1. Provincial Land Use Legislative Reform Western Cape Province RESEARCH FINDINGS 19 July 2011 Cape Town

2. Provincial Land Use Legislative Reform STUDY AREA Western Cape Province 1 Metro (Cape Town), 5 district municipalities and 24 local municipalities

3. Provincial Land Use Legislative Reform PURPOSE OF THE STUDY Western Cape Province To provide an overview of land use / planning legislation in the Western Cape To review the state of the present provincial legislation to understand:  land use laws and procedures in practice;  law reform processes since the advent of democracy;  institutional responsibilities;  decision making structures and processes; and  the performance of provincial and municipal laws To draw conclusions on the status of current land use legislation and see how these might inform new provincial legislation.

4. Provincial Land Use Legislative Reform STUDY APPROACH Western Cape Province Literature review Interviews (2 – 3 hours):  Provincial officials  City of Cape Town officials  SAPI (as representing views of the profession)  Locally based consultants Focus of interviews:  what works well in law? (planning and other related legislation)  what does not work so well?  what needs to be changed and what should a new provincial (or national) law focus on?  the performance of provincial and municipal laws which focused on collection of quantitative data (how many applications; what type of applications; how many appeals, etc.)

5. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province There are four key pieces of existing legislation which result in planning being fragmented and confused PeriodPlanning LegislationIntention / purpose / institutional responsibility 1967 (first promulgated) 1991 The Physical Planning Act, Act No. 125, as amended Permitted the formulation of Structure Plans to guide land use and procedural planning in terms of LUPO 1984The Black Communities Development Act, Act No. 4 Made provision for the establishment of ‘Black’ Development Areas where Blacks were permitted to have access to land in urban areas through a leasehold form of tenure

6. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province There are four key pieces of existing legislation which result in planning being fragmented and confused PeriodPlanning LegislationIntention / purpose / institutional responsibility 1985The Land Use Planning Ordinance, Ordinance 15 of 1985 (LUPO) read with 1934: Townships Ordinances, No. 33 where applicable To protect the impact of development on property rights and to demonstrate the desirability of land use in an area 1991The Less Formal Township Establishment Act, Act No. 113 To provide for shortened procedures for the development of land for less formal forms of residential settlement

7. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province There are at least seven pieces of national legislation, among others, impacting on planning legislation 1940Advertising on Roads and Ribbon Development Act, No. 21 1967Removal of Restrictions Act, No. 84 1970Subdivision of Agricultural Land, No. 70 1998National Environmental Management Act, No. 107 1999Heritage Resources Act, No. 25 2000Municipal Systems Act, No. 32 2002Mineral and Petroleum Resources Development Act, No. 28 Note: The Legal Succession to the South African Transport Services Act was amended in 1995 to permit the integration of all parastatal land into conventional land use control systems

8. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province Some legislation has been repealed but regulations are still in in full force e.g. the BCDA (Chapters VI and VIA and any regulation made thereunder) There is a doubling up of legislation. For example, in 1992 the LUPO was amended by the addition of ‘Informal Residential Zone’ which made provision that this zone be deemed to be part of the Zoning Scheme of a relevant authority. This implied that although a township may be established in terms of LeFTEA, the land use and zoning of the township, would be determined in terms of this provision of LUPO. The RoRA is a big show stopper to land use applications in terms of time / cost because it has cumbersome advertising procedures; and no land use application may be granted which breaches the terms of a restrictive condition of title. Confusion arises as to whether the MSA can have an overriding effect over a Structure Plan established in terms of Section 4(6) of LUPO. To overcome this, the City of Cape Town has submitted its SDF for approval by the MEC: Local Government, Environmental Affairs and Development Planning

9. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province Planning applications may not be granted / refused by a Local Municipality until a RoD is in place in terms of NEMA. In the past, planning was the coordinating legislation; now NEMA appears to play this role when it is applicable to a land use application The lack of clear alignment and thus ambiguity between and among various laws is evident in the application of the Mineral and Petroleum Resources Development Act. Case No. 4217/2009; 5932/2009 - Matter between City of Cape Town (Applicant) and Maccsand (Pty) Limited. There have been three attempts at provincial law reform: 1997: Western Cape Provincial and Development Act 2004: Integrated Development Law Reform Project 2010/2011: The impending Provincial and Development Act

10. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province The WC: DEA&DP deals with the following applications: Removal of Restrictions Act (full applications and relaxations); Appeals in terms of LUPO: Non-delegated and out-of-time applications i.t.o. LUPO Structure Plan amendments i.t.o. LUPO and the Physical Planning Act Less Formal Township Establishment (LeFTEA) Black Communities Development Act Regulations

11. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province The time taken from submission to getting a decision varies on average between 4 and 15 months In 2009/2010 the Province received 1159 applications and finalised 1109 of which about 40% were appealed with a staff of 48 professionals (excluding seniors) Rezonings are the main type of applications appealed and the majority of appeals emanate from the City of Cape Town applications Main reasons for delays in processing applications at provincial level:  Structure plans need to be amended first; thus the application is placed on hold  Environmental authorisation is required first and therefore the application is on hold  Appeals in terms of the Municipal Systems Act need to dealt with before LUPO appeals  can commence  The time taken for a Municipality to comment on an application  Time taken for public participation especially in the case of appeals  Staff issues

12. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province Local Government is delegated by the provincial government to administer applications in terms of LUPO subject to conditions and qualifications There are different submission requirements in terms of different legislation e.g. between LUPO (delegated) and LeFTEA (provincially administered) A Planning Advisory Board has been established in terms of Section 43 of LUPO to advise the MEC on appeals The Western Cape Province does not enforce any land use decisions and expects the municipalities to take responsibility for enforcement in terms of section 39(1) of LUPO.

13. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province What works well? The structure and procedure of LUPO work well - easy to understand, familiar and generally fair The procedural steps from submission to decision and appeals processes are clear in LUPO

14. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province What does not work so well? The LUPO procedure has been impeded by laws such as the RoRA, NEMA, etc. as their different procedures work in sequence not in parallel - planning should ideally be the overarching /coordinating legal driver Different rights of appeal are available under different legislation (NEMA, HRA and LUPO). Three different departments are involved resulting in more than one decision which is not healthy for planning Even though a show stopper for planning the RoRA cannot just be repealed / wished away - this needs to be resolved in new legislation in a systematic manner The duplication of law (LeFTEA and LUPO for example) goes against the ideal of a single point consideration of land use applications The calculations for the amount which the creditor (LM) is entitled to impose on the debtor (applicant / developer) in terms of section 42 of LUPO are not prescribed in law

15. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province What does not work so well? (continued) There are numerous zoning schemes e.g. 27 in CoCT exacerbate the problem of fragmented land use management An Integrated Zoning Scheme has been formulated by the CoCT who has submitted it to the province In the light of the Constitutional Court’s ruling in the City of Johannesburg case in 2010, it could be argued that the LUPO requirement that a new zoning scheme be approved by the province is unconstitutional and that the municipality is entitled to approve it itself While the MSA suggests a stronger link between spatial plans (forward planning) and the regulatory environment, it does not prescribe procedures or requirements in this regard

16. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province What needs to be changed? A new Act should not just be about replacing current legislation but understand to what end such legislation should work effectively at municipal level Matters of principle were ignored in law reform processes to date, such as defining clearly the competencies that are assigned by the Constitution to the different spheres of government. Instead of one sphere of government defining these competencies, there should be an open debate on this matter How to capacitate provincial authorities to support LMs should be addressed rather than just focusing on replacing the old law with a new one without resourcing provincial institutions to perform a more positive support role to municipalities National and provincial government should clarify in terms of policy, norms and standards for: i) competencies; ii) urban rural planning guidance; iii) who does what in terms of the powers related to land use and spatial planning so that a meaningful by-law can emerge at local municipal level

17. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province What needs to be changed? (continued) The relationship between forward planning (e.g. the MSA) and the regulatory environment (e.g. LUPO) must be sorted out In respect of appeals, a new provincial law should circumscribe grounds for appeal as anyone can appeal in terms of the current legislation Enforcement on how rights are exercised requires a radical overhaul before reaching the courts As informal settlements are predominantly local and emergency in nature, there should be minimum regulation only at national and provincial level

18. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province Overview of implications for provincial legislation Existing provincial planning legislation is structurally unable to address the planning regulatory environment in a coherent and rational fashion Existing provincial planning legislation is also structurally unable to address the legacy of apartheid planning and land use regulation which has no doubt remained in cities, towns and rural contexts in the Western Cape Outdated legislation appears to be entrenched to the degree that it is difficult to simply repeal old legislation and have one single piece of land use planning legislation which calls for a systematic repeal process

19. Provincial Land Use Legislative Reform KEY FINDINGS Western Cape Province Overview of implications for provincial legislation (continued) The law reform processes in the Western Cape attempted since 1997 have not come to fruition for a number of reasons including: a)the lack of democratic debate among spheres of government; b)the complexities in respect of planning, environment and heritage competencies as defined in different pieces of legislation at different levels of government to design and implement a single point application and decision making system A new and unified provincial planning law would have implications for institutional structures, planning officials and practitioners and not only calls for the reorientation and definition of the role of planners but also the debate as to whether planning should be the coordinating driver of determining land use change and development rights Appeal processes are generally long, cumbersome, expensive and too open- ended for land use decisions to be meaningfully & timeously taken

20. Provincial Land Use Legislative Reform Western Cape Province THANK YOU!