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SPATIAL PLANNING AND LAND USE MANAGEMENT BILL, 2012

SPATIAL PLANNING AND LAND USE MANAGEMENT BILL, 2012. PRESENTATION TO THE SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS 29 May 2012. OUTLINE OF PRESENTATION. DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT PROBLEM STATEMENT SEARCH FOR A SOLUTION SPLUMB POST-2010 OVERVIEW OF SPLUMB

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SPATIAL PLANNING AND LAND USE MANAGEMENT BILL, 2012

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  1. SPATIAL PLANNING AND LAND USE MANAGEMENT BILL, 2012 PRESENTATION TO THE SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS 29 May 2012

  2. OUTLINE OF PRESENTATION • DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT • PROBLEM STATEMENT • SEARCH FOR A SOLUTION • SPLUMB POST-2010 • OVERVIEW OF SPLUMB • SPLUMB AREAS OF CONCERN • DRAFTING PROCESS AND CONSULTATION

  3. DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT

  4. DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT SPATIAL PLANNING • Spatial planning involves ‘critical thinking about space and places as the basis for action or intervention’ (RTPI, 2007). • Spatial planning goes beyond traditional land use planning to bring together and integrate policies for the development and use of land with other policies and programmes which influence the nature of places and how they can function’. (UK Planning Policy Statement 1: Delivering Sustainable Development, 2005)

  5. DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT SPATIAL PLANNING • The implementation of the spatial objectives contained within planning policy is: • highly dependent upon the coordinating role of national government; • local discretion over the interpretation of such policy guidance and the resources and action of developers and other stakeholders; • degree of consistency between broad policy objectives (and governance structures associated with their delivery) across different sectoral interests. • The reality is that there remain complex relationships between policies, and even high-level policy outcomes may be contradictory

  6. DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT LAND USE MANAGEMENT • Land resources are used for a variety of purposes which interactand may compete with one another; therefore, it is desirable to plan and manage all uses in an integrated manner. • Land-use management examines all uses of land in an integrated manner, it makes it possible to minimize conflicts, to make the most efficient trade-offs and to link social and economic development with environmental protection and enhancement, thus helping to achieve the objectives of sustainable development. • The essence of the integrated approach finds expression in the coordination of the sectoral planning and management activities concerned with the various aspects of land use and land resources.

  7. DEFINING SPATIAL PLANNING AND LAND USE MANAGEMENT LAND USE MANAGEMENT • Integration should consider all environmental, social and economic factors. • Integrated consideration facilitates appropriate choices and trade-offs, thus maximizing sustainable productivity and use.  • The broad objective is to facilitate allocation of land to the uses that provide the greatest sustainable benefits and to promote the transition to a sustainable and integrated management of land resources.

  8. PROBLEM STATEMENT

  9. PROBLEM STATEMENT PRE-1994 PHYSICAL PLANNING AND LAND USE OBJECTIVES • Pre-1994 Planning was designed to serve a different political idea – segregation, differentiation, and privilege; • Multiple laws, multiple institutions and parallel processes instituted by the pre-1994 pieces of legislation; • Planning laws were fragmented across the old boundaries of the then four (4) provincial administrations, homelands, and Self-Governing Territories (SGT);

  10. PROBLEM STATEMENT OUTCOMES OF THE PRE-1994 PLANNING SYSTEM • In 1994, South Africa inherited complex and disjointed planning systems which manifest in unequal, incoherent and inefficient settlement patterns; • The Development Facilitation Act, 1995 (Act No. 67 of 1995) (“the DFA”) was promulgated as an interim measure to deal with this legacy. • SPLUMB emerged through the Green Paper and White Paper processes to replace the DFA as the legislative instrument to regulate spatial planning and land use management in the country.

  11. PROBLEM STATEMENT SYMPTOMS OF THE PRE-1994 PLANNING SYSTEM • Long approval processes with too many objections/ slow pace of development application approvals; • Lack of shared vision and coordinated initiative in respect of what is needed to modernize and rationalize planning and land use management in South Africa and in respect of the interconnections between different kinds of planning in South Africa. • High degree of legal and procedural complexity in the many land use management processes in South Africa. • Poor linkages between sectoral policies (from all spheres) and spatial planning (by all spheres) on the one hand and land use management mechanisms and processes on the other. • Several parallel approval processes involving substantial duplication and complexity with respect to land use, environment, heritage, agriculture, transport, etc.

