DRDLR RESPONSE TO COMMENTS ON THE SPATIAL PLANNING AND LAND USE MANAGEMENT BILL B14 - 2012 National Assembly Portfolio Committee on Rural Development & Land Reform 29 August 2012

APPEALS DRDLR RESPONSE ISSUES DRDLR RESPONSE APPEALS Is the proposed internal Appeal Mechanism in the current version of the Bill adequate? This section requires review. The department will make a submission with recommended changes. While the provisions of Section 62 of the MSA with regard to the appeal rights of an applicant will remain in place, the Bill makes a wider provision for aggrieved parties (which may include applicants, objectors or other persons whose rights are affected) to appeal against the decisions of Municipal Planning Tribunals [Section 51]. This provision constitutes a superior appeal mechanism than Section 62 of the MSA. Can the Executive Authority take decision on appeals? Is there a role for provinces in appeals? Should there be more than one level of appeals? Options for appeal mechanisms? May still resort to MSA Sec 62 appeal. Are appeal procedures available to party aggrieved by adoption of municipal SDF? Does not appear to exclude MSA Sec 62 appeals No provision for appeal to external/independent body. S 51 (3) negates the right of appeal.

DECISION MAKING BODIES ISSUES DRDLR RESPONSE DECISION MAKING BODIES Can Councillors be excluded from decision making on Land Development? Bill makes specific provisions for a body to deal with municipal decisions on development applications. This is an administrative function which occurs within the policy framework established by Councillors (SDF) and is therefore best dealt with by officials/appointees of Council. The Department has explained the provisions regarding the composition, powers and functions of the Municipal Planning Tribunal in public engagements. The exclusion of Councillors is contentious but the Department supports this approach. Provisions permitting external members require review. Provisions of the Bill preventing elected officials from serving on municipal planning tribunals are inconsistent with section 160 of the Constitution. Exclusion of Councillors should be dealt with in terms of delegation process. What role can Councillors play in Land Development? What roles can traditional leaders play in Land Development and Land Use Management? Establishment of municipal decision making bodies already dealt with in MSA. Municipalities should have discretion over composition of Municipal Planning Tribunal. Inclusion of suitably qualified members of the public on Municipal Planning Tribunal is problematic. Bill must be specific on the expertise required on the tribunal. Who will be responsible for monitoring tribunals? Tribunals do not have the competence to adjudicate applications dealing with agricultural land Planners on Tribunal should be registered Tribunals should include NGOs Tribunals should not include external members

REPEAL OF LAWS DRDLR RESPONSE ISSUES DRDLR RESPONSE REPEAL OF LAWS Bill does not do enough to transform the current spatial planning and land use management regulatory environment. The Bill provides a consistent national framework within which provinces and municipalities will be able to legislate for and execute spatial planning and land use management within their respective spheres. The Bill is not able to repeal other national legislation that is not within the purview of the Department of Rural Development and Land Reform. This rationalisation process will be achieved through provincial legislation. The Bill is also not able to repeal provincial legislation (e.g. provincial ordinances) as planning is a concurrent national and provincial competence. Legislative vacuum until new provincial laws enacted and ordinances repealed – include model provincial legislation and by-laws for municipalities. Need to identify all national and provincial legislation dealing with spatial planning and land use management and how legislation will be repealed.

TRANSITIONAL PROVISIONS ISSUES DRDLR RESPONSE TRANSITIONAL PROVISIONS Detailed transitional provisions are required. The Department has a current project to put in place Comprehensive Guidelines for Interim and transitional Measures for SPLUMB. Department intends to propose amendments to the transitional provisions in the Bill Finalisation of DFA applications in terms of DFA problematic – should be in terms of SPLUMA Existing rights need to remain for a longer period – at least 15 years

