The Committee continued with the deliberations on the Spatial Planning and Land Use Management Bill, starting at Chapter 5. Members asked if it was possible for conflicts to arise in respect of clause 34(2) but were assured that the local would have to approach the district municipality. Clause 35 was clarified for Members, who were assured that municipalities did not have to establish tribunals if they had their own officials capable of handling this task, and it was later clarified that clause 40 applied only to situations where the tribunal was established. It was also clarified that clause 42(2) required account to be taken of any existing legislation on environmental matters, that clause 43 required conditions of establishment to be fulfilled within five years, and clause 44 did already allow for differential time frames for consideration of applications, across different municipalities, whilst the circumstances in which compensation could be granted were clarified for clause 47. The meaning of the word “notification” in clause 51 was clarified. Members questioned if clauses 54 and 55 were not granting overly-wide powers on the Minister, but it was pointed out that the Minister could act only on request of the province or municipality. Members asked why the Bill made no reference to orders of community service, and although the Parliamentary Legal Advisor took issue with the sentence of 20 years mentioned in clause 58, other Committee Members did not see it as excessive.
The Department of Rural Development and Land Reform (DRDLR) had proposals for amendment of various clauses. The references to sections were corrected, in clause 37(2) and (3), the word “employment” in subclause (2) would be replaced with “service”, and in (3) “subject to section 139 of the Constitution” was to be added. In answer to a concern from the Parliamentary Legal Advisor and the Committee, the DRDLR was asked to insert a reference to “reasonable grounds” into clause 38(5). Clause 39 was to be amended by including a reference to “an executive authority of the municipality as the appeal authority”. In clause 41(2)(d) the phrase “except any change affecting the scheme regulations in terms of section 25(2)(a)” would be added at the end of the clause. In clause 50 the DRDLR proposed the deletion of clause 50(3), and the proviso to clause 51(1), that referred to the Municipal Systems Act, was to be deleted, as well as the last part of clause 51(3) relating to variation of decisions. In this clause, new subclauses (6) and (7) would be added to deal with appeals. In relation to clause 52, a new subclause (7) was to be inserted stating that all applications to the Minister for land use or land development must firstly be lodged with and considered by the relevant municipality. A new clause 54(2) would be inserted to set out the Minister’s obligations before promulgating regulations. The term “political office holder” would also be inserted into clause 56. A new clause 60(2) was proposed to deal with transitional provisions, to replace the original clause.
Members were in agreement with the amendments proposed.
Spatial Planning and Land Use Management Bill: Continuation of clause-by-clause deliberations
Chapter 6: Clause 34(2)
Mr A Trollip (DA) referred to Clause 34(2) of the Bill. This provided that a district municipality could, with the agreement of the local municipality within the area of such district municipality, establish a municipal planning tribunal to receive and dispose of land development applications. He asked what would happen if a conflict arose between the district municipality and the local municipality and they could not reach an agreement.
Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, replied that the primary obligation to establish municipal planning tribunals rested with the local municipality, which meant that that the local must approach the district municipality.
Mr Trollip did not believe that this answer addressed the issue, and asked what would happen if there were cross cutting developmental requirements. He wondered if the applicant would have to appeal to all the tribunals in a district municipality where service might be rendered.
Mr Sisa reiterated his earlier reply that the initial responsibility lay with the local municipality. In practice, the local municipality would jointly decide, with a district municipality, that a tribunal must be set up, so the local municipality would no longer have a role on its own. It was difficult to foresee any disagreement, because the setting up of the tribunal would be at the local authority’s behest.
Mr Sunday Ogunronbi, Chief Director, Department of Rural Development and Land Reform, added that it was local and not district municipalities who were responsible for land use management, and this was not a shared responsibility. The district municipality was in place for capacity building, and the municipal planning tribunal would operate only at a district level if a local municipality agreed to that.
Mr Trollip noted that Clause 35(1) provided that a municipality must establish a municipal planning tribunal in order to determine land use and development applications. He asked why it was compulsory for the municipality to establish a tribunal, when some, such as the larger metros, would already have the required expertise amongst their own officials, to handle the matters that the tribunals were empowered to handle. He thought that, for this reason, the word “may” should be used instead of “must”, as this would allow a municipality not to establish a tribunal where it already had suitable officials.
The Chairperson responded by drawing attention to clause 35(2), which provided that despite the provisions of Clause 35(1) , the municipality might authorise that certain land use and land development applications could be considered and determined by an official in the employ of the municipality. He thought this would cover the concerns of Mr Trollip
Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Advisor, agreed with the Chairperson that clause 35(2) overrode clause 35(1), where appropriate.
Mr Ogunronbi stated that the Department of Rural Development and Land Reform (DRDLR) had a proposal for amendment of clause 37(2) and (3). In clause 37(2), it was suggested that the reference to “36” be replaced with a corrected “36(1)(b)”. The word “employment” would be replaced with “service”.
