1. Spatial Planning and Land Use Management Bill (the “Bill”) CITY OF TSHWANE PRESENTED BY: Nicolene Le Roux & Malie van der Vyver DATE: 22 August 2012

2. Introduction City of Tshwane welcomes the opportunity to provide input on the content of the Bill Presentation limited to key issues – not a substitution of the detailed comments provided The detailed comments should also be looked at in the context of the different version and to what extent they were addressed in this particular version.

3. City of Tshwane – Context and Interest Biggest Local Authority geographically in the Southern hemisphere Impact on economic development locally, within the Province and Nationally National and International investment – car manufacturing industry, Toyota, Nestle etc. In a position to support development that create job opportunities In turn provide infrastructure, housing etc. Regulatory systems that support investment, promote community development and participation aimed at service delivery

4. Background and Context of the comments provided Acknowledge the need for national legislation on land use management – framework legislation Constitutional framework and parameters set by Constitutional Court Challenges that are experienced on an operational and service delivery level Highlight key issues that the Bill addresses

5. Constitutional framework City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & Others (CCT89/09 [2010} Judgement provided two options – Amendment of the DFA or drafting or new legislation Rationale for drafting new legislation instead of amending the DFA Elected to draft new legislation This legislation not in a constitutional vacuum Principles that were clarified through the constitutional judgement

6. Constitutional Framework Municipal planning– Exclusive competence of local government Policies within the local authority are to be honoured and adhered to Parallel systems of land use management - “is a recipe for chaos” Interference by provinces into the day to day operations of local government relating to planning, budgetary and infrastructure services cannot be tolerated Invalidity of Chapter 5 & 6 of DFA – cannot beresuscitated Focus of Constitutional judgement was not dealing with applications but with principle of power of decision making

7. 1.Consultation Process Importance and impact on the Bill requires meaningful consultation with local government Consultation process – did not address key issues and concerns raised by local government No feedback or rationale for dealing with the comments that were given at various instances –the evolution of the latest version No alignment of workshop discussions and commitments given with the latest version of the Bill.

8. 2. Transitional Arrangements Section 60(1) - that offends the constitutional principles outlined above the most. This section seeks to resuscitate the DFA through the Bill to finalise applications brought in terms of the DFA The City of Tshwane and some of the other metropolitan municipalities have suggested an alternative i.e. that “all reference to a Development Tribunal, DO or Registrar be reference to the local authority”- cure unconstitutionality This was accepted whole heartedly at the workshops held but did not make its appearance in the Bill The Bill can and should be rendered unconstitutional on this provision alone.

9. 3. Schedule 1 – Provincial Legislation Bill does not adequately recognize the power of local authorities to legislate on municipal planning matters Legislative and Executive authority in relation to local government matters - Part B of schedule 4 and 5 of Constitution should be recognised Schedule 1 of the Bill sets out the issues to be dealt with in in provincial legislation Grants vast powers to provinces to legislate on municipal planning - Clauses (c), (f), (g), (i)-(q) & (r-z) Provinces may impede and interfere with ability and right to exercise its power or functions – May render Bill subject to attack on constitutionality

10. 4. Legislating on matters that are contained in other legislation 4.1 Establishment of Municipal Tribunals There are a number of matters that are governed by existing national legislation which the Bill seeks to legislate on. The constitution of Municipal Tribunals – The Municipal Structures Act, 1998 and Municipal Systems Act, 2000 Both of the above pieces of national legislation provides for a institutional arrangements for a local authority to deal with municipal planning.

11. 4. Legislating on matters that are contained in other legislation (continues) Provides for the necessary flexibility that will allow local authorities to, co-opt external membership, allow for political representation, technical representation etc. Similarly any system of delegations to deal with decisions are covered by this legislation. 4.2 Spatial Development Frameworks – local government The IDP and SDF’s for local government finds is birth in the provisions of the MSA. It is incomprehensive why it is necessary to legislate on the same for local authorities in the Bill

12. 4. Legislating on matters that are contained in other legislation (continues) What can and should be legislated is the synchronising of planning initiatives at national, provincial and local level – and dealing with conflict between policies A hopelessly inadequate provision [section 22(2)] is included which states that a decision maker may department from a Municipal SDF if: “(a) site specific circumstances justify a departure from the provisions of such Municipal SDF; or (b) the application of the Municipal SDF under particular circumstances will lead to illogical or unintended results”

13. 4. Legislating on matters that are contained in other legislation (continues) This provision is an invitation to any litigious community to drag any development application through years of expensive litigation In who’s opinion shall it lead to “illogical and unintended results”. On the other hand the MSA specifically states that the municipality’s executive authority is “bound by the provisions of the IDP” this includes the SDF. The creation of another layer of planning bureaucracy will impede the local authority’s ability to deliver on its constitutional mandate.

