1. GEMEY ABRAHAMS CONSULTING SACN OFFICES, JOHANNESBURG 1 JUNE 2011 SACN RESPONSE TO THE SPATIAL PLANNING & LAND USE MANAGEMENT BILL

2. OVERVIEW OF DISCUSSION 1.Background to planning law reform in SA since 1994 2.What can a new national planning law do in SA today? 3.Key features of the SPLUMB 4.Going forward 1 June 20112SACN

3. BACKGROUND: THREE OPPORTUNITIES TO CHANGE PLANNING LAW POST-1994 This bill comes at the end of the third major opportunity to reform planning law First opportunity – early/mid-1990s, FEPD, DFA, DPC Second opportunity – around 2000, Systems Act (IDP) and NEMA (EIA regulations) Third opportunity – 2000s, post-2001 White Paper on Spatial Planning & Land Use Management 1 June 20113SACN

4. BACKGROUND: THE ‘DFA CASE’ 2010 Constitutional Court ruling in CoJ v GDT Definition given to ‘municipal planning’ Key chapters of the DFA unconstitutional 2-year deadline set for legislative reform 1 June 20114SACN

5. THE POST-SPLUMB, POST-COJ V GDT ERA No DFA Applications that would have gone via DFA now all to municipalities in terms of Ordinances LeFTEA & Ordinances legally suspect New era provincial laws in 2 provinces only and they’ll need revision to fit SPLUMB Provinces under pressure to make new laws Municipalities under pressure to establish new planning tribunals; and draw up new Schemes. 1 June 20115SACN

6. WHAT CAN A NEW LAW DO? WHAT’S THE POTENTIAL ‘VALUE-ADD’? Clarity as to each sphere of government’s powers and functions Rationalisation of multiplicity of overlapping, contradictory and outdated legislation – to increase efficiency Development of new instruments for new challenges: informal settlements; gated communities; mega events; social housing; land under traditional areas etc Rules that concertedly shift the way the urban (and, less so, rural) land markets work 1 June 20116SACN

7. WHAT CAN A NEW LAW DO? AND WHAT ARE THE CONSTRAINTS? Land use management (and spatial planning) are currently governed by a host of laws: provincial Ordinances, Less Formal Township Establishment Act, R293 (1962), BCDA regulations (1986), homeland laws etc – almost all now to some extent unconstitutional ‘municipal planning’ now is defined but the scope of provincial and national powers remains unclear Provinces have battled to produce their own new planning laws to replace the pre-1994 Ordinances 1 June 20117SACN

8. WHAT CAN A NEW LAW DO? AND THE DIFFICULT CHOICES ARE…? Framework or Comprehensive law Combined spatial planning and land use management or separate laws Detailed integration with other approvals or enabling of local and provincial integration arrangements Uniform system for all land development and all types of area or specific rules for specific circumstances (including fast-tracking for special projects, post-DFA) 1 June 20118SACN

9. THE SPLUMB’S INNOVATIONS Local government the primary point for land use management decision-making, via Municipal Planning Tribunals (clause 31) Restricted grounds for appeal to provincial tribunal (clause 36) Power for national minister to intervene when ‘national interest’ at stake (clause 43) Councilors excluded from land use management decision- making (clause 33) Mandatory national and provincial Spatial Development Frameworks (also Regional SDFs) (chapter 4) Specific requirements for land use management to be inclusive of informal settlements, areas under traditional leadership (clauses 20 and 22) Rule against property value being a factor in land use management decision-making (clause 55) 1 June 2011SACN9

10. KEY FEATURES OF THE SPLUMB: THE CONSTITUTIONAL STARTING POINTS Provincial & National government Concurrent legislative powers on municipal planning, with conflicts resolved in terms of s146 Provinces have exclusive legislative powers on provincial planning (national law on provincial planning only possible where necessary in terms of section 44(2) Local Government Executive power in relation to municipal planning, subject to: regulation by national and provincial law; and overlaps with national and provincial areas of land-use related legislative competence (e.g. environment, agriculture, mining), although these national and provincial laws may not ‘impede’ local government’s powers. Legislative powers in relation to municipal planning By laws… 1 June 201110SACN

11. Schedule 4 (areas of concurrent legislative competence) Schedule 5 (areas of exclusive provincial legislative competence) Part APart BPart APart B EnvironmentMunicipal planningProvincial planning- Regional planning & development --- Urban & rural development --- 1 June 201111 BACKGROUND: THE POWERS AND FUNCTIONS SACN