In clause 37(3) a similar correction would be made to the citation, using “36(1)(b)”. The words “subject to section 139 of the Constitution” would be inserted after “Municipal Council and”.
Ms Sueanne Isaac, Parliamentary Legal Adviser, raised an issue in respect of Clause 38(5). The clause provided that the municipal council may at any time remove a member from holding office at the municipal planning tribunal if, in the opinion of the council, there were good reasons justifying the removal. This did not seem to set any objective criteria for the removal of a member of the tribunal, and she was concerned that the wide discretion given to the municipal council could be abused.
The Chairperson agreed, and said that at least the words “reasonable grounds” should have been used.
Mr Trollip also agreed that it was important to amend this, to protect people in the municipal planning tribunal who acted as bastions in the fight against corruption in the tribunals.
Mr Ogunronbi replied that he was of the opinion that the word “good reasons” as already used in Clause 38(5) were stronger that “reasonable grounds”. The words of this clause, when read together with the provisions of the Promotion of Administrative Justice Act (PAJA) were sufficiently strong to ensure that the municipal council could not give spurious reasons for the removal of a member of the planning tribunal. It was important not to take the threshold for removal to a higher evidential burden of proof.
The Chairperson nonetheless directed that clause 38(5) of the Bill should be amended, to incorporate the words “reasonable grounds” as the criteria for removing any member of the municipal planning tribunal.
Mr Ogunronbi stated that the DRDLR wished to propose an amendment in respect of Clause 39(1), by adding the words “an executive authority of the municipality as the appeal authority” after the reference to a Municipal Planning Tribunal.
Members indicated that this amendment was in order.
Mr Trollip raised a concern in respect of Clause 40(1), which provided that a municipal planning tribunal could designate at least three members of the tribunal to hear and determine a matter which came before it. He asked if this provision applied only in cases where there was a tribunal, and asked what would happen in cases where the municipality had not in fact designated a tribunal, because its officials could attend to this task, in terms of clause 35(2).
Mr Makabeni replied that Clause 40(1) applied only to municipalities who had established municipal planning tribunals, and would not apply to those acting under clause 35(2).
Mr Ogunronbi added that Clause 40(1) would only apply where a municipality had established a planning tribunal to deal with land use applications. Clause 35(2) would only apply in instances where a municipality had authorised its official to deal with certain land applications, which would not come before the planning tribunal.
Mr Ogunronbi noted a proposal, by the DRDLR, to amend clause 41(2)(d), by adding the words “except any change affecting the scheme regulations in terms of section 25(2)(a)” at the end of the clause.
Clause 42(2) provided that a municipal planning tribunal should ensure compliance with environmental legislation, when considering an application affecting the environment. Mr Trollip asked if this meant that when the National Environmental Management Act (NEMA) set out certain principles in relation to decision making, those principles would then inform the environmental decision.
Mr Hercules replied that the provisions of Clause 42(2) simply meant that whenever there was existing legislation that dealt with specific aspects of the environment, then there had to be compliance with that legislation.
Mr Trollip raised a question on clause 43, which provided for conditional approvals of applications. He asked what would happen if an applicant applied to a municipality to have the building line requirements waived in a particular development. He wondered if the approval would fall away after five years, if that construction did not take place.
Mr Ogunronbi confirmed that the conditions of establishment should be adhered to and fulfilled, within a period of five years from the time they were granted.
Mr Trollip noted that Clause 44(1) provided that the Minister must, after public consultation, prescribe time frames for the consideration and determination of an application before a municipal planning tribunal. He asked if this provision was realistic. Different categories of municipalities would have different time constraints facing them
Mr Ogunronbi replied that Clause 44(3) permitted differentiated application of time frames to meet the differential circumstances of the municipalities. It also allowed for horizontal and vertical differentiation, so that certain categories of municipalities would be able to have different kinds of time frames. Clause 44(3) was also reinforced by Clause 11 of the Bill, which allowed for the differentiation.
Mr Trollip questioned Clause 47(3), which provided that a municipal planning tribunal was not liable to compensate any person for any loss arising from or related to a decision made in good faith, and in terms of the Act, to remove, amend or suspend a restrictive condition. He asked why a person should not be entitled to compensation if the decision of a municipal planning tribunal compromised the value of his land, and pointed out that the person could have acquired the land according to the provisions of the original title deed.
Mr Ogunronbi replied that Clause 47(3) did not totally exclude compensation. However, those decisions that were made in good faith, to remove or suspend a restrictive condition, should not trigger compensation.
Mr Ogunronbi stated that the DRDLR had a proposed amendment in respect of Clause 50. It wanted to delete clause 50(3), which noted that where a development application had been approved without the required provision of land for open spaces or parks, then the applicant must pay a development charge.
Members agreed to the deletion of this subclause.
