Framework for division of land
use planning
Jaap de Visser
Associate Professor
Community Law Centre, UWC
March 2010
Problem statement
• Who does what when it comes to land use
planning?
• Constitution allocates land use planning and
development powers to national, provincial &
local government
• “Wall-to-wall” local government  no division
on basis of territory, but on basis of interests
• How to manage the confusion?
What is the provincial interest in land
use planning?
1. Province wants to see to it that municipal
land use planning is done properly
2. Provincial government has its own
constitutional competences, some of which
entail land use regulation
Suggested approach to interpreting
land use planning powers
1. What does “municipal planning” mean?
2. What is the provincial interest in land use
planning?
3. Does the Province have powers to deal with
those interests?
4. What practical instruments can be designed
to manage the overlap?
Overall approach: “intra-municipal” vs
“extra-municipal” issues
• Land use planning and management that has intramunicipal impact only  “municipal planning”
– Ordinary subdivision
– Development application for vacant land in town
– Cornershop in main road
• Land use planning and management that has impact
beyond municipality  “provincial planning”
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Building of a large mall with taxi rank, access roads etc
Retirement estate in environmentally sensitive area
Industrial plant along a scenic tourism route
Development that puts stress on municipal bulk
infrastructure
Define “municipal planning”
• City of Johannesburg (SCA): “municipal
planning” = land use planning and
development management (not just
forward planning)
• Swartland (WCape High Court): having
national mining rights doesn’t absolve
you of duty to apply for rezoning
Provincial supervision of “municipal
planning”
• “Municipal planning” (Sch 4B) is not exclusive to local
government
• Provincial government also has authority over “municipal
planning”
• But this authority is limited (‘hands-off’)
1.
2.
Objective: “to see to the effective performance”
Limited to framework legislation (s 155(7))
• May not be used in a manner that compromises and
impede municipality (s 151(4))
PRINCIPLE: MUNICIPALITY MUST BE ABLE TO EXERCISE POLICY
CHOICES ON 4B AND 5B MATTERS
What can province do with respect to
“municipal planning”?
For example:
• Prescribe general land use categories to be used
• Prescribe criteria to be taken into account
• Minimum standards, e.g. with regards to community
participation
• Monitoring scheme
• Prescribe to municipality to refuse land use application
in certain, narrowly defined circumstances.
• Does not need to be “one-size-fits-all”
Overall principle: don’t compromise or impede
Provincial interest: Province has its own powers,
some of which may entail land use regulation
• Provincial government has its own constitutional
powers (Schs 4A and 5A: “environment”,
“agriculture” etc))
• Many of them give provincial government land
use planning and land use management powers
• These powers are not limited to framework
legislation – provincial government must be able
to exercise policy choices on Sch 4A and 5A
• But may not be used in a manner that
compromises or impedes municipality
Example: Sch 4A:
“Agriculture”=national/provincial power
• Subdivision of Agricultural Land
(Dpt. of Agriculture approves subdivision of
agricultural land)
• Is that a violation of “municipal planning”?
OR
• National government acting in terms of
“Agriculture”
Example: “Tourism”= provincial power
• Building a factory alongside a provincial scenic
route
• Multitude of retirement estates in province
• Provincial law may reduce municipal authority
because it acts in terms of its own
constitutional authority
• Key: how? How detailed? How prescriptive?
• Overall principle: “don’t compromise and
impede”
Environment
• Provincial government has protection of the environment
as an immediate mandate
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Environment
Pollution Control
Indigenous Forests
Soil conservation
Nature conservation
• ‘Extra-municipal impact’ (effects straddles municipal
boundaries, municipalities not required to have capacity)
• Provincial government may, in terms of that constitutional
authority, regulate /administer land use.
• Overall principle: “don’t compromise and impede”
Appropriate instruments to manage
overlap
• Tension, disagreements  inevitable
• Key: how to resolve them?  appropriate instruments
to manage the overlapping interests
• Can be provided for in a new Land Use Planning law
• “hands-off” and “hands-on” instruments
– ‘Hands-off’
Instruments where Province keeps a distance because it
may not unduly interfere with “municipal planning”
– ‘Hands-on’
Instruments where Province is more intrusive because it
has constitutional authority
‘Hands-off’ instruments
• Municipal decision but cooperation
– IGR forums, IDP alignment, consultation etc.
• Support
– Model by-laws, training advice
• Regulating minimum standards, monitoring and
intervention
• Regulating a provincial comment before the
municipality takes a decision
– Form of prescribed consultation
– Must take into account
– Municipality ignores at its own risk
‘Hands-on instruments’
• Alignment of plans
– Provincial planning: Province may insist that its plans
are complied with if those plans are based on
provincial authority (e.g. Provincial spatial
development framework)
– ≠ IDP alignment
• Example: provincial spatial plan provides for
tourism route, development corridor,
environmentally sensitive area etc. 
municipality must respect that plan
‘Hands-on instruments’
• Transferring power to local government
– Provincial government may transfer (parts of) a
function to local government or to a municipality
‘Hands-on instruments’
Procedure to lodge objections
• Provincial government cannot be appeal body
(as is the case now ito LUPO)
– E.g. Appeal against ordinary subdivision
If provincial government cannot take the original
decision, it cannot take the decision on appeal
• But neutral outside body may decide on
appeals (from third party, municipality and
provincial government)
When is objections procedure
permissible?
• Neutral body
– Representative of both spheres
– Representative of planning/legal fraternity
– Insulated from provincial interference
• With limited mandate
– If it deals with “municipal planning”  only refer
matters back to municipality
– If it deals with extra-municipal dimension  refer
matter to competent authority
‘Hands-on’: Provincial approval of
municipal decisions?
• Does Province have power to approve zoning
schemes and spatial development frameworks?
• Administrative approval of municipal decision
making on original, constitutional competencies
 not approved by Courts (CDA Boerdery
judgment wrt property rates)
•  no power to approve all (aspects of all) zoning
schemes and spatial development framework
• But zoning schemes/SDFs may contain ‘provincial’
matters  more intrusive means permissible
with respect to those
Determination of urban edge
• Single decision that captures both municipal and
provincial interests
– Municipal interest: search for location for new
developments, infrastructural requirements, new
economic opportunities, expansion of rates base
– Provincial interest: protection of bio-diversity, climate
change mitigation, integrity of land use planning and
management
• Both interests are buttressed by constitutional powers
• Conclusion: determination of urban edge cannot be an
exclusive municipal authority and cannot be exclusive
municipal authority
• Most appropriate instrument to manage overlap?
Way Forward
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Draft Framework
PCF
Written Comments before 15th April
Drafting of Bill