Retired Director of Legal Services interrogates the Western Cape Land Use Planning Bill 2013

To: Directorate Environmental and Spatial Planning

Western Cape Provincial Government

Attention Chrizelle Kriel

DRAFT WESTERN CAPE LAND USE PLANNING BILL ; PROV. GAZETTE EXTRAORDINARY No 7080 18 Jan. 2013 ;

COMMENT BY ; C. J van der Spuy ; Retired Director Legal Sevices and Property Management; Cape Metropolitan Council

PROCESS

We gather that this act has been under consideration by the WC Prov. Government for more than a year. We also see that until now most if not all consultation has been limited to Professional Institutes and other Organs Of State, largely to the exclusion of the man in the street and the so called “Professional Objectors” (quote Helen Zille). We note also that the Cabinet Committee has approved this draft, warts and all, as pointed out below,  A fait accompli? We note further that we are invited to attend certain workshops being held within the WC province (excluding the City of Cape Town). “Closing the door after the horse has bolted”. We believe that decisions taken in terms of this Act could face strong challenges in terms of Section 152 of the national constitution.

GENERAL COMMENT

The Bill has its merits. It is indeed a simplification of the existing Land Use Planning Ordinance of 1985 (LUPO). However clearly the emphasis is on creating a more beneficial and streamlined environment for Developers so as ” to open up space for appropriate development “It would be nice to be able to define “appropriate development” and take into account the concept of “Sustainable Development as it is defined in The National Environment Management Act ( NEMA). It fails to recognise the inherent philosophy of

Developers, and that is, most generally (but with exceptions) to make as much money as possible as quickly as possible. It is an accepted economic principle that the longer the development takes to come to fruition, the greater become the costs thereof. The environment is usually the element of most developments, that takes the hardest knock. It’s also one which requires long term vision. It is also not an exact science and lends itself to degrees of variations and mitigation’s  and immediate relaxations resulting in immeasurable damage. It this factor which has most often become the norm for the intervention by the Environmental fraternity, both professional and Informal, and scant attention by the Competent Authority. These costly delays are what the authors of the bill are attempting to address under the guise of socio-economic development which is used as argument to sustain undesirable development.  Contributing to this is the fact that decisions of politicians, are subject to short term vision, as a consequence of their 5 year term of office.

This legislation is not unexpected. We have been primed and forewarned by protestations from organisations representing Property Development and indeed by the politicians. They are all irritated by the intervention, of what are legally referred to as Interested and Affected Parties. The premier Helen Zille in her weekly Newsletter SATODAY dated 20 Feb 2012 referred to them as “Professional objectors“, and made it abundantly clear that she intended to ease the plight of the Developers, by streamlining and cutting Red Tape at the expense of Checks and Balances. These are not the sort of measures we need in a Country which is rife with corruption. The more unsophisticated the country the more Checks and Balance are needed.

The funding of political parties by benefactors / donors is currently topical. It is likely that the major numbers of such Benefactors are indeed large Development Companies and even private wealthy individuals, who need special consideration to fulfill their aspirations. Consequently the political party acting through its Caucus is subjected to embarrassment, when deviant and undesirable applications meet with severe opposition from the public resulting in delays. Mysteriously and inexplicably they are approved, sometimes even in the face of negative reports by officials. The jobs of those officials who dare to oppose the Caucus are in jeopardy, remembering that most of them are appointed on contract for a period, and are politically correctly orientated .Until such time as Political Parties are required to disclose their source of funds from Donors, even if just to the extent of those who submit applications in terms of this Act, mistrust and suspicion of corruption will prevail.

RECOMMENDATIONS

If you are serious about improving the process of considering applications submitted in terms of this act, then include provisions which have the effect of closing the huge gaps( lack of integrity and confidence)in the relationships between the Competent Authority(The Municipality and/or the Prov.Gov.), the Applicant, and the Public (Interested and affected parties). In a democracy the Latter comprising the Civic NGOs and the “professional “Objectors are not going to go away and will continue to do everything within their power to oppose the undesirable and iniquitous applications and inexplicable suspect decisions .

Arbitrary Rejection; Invoke a policy of arbitrary rejection, as against the so called “Merits of every Application” policy. Do Not consider obviously audacious and unworthy applications which fail to comply with standing plans and policies, and which you know will meet with strong opposition. Refrain from favouring and enriching the Individual, as against the public, who is forced to try and oppose Applications, at considerable private expense .e.g The proposed Princess Vlei Mall. Official action of this nature engenders mistrust and suspicion of the motives of the Competent Authority .Coupled to this is the failure of the Competent Authority to take into account the setting of an undesirable precedent. It becomes a matter of Merits vs Precedent

