The Committee's Content Adviser and Researcher presented a summary of the comments and submissions made at the public hearing on the Spatial Planning and Land Use Management Bill (B14-2012) (SPLUMB). The comments were divided into general and specific comments. The issues raised in relation to the general comments were in respect of consultation; public participation/consultation; framework legislation; cost of planning; constitutionality of the Bill; land tenure and land use communal areas; alignment with other laws and custodian of the Bill. The issues raised in relation to the specific comments were in respect of intergovernmental support; intervention in functional areas of municipal competence; spatial development frameworks; mining; land use schemes; municipal planning tribunals; time-frames for applications; engineering services/development charges; appeals; exemptions; regulations; transitional arrangements and repeals.
The Department of Rural Development and Land Reform (DRDLR) presented its responses to the issues it had identified from the submissions made at the public hearing. These issues centred on decision making bodies; repeal of laws; transitional provisions; interface with provincial legislation and legal status of Spatial Development Frameworks (SDFs).
Members asked if the Parliamentary Legal Adviser could advise the Committee on the proposals which had been made in respect of the Bill; if the Committee ought to be dealing with the Bill alone or if the Department of Co-operative Governance and Traditional Affairs (COGTA) should also participate in the deliberations on the Bill.
Content Advisor and Researcher: briefings
The Chairperson called on the Content Advisor and the Researcher to make their submissions.
Mr Tshililo Mananzhe, Content Adviser, presented a summary of what transpired during the hearings on the Spatial Planning and Land Use Management Bill (B14-2012) (SPLUMB).The Researcher would be taking the Committee through the summary of the public hearings. The summary would not be a replay of the public hearings but would only highlight the issues that emerged during the hearings.
Ms Tembisa Pepeteka, Researcher, presented the summary of the comments made by stakeholders at the hearings. She started with the general comments in respect of the Bill.
The first issue raised at the hearings was in relation to consultation. The comments concerning consultation were that there had not been any adequate consultation in respect of the Bill. There had also not been any feedback from the Department of Rural Development and Land Reform (DRDLR) concerning the comments made on the Bill. It was therefore proposed that provinces and local government should have been involved in the drafting. More time was needed for meaningful participation; small towns and cities especially needed to be consulted and not just via the South African Local Government Association (SALGA).
The second issue was in respect of public participation/consultation. The comment was that public participation/ consultation was not addressed in the Bill. It was therefore proposed that the Bill should facilitate participation and meaningful involvement of communities themselves.
The third issue was in respect of the framework legislation. The comment was that the Bill was too prescriptive as framework legislation as it prescribed how local government should exercise its decision. The Bill was not detailed enough to clarify roles and responsibilities between the three spheres of Government.
The fourth issue was cost of planning. The comment was that the Bill would increase the cost of planning system and therefore become unaffordable for the poor and middle class. Any development was subject to planning and building controls which required payment for consent. It was proposed that the DRDLR should take a cost review exercise of planning on the applicant.
The fifth issue was in respect of the constitutionality of the Bill. The comment was that the constitutionality of national Government to make legislation on spatial planning and land use management was questionable because there were areas of concurrent powers for provincial and local government. The Bill was proposing an interference on municipal planning by national and provincial governments and thus opening the Bill to a Constitutional Court challenge. It was therefore proposed that there was a need for clearly defined responsibilities for national, provincial and local government planning.
The sixth issue was land tenure and land use communal areas. The Bill was silent on the status of customary tenure and the rights of customary communities. The Bill was also silent on land reform. It was proposed that the Bill should provide guidelines, regulations and capacity to integrate land development and land tenure across different spheres. The Bill needed to give guidance on how provincial legislation would deal with land use management in areas falling under traditional authorities. The Spatial Development Framework (SDF) should consider land release and acquisitions.
The seventh issue was alignment with other laws. The comment was that the Bill ignored existing national and provincial planning legislation. It assumed that all existing provincial laws would be repealed and new planning laws would be adopted. This created parallel processes. The proposal was that there should be one piece of legislation dealing with spatial planning and development. The Bill also ought to include references to other laws impacting on land use.
The eight issue was in respect of the custodian of the Bill. It was questionable whether the DRDLR should be the custodian of the Bill. It was proposed that the Department of Cooperative Governance and Traditional Affairs (COGTA) should be the appropriate custodian of the Bill.