14. 4. Legislating on matters that are contained in other legislation (continues) The constitution deals with assistance and to local government in the case of non delivery – which can and should include the drafting and adoption of IDP’s and SDF’s for a local authority. Intergovernmental Relations Framework Act, 13 of 2005 deals with the manner conflict resolution between the different levels of government. We do not believe that it is necessary to legislate specifically for the assistance and support in the Bill if this is already outlined in other legislation. The threshold requirement being that support and assistance is based where it is required and cannot be equated with interference.

15. 5.Principles, policies, directives and national norms & standards The current legislative frameworks within which planning decisions are being taken creates a maze of principles, guidelines and policies all of which decision making authorities have to comply with. It is with anticipation that local authorities awaited the rationalisation of policies, principles and guidelines. At first blush it appears that it is the intention of the Bill to try and simplify and implement uniform policies and principles and guidelines. However, on closer analysis the bill contributes to the chaos by the introduction of a further set of guidelines in the form of “norms and standards” to be set by the Minister. Keeping in mind that the DFA principles shall remain and that provincial legislation will seek to do the same thing.

16. 6. New additions & amendments to this version of the Bill 6.1 Parallel processes “a recipe for chaos” Section 26(4) states that “A permitted land use may, despite any other law to the contrary, be changed with the approval of a Municipal Planning Tribunal in terms of this Act.” This provision is problematic. It provides for the same parallel process which the Supreme Court of Appeal found to be an untenable situation. We understand the necessity where no legislation is in place in certain provinces for the SPLUMB to be capable of being used – however this can simply not be the situation in provinces where provincial legislation is in place. Developers shall be in a position to “cherry pick” legislation.

17. 6. New additions & amendments to this version of the Bill 6.2 Inclusion of definition of an “erf” The intention of the legislation should ensure security of tenure for previously disadvantaged citizens. A legacy of “apartheids” legislation was the so called “second rate ownerships” e.g. deeds of grants, leaseholds etc. all of which did not give freehold ownership (i.e. registered ownership) but was based on general plans and diagrams. An erf should be a registered lot, plot or stand in the Deeds Registries Act.

18. 7. Specific issues that have not been dealt with 7.1Appeal procedure Although various attempts were made to put an appeal procedure in place, the current version still does not address the substance of requiring an appeal procedure or body. The City of Tshwane has suggested that the appeal procedure as contained in the current draft Gauteng Planning and Development Act be followed. This allows for an inter-municipal appeal tribunal. The decision making therefore still vests with local government but allows for an objective practical perspective.

19. 7. Specific issues that have not been dealt with 7.2Engineering Services The SPLUMB version B-2012 is somewhat amended from the version dated May 2012, and that the new version does not have a Chapter 7 on Infrastructure Provision (now replaced by a single clause, 49). However, the definitions have not changed, which are likely to impact on actual implementation. Hence previous comments as submitted in May 2012 remain applicable.

20. 7. Specific issues that have not been dealt with 7.3Rationalization of other National Legislation and “apartheids legislation” Local authority is faced with various developments and townships that were established by previous legislation The only legislation to be repealed is the Removal of Restrictions Act, the DFA and the Physical Planning Act. This Bill should have assisted with not only the manner in which these developments are dealt with but also to provide recognition for these developments in terms of the new legislation.

21. 7. Specific issues that have not been dealt with Examples are The Black (Urban Areas) Consolidation Act, 25 of 1945 read with Notice 1036 of 1986. The Black Communities Development Act 4 of 1984 Proclamation R293 of 1962 which was done under the Black Administration Act (Regulation for the Administration and Control of Townships in Bantu Areas): versions of which are still applicable in some former homeland areas; Section 6A of the Prevention of Illegal Squatting Act; and Trust Townships (also historically in homeland areas) Less Formal Township Establishment Act, Act 70 of 1970,

22. 8.CONCLUSION Although there are a number of key issues that were not addressed by the Bill, we do not believe that they cannot be overcome with proper engagement with local government We reiterate that we acknowledge the need for new land use legislation, the speed at which it has to be enacted in view of the constitutional judgement. However, this cannot be done at the cost of the operations within the municipalities

23. Questions THANK YOU