Frequently asked questions (and answers) on the amended Section 44 LUPO Appeals, based on the Habitat Council Judgement (also referred to the Davis Judgement)
1.
What is the context within which the Minister is allowed to decide on appeals in terms of the amended LUPO Section 44, as per the Davis judgement?
The Court Order has restricted the current appeal process in terms of LUPO to a narrower appeal. There are basically three possible ways (or combinations thereof) that the Minister will be able to decide on appeals: a) Dismissal of an appeal
In terms of subsection 44(2) of LUPO, as amended, the Minister may, after consultation with the Council, dismiss an appeal against the decision of a council. In this instance the Minister effectively agrees with the municipality and therefore dismisses the appeal. b) Setting aside of municipal decision
Section 44(3)(a) of LUPO, as amended, permits the Minister, in instances where the
Minister is of the opinion that a municipality did not effectively perform its functions in respect of a municipal planning matter, to set aside this decision or part of a decision, thereby referring it back to the council, requiring it to reconsider the matter. The
Minister will provide reasons for this decision, and these reasons will form part of the reconsideration of the matter by the municipality. c) Substitution of Municipal Decision
Section 44(3)(b) of LUPO, as amended, permits the Minister to substitute his decision for that of the municipality only in instances where the Minister is of the opinion that the application also concerns provincial planning considerations and that the
Municipality has made an incorrect decision on these aspects.
2.
Are all Municipalities, appellants and other interested parties aware of the different appeals that must be implemented in terms of the amended Section 44 of LUPO? a) The Western Cape Government Environmental Affairs and Development Planning issued Circulars 7 & 8 of 2013, which spell out the implications of the recent Davis
Court Judgment and the amendment to the General Structure Plan, which delegated all first instance planning decisions to the Municipality. b) The Municipal Circulars were sent to all members registered on the Departmental database. This includes the Mayors, Municipal Managers and all Chief Town and
Regional Planners of all the Municipalities in the Western Cape as well as all the others on the database, which include various professionals involved in Planning (such as planners, environmentalists and engineers, which at present amount to over 1400 people). c) Circular 8 of 2013 urged Municipalities to change their standard letter which conveys the right of appeal in terms of section 44 of LUPO, in such a way as to clarify the manner in which the Minister will be addressing appeals for the next 24 months, or until such time as new planning laws are implemented. d) The Western Cape Government Environmental Affairs and Development Planning has been visiting all Municipalities to discuss the implications of these changes and will continue to render support where needed.

3.
What are the relevant considerations which will be taken into account, when the Minister assesses an appeal in terms of the amended Section 44 of LUPO, as per the Davis
Judgement?
The Court Order has effectively restricted the current appeal process in terms of LUPO to a narrower appeal. The amendments to section 44 of LUPO means that the Minister will have to assess appeals within the context of his monitoring & support functions as determined by the Constitution.
EXAMPLES OF RELEVANT CONSIDERATIONS FOR ASSESSMENT
(This is not to be confused with relevant considerations as stipulated in PAJA. Here it refers to those relevant considerations that the municipality should take into account in reaching a decision. In DEA&DP’s relevant considerations, the Minister will obviously check whether relevant considerations that should have been considered by the municipality, were in fact considered or whether the municipality included considerations it should have). a) Did the Municipality take a decision on the application? b) Was due process followed by the Municipality? c) Was there any gross misconduct or neglect which could point toward the municipality not effectively performing its planning functions? d) Were all relevant factors / information considered by the Municipality? e) Was section 36(1) of LUPO considered by the Municipality and is the decision rationally connected to the reasons provided? f) Were any irrelevant factors / information considered by the Municipality that affected the outcome of the decision?
4.
How will appeals already in the provincial system be assessed, if the appellant did not previously have the opportunity to speak to the relevant considerations in his appeal?
(The rules have changed midway through the process)
The relevant considerations are “PAJA – type” considerations, which rely strongly on the following of a fair and administratively just process by the Municipality, in terms of prescribed law. These considerations were already in place when the appeals currently in the provincial system were submitted. Due to the change in emphasis from “merit based” assessment to “PAJA based” assessment, the appellant will have to rethink his/her position. In certain simple cases (such as those involving smaller adjustments to building line setbacks or height restrictions), it might be more viable (time-wise) to withdraw the appeal and to rather re-engage on Municipal level. It is true that the rules have changed mid-way in the process for some applications, but the Minister will still have to consider whether or not the process followed was beyond question.
5.
How will Municipalities be assisted to commit to an internal restructuring to accommodate the new procedures, especially those with dual LUPO and Removal of Restriction applications?
The Western Cape Government Environmental Affairs and Development Planning will be visiting all Municipalities to discuss the implications of these changes and will continue to render support where needed.

