SACN RESPONSE TO THE SPATIAL
PLANNING & LAND USE
MANAGEMENT BILL
G E M E Y A B R A H A M S C O N S U L T I N G
S A C N O F F I C E S , J O H A N N E S B U R G
1 J U N E 2 0 1 1
OVERVIEW OF DISCUSSION
1. Background to planning law reform in SA since
1994
2. What can a new national planning law do in SA
today?
3. Key features of the SPLUMB
4. Going forward
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BACKGROUND: THREE OPPORTUNITIES
TO CHANGE PLANNING LAW POST-1994
• This bill comes at the end of the third major
opportunity to reform planning law
• First opportunity – early/mid-1990s, FEPD, DFA, DPC
• Second opportunity – around 2000, Systems Act (IDP) and
NEMA (EIA regulations)
• Third opportunity – 2000s, post-2001 White Paper on Spatial
Planning & Land Use Management
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BACKGROUND: THE ‘DFA CASE’
• 2010 Constitutional Court ruling in CoJ v GDT
• Definition given to ‘municipal planning’
• Key chapters of the DFA unconstitutional
• 2-year deadline set for legislative reform
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THE POST-SPLUMB, POST-COJ V GDT
ERA
• No DFA
• Applications that would have gone via DFA now all
to municipalities in terms of Ordinances
• LeFTEA & Ordinances legally suspect
• New era provincial laws in 2 provinces only
• and they’ll need revision to fit SPLUMB
• Provinces under pressure to make new laws
• Municipalities under pressure
• to establish new planning tribunals; and
• draw up new Schemes.
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WHAT CAN A NEW LAW DO?
WHAT’S THE POTENTIAL ‘VALUE-ADD’?
• Clarity as to each sphere of government’s powers
and functions
• Rationalisation of multiplicity of overlapping,
contradictory and outdated legislation – to
increase efficiency
• Development of new instruments for new
challenges: informal settlements; gated
communities; mega events; social housing; land
under traditional areas etc
• Rules that concertedly shift the way the urban (and,
less so, rural) land markets work
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WHAT CAN A NEW LAW DO?
AND WHAT ARE THE CONSTRAINTS?
• Land use management (and spatial planning) are
currently governed by a host of laws: provincial
Ordinances, Less Formal Township Establishment
Act, R293 (1962), BCDA regulations (1986),
homeland laws etc – almost all now to some extent
unconstitutional
• ‘municipal planning’ now is defined but the scope
of provincial and national powers remains unclear
• Provinces have battled to produce their own new
planning laws to replace the pre-1994 Ordinances
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WHAT CAN A NEW LAW DO?
AND THE DIFFICULT CHOICES ARE…?
• Framework or Comprehensive law
• Combined spatial planning and land use
management or separate laws
• Detailed integration with other approvals or
enabling of local and provincial integration
arrangements
• Uniform system for all land development and all
types of area or specific rules for specific
circumstances (including fast-tracking for special
projects, post-DFA)
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THE SPLUMB’S INNOVATIONS
• Local government the primary point for land use
management decision-making, via Municipal Planning
Tribunals (clause 31)
• Restricted grounds for appeal to provincial tribunal (clause 36)
• Power for national minister to intervene when ‘national interest’
at stake (clause 43)
• Councilors excluded from land use management decisionmaking (clause 33)
• Mandatory national and provincial Spatial Development
Frameworks (also Regional SDFs) (chapter 4)
• Specific requirements for land use management to be
inclusive of informal settlements, areas under traditional
leadership (clauses 20 and 22)
• Rule against property value being a factor in land use
management decision-making (clause 55)
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KEY FEATURES OF THE SPLUMB:
THE CONSTITUTIONAL STARTING
POINTS
Provincial & National government
• Concurrent legislative powers on municipal planning, with
conflicts resolved in terms of s146
• Provinces have exclusive legislative powers on provincial planning
(national law on provincial planning only possible where
necessary in terms of section 44(2)
Local Government
• Executive power in relation to municipal planning, subject to:
•
•
•
regulation by national and provincial law; and
overlaps with national and provincial areas of land-use related
legislative competence (e.g. environment, agriculture, mining),
although these national and provincial laws may not ‘impede’ local
government’s powers.
