TOWARDS A WESTERN
CAPE LAND USE
PLANNING ACT
Prof. Jaap de Visser (UWC)
for
Department of Environmental Affairs and
Development Planning
Objectives of LUPA
• establish firm link between forward planning and development
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management
regulate municipal / provincial roles in land use planning
facilitate ‘asymmetry’: a system that suits municipalities of varying
capacity/resources
find a way to deal with objections / IGR disputes – courts as last
resort
rationalise legislation, create mechanisms for ‘one stop’ application
Debates
• How to ensure alignment between provincial and municipal forward
planning?
• Can Province take decisions on specific land use applications or
can it only adopt plans?
• Municipal power to make by-laws on planning
• What about the national Spatial Land Use Management Bill?
Debate over forward planning
• province wants leverage over forward planning at the level of
municipalities
• constitutional power over “provincial planning”, “urban and rural
development”, “regional planning and development”, “housing”,
“environment” etc.
• municipalities want province to limit itself to province-wide planning,
i.e. only a PSDF
• municipal SDF (with urban edge) is part of “municipal planning”
• Bill: integrated process towards one municipal SDF (with ‘a way out’
if conflict persists)
LUPA on municipal SDFs
• municipal and provincial officials jointly prepare one municipal SDF
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with 2 maps, dealing with municipal and provincial matters
Municipal Council adopts SDF
MEC certifies provincial map on basis of provincial grounds  1
plan reflecting province + municipal concerns
Conflict?  Land Use Planning Board recommends a solution to
municipality
Municipality rejects?  municipality and province each adopt their
own forward plan for that municipal area – both are binding
Debate over provincial role in development management
• Local government:
• “CC’s DFA judgment implies that municipality decides on all
applications, province may only regulate, support and monitor”
• “province may not interfere with zoning schemes”
• Province:
• no, certain applications go beyond municipal interest (Lagoon Bay
judgment)
• “provincial planning” includes power to adopt zoning scheme dealing
with matters of provincial interest
• Bill:
• integrated process towards one municipal zoning scheme (with ‘a
way out’ if conflict persists)
• municipalities decide on all applications but sometimes a provincial
decision is also needed before development can happen
LUPA on zoning schemes
• municipal and provincial officials jointly prepare zoning scheme
• Municipal Council adopts zoning scheme
• MEC certifies zoning scheme on basis of provincial grounds ( 1
zoning scheme reflecting province + municipal interests)
• Conflict?  Land Use Planning Board recommends a solution to
municipality
• Municipality rejects?  municipality and province each adopt their
own zoning scheme for that municipal area, both are binding
LUPA on land use applications
• municipality receives, processes and makes a decision on all land
use planning applications
• only if the application (1) affects provincial interest and (2)
municipality approves  municipality must refer to MEC for
provincial decision
• developer then needs both approvals
• criteria in s 2(4):
• not on certified SDF, and
• large scale OR impact on provincial functions
• The Bill incentivises integrated approach to SDF and zoning scheme
• process of joint preparation
• pressure to arrive at one, instead of two plans/schemes
• if certified SDF allows development  no need to refer to MEC
 two-plan/scheme route should be exception

referrals to MEC only in small minority of
cases
By-laws
• municipality may adopt its own by-law to regulate “municipal
planning”
• by-law must comply with minimum standards of LUPA
• public participation
• role of registered planner
• mechanisms for ‘one-stop’ application
• time frames for decisions
• objections to Board.
• LUPA will include a ‘default by-law’ that (automatically) applies until
municipality adopts by-law
• Asymmetry: should work for both municipalities of various
sizes/levels of capacity
Objections and disputes
• objections:
• unsuccessful applicant
• ‘angry’ neighbour
• disputes between Province - Municipality:
• dispute over SDF / zoning scheme
• dispute as to whether MEC should approve a particular application
• alignment of plans, etc.
Debate about objections and disputes
• Municipalities:
• “objectors must use internal appeal, then go to court”
• “current LUPO appeal = unconstitutional”
• “refer IGR disputes to arbitration”
• Province
• internal appeal = inadequate, courts are expensive and inaccessible, need
for alternative remedy for citizens  Land Use Planning Board
• perhaps, but recommendation by independent Board is not
• Board will compose national and provincial nominees  IGR dispute
resolution
LUPA on objections
• aggrieved party may object against municipal/provincial land use
decision to Land Use Planning Board
• Board makes a recommendation
• if applicable  municipality confirms, revokes or amends its decision
Expectation:
• transparency, advice of independent review body and ‘paper trail’
should prompt responsible decision making
National Spatial Planning and Land Use
Management Bill (SPLUMB)
• national must adopt by June 2012 (CC’s DFA judgment)
• essential national minimum standards may prevail
• draft of May 2011, Province argued for provincial discretion
• constitutional duty to coordinate legislation (applies to province and
national)
• currently, LUPA not (always) aligned with May draft e.g.
• no provincial development management authority (in first instance)
• SPLUMB prescribes municipal tribunals with outsiders
• no provincial certification of SDFs/zoning schemes
• different treatment of appeals
• different timeframes / review cycles etc.
Thank you