99.99% of Western Cape not engaged in unconstitutional planning legislation says Alliance

7th March 2013

To:   Environmental and Spatial Planning Directorate,

Department of Environmental Affairs and Development Planning

Provincial Government Western Cape

Private Bag X9086

Cape Town, 8000

For attention: Mr Chris Rabie

By Email: Chrizelle.Kriel@westerncape.gov.za

Dear Mr Rabie

Comments from the Greater Cape Town Civic Alliance on the draft Western Cape Land Use Planning Bill, 2013 (LUPB).

DEA&DP correspondence P.N. 5/2013 of 18 January 2013 refers.

The Greater Cape Town Civic Alliance is an Alliance of civic community and environmental oriented organisations, focusing on matters of community interest. Member organisations comprise of Ratepayer & Resident Associations, Environmental Associations and other Civic Associations.

General comment

Democratic Process: Having monitored the exclusive engagement, via forums, between government and those with vested financial, political or occupational interest at both Local and Provincial levels over the past years, it is safe to say that the undemocratic content of this draft bill would not have passed muster had Civic oversight not been expressly excluded from forums during the period of its drafting.

Public Participation Process: From a public’s perspective, the receiving environment is generally viewed as unique and therefore needs to garner far more an intense and deeper public understanding of any proposed draft having far reaching consequences. The need for the Province to achieve the necessary public familiarity with the proposed legislation has been incredibly underestimated. The fact that the department only received “56” submissions previously, out of a total Western Cape population of 5,822,734 (according to Census 2011), indicates that with a .001% engagement rate, attempts at achieving sufficient public participation has clearly failed. A private company putting out a survey of public opinion and to which only .001% responded would either question the methodology, or be left wondering why the public has actually disengaged.

Definition of PARTICIPATION (as in Public Participation Process) = the act of participating.

Dumbing down of governance and civilian oversight under the guise of “cutting down on red tape”: The City of Cape Town planning officials, the mayor and the provincial premier (whose views are well documented on the need to “cut down on red tape”, to muzzle what she terms “professional objectors” and to make it easier for developers to achieve their ends – seem determined to shut down the space available to interested and affected persons in the community who properly wish to influence land use planning issues in the province. Based on Chapter IV as currently worded, there is little doubt that there would be many obstacles put in the way of a community organisation having a say in a local land use planning matter.

LUPB, 2013 specific comment

  1. Section 40(3): This section contemplates that a municipality may approve an application for a rezoning, departure or consent use in respect of land or may rezone land of which it is not the owner. Yet, disturbingly, in the whole of section 40 there is no provision for public participation in the decision-making process. This situation flies in the face of the Constitution of South Africa; in particular the provisions of sec.152(1)(e): The objects of local government are to encourage the involvement of communities and community organisations in the matters of local government.

  1. Section 41: There is a lack of public participation evident in this section dealing with applications for the sub-division of land. This particular type of land use alteration application is a constant source of concern, where the existing erf sizes are a major factor in the very special ‘sense of place’. Again, it is surprising that the authors of this draft bill have not been mindful in its conception of [sec.152 of the Constitution].

  1. Section 45: This section, dealing with the removal, suspension or amendment of a restriction, condition or obligation in relation to a piece of land, states that notice of the application must be served on any person whose rights or legitimate expectations are materially and adversely affected. There is however no guidance as to how the rights & legitimate expectations of persons are to be assessed. 

    Unless community organisations can show that they have a pecuniary or proprietary interest in the matter they will have no say in the removal of restrictions, conditions or obligations on land. Throughout this proposed legislation there appears to be no recognition or reference to the many legitimate Civic Bodies. This is unacceptable and there must be a more non-exhaustive definition enabling any person, body or universitas personam when either acting in the public interest or for the purposes of protecting any right enshrined in the Constitution.

  1. Section 47: It is our view that land use approvals may only be given once environmental approval has been granted, we feel strongly that a provision should be included in the Act confirming this.

