SPATIAL PLANNING AND LAND USE
MANAGEMENT BILL
B14 - 2012
Presentation to the
Portfolio Committee
on
Rural Development & Land Reform
24 July 2012
1
Background
†
Pre-1994 Planning was designed to serve a different political idea –
segregation, differentiation, and privilege;
†
Multiple laws, multiple institutions and parallel processes instituted by the
pre-1994 pieces of legislation;
†
Planning laws were fragmented across the old boundaries of the then four
(4) provincial administrations, homelands, and Self-Governing Territories
(SGT);
†
In 1994, South Africa inherited complex and disjointed planning systems
which manifest in unequal, incoherent and inefficient settlement patterns;
†
The Development Facilitation Act, 1995 (Act No. 67 of 1995) (“the DFA”)
was promulgated as an interim measure to deal with this legacy.
†
SPLUMB emerged through the Green Paper (1999) and White Paper (2001)
processes to replace the DFA as the legislative instrument to regulate
spatial planning and land use management in the country.
2
Background
Post- 1994 Realities
Causes
‡ Physical Planning Acts 1967 and 1991
‡ Provincial Ordinances
‡ SGT/Bantustan laws
‡ Planning Related laws at both National and Provincial spheres
Consequences
‡ segregation, differentiation, unevenness;
‡ multiple institutions;
‡ parallel processes; and
‡ uncoordinated sectoral policies
White Paper on Spatial Planning and Land Use Management 2001
Study of planning laws "revealed an extraordinarily complex and inefficient legal
framework, with planning officials in all spheres of government having to deal with
numerous different systems within the jurisdiction of each province, and indeed within
most municipalities. The difficulty of dealing with this legal inheritance compounds the
already difficult task of planning for sustainable, integrated and equitable land use and
development in South Africa"
3
Shared Vision?
† Until the DFA Judgment in June 2010 there has been
relative lack of clarity in the Constitution about the
meaning of planning and which spheres of government
responsible for land use planning and management;
† Lack of precision and shared understanding of the
terminology that is used in the debates about planning;
† Lack of clarity between key national departments over
who is responsible for land use planning and spatial
planning;
† Subtle turf wars between national government and the
provinces over who has responsibility for rationalizing and
modernizing planning systems.
4
Shared Vision?
† Four provinces have developed new planning and land use
legislation of their own (outside of a national framework);
† Lack of sustained leadership regarding the rationalization
and modernizing of planning and land use management;
† There is a lack of shared vision about what the Land Use
Management Bill should do (Land Use Planning with/out
Spatial Planning); and
† Frustration with the long time it has taken to develop
national framework legislation has led to autonomous
initiatives by some spheres.
5
Current Land Use Realities
Urban Municipalities
Rural Municipalities
† Economic factors/engines of
growth
† Best practices for weaker
municipalities
† Exclusion and inclusion
† Value capture and 'irregular' land
uses
† Formality and informality
† Growth Management Strategies
† Irregular land use and evictions
strategy
† Planning Laws & Embedded Power
Relations (criminalisation of
poverty)
† State land
† Unresolved tenure issues
† Communal ownership and titling
vs Freehold
† Traditional Leadership and 'weak'
linkages with formal municipal
governance (section 81 of the
Municipal Structures Act)
† Community participation and
alternative 'democratic'
expression
† Spatial datasets, cadastre, and
land use schemes
† Weak Enforcement
6
Need For SPLUMB: Post-DFA
†
The DFA was intended to be an interim measure, and was to be
repealed by SPLUMB (in its current and earlier versions).
†
In June 2010, the Constitutional Court found Chapters 5 and 6 of the
DFA to be invalid on grounds of unconstitutionality.
†
The order of invalidity was suspended for 2 years, i.e. until June
2012, to allow the defects in the DFA to be remedied.
†
Government’s intended remedy is to repeal the DFA in its entirety
and replace it with the Spatial Planning and Land Use Management
Act (currently still a Bill).
†
The Constitutional Court found that municipal planning includes the
powers and functions necessary to determine rezoning and
township establishment applications, and concluded that municipal
planning is the exclusive competence of municipal government.
