Important Legal Issues for Provincial Planning and Land Use Legislation

1. Important Legal Issues for Provincial Planning and Land Use Legislation South African Cities Network/Gemey Abrahams Consulting /Tirana Consulting July 2011

2. Background • 15 – 9 – 5 – 2 … • 15 years • 9 provinces • 5 Planning & Development Acts passed • 2 Planning & Development Acts in operation Designing a provincial law dealing with: • provincial planning; and • municipal planning is not easy.

3. Purpose of this Report • A position paper / think piece • For SACN • A resource for all spheres proposing an approach / responding to (provincial) legislation for: • Provincial planning; and • Municipal planning.

4. Points of departure • Municipal planning is broad • Municipal planning is primarily the executive competence of local government • Provincial government has a role in land use management and spatial planning – legislative and executive – but that role has to be seen in terms of exceptions to the prevailing rule that local government exercises those powers

5. The two exceptions to the rule • A provincial government may regulate minimum standards for and undertake monitoring of municipal planning • Provinces have full authority over a number of functional areas related closely to land use management (e.g. agriculture, environment & housing) – and in these areas they can exercise executive functions

6. Concurrency and co-operation Municipal planning, in Schedule 4B of the Constitution, allows for concurrent exercise of legislative powers by national and provincial government. Just because the Constitution provides formulae for resolving conflict between national and provincial laws does not mean that conflict should be encouraged!

7. To be precise Provincial legislation must be built on two key definitions: • Municipal planning; and • Provincial planning. Alignment of these definitions with those in national legislation is crucial.

8. Definition of Municipal Planning • A proposed definition of municipal planning: “planning for the development and management of the municipal area, which includes: making, approving and amending an integrated development plan and spatial development frameworks; adopting by laws to regulate land use and development, subdivision and consolidation; preparing, adopting and amending a town-planning or zoning scheme; receiving, considering and deciding applications for land use and development, which includes refusing, approving and approving subject to conditions such applications; representing the interests of the municipality’s residents and the broader public spatial interest in provincial planning processes; and the preparation, adoption and publicising of guidelines, policies and other instruments and procedures to guide the use and development of land in the municipality”

9. Definition of Provincial Planning • Proposed definition of provincial planning: • “planning for the development and management of the province, which includes: preparing, adopting and amending provincial and regional plans; receiving, considering and deciding applications for land use and development with respect to matters falling within a province’s area of executive competence, which includes refusing, approving and approving subject to conditions such applications; participating in the municipal planning processes and activities of municipalities in the province; and supporting and monitoring municipal planning in the province.

10. District-Local Co-operation Currently District Municipalities’ planning role is restricted to forward planning. Provincial legislation can explore options for District-Local co-operation (or sharing of services) to enable a more efficient allocation of land use management powers, especially in rural areas where planning capacity is scarce.

11. An integrated framework for provincial planning (1) • Clarify alignment • Process alignment (e.g province must participate in municipal process & vice versa; or • Outcome alignment (e.g municipal planning objectives must be in line with province’s) . • Provincial SDF • Guide municipal planning (i.t.o provincial priorities • Collaborative drafting with municipalities • Adoption by provincial cabinet • Clear procedures and legal status

12. An integrated framework for provincial planning (2) • Municipal SDFs • Complement provisions of Systems Act through provincially specific minimum standards (e.g. for participation and alignment with other plans) • Prescribe minimum contents: complement MSA but not conflict; • Align District and Local SDFs, with conflict resolution procedures: preferable that municipalities themselves resolve first

13. An integrated framework for provincial planning (2) • Municipal SDFs contd • Clarify province’s role in SDF-making • Every municipal SDF has to deal with both issues that fall under municipal planning as well as provincial planning

14. Minimum standards for Municipal Planning Both • to establish uniformity in the province in relation to LUM Schemes, LUM procedures and LUM decision-making (inc. role for registered planners, where applicable) and • To enable effective monitoring by province of municipal planning functions

15. Province LU decision-making: when? The province should be able to take LU decisions where the provincial interest is clearly and precisely defined. Provincial legislation must define what constitutes a provincial interest, either: • ‘scientific’ criteria (e.g. related to specified size or distance); or • substantive criteria (e.g. i.t.o scale or impact)

16. Province LU decision-making: how? • One decision or two? • Constitutionally, 2 decisions are needed (for Provincial interest and for municipal aspects). • Who receives the application? • Options • Apply to muni. to forward (with recommendation) to province for decision (on Provincial interest matters only); • Apply to both separately – separate decisions • Apply to municipality and copy to province; or • Apply to municipality and if the municipality rejects the application that is the end of the matter (even if province constitutionally competent to make a decision)

17. Appeals • Conflicts with national law must be avoided • Internal appeals • Currently s62 of Systems Act – many shortcomings (only for decisions which have delegated authority not council decisions, outcome cannot affect rights accrued, third parties cannot use it) • Alternative could be built on inter-municipal appeal bodies • Provincial ‘appeals’ – can Provincial law provide for the appeal to a Provincially-appointed appeal body? • Not constitutionally valid (against municipal planning authority) • Possible to provide an alternative form of recourse, e.g. ‘provincial assessment’ rather than all going to court: Body can assess and agree or reject municipal decision, refer back to municipality to decide again if rejected. Composition of body is important. • Needs to accommodate appeals against both municipal and provincial decisions

19. Provincial Planning and Land Use Legislation THANK YOU >--------------------------------------------------------------< Discussion on Proposal • Issues of clarity • Issues of correction • Issues of application to Provinces • Issues of debate

20. An integrated framework for provincial planning – Prov SDF • Examples of minimum requirements that could be taken up in a provincial law are: • an assessment of existing levels of development; • inclusion of a spatial development vision; • a spatial reflection of the provincial growth path; • the interface conditions between rural and urban; • the interface conditions between municipalities bordering on landscapes with special characteristics of provincial value or interest • the identification of areas of specific provincial interest as a result of – • agricultural potential; • tourism potential; • heritage potential; • environmental vulnerability; • industrial potential; • housing delivery; • urban development potential, etc.