Eastern Cape Province RESEARCH FINDINGS 21 July 2011 Port Elizabeth Provincial Land Use Legislative Reform

Eastern Cape Province

RESEARCH FINDINGS

21 July 2011Port Elizabeth

Provincial Land Use Legislative Reform


STUDY AREA

2 Metro’s (BC and NMB), 5 district councils and 38 local municipalities Source: Demarcation Board


PURPOSE OF STUDY

• To provide an overview of land use / planning legislation in the Eastern Cape

• To review the state of the present provincial legislation to understand: land use laws and procedures in practice; law reform processes since the advent of democracy; institutional responsibilities; decision making structures and processes; and the performance of provincial and municipal laws

• To draw conclusions on the status of current land use legislation and see how these might inform new provincial legislation.


STUDY APPROACH

• Literature review

• Interviews (2 – 3 hours): Provincial officials NMBM and BCM officials Members / Ex members of Planning Advisory Board Locally based consultants in both metros

• Focus of interviews: What works well in law? (planning and other related legislation) What does not work so well? What needs to be changed and what should a new provincial (or national) law focus on? The performance of provincial and municipal laws which focused on collection of quantitative data (how many applications; what type of applications; how many appeals, etc.)


KEY FINDINGS: EXISTING LEGISLATION• From hub investigations, it is apparent that existing planning legislation is

outdated, confused and fragmented

Period Planning Legislation Intention / purpose / institutional responsibility

Planning legislation applicable in the hubs

1967 (first promulgated)1991

The Physical Planning Act, Act No. 125, as amended

Permitted the formulation of Structure Plans to guide land use and procedural planning in terms of LUPO

1984 The Black Communities Development Act, Act No. 4

Made provision for the establishment of ‘Black’ Development Areas where Blacks were permitted to have access to land in urban areas through a leasehold form of tenure

1985 The Land Use Planning Ordinance, Ordinance 15 of 1985 (LUPO) read with 1934: Townships Ordinances, No. 33 where applicable

To protect the impact of development on property rights and to demonstrate the desirability of land use in an area

1991 The Less Formal Township Establishment Act, Act No. 113

To provide for shortened procedures for the development of land for less formal forms of residential settlement

1995 Development Facilitation Act, Act No. 67

To speed up reconstruction and development programmes and projects and set out principles for land development, among others such as providing for a Development Planning Commission, measure local government performance, provide nationally uniform procedures for the subdivision and development of land in urban and rural areas; and to promote security of tenure and the provision of subsidies and loans in the land development process.


KEY FINDINGS: EXISTING LEGISLATION (CONTINUED)

• The investigation of Nelson Mandela Bay Municipality (NMBM) revealed that former structure plans that existed ito the PPA, are not referred to or recognized by the LM

• Some legislation has been repealed but regulations are still in in full force e.g. the BCDA (Chapters VI and VIA and any regulation made thereunder) which makes provision for the granting of leaseholds in former Black development areas

• The LUPO is most frequently used to obtain development rights. There are 12 zoning schemes across the NMBM municipal area some of which predate LUPO and others that exist in terms of LUPO – Section 7(1) makes provision for a scheme established ito theTownships Ordinance to be deemed a scheme ito of LUPO

• LUPO makes provision for areas established in terms of Ordinance 33 of 1934 to be further dealt with, within its own provisions

• Only one area was established in terms of LeFTEA which is not widely used in the two metros

• The DFA is not as widely used as the LUPO and also not specifically for the purposesintended by the Act


KEY FINDINGS: LEGISLATION IN TRADITIONAL AREAS

• Legislation applicable in traditional areas of old Transkei and Ciskei

1927 The Black Administration Act, Act

No.38To provide for the amendment of regulations to govern the administration of the former South African Development Trust land situated outside a township.

1934 Townships Ordinances, No. 33 Regulate township establishment and land use in old ‘white’ Transkei areas

1987 Ciskei Land Use Regulations Act, Act No. 15

To provide for land-use planning control and control of use rights, the subdivision of land and the removal of restrictions

1990 (The Ciskei) Township Amendment Decree, No.44

To amend Proclamation R293 of 1962 and to repeal the Townships Amendment Act, 1984 and the Townships Amendment Act, 1987

1993 The Ciskei Township Amendment Decree, No. 17

Passed with the intention of further managing land use


KEY FINDINGS: LEGISLATION IN TRADITIONAL AREAS• Legislation applicable in traditional areas of old Transkei and Ciskei

1993 The Ciskei Township Amendment Decree, No. 17 Passed with the intention of further managing land use

1995 The Land Administration Act, Act No. 2, as amended, including delegations approved to the Premier of the Eastern Cape by the Minister of Land Affairs in respect of:Regulations governing the Granting of LeaseholdUpgrading of Land Tenure Rights Act, No.112 of 1991Proclamation 174 of 1921 (Transkei Commonage)Proclamation R.26 of 1936: Location regulations: Unsurveyed districts: Transkeian territoriesCiskei Townships Regulations: proclamation R.293 of 1962Ciskei Land Regulations Act, No. 14 of 1982