7
Objects of the Bill
† Provide for a uniform, effective and comprehensive system of
spatial planning and land use management for the Republic;
† Ensure that the system of spatial planning and land use
management promotes social and economic inclusion;
† Provide for development principles and norms and standards
† Provide for the sustainable and efficient use of land;
† Provide for cooperative government and intergovernmental
relations amongst the national, provincial and local spheres of
government; and
† Redress the imbalances of the past and to ensure that there is
equity in the application of spatial development planning and
land use management systems
8
Need For SPLUMB
New legislation is needed to achieve:
† A coherent regulatory framework for spatial
planning, land use management, and land
development and planning system;
† Constitutional synergy (clear delineation, distribution
& allocation of powers among spheres);
† A predictable and transparent regulatory System;
and
† Clear, rational and efficient inter-linkages of sectoral
and inter-sphere spatial planning tools and policies.
9
Spatial Planning
†
Spatial planning involves ‘critical thinking about space and places as the basis
for action or intervention’ (RTPI, 2007).
†
‘spatial planning goes beyond traditional land use planning to bring together
and integrate policies for the development and use of land with other
policies and programmes which influence the nature of places and how they
can function’. (UK Planning Policy Statement 1: Delivering Sustainable Development, 2005)
†
The implementation of the spatial objectives contained within planning
policy is:
†
‡
highly dependent upon the coordinating role of national government;
‡
local discretion over the interpretation of such policy guidance and the resources
and action of developers and other stakeholders;
‡
degree of consistency between broad policy objectives (and governance
structures associated with their delivery) across different sectoral interests.
The reality is that there remain complex relationships between policies, and
even high-level policy outcomes may be contradictory
10
Land Use Management
†
Land resources are used for a variety of purposes which interact and may
compete with one another; therefore, it is desirable to plan and manage all
uses in an integrated manner.
†
Land-use management examines all uses of land in an integrated manner, it
makes it possible to minimize conflicts, to make the most efficient trade-offs
and to link social and economic development with environmental protection
and enhancement, thus helping to achieve the objectives of sustainable
development.
†
The essence of the integrated approach finds expression in the coordination
of the sectoral planning and management activities concerned with the
various aspects of land use and land resources.
†
Integration should consider all environmental, social and economic factors.
†
Integrated consideration facilitates appropriate choices and trade-offs, thus
maximizing sustainable productivity and use.
†
The broad objective is to facilitate allocation of land to the uses that provide
the greatest sustainable benefits and to promote the transition to a
sustainable and integrated management of land resources.
11
Inter-Governmental Planning
†
In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Others
the Constitutional Court held as follows:“Planning entails land use and is inextricably connected to every
functional area that concerns the use of land. There is probably not a
single functional area in the Constitution that can be carried out without
land. Land-use planning must be done at three levels at least: provincial
planning, regional planning and municipal planning.”
†
The Constitution confers “planning” on all spheres of
government by allocating “regional planning and development”
concurrently to the national and provincial spheres, “provincial
planning” exclusively to the provincial sphere, and executive
authority over, and the right to administer “municipal planning”
to the local sphere.
Inter-Governmental Planning
In the City of Johannesburg Metropolitan Municipality, the
Constitutional Court stated:“It is clear that the word “planning”, when used in the context of
municipal affairs, is commonly understood to refer to the control and
regulation of land use, and I have no doubt that it was used in the
Constitution with that common usage in mind. The prefix “municipal”
does no more than to confine it to municipal affairs. That
construction, which gives meaningful effect to the term, has the
effect of leaving in the hands of national and provincial government
the authority to legislate in the functional area of “urban . . .
development”, but reserving to municipalities the authority to
micro-manage the use of land for any such development. On that
construction the functional area of “urban development” retains
considerable scope for national and provincial legislation.”
Inter-Governmental Planning
In the City of Johannesburg Metropolitan Municipality, the
Constitutional Court stated:“the government consists of three spheres: the national,
provincial and local spheres of government. These spheres are
distinct from one another and yet interdependent and
interrelated. Each sphere is granted the autonomy to exercise its
powers and perform its functions within the parameters of its
defined space. Furthermore, each sphere must respect the status,
powers and functions of government in the other spheres and
―not assume any power or function except those conferred on [it]
in terms of the Constitution.”
