Environment Conservation Group say WC Land Use Planning Bill is Unconconstitutional

 

 

 

6th March 2013

 

Environmental and Spatial Planning Directorate,

Department of Environmental Affairs and Development Planning

Provincial Government Western Cape

Private Bag X9086

Cape Town, 8000

For the attention of: Mr Chris Rabie

Fax:

E-mail:

Dear Mr Rabie

Comments on Draft Western Cape Land Use Planning Act, 2013

I write in response to P.N. 5/2013 of 18 January 2013 to submit comments from the Hout Bay & Llandudno Environment Conservation Group (ECG) on the draft Western Cape Land Use Planning Act, 2013 (LUPA).

As I believe you know, the ECG is a coalition of community organisations and trusts set up to protect and preserve the local built and natural environment. Its member organisations are listed at the foot of this page. The ECG is especially concerned to ensure that all building and other developments are undertaken scrupulously in accordance with the relevant legislation and regulations. In this regard member organisations have requested that the ECG should submit to you their serious concerns about the proposed draft Land Use Planning Act, 2013, which will, if enacted as drafted, prevent the ECG and its member organizations from exercising this oversight.

The ECG has received legal advice from more than one source that the draft Act contravenes the Constitution in a number of respects. In particular it removes the right of community organisations and interested and affected parties to be consulted about planning applications and to submit comments on applications to the authorising body. The draft Act also removes in most cases the protection of Provincial oversight of municipal planning decisions. The overall result of the draft Act would be that, unless they had a “proprietary” interest in the property, community organisations and members of the public would have no right and no opportunity to comment on or object to planning applications however negatively the proposed development would affect them.

South African law requires that persons and community organisations must be given an opportunity to be informed about and to comment on matters affecting their interests before the mind of the official decision-maker becomes fixed. This is enshrined in Chapter 4 of the Constitution. Furthermore, the right to dignity in Act 107 of 1998, demands that people be allowed to participate meaningfully in matters which will affect them, particularly where it affects a fundamental matter like the ‘sense of place’ of the area in which they live. This means that interested and affected parties must have the nature and implications of a development project fully communicated to them, so that they have adequate information to enable them to comment meaningfully on the project. Thereafter their concerns and views must be taken into account in investigating, assessing and reporting on the potential impacts of the project.

These 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. The LUPA legislation as drafted would destroy a significant part of these constitutional rights and would instead establish a form of bureaucratic government by unchallengeable official decree.

The ECG understands that the draft Western Cape Land Use Planning Act, 2013 (LUPA) is based on the national Spatial Planning and Land Use Management Bill, 2012 (SPLUMB), indeed there are many references to the national SPLUMB in LUPA. However the ECG has also obtained legal advice that SPLUMB is unconstitutional in a number of important ways and it is apparent that some of these deficiencies are passed on to the provincial LUPA.

For example Chapter I of LUPA states that the definition in sec.51(4)(c) of SPLUMB of “a person whose rights are affected” also applies in LUPA.

Sec.51(4)(c) of the national Bill reads:

A person whose rights are affected includes – (c) An interested person who may reasonably be expected to be affected by the outcome of the land development application proceedings”

Sec. 51(5) of the national Bill goes on to define “an interested person” as:

An interested person for the purpose of subsection (4)(c) must be 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 could demonstrate a pecuniary or proprietary interest in the matter they will not be informed about a planning application nor will they have any say in whatever is being applied for, be it re-zoning, subdivision, removal of restrictions or any other conditions or obligations on the land. So the national SPLUMB is unconstitutional in this respect, as is LUPA which derives from it.

The proposed Appeals procedures in Chapter VI of LUPA are also 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 LUPA requires that appeals against a municipal land use planning decision be 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.

This clear lack of being able to hold a municipality to account for a bad land use planning decision is brought about because sec.64 of LUPA incorporates the provisions of sec.51 of SPLUMB, which states:

(1) A person whose rights are affected by a decision taken by a Municipal Planning Tribunal may appeal against that decision by giving written notice of the appeal and reasons to the municipal manager within 21 days of the date of notification of the decision.

(2) The municipal manager must within a prescribed period submit the appeal to the executive authority of the municipality as the appeal authority.

(3) The appeal authority must consider the appeal and confirm, vary or revoke the decision, but no variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision.

Sec.65 of LUPA does deal with Appeals to Province but the circumstances in which such an appeal can occur are severely circumscribed and do not allow for anyone other than “interested persons” to appeal. As is made clear above, the definition of “interested persons” in LUPA precludes almost everyone from challenging a municipal land use planning decision.

In the Constitution local government has a number of competences reserved to its executive authority and which it has the right to administer but sec.41(1)(c) of the Constitution requires all spheres of government to provide accountable government. This requirement is reinforced by secs. 155(6)(a), 155(7), 152(1)(a) & 155(1)(e). However, the provisions of Chapter VI of the draft LUPB and sec.51 of SPLUMB, which make a municipality its own appeal authority in respect of planning decisions it takes, remove any genuine accountability because, in effect, the municipality is made both judge & jury of its decisions and actions.

The ECG requests that the concerns outlined in this letter should be most carefully considered by an experienced constitutional lawyer and that the resulting legal opinion should be reported back to the ECG for onward transmission to its member organisations. These member organisations are anxious that the rights of the public enshrined in the Constitution must be safeguarded.

Yours sincerely

Richard Timms

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