To provide for the delegation of powers and the assignment of the administration of laws regarding land matters to the provinces; to provide for the creation of uniform land legislation; and to provide for matters incidental thereto. Regulations made in terms of the Black Communities Development Act, Act No.4 of 1984To provide for the upgrading and conversion into ownership of certain rights granted in respect of land.To provide for granting of permissions to occupy land on the commonage in the former Transkei areaTo provide for permissions to occupy various sites in certain districts in the former TranskeiThis proclamation was enacted in terms of section 25 of the Black Administration Act, Act No. 38 of 1927 and provides for the administration and control of townships. To provide for the continued application and adaptation and modification of the provisions of Proclamation R.188 of 1969 in the former area of Ciskei.

1997 Eastern Cape Regulation of Development in Rural Areas, Act No.8

Stripped traditional authorities in the Eastern Cape of their development duties as prescribed in the Bantu Authorities Act as amended. These include the allocation of land (Ntsebeza, 1999).


KEY FINDINGS: TRADITIONAL AREAS (CONTINUED)

• In the Ciskei, the Land Use Regulations Act 15 of 1987 is still the applicable legislation today

• In the Transkei, the Townships Ordinance 33 of 1934 still applies today

• Laws on land use and land administration were conflated in the old Ciskei and Transkei in the apartheid era and, for historical reasons, continued in this fashion

• Customary law is still often used in the Transkei / Ciskei and hence planning laws are often overlooked as there is a disjuncture between the two

• Planning law has to do with protecting private property rights and not necessarily the land / land use rights of everyone which is problematic in traditional areas and goes againstthe concept of ‘Ubuntu’


KEY FINDINGS: NATIONAL LEGISLATION IMPACTING ON PLANNING

• There are at least six pieces of national legislation, among others, impacting on planning legislation

1967 Removal of Restrictions Act, No. 84

1970 Subdivision of Agricultural Land, No. 70

1998 National Environmental Management Act, No. 107

1999 Heritage Resources Act, No. 25

2000 Municipal Systems Act, No. 32

2002 Mineral and Petroleum Resources Development Act, No. 28

• Are there many other obvious / frequently used ones that need to be added?


KEY FINDINGS: NATIONAL PLANNING (CONTINUED)

• The RoRA is a big show stopper to land use applications in terms of time / cost because no land use application may be granted which breaches the terms of a restrictive condition of title. All appeals in terms of RoRA go the PAB which adds to delays

• Confusion arises as to whether the MSA can have an overriding effect over LUPO if there are inconsistencies between the intent of SDF and land use applications submitted in terms of LUPO (or any other planning legislation for that matter)

• Forward planning documents such as SDFs and policies are generally inadequately co-ordinated with infrastructure planning strategies even though they are legally obligedto be aligned

• Decision making in terms of national laws largely precedes land use regulatory decisions


KEY FINDINGS: LEGISLATION SUMMARY

• In the Eastern Cape there are a considerable number of planning laws that are either applicable in different parts of the Province, or represent parallel routes to development

• The laws have also spawned land use management instruments such as zoning schemes of different standards and responsible authorities

• Planning and development does not only have to comply with the multitude of laws but must also accommodate requirements of sector laws at national and provincial sphere (e.g. NEMA)

• At the same time, there are many other laws that intersect with traditional areas’ contexts but fall officially outside of the Eastern Cape’s boundaries

• There was an attempt at law reform in the province in early 2000s however, this process was never taken through to completion for various reasons


KEY FINDINGS: PROVINCIAL PERFORMANCE

• The time taken from submission to getting a decision varies on average between 4 and 15 months

• In 2010 the Province received 303 applications of which 58 were appeals in terms ofLUPO (Note: the province has 11 planning personnel of whom 5 are in training / have just

qualified)

• Rezonings are the main type of applications appealed

• Main reasons for delays in processing applications at provincial level:• Incomplete applications• Delays in responses from applicant• Delays in responses from municipality• Staff shortages


KEY FINDINGS: INSTITUTIONAL

• There are differences among different laws in terms of submission requirements and responsibilities assumed by different Competent Authorities (LUPO, DFA, LeFTEA and Traditional Areas’ legislation)

• There are clear differences in appeal processes between different laws e.g. LUPO and DFA

• Planning law enforcement is a municipal responsibility in terms of LUPO

• There are tensions created by different laws applying to different authorities. For example, liquor licenses are issued in contravention of zoning laws because the provincial government

administers liquor licenses while local government is responsible for land use and zoning. This makes enforcement of planning legislation very difficult.


KEY FINDINGS : STAKEHOLDER VIEWS

What works well?•The structure and procedures of LUPO work well for both applicants and officials

•The procedural steps from submission to decision and appeals processes are clear and familiar in LUPO

What does not work so well?

