Provincial Land Use Legislative Reform KwaZulu-Natal Atelier von Riesen July 2011

Provincial Land Use Provincial Land Use Legislative ReformLegislative Reform

KwaZulu-NatalKwaZulu-Natal

Atelier von RiesenAtelier von RiesenJuly 2011July 2011

Study AreaStudy Area

Study AreaStudy Area

1 Metro, 10 District Municipalities and 50 Local Municipalities

Focus MunicipalitiesFocus Municipalities

eThekwini Metro and uMgungundlovo District -uMngeni

Focus MunicipalitiesFocus Municipalities

Msunduzi Municipality – Pietermaritzburg and surrounds

66Atelier von Riesen July 2011Atelier von Riesen July 2011

Project Aims Project Aims Understand the historical trajectory of provincial Understand the historical trajectory of provincial

legislation – where have we come from?legislation – where have we come from? Understand the current provincial legislative terrain – Understand the current provincial legislative terrain –

where are we now?where are we now? Understand elements of future legislative review – Understand elements of future legislative review –

where do we need to go?where do we need to go? How would this relate to a provincial legislative How would this relate to a provincial legislative

framework – lessons from the PDA framework – lessons from the PDA


Project MethodologyProject Methodology Understand the context within which the PDA has been introduced Understand the context within which the PDA has been introduced Understand contemporary developments – SPLUMB and PDA Understand contemporary developments – SPLUMB and PDA

review processreview process Literature reviewLiterature review Detailed assessment of the PDADetailed assessment of the PDA Telephonic and Face to Face Interviews:- Telephonic and Face to Face Interviews:-

Officials from national department of Rural Development and Officials from national department of Rural Development and Land Reform and provincial COGTA Land Reform and provincial COGTA

Officials from sector departments - DAEAOfficials from sector departments - DAEA Legal practitioners Legal practitioners Planning practitionersPlanning practitioners Key SACN municipalities eThekwini and MsunduziKey SACN municipalities eThekwini and Msunduzi District municipality – UMngeni - District Planning Shared District municipality – UMngeni - District Planning Shared

Services Project Services Project


InterviewsInterviews During interviews explore the PDA in regard to:-During interviews explore the PDA in regard to:-

What works well? (planning and other related legislation)

What is not working and why? How the new provincial law is performing through a

review of quantitative data (how many applications; what type of applications; how many appeals, etc.)

What needs to be changed in a review of the PDA Consider the KZN PDA experience and use lessons

from practice to inform other provincial (or national) legal initiatives?


Interviews Additional QuestionsInterviews Additional Questions Need for clarity about constitutional issues and planning

roles within the different spheres of governance Debated the impact of planning legal frameworks on the

profession Explored the nature of legislation re enabling or

prescriptive framework or a comprehensive law – variants of these elements


Interviews Additional QuestionsInterviews Additional Questions Definitions – what is municipal planning – DFA

judgement Is there a need for a fast track option for housing

developments, provision of land or strategic projects? Discussed the principle/institutional placing of the

appeals process Considered the KwaZulu-Natal Land Use Management

Systems (LUMS) model in light of the KZ-N PDA


Legislative Context - Starting PointLegislative Context - Starting Point National Constitution – overarching framework in which National Constitution – overarching framework in which

all policies and statues are subsequently writtenall policies and statues are subsequently written Schedules 4 and 5 dealing with the extent of provincial Schedules 4 and 5 dealing with the extent of provincial

and municipal planning and municipal planning Understanding that development planning is impacted Understanding that development planning is impacted

upon at all levels by legal policies, statutes and upon at all levels by legal policies, statutes and regulations regulations

Specific land development /environmental/housing/Specific land development /environmental/housing/planning laws – national and provincial levelplanning laws – national and provincial level

Local by-laws and Land Use/Planning Schemes (TPS’s) Local by-laws and Land Use/Planning Schemes (TPS’s) also impact on developmentalso impact on development

Date Act/Statute

19351935 Sea Shore Act (Act No. 21 of 1935) partially retained /Admiralty Reserve – historical legacy

19371937 Deeds Registry Act (Act No.47 of 1937)

19671967 Removal of Restrictions Act, (Act No. 84 of 1967)

19701970 Sub-Division of Agricultural Land Act (Act No. 70 of 1970)

19881988 National Water Act (Act No. 36 of 1988)National Water Act (Act No. 36 of 1988)

19881988 National Environmental Management Act (Act No. 107 of 1988)

19971997 Land Survey Act (Act No. 8 of 1997)

20002000 Municipal Systems Act (Act No. 32 of 2000)– IDP’s/SDF’s

20002000 Promotion of Administrative Justice Act (Act No. 3 of 2000)

20082008 NEMA: Integrated Coastal Management Act (Act No 24 of 2008)

Other Key Legislation - Land Use Other Key Legislation - Land Use DevelopmentDevelopment


