G E M E Y A B R A H A M S C O N S U L T I N GS A C N O F F I C E S , J O H A N N E S B U R G

1 J U N E 2 0 1 1

SACN RESPONSE TO THE SPATIAL PLANNING & LAND USE

MANAGEMENT BILL

OVERVIEW OF DISCUSSION

1. Background to planning law reform in SA since 1994

2. What can a new national planning law do in SA today?

3. Key features of the SPLUMB4. Going forward

1 June 2011 2SACN

BACKGROUND: THREE OPPORTUNITIES TO CHANGE PLANNING LAW POST-1994

• This bill comes at the end of the third major opportunity to reform planning law• First opportunity – early/mid-1990s, FEPD, DFA, DPC• Second opportunity – around 2000, Systems Act (IDP)

and NEMA (EIA regulations)• Third opportunity – 2000s, post-2001 White Paper on

Spatial Planning & Land Use Management

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BACKGROUND: THE ‘DFA CASE’

• 2010 Constitutional Court ruling in CoJ v GDT• Definition given to ‘municipal planning’• Key chapters of the DFA unconstitutional• 2-year deadline set for legislative reform

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THE POST-SPLUMB, POST-COJ V GDT ERA

• No DFA• Applications that would have gone via DFA now

all to municipalities in terms of Ordinances• LeFTEA & Ordinances legally suspect• New era provincial laws in 2 provinces only

• and they’ll need revision to fit SPLUMB

• Provinces under pressure to make new laws• Municipalities under pressure

• to establish new planning tribunals; and• draw up new Schemes.

1 June 2011 5SACN

WHAT CAN A NEW LAW DO?WHAT’S THE POTENTIAL ‘VALUE-ADD’?

• Clarity as to each sphere of government’s powers and functions

• Rationalisation of multiplicity of overlapping, contradictory and outdated legislation – to increase efficiency

• Development of new instruments for new challenges: informal settlements; gated communities; mega events; social housing; land under traditional areas etc

• Rules that concertedly shift the way the urban (and, less so, rural) land markets work

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WHAT CAN A NEW LAW DO?AND WHAT ARE THE CONSTRAINTS?

• Land use management (and spatial planning) are currently governed by a host of laws: provincial Ordinances, Less Formal Township Establishment Act, R293 (1962), BCDA regulations (1986), homeland laws etc – almost all now to some extent unconstitutional

• ‘municipal planning’ now is defined but the scope of provincial and national powers remains unclear

• Provinces have battled to produce their own new planning laws to replace the pre-1994 Ordinances

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WHAT CAN A NEW LAW DO?AND THE DIFFICULT CHOICES ARE…?

• Framework or Comprehensive law• Combined spatial planning and land use

management or separate laws• Detailed integration with other approvals or

enabling of local and provincial integration arrangements

• Uniform system for all land development and all types of area or specific rules for specific circumstances (including fast-tracking for special projects, post-DFA)

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THE SPLUMB’S INNOVATIONS

• Local government the primary point for land use management decision-making, via Municipal Planning Tribunals (clause 31)• Restricted grounds for appeal to provincial tribunal (clause 36)• Power for national minister to intervene when ‘national interest’ at

stake (clause 43)• Councilors excluded from land use management decision-

making (clause 33)• Mandatory national and provincial Spatial Development

Frameworks (also Regional SDFs) (chapter 4)• Specific requirements for land use management to be inclusive

of informal settlements, areas under traditional leadership (clauses 20 and 22)

• Rule against property value being a factor in land use management decision-making (clause 55)

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KEY FEATURES OF THE SPLUMB:THE CONSTITUTIONAL STARTING POINTS

Provincial & National government• Concurrent legislative powers on municipal planning, with

conflicts resolved in terms of s146• Provinces have exclusive legislative powers on provincial

planning (national law on provincial planning only possible where necessary in terms of section 44(2)

Local Government• Executive power in relation to municipal planning, subject to:

• regulation by national and provincial law; and• overlaps with national and provincial areas of land-use related

legislative competence (e.g. environment, agriculture, mining), although these national and provincial laws may not ‘impede’ local government’s powers.

