In the public interest: Western Cape Land Use Planning Bill 2013

Western Cape Land Use Planning Bill

The Western Cape Government, Department of Environmental Affairs and Development Planning in collaboration with the municipalities, were, over the past couple of years, involved with the drafting of integrated Planning legislation for the Western Cape. The rights of the general public to appeal against land use planning decisions taken by the municipality and to have their voice heard has been almost totally destroyed in the “Draft” Land Use Planning Bill.

 

LUPA Draft Bill

 

You need to submit written comment by no later than 8 March 2013
Written comments should be sent to Chrizelle Kriel of the DEA&DP at: e-mail: Chrizelle.Kriel@westerncape.gov.za or fax: 021 483 4527

Notes on my reading of Draft Western Cape Land Use Planning Bill, 2013

By C J Hudson : Civil Society representative and Executive Member of Community Ratepayer Association

This note only deals with the community involvement aspects of the draft Western Cape Land Use Planning Act 2013 (LUPA) which has been published for comment. There are various other features of this draft legislation which need consideration as a separate exercise.

My reading of this draft LUPA tells me that if it is promulgated in its present form, the WC Provincial government will have:

  • more or less removed any ability for community organisations to comment on land use matters in their localities; and

  • virtually completely written itself out of exercising any appeal function over municipal land use planning decisions in the future.

On the surface there is provision for public participation in that sec.3(2)(b)(iii) states: A municipality must regulate the procedures in terms of which the municipality facilitates public participation in its consideration of land use applications. However since there is no guidance concerning the nature of such public participation, other than the publishing of certain notices, as dealt with below, on the surface it would seem that a municipality has do little more than do such publishing. The LUPA draft is silent as regards the depth of engagement with the public that the municipality has to enter into.

At a higher level of land use planning: the creation of spatial development frameworks, which now replace structure plans, sec.6(3)(c) requires the province to prescribe procedures for public consultation concerning the production of a provincial spatial development framework but there is no similar provision regarding the formulation of a municipal spatial development framework.

The only mention of anyone other than an organ of state or an official being involved in the municipal spatial development framework process is in sec.16(2), which requires that a municipality may not approve a proposed review of its municipal spatial development framework, without considering a registered planner’s assessment of and recommendation on the proposed review.

Significantly, Chapter IV – Development Management – Part 1 – Zoning, has no provision whatsoever for public participation in the creation of the single zoning scheme for each municipality as required in terms of sec.26 and 27; which is to provide for the orderly development and the welfare of the community and to determine use rights and development parameters to manage desirable land use.

When one comes on to the next part of the proposed LUPA, the term “interested person” is encountered in sec.40(4) and 41(6), which deal with rezoning, departures or consent use, and subdivision of land, respectively. A municipality must in writing, at the request of any interested person, provide certain information. However the term “interested person” is not defined in the draft.

Sec.45 deals with the removal, suspension or amendment of a restriction, condition or obligation in relation to a piece of land. Notice of the application must be served on any person whose rights or legitimate expectations are materially and adversely affected. Sec.51(2)(a) includes the phrase any person whose rights or legitimate expectations are materially and adversely affected.

Yet there is no guidance in the draft Act as to how the rights & legitimate expectations of persons are to be assessed. 

Nor is the term “person whose rights or legitimate expectations are materially and adversely affected” defined.

The same problem applies to the term “interested and affected person”. This undefined category of person appears in sec.50(3) and in Chapter IV – Development Management – Part 7 – Procedures & Decision-making. This Part deals with the notices that the municipality or province have to publish regarding their intention toconsider the following:

(a) a land use application relating to a restriction, condition or obligation as contemplated in section 45;

(b) a land use application for a rezoning contemplated in section 40; and

(c) the approval, amendment or review of a spatial development framework or a zoning scheme, or approval of a zoning scheme map. The publication of a notice under subsection (1) or in terms of the land use planning requirements of a municipality must ensure that any party interested and affected by the notice is able to obtain [certain – my interpolation] information from the notice.

In short the draft LUPA does not explicitly set out the categories of the public who have to be particularly informed by the municipality of land use planning matters that may affect their lives.