Ms Pepeteka thereafter proceeded to the specific comments that had been made in respect of the Bill. In respect of Chapter One the issue that had been raised was in relation to definitions. The comment was that some terms in the Bill were not defined while others were defined but not used in the Bill.
In respect of Chapter Two, the issue that had been raised was in relation to intergovernmental support. The comment was that the provision on intergovernmental support was a repetition of Section 154 of the Constitution. To address poor capacity among municipalities the Bill obligated the Minister to provide support and assistance within available resources but it was not clear how the support would be provided. It was also not clear in the Bill what would happen when the Bill conflicted with other legislation such as the National Environmental Management Act (No. 107 of 1998). Which legislation would take precedence? The proposal was that the Bill should allow for functions to be gradually transferred to municipalities. The DRDLR should conduct municipal capacity assessment and ensure that the necessary capacity was developed to implement the provisions of the Bill. Support should be provided if requested by the relevant local authority or it was clear that it was not in the position to deliver on it obligation.
Another issue raised was in relation to intervention in functional areas of municipal competence. The comment was that the Power of the Minister to prescribe norms and standards was seen as interference in provincial and municipal planning. Clause 18 (3) (b) permitted the Minister to declare the municipality a region if the municipality failed to amend or review its SDF and then he could take over the responsibility of preparing the SDF. This was seen as an usurpation of municipal executive authority by the Minister. Clause 22 (3) gave the Premier the authority to take charge to ensure consistency of municipal SDF and provincial SDF without consulting municipality if provincial SDF was inconsistent with municipal SDF. This would undermine the exclusive power of municipality over municipal planning. Matters in Schedule 1 for provincial legislation were areas of municipal functional competence and therefore seen as interference of province on powers of municipality. This implied that Clause 10 might lead to encroachment on the functions and powers of municipality. Clause 52 (b) stated that when an application involved issues of national interest the Minister could decide on such application. The proposal was that when an application involved issues of national or provincial interest these spheres should join only as party to the decision instead of taking decision. The national monitoring of municipalities should be done through provincial governments as it is required in terms of Section 139 of the Constitution and it is not for the national Government to bypass provinces.
In respect of Chapter Four, the issue that was raised was in respect of spatial development frameworks. The comment was that there was no need for each sphere to produce its SDF as it created confusion. The Bill was too prescriptive on how the municipality should adopt its SDF. SDFs were already established through the Local Government: Municipal Systems Act (No. 32 of 2000) (MSA) and the Bill did not seem to relate to the MSA. The five year cycle for the preparation of national, provincial and municipal SDFs and land use scheme were not feasible and had to be reviewed. The review cycles were not feasible and had to be carefully coordinated. It was also not clear how the Bill would ensure alignment of the national, provincial and municipal SDFs. The proposal was that a municipality should produce its SDF only after consultation with the other spheres. There was a need to align with the MSA. A long term of 15-20 years was proposed for reviews. There was a need to have SDF guidelines.
Another issue in respect of Chapter Four was mining. The comment was that the Bill failed to recognise the historical impact of mining on communities, which created a need for the Bill to make special consideration when applications for land use changed and land development were made in the context of mining. The proposal was that Clause 12 (1) (n) should include that cognisance should be taken of the significant impact of mining on natural resources and therefore extra measures should be put in place. The rezoning of land for mining purposes should be subjected to strict scrutiny and special considerations should be made to apply to such applications. This was to ensure that special considerations would be taken before a decision was made concerning whether land use could be changed for mining use in order to protect prime agricultural land being rezoned for mining purposes. Mining as national interest should be elevated to ministerial level and all applications relating to mining should be submitted to the Minister of Mineral Resources. All land development applications ought to be submitted to the Minister of Mineral Resources because they had the potential to impact on mining.
In respect of Chapter Five, the issue was land use schemes. The comment was that the Bill did not provide for adequate public participation in the decision making processes especially for traditional communities. The requirement for municipalities to adopt a land use scheme within five years of approval of the new law was not feasible. Time-frames for review of land use schemes were not feasible. Clause 26 (1) (b) which provided for replacement of all existing land use schemes with new schemes was contradicting Clause 26 (5) which contemplated that existing land use schemes would not be repealed or replaced by new schemes. The proposal was that provision should be made for rural communities on communal land to participate concerning the development and use of its land, particularly in relation to mining operations. The reviews of the Metropolitan Spatial Development Framework (MSDF) and Provincial Spatial Development Framework (PSDF) should be every ten years instead of five years. The Bill should contain provisions to deal with situations when land use schemes were not reviewed. An official designated by a municipality to consider and determine authorisation of land use for certain development applications should have appropriate skills and professional registration. The reference to health and safety legislation should be made as a requirement for land use schemes, in particular, provisions should be made under Clause 24(2). Food security to be included as Clause 25 (1) (e) as one of the factors to be promoted when use and development of land was determined.
In respect of Chapter Six, the issue was municipal planning tribunals. The comment was that the exclusion of municipal councillors to be members of the tribunal meant that the Bill contradicted Section 79m and 80 of the Municipal Systems Act which made provisions for the tribunal to consist of political representatives or councillors. Also in terms of Section 160 (1) (a) of the Constitution, it was that prerogative of municipalities to decide who should be in the tribunal. The tribunal system was expensive and some municipalities might not have persons from the private sector to serve on the tribunal. The proposal was that it should discretionary and not mandatory for the municipality to appoint outside members to the municipal planning tribunal as this would have a cost implication for the municipality. The Bill ought to be amended to give municipalities a choice to have the power of deciding on land use application with a municipality’s specific portfolio committee of if they wished to have a municipal planning tribunal. Tribunals should deal only with appeals while a municipal council should deal with applications. Non-state members should outweigh municipal officials in municipal planning tribunals.
Another issue was the time-frames for applications (Clause 44). The comment was that there were no time-frames in the Bill to deal with applications. The proposal was that there should be time-frames for applications. There should be consequences for not keeping time-frames. A decision had to be made within three months of receipt of application by delegated municipal officials and within five months of receipt of application by a municipal planning tribunal. Time-frames for deciding an application should not be regulated but instead should depend on the circumstances for approval.
A further issue was the engineering services/development charges (Clause 49). The comment was that the definition of engineering services does not include private roads. The use of ‘fair and reasonable costs’ in Clause 49 (4) was likely to create unnecessary complications as no guidance was given of how one arrived at fair and reasonable costs. This would impact on what a municipality could get from development charges. The proposal was that the definition of engineering needed to be expanded. The provision on development charges needed to be discussed with Treasury.
Another issue was in respect of appeals (Clause 51). The comment was that the Bill provided only for internal appeal process to the municipal executive authority. Since the decision of a municipal planning tribunal was a decision of a municipality it meant that an appeal to the executive authority of the municipality would become an appeal to the same body which made the decision (the municipality became both the player and the referee). It was also too much administrative burden on the executive authority to deal with appeals for the whole jurisdiction of municipality. The appeal process legislated through Section 62 of the MSA created dual process that would cause confusion and delays. There was no right of appeal unless appellant could prove a right that had been adversely affected (Clause 55 (5)). The Bill gave right to appeal to a decision taken by tribunals but it stated that ‘no variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision (Clause 51 (3)). This undermined the right to appeal. There was no provision made for appeal against the decision by municipality to adopt scheme or amend a scheme. The proposal was that the inter-municipal appeal tribunal should consist of officials from different councils. The provincial planning appeal ought to decide on all appeals.
Another issue which arose in relation to appeals was in respect of exemptions (Clause 55). It was proposed that tenure upgrades or process to obtain title to existing tenure rights should be exempted from provisions of the Bill. Land use for essential services should also be exempted from the Bill. Services that were offered by state owned enterprises should be listed as of national interest and therefore exempted from the legislation.
In respect of Chapter Seven, an issue was raised in respect of Regulations (Clause 54). The comment was that an opportunity should be given to comment on the proposed regulations to be made by the Minister. Regulations should have been made available parallel with the Bill.
Another issue in respect of Chapter Seven was in relation to transitional arrangements (Clause 60). The comment was that Chapter V and VI of the Development Facilitation Act (No. 67 of 1995) (DFA) had been declared unconstitutional. The Bill had no clear arrangements put in place to deal with development applications that were submitted in terms of DFA and were not finalised by 18 June 2012. Transitional arrangements provided with regard to dealing with existing property rights shall create claims against the local authority. The proposal was that any regulations pertaining to Chapter V and VI of the DFA should be deleted. A provision which states that FA applications that were approved prior to 17 June 2012 be dealt with and finalised in terms of the Bill should incorporated. Existing rights should be dealt with in the same manner as in the Town planning and Township Ordinances, 15 of 1986 in which rights would remain in place for a period of 15 years. An adequate transition period of two years was required to ensure that all process or requirements completed before the Act became implementable.
In respect of Schedule Three, the issue of repeals was raised. The comment was that since the provision for removal of restrictions in the Bill was not adequate; consideration ought to be given as to whether the Removal of Restrictions Act (No. 84 of 1967) should be repealed simultaneously with the enactment of the Bill or at all. The Bill did not repeal old provincial apartheid legislation and therefore a created parallel process. The Less Formal Township Establishment Act (No. 70 of 1970) and the Black Communities Development Amendment Act (No. 52 of 1985) had not been repealed.
The Chairperson asked Members to present their questions and comments.
Ms P Ngwenya-Mabila (ANC) asked if the Parliamentary Legal Advisor was around to advise the Committee on the proposals which had been made in respect of the Bill.
The Chairperson requested the State Law Adviser to comment on the submissions and proposals made in respect of the Bill.
Mr Theo Hercules, Principal State Law Adviser stated that he was not representing the Office of the Parliamentary Legal Adviser but that he was ready to provide assistance where necessary.
Adv Sueanne Isaac, Parliamentary Legal Adviser, stated that she was at the meeting to take note of all the issues raised and that she would subsequently make a detailed written report available to the Committee.
The Chairperson wondered why the Parliamentary Legal Adviser did not have any report to present to the Committee.
Mr S Ntapane (UDM) commented that it would be fair to allow the Parliamentary Legal Adviser to make a subsequent report on the submissions in relation to the Bill if the submissions had not been made available to her before the meeting. However, it would be irresponsible for her to state that there was no ready report if the submissions had been made available to her before the meeting and she had failed to act on it. .
Mr A Trollip (DA) sought to know if the Committee ought to be dealing with the Bill alone or if the Department of Co-operative Governance and Traditional Affairs (COGTA) should also participate in the deliberations on the Bill. This was because the Bill had direct impact on COGTA rather than the DRDLR. And it would be futile to exclude a department which the Bill would have a direct impact on.
Mr Trollip stated that it was pertinent for the Parliamentary Legal Advisers to advise the Committee on how the Bill interfaced with the Municipal Systems Act.
Ms Isaac stated that she would not be able to make any report available to the Committee at the meeting and requested for time to make a detailed report. This was because the issues raised in the Bill were complex and would require some time in order to present a considered legal opinion
Department of Rural Development & Land Reform (DRDLR): briefing
Mr Sunday Ogunronbi, DRPLR Executive Manager: Spatial Planning & Information, presented the response of the DRDLR to the issues raised at the public hearings. He identified the issues raised in respect of appeals as follows:
Was the proposed internal appeal mechanism in the current version of the Bill adequate?
Could the Executive Authority take decision on appeals?
Was there a role for provinces in appeals?
Should there be more than one level of appeals?
Options for appeal mechanisms?
Were appeal procedures available to a party aggrieved by adoption of the municipal SDF?
No provision for appeal to external/independent body.
Clause 51(3) negated the right of appeal.
The response of the DRDLR to the above issues was that the Clause required review. The Department would make a submission with recommended changes. While the provisions of Section 62 of the MSA with regard to the appeal rights of an applicant would remain in place, the Bill would made a wider provision for aggrieved parties (which might include applicants, objectors or other persons whose rights were affected) to appeal against the decisions of municipal planning tribunals (Clause 51). The provisions constituted a superior appeal mechanism than Section 62 of the MSA.
In respect of decision making bodies, the issues raised were identified as follows:
Could councillors be excluded from decision making on land development?
Provisions of the Bill which prevented elected officials from serving on municipal planning tribunals were inconsistent with Section 160 of the Constitution.
Exclusion of councillors should be dealt with in terms of delegation process.
What role could councillors play in land development?
What roles could traditional leaders play in land development and land use management?
Establishment of municipal decision making bodies already dealt with in the MSA.
Municipalities should have discretion over composition of a municipal planning tribunal.
Inclusion of suitably qualified members of the public on a municipal planning tribunal was problematic.
The Bill should be specific on the expertise required on the tribunal.
Who would be responsible for monitoring tribunals?
Tribunals did not have the competence to adjudicate applications dealing with agricultural land.
Planners on tribunals ought to be registered.
Tribunals should include non-governmental organisations (NGOs).
Tribunals should not include external members.
The DRDLR response to the above issues was that the Bill made specific provisions for a body to deal with municipal decisions on development applications. This was an administrative function which occurred within the policy framework established by councillors (SDF) and was therefore beast dealt with by officials/appointees of council. The Department had explained those provisions regarding the composition, powers and functions of the municipal planning tribunal in public engagements. The exclusion of councillors was contentious but the Department supported this approach. Provisions permitting members would require review.
In respect of repeal of laws, the issues raised were identified as follows:
The Bill did not do enough to transform the current spatial planning and land use management regulatory environment.
There would be legislative vacuum until new provincial laws were enacted and ordinances repealed. Model provincial legislation and by-laws for municipalities should be included.
There was need to identify all national and provincial legislation dealing with spatial planning and land use management and how legislation would be repealed.
The DRDLR response was that the Bill provided a consistent national framework within which provinces and municipalities would be able to legislate for and execute spatial planning and land use development within their respective spheres. The Bill would not be able to repeal other national legislation that was not within the purview of the DRDLR. This rationalisation process would be achieved through provincial legislation. The Bill would also not be able to repeal provincial legislation (e.g provincial ordinances) as planning was a concurrent national and provincial competence.
In respect of transitional provisions, the issues raised were identified as follows:
Detailed transitional provisions were required.
Finalisation of DFA applications in terms of DFA was problematic. They should be in terms of SPLUMB.
Existing rights needed to remain for a longer period of at least 15 years.
The DRDLR response was that the Department had a current project to put in place comprehensive guidelines for interim and transitional measures for the Bill. The DRDLR intended to propose amendments to transitional provisions in the Bill.
In respect of interface with provincial legislation, the issues raised at the hearings were identified as follows:
There were no linking mechanisms in the Bill to tie it to respective provincial legislation other than as suggested in Schedule 1.
The Bill provided for municipal SDFs as part of municipal planning, however, municipal SDFs would always have regional and/or provincial effects. This unduly complicated the planning regime.
Provincial interest was still unclear.
Provincial interest was undefined and might very well encroach on municipal planning.
The Bill once enacted should only be brought into operation after legislation had been enacted in each province.
There was need for standardised regulation of content and procedures for preparation, adoption, and amendment of provincial SDFs.
The Bill did not establish adequate basis for intervention in provincial planning.
The DRDLR response was that Clauses 4, 5, 9, and 10 of the Bill dealt with provincial legislation. Provinces had concurrent powers to regulate matters provided for in Schedules 4 and 5 to the Constitution. The national Act would provide a framework within which provinces would create legislation that would respond to specific provincial requirements and circumstances. In the interim period while provinces were preparing their legislation, municipalities would comply directly with the national Act. Eventually, regulation of municipal spatial planning and land use management would occur through provincial Acts which would flow from and be consistent with the national Act.
In respect of the legal status of SDFs, the issues raised at the hearings were identified as follows:
The SDFs were being elevated to the status of laws.
There was need for obligatory criteria for all SDFs.
There was the need to include SDF guidelines.
There was to review the procedures for appealing against adoption of a SDF.
There was need to take a closer look at the resolution of disputes regarding SDFs.
The Bill should have long term time horizon, e.g 20 years minimum.
The DRDLR response was that the intention was not to have a hierarchy of SDFs but rather a set of plans that complemented each other. Clause 12 made it clear that the purpose of the SDF in any sphere of government was to guide and inform. not regulate. The municipal SDF represented the long term vision for the spatial development of a municipality. The municipal SDF was supported by instruments such as the Medium Term Expenditure Framework (MTEF) which aligned budgets to the implementation of the SDF. Clause 12 (1) set out the informing and guiding nature of SDFs while Clause 26 (1) stated that the land use scheme had the force of law. The strategic and policy instrument (SDF) was intended t guide and inform the legal instrument (the land use scheme). The Bill further made provision for these instruments to be amended individually and in relation to each other (in terms of Clause 21) to ensure that they are mutually supportive. Furthermore, Clause 21 (1) of the Bill provided that a municipal SDF must determine the purpose, desired impact and structure of the land use management system in the municipality. The municipal SDF should not therefore be departed from lightly. Hence the Bill did not permit municipal planning tribunals to depart from the guidance provided by a municipal SDF without good cause and required that an amendment to the SDF be pursued.
The Chairperson thanked everyone for coming to the meeting.
The meeting was adjourned.
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