• Legislative powers in relation to municipal planning• By laws…

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Schedule 4 (areas of concurrent legislative competence)

Schedule 5 (areas of exclusive provincial legislative competence)

Part A Part B Part A Part B

Environment Municipal planning Provincial planning -

Regional planning & development

- - -

Urban & rural development

- - -

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BACKGROUND: THE POWERS AND FUNCTIONS

SACN

“In summary the SPLUMB must strike a careful balance between maintaining the autonomy of municipalities in controlling and regulating land use, while doing justice to the national government’s interest in providing a framework for municipal planning and the national government’s interest in exercising national powers that impact on land use. In addition, all of this must be done in a manner that also respects the provincial authority to adopt province-specific legislation to regulate a provincial planning framework.”

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STRIKING A CAREFUL BALANCE

KEY FEATURES OF THE SPLUMB:FRAMEWORK OR COMPREHENSIVE?

This is framework legislation.

It couldn’t be comprehensive legislation without the support of all provinces.

It places a large burden on provinces which now have to draft legislation in line with the framework.

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KEY FEATURES OF THE SPLUMB:REPEAL OF NATIONAL LAWS

Development Facilitation Act• Municipalities in DFA-dependent provinces will have

to assume a greater administrative &planning load• No mechanism given to fill the vacuum left by DFARemoval of Restrictions Act• Until provincial law fills the gap, Removal of

Restrictions will have to be done via High CourtPhysical Planning Act• Very out of date, but still playing a role• Need for transitional measures, rather than simple

repeal

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KEY FEATURES OF THE SPLUMB:NON-REPEAL OF NATIONAL LAWS

BCDA and BAA regulations• again, onus of repealing and replacing these

regulations falls on provinces• SPLUMB should repeal and guide on replacementLess Formal Township Establishment Act• SPLUMB should clearly confirm that LeFTEA is no

longer constitutionally sustainable• SPLUMB should guide the repeal of LeFTEA and

guide the development of similar fast-track mechanisms in new legislation

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KEY FEATURES OF THE SPLUMB:INTEGRATING APPROVALS

A voluntary model (clauses 28 & 29)• Is this sufficient?• What else is feasible?• Clause 24(3) and the relationship between the

provisions of a LUM Scheme and those of other legislation (e.g. MPDRA, Act 70…)

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KEY FEATURES OF THE SPLUMB:PROVINCIAL & NATIONAL ROLES

Provincial appeal powers• SPLUMB must clarify relationship between s62

‘internal appeal’ (Systems Act) and SPLUMB clause 36 appeal to Prov. Pl. Tribunal

• Clause 36 limits grounds of appeal (are these grounds appropriate/correct/workable?)

• It is problematic to limit grounds of appeal to PPT through criteria of national interest

National intervention• The grounds for national intervention are

excessively wide and must be tightened

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KEY FEATURES OF THE SPLUMB:DECISION-MAKING CRITERIA

SPLUMB decision-making has to be informed by:• General Principles in Chapter 2;• Norms and Standards (clause 5), which have yet

to be formulated; and• Muni. SDFs

In a context of scarce planning resources – and the need for more predictable decision-making – is it helpful to introduce so many criteria?

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KEY FEATURES OF THE SPLUMB:GEOGRAPHIC SCOPE

The SPLUMB makes important progress towards demanding inclusive planning & LUM (for example in informal settlements), but it passes the responsibility for addressing the worst legacy of apartheid-era planning laws to provinces and municipalities, with minimum guidance.

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GOING FORWARD: HOW TO MAKE THE SPLUMB WORK?

1. SPLUMB cannot be allowed to proceed as is, or even with major revision.

2. SPLUMB has to be:a. Fixed; andb. Supplemented with subordinate legislation.

3. In the short term (by June 2012):a. Fix SPLUMB; andb. Develop a DFA/LeFTEA hybrid that is constitutional.

4. In the medium term (by 2014):a. Develop a model provincial SP & LUM law;b. Develop model SP & LUM by laws for different

categories of LG; andc. Establish a national SP & LUM Legal Implementation

Support Team1 June 2011 SACN 20

GOING FORWARD: THE PROCESS

1. National government cannot drive this process alone.

2. All three spheres have important roles and must be able to hold each other to account in the law-making.

3. Local government has to be central to planning law reform initiatives because of ‘municipal planning’.

4. Provinces must be part of the process to ensure alignment of new provincial legislation with national framework.

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