Note, however, that there is a definition of “a person whose rights are affected” in the national Spatial Planning and Land Use Management Act, 2012 which, I understand, is at present before the national parliament for acceptance. As this Act is quoted approvingly in several places in the LUPA Bill, can one accept that the national act’s definition of “a person whose rights are affected” applies in the draft LUPA?

On the premise that that is the intention, one must accept the wording of sec.51 of the national Spatial Planning and Land Use Management Act, 2012 as providing the necessary definition of an “interested person” for the purposes of the draft LUPA.

  • Sec.51(1) reads: … A person whose rights are affected by a decision taken by a Municipal Planning Tribunal may appeal against that decision …

  • Sec.51(4)(c) 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.

That provision looks promising – but wait.

Sec. 51(5) of the same Act goes on to define “an interested person”.  It states: 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.

My reading of the draft LUPA is that:

  • By daily scrutiny of the media one will be able to stay abreast of land use planning developments in one’s municipality but it is likely that the present practice of the municipality of keeping informed persons or organisations who register as Interested & Affected Persons in their geographical area of interest, will fall away.

  • 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.

  • Leaving aside the miniscule number of cases where a community organisation has a pecuniary interest in a land use planning issue and so qualifies as an “interested person” in the matter, can a community organisation be said to have a proprietary interest in the use of land in the area in which the organisation has its being, because it operates and is concerned about land use in that area? I don’t think so; as Wikipedia puts it “The term proprietary relates to property or ownership.”

As for appeals against land use planning decisions taken by the municipality, the ability of the general public to make their voice heard has been almost totally destroyed.

Sec 65 of the new 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.

In all other instances the body to which an aggrieved interested person can appeal is determined by Sec.51 of the national Spatial Planning and Land Use Management Act, 2012, 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, varyor 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.

It seems to me that when this new LUPA comes into force community organisations will be completely silenced legally and developments such as the proposed Pelican Park shopping mall or the plans for Sites 1, 2 & 3 in IY will go ahead without let or hindrance.  The public will still be able to make noises in the press but they will have no force of law to make wilful & misguided politicians and officials come to their senses.

Someone has suggested that a community organisation will still be able to take a land use planning decision on Review to the High Court but I am not at all sure that that will be so. Even if the considerable funds required for such a step were available, which in almost all cases would not be so, the appellant would have to establish its locus standi. Would the courts consider themselves bound by the new definition in planning law of an “interested person” that is about to come into force or be prepared to listen to a wider universe of persons interested in a land use planning matter?

Importantly, the reply of the attorney who specialises in legal matters concerning planning law and environmental affairs, to whom I sent the above remarks for comment has replied: You ought to locate your objection in the constitutional matrix, and the constitutional duty on the Province to properly monitor and supervise municipal functions that are carried out by its local authorities.  The consequence of its failure to do so by enacting the above legislation will result in the matters that you have highlighted.

That seems the logical approach to the objection process.

Studying the Constitution as a layman it seems to me that the parts thereof which are relevant to this matter are as follows.

  • Chapter 3 Cooperative government

    • Sec. 41(1)(c). All spheres of government and all organs of state within each sphere must provide effective, transparent, accountable and coherent government for the Republic as a whole;

  • Chapter 7 Local government

  • Sec. 155(6). Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must

    1. provide for the monitoring and support of local government in the province; and

    2. promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.

  • Sec. 155(7). The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1).

  • Sec. 156 (1).A municipality has executive authority in respect of, and has the right to administer

    1. the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and

    2. any other matter assigned to it by national or provincial legislation.

  • Part B The following local government matters to the extent set out in section 155(6)(a) and (7):

    • Building regulations

  • Part B The following local government matters to the extent set out in section 155(6)(a) and (7):

    • Many & various, too numerous to be listed here.

In short, 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. However, the provisions of the draft LUPA and sec.51 of the national Spatial Planning and Land Use Management Act, 2012, which make a municipality its own appeal authority in respect of planning decisions it takes, remove any real accountability because, in effect, the municipality is made both judge & jury.

Moreover, although secs.155(6) and (7) of the Constitution require provincial governments to provide for the monitoring of local government in the province and to regulate the exercise by municipalities of their executive authority, it seems to me that in the new LUPA, by abdicating from their function as the appeal authority in respect of land use planning decisions taken by municipalities, the Western Cape Provincial Government is acting unconstitutionally.

C J Hudson 14 February 2013

 

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