Current Legislative Terrain Current Legislative Terrain Physical Planning Act, Act No. 125 of 1991

(intended to be repealed by National Land Use Bill) not used in KZ-N

Development Facilitation Act (Act No. 67 of 1995) repealed but applications being processed

Less Formal Townships Establishment Act (Act No. 113 of 1991)

Remnants of the Natal Town Planning Ordinance No 27 of 1949

KwaZulu-Natal Planning and Development Act (Act No. 6 of 2008 )

Ingonyama Trust Act, (Act No. 3 of 1994) and Ingonyama Trust Amendment Act, (Act No. 9 of 1997)


Provincial Legislation Review OutputsProvincial Legislation Review Outputs

Province has been engaged in a review process Province has been engaged in a review process for a decadefor a decade

Trying to chart the road to a new unitary Trying to chart the road to a new unitary provincial lawprovincial lawKwaZulu-Natal Planning and Development Act (Act KwaZulu-Natal Planning and Development Act (Act

No. 5 of 1998)No. 5 of 1998) Regulations not enacted Regulations not enactedKwaZulu-Natal Rationalisation of Planning and KwaZulu-Natal Rationalisation of Planning and

Development Act (Act No. 2 of 2008) Development Act (Act No. 2 of 2008) KwaZulu-Natal Planning and Development Act (Act KwaZulu-Natal Planning and Development Act (Act

No. 6 of 2008)No. 6 of 2008)

Performance of the Provincial Acts Performance of the Provincial Acts including the PDA including the PDA

LAND USE APPLICATIONSArea Rezoning Special

ConsentSubdivisions Relaxations Pre-Scrutiny

Umhlanga 6 14 3 107 0

Durban 8 16 8 526 700

Illovo 3 15 6 91 315

Pinetown 10 35 12 232 609

Hillcrest 3 5 6 32 61

Total Number of Applications dealt with by municipality

30 85 35 988 1685

eThekwinieThekwini


MsunduziMsunduziTen outstanding appeal application lodged in terms Ten outstanding appeal application lodged in terms

of the Ordinance;of the Ordinance;Approximately four DFA applications still for Approximately four DFA applications still for

processing - some of which involve large processing - some of which involve large developments;developments;

Twenty one sub division and consolidation Twenty one sub division and consolidation applications;applications;

Six outstanding applications for minor subdivisions Six outstanding applications for minor subdivisions lodged in terms of the Extended Powers Ordinance; lodged in terms of the Extended Powers Ordinance; and,and,

Five scheme applications in terms of the PDAFive scheme applications in terms of the PDA

Performance of the Provincial Acts Performance of the Provincial Acts including the PDA including the PDA


Performance of the PDAPerformance of the PDA

uMgungundlovo District - uMngeni - uMngeni 49 applications in 2010;49 applications in 2010;25 applications in 2011;25 applications in 2011;2 or 3 were consolidated applications – included 2 or 3 were consolidated applications – included

consolidation/subdivision/rezoning;consolidation/subdivision/rezoning;13 have been refused;13 have been refused;No applications have been declined;No applications have been declined;No full township applications – although these are No full township applications – although these are

anticipated; and,anticipated; and,No statistics on withdrawalsNo statistics on withdrawals


Performance of the PDA Performance of the PDA

Key challenge is the time limits of the actKey challenge is the time limits of the act eThekwini has introduced the pre submission option eThekwini has introduced the pre submission option

where the clock is not tickingwhere the clock is not tickingMsunduzi is falling behind in terms of processing Msunduzi is falling behind in terms of processing

applications on time – financial and institutional applications on time – financial and institutional conditionsconditions

UMngeni are managing but still encounter difficultyUMngeni are managing but still encounter difficultyAll have concerns with sector department inputsAll have concerns with sector department inputs

Issue of what constitutes a complete applicationIssue of what constitutes a complete application Cannot process appeal applications although Cannot process appeal applications although

these are being preparedthese are being prepared


What works wellWhat works well Single unitary approach to address past complexity Single unitary approach to address past complexity Direction for municipal level planning regarding Direction for municipal level planning regarding

schemes, land development applications and schemes, land development applications and proceduresprocedures

Option for a comprehensive application allowing for a Option for a comprehensive application allowing for a number of development issues to be addressednumber of development issues to be addressed

Provision for removal of restrictive conditions in the Provision for removal of restrictive conditions in the comprehensive applicationcomprehensive application

Specific time limits related to the processing of Specific time limits related to the processing of applications once it is acceptedapplications once it is accepted


