Planning by-law rattles ratepayers

Cape Argus

MONDAY JUN 23, 2014

Questions have been raised about the constitutionality of Cape Town’s draft municipal planning by-law, the lack of public participation and the centralisation of power in the mayor’s office to deal with appeals.

‘Disputes about the application of the law will be decided by the mayor. The city will be the judge in its own case,’ warned David Polovin of the Sea Point, Bantry Bay and Fresnaye Ratepayers’ Association. ‘This will not bring credibility to the city.’

Other red flags were raised during a recent public participation meeting on the proposed by-law, which is scheduled by the national government to come into effect in September.

The handful of lawyers, architects and ratepayers who were present raised concerns about key aspects of the by-law.

Fiona Ogle, of the city’s legal department, said changes to provincial and national planning legislation – the Land Use Planning Act and Spatial Planning Land Use Management Act – meant local government legislation also had to change.

In terms of the proposed by-law, the mayor is the appeal authority for planning disputes. This decision may be delegated to a political structure or an official, but Ogle admitted it was not yet clear how the mayor would handle this authority.

Polovin said discretionary powers needed to be ‘tempered by checks and balances’. The fear that the city would be the judge in its own cases could be alleviated if the authority to consider appeals was delegated to a special appeal committee, including members who were not city officials.

This would avoid any suggestion of ‘inherent bias’.

Marie-Lou Roux of the Habitat Council said the city had already taken planning authority powers away from the city’s spatial planning and land use management portfolio committee so that the mayoral committee and council would have the final decision.

But the council was just a ‘rubber stamp’. The mayoral committee also met regularly with the development forum, which meant that planning decisions were not balanced.

Roux said that on decisions where the mayor could act at her discretion, there was little opportunity for public input. ‘We feel this is not in line with the constitution.’

The city could also rezone a property without public participation. This was happening again with the Cape Town Stadium, where there were already advanced plans to develop the area, she said.

Louw said the by-law was, in general, vague and lacked detail on what consultation would entail.

In its written submission, the Greater Cape Town Civic Alliance said it was ‘of grave concern’ that the city gave itself extensive discretionary powers without balancing these with an appropriate level of consultation.

‘Such wide discretion provides scope for abuse and creates an uncertain legal framework,’ said Marguerite Bond-Smith for the alliance.

It was suggested the by-law be referred back for reconsideration.

But Ogle said it was a national requirement that the by-law be ready for implementation in September as provincial and national legislation was predicated on municipal planning by-laws being in place.

Cape Town’s metro is drafting its own by-law, while the provincial government will draft similar by-laws for other municipalities.

The deadline for public comment is tomorrow.

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