24 July 2012

SPATIAL PLANNING AND LAND USE SPATIAL PLANNING AND LAND USE MANAGEMENT BILLMANAGEMENT BILL

B14 - 2012B14 - 2012

Presentation to the Presentation to the

Portfolio Committee Portfolio Committee on on

Rural Development & Land Reform Rural Development & Land Reform

24 July 20121

BackgroundBackground† 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);

† 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 (1999) and White Paper (2001) processes to replace the DFA as the legislative instrument to regulate spatial planning and land use management in the country.

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BackgroundBackgroundPost- 1994 RealitiesPost- 1994 RealitiesCausesCauses‡ Physical Planning Acts 1967 and 1991‡ Provincial Ordinances‡ SGT/Bantustan laws‡ Planning Related laws at both National and Provincial spheresConsequencesConsequences‡ segregation, differentiation, unevenness;‡ multiple institutions;‡ parallel processes; and‡ uncoordinated sectoral policiesWhite Paper on Spatial Planning and Land Use Management 2001White Paper on Spatial Planning and Land Use Management 2001

Study of planning laws "revealed an extraordinarily complex and inefficient legal framework, with planning officials in all spheres of government having to deal with numerous different systems within the jurisdiction of each province, and indeed within most municipalities. The difficulty of dealing with this legal inheritance compounds the already difficult task of planning for sustainable, integrated and equitable land use and development in South Africa"

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Shared Vision?Shared Vision?† Until the DFA Judgment in June 2010 there has been

relative lack of clarity in the Constitution about the meaning of planning and which spheres of government responsible for land use planning and management;

† Lack of precision and shared understanding of the terminology that is used in the debates about planning;

† Lack of clarity between key national departments over who is responsible for land use planning and spatial planning;

† Subtle turf wars between national government and the provinces over who has responsibility for rationalizing and modernizing planning systems.

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Shared Vision?Shared Vision?† Four provinces have developed new planning and land use

legislation of their own (outside of a national framework);

† Lack of sustained leadership regarding the rationalization and modernizing of planning and land use management;

† There is a lack of shared vision about what the Land Use Management Bill should do (Land Use Planning with/out Spatial Planning); and

† Frustration with the long time it has taken to develop national framework legislation has led to autonomous initiatives by some spheres.

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Current Land Use RealitiesCurrent Land Use RealitiesUrban MunicipalitiesUrban Municipalities Rural MunicipalitiesRural Municipalities

† 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)

† 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

† Weak Enforcement

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Need For SPLUMB: Post-DFANeed For SPLUMB: Post-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).

† The Constitutional Court found that municipal planning includes the powers and functions necessary to determine rezoning and township establishment applications, and concluded that municipal planning is the exclusive competence of municipal government.

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Objects of the BillObjects 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; and

† 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

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Need For SPLUMBNeed For SPLUMBNew legislation is needed to achieve:† A coherent regulatory framework for spatial

planning, land use management, and land development and planning system;

† Constitutional synergy (clear delineation, distribution & allocation of powers among spheres);

† A predictable and transparent regulatory System; and

† Clear, rational and efficient inter-linkages of sectoral and inter-sphere spatial planning tools and policies.

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Spatial Planning Spatial Planning † Spatial planning involves ‘critical thinking about space and places as the basis critical thinking about space and places as the basis

for action or interventionfor action or intervention’ (RTPI, 2007).

† ‘spatial planning goes beyond traditional land use planning to bring together bring together and integrate policies for the development and use of land with other integrate policies for the development and use of land with other policies and programmespolicies and programmes which influence the nature of places and how they can function’. (UK Planning Policy Statement 1: Delivering Sustainable Development, 2005)

† 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

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Land Use ManagementLand Use Management† Land resources are used for a variety of purposes variety of purposes which interactinteract and may

competecompete with one another; therefore, it is desirable to plan and manage all uses in an integrated mannerintegrated 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 coordination of the sectoral planning and management activities of the sectoral planning and management activities concerned with the various aspects of land use and land resources.