See also Ss 40 & 41 of the Constitution
Tools & Instruments
In order to address these challenges, the Bill seeks to introduce
provisions to cater for:
† Development Principles;
† Norms and Standards;
† Inter-Governmental Support;
† Spatial Development Frameworks (SDFs) across National,
Provincial, Regional & Municipal scales;
† Land Use Schemes;
† Municipal Planning Tribunals; and
† Applications affecting National Interests.
15
Development Principles
† Used to Guide Spatial Planning, Land Use
Management and Land Development in terms of
this Bill;
† Applied through Spatial Planning Tools i.e. SDF’s
and Land Use Schemes and also guide decision
making by Tribunals;
† Applied by National / Provincial Governments and
Municipalities in developing their SDF’s and Spatial
Planning policies.
16
Norms and Standards
The terms “norms and standards” are commonly used interchangeably
but are two different concepts:
† Norms may be the usual or the average level of performance.
† Standards, on the other hand, are the desired and achievable level
of performance.
Setting norms and standards is a complex operation consisting of 4
components:
† Level of service to be attained (policy directive)
† Quantity to be provided (policy directive)
† Quality required (often legislated)
† Technical specifications (legislated)
The Minister may him/herself or at the request of another Minister
prescribe Norms and Standards on land use management;
17
Role of National Government
†
provide support to Provinces and Municipalities in the execution of their
duties in terms of the Bill;
†
monitor capacity of Provinces and Municipalities to implement the Bill;
†
monitor compliance of Provinces and Municipalities with the Bill;
†
the compilation, approval and review of spatial development plans and
policies or similar instruments, including a national spatial development
framework;
†
the planning by the national sphere for the efficient and sustainable
execution of its legislative and executive powers insofar as they relate to
the development of land and the change of land use; and
†
the making and review of policies and laws necessary to implement
national planning, including the measures designed to monitor and
support other spheres in the performance of their spatial planning, land
use management and land development functions.
18
Role of Provincial Government
†
provide support to Municipalities in the preparation, adoption,
amendment, coordination and alignment of their Land Use Schemes;
†
Strengthen the capacity of municipalities to implement spatial planning
and land use legislation;
†
the compilation, approval and review of a provincial spatial development
framework;
†
monitoring compliance by municipalities with this Act and provincial
legislation in relation to the preparation, approval, review and
implementation of land use management systems;
†
the planning by a province for the efficient and sustainable execution of
its legislative and executive powers insofar as they relate to the
development of land and the change of land use; and
†
the making and review of policies and laws necessary to implement
provincial planning, and monitoring and support of municipalities.
19
Role of Municipal Government
† The compilation, approval and review of integrated
development plans;
† the compilation, approval and review of the components
of an integrated development plan prescribed by
legislation and falling within the competence of a
municipality, including a spatial development framework
and a land use scheme;
† the control and regulation of the use of land within the
municipal area where the nature, scale and intensity of
the land use do not affect the provincial planning mandate
of provincial government or the national interest.
20
Spatial Development Frameworks
†
An SDF is a framework that seeks to guide overall spatial
distribution of current and desirable land uses within a
sphere/municipality in order to give effect to the development
vision, goals and objectives.
†
The aims of SDF include to promote sustainable functional and
integrated human settlements, maximise resource efficiency, and
enhance regional identity and unique character of a place.
†
All the three spheres must now make SDFs;
†
SDF must give effect to National, Provincial or Municipal Planning;
†
Aligned to and consistent with the frameworks of other spheres;
†
Reviewable every 5 years or less; and,
†
Must involve public participation.
21
Land Use Management
† Municipality is responsible for Land Use Management
† Primary instrument is the Land Use Scheme (LUS)
† Municipality must, after public consultation, prepare,
adopt and implement a LUS within 5 years of the Bill
being enacted
† LUS must be consistent with and give effect to Municipal
SDF
† All land development applications must be determined
within context of the LUS
† An approved and adopted LUS has the force of law and
binds all owners and users of land
22
Land Development Management
† Land development applications are determined by
Municipalities as the authority of first instance
† Municipalities are required to establish Municipal
Planning Tribunals to discharge this function
† Municipalities may co-operate to establish Joint
Municipal Planning Tribunals
† The Tribunals consist of municipal officials and suitably
qualified external persons appointed by Municipal
Councils
† Appeals lay to the Municipal Executive Authority from
decisions of MPTs
† Provincial legislation may provide for post-MPT appeal
processes, and matters affecting provincial interests.