  12. PROBLEM STATEMENT CURRENT LAND USE REALITIES IN URBAN SOUTH AFRICA • Economic factors/engines of growth • Best practices for weaker municipalities • Exclusion and inclusion • Value capture and 'irregular' land uses • Formality and informality • Growth Management Strategies • Irregular land use and evictions strategy • Planning Laws & Embedded Power Relations (criminalisation of poverty)

  13. PROBLEM STATEMENT CURRENT LAND USE REALITIES IN RURAL SOUTH AFRICA • State land • Unresolved tenure issues • Communal ownership and titling vs Freehold • Traditional Leadership and 'weak' linkages with formal municipal governance (section 81 of the Municipal Structures Act) • Community participation and alternative 'democratic' expression • Spatial datasets, cadastre, and land use schemes • Enforcement

  14. PROBLEM STATEMENT SUMMARY OF THE PRE-1994 PLANNING SYSTEM • Economically: it impedes investment in land development and fails to establish sufficient certainty in the land market; • Spatially: it fails to address the segregated and unequal spatial patterns inherited from apartheid; and • Environmentally: it does not balance the country’s socio-economic needs with those of environmental conservation.

  15. SEARCH FOR A SOLUTION

  16. SEARCH FOR A SOLUTION THE DEVELOPMENT FACILITATION ACT OF 1995 • The Development Facilitation Act (DFA), 1995 is the only post-1994 planning law enacted by parliament. • The DFA was promulgated as an interim measure to bridge the gap between the old apartheid era planning laws and a new planning system reflecting the needs and priorities of the democratic South Africa • The Act, however, did not wipe the slate clean with the result that national and provincial laws relating to planning promulgated before 1994 are still in existence • The DFA thus operates parallel to the existing laws, until such time as it is repealed (as intended by this Bill) • The key features of the DFA are: • Development Principles • Land Development Objectives • Development Tribunals

  17. SEARCH FOR A SOLUTION GREEN PAPER • In 1997 the government appointed the Development and Planning Commission to, amongst other things, advise on how best to streamline the various policy, legislative and regulatory frameworks • In 1999, after extensive national consultations, the Commission produced the Green Paper on Development and Planning • The Green Paper emphasised the importance of a shared vision as the basis for planning in the country • The Green Paper recommended national assistance to Provinces in repealing provincial legislation and replacing this with a single national law on spatial planning and land use management

  18. SEARCH FOR A SOLUTION WHITE PAPER AND “LUMB” 2001 • Cabinet approved the White Paper on Spatial Planning and Land Use Management in June 2001 • It was published in Gazette No. 22473 of 20 July 2001, together with a Draft Land Use Management Bill 2001 • The White Paper provides for rationalisation of the existing planning laws into one national system • The White Paper proposed Spatial Development Frameworks (SDFs) as the primary instrument of spatial planning and Land Use Schemes (LUSs) as the primary instrument of land use management

  19. SEARCH FOR A SOLUTION TRANSFORMATION OF LOCAL GOVERNMENT • During the period of the publishing of the Green Paper and the White Paper together with “LUMB” 2001, the process of local government transformation had entered its final phase • The Municipal Structures Act was promulgated in 1998 (Act 117 of 1998) • This was followed in 2000 by the Municipal Systems Act (Act 32 of 2000) • The Municipal Systems Act introduced Integrated Development Plans (IDPs) as the principal planning instrument of municipalities, and made provision for municipal SDFs to be part of municipal IDPs

  20. SEARCH FOR A SOLUTION DFA OBJECTIVES AND APPLICATION • To introduce extraordinary measures to facilitate and speed up the implementation of reconstruction and development programmes and projects in relation to land • DFA is a single law with general applicability • It created common procedures which could apply nationally and provided fast track processes to expedite development • The DFA could provide urgent, short term development solutions and deal with complex applications • The use of the DFA as an alternative to the Provincial Ordinances therefore became widespread in Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga and North West Provinces (where the DFA was applied)

  21. SEARCH FOR A SOLUTION DFA SUCCESSES AND LIMITATIONS • The DFA has contributed to tenure security, tourism, and high income rates base in towns and cities • The DFA has brought development to areas where other legislation may not have enabled it. • Criticism that the DFA has been “abused” for high-income private development. • DFA cannot be a mainstream process because it is labour intensive and requires high levels of expertise: • need attorneys and advocates to represent applicants; • municipalities in particular noted the need to have counsel at every hearing with the associated cost factor; • requires considerable expertise in decision-making and in writing the conditions so that outcomes are effective; and • legal participation means that most clauses in the DFA have had their interpretation tested