What works wellWhat works well Removal of restrictive conditions as part of the Removal of restrictive conditions as part of the

operation of the PDA and in the applicationsoperation of the PDA and in the applications LUMS model – which is being reviewed seems to allow LUMS model – which is being reviewed seems to allow

sufficient flexibility for municipalities to create a suite of sufficient flexibility for municipalities to create a suite of plans to manage developmentplans to manage development

Ongoing monitoring and evaluation Ongoing monitoring and evaluation Training through workshops and input from good Training through workshops and input from good

practicepractice


What is not working What is not working Key principles – need and desirability/issues of Key principles – need and desirability/issues of

amenity/impactamenity/impact One application procedure fits all – no distinction One application procedure fits all – no distinction

made in regard to impact – a tuck shop and a made in regard to impact – a tuck shop and a regional shopping centre follow the same routeregional shopping centre follow the same route

100m notification requirement of the PDA – a 100m notification requirement of the PDA – a tavern where there are informal tavern where there are informal residents/tenants/owners?residents/tenants/owners?

Full application for minor subdivisions even where Full application for minor subdivisions even where there is conformity with the schemethere is conformity with the scheme


What is not working What is not working Increased time for processing consolidation/ Increased time for processing consolidation/

subdivisions from six weeks to three months – PDA subdivisions from six weeks to three months – PDA undermining the cadastral system unintentionallyundermining the cadastral system unintentionally

Duplication of service provider inputs into Duplication of service provider inputs into environmental and land development applicationsenvironmental and land development applications

No time limits for sector departmental inputs into pre No time limits for sector departmental inputs into pre submission documents Increased costs of applications submission documents Increased costs of applications

Advertising costs R 4-5 000 and for small developments Advertising costs R 4-5 000 and for small developments Advertising procedures – act makes this the municipality Advertising procedures – act makes this the municipality

responsibility but in practice applicants are undertaking responsibility but in practice applicants are undertaking this taskthis task


What is not workingWhat is not working Lack of finance to pay back applicants for advertising Lack of finance to pay back applicants for advertising Lack of understanding in sector departments about Lack of understanding in sector departments about

the requirement of the PDAthe requirement of the PDA Lack of Special Consent optionsLack of Special Consent options Lack of deemed to be approved option Lack of deemed to be approved option Requirements for registered planners to certify Requirements for registered planners to certify

compliance with the PDA – time delays and compliance with the PDA – time delays and institutional capacity institutional capacity

Interface of planning and institutional aspects of the Interface of planning and institutional aspects of the lawlaw

Communication between spheres of governance in Communication between spheres of governance in regard to the PDA – local concerns are not heardregard to the PDA – local concerns are not heard


What is not workingWhat is not working Enforcement aspects of the PDA – perception that the role Enforcement aspects of the PDA – perception that the role

is now more like the Office of Sheriff rather than planningis now more like the Office of Sheriff rather than planning Large developments will pay the fine and still proceed – Large developments will pay the fine and still proceed –

project penalties versus enforcements finesproject penalties versus enforcements fines PDA perceived to stifle small scale development – termed PDA perceived to stifle small scale development – termed

the bread and butter of the planning practitionersthe bread and butter of the planning practitioners Appeals process – lack of clarity due to constitutional Appeals process – lack of clarity due to constitutional

aspects aspects Lack of provincial norms and standardsLack of provincial norms and standards


What needs to be changedWhat needs to be changed Inclusion of clearer definitions re provincial and Inclusion of clearer definitions re provincial and

municipal planningmunicipal planning The definition of municipal planning provided by the The definition of municipal planning provided by the

DFA ConCourt judgment – too narrow DFA ConCourt judgment – too narrow Provision for an option for special consent application Provision for an option for special consent application

similar to the Ordinancesimilar to the Ordinance Reconsideration of advertising requirements for Reconsideration of advertising requirements for

applications – sub division and consolidationapplications – sub division and consolidation Reconsideration of institutional municipal capacity and Reconsideration of institutional municipal capacity and

requirements of the actrequirements of the act Reconsideration of amending conditions of Reconsideration of amending conditions of

establishment as a full applicationestablishment as a full application


What needs to be changedWhat needs to be changed Consideration of deemed to be approved where time Consideration of deemed to be approved where time

limits are not adhered to by municipalities (PDA 1998) limits are not adhered to by municipalities (PDA 1998) 28 days period after approval where there are no 28 days period after approval where there are no

objections – wasting time and moneyobjections – wasting time and money Appeals process – 2 optionsAppeals process – 2 options

Review/Appeal at the Local or District LevelReview/Appeal at the Local or District Level Review/Appeal at the Provincial Level Review/Appeal at the Provincial Level