23
Land Use Management
Linking SP & LUM
Municipal Spatial
Development Frameworks
Municipal Land
Use
Schemes
Land Use
Management
Systems
Land Use Applications
24
Scheme Proposed by SPLUMB
NATIONAL GOVERNMENT
e.g National Spatial Development
Framework
Creation of Policy & Legislation / Monitoring
e.g Spatial Planning & Land Use
Management Bill
VERTICAL ALIGNMENT
(National Planning Framework)
PROVINCIAL GOVERNMENT
Provincial Spatial Development
Frameworks
(Provincial Planning Framework)
Creation of Provincial Policy & Legislation /
Monitoring / Coordination
LOCAL GOVERNMENT
The Role of National Government is
primarily the creation of an enabling
environment through Policy and
Legislation Development as well as
Monitoring the implementation of these
Provincial Planning Legislation
Integrated Development Plans
(Local Planning Framework)
METRO / DISTRICT
MUNICIPALITIES
LOCAL
MUNICIPALITIES
METRO /
DISTRICT
LOCAL
MUNICIPALITIES
Coordination / Support
Implementation
IDP /
Local IDP
SDF
Local SDF
Precinct Plans / Local
Spatial Development
Frameworks
The Role of Provincial Government is
the creation of an enabling environment
through Policy and Legislation
Development which is aligned to
National initiatives, Monitoring and also
coordination
Metropolitan &
Local Municipal
Spatial
Development
Frameworks
Land Use Scheme (SPLUMB)
Gives effect to the Spatial
Development Framework of a
Municipality and records rights &
restrictions on individual erven
within a municipality
Addressing Municipal Capacity
‡
Obligations to do Spatial Development Frameworks (SDFs), Land
Use Schemes and Land Development Management;
‡
Obligation to establish Municipal Planning Tribunals (MPTs);
‡
Member of MPT need not be just officials. Opportunity to share
limited resources;
‡
Councils may agree to do joint land use schemes, and establish
joint MPTs (Council resolution on Joint MPT with another
Municipality or all Municipalities within a District);
‡
Opportunity to learn from Best practices as all now within a
National Framework;
‡
Relative clarity on roles & responsibilities of the three spheres; and
‡
Stronger national support and capacity building (SDF Guidelines,
Planning Manuals, Model land use schemes, etc)
26
National Interest
† A land development application must be referred to the Minister
where the outcome of the application affects the National
interest
† The National interest includes:
‡ matters within the exclusive functional area of the national
sphere in terms of the Constitution;
‡ strategic national policy objectives, principles or priorities,
including food security, international relations and cooperation, defence and economic unity; or
‡ land use for a purpose which falls within the functional area
of the national sphere of government.
27
Chapters 1 - 2
†
Chapter 1 (Clauses 1 to 5)
provides for definitions, the application of the Act, objects
of the Act, an outline of the system of planning in South
Africa and the categories of spatial planning.
†
Chapter 2 (Clauses 6 to 8)
provides an outline of key principles that are applicable to
the spatial planning system and will also guide land
development in general. It provides scope for the Minister
of Rural Development and Land Reform to develop more
comprehensive principles. The chapter also provides for the
Minister to set out compulsory norms and standards for
land use management.
28
Chapters 2 - 4
†
Chapter 3 (Clauses 9 to 11)
outlines the mandates of national and provincial
spheres in monitoring and support provision to ensure
effective spatial planning and land use management
processes. It also provides for a differentiated approach
to municipalities.
†
Chapter 4 (Clauses 12 to 22)
provides for the preparation and contents of national,
provincial, regional and municipal spatial development
frameworks, as well as the status of spatial
development frameworks.
29
Chapters 5 - 6
†
Chapter 5 (Clauses 23 to 32)
provides for the adoption of municipal land use schemes, including
their purpose, content, status, review and relationship with existing
land use schemes. The section also provides for the amendment of land
use schemes and the alignment of authorisations in terms of other
applicable legislation.
