Framework for division of land use planning

1. Framework for division of land use planning Jaap de Visser Associate Professor Community Law Centre, UWC March 2010

2. Problem statement • Who does what when it comes to land use planning? • Constitution allocates land use planning and development powers to national, provincial & local government • “Wall-to-wall” local government  no division on basis of territory, but on basis of interests • How to manage the confusion?

3. What is the provincial interest in land use planning? • Province wants to see to it that municipal land use planning is done properly • Provincial government has its own constitutional competences, some of which entail land use regulation

4. Suggested approach to interpreting land use planning powers • What does “municipal planning” mean? • What is the provincial interest in land use planning? • Does the Province have powers to deal with those interests? • What practical instruments can be designed to manage the overlap?

5. Overall approach: “intra-municipal” vs “extra-municipal” issues • Land use planning and management that has intra-municipal impact only  “municipal planning” • Ordinary subdivision • Development application for vacant land in town • Cornershop in main road • Land use planning and management that has impact beyond municipality  “provincial planning” • Building of a large mall with taxi rank, access roads etc • Retirement estate in environmentally sensitive area • Industrial plant along a scenic tourism route • Development that puts stress on municipal bulk infrastructure

6. Define “municipal planning” • City of Johannesburg (SCA): “municipal planning” = land use planning and development management (not just forward planning) • Swartland (WCape High Court): having national mining rights doesn’t absolve you of duty to apply for rezoning

7. Provincial supervision of “municipal planning” • “Municipal planning” (Sch 4B) is not exclusive to local government • Provincial government also has authority over “municipal planning” • But this authority is limited (‘hands-off’) • Objective: “to see to the effective performance” • Limited to framework legislation (s 155(7)) • May not be used in a manner that compromises and impede municipality (s 151(4)) PRINCIPLE: MUNICIPALITY MUST BE ABLE TO EXERCISE POLICY CHOICES ON 4B AND 5B MATTERS

8. What can province do with respect to “municipal planning”? For example: • Prescribe general land use categories to be used • Prescribe criteria to be taken into account • Minimum standards, e.g. with regards to community participation • Monitoring scheme • Prescribe to municipality to refuse land use application in certain, narrowly defined circumstances. • Does not need to be “one-size-fits-all” Overall principle: don’t compromise or impede

9. Provincial interest: Province has its own powers, some of which may entail land use regulation • Provincial government has its own constitutional powers (Schs 4A and 5A: “environment”, “agriculture” etc)) • Many of them give provincial government land use planning and land use management powers • These powers are not limited to framework legislation – provincial government must be able to exercise policy choices on Sch 4A and 5A • But may not be used in a manner that compromises or impedes municipality

10. Example: Sch 4A: “Agriculture”=national/provincial power • Subdivision of Agricultural Land (Dpt. of Agriculture approves subdivision of agricultural land) • Is that a violation of “municipal planning”? OR • National government acting in terms of “Agriculture”

11. Example: “Tourism”= provincial power • Building a factory alongside a provincial scenic route • Multitude of retirement estates in province • Provincial law may reduce municipal authority because it acts in terms of its own constitutional authority • Key: how? How detailed? How prescriptive? • Overall principle: “don’t compromise and impede”

12. Environment • Provincial government has protection of the environment as an immediate mandate • Environment • Pollution Control • Indigenous Forests • Soil conservation • Nature conservation • ‘Extra-municipal impact’ (effects straddles municipal boundaries, municipalities not required to have capacity) • Provincial government may, in terms of that constitutional authority, regulate /administer land use. • Overall principle: “don’t compromise and impede”

13. Appropriate instruments to manage overlap • Tension, disagreements  inevitable • Key: how to resolve them?  appropriate instruments to manage the overlapping interests • Can be provided for in a new Land Use Planning law • “hands-off” and “hands-on” instruments • ‘Hands-off’ Instruments where Province keeps a distance because it may not unduly interfere with “municipal planning” • ‘Hands-on’ Instruments where Province is more intrusive because it has constitutional authority

14. ‘Hands-off’ instruments • Municipal decision but cooperation • IGR forums, IDP alignment, consultation etc. • Support • Model by-laws, training advice • Regulating minimum standards, monitoring and intervention • Regulating a provincial comment before the municipality takes a decision • Form of prescribed consultation • Must take into account • Municipality ignores at its own risk

15. ‘Hands-on instruments’ • Alignment of plans • Provincial planning: Province may insist that its plans are complied with if those plans are based on provincial authority (e.g. Provincial spatial development framework) • ≠ IDP alignment • Example: provincial spatial plan provides for tourism route, development corridor, environmentally sensitive area etc.  municipality must respect that plan

16. ‘Hands-on instruments’ • Transferring power to local government • Provincial government may transfer (parts of) a function to local government or to a municipality

17. ‘Hands-on instruments’Procedure to lodge objections • Provincial government cannot be appeal body (as is the case now ito LUPO) • E.g. Appeal against ordinary subdivision If provincial government cannot take the original decision, it cannot take the decision on appeal • But neutral outside body may decide on appeals (from third party, municipality and provincial government)

18. When is objections procedure permissible? • Neutral body • Representative of both spheres • Representative of planning/legal fraternity • Insulated from provincial interference • With limited mandate • If it deals with “municipal planning”  only refer matters back to municipality • If it deals with extra-municipal dimension  refer matter to competent authority

19. ‘Hands-on’: Provincial approval of municipal decisions? • Does Province have power to approve zoning schemes and spatial development frameworks? • Administrative approval of municipal decision making on original, constitutional competencies  not approved by Courts (CDA Boerdery judgment wrt property rates) •  no power to approve all (aspects of all) zoning schemes and spatial development framework • But zoning schemes/SDFs may contain ‘provincial’ matters  more intrusive means permissible with respect to those

20. Determination of urban edge • Single decision that captures both municipal and provincial interests • Municipal interest: search for location for new developments, infrastructural requirements, new economic opportunities, expansion of rates base • Provincial interest: protection of bio-diversity, climate change mitigation, integrity of land use planning and management • Both interests are buttressed by constitutional powers • Conclusion: determination of urban edge cannot be an exclusive municipal authority and cannot be exclusive municipal authority • Most appropriate instrument to manage overlap?

21. Way Forward • Draft Framework • PCF • Written Comments before 15th April • Drafting of Bill