The re-introduction of an Enhancement Levy; The burgeoning development and growth of the favoured province; The Western Cape, requires massive capital expenditure on Infrastructure Services, especially in the City Of Cape Town. The consequence of this favoured growth has been the massive increases in Municipal Rates. The question to be asked is; why not shift more of this burden onto the Corporate and Individual Developer. After all the Competent Authority has the power to turn many of these applicants into Millionaires and some cases multi-Millionaires over night by the stroke of a pen, in approving a more financially beneficial rezoning e.g. from Rural/ Agricultural to Sub divisional, for residential and commercial purposes. Not to mention the” Honey Pot” of Golf Estates .There is nothing new in this concept. For those not versed in the historical background of planning in the Cape Province, most of Greater Cape Town, in the latter half of the last century was developed through the system of Enhancement Levies and Endowments. Let me explain;

Prior to 1985 when the existing Cape Provincial Land Use Planning Ordinance (LUPO) came into effect, planning in the province was administered under the Townships Ordinance No 33 of 1934. Sec. 33 of that ordinance provided that the competent authority of that day was empowered and compelled to impose, on an application for rezoning and subdivision, an Enhancement levy. This levy was imposed on the premise that the owner of the land was substantially enriched by the increased value of his property, which when actually developed would result in considerable expenditure for the Competent Authority, for the provision of services ie Access Roads, Water, Electricity, Sewerage, Storm Water Control etc. Furthermore in instances of large developments (ie farms and undeveloped rural land ), the Applicant/Developer was also required to pay endowment levies for Educational purposes and for Local Authority purposes. In addition Endowment plots had to be transferred to the Local Authority, which ultimately were intended for public services i.e sports and religious uses etc. The Enhancement levy, which you might consider as Capital Tax was calculated by Professional Valuers at 50% of the difference in the value of the land before and after rezoning . Let me add that if private land was down zoned at the instance of the Authority , said Authority had similarly to pay the owner for devaluation.

In 1985 The Nationalist Provincial Government decided, for whatever reason, to rewrite the planning ordinance and to abolish all these Levies and free cession of Land. The main reason was probably to stimulate development. However it is my belief, or suspicion, that the real reason was that the National Party saw the opportunity to channel some of those profits, so gratuitously given to Developers, to the Party’s coffers. I also believe that was opening the door to corruption, as we have it today, in the fertile field of Property Development, and hence some of the ghastly and infamous developments in the City of Cape Town eg The Pepper Pot Flats on the slopes of the mountain at Woodstock. Enough said. Draw your own conclusions relevant to the current situation.

Law Enforcement; Active and vigorous law enforcement with deterrent and hefty penalties would go a long way to solve many of the Legal interventions which occur. Stop the frequent culture of commitment of infringements, based upon the weak reaction and slothful enforcement by the Competent Authority. Coupled with the fact that any penalty is so small as to discount it against the considerable financial commitment mostly recoverable from the client. Resolve the iniquitous practice of doing the transgression, and rectifying it by a series of pre- prepared bottom drawer Rider Plans. A specific suggestion would be to follow the example in NEMA: the fine is linked in amount, to the benefit derived from non-compliance.

SPECIFIC COMMENT

Chapter 1

There is no definition of Appeal Authority, a term used extensively in Chapter V1.

Application of the Act; The definition of the “area of application” is innovative, but could result in anomalies when interaction with other legislation occurs.

Chapter 111

To my mind very little opportunity is afforded to the general public in the formulation of all spatial planning especially at Provincial and National Level. I gain the impression that such process goes down only as far as Professional Institutes are available .It would be well for the competent Authority to heed the provisions of Section 152 of the National Constitution. The Draft Bill falls short of National Legislation in this respect and specifically, in that it fails to bring to the attention of the Public and their Constitutional rights.

Chapter 1V

Section 40; Rezoning Departure or consent use. Incredibly I find no reference to interaction with the public, in the process of such applications. This is unacceptable, if only on democratic grounds.

Section 41 Subdivision of land; There appears to be no consideration of process necessary, in respect of an application for the subdivision of a single erf, which is of maximum area in terms of a Zoning Scheme.

Section 41 (7) What is the Intention/purpose of this sub-section?

Section 43(2) This provision appears to cut across the established common law principle, that the Municipality may not include in applications for subdivision, areas of open space, larger than the “normal” requirement, as a condition of approval, without compensation to the applicant/owner. See the Judgement in the Tierbos case at Hout Bay (Tigerbush Investments Vs Southern Substructure Transitional Municipality). The Court held that a Local Authority could not acquire, free of compensation, areas of land in excess of the normal Open Space requirement. Compensation had to be paid to the owner of the land, albeit nominal. The emphasis being on “condition of approval.”

Section 44; Consolidation of land units; This is a welcome new provision. Is it not necessary that the parameters for the development of the Consolidated Property, be firmly established as conditions of approval? It is suggested that the intended use of the consolidated erf should be predetermined and firmly established, before granting approval and that it should be possible to consider the application for consolidation simultaneously with any application for a rezoning.