•The LUPO procedure has been impeded by laws such as the RoRA, NEMA, etc. as their different procedures work in sequence not in parallel

•Delegations from province to LMs are not effective

•Different rights of appeal are available under different legislation (NEMA, HRA and LUPO). Three different departments are involved resulting in more than one decision affecting planning outcome

•The BCDA has been repealed but certain regulations have been retained which could be absorbed into new planning legislation and streamline planning legislation in this way


KEY FINDINGS (CONTINUED): STAKEHOLDER VIEWS

What does not work so well? (continued)

• LM’s role in respect of enforcement is unclear in terms of the DFA and where it is clear, there are not sufficient resources to implement enforcement

• Planning applications can be prepared by anyone, not necessarily a registered planner – applications are therefore often weak and badly prepared

• The calculations for the amount which the creditor (LM) is entitled to impose on the debtor(applicant / developer) in terms of section 42 of LUPO are not defined / prescribed in law – This should not be discretionary but determined in law



What needs to be changed?

• The PSDP should be used as a mechanism to provide norms and standards and the LM’s SDF should provide land use management guidelines which can filter down through the scales to zoning which can take the form of a by-law / LUM scheme

• A new provincial law should address planning norms and standards in respect of the following:• Delegations in respect of who does what and under what competencies and authority• Clarity of planning processes and procedures• The simplification of land use management schemes• Planning policy statements which can be more detailed plans in the hierarchy at local area

planning level• The number of planners prescribed in respect of the number of applications that are assessed

per annum and a mechanism for review from time to time• Emphasize mentorship particularly in municipalities that have very few experienced planners or

twin these to where resources are located within a province



What needs to be changed? (continued)

• A new provincial law should permit LMs to have maximum autonomy on spatial planning and land use management

• Ideally there should be a single land use application assessment by the LM but external oversight must be allowed for

• A new provincial law should make it obligatory for public infrastructure development programmes to be directly linked to funding sources and concrete commitments in terms of time frames

• Enforcement should be defined and interpreted as a decision deemed by a LM

• Pre-application discussions can happen in principle but must NOT be determined in legal procedure

• There should be a single responsibility at LM level from submission to decision which means that the current appeal mechanism must be reviewed

• There is no doubt inconsistency in the way that planning law is applied presently therefore new provincial laws must be consistent throughout the 9 provinces in South Africa



What needs to be changed? (continued)

• New provincial law should focus on the collective and public aspects of making settlement

• New provincial law should promote collaboration in a manner that it begins to consider how new common meaning unfolds in respect of livelihoods, common pool resource management and the creation of livelihood zones focusing on unique characteristics and landscape assets of each zone

• A new provincial law needs to seek a balanced approach between rural and urban and take account of the ways that people navigate their day to day existences

• A new law cannot be a one size fits all and must therefore understand how people themselves make settlement and develop codes that are appropriate for different contexts

• Planning at national level and all other levels must seek to address the apartheid spatial legacy of the past and ensure that future challenges such as sustainable ways of creating settlement are not only entrenched in law but also monitored and evaluated on a consistent basis


OVERVIEW OF IMPLICATIONS FOR PROVINCIAL LEGISLATION

• Existing provincial planning legislation is structurally unable to address the manner in which customary law is practiced. It is critical for new provincial legislation to address this through a system that embraces the way that local traditions address settlement making

• This may mean that new legislation should consider people-centred participation processes and a rethinking of making boundaries based on inappropriate freehold title / individual erven which have implications for the way one considers the relationship between planning, tenure / title as well as the existing system of cadastral registrations

• The roles, powers and functions assigned to local government in respect of land administration in traditional areas post-apartheid brought into being the separation of powers concept which conflicts directly with the single authority structures that existed in the past

• With planning clearly being a local competency, it means that a new provincial law has to carefully consider the question of resources for LM’s to fulfill their roles without compromising the environment

• The challenges of climate change and other uncertainties that prevail in the environment require flexibility thus requiring flexibility in planning law as well


OVERVIEW OF IMPLICATIONS FOR PROVINCIAL LEGISLATION

• Because laws are generally technical and absolute in instances, the question needs to be raised as to whether planning legislation is the place to govern uncertainty?

• While the provincial view holds that the DFA is more appropriate to deal with planning at a level of principle (and particularly the principle of sustainability), the hubs hold the view that LUPO works well procedurally and from a planning process point of view

• The demands on the planning regulatory environment by other associated legislation such as NEMA, exacerbates the practice and implementation of planning laws even further which results in fragmentation both spatially and institutionally

• The law reform process in the Eastern Cape was not followed through as a result of lack of capacity, uncertain guidance from national level planning authorities and competency confusion among different spheres of government as well as the difficulty in incorporating traditional areas’ planning into a new unified planning law for the entire province.

• Appeal processes are generally long, cumbersome, expensive and too open-ended for land use decisions to be meaningfully and timeously taken and implemented


THANK YOU!

Documents

Eastern Cape Province RESEARCH FINDINGS 21 July 2011 Port Elizabeth Provincial Land Use Legislative Reform