RELEVANT CONSIDERATIONS:
PROVINCIAL SUPPORT DOCUMENT
Presentation to City of Cape Town
Tania de Waal
Environmental Affairs and Development Planning
22 June 2015
CONTENTS:
1.
PURPOSE
2.
BACKGROUND
Important terms to understand
3.
DEVELOPMENT PRINCIPLES
4.
KEY CONSIDERATIONS
General
(Desirability & Public Interest)
Specific
5.
CASE LAW (X2)
© Western Cape Government 2013|
2
1.
PURPOSE
Assist officials, Authorised Officials, Municipal Planning Tribunal Members,
Appeal Authorities – to determine key questions, to inform relevant
considerations.
Document covers relevant considerations when assessing land use planning
applications in particular.
Does not cover relevant considerations when drafting or amending an SDF.
© Western Cape Government 2013|
3
2.
BACKGROUND
LUPA and SPLUMA provide for municipalities to be responsible for land
use planning.
Section 33 of Constitution requires organs of state to make decisions that
are lawful, reasonable & procedurally fair.
Also provides for national legislation to be enacted – which gives rights to
those who have been adversely affected by an administrative action – to
have administrative action reviewed in a court of law or independant &
impartial tribunal.
© Western Cape Government 2013|
4
2.
BACKGROUND CONTD.
PAJA promulgated to give effect to Section 33 of the Constitution.
Section 6(2)(e)(iii) of PAJA – “ a decision may be reviewed if irrelevant
considerations were taken into account or if relevant considerations were
not considered by the decision maker” .
Ito PAJA there are other reasons why an administrative action can be
taken on judicial review (Annexure 1)
© Western Cape Government 2013|
5
2.
BACKGROUND CONTD.
The relevant considerations contained in this support document have
been taken from SPLUMA, SPLUMA Regulations, LUPA and the City’s By
– Law.
N.B. This document = supportive text, does not substitute for legal
advice.
As background - Land use planning - developmental in nature ensure social and economic development.
© Western Cape Government 2013|
6
Important terms to understand
Administratively and procedurally fair
Lawful
Reasonable
Relevant Considerations*
Irrelevant Considerations
If considerations not relevant to the application taken into account
when making a decision - grounds for judicial review
© Western Cape Government 2013|
7
Important terms to understand
Relevant Considerations
Legislation decides what is relevant – decision maker must apply mind;
A sound decision addresses relevant considerations and takes into
account relevant facts;
In the absence of any statutory indications as to weightings –
weightings can be applied at the discretion of the decision maker . A
review court will examine if relevant facts were taken into account, but
not as a rule prescribe weightings.
© Western Cape Government 2013|
8
3.
DEVELOPMENT PRINCIPLES
General Principles
Tables with key questions (Spatial Justice, Spatial Sustainability, Efficiency,
Spatial Resilience, Good Administration)
Spatial Justice
Development Principle
Key questions & Considerations
LUPA 59(1)(a) past
spatial and other
development
imbalances should be
redressed through
improved access to,
and utilisation of land;
To what extent does the development / change
in rights:
• Rectify apartheid spatial planning legacy?
• Promote access of the poor to economic
opportunities, facilities, services?
Does development promote access to
ownership, particularly for the previously
disadvantaged?
Promote an integrated settlement?
© Western Cape Government 2013|
9
4a.
KEY CONSIDERATIONS: GENERAL
Apply to all development applications
Listed 21 General Considerations – some with sub categories
Examples of key considerations:
• Must make a decision which is consistent* with the municipal SDF.
• May not make a decision which is inconsistent with the municipal SDF.
© Western Cape Government 2013|
10
4a.
KEY CONSIDERATIONS: GENERAL
Compliant : The SDF specifically provides for the utilisation /
development of land, as contained in land use application.
Consistent: SDF does not specifically provide for utilisation or land
as proposed, but not in conflict with SDF.
© Western Cape Government 2013|
11
4a.
KEY CONSIDERATIONS: GENERAL
Examples of key considerations:
• May depart from the provisions of a municipal SDF in “site
specific circumstances”. (Physical aspects of site – geological,
locality, terrain, topography)
• Must ensure alignment with relevant structure plans, the PSDF &
applicable regional SDF’s.
• Must take into account public interest.
© Western Cape Government 2013|
12
PUBLIC INTEREST (partly based on SPLUMA Regulations)
Degree to which development principles & norms and standards will
be promoted or prejudiced.
Degree of risk / potential risk
Impact on existing and surrounding land uses
Long term benefits (rather than short terms gains)
© Western Cape Government 2013|
13
4a.
KEY CONSIDERATIONS: GENERAL
Examples of key considerations :
• Take into account the state and impact of engineering
services, social infrastructure and open space requirements;
• Consider further aspects, namely environmental concerns,
heritage and cultural factors, mining impacts, traffic impacts
and any other matters deemed necessary;
• The desirability of the proposed land use (City By-Law)
© Western Cape Government 2013|
14
DETERMINING DESIRABILITY
LUPO, Chapter V Section 36(1): A lack of desirability could result
in the refusal of an application.
LUPA – does not refer to a lack of desirability, nor does it require
there to be a positive advantage (i.e. the absence of a positive
advantage should not automatically lead to a decision to refuse)
- use judgement & discretion
© Western Cape Government 2013|
15
4b.
