The Committee went through the Spatial Planning and Land Use Management Bill (the Bill) on a clause-by-clause basis, with the State Law Advisors, Department of Rural Development and Land Reform (DRDLR) and Members raising and debating proposals for amendment.
In relation to the definitions, Members questioned whether “national interest” and “provincial interest” should be defined, but accepted the views of the State Law Advisor (SLA) that this would unduly limit them. The definition of “region” was clarified, and it was explained that it related to the preparation of a regional spatial development framework. The definition of “engineering services” was also explained as being limited to land use management. It was pointed out that “land use scheme” did not need to be defined since it was used only in Chapter 5, where it was put in context. The DRDLR proposed a new definition of “development rights”, a new definition of “integrated development plan” that would refer to Chapter 5 of the Municipal Systems Act, and the deletion of definitions of “rezone”, “inclusionary housing” and “erf”. In relation to clause 2, it was noted that substantial comment was raised during the public hearings, on the relationship between the national law and provincial law. DRDLR now proposed that the relationship between them be clarified by inserting a new clause 2(2) to state that no legislation that had not been repealed by the Bill may prescribe an alternative or parallel mechanism, institution or system that would be inconsistent with the Bill. Although a new subclause 2(3) was also proposed, Members pointed out that it was unnecessary, and the DRDLR conceded that point. A Member queried the import of clause 7, and the SLA pointed out that the principle set out in clause 7 was also reinforced by clause 57. A person would only get compensation when the value of his or her land had been diminished to the extent that the land could no longer be used for the purpose originally intended. It was explained that clause 8 deliberately did not state the norms and standards, since they were not fixed items.
DRDRL proposed insertion of a new clause 10(6) stating that provincial legislation that had the effect of regulating land use, land use management and land development within a province must promote the development of local government capacity, to enable municipalities to perform their municipal planning functions. This was accepted by the Committee. The words “mineral resources” were to be added to clause 12(1)(n). New wording was proposed for clause 12(2)(a), and clause 12(5) would be deleted as it added no value to the Bill. Clauses 18(3)(a) and (b) were to be deleted. In clause 19, after debate, it was eventually decided that the words “be consistent with” (environment legislation) be replaced with “comply with”. In clause 21, "and applicable norms and standards" would be added. Clauses 22(2)(a) and (b) would be combined in new wording for clause 22(2). New wording was proposed for clause 23(2), in response to the Committee’s request that traditional councils must participate in schemes or spatial development frameworks that affected their area. In clause 25, the reference to “regulations” was replaced with “regulatory procedures and conditions” since municipalities enacted provisions that were variously referred to as by-laws and regulations, and clause 25(1) would be re-worked so that it read better, and included the words “and applicable norms and standards”. A new clause 28(2)(iv) would be added, to noted that changes to land use schemes must be authorised by a Municipal Council. A Member proposed that documentation should be made available not only at regional, but also public offices, for ease of access, in relation to clause 31(2).
Spatial Planning and Land Use Management Bill: Clause by clause deliberations
The Committee deliberated, clause by clause, on the Spatial Planning and Land Use Management Bill (the Bill): with the
Long Title, Preamble
The Committee had no comment to make
Clause 1: Definitions
National interest and provincial interest
Mr A Trollip (DA) thought that there was a need to include the definition of “national interest” and “provincial interest”, since both were mentioned in the Bill.
Mr Theo Hercules, Principal State Law Adviser, Office of the Chief State Law Advisor, stated that the purpose of the definitions clause in the Bill was to give a certain words a specific meaning, outside of their normal dictionary definition, if it was intended to limit or extend the ordinary meaning of the words. The two phrases “national interest” and “provincial interest” were used in the Bill as broadly as possible, in order to give effect to what the Bill provided. He thought that any definition of these phrases might have the effect of limiting the phrases, and he recommended that no definition be provided.
The Chairperson stated that he could not understand the Mr Hercules’ comment. He asked if the definition of “national interest” could not be found in any other legislation in South Africa.
Mr Sunday Ogunronbi, Chief Director, Department of Rural Development and Land Reform, stated that his Department (DRDLR) had studied the use of this phrase in other countries. Whilst in some, the parameters in which the term “national interest”’ could be used were laid down, there was no attempt to define the term itself, and for this reason a similar approach had been taken in this Bill.
The Chairperson asked Mr Ogunronbi if he was asserting was that no definition of “national interest” could be found in other legislation in South Africa.
Mr Ogunronbi affirmed that this was the position.
