Framework for division of land use planning

Jaap de VisserAssociate Professor

Community Law Centre, UWCMarch 2010

Problem statement

• Who does what when it comes to land use planning?

• Constitution allocates land use planning and development powers to national, provincial & local government

• “Wall-to-wall” local government no division on basis of territory, but on basis of interests

• How to manage the confusion?

What is the provincial interest in land use planning?

1. Province wants to see to it that municipal land use planning is done properly

2. Provincial government has its own constitutional competences, some of which entail land use regulation

Suggested approach to interpreting land use planning powers

1. What does “municipal planning” mean?2. What is the provincial interest in land use

planning?3. Does the Province have powers to deal with

those interests?4. What practical instruments can be designed

to manage the overlap?

Overall approach: “intra-municipal” vs “extra-municipal” issues

• Land use planning and management that has intra-municipal impact only “municipal planning”– Ordinary subdivision– Development application for vacant land in town – Cornershop in main road

• Land use planning and management that has impact beyond municipality “provincial planning”– Building of a large mall with taxi rank, access roads etc– Retirement estate in environmentally sensitive area– Industrial plant along a scenic tourism route– Development that puts stress on municipal bulk

infrastructure

Define “municipal planning”• City of Johannesburg (SCA): “municipal

planning” = land use planning and development management (not just forward planning)

• Swartland (WCape High Court): having national mining rights doesn’t absolve you of duty to apply for rezoning

Provincial supervision of “municipal planning”

• “Municipal planning” (Sch 4B) is not exclusive to local government

• Provincial government also has authority over “municipal planning”

• But this authority is limited (‘hands-off’)1. Objective: “to see to the effective performance” 2. Limited to framework legislation (s 155(7))

• May not be used in a manner that compromises and impede municipality (s 151(4))

PRINCIPLE: MUNICIPALITY MUST BE ABLE TO EXERCISE POLICY CHOICES ON 4B AND 5B MATTERS

What can province do with respect to “municipal planning”?

For example:• Prescribe general land use categories to be used• Prescribe criteria to be taken into account• Minimum standards, e.g. with regards to community

participation• Monitoring scheme• Prescribe to municipality to refuse land use application

in certain, narrowly defined circumstances.

• Does not need to be “one-size-fits-all”

Overall principle: don’t compromise or impede

Provincial interest: Province has its own powers, some of which may entail land use regulation

• Provincial government has its own constitutional powers (Schs 4A and 5A: “environment”, “agriculture” etc))

• Many of them give provincial government land use planning and land use management powers

• These powers are not limited to framework legislation – provincial government must be able to exercise policy choices on Sch 4A and 5A

• But may not be used in a manner that compromises or impedes municipality

Example: Sch 4A: “Agriculture”=national/provincial power

• Subdivision of Agricultural Land(Dpt. of Agriculture approves subdivision of agricultural land)

• Is that a violation of “municipal planning”?OR

• National government acting in terms of “Agriculture”

Example: “Tourism”= provincial power

• Building a factory alongside a provincial scenic route

• Multitude of retirement estates in province• Provincial law may reduce municipal authority

because it acts in terms of its own constitutional authority

• Key: how? How detailed? How prescriptive?• Overall principle: “don’t compromise and

impede”

Environment• Provincial government has protection of the environment

as an immediate mandate– Environment– Pollution Control– Indigenous Forests– Soil conservation– Nature conservation

• ‘Extra-municipal impact’ (effects straddles municipal boundaries, municipalities not required to have capacity)

• Provincial government may, in terms of that constitutional authority, regulate /administer land use.

• Overall principle: “don’t compromise and impede”

Appropriate instruments to manage overlap

• Tension, disagreements inevitable• Key: how to resolve them? appropriate instruments

to manage the overlapping interests• Can be provided for in a new Land Use Planning law• “hands-off” and “hands-on” instruments– ‘Hands-off’

Instruments where Province keeps a distance because it may not unduly interfere with “municipal planning”

– ‘Hands-on’Instruments where Province is more intrusive because it has constitutional authority

‘Hands-off’ instruments

• Municipal decision but cooperation– IGR forums, IDP alignment, consultation etc.

• Support– Model by-laws, training advice

• Regulating minimum standards, monitoring and intervention

• Regulating a provincial comment before the municipality takes a decision– Form of prescribed consultation– Must take into account– Municipality ignores at its own risk

‘Hands-on instruments’

• Alignment of plans– Provincial planning: Province may insist that its plans

are complied with if those plans are based on provincial authority (e.g. Provincial spatial development framework)

– ≠ IDP alignment• Example: provincial spatial plan provides for

tourism route, development corridor, environmentally sensitive area etc. municipality must respect that plan

‘Hands-on instruments’

• Transferring power to local government– Provincial government may transfer (parts of) a

function to local government or to a municipality

‘Hands-on instruments’Procedure to lodge objections

• Provincial government cannot be appeal body (as is the case now ito LUPO)– E.g. Appeal against ordinary subdivision

If provincial government cannot take the original decision, it cannot take the decision on appeal

• But neutral outside body may decide on appeals (from third party, municipality and provincial government)

When is objections procedure permissible?

• Neutral body– Representative of both spheres– Representative of planning/legal fraternity– Insulated from provincial interference

• With limited mandate– If it deals with “municipal planning” only refer

matters back to municipality – If it deals with extra-municipal dimension refer

matter to competent authority

‘Hands-on’: Provincial approval of municipal decisions?

• Does Province have power to approve zoning schemes and spatial development frameworks?

• Administrative approval of municipal decision making on original, constitutional competencies not approved by Courts (CDA Boerdery judgment wrt property rates)

• no power to approve all (aspects of all) zoning schemes and spatial development framework

• But zoning schemes/SDFs may contain ‘provincial’ matters more intrusive means permissible with respect to those

Determination of urban edge• Single decision that captures both municipal and

provincial interests– Municipal interest: search for location for new

developments, infrastructural requirements, new economic opportunities, expansion of rates base

– Provincial interest: protection of bio-diversity, climate change mitigation, integrity of land use planning and management

• Both interests are buttressed by constitutional powers• Conclusion: determination of urban edge cannot be an

exclusive municipal authority and cannot be exclusive municipal authority

• Most appropriate instrument to manage overlap?

Way Forward

• Draft Framework• PCF• Written Comments before 15th April• Drafting of Bill