Legislative powers in relation to municipal planning
•
By laws…
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BACKGROUND: THE POWERS
AND FUNCTIONS
Schedule 4 (areas of concurrent
legislative competence)
Schedule 5 (areas of exclusive
provincial legislative competence)
Part A
Part B
Part A
Part B
Environment
Municipal planning
Provincial planning
-
Regional planning &
development
-
-
-
Urban & rural
development
-
-
-
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STRIKING A
CAREFUL
BALANCE
1 June 2011
“In summary the SPLUMB must
strike a careful balance
between maintaining the
autonomy of municipalities in
controlling and regulating land
use, while doing justice to the
national government’s interest
in providing a framework for
municipal planning and the
national government’s interest
in exercising national powers
that impact on land use. In
addition, all of this must be
done in a manner that also
respects the provincial
authority to adopt provincespecific legislation to regulate
a provincial planning
framework.”
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KEY FEATURES OF THE SPLUMB:
FRAMEWORK OR COMPREHENSIVE?
This is framework legislation.
It couldn’t be comprehensive legislation without
the support of all provinces.
It places a large burden on provinces which now
have to draft legislation in line with the framework.
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KEY FEATURES OF THE SPLUMB:
REPEAL OF NATIONAL LAWS
Development Facilitation Act
• Municipalities in DFA-dependent provinces will have
to assume a greater administrative &planning load
• No mechanism given to fill the vacuum left by DFA
Removal of Restrictions Act
• Until provincial law fills the gap, Removal of
Restrictions will have to be done via High Court
Physical Planning Act
• Very out of date, but still playing a role
• Need for transitional measures, rather than simple
repeal
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KEY FEATURES OF THE SPLUMB:
NON-REPEAL OF NATIONAL LAWS
BCDA and BAA regulations
• again, onus of repealing and replacing these
regulations falls on provinces
• SPLUMB should repeal and guide on replacement
Less Formal Township Establishment Act
• SPLUMB should clearly confirm that LeFTEA is no
longer constitutionally sustainable
• SPLUMB should guide the repeal of LeFTEA and
guide the development of similar fast-track
mechanisms in new legislation
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KEY FEATURES OF THE SPLUMB:
INTEGRATING APPROVALS
A voluntary model (clauses 28 & 29)
• Is this sufficient?
• What else is feasible?
• Clause 24(3) and the relationship between the
provisions of a LUM Scheme and those of other
legislation (e.g. MPDRA, Act 70…)
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KEY FEATURES OF THE SPLUMB:
PROVINCIAL & NATIONAL ROLES
Provincial appeal powers
• SPLUMB must clarify relationship between s62
‘internal appeal’ (Systems Act) and SPLUMB clause
36 appeal to Prov. Pl. Tribunal
• Clause 36 limits grounds of appeal (are these
grounds appropriate/correct/workable?)
• It is problematic to limit grounds of appeal to PPT
through criteria of national interest
National intervention
• The grounds for national intervention are excessively
wide and must be tightened
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KEY FEATURES OF THE SPLUMB:
DECISION-MAKING CRITERIA
SPLUMB decision-making has to be informed by:
• General Principles in Chapter 2;
• Norms and Standards (clause 5), which have yet to
be formulated; and
• Muni. SDFs
In a context of scarce planning resources – and the
need for more predictable decision-making – is it
helpful to introduce so many criteria?
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KEY FEATURES OF THE SPLUMB:
GEOGRAPHIC SCOPE
The SPLUMB makes important progress towards
demanding inclusive planning & LUM (for example in
informal settlements), but it passes the responsibility
for addressing the worst legacy of apartheid-era
planning laws to provinces and municipalities, with
minimum guidance.
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GOING FORWARD: HOW TO MAKE THE
SPLUMB WORK?
1. SPLUMB cannot be allowed to proceed as is, or
even with major revision.
2. SPLUMB has to be:
a. Fixed; and
b. Supplemented with subordinate legislation.
3. In the short term (by June 2012):
a. Fix SPLUMB; and
b. Develop a DFA/LeFTEA hybrid that is constitutional.
4. In the medium term (by 2014):
a. Develop a model provincial SP & LUM law;
b. Develop model SP & LUM by laws for different categories
of LG; and
c. Establish a national SP & LUM Legal Implementation
Support Team
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GOING FORWARD: THE PROCESS
1. National government cannot drive this process
alone.
2. All three spheres have important roles and must
be able to hold each other to account in the lawmaking.
3. Local government has to be central to planning
law reform initiatives because of ‘municipal
planning’.
4. Provinces must be part of the process to ensure
alignment of new provincial legislation with
national framework.
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