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31 July 2008

Presentation on the Land Use Management Bill by the City of Johannesburg PORTFOLIO COMMITTEE ON AGRICULTURAL AND LAND AFFAIRS. 31 July 2008. INTRODUCTION. The long awaited Bill is welcomed There are many aspects that are positive This draft is a distinct improvement on previous drafts.

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31 July 2008

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  1. Presentation on the Land Use Management Bill by the City of JohannesburgPORTFOLIO COMMITTEE ON AGRICULTURAL AND LAND AFFAIRS 31 July 2008

  2. INTRODUCTION • The long awaited Bill is welcomed • There are many aspects that are positive • This draft is a distinct improvement on previous drafts. • There are however areas of concern and disappointment. • Expectations of the 2001 White Paper have not been entirely met • There are a number of substantive areas where clarification and improvement is needed. • This presentation deals with 7 main areas of concern. • See written submission and detail

  3. Basis for comments on the draft • The White Paper on Spatial Planning and Land Use Management of 2001 • Extent to which objectives were met • Strategic developmental priorities • Constitutional Objectives of Local Government • Strategic priorities of the City of Johannesburg (e.g. informal settlement regularization) • Relationship with other legislation • Stated intention in the White Paper was one piece of enabling legislation with a single set of procedures • Continued existence of parallel provincial legislation • Practicality and Implementation • Difficult to assess because detailed procedures will be in Regulations

  4. Comparison between the White Paper and the LUMB • Some expectations are met • E.G. Land use regulators provided for • Uniform set of procedures (but regulations awaited) however, it is still possible for provinces to legislate different sets of procedures • Principles, norms & standards incorporated • BUTothers are not met • Doesn’t address existing legislation and new acts and Ordinances • Roles of the different spheres of government not adequately clarified • Role of spatial policy is underplayed • Environmental Management and Development planning procedures remain separate procedures

  5. Positive aspects which the COJ supports • The nature of the land use regulator is consistent with existing good practice. • Functions of the different spheres have been clarified to some extent • Overlaps that have led to litigation have been partly removed • Constitutional principle for provinces to “assist, facilitate, support and strengthen the capacity” is confirmed in the Bill • There is greater clarity on the meaning of “forward planning” and “development administration” • The limitation of 5 years validity of approved applications is confirmed (deals with the problem of latent rights)

  6. Major areas of concern • Lack of integration with environmental management and other forms of planning • Lack of clarity on what constitutes National and Provincial interests • Continued co-existence of separate/parallel legislation • Lack of attention to the role of spatial policy • Lack of consideration to engineering and social infrastructure • Dealing with Informality within the City (& the DFA) • Specific problems with practicality and implementation

  7. 1. Lack of integration with environmental management and other forms of planning • Good practice internationally in recent years has included the full integration of environmental management and development applications • The White Paper proposed this integration, the Bill is entirely silent on this • Fragmented systems will continue into the future

  8. 2. Lack of clarity on what constitutes National & Provincial interests • Overlap and uncertainty on provincial and local government roles in planning led to litigation • Bill does remove some of the overlap by recognising provincial & national interests • However, the determination and interpretation of what constitutes national and provincial interests is open to debate and may be a source of future contestation • COJ position: • Principle accepted that provinces should deal with provincial interest applications and cross boundary interests • Act should specify determination of interest and adjudication in disputes on interpretation • Act should provide further guidance on how to delineate interest e.g. environmental issues, engineering services, transport • The requirement that prescribed applications by the City must be dealt with by province may be a problem if the prescription deals with detailed local matters

  9. 3. Continued co-existence of separate/parallel legislation • The City has suffered considerable difficulties around “parallel” and overlapping processes • The White Paper promised a single piece of enabling legislation with common processes • The Bill is not clear how the LUMB will co-exist with existing national and provincial legislation (Acts & Ordinances) • The Bill repeals some national legislation but is silent on the relationship with other national legislation (e.g. environmental) and does not address provincial Ordinances and Acts. • We are unclear for example whether an application could be submitted in terms of provincial legislation as an alternative to the Bill.

  10. 4. Lack of attention to the role of spatial policy • The major advance in spatial planning post 1994 has been the shift towards policy led decision making in development planning applications • Key advances have been IDPs and related SDF’s (and other instruments such as introduced in the COJ) • Section 35 of the MSA states that the IDP binds executive decision making. • The DFA recognized this principle (bound by LDO’s) • 2001 White Paper gave strong emphasis to the role of policy in guiding or leading decision making “IDP- based spatial planning” • The Bill gives insufficient weight and emphasis to the importance of producing and implementing spatial policy (although Section 44(1)(b) does require consistency with policy).

  11. 5. Lack of consideration to engineering and social infrastructure • Current national problems around electricity highlight the importance of giving explicit recognition to infrastructure in planning processes • The Bill makes no mention of the engineering or social infrastructure that is required with development • The Bill should at least state that there should be no change in “land use, form or function” (application) without the consideration of engineering services, social infrastructure, and open space requirements • The Bill should also deal with “developers contributions” toward the provision of engineering services, social infrastructure, and open spaces.

  12. 6. Dealing with Informality within the City (& the DFA) • Informality is a major feature of the urban landscape (COJ has over 180 informal settlements) • The Bill gives no guidance or procedure for dealing with this urban reality • Government at all levels has prioritized regularization of informal settlements by 2014. • The extra-ordinary measures for dealing with tenure and settlement within the DFA could have been incorporated within the Bill • Unfortunately the DFA has generally not been used for what it was intended for (e.g. Bypass some of the policies applicable within the City) • There are however some important provision in the DFA which should not be lost. • The COJ for example is in the process of initiating a major programme to fast track regularization of informal settlements and requires the legal instruments to do so.

  13. 7. Specific problems with practicality and implementation Regulations • It is difficult to on comment or understand some of the provisions of the Bill without knowledge of the Regulations … will the Bill be implementable? • For example would the “prescribed period” for making decisions be feasible? Land Use Regulator(Membership and Term of Office) • Members should be prohibited from serving on the Land Use Tribunal (Provincial) if they submit applications in jurisdiction

  14. Specific problems with practicality and implementation • Clause 56 is unrealistic as it brings a decision into operation without recording of land information with the Surveyor General, the Registrar and other databases. • Clause 54 states that an amendment scheme shall have the force of law, without requiring publication (is this the intention?) • It is a legal principle that to have force of law it should be published • The Bill is silent on the municipalities right to ensure the compliance with conditions before the activation of a decision • Clause 71 & 43 are not conducive to public participation • Schedule 1 on land use purposes is silent on “de-proclaimed” mining land • Clarity is required on the exclusion of the power to delegate to municipal officials decisions on “land use applications”. (Could have significant practical implications if unopposed applications cannot be delegated) – Clause 61

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