Important Legal Issues for
Provincial Planning and Land
Use Legislation
South African Cities Network/Gemey Abrahams Consulting /Tirana Consulting
July 2011
Background
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15 – 9 – 5 – 2 …
15 years
9 provinces
5 Planning & Development Acts passed
2 Planning & Development Acts in operation
Designing a provincial law dealing with:
– provincial planning; and
– municipal planning
is not easy.
Purpose of this Report
• A position paper / think piece
• For SACN
• A resource for all spheres proposing an
approach / responding to (provincial)
legislation for:
– Provincial planning; and
– Municipal planning.
Points of departure
• Municipal planning is broad
• Municipal planning is primarily the
executive competence of local government
• Provincial government has a role in land
use management and spatial planning –
legislative and executive – but that role
has to be seen in terms of exceptions to
the prevailing rule that local government
exercises those powers
The two exceptions to the rule
1. A provincial government may regulate
minimum standards for and undertake
monitoring of municipal planning
2. Provinces have full authority over a
number of functional areas related closely
to land use management (e.g. agriculture,
environment & housing) – and in these
areas they can exercise executive
functions
Concurrency and co-operation
Municipal planning, in Schedule 4B of the
Constitution, allows for concurrent exercise
of legislative powers by national and
provincial government.
Just because the Constitution provides
formulae for resolving conflict between
national and provincial laws does not mean
that conflict should be encouraged!
To be precise
Provincial legislation must be built on two
key definitions:
•Municipal planning; and
•Provincial planning.
Alignment of these definitions with those in
national legislation is crucial.
Definition of Municipal Planning
• A proposed definition of municipal planning:
“planning for the development and management of the
municipal area, which includes: making, approving and
amending an integrated development plan and spatial
development frameworks; adopting by laws to regulate land
use and development, subdivision and consolidation;
preparing, adopting and amending a town-planning or zoning
scheme; receiving, considering and deciding applications for
land use and development, which includes refusing,
approving and approving subject to conditions such
applications; representing the interests of the municipality’s
residents and the broader public spatial interest in provincial
planning processes; and the preparation, adoption and
publicising of guidelines, policies and other instruments and
procedures to guide the use and development of land in the
municipality”
Definition of Provincial Planning
• Proposed definition of provincial planning:
• “planning for the development and management of the
province, which includes: preparing, adopting and
amending provincial and regional plans; receiving,
considering and deciding applications for land use and
development with respect to matters falling within a
province’s area of executive competence, which includes
refusing, approving and approving subject to conditions
such applications; participating in the municipal planning
processes and activities of municipalities in the province;
and supporting and monitoring municipal planning in the
province.
District-Local Co-operation
Currently District Municipalities’ planning role is
restricted to forward planning.
Provincial legislation can explore options for
District-Local co-operation (or sharing of
services) to enable a more efficient allocation
of land use management powers, especially in
rural areas where planning capacity is scarce.
An integrated framework for
provincial planning (1)
1. Clarify alignment
a. Process alignment (e.g province must participate in
municipal process & vice versa; or
b. Outcome alignment (e.g municipal planning
objectives must be in line with province’s) .
2. Provincial SDF
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b.
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d.
Guide municipal planning (i.t.o provincial priorities
Collaborative drafting with municipalities
Adoption by provincial cabinet
Clear procedures and legal status
An integrated framework for
provincial planning (2)
3. Municipal SDFs
a. Complement provisions of Systems Act through
provincially specific minimum standards (e.g. for
participation and alignment with other plans)
b. Prescribe minimum contents: complement MSA
but not conflict;
c. Align District and Local SDFs, with conflict
resolution procedures: preferable that
municipalities themselves resolve first
An integrated framework for
provincial planning (2)
3. Municipal SDFs contd
d. Clarify province’s role in SDF-making
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Every municipal SDF has to deal with both issues that
fall under municipal planning as well as provincial
planning
Minimum standards for Municipal
Planning
Both
• to establish uniformity in the province in
relation to LUM Schemes, LUM procedures
and LUM decision-making (inc. role for
registered planners, where applicable)
and
• To enable effective monitoring by province of
municipal planning functions
Province LU decision-making:
when?
The province should be able to take LU decisions
where the provincial interest is clearly and
precisely defined.
Provincial legislation must define what constitutes
a provincial interest, either:
•‘scientific’ criteria (e.g. related to specified size or
distance); or
•substantive criteria (e.g. i.t.o scale or impact)
Province LU decision-making:
how?
• One decision or two?
– Constitutionally, 2 decisions are needed (for
Provincial interest and for municipal aspects).
• Who receives the application?
– Options
• Apply to muni. to forward (with recommendation) to
province for decision (on Provincial interest matters
only);
• Apply to both separately – separate decisions
• Apply to municipality and copy to province; or
• Apply to municipality and if the municipality rejects the
application that is the end of the matter (even if
province constitutionally competent to make a decision)
Appeals
• Conflicts with national law must be avoided
• Internal appeals
– Currently s62 of Systems Act – many shortcomings (only for
decisions which have delegated authority not council decisions,
outcome cannot affect rights accrued, third parties cannot use it)
– Alternative could be built on inter-municipal appeal bodies
• Provincial ‘appeals’ – can Provincial law provide for the
appeal to a Provincially-appointed appeal body?
– Not constitutionally valid (against municipal planning authority)
– Possible to provide an alternative form of recourse, e.g.
‘provincial assessment’ rather than all going to court: Body can
assess and agree or reject municipal decision, refer back to
municipality to decide again if rejected. Composition of body is
important.
– Needs to accommodate appeals against both municipal and
provincial decisions
Provincial Planning and Land
Use Legislation
THANK YOU
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Discussion on Proposal
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Issues of clarity
Issues of correction
Issues of application to Provinces
Issues of debate
An integrated framework for provincial
planning – Prov SDF
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Examples of minimum requirements that could be taken up in a provincial
law are:
an assessment of existing levels of development;
inclusion of a spatial development vision;
a spatial reflection of the provincial growth path;
the interface conditions between rural and urban;
the interface conditions between municipalities bordering on landscapes
with special characteristics of provincial value or interest
the identification of areas of specific provincial interest as a result of –
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agricultural potential;
tourism potential;
heritage potential;
environmental vulnerability;
industrial potential;
housing delivery;
urban development potential, etc.