KEY CONSIDERATIONS: SPECIFIC
1. Determination of zoning:
Lawful utilisation of land or purpose for which it could be lawfully utilised
immediately before commencement of Municipal By-Law;
Zoning, if any, that is most compatible with the utilisation or purpose &
any applicable title deed conditions;
Any departure or consent use that may be required in conjunction with
that zoning;
[Specific Considerations : Removal of Restrictions]
© Western Cape Government 2013|
16
4b.
KEY CONSIDERATIONS: SPECIFIC
2. Amendment of Zoning Scheme
Municipality can amend the zoning scheme / land use scheme
after public consultation if:
• In the public interest;
• Will advance or is in the interest of a disadvantaged community;
• Necessary to further the vision and development goals of the
municipality;
© Western Cape Government 2013|
17
4b.
KEY CONSIDERATIONS: SPECIFIC
3. When determining development charges / contributions:
Key Considerations
Contents of the City of Cape Development Charges Policy
The municipal service infrastructure & amenities needed for the
approved land use (LUPA Section 40 (5))
Public expenditure incurred on that infrastructure and those amenities in
the past, that will facilitate the development (LUPA Section 40 (5))
© Western Cape Government 2013|
18
4b.
KEY CONSIDERATIONS: SPECIFIC
3. When determining development charges / contributions contd:
Key Consideration
Public expenditure that may arise from approved development
(LUPA Section 40 (5))
Money paid in the past by the developer for this development
(LUPA Section 40 (5))
© Western Cape Government 2013|
19
4b.
KEY CONSIDERATIONS: SPECIFIC
4. Validity period
Cannot be extended if (City By-Law, Section 107):
Key Consideration
The application for extension is submitted after the validity period has
expired;
The circumstances which prevailed at the time of the original approval
have materially changed;
The legislative or policy requirements applicable to the approval which
prevailed at the time of the original approval have materially changed.
© Western Cape Government 2013|
20
4b.
KEY CONSIDERATIONS: SPECIFIC
4. Validity period contd.
Cannot be extended if (City By-Law, Section 107) :
Key Consideration
The City believes that new or further conditions of approval are
necessary;
An approval for a temporary departure was granted
© Western Cape Government 2013|
21
5.
CASE LAW
1. Exercise of Discretion in Decision Making
MEC for Environmental Affairs and Development Planning v Clairison’s CC
(408/2012) [2013] ZASCA 82 (31 May 2013)]
Background :
MEC refused an Environmental Authorisation for the establishment of a
retirement village to the north of Plettenberg Bay;
WCHC reviewed & set aside decision of MEC. Grounds: MEC taken into
account irrelevant considerations and left out relevant considerations &
perception of bias.
© Western Cape Government 2013|
22
5.
CASE LAW
1. Exercise of Discretion in Decision Making
[MEC for Environmental Affairs and Development Planning v Clairison’s CC
(408/2012) [2013] ZASCA 82 (31 May 2013)]
Background contd. :
SCA found that MEC had taken relevant factors into account , decided
application on its merit, no reviewable irregularity or basis for bias.
(Refusing an application because it is contrary to departmental policy is
not objectionable bias)
© Western Cape Government 2013|
23
5.
CASE LAW
1. Exercise of Discretion in Decision Making
[MEC for Environmental Affairs and Development Planning v Clairison’s CC
(408/2012) [2013] ZASCA 82 (31 May 2013)]
Lessons:
If exercise discretion properly, a court will not interfere;
When a functionary is entrusted with discretion, the weight attached to
the factors considered, is a matter for the functionary to decide. The
court merely requires that relevant considerations are taken into
account.
© Western Cape Government 2013|
24
5.
CASE LAW
2. Setting aside of an administrative action [MEC for Environmental
Affairs and Development Planning v Noel Greve (A348/13) (5
February 2014)]
Background:
MEC upheld an appeal against a departure for a guesthouse in
Knysna
• Would negatively impact on existing rights of neighbouring
property owners
• Not in line with “Accommodation Establishment By-Law”
© Western Cape Government 2013|
25
5.
CASE LAW
2. Setting aside of an administrative action [MEC for Environmental
Affairs and Development Planning v Noel Greve (A348/13) (5
February 2014)]
Background:
• Court set aside decision of Minister / MEC - for taking into account
“irrelevant considerations” i.e. a By-Law that had been repealed
• High Court – upheld the appeal - Ministers decision influenced by
a host of considerations, not afforded equal weighting.
(Reference to By-Law only played a secondary role in Ministers
decision to uphold the appeal )
© Western Cape Government 2013|
26
5.
CASE LAW
2. Setting aside of an administrative action [MEC for Environmental
Affairs and Development Planning v Noel Greve (A348/13) (5
February 2014)]
Lessons:
• Ito PAJA - administrative action only set aside where decision
materially influenced by an error of law
• Degree to which ‘bad / impermissible reason’ influenced a
decision – will determine if decision “set aside”. (Emphasis on
weighting considerations)
© Western Cape Government 2013|
27
Thank you
Directors’ Contact Details
Comments and/or queries to be submitted to:
Region
Director
Email
Telephone
Region 1:
• City of Cape Town
• West Coast
Zaahir Toefy
Zaahir.Toefy@westerncape.gov.za
(021) 483 2700
Region 2:
• Cape Winelands
• Overberg
Henri Fortuin
Henri.Fortuin@westerncape.gov.za
(021) 483 5842
Region 3:
• Eden
• Central Karoo
Gavin Benjamin
Gavin.Benjamin@westerncape.gov.za
(044) 805 8618
© Western Cape Government 2013|
29