†
Chapter 6 (Clauses 33 to 52)
provides for the establishment, composition, powers and functions of
Municipal Planning Tribunals, as well as for internal appeals against the
decisions of Municipal Planning Tribunals. It also deals with possible
municipal cooperation in adopting land use schemes and joint
consideration of development applications that affect the national
interest.
30
Chapter 7
†
Chapter 7 (Clauses 53 to 61)
contains general provisions relating to commencement
of registration of ownership, regulations, powers of the
Minister to grant exemptions from provisions of the Act,
delegations by the Minister, Premiers and municipalities
to officials, non-impediment of function, offences and
penalties, repeal of legislation, transitional provisions,
and short title and commencement.
31
Areas of Concern
†
†
†
†
What does “municipal planning” mean? [in the wider context of the
planning roles and responsibilities of each sphere of government]
What is the provincial interest in land use planning? & how do the
provinces [powers] deal with those interests?
What practical instruments can be designed to manage the overlap?
Capacity of municipalities to comply with requirements in terms of
legislation
†
Municipal differentiation
†
Support and monitoring of municipalities
†
Planning Tribunals and role of Councillors / officials
†
Appeals (internal –to Council - and external – to Province)
†
Land Use Management in Rural Areas, participation & role of Traditional
Leaders
32
Status of the Bill
† The draft Bill was approved by Cabinet for publication and public
consultation in April 2011. The draft Bill was gazetted on 6 May 2011, with
the consultation period closing on 6 June 2011.
† During this period, the Department held workshops in all provinces for
public and private sector stakeholders, as well as bilateral engagements
with municipalities, provinces and government departments.
† In response to this call a total of 110 comments were received from all
sectors.
† A Regulatory Impact Assessment of the Bill was also concluded in June
2011.
† The SPLUMB has now been approved by Cabinet in March 2012 after an
extensive public participation for introduction to Parliament.
† The State Law Advisers and the Dept are of the view that the Bill is a
section 76 Bill because it affects the powers of the Provinces and
Municipalities.
33
Implementation Framework
NATIONAL SUPPORT PROJECTS
PROJECT TITLE
Draft regulations for the
Spatial Planning and
Land Use Management
Act
Development
of
an
Electronic Municipal Land
Use Management Tool
Comprehensive
Guidelines
on
Transitional and Interim
Measures to Support
Implementation of the
Spatial Planning and
Land Use Management
Act
Draft
Guidelines
for
Municipal
Land
Use
Management
Draft General Framework
on Integrated Spatial
Planning and Land Use
Management
PROJECT PURPOSE
To develop Draft Regulations for the Spatial Planning and Land Use Management
Act to enable and enhance the implementation of this Act.
To develop a standalone GIS based tool to support Municipal Land Use
Management.
To determine a framework and guidelines for the continued management of land
development applications and related matters that are currently processed in terms
of various provincial ordinances, the Development Facilitation Act and related
legislation so that pending applications and prospective applications are finalized,
continued, lodged and determined in a manner consistent with the proposed
Spatial Planning and Land Use Management Act, and the judgment of the
Constitutional Court in the City of Johannesburg vs Gauteng Development Tribunal
Case.
To provide a consistent institutional and operational framework within which
municipalities will be able to discharge their land use management functions in
terms of the Spatial Planning and Land Use Management Act.
To develop a framework that outlines the Spatial Planning System detailed in the
Spatial Planning and Land Use Management Act.
34
Implementation Framework
PROVINCIAL SUPPORT PROJECTS
PROJECT TITLE
Draft
Provincial
Legislation
and
Accompanying
Regulations on Spatial
Planning and Land Use
Management for:

Eastern Cape;

Mpumalanga ;

Free State;

Limpopo ; and

Northern Cape
PROJECT PURPOSE
To develop Draft Provincial Legislation and accompanying
Regulations on Spatial Planning and Land Use Management
that will complement the Spatial Planning and Land Use
Management Act and deal with province-specific spatial
planning and land use matters.
Provinces
35
COMMENTS AND QUESTIONS
Thank You
Sunday Ogunronbi
Executive Manager: Spatial Planning & Information
| Department: Rural Development & Land Reform| +27 82
577 5655| +27 12 312 9371| 086 692 8882 (f) |
sogunronbi@ruraldevelopment.gov.za
36