from the floor space? If this is the case what
happens in a 3 storey building that has no lift but which
requires 2 fire escape stairs?
Yes, but they (each) can only be excluded once, as
opposed to for each floor. In the 3 storey building, each
staircase can be excluded once, i.e. on a single floor, not
on each floor.
I have an application for a rezoning. No objections were
received but the proposal is against policy. For this reason
we wish to refuse it.
Does this application go to Subcouncil or SPELUM and
which delegation do we use?
It would go to SPELUM (via the Director with a cover memo
to not exercise her delegation of refusal), but not because
the proposal contravenes policy (as the decision would
actually be consistent with the policy), but as a default
where any decision maker chooses not to exercise his/her
rd
delegation – 3 par on p117.
Where NEMA EIA Approval may be required for a
development, can a regulation departure be granted without
Where the departure is implicit in the listed activity it should
not be granted as this may raise expectation regarding
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Delegations
Departures
General Planning and Legal advice - FAQ database Posted_7 May 2012
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the EIA ROD being issued yet, as long as the building plan
has not been approved?
building plan approval.
Can further conditions be imposed with an extension
application for a departure approval?
Section 42 of LUPO empowers the decision maker to
impose any condition when authorization is granted. This
provision does not exclude the authorization for extension
of time. “Further” conditions may thus be imposed but it
must comply with the criteria as provided for in the
legislation. When considering an application for extension
one should not reopen the merits/desirability debate.
10
General
When an application is submitted for the extension of an
approval, is it considered to be a new application (with new
conditions etc where circumstances have changed)?
Although logged separately, such application for the
extension of an approval is not a new application. New
conditions should not be imposed with such application.
Should it be necessary to amend a condition(s), the
municipality should consult with the owner and advise
him/her that an amendment of conditions application is also
required.
11
Servitudes
Normally servitude diagrams are approved for access or
line services e.g. water, sewerage, etc. without local
authority consent.
There is a need to clearly distinguish between the ROW
servitude, which gives the right of access across a property
only (without stopping), and a servitude which permits an
activity (parking) taking place.
What is the situation with regard to parking areas or parking
servitudes? I'm currently examining a diagram designated
'Servitude Right of Way (Parking)'', the ROW inclusion is
clearly to get around the consent - but would a 15/1985
consent be required for the parking area?
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Subdivision
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Removal
Restrictions/Title
Conditions
of
Deed
These parking bays/areas should obtain a Section 25
LUPO approval. These parking bays/areas also become
units of land whose servitude right may be "transferred" to
other parties.
The Provincial Circular on Section 23 exemptions list
transfers to and from the state as a case qualifying for
subdivision exemption. Is the Municipality (i.e. Property
Management department) also seen as part of State for this
purpose?
Yes, it does however not exempt the City from any required
rezoning processes if not permitted by the scheme.
What happens if a title deed condition calls for HOA
approval to transfer property, but the HOA has ceased to
function?
Approval from all individual property owners will need to be
obtained unless a new HOA Committee can be established.
This is however an obligation on the applicant/property
owner.
General Planning and Legal advice - FAQ database Posted_7 May 2012
If the Registrar of Deeds requests the Council to state that
a HOA has not been established, or has ceased to function,
the Council will only do so after the relevant Conveyancer
has investigated this and confirmed to the Council that it is
indeed the case. The Council can then provide such a
statement, indicating that it is done to the best of its
knowledge.
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Rezoning
When do rezoning rights become effective?
There must be physical manifestation of the rezoning eg.
Work on site such as trenches. An approved building plan
would not count as manifestation. Extensions can be
applied at any time but the approval should be finalised
before the 2 year lapsing.
When should formal closure of Roads and Public Open
Spaces happen, before or after a rezoning approval is
given? Is there a written approved process to guide such
closures?
There are currently no specific guidelines dealing with this.
Closure is supposed to happen before rezoning of a public
open space or road portion. Rezoning can always happen
after closure at a later stage, but you cannot rezone out of
road or POS (to another use) before such closure has taken
place.
General Planning and Legal advice - FAQ database Posted_7 May 2012