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

2. Study Area

3. 1 Metro, 10 District Municipalities and 50 Local Municipalities

4. Focus Municipalities eThekwini Metro and uMgungundlovo District -uMngeni

5. Focus Municipalities Msunduzi Municipality – Pietermaritzburg and surrounds

6. 6Atelier von Riesen July 2011 Project Aims Understand the historical trajectory of provincial legislation – where have we come from? Understand the historical trajectory of provincial legislation – where have we come from? Understand the current provincial legislative terrain – where are we now? Understand the current provincial legislative terrain – where are we now? Understand elements of future legislative review – where do we need to go? Understand elements of future legislative review – where do we need to go? How would this relate to a provincial legislative framework – lessons from the PDA How would this relate to a provincial legislative framework – lessons from the PDA

7. 7Atelier von Riesen July 2011 Project 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 review process Understand contemporary developments – SPLUMB and PDA review process Literature review Literature review Detailed assessment of the PDA Detailed assessment of the PDA Telephonic and Face to Face Interviews:- Telephonic and Face to Face Interviews:-  Officials from national department of Rural Development and Land Reform and provincial COGTA  Officials from sector departments - DAEA  Legal practitioners  Planning practitioners  Key SACN municipalities eThekwini and Msunduzi  District municipality – UMngeni - District Planning Shared Services Project

8. 8Atelier von Riesen July 2011 Interviews 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 ?

9. 9Atelier von Riesen July 2011 Interviews 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

10. 10Atelier von Riesen July 2011 Interviews 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

11. 11Atelier von Riesen July 2011 Legislative Context - Starting Point National Constitution – overarching framework in which all policies and statues are subsequently written National Constitution – overarching framework in which all policies and statues are subsequently written Schedules 4 and 5 dealing with the extent of provincial and municipal planning Schedules 4 and 5 dealing with the extent of provincial and municipal planning Understanding that development planning is impacted upon at all levels by legal policies, statutes and regulations Understanding that development planning is impacted upon at all levels by legal policies, statutes and regulations Specific land development /environmental/housing/ Specific land development /environmental/housing/ planning laws – national and provincial level Local by-laws and Land Use/Planning Schemes (TPS’s) also impact on development Local by-laws and Land Use/Planning Schemes (TPS’s) also impact on development

12. DateAct/Statute 1935Sea Shore Act (Act No. 21 of 1935) partially retained /Admiralty Reserve – historical legacy 1937Deeds Registry Act (Act No.47 of 1937) 1967Removal of Restrictions Act, (Act No. 84 of 1967) 1970Sub-Division of Agricultural Land Act (Act No. 70 of 1970) 1988 National Water Act (Act No. 36 of 1988) 1988National Environmental Management Act (Act No. 107 of 1988) 1997Land Survey Act (Act No. 8 of 1997) 2000Municipal Systems Act (Act No. 32 of 2000)– IDP’s/SDF’s 2000Promotion of Administrative Justice Act (Act No. 3 of 2000) 2008NEMA: Integrated Coastal Management Act (Act No 24 of 2008) Other Key Legislation - Land Use Development

13. 13Atelier von Riesen July 2011 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)

14. 14Atelier von Riesen July 2011 Provincial Legislation Review Outputs Province has been engaged in a review process for a decade Province has been engaged in a review process for a decade Trying to chart the road to a new unitary provincial law Trying to chart the road to a new unitary provincial law  KwaZulu-Natal Planning and Development Act (Act No. 5 of 1998) Regulations not enacted  KwaZulu-Natal Rationalisation of Planning and Development Act (Act No. 2 of 2008)  KwaZulu-Natal Planning and Development Act (Act No. 6 of 2008)

15. Performance of the Provincial Acts including the PDA LAND USE APPLICATIONS AreaRezoningSpecial Consent SubdivisionsRelaxationsPre-Scrutiny Umhlanga61431070 Durban8168526700 Illovo315691315 Pinetown103512232609 Hillcrest3563261 Total Number of Applications dealt with by municipality 3085359881685 eThekwini

16. 16Atelier von Riesen July 2011 Msunduzi Msunduzi  Ten outstanding appeal application lodged in terms of the Ordinance;  Approximately four DFA applications still for processing - some of which involve large developments;  Twenty one sub division and consolidation applications;  Six outstanding applications for minor subdivisions lodged in terms of