  22. SEARCH FOR A SOLUTION “LUMB” PARLIAMENTARY PROCESS 2007-2008 • 5 June 2007: Cabinet Committee on Governance & Administration considered concerns regarding the Bill. • 13 June 2007: Cabinet approved the recommendations of the Cabinet Committee on Governance & Administration on the Bill. • 15 April 2008: The Bill was officially introduced to the public with call for comments by publication of explanatory summary of the Bill in the Government Gazette No 30979 of 15 April 2008. • 18 May 2008: Bill introduced in Parliament by the Minister for Agriculture and Land Affairs, at the time. • Between May and July 2008: Portfolio Committee on Agriculture and Land Affairs, and in a number of instances, including members of the Portfolio Committee on Provincial and Local Government, had engagements with the then Department of Land Affairs on the Bill.

  23. SEARCH FOR A SOLUTION “LUMB” PARLIAMENTARY PROCESS 2007-2008 • In addition to its call for and receipt of public comments on the Bill, the Portfolio Committee conducted public hearings on the Bill between 30 and 31 July 2008. • During August 2008 other members of civil society and constitutional institutions supporting democracy, such as the Commission for Gender Equality, were afforded opportunity to brief the Portfolio Committee on the Bill. • Legal opinions were obtained from the Parliamentary Legal Counsel to confirm the constitutional validity of both the substance and content of the Bill. • Based on written submissions and representations made to the Portfolio Committee by several State and non-State actors, including provincial governments and municipalities, various improvements were suggested to the version of the Bill originally submitted to the Parliament.

  24. SEARCH FOR A SOLUTION “LUMB” PARLIAMENTARY PROCESS 2007/8 • 13 August 2008: Portfolio Committee passed the Bill with the support of all the political parties on the Committee. • Parliament did not complete the process of passing the Bill into law before the change of Government in May 2009. • The proceedings that preceded the confirmation application also had a bearing on the approach that was taken by Government in finalising the Bill, as proceedings were pending before the Supreme Court of Appeal which had to consider the constitutionality of the impugned provisions of the DFA. • It was felt at the time that the judgment of the Supreme Court of Appeal regarding the matter pending before it would have a significant bearing on some of the provisions contained in the Bill. • The Bill thus lapsed with the last Parliament and the Executive Arm did not seek a revival of the Bill until the judgment of the Supreme Court of Appeal was delivered.

  25. SEARCH FOR A SOLUTION • CONSTITUTIONALITY OF THE DFA • The DFA was intended to be an interim measure, and was to be repealed by SPLUMB (in its current and earlier versions). • In June 2010, the Constitutional Court found Chapters 5 and 6 of the DFA to be invalid on grounds of unconstitutionality. • The order of invalidity was suspended for 2 years, i.e. until June 2012, to allow the defects in the DFA to be remedied. • Government’s intended remedy is to repeal the DFA in its entirety and replace it with the Spatial Planning and Land Use Management Act (currently still a Bill).

  26. SEARCH FOR A SOLUTION THE JUDGMENT OF THE COURT IS SIGNIFICANT FOR THE FOLLOWING REASONS: • The Order of Invalidity of Chapter 5 and Chapter 6 of the DFA has been suspended for 24 months from the date of the judgment (18 June 2010). A definite and critical timeline has therefore been established for the Spatial Planning and Land Use Management Bill to be enacted, i.e. by 17 June 2012. • The Constitutional Court found that municipal planning includes the powers and functions necessary to determine re-zoning and township establishment applications, and concluded that municipal planning is the exclusive competence of municipal government.

  27. SEARCH FOR A SOLUTION THE JUDGMENT OF THE COURT IS SIGNIFICANT FOR THE FOLLOWING REASONS: • While not providing specific definitions for the concepts, the court also found that “provincial planning,” “regional planning” and “urban and rural development” were to be narrowly defined, so that the manner of their interpretation would not limit the powers and functions of municipalities in respect of municipal planning. • These findings have implications for the institutions and structures created by the Spatial Planning and Land Use Management Bill, as well as their composition, legal status and powers and functions

  28. SEARCH FOR A SOLUTION CURRENT APPLICATION TO CONSTITUTIONAL COURT FOR EXTENSION OF DFA • Applicants seek order for the further extension of the period of suspension of the declaration of constitutional invalidity of Chapters V and VI of the Development Facilitation Act, by 24 months until 16 June 2014, or until the date of the enactment of the Spatial Planning and Land Use Management Bill and its transitional provisions or any similar legislation.