INTERFACE WITH PROVINCIAL LEGISLATION ISSUES DRDLR RESPONSE INTERFACE WITH PROVINCIAL LEGISLATION There is no linking mechanism in the Bill to tie it to respective provincial legislation, other than as suggested in Schedule 1 Sections 4, 5, 9 and 10 of the Bill deal with provincial legislation. Provinces have concurrent powers to regulate matters provided for in Schedules 4 and 5 to the Constitution. The National Act will provide a framework within which Provinces will create legislation that will respond to specific provincial requirements and circumstances. In the interim period while Provinces are preparing their legislation, municipalities will comply directly with the National Act. Eventually, regulation of municipal spatial planning and land use management will occur through Provincial Acts, which will flow from and be consistent with the National Spatial Planning and Land Use Management Act. Bill provides for municipal SDFs as part of municipal planning; however MSDFs will always have regional and/or provincial effects. This unduly complicates the planning regime “Provincial interest” is still unclear. Provincial interest is undefined and may very well encroach on municipal planning. Bill, once enacted, should only be brought into operation after legislation has been enacted in each province. Need standardised regulation of content and procedures for preparation, adoption and amendment of provincial SDFs. SPLUMB does not establish adequate basis for intervention in provincial planning.

LEGAL STATUS OF SDFs DRDLR RESPONSE ISSUES DRDLR RESPONSE LEGAL STATUS OF SDFs SDFs are being elevated to the status of laws. The intention is not to have a hierarchy of SDFs but rather a set of plans that complement each other. Section 12 makes it clear that the purpose of the SDF in any sphere of government is to guide and inform, not regulate. The Municipal SDF represents the long term vision for the spatial development of a municipality. The Municipal SDF is supported by instruments such as the Medium Term Expenditure Framework, which aligns budgets to the implementation of the SDF. Section 12 (1) sets out the informing and guiding nature of SDFs, while Section 26 (1) states that the land use scheme has the force of law. Need obligatory criteria for all SDFs. Need to include SDF guidelines. Procedures to appeal against adoption of SDF? Resolution of disputes regarding SDFs? Should have long term time horizon – 20 years minimum.

LEGAL STATUS OF SDFs DRDLR RESPONSE ISSUES SDFs are being elevated to the status of laws. The strategic and policy instrument (the SDF) is intended to guide and inform the legal instrument (the land use scheme). SPLUMB further makes provision for these instruments to be amended individually, and in relation to each other [in terms of Section 21 (p) (ii)] to ensure that they are mutually supportive. Furthermore, Section 21 (1) (o) of SPLUMB provides that a Municipal SDF must determine the purpose, desired impact and structure of the land use management system in the municipality. The Municipal SDF should not therefore be departed from lightly. Hence SPLUMB does not permit Municipal Planning Tribunals to depart from the guidance provided by a Municipal SDF without good cause, and requires that an amendment to the SDF be pursued. Need obligatory criteria for all SDFs. Need to include SDF guidelines. Procedures to appeal against adoption of SDF? Resolution of disputes regarding SDFs? Should have long term time horizon – 20 years minimum.

Selected Activities Supportive of the Implementation of the SPLUMA Support to the Development of Provincial Legislation & Regulations in 6 Provinces (EC, NC, FS, LIM, MP & NW) Audit of Planning & GIS Capacity & Readiness for Implementation of SPLUMA Draft Regulations to the SPLUMA Guidelines on Interim & Transitional Measures for the Implementation of the SPLUMA Guidelines on Spatial Development Frameworks (SDFs) across the three Spheres Land Development Applications Manual National Interest in Land Development Management (Research & Guidelines) Management and Regulation of Rural Land Use (Research & Guidelines) Guidelines on Precinct Plans Guidelines on Land Use Scheme Land Use Norms and Standards (Research & Guidelines) Integrated National Spatial Information Management System Municipal Electronic Land Use Management System (e-LUMS)

Thank You Sunday Ogunronbi Executive Manager: Spatial Planning & Information | Department: Rural Development & Land Reform| +27 82 577 5655| +27 12 312 9371| 086 692 8882 (f) | sogunronbi@ruraldevelopment.gov.za