Section 45; Removal of Restrictions; Regrettably as usual there appears to be a serious lack of understanding and appreciation for the law relating to Restrictive Conditions in title deeds of properties .It has been stated over and over by the Courts, that where these conditions are imposed in favour of another property or several other properties, they are indeed Real or Praedial servitudes, inter se those other properties, and remain so notwithstanding the change of ownership in the course of time. They are part of the common law of SA, and In fact all reference to them should be removed from any statute. In disputes arising from these conditions the Local authority will conveniently stand back from any litigation .It has been held by the High court that in cases where these conditions were imposed as Township Conditions, the owner of every erf in that township should be advised of any attempt to remove, suspend or relax such conditions, and consent thereto. If there is one objection, the application fails.

While I appreciate that Hansard reports carry no legal Impact, historically it is significant to note, that the Removal of Restrictions Act which you glibly propose to repeal within the WC province, was passed in 1967, to facilitate the reconstruction and rehabilitation of vast areas of informal settlements in the Elsie’s River Area, by the then Divisional Council of the Cape. That is why it was easy to justify the compliance with the requisite positive benefit to the community. That rationale is seldom if ever available to present day applicants. In fact in practice these conditions should be seen and treated exactly the same as those against individual erven in Sectional Title Developments and which are governed by the home owners agreement and a Board of Trustees.

So If you want to repeal the Removal of Restrictions Act your Section 45 is Ultra Vires, in all respects and should be deleted.

Currently the Premier is the only authority who has locus standi to entertain applications to vary such conditions. She can of course delegate that to the Council subject to appeal on the Council’s decision, to the Premier.

With respect I must criticise the wording of Section 45 in the event that you risk including it. In Subsection (1) (b) there seems to be an irregularity in the sequence of Sub/Sub Sections (i)to (v)in respect of either “and or “or” after each sub /Sub sect. It becomes difficult to understand.

Re Sub Sect.(3) I don’t accept that it is possible for the Municipality to take the initiative to make an application and also adjudicate on its own Application!!

Section 47; I have a problem with the concept of an integrated authorisation. It is not clear to me whether it is intended that the Competent Authority, could have a general covering agreement with an Organ of State, eg SANParks, to take a decision on its behalf, without reference to SANParks. If not, I assume that the decisions of involved Organs of State would form part of the record of decision and be available publicly.

Section 48 (1) (b) is Ultra vires on the basis of the Tierbos Kloof High Court Judgement, referred to above. BUT, I agree that when it amounts to a quid pro quo for enormous beneficial rezonings, it should be permitted. In this same section, after the list of possible conditions, I would prefer to see a reference to some form of Environmental Impact Assessment, the Urban Edge, and Conservation Areas and preservation of unregistered Public Rights of Way. As a suggestion I would add a condition amounting to an indemnification for permitting development below a Flood plain level and on very severe Mountain slopes. Otherwise I believe that the Competent Authority can justifiably been seen as complicit in a short term vision, with a view to large profits.

Section 50; Publishing Notices. At the end of subsection (3) add:

(e) In the case of an application for Removal Of Restrictive Condition or Suspension or Relaxation, “ALL owners of properties with that Reciprocal Servitude right.”

Section 51; Serving of notices. Add the words after (2) (a) ‘and on any duly accredited NGOs representing residents and the public in the area of the application.’

THROUGHOUT THIS PROPOSED Legislation there appears to be no recognition or reference to the many legitimate Civic Bodies. For that matter neither the Ward Committee (Statutorily constituted by the Council.)

Section 56; Whilst I note the reservation to Registered Planners, I also note the absence of the involvement Registered Environmental Consultants . I suggest that it be written in, that in the event that it is appropriate, when an application is fraught with environmental considerations, which although might fall short of the requirements of NEMA, the Council can at the cost of the applicant seek such consultation and appointment .

Section 58; I am pleased to note that, at last, due recognition is to be given to the Cumulative impact of Multiple Developments on the infrastructure. This is a very, very important aspect of planning and consideration thereof eg Traffic and Roads; should be given serious consideration. Currently the impression is – Development at all costs. 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 .

Section 62; A lot of what is listed under this section is “Pie in the Sky” and ignored by the Council. But argument thereunder is not appropriate in this commentary. I could list many examples if requested.

Section 64; Appeals. It is a case of the less said the better. It is noticed that you have dispensed with appeals, as we understand them. It is also noted that this situation arises from the constitutional principle which dispenses with the hierarchy between the 3 tiers of Government, which in effect means that we have no option but to resort to the Courts, on Appeal. Unfortunately we don’t have the colossal budget for legal costs funded from our rates to sustain this service, as does the Municipality. I am not familiar with the Spatial Planning and land Use Management Act 20, referred to by you. Thus I can make no further comment on your proposed system for appeals. I would have thought it is your responsibility to, repeat or quote in full from said Act. So Much For Appeals.

Planning Advisory Committee

Section 70 and Section 71; We are Pleased to note, that the Planning Advisory committee, has no longer jurisdiction in the matter of commenting on individual applications. We had no confidence in this committee, as it at one time included practicing registered planners. It is proposed that, at the end of Sect. 71 (20) the following words are added “and who are not practicing Professionals in these disciplines or were so within 5 years before their appointment to the committee” ( to avoid sleeping partners!)

Yours respectfully

C. J. van der Spuy

 

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.

 

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

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