6.
The Habitat Council judgement (First Respondent’s Heads of Argument) page 17 says the
Province is responsible for…”provincial functional areas such as agriculture (like urban development beyond provincially designated urban edges)”. What does the judgement mean by “provincially designated urban edges”? Are these the NEMA edges? Do we currently have any NEMA edges?
The Department has not accepted any urban edges in terms of NEMA yet. To date the only urban edges are determined as part of the municipal spatial development frameworks in terms of the Municipal Systems Act, 2000 (Act No. 32 of 2000), which is a municipal competency. Also, paragraph 2.1 of Circular 7 of 2013 refers to “the approved urban edge of a town in terms of an approved Municipal SDF and where no approved
SDF exists, the built up area of a town”.
7.
Is it correct to state that the Western Cape Government is currently still responsible for applications in terms of the Removal of Restrictions Act (1967) and that municipalities can decide to ignore the content of the circular in this regard?
Municipalities must provide a recommendation on a Removal of Restrictions Act (1967) application, but will only have decision-making authority in this regard once SPLUMA or the relevant sections of SPLUMA that deal with the Removal of Restrictive Title conditions have come into operation, which is not yet the case. Circular 7 of 2013 makes it clear that the approval of a LUPO application does not have to be considered only after the approval of Removal of Restrictions Act (1967) application. The consequence is that where a land use application is also burdened by restrictive title conditions, two approvals are required, one in terms of LUPO and one in terms of the Removal of Restrictions Act
(1967). If both are not in place, the land use change cannot go ahead.
8.
A Municipal Planning Department might be of the opinion that the Removal of Restrictions
Act (1967) application must first be dealt with prior to the land use application in terms of
LUPO being referred to the Planning Committee for a decision as there could be a condition of approval imposed in terms of the Deed of Transfer, that could have a bearing on the assessment of the LUPO application. What if the Removal of Restrictions Act (1967) application is not supported by DEADP?
See answer to question 7 above – the Western Cape Government is currently still the decision-making authority for Removal of Restrictions Act (1967) applications.
Municipalities should not link LUPO land use applications with Removal of Restrictions Act
(1967) applications as the two types of applications have different relevant considerations
(see for instance the Mac Sands judgement.) For the land use application a municipality may make a decision, but with a Removal of Restrictions Act (1967) application, they only make a recommendation to the Department. It may very well be that these two decisions could have a different outcome, in which case the development can’t go ahead as both approvals are required.
9.
What happens if a municipality has a LUPO Section 4(6) approved structure plan / SDF and an application is received which requires the plan to be amended? Now that the General
Structure Plan has delegated all applications to the municipality (except where it is outside of the urban edge), is it still necessary that the municipality see that an amendment to the 4(6) Structure Plan be approved by Province?
Contrary to the former Guide Plans where it was a legal obligation, it is not a requirement that a LUPO 4(6) structure plan needs to be amended to allow the approval of an application that is not consistent with the 4(6) plan. However if the municipality wants to

amend the LUPO 4(6) structure plan, it is only the province that can do so. LUPO Section
4(6) has not and cannot be delegated. In terms of the Constitution, Province has no mandate to approve (or amend) Municipal SDFs or Municipal Planning matters, unless such an approval is required for a regional or provincial planning matter (as determined
by the scale and extent of the application and/or change in question). Therefore an
amendment to a LUPO 4(6) structure plan must be approved by Province.