† Integration should consider all environmental, social and economic factors.

† Integrated consideration facilitates appropriate choices and trade-offs, thus maximizing sustainable productivity and usemaximizing sustainable productivity and use.

† The broad objective broad objective is to facilitate allocation of land to the uses that provide the greatest sustainable benefits greatest sustainable benefits and to promote the transition to a sustainable and integrated management of land resources.

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Inter-Governmental PlanningInter-Governmental Planning† In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Others Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Others

the Constitutional Court held as follows:-

“Planning entails land use and is inextricably connected to every functional area that concerns the use of land. There is probably not a single functional area in the Constitution that can be carried out without land. Land-use planning must be done at three levels at least: provincial planning, regional planning and municipal planning.”

† The Constitution confers “planning” on all spheres of government by allocating “regional planning and development” concurrently to the national and provincial spheres, “provincial planning” exclusively to the provincial sphere, and executive authority over, and the right to administer “municipal planning” to the local sphere.

Inter-Governmental PlanningInter-Governmental PlanningIn the City of Johannesburg Metropolitan MunicipalityCity of Johannesburg Metropolitan Municipality, the Constitutional Court stated:-

“It is clear that the word “planning”, when used in the context of It is clear that the word “planning”, when used in the context of municipal affairs, is commonly understood to refer to the municipal affairs, is commonly understood to refer to the control and control and regulation of land useregulation of land use, and I have no doubt that it was used in the Constitution with that common usage in mind. The prefix “municipal” does no more than to confine it to municipal affairs. That construction, which gives meaningful effect to the term, has the effect of leaving in the hands of national and provincial government the authority to legislate in the functional area of “urban . . . development”, but reserving to municipalities the authority to reserving to municipalities the authority to micro-manage the use of land for any such developmentmicro-manage the use of land for any such development. On that construction the functional area of “urban development” retains considerable scope for national and provincial legislation.”

Inter-Governmental PlanningInter-Governmental PlanningIn the City of Johannesburg Metropolitan MunicipalityCity of Johannesburg Metropolitan Municipality, the Constitutional Court stated:-

“the government consists of three spheres: the national, provincial and local spheres of government. These spheres are These spheres are distinct from one another and yet interdependent and distinct from one another and yet interdependent and interrelatedinterrelated. Each sphere is granted the autonomy to exercise its powers and perform its functions within the parameters of its defined space. Furthermore, each sphere must respect the status, each sphere must respect the status, powers and functions of government in the other spheres and powers and functions of government in the other spheres and ―not assume any power or function except those conferred on [it] ―not assume any power or function except those conferred on [it] in terms of the Constitution.in terms of the Constitution.”

See also Ss 40 & 41 of the Constitution

Tools & InstrumentsTools & InstrumentsIn order to address these challenges, the Bill seeks to introduce provisions to cater for:†Development Principles;

†Norms and Standards;

†Inter-Governmental Support;

†Spatial Development Frameworks (SDFs) across National, Provincial, Regional & Municipal scales;

†Land Use Schemes;

†Municipal Planning Tribunals; and

†Applications affecting National Interests.

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Development PrinciplesDevelopment 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.

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Norms and StandardsNorms and StandardsThe 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, are the 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)

The Minister may him/herself or at the request of another Minister prescribe Norms and Standards on land use management;

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Role of National GovernmentRole of National Government† 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;

† 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; and

† 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.

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Role of Provincial GovernmentRole of Provincial Government† provide support to Municipalities in the preparation, adoption,

amendment, coordination and alignment of their Land Use Schemes;

† Strengthen the capacity of municipalities to implement spatial planning and land use legislation;

† 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; and

† the making and review of policies and laws necessary to implement provincial planning, and monitoring and support of municipalities.

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Role of Municipal GovernmentRole of Municipal Government† 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 spatial development framework and a land use schemeland 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.

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Spatial Development FrameworksSpatial Development Frameworks† An SDF is a framework that seeks to guide overall spatial

distribution of current and desirable land uses within a sphere/municipality in order to give effect to the development vision, goals and objectives.