Mr Trollip noted that Clause 51 allowed a person whose rights was affected by the decision of a municipal planning tribunal to give a written notice of appeal within 21 days of the notification of that decision. He thought that “notification” should be defined, pointing out that at the moment it was not defined, and there was nothing to say how the notification must be done.
Mr Ogunronbi replied that the word ‘notification’ had attained a fixed meaning in legislation, which was actual notice being given to the person affected by the decision of the planning tribunal. Most application forms required the applicant to supply an address for service, and so the notice would be sent to this address.
Mr Ogunronbi set out that DRDLR wanted to delete the proviso to clause 51(1) that referred to section 62 of the Municipal Systems Act. The clause would then simply state that a person whose rights were affected by a decision taken by a Municipal Planning Tribunal may appeal against that decision by giving written notice of the appeal and reasons to the municipal manager within 21 days of the date of notification of the decision.”
DRDLR had another proposed amendment in respect of Clause 51(3), namely to delete the last part of the clause reading “but no variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision”.
DRDLR further proposed the introduction of new sub clause (6), reading: “A municipality, in the place of the executive authority of the municipality as the appeal authority, may authorise that a body or institution outside of the Municipality, or in a manner regulated in terms of a provincial legislation, assume the obligations of an appeal authority in terms of this section.”
The DRDLR also proposed the introduction of a new sub clause (7), reading: “No appeal in respect of a decision taken in terms of or pursuant to this Act may be lodged in terms of section 62 of the Municipal Systems Act.”
Mr Ogunronbi set out the proposal of DRDLR, to add a new clause 52(7), reading: “Nothing in this section authorises the lodgment or referral of an application for land use or land development to the Minister, without such application having first been lodged and considered by the relevant municipality in terms of section 33(1).”
Members stated that they were in agreement with these amendments.
Clauses 54 and 55
Mr Trollip noted that clauses 54 and 55 respectively empowered the Minister to make regulations and to create exemptions. He asked if the allocation of authority to the Minister did not encroach upon the authority and responsibility of the local municipality.
The Chairperson drew Mr Trollip’s attention to the provisions of clause 55 that stated that the Minister would only be able to make exemptions under the clause upon the request of the province or the municipality. This took care of Mr Trollip’s concerns since the Minister’s power was limited to matters in which he had been specifically asked to act.
Mr Hercules confirmed that the Chairperson was correct in this observation.
Ms Isaac observed that there was no time frame for the Minister to make regulations under Clause 54.
Mr Hercules stated that the regulations must be in place when the Bill came into force. He added that it was up to the Committee to set up a time frame, if it so wished.
Mr Ogunronbi noted DRDLR’s proposal to insert a new clause 54(2), which would specify that before promulgating the regulations referred to in subclause (1), or any amendments to regulations, the Minister must give notice of the proposed regulations in the media, invite public written submissions on them within 60 days, and consider all those representations.
Mr Ogunronbi noted that DRDLR proposed inserting the term “political office holder or” into Clause 56, before the words “an official in the employ of the State”.
Mr Trollip noted that whilst clause 58 provided for offences and penalties, there was no provision for an order of community service and wondered why this was not mentioned.
Mr Makabeni replied that the issue of community service was always at the court’s discretion, and the Bill could therefore not provide for it.
Ms Isaac also raised her concern that the term of 20 years imprisonment as a punishment was excessive.
The Chairperson responded that he did not agree that the 20 year term was excessive, and it emphasised that the offence for which it was prescribed was regarded in a serious light.
Mr Ogunronbi set out the DRDLR proposal to delete clause 60(2), which dealt with transitional provisions for a tribunal, in the event of repeal of the Development Facilitation Act. A new clause 60(2) would replace the original wording, reading as follows:
“(2) (a) All applications, appeals or other matters pending before a tribunal established in terms of section 15 of the Development Facilitation Act, 1995 (Act No. 67 of 1995) at the commencement of this Act, that have not been decided or otherwise disposed of, must be continued and disposed off in terms of this Act.
(b) Reference to a tribunal in terms of section 15 of the Development Facilitation Act, 1995 (Act No. 67 of 1995), for the purposes of deciding or otherwise disposing of any application, appeal or other matters pending before a tribunal at the commencement of this Act, must be construed as reference to a local or metropolitan municipality.
(c) References to a Designated Officer and the Registrar in terms of the Development Facilitation Act, 1995 (Act No. 67 of 1995) must, for the purposes of deciding or otherwise disposing of any application, appeal or other matters pending before a tribunal at the commencement of this Act, be construed as references to an official of a local or metropolitan municipality designated by such municipality to perform such function.
(d) The Minister may prescribe a date by which such applications, appeals or other matters must be disposed of, and may prescribe arrangements in respect of such matters not disposed of by that date.”
Members indicated that they were in agreement with the amendments.
The meeting was adjourned.
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