    As with many aspects of the bill there is an overarching concern that far too much power rests with Municipalities, rather than having effective Provincial oversight. The danger in this is that applicants could have easier “influence” over municipalities than provincial authorities.

  1. Section 48: Provision should be made for an Environmental Impact Assessment in appropriate circumstances in support of the preservation of the Urban Edge, Conservation Areas and unregistered Public Rights of Way.

  1. Section 51(2)(a): The draft includes a restrictive assertion that ‘any person whose rights or legitimate expectations are materially and adversely affected’ – are to be served with notice. There is no guidance as to how the rights & legitimate expectations of persons are to be assessed, however in National Legislation (SPLUMB) a person whose rights are affected includes – ‘An interested person who may reasonably be expected to be affected by the outcome of the land development application proceedings, HOWEVER Sec. 51(5) of the same national Bill goes on to define ‘an interested person’ as: ‘a person having a pecuniary or proprietary interest who is adversely or able to demonstrate that she or he will be adversely affected by the decision of the planning tribunal or an appeal in respect of such a decision.’ Thus, unless community organisations can show that they have a pecuniary or proprietary interest in the matter they will have no say in the removal of restrictions, conditions or obligations on land. Throughout this proposed legislation there appears to be no recognition or reference to the many legitimate Civic Bodies. This is unacceptable and there must be a more non-exhaustive definition enabling any person, body or universitas personam when either acting in the public interest or for the purposes of protecting any right enshrined in the Constitution.

  1. Section 54(2): If an organ of state has comment which is supportive of the public interest, but fails to comment within the period referred to in subsection (1) should not be automatically regarded as having no comment. The term ‘may’, as the draft is presently worded is supported.

  1. Section 58: The provisions regarding the negative cumulative effect of multiple developments of a similar nature on essential services such as roads, water supply and sewage disposal systems are welcomed. However more emphasis should be laid on the negative cumulative effect at a municipal level, not just at regional or provincial level. Economic and Social considerations override all logic in this respect. It would be preferable to see a written undertaking by the Directors of Roads, Storm Water, Sewerage and Electricity and other basic services, that they guarantee capacity for a new Development. Reports from Private Engineers within these disciplines are not adequate.

  1. Chapter VI: The proposed Appeals procedures in Chapter VI are unconstitutional in that they completely take away the ability of the general public to have any say against land use planning decisions taken by a municipality. In virtually all circumstances the draft LUPB requires that appeals against a municipal land use planning decision can only be made to the municipality itself. This renders any appeal useless since decisions on the Appeal will be made by the same officials who made the planning decision in the first place.

    The requirements for public consultation are fundamental to South Africa’s constitutional democracy. South Africa is a representative and participatory democracy. The preamble of [the Constitution] sets out that our goals as a society include laying “the foundations for a democratic and open society in which government is based on the will of the people” and the establishment of “a society based on democratic values, social justice and fundamental human rights.” The founding values of our constitutional democracy, set out in [Section 1 of the Constitution] include “a multi-party system of democratic government, to ensure accountability, responsiveness and openness. [Sec.33 of the Constitution] gives everyone the right to procedurally fair administrative action. The Constitutional Court has spelt out the content of these constitutional imperatives in a number of judgments.

    Thus, as presently drafted, Chapter IV clearly violates [Sec. 152(1)(e) of the Constitution]; it denies communities and community organisations the opportunity of involvement in the matters of local government as far as land use planning matters are concerned, by restricting comment on such matters to a person with a pecuniary or proprietary interest who is adversely or able to demonstrate that she or he will be adversely affected by the decision of the planning tribunal or an appeal in respect of such a decision.

  1. Section 71 (2): Add the following words “and who are not practising professionals in these disciplines, or were so within 5 years before their appointment to the committee”.

Gavin Smith

Planning & Land Use Management Committee

Greater Cape Town Civic Alliance

 

Leave a Reply