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Changes to planning regulation following recent court decisions and the passing of the Spatial Planning and Land Use Management Act.

by Diana Wylie

Development approval and building applications in South Africa are slowed down by the numerous pieces of planning legislation that are in force and the obligation to acquire multiple levels of government authorisation.

Land use planning law has changed very slowly in the past 20 years despite the pioneering goals of the Constitution. The ongoing application of numerous old order laws result in inefficient decision making processes. Various provincial ordinances that were passed before the transition to democracy are still in force.

A uniform national planning system has been proposed and developed but its implementation has taken more than 10 years. The coming into force of the Spatial Planning and Land Use Management Act of 2013 (SPLUMA) has been delayed partly because of the work required in drafting regulations and provincial legislation (1)

It will be brought into effect in stages to facilitate applications that are already in the process and to ensure that municipalities and provincial legislation such as the Western Cape Land Use Planning Act are in place.

The Constitution created 3 inter-related spheres of government for both legislative and administrative purposes. These spheres are not hierarchical and the schedules to the Constitution list areas where these spheres have either exclusive or concurrent authority.

Four types of planning are listed in the schedules to the Constitution, namely: ‘regional planning and development’, ‘urban and rural development’, ‘provincial planning’ and ‘municipal planning’.

The understanding of how the assignment of planning responsibility is allocated between municipal, provincial and national government has been developed by numerous court decisions and the increasing role of municipal government has been highlighted.(2)

More recently, the constitutional court held that local government is the principal sphere of government responsible for land-use planning even where a golf estate development intersected with municipal borders.(3)

SPLUMA will require that the Spatial Development Framework (SDF) plans that are developed at each level of government are coordinated and development tribunals will be set up by municipalities.

These plans will be guided by norms and standards and the SPLUMA recognises constitutionally enshrined principles such as the protection of the environment and property rights, the right of access to housing and the rights to sufficient food and water.

In addition to the strategic planning documents, municipalities will consider these guidelines in making decisions regarding zoning schemes (also called land use schemes).

Land use planning decision making will be guided by the revised laws and the lessons learned in these and other cases. Metropolitan municipalities are embracing the transformative approach and passing planning by-laws (yet another level of legislation and compliance).

Smaller municipalities and areas of provincial importance will be administered differently as each province has developed or is in the process of passing regional legislation.

Court decisions have provided guidance as to how planning policy (SDF’s) and the various types of legislation interact, whilst confirming that municipalities are the primary decision makers.(4)

  1. Old order laws in force nationally that will be repealed when SPLUMA comes into force include the Physical Planning Act of 1967 (PPA), the Less Formal Township Establishment Act of 1991, the Physical Planning Act of 1991 and the Development Facilitation Act of 1995. When coordinating provincial legislation is passed, many ordinances will also be repealed including the Townships Ordinance No 9 of 1969 (Free State), Cape Land Use Planning Ordinance No 15 of 1985 (Eastern Cape, North West, Western Cape), Transvaal Town Planning and Townships Ordinance No 15 of 1986 (Gauteng, Limpopo, Mpumalanga) the Northern Cape and KwaZulu-Natal already have replacement legislation but some parts of the Natal Town Planning Ordinance No 27 of 1949 are still applied.
  2. City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal (2008) cases
  3. Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others (2013)
  4. Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council and Others

16 March, 2015

**Please note that these comments are summarised, may not be applicable to your particular situation and do not constitute legal advice. Please consult your legal professional should you wish to obtain a formal legal opinion.**