† The aims of SDF include to promote sustainable functional and integrated human settlements, maximise resource efficiency, and enhance regional identity and unique character of a place.

† All the three spheres must now make SDFs;

† SDF must give effect to National, Provincial or Municipal Planning;

† Aligned to and consistent with the frameworks of other spheres;

† Reviewable every 5 years or less; and,

† Must involve public participation.

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Land Use ManagementLand 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

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Land Development ManagementLand 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

† Appeals lay to the Municipal Executive Authority from decisions of MPTs

† Provincial legislation may provide for post-MPT appeal processes, and matters affecting provincial interests.

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Land Use ManagementLand Use ManagementLinking SP & LUMLinking SP & LUM

Municipal Spatial Development Frameworks

Municipal Land Use

Schemes

Land Use Applications

Land Use Management

Systems

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Scheme Proposed by SPLUMBScheme Proposed by SPLUMB

NATIONAL GOVERNMENTNATIONAL GOVERNMENT

Creation of Policy & Legislation / Monitoring

PROVINCIAL GOVERNMENTPROVINCIAL GOVERNMENT

Creation of Provincial Policy & Legislation / Monitoring / Coordination

LOCAL GOVERNMENTLOCAL GOVERNMENT

METRO / DISTRICT MUNICIPALITIES

LOCAL MUNICIPALITIES

Coordination / Support Implementation

e.g National Spatial Development Framework

(National Planning Framework) e.g Spatial Planning &

Land Use Management Bill

e.g National Spatial Development Framework

(National Planning Framework) e.g Spatial Planning &

Land Use Management Bill

Provincial Spatial Development Frameworks

(Provincial Planning Framework)

Provincial Planning Legislation

Provincial Spatial Development Frameworks

(Provincial Planning Framework)

Provincial Planning Legislation

Integrated Development Plans

(Local Planning Framework)

Integrated Development Plans

(Local Planning Framework)

METRO / DISTRICT

LOCAL MUNICIPALITIES

IDP /

SDF

Local IDP

Local SDF Land Use Scheme (SPLUMB)

Gives effect to the Spatial Development Framework of a

Municipality and records rights & restrictions on individual erven

within a municipality

Land Use Scheme (SPLUMB)

Gives effect to the Spatial Development Framework of a

Municipality and records rights & restrictions on individual erven

within a municipality

The Role of National Government is primarily the creation of an enabling environment through Policy and Legislation Development as well as Monitoring the implementation of these

The Role of National Government is primarily the creation of an enabling environment through Policy and Legislation Development as well as Monitoring the implementation of these

The Role of Provincial Government is the creation of an enabling environment through Policy and Legislation Development which is aligned to National initiatives, Monitoring and also coordination

The Role of Provincial Government is the creation of an enabling environment through Policy and Legislation Development which is aligned to National initiatives, Monitoring and also coordination

Metropolitan & Local Municipal Spatial Development Frameworks

Metropolitan & Local Municipal Spatial Development Frameworks

Precinct Plans / Local Spatial Development

Frameworks

Precinct Plans / Local Spatial Development

Frameworks

‡ Obligations to do Spatial Development Frameworks (SDFs), Land Use Schemes and Land Development Management;

‡ Obligation to establish Municipal Planning Tribunals (MPTs);

‡ Member of MPT need not be just officials. Opportunity to share limited resources;

‡ Councils may agree to do joint land use schemes, and establish joint MPTs (Council resolution on Joint MPT with another Municipality or all Municipalities within a District);

‡ Opportunity to learn from Best practices as all now within a National Framework;

‡ Relative clarity on roles & responsibilities of the three spheres; and

‡ Stronger national support and capacity building Stronger national support and capacity building (SDF Guidelines, (SDF Guidelines, Planning Manuals, Model land use schemes, etc)Planning Manuals, Model land use schemes, etc)

Addressing Municipal CapacityAddressing Municipal Capacity

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National InterestNational 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.

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Chapters 1 - 2Chapters 1 - 2† Chapter 1 (Clauses 1 to 5)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) 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.