  29. SPLUMB POST-2010

  30. SPLUMB POST-2010 OBJECTS OF THE BILL • Provide for a uniform, effective and comprehensive system of spatial planning and land use management for the Republic • Ensure that the system of spatial planning and land use management promotes social and economic inclusion • Provide for development principles and norms and standards • Provide for the sustainable and efficient use of land • Provide for cooperative government and intergovernmental relations amongst the national, provincial and local spheres of government • Redress the imbalances of the past and to ensure that there is equity in the application of spatial development planning and land use management systems

  31. SPLUMB POST-2010 DEVELOPMENT PRINCIPLES • Used to Guide Spatial Planning, Land Use Management and Land Development in terms of this Bill; • Applied through Spatial Planning Tools i.e. SDF’s and Land Use Schemes and also guide decision making by Tribunals; • Applied by National / Provincial Governments and Municipalities in developing their SDF’s and Spatial Planning policies.

  32. SPLUMB POST-2010 NORMS AND STANDARDS • The terms “norms and standards” are commonly used interchangeably but are two different concepts: - Norms may be the usual or the average level of performance. - Standards, on the other hand, arethe desired and achievable level of performance. • Setting norms and standards is a complex operation consisting of 4 components: - Level of service to be attained (policy directive) - Quantity to be provided (policy directive) - Quality required (often legislated) - Technical specifications (legislated)

  33. SPLUMB POST-2010 NORMS AND STANDARDS • Norms and standards are important in Planning for: • Assessment of needs; • Quality Management; • Management tool; and • Transformation tool/change management. • Limitations • Rigidity and inflexible; • Prescriptive. • Examples • Norm – Planning considerations in Rural Areas; • Use and Protection of Agricultural Land; • Standards – Mapping Standards, Density Guidelines, etc.

  34. SPLUMB POST-2010 NORMS AND STANDARDS • i.t.o. Clause 8 of the Bill the Minister may prescribe Norms and Standards on land use management; • i.t.o. Clause 8(3) of the Bill the Minister is able to prescribe Norms and Standards at the request of another Minister (e.g. Norms & Standards for Inclusionary Housing in Human Settlements).

  35. SPLUMB POST-2010 REGULATIONS • Section 54 of the Bill makes provision for the Minister to prescribe Regulations • Areas for Regulations include: • Norms and Standards • Spatial Planning (SDFs) • Land Use Management (LUSs) • Land Development Management

  36. SPLUMB POST-2010 GUIDELINES • The Department of Rural Development and Land Reform (DRDLR) is preparing guidelines on various matters to support implementation of the Bill: • Integrated Spatial Planning and Land Use Management • Interim and Transitional Measures • Spatial Development Frameworks • Municipal Land Use Management • Electronic Land Use Management Systems

  37. SPLUMB POST-2010 INTERGOVERNMENTAL RELATIONS, SUPPORT AND MONITORING • National Government is required to: • provide support to Provinces and Municipalities in the execution of their duties in terms of the Bill • monitor capacity of Provinces and Municipalities to implement the Bill • monitor compliance of Provinces and Municipalities with the Bill

  38. SPLUMB POST-2010 INTERGOVERNMENTAL RELATIONS, SUPPORT AND MONITORING • Provincial Government is required to: • provide support to Municipalities in the preparation, adoption and amendment of their Land Use Schemes • Facilitate the coordination and alignment of land use schemes of different municipalities within a Province • Facilitate the coordination and alignment of land use schemes of different municipalities with plans of National and Provincial organs of state • Strengthen the capacity of municipalities to implement spatial planning and land use legislation

  39. SPLUMB POST-2010 ROLE OF NATIONAL GOVERNMENT • National Government is responsible for: • the compilation, approval and review of spatial development plans and policies or similar instruments, including a national spatial development framework; • the planning by the national sphere for the efficient and sustainable execution of its legislative and executive powers insofar as they relate to the development of land and the change of land use; • the making and review of policies and laws necessary to implement national planning, including the measures designed to monitor and support other spheres in the performance of their spatial planning, land use management and land development functions.

  40. SPLUMB POST-2010 ROLE OF PROVINCIAL GOVERNMENT • Provincial Government is responsible for: • the compilation, approval and review of a provincial spatial development framework; • monitoring compliance by municipalities with this Act and provincial legislation in relation to the preparation, approval, review and implementation of land use management systems; • the planning by a province for the efficient and sustainable execution of its legislative and executive powers insofar as they relate to the development of land and the change of land use; • the making and review of policies and laws necessary to implement provincial planning.

