Comments on Spatial Land Use Management Bill, 2012 (SPLUMB) Western Cape Department of Environmental Affairs and Development Planning 21 August 2012

This presentation Highlights key points of Western Cape Submission of 10 August 2012 Focus on constitutional matters

Key provisions on constitutional division of powers Constitutional power Consequence Conflict Regional planning and development (4A) both national and provincial govts may make and implement law S 146 Urban and rural development (4A) Provincial planning (5A) only provincial govt may make and implement law S 44(2) Municipal planning (4B) only local government may make laws but within framework set by national and provincial govt. S 155(6) and (7)

Provincial governments have already or are in the process of adopting provincial planning laws Duty to coordinate/consult - S 41(1)(h) Constitution: “national and provincial governments must co-operate with one another in mutual trust and good faith by…co-ordinating their…legislation with one another”

S 146: when does national prevail over provincial, e. g S 146: when does national prevail over provincial, e.g. wrt ‘municipal planning’? Cannot be regulated effectively by provincial legislation Requires uniformity through norms and standards, frameworks and national policy Necessary for – National security, economic unity, common market, economic activity across provincial boundaries, equal opportunity/access to govt. services, protection of environment If national law is aimed at preventing unreasonable action by a province (No precedent)

S 44(2): when does national prevail over provincial wrt ‘provincial planning’? When national law is necessary for national security economic unity maintain essential national standards minimum standards for service delivery prevent unreasonable action by a province

‘Plan-led system’ of land use management Intergovernmental consultation around the NSDF S 13(1) “after consultation with other organs of state” more explicit role for provincial and local government more transparency in consultation Alignment with Municipal Systems Act

Alignment with the Municipal Systems Act WCape wants to implement a ‘plan-led system’ (NDP 201, 251) land use control in line with MSDFs municipality may deviate but in terms of a transparent procedure problem: Systems Act made MSDF part of IDP IDP is broad strategic document, reviewed every year in participatory process, ill-suited for land use management Consequence: WCape cannot insist on transparency in deviation from SDFs (hence s 22(2) SPLUMB) Recommendation: SPLUMB to remove MSDFs from IDP or address overlap otherwise

Review cycles SPLUMB insists on 5 year review cycles for PSDF, MSDF and land use schemes Current WCape Bill insists on 10 year review cycles for PSDF, MSDF and zoning schemes Why not permit provincial govt. to determine review cycles of PSDF, MSDF and land use scheme?

Avoid overlapping IGR schemes SPLUMB: monitoring, consultation and dispute resolution mechanisms between provincial govt. and municipalities e.g. around support (s 9(1)), MSDFs (S 22(3), land use scheme (S 27(3)) etc. WCape Bill provides for the same allow provinces to design provincial-local interface SPLUMB to provide fall-back position only

Land use schemes Example of overlapping regulation that may cause confusion SPLUMB S 25(2): Land use Scheme = regulations, map + register S 28 on application, ‘amend land use scheme by rezoning’ WCape Bill: zoning scheme = by-law, map + register distinguishes actual use and permitted use  municipality amends permitted use by rezoning, it doesn’t amend the entire land use scheme Municipal Property Rates Act: differentiate between properties on basis of actual use and permitted use

Land use management SPLUMB: ‘municipal planning tribunal’ S 37(3): if council fails to appoint  Premier appoints ‘on behalf of the council’ and determines terms and conditions amounts to intervention (s 139 Constitution)

Can provincial govts. take land use decisions? Yes, part of ‘provincial planning’ (confirmed by High Court) but always ‘alongside’ municipal decision, never instead of municipal decision (Constitutional Court in Maccsands) SPLUMB should recognise that in S 5(2) S 5(1)(c) municipal planning excludes control and regulation of land use ‘where the nature, scale and intensity’ does not affect provincial planning or national interest’ suggests that national/provincial then controls and regulates instead of local government but provincial govt. controls and regulates in addition to local government

Can national govt. take land use decisions? Yes, but alongside municipal and provincial decision making, not instead of When necessary in national interest S 52(1): referral to Minister when: impacts on exclusive national functions strategic national policy objectives functional areas of national govt. S 52(2): if outcome is prejudicial to - interests of one or more provinces/country effective performance of functions Minister joins application or decides the application

Problem areas in s 52 S 52(1): referral to Minister when: impacts on exclusive national functions strategic national policy objectives functional areas of national govt. S 52(2): if outcome is prejudicial to - interests of one or more provinces/country effective performance of functions Minister joins application or decides the application

Problem areas in s 52 S 52(1): referral to Minister when: impacts on exclusive national functions strategic national policy objectives functional areas of national govt. S 52(2): if outcome is prejudicial to - interests of one or more provinces/country effective performance of functions Minister joins application or decides the application Needs to be narrowed down Not in line with principle in Maccsands: each sphere takes decisions within its own competence

What Courts have said about multiple approvals Approval in terms of one law doesn’t mean that the activity may go ahead, other laws may apply. If a particular activity needs more than one approval in terms of different legislation  not a legal or constitutional problem Maccsands: This principle also applies to overlap between national, provincial and municipal authority This causes red tape  but must be solved by creative alignment, combining processes, joint authorisations etc., but not by removing one sphere’s constitutional authority

Appeals SPLUMB: appeal from tribunal to council/executive 3rd party may appeal but no changes to rights that have accrued  why would 3rd party appeal unless decision is suspended? WCape Bill: lodge objection with MEC who issues recommendation back to municipality can objector still / also lodge internal appeal within municipality ito s 62 Municipal Systems Act?

Recommendation Follow through on Schedule 1, item (z): ‘provincial legislation to provide for appeal and review procedures’ Instead, ensure that duplication of section 62 Municipal Systems Act is addressed  amend Municipal Systems Act to that effect

Schedule 1 Some contradict text of Bill Item (w) and s 40(9): who determines timeframes? Some overlap each other Items (f) and (g)(ii) Items (g) and (l) Broadness is hard to square with Bill Item (e): “single uniform system for land and development”

Many encroach on municipal planning Item (f): establish procedures for rezoning Item (g): determine procedures Item (i): provide form and content of applications Item (m): provide a uniform form and content of determinations and conditions of approval Item (o): provide procedures for amendment of applications, decision and conditions Item

Suggested principle but not in SPLUMB itself. SPLUMB to provide framework for national-provincial interface and principles for provincial and municipal planning Leave detail to provincial legislation and by-laws SPLUMB to provide detailed rules to fill gaps in regulation of provincial and municipal planning However, if there is no gap  no need for detailed rules How to do both of that in one law?  provide detail in: model by-laws; provisions or regulations that apply until replaced by relevant provincial law; provisions or regulations that apply until replaced by relevant municipal law; but not in SPLUMB itself.

Thank you