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Chapters 2 - 4Chapters 2 - 4† Chapter 3 (Clauses 9 to 11) 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.


provides for the preparation and contents of national, provincial, regional and municipal spatial development frameworks, as well as the status of spatial development frameworks.

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Chapters 5 - 6Chapters 5 - 6† Chapter 5 (Clauses 23 to 32) 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.


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.

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Chapter 7Chapter 7† Chapter 7 (Clauses 53 to 61) 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.

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Areas of ConcernAreas of Concern† What does “municipal planning” mean? [in the wider context of the

planning roles and responsibilities of each sphere of government]† What is the provincial interest in land use planning? & how do the

provinces [powers] deal with those interests?† What practical instruments can be designed to manage the overlap?† Capacity of municipalities to comply with requirements in terms of

legislation

† Municipal differentiation

† Support and monitoring of municipalities

† Planning Tribunals and role of Councillors / officials

† Appeals (internal –to Council - and external – to Province)

† Land Use Management in Rural Areas, participation & role of Traditional Leaders

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Status of the BillStatus of the Bill† The draft Bill was approved by Cabinet for publication and public

consultation in April 2011. The draft Bill was gazetted on 6 May 2011, with the consultation period closing on 6 June 2011.

† During this period, the Department held workshops in all provinces for public and private sector stakeholders, as well as bilateral engagements with municipalities, provinces and government departments.

† In response to this call a total of 110 comments were received from all sectors.

† A Regulatory Impact Assessment of the Bill was also concluded in June 2011.

† The SPLUMB has now been approved by Cabinet in March 2012 after an extensive public participation for introduction to Parliament.

† The State Law Advisers and the Dept are of the view that the Bill is a section 76 Bill because it affects the powers of the Provinces and Municipalities.

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Implementation FrameworkNATIONAL SUPPORT PROJECTS

PROJECT TITLE PROJECT PURPOSEDraft regulations for the Spatial Planning and Land Use Management Act

To develop Draft Regulations for the Spatial Planning and Land Use Management Act to enable and enhance the implementation of this Act.

Development of an Electronic Municipal Land Use Management Tool

To develop a standalone GIS based tool to support Municipal Land Use Management.

Comprehensive Guidelines on Transitional and Interim Measures to Support Implementation of the Spatial Planning and Land Use Management Act

To determine a framework and guidelines for the continued management of land development applications and related matters that are currently processed in terms of various provincial ordinances, the Development Facilitation Act and related legislation so that pending applications and prospective applications are finalized, continued, lodged and determined in a manner consistent with the proposed Spatial Planning and Land Use Management Act, and the judgment of the Constitutional Court in the City of Johannesburg vs Gauteng Development Tribunal Case.

Draft Guidelines for Municipal Land Use Management

To provide a consistent institutional and operational framework within which municipalities will be able to discharge their land use management functions in terms of the Spatial Planning and Land Use Management Act.

Draft General Framework on Integrated Spatial Planning and Land Use Management

To develop a framework that outlines the Spatial Planning System detailed in the Spatial Planning and Land Use Management Act.

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Implementation FrameworkPROVINCIAL SUPPORT PROJECTS

PROJECT TITLE PROJECT PURPOSE

Draft Provincial Legislation and Accompanying Regulations on Spatial Planning and Land Use Management for:

Eastern Cape;

Mpumalanga ;

Free State;

Limpopo ; and

Northern Cape

Provinces

To develop Draft Provincial Legislation and accompanying Regulations on Spatial Planning and Land Use Management that will complement the Spatial Planning and Land Use Management Act and deal with province-specific spatial planning and land use matters.

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COMMENTS AND QUESTIONSCOMMENTS AND QUESTIONS

Thank YouThank You

Sunday Ogunronbi Executive Manager: Spatial Planning & Information

| Department: Rural Development & Land Reform| +27 82 577 5655| +27 12 312 9371| 086 692 8882 (f) |

[email protected]

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mailto:[email protected]

Documents

24 July 2012