  41. SPLUMB POST-2010 ROLE OF MUNICIPALITIES • Municipalities are responsible for: • The compilation, approval and review of integrated development plans; • the compilation, approval and review of the components of an integrated development plan prescribed by legislation and falling within the competence of a municipality, including a spatial development framework and a land use scheme; • the control and regulation of the use of land within the municipal area where the nature, scale and intensity of the land use do not affect the provincial planning mandate of provincial government or the national interest.

  42. SPLUMB POST-2010 SPATIAL DEVELOPMENT FRAMEWORKS (SDFs) • All three spheres must prepare SDFs to give effect to National, Provincial or Municipal Planning respectively • There must be alignment and consistency between the Frameworks of all spheres • Provision for the Minister and Premier to see to the preparation of Regional SDFs where required • SDFs are reviewable every 5 years or less • Must involve public participation.

  43. SPLUMB POST-2010 LAND USE MANAGEMENT • Municipality is responsible for Land Use Management • Primary instrument is the Land Use Scheme (LUS) • Municipality must, after public consultation, prepare, adopt and implement a LUS within 5 years of the Bill being enacted • LUS must be consistent with and give effect to Municipal SDF • All land development applications must be determined within context of the LUS • An approved and adopted LUS has the force of law and binds all owners and users of land

  44. SPLUMB POST-2010 LAND DEVELOPMENT MANAGEMENT • Land development applications are determined by Municipalities as the authority of first instance • Municipalities are required to establish Municipal Planning Tribunals to discharge this function • Municipalities may co-operate to establish Joint Municipal Planning Tribunals • The Tribunals consist of municipal officials and suitably qualified external persons appointed by Municipal Councils

  45. SPLUMB POST-2010 DEFINING NATIONAL INTEREST • A land development application must be referred to the Minister where the outcome of the application affects the National interest • The National interest includes: • matters within the exclusive functional area of the national sphere in terms of the Constitution; • strategic national policy objectives, principles or priorities, including food security, international relations and co-operation, defence and economic unity; or • land use for a purpose which falls within the functional area of the national sphere of government.

  46. CHAPTER OVERVIEW OF SPLUMB, 2012

  47. CHAPTER OVERVIEW OF SPLUMB CHAPTERS 1 - 4 • Chapter 1 (Clauses 1 to 5): provides for definitions, the application of the Act, objects of the Act, an outline of the system of planning in South Africa and the categories of spatial planning. • Chapter 2 (Clauses 6 to 8) provides an outline of key principles that are applicable to the spatial planning system and will also guide land development in general. It provides scope for the Minister of Rural Development and Land Reform to develop more comprehensive principles. The chapter also provides for the Minister to set out compulsory norms and standards for land use management. • Chapter 3 (Clauses 9 to 11) outlines the mandates of national and provincial spheres in monitoring and support provision to ensure effective spatial planning and land use management processes. It also provides for a differentiated approach to municipalities. • Chapter 4 (Clauses 12 to 22) provides for the preparation and contents of national, provincial, regional and municipal spatial development frameworks, as well as the status of spatial development frameworks.

  48. CHAPTER OVERVIEW OF SPLUMB CHAPTERS 5 - 7 • Chapter 5 (Clauses 23 to 32) provides for the adoption of municipal land use schemes, including their purpose, content, status, review and relationship with existing land use schemes. The section also provides for the amendment of land use schemes and the alignment of authorisations in terms of other applicable legislation. • Chapter 6 (Clauses 33 to 52) provides for the establishment, composition, powers and functions of Municipal Planning Tribunals, as well as for internal appeals against the decisions of Municipal Planning Tribunals. It also deals with possible municipal cooperation in adopting land use schemes and joint consideration of development applications that affect the national interest. • Chapter 7 (Clauses 53 to 61) contains general provisions relating to commencement of registration of ownership, regulations, powers of the Minister to grant exemptions from provisions of the Act, delegations by the Minister, Premiers and municipalities to officials, non-impediment of function, offences and penalties, repeal of legislation, transitional provisions, and short title and commencement.

  49. SPLUMB AREAS OF CONCERN

  50. SPLUMB AREAS OF CONCERN Major Issues (Including Constitutional Issues) Emerging from the Public Consultation Process: • Municipal Planning [in the wider context of the planning roles and responsibilities of each sphere of government] • Definition of the roles and responsibilities of each sphere of government with regard to spatial planning and land use management • Capacity of municipalities to comply with requirements in terms of legislation • Municipal differentiation • Support and monitoring of municipalities • Multiple Jurisdiction Over Spatial Planning and/or Land Use Management and alignment of authorisations

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