12. “In summary the SPLUMB must strike a careful balance between maintaining the autonomy of municipalities in controlling and regulating land use, while doing justice to the national government’s interest in providing a framework for municipal planning and the national government’s interest in exercising national powers that impact on land use. In addition, all of this must be done in a manner that also respects the provincial authority to adopt province- specific legislation to regulate a provincial planning framework.” 1 June 2011SACN12 STRIKING A CAREFUL BALANCE

13. KEY FEATURES OF THE SPLUMB: FRAMEWORK OR COMPREHENSIVE? This is framework legislation. It couldn’t be comprehensive legislation without the support of all provinces. It places a large burden on provinces which now have to draft legislation in line with the framework. 1 June 201113SACN

14. KEY FEATURES OF THE SPLUMB: REPEAL OF NATIONAL LAWS Development Facilitation Act Municipalities in DFA-dependent provinces will have to assume a greater administrative &planning load No mechanism given to fill the vacuum left by DFA Removal of Restrictions Act Until provincial law fills the gap, Removal of Restrictions will have to be done via High Court Physical Planning Act Very out of date, but still playing a role Need for transitional measures, rather than simple repeal 1 June 2011SACN14

15. KEY FEATURES OF THE SPLUMB: NON-REPEAL OF NATIONAL LAWS BCDA and BAA regulations again, onus of repealing and replacing these regulations falls on provinces SPLUMB should repeal and guide on replacement Less Formal Township Establishment Act SPLUMB should clearly confirm that LeFTEA is no longer constitutionally sustainable SPLUMB should guide the repeal of LeFTEA and guide the development of similar fast-track mechanisms in new legislation 1 June 2011SACN15

16. KEY FEATURES OF THE SPLUMB: INTEGRATING APPROVALS A voluntary model (clauses 28 & 29) Is this sufficient? What else is feasible? Clause 24(3) and the relationship between the provisions of a LUM Scheme and those of other legislation (e.g. MPDRA, Act 70…) 1 June 2011SACN16

17. KEY FEATURES OF THE SPLUMB: PROVINCIAL & NATIONAL ROLES Provincial appeal powers SPLUMB must clarify relationship between s62 ‘internal appeal’ (Systems Act) and SPLUMB clause 36 appeal to Prov. Pl. Tribunal Clause 36 limits grounds of appeal (are these grounds appropriate/correct/workable?) It is problematic to limit grounds of appeal to PPT through criteria of national interest National intervention The grounds for national intervention are excessively wide and must be tightened 1 June 2011SACN17

18. KEY FEATURES OF THE SPLUMB: DECISION-MAKING CRITERIA SPLUMB decision-making has to be informed by: General Principles in Chapter 2; Norms and Standards (clause 5), which have yet to be formulated; and Muni. SDFs In a context of scarce planning resources – and the need for more predictable decision-making – is it helpful to introduce so many criteria? 1 June 2011SACN18

19. KEY FEATURES OF THE SPLUMB: GEOGRAPHIC SCOPE The SPLUMB makes important progress towards demanding inclusive planning & LUM (for example in informal settlements), but it passes the responsibility for addressing the worst legacy of apartheid-era planning laws to provinces and municipalities, with minimum guidance. 1 June 2011SACN19

20. GOING FORWARD: HOW TO MAKE THE SPLUMB WORK? 1.SPLUMB cannot be allowed to proceed as is, or even with major revision. 2.SPLUMB has to be: a.Fixed; and b.Supplemented with subordinate legislation. 3.In the short term (by June 2012): a.Fix SPLUMB; and b.Develop a DFA/LeFTEA hybrid that is constitutional. 4.In the medium term (by 2014): a.Develop a model provincial SP & LUM law; b.Develop model SP & LUM by laws for different categories of LG; and c.Establish a national SP & LUM Legal Implementation Support Team 1 June 2011SACN20

21. GOING FORWARD: THE PROCESS 1.National government cannot drive this process alone. 2.All three spheres have important roles and must be able to hold each other to account in the law- making. 3.Local government has to be central to planning law reform initiatives because of ‘municipal planning’. 4.Provinces must be part of the process to ensure alignment of new provincial legislation with national framework. 1 June 2011SACN21