Provincial Land Use Provincial Land Use Legislative ReformLegislative Reform
KwaZulu-NatalKwaZulu-Natal
Atelier von RiesenAtelier von RiesenJuly 2011July 2011
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
77Atelier von Riesen July 2011Atelier von Riesen July 2011
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
88Atelier von Riesen July 2011Atelier von Riesen July 2011
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?
99Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1010Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1111Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1313Atelier von Riesen July 2011Atelier von Riesen July 2011
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)
1414Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1616Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1717Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1818Atelier von Riesen July 2011Atelier von Riesen July 2011
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
1919Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2020Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2121Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2222Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2323Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2424Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2525Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2626Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2727Atelier von Riesen July 2011Atelier von Riesen July 2011
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
2828Atelier von Riesen July 2011Atelier von Riesen July 2011
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.
2929Atelier von Riesen July 2011Atelier von Riesen July 2011
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
3030Atelier von Riesen July 2011Atelier von Riesen July 2011
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
3131Atelier von Riesen July 2011Atelier von Riesen July 2011
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
3232Atelier von Riesen July 2011Atelier von Riesen July 2011
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
3333Atelier von Riesen July 2011Atelier von Riesen July 2011
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