Inclusion of a fast track procedural option for housing Inclusion of a fast track procedural option for housing and land provision or strategic project – specific criteriaand land provision or strategic project – specific criteria

Clarity about the nature of appeals – recommendation Clarity about the nature of appeals – recommendation versus changing the decisionversus changing the decision


What needs to be changedWhat needs to be changed Role of provincial planning where there are institutional Role of provincial planning where there are institutional

limitations – extension of the DPSS model limitations – extension of the DPSS model Reconsideration of the enforcement requirements wrt Reconsideration of the enforcement requirements wrt

affixing the notice on siteaffixing the notice on site


Principles for Legislative Framework Principles for Legislative Framework or Reviewor Review Enabling or prescriptive legal options Flexible framework or comprehensive law – variants of

these elements Support for enabling framework for legislation – which

would allow provincial law to be aligned with national directives and to guide municipal planning

Comprehensive legal framework - could be an option where there is a lack of institutional capacity or for a prescribed time span

Prescriptive aspects for procedural components of the legal framework – time limits, costs etc.


Other FindingsOther Findings Legal framework should be inclusive and cover areas Legal framework should be inclusive and cover areas

that are excluded - informal areas that are excluded - informal areas Extension of the Scheme into areas previously Extension of the Scheme into areas previously

administered under other legislative frameworks - a administered under other legislative frameworks - a challengechallenge

Local institutional reorganization can impact on the Local institutional reorganization can impact on the implementation of the PDA – Msunduzi and the implementation of the PDA – Msunduzi and the delegation notice delegation notice

Decrease in the number of small applications – Decrease in the number of small applications – perception of increased costs and onerous application perception of increased costs and onerous application requirementsrequirements

Concern that there will be an increase in illegal Concern that there will be an increase in illegal developments – by pass the system developments – by pass the system


Other FindingsOther Findings None of the municipalities were concerned about the None of the municipalities were concerned about the

close of the DFA route perceived as being for close of the DFA route perceived as being for commercial developments/by passing the commercial developments/by passing the municipalities/encouraging leap froggingmunicipalities/encouraging leap frogging

Need for revisiting a single application system with Need for revisiting a single application system with environmental and land use management aspects environmental and land use management aspects coveredcovered

Perception that environmental planning has superseded Perception that environmental planning has superseded land use development in the application/approval land use development in the application/approval systemsystem

Debate re the need for an environmental authorisation Debate re the need for an environmental authorisation or ROD prior to submission of the PDA application or ROD prior to submission of the PDA application


Other FindingsOther Findings Approved Environmental Management Frameworks Approved Environmental Management Frameworks

(EMF) for the municipalities could assist with land use (EMF) for the municipalities could assist with land use management applications – reduce need for ROD’smanagement applications – reduce need for ROD’s

Need for clarity re Act 70 of 70 and adoption of SchemesNeed for clarity re Act 70 of 70 and adoption of Schemes Level of undue political influence in regard to the Level of undue political influence in regard to the

approval of some applications approval of some applications Role of the councilors in decision making process – Role of the councilors in decision making process –

political interference versus representation of the political interference versus representation of the constituency that voted for them constituency that voted for them

Need for a public hearing process for developments that Need for a public hearing process for developments that have large impacthave large impact


ConclusionConclusion

Need a flexible legislative and procedural system that Need a flexible legislative and procedural system that is:-is:- Based on a common vision shared by province and Based on a common vision shared by province and

municipalitiesmunicipalities Clearly defines provincial/municipal planning Clearly defines provincial/municipal planning Includes principles – amenity, need/desirabilityIncludes principles – amenity, need/desirability Provides norms and standardsProvides norms and standards Has prescriptive elements for applications, time periods and Has prescriptive elements for applications, time periods and

institutional aspects institutional aspects Provides clarity on requirements for different application types Provides clarity on requirements for different application types

– based on impact– based on impact Provides for a deemed to be approved optionProvides for a deemed to be approved option


ConclusionConclusion

Provides clarity on sector department inputs – what Provides clarity on sector department inputs – what to do if they do not contributeto do if they do not contribute

Provides clarity on what constitutes a completed Provides clarity on what constitutes a completed applicationapplication

Has reasonable time limits for approvals Has reasonable time limits for approvals Provides certaintyProvides certaintyAllows for an appeals processAllows for an appeals processAddresses institutional diversity and skill Addresses institutional diversity and skill Aligns with the Land Use Management System Aligns with the Land Use Management System

(LUMS) model/framework(LUMS) model/framework

Documents

Provincial Land Use Legislative Reform KwaZulu-Natal Atelier von Riesen July 2011