SACN response to the Spatial Planning & Land Use Management Bill

1. SACN response to the Spatial Planning & Land Use Management Bill GemeyAbrahams Consulting SACN Offices, Johannesburg 1 June 2011

2. Overview of discussion • Background to planning law reform in SA since 1994 • What can a new national planning law do in SA today? • Key features of the SPLUMB • Going forward SACN

3. Background: three opportunities to change planning law post-1994 • This bill comes at the end of the third major opportunity to reform planning law • First opportunity – early/mid-1990s, FEPD, DFA, DPC • Second opportunity – around 2000, Systems Act (IDP) and NEMA (EIA regulations) • Third opportunity – 2000s, post-2001 White Paper on Spatial Planning & Land Use Management SACN

4. Background: the ‘DFA case’ • 2010 Constitutional Court ruling in CoJ v GDT • Definition given to ‘municipal planning’ • Key chapters of the DFA unconstitutional • 2-year deadline set for legislative reform SACN

5. the post-SPLUMB, post-coj v Gdt era • No DFA • Applications that would have gone via DFA now all to municipalities in terms of Ordinances • LeFTEA & Ordinances legally suspect • New era provincial laws in 2 provinces only • and they’ll need revision to fit SPLUMB • Provinces under pressure to make new laws • Municipalities under pressure • to establish new planning tribunals; and • draw up new Schemes. SACN

6. What can a new law do?What’s the potential ‘value-add’? • Clarity as to each sphere of government’s powers and functions • Rationalisation of multiplicity of overlapping, contradictory and outdated legislation – to increase efficiency • Development of new instruments for new challenges: informal settlements; gated communities; mega events; social housing; land under traditional areas etc • Rules that concertedly shift the way the urban (and, less so, rural) land markets work SACN

7. What can a new law do?And what are the constraints? • Land use management (and spatial planning) are currently governed by a host of laws: provincial Ordinances, Less Formal Township Establishment Act, R293 (1962), BCDA regulations (1986), homeland laws etc – almost all now to some extent unconstitutional • ‘municipal planning’ now is defined but the scope of provincial and national powers remains unclear • Provinces have battled to produce their own new planning laws to replace the pre-1994 Ordinances SACN

8. What can a new law do?And the difficult choices are…? • Framework or Comprehensive law • Combined spatial planning and land use management or separate laws • Detailed integration with other approvals or enabling of local and provincial integration arrangements • Uniform system for all land development and all types of area or specific rules for specific circumstances (including fast-tracking for special projects, post-DFA) SACN

9. The splumb’s innovations • Local government the primary point for land use management decision-making, via Municipal Planning Tribunals (clause 31) • Restricted grounds for appeal to provincial tribunal (clause 36) • Power for national minister to intervene when ‘national interest’ at stake (clause 43) • Councilors excluded from land use management decision-making (clause 33) • Mandatory national and provincial Spatial Development Frameworks (also Regional SDFs) (chapter 4) • Specific requirements for land use management to be inclusive of informal settlements, areas under traditional leadership (clauses 20 and 22) • Rule against property value being a factor in land use management decision-making (clause 55) SACN

10. Key features of the SPLUMB:The Constitutional Starting Points Provincial & National government • Concurrent legislative powers on municipal planning, with conflicts resolved in terms of s146 • Provinces have exclusive legislative powers on provincial planning (national law on provincial planning only possible where necessary in terms of section 44(2) Local Government • Executive power in relation to municipal planning, subject to: • regulation by national and provincial law; and • overlaps with national and provincial areas of land-use related legislative competence (e.g. environment, agriculture, mining), although these national and provincial laws may not ‘impede’ local government’s powers. • Legislative powers in relation to municipal planning • By laws… SACN

11. Background: the powers and functions SACN

12. “In summary the SPLUMB must strike a careful balance between maintaining the autonomy of municipalities in controlling and regulating land use, while doing justice to the national government’s interest in providing a framework for municipal planning and the national government’s interest in exercising national powers that impact on land use. In addition, all of this must be done in a manner that also respects the provincial authority to adopt province-specific legislation to regulate a provincial planning framework.” Striking a careful balance SACN

13. Key features of the SPLUMB:Framework OR COMPREHENSIVE? This is framework legislation. It couldn’t be comprehensive legislation without the support of all provinces. It places a large burden on provinces which now have to draft legislation in line with the framework. SACN

14. Key features of the splumb:Repeal of national laws Development Facilitation Act • Municipalities in DFA-dependent provinces will have to assume a greater administrative &planning load • No mechanism given to fill the vacuum left by DFA Removal of Restrictions Act • Until provincial law fills the gap, Removal of Restrictions will have to be done via High Court Physical Planning Act • Very out of date, but still playing a role • Need for transitional measures, rather than simple repeal SACN

15. Key features of the splumb:Non-repeal of national laws BCDA and BAA regulations • again, onus of repealing and replacing these regulations falls on provinces • SPLUMB should repeal and guide on replacement Less Formal Township Establishment Act • SPLUMB should clearly confirm that LeFTEA is no longer constitutionally sustainable • SPLUMB should guide the repeal of LeFTEA and guide the development of similar fast-track mechanisms in new legislation SACN

16. Key features of the splumb:integrating approvals A voluntary model (clauses 28 & 29) • Is this sufficient? • What else is feasible? • Clause 24(3) and the relationship between the provisions of a LUM Scheme and those of other legislation (e.g. MPDRA, Act 70…) SACN

17. Key features of the SPLUMB:Provincial & national roles Provincial appeal powers • SPLUMB must clarify relationship between s62 ‘internal appeal’ (Systems Act) and SPLUMB clause 36 appeal to Prov. Pl. Tribunal • Clause 36 limits grounds of appeal (are these grounds appropriate/correct/workable?) • It is problematic to limit grounds of appeal to PPT through criteria of national interest National intervention • The grounds for national intervention are excessively wide and must be tightened SACN

18. Key features of the splumb:decision-making criteria SPLUMB decision-making has to be informed by: • General Principles in Chapter 2; • Norms and Standards (clause 5), which have yet to be formulated; and • Muni. SDFs In a context of scarce planning resources – and the need for more predictable decision-making – is it helpful to introduce so many criteria? SACN

19. Key Features of the SPLUMB:geographic scope The SPLUMB makes important progress towards demanding inclusive planning & LUM (for example in informal settlements), but it passes the responsibility for addressing the worst legacy of apartheid-era planning laws to provinces and municipalities, with minimum guidance. SACN

20. Going forward: how to make the splumb work? • SPLUMB cannot be allowed to proceed as is, or even with major revision. • SPLUMB has to be: • Fixed; and • Supplemented with subordinate legislation. • In the short term (by June 2012): • Fix SPLUMB; and • Develop a DFA/LeFTEA hybrid that is constitutional. • In the medium term (by 2014): • Develop a model provincial SP & LUM law; • Develop model SP & LUM by laws for different categories of LG; and • Establish a national SP & LUM Legal Implementation Support Team SACN

21. Going forward: the process • National government cannot drive this process alone. • All three spheres have important roles and must be able to hold each other to account in the law-making. • Local government has to be central to planning law reform initiatives because of ‘municipal planning’. • Provinces must be part of the process to ensure alignment of new provincial legislation with national framework. SACN