The Chairperson was worried about this, but said that it appeared that nothing could be done about the situation.
Mr Trollip further queried the definition of “region” in the Bill. Whilst it was self-explanatory, there was a possibility of conflict between this definition and other existing legislation, such as the Municipal Structures Act (MSA). He pointed out that the municipalities would be the final implementers of the Bill, and “a region”, as defined in the Bill, could cut across various municipalities and therefore be affected by different by-laws in different municipalities.
Mr Hercules commented that, from an interpretational point of view, the term “region”, as defined in the Bill, referred to the regional spatial development framework, which was also referred to in clauses 18 and 19 of Chapter 4 of the Bill. Therefore, for the purpose of spatial development, the Office of the Chief State Law Advisor (OCLSA) was of the view that the definition was not inconsistent with other pieces of legislation. The definition of “region” in this Bill gave effect to the meaning for the purposes of preparing a regional spatial development framework, and also gave guidance on the content of those frameworks.
Mr Ogunronbi stated that development did not necessarily follow boundaries. The possibility of a regional spatial development framework was a reality and the DRDLR agreed that the definition in the Bill had not flouted any other law.
Members stated that they were satisfied with the reply given.
The Chairperson raised an issue in respect of engineering services, external engineering services and internal engineering services, as defined in the Bill. He asked why the definition of the general term of “engineering services” excluded airport runaways and municipality roads.
Mr Ogunronbi replied that the DRDLR had defined the term “engineering services” in a narrow context in this Bill, so that it only related to land use management.
The Chairperson interjected and gave the analogy that EThekwini Municipality may want to build an airport in its municipality, which would surely have to include engineering services.
Mr Ogunronbi sought to explain what amounted to “internal engineering services” for the purposes of airport construction.
The Chairperson interjected again, and stated that he wanted an immediate response to the definition of the general term “engineering services”, and an explanation on whether the other types of engineering services defined in the Bill would suffice. He stressed the fact that all provincial roads and national roads would be within the spatial development framework, and asked where these roads would be considered, if they were excluded from the definition of engineering services.
Mr Ogunronbi reiterated his earlier reply that the DRDLR had not attempted to define engineering services for all purposes. He stressed that the Bill had attempted to define “engineering services” in relation to land development, and this was defined in the Bill as an application to change the use, form and function of land. In other words, consideration would have to be given to the obligations of a municipality when somebody sought permission to do a development. For instance, if a factory was to be built for the production of explosives, all that the municipality would be required to do was to provide water for the project. No other engineering works relating to the factory had any definition in the Bill. National roads and provincial roads did not fall within the definition of engineering services, for the purpose of looking at the obligation of a municipality in relation to land development.
Mr Hercules confirmed the comment made by Mr Ogunronbi, and stated that the definition of “engineering services” was drafted specifically to cover only what would be required for the purposes of dealing with land development.
Land Use Scheme
The Chairperson referred to “land use scheme”, which was referred only to Chapter 5, yet no specific definition had been given.
Mr Ogunronbi stated that Clause 25(2) referred to what would comprise a land use scheme. He explained that not all definitions may necessarily be found in the Definitions clause. Definition of any term that was used substantially, throughout the bill, would be put in clause 1. However, something that was referred to only in one clause was usually explained in that clause, to avoid the situation where half of the Bill would comprise a series of definitions.
Mr Hercules stated that the whole purpose of having definition was basically to give a specific meaning to a term, or to give a specific direction. It was accepted drafting practice and could be found in all other legislation in the country.
The Chairperson asked the DRDLR to present its proposed amendments for the definitions in the Bill. He reminded the Members that the proposed amendments by the DRDLR were the response to the submissions made by stakeholders during the public hearings.
Mr Ogunronbi stated that the DRDLR was proposing five amendments in respect of Clause 1 of the Bill.
The first proposal was to define development rights” in relation to "land development". Therefore the proposed definition was “development rights” means any approval granted to a land development application”.
Secondly, DRDLR proposed a new definition for “integrated development plan”, by amending the reference to a plan that would be adopted in terms of Chapter 5 of the Municipal Systems Act.
The third proposed amendment was to delete the definition for “rezone”, because the original definition would restrict the meaning of the amendment to a land use scheme.
The fourth proposed amendment was to delete the definition of "inclusionary housing", because it was felt that this definition offered very little substance, and because the term appeared only rarely in the Bill.
The fifth proposed amendment was to delete the definition of "erf". This word was one that was well used and understood by surveyors, did not have any impact in this Bill as the word in fact did not appear in the Bill.
The Chairperson noted that Members accepted those proposals.
Chapter 2: Clause 2: Development principles, norms and standards
Mr Ogunronbi noted the proposals of the DRDLR. There had been substantial comment, during the public hearings, on the relationship between the national law and provincial law, particularly since all provinces were busy with provincial laws on the same subject matter covered by the Bill. For this reason, DRDLR proposed that the relationship between national and provincial laws should be defined. This would be done by inserting a provision to exclude use or reliance on any old order law. A new sub-clause (2) should read: “except as provided for in this Act, no legislation not repealed by this Act may prescribe an alternative or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land development, in a manner inconsistent with the generality of this Act”. This would ensure that in the effect of any conflict, the Bill would prevail.
Secondly, DRDLR suggested a new sub-clause (3), making reference to Section 147(2) of the Constitution. This new sub clause would read: “A provincial legislation or other legislation including old order legislation or legislation applicable to a homeland, as defined by item 1 of Schedule 6 to the Constitution, having the effect of regulating spatial planning, land use, land use management and land development which is in effect at the date of the commencement of this Act continues to operate, subject to section 147(2) of the Constitution”. This amendment would address old laws such as ordinances that could not be repealed at national level, and specified that those laws would only continue to operate insofar as they were not inconsistent with the scheme proposed in the Bill.
Mr Trollip stated that he was worried that the proposal attempted to preserve the old order legislation, which was the cause of the problems in the first place.
Mr Hercules explained that certain provincial legislation still remained in operation, but only the provinces had the power to repeal those laws. These amendments would ensure that where there was any inconsistency, the Bill would supercede existing provincial legislation, and take precedence over it.
Mr Trollip strongly opined that there was no need for the second proposal, because the first proposal had already taken care of the issue.
Mr Ogunronbi concurred with Mr Trollip and stated that the Bill could exist without the second proposal. He therefore withdrew the second proposal to insert sub-clause (3).
Mr Trollip referred to Clause 7(a)(vi) of the Bill which provided that a Municipal Planning Tribunal considering an application would not be impeded in the exercise of its discretion on the ground that the value of land or property was affected by the outcome of the application. The National Building Regulations and Standards Act 1977 required a municipality to have regard to the value of land, but it seemed that the Bill was providing otherwise.
The Chairperson observed that there had been an extensive discussion on this point during the public hearings on the Bill. DRDLR had responded that an application should not be dis-approved purely because it affected the value of land. He asked the DRDLR and the state law advisers if this was still their position.
Mr Hercules said that it was. The principle that an application should not be impeded by the value of land, as laid down by clause 7(a) vi) of the Bill, was also reinforced by clause 57 of the Bill. Clause 57 provided that an exercise of a power and a performance of a function in terms of the Bill would not be stopped solely on the ground that the value of the property was affected by such exercise of power or function. This gave effect to the principle stated in clause 7(a)(vi) in a more substantive way.
The Chairperson asked if clause 57 of the Bill meant that anyone would be able to get compensation on any ground, simply because the value of land had been affected, even to a minimal extent.
Mr Ogunronbi replied that Clause 57 was not necessarily stating that everyone whose land value was affected in any way whatsoever would get compensation. A person would only get compensation when the value of his or her land had been diminished to the extent that the land could no longer be used for the purpose originally intended.
Mr Trollip noted that clause 8 provided for the prescription of norms and standards, and asked why the norms and standards had not been included in the Bill.
Mr Ogunronbi replied that norms and standards were not fixed items, and research was constantly being conducted on this issue.
Mr Ogunronbi stated that the DRDLR had a proposal on clause 10, arising from the submissions made by municipalities during the public hearings. There was a concern that provinces might undermine the powers and functions of municipalities. The DRDLR noted that provinces were supposed to promote the capacity of the municipalities to do municipal planning when they made provincial laws. The DRDLR therefore proposed that a new clause 10(6) be created, to read: “provincial legislation having the effect of regulating land use, land use management and land development within a province must promote the development of local government capacity to enable municipalities to perform their municipal planning functions”.
The Committee had no objection to this amendment.
Mr Ogunronbi stated that the DRDLR had some proposals to amend clause 12 of the Bill. The first proposal related to clause 12(1)(n), which originally contained the words “give effect to national legislation and policies on sustainable utilisation and protection of agricultural resources; and “. DRDLR wanted now to add the words “mineral resources and” before the word “sustainable”.
The second proposal related to clause 12(2)(a). It was proposed that the sentence commencing “The spatial development frameworks” should be deleted and replaced with “The national government, a provincial government and a municipality must participate in the spatial planning and land use management processes that impact on each other to ensure that the plans and programmes are coordinated, consistent and in harmony with each other.”
Mr Hercules stated that the state law advisers were in support of the amendments made by the DRDLR.
Mr Ogunronbi set out the third proposal, which was to delete clause 12(5)(a). It was felt that this did not add any value to the Bill
Mr Ogunronbi said that DRDLR also proposed an amendment to clause 18, by deleting clause 18(3)(a), and 18(3)(b), both of which had referred to a municipality being unable or failing to publish a spatial development framework in terms of the Municipal Systems Act.
Mr Ogunronbi noted that, in clause 19(g), the DRDLR proposed that the words “be consistent with” should be replaced with “take into account” (environmental legislation).
Mr Hercules suggested that it would be preferable to use the words “comply with” rather than “take into account”. Environmental legislation might have specific provisions that had to be complied with.
Mr Ogunronbi conceded the point, and said that DRDLR would have no objections if “comply with” was used.
Mr Ogunronbi said that clause 21(1) originally referred to “development principles” but DRDLR was also now proposing that "and applicable norms and standards" should be added to the end of that sentence.
Mr Ogunronbi noted proposals for clause 22. Firstly, he proposed the deletion of clause 22(2)(b). Then the content of both the original subclauses (a) and (b) would be combined, in a new clause 22(2), reading: “A Municipal Planning Tribunal or any other authority required or mandated to make a land development decision may depart from the provisions of a municipal spatial development framework only if site-specific circumstances justify a departure from the provisions of such municipal spatial development framework”.
The Committee agreed with the proposed amendments.
Mr Ogunronbi set out amendments being proposed by the DRDLR for Clause 23(2). It was proposed that the sentence beginning with “A traditional council” should be deleted and replaced with the sentence: “ Subject to the provisions of section 81 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), and the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), a municipality, in the performance of its duties in terms of this Chapter and in respect of areas administered by a traditional council, must allow the participation of a traditional council.” This amendment was the response to the directive of the Committee that the DRDLR should make it mandatory for traditional councils to participate in respect of schemes or Spatial Development Frameworks (SDFs) affecting their areas.
The Committee agreed with the proposed amendment.
Mr Trollip referred to Clause 25(2)(a), which provided for scheme regulations, and observed that municipalities did not have authority to make regulations, but could instead only make by-laws. He suggested that the word ‘regulations’ should be replaced with ‘by-laws’.
Mr Ogunronbi explained that a municipality also passed regulations.
The Chairperson interjected and stated that the point was that a municipality did not pass regulations, only by-laws.
Mr Ogunronbi insisted that municipalities in fact attended to both, and offered to present to the Committee the schemes of some municipalities in which “regulations” would be found. Indeed, the major portion of a town-planning scheme was referred to as “scheme regulations”. The only question was whether the fact that the scheme regulations were enacted as a by-law of a municipality would detract from the fact that they were actually called and referred to as regulations.
Mr Trollip then proposed that Clause 25(2) should be amended to read that a land use scheme must include regulatory procedures and conditions”. This would remove the use of the word ‘regulations’.
Mr Ogunronbi and Mr Hercules agreed to this proposal.
Mr Ogunronbi stated that the DRDLR also had a proposed amendment for clause 25(1), by including the words “and applicable norms and standards” after the words “ municipal spatial development framework”.
The Chairperson noted the several instances of “and” that would now appear in the clause.
Mr Ogunronbi agreed with the observation and stated that the DRDLR would try to word the amendment more clearly.
Mr Ogunronbi stated that the DRDLR had a proposal in respect Clause 28 of the Bill, to add a new subclause 28(2)(iv), which would provide: “Despite the provisions of sections 35 and 41, any change to the land use scheme of a municipality affecting the scheme regulations setting out the procedures and conditions relating to the use and development of land in any zone, in terms of section 25(2)(a), may only be authorised by the Council of a Municipality.”
The Committee agreed with these proposed amendments.
Mr Trollip raised an issue in respect of Clause 31(2), which provided that written documents should be accessible to members of the public, during normal office hours, at the municipality’s central office. He observed that the big metros had both regional and district offices. It would be unreasonable to expect people to travel necessarily to the regional offices, which may be far distant, and suggested that the provision be amended to state that the documents would be available at “accessible public offices”.
Mr Ogunronbi agreed with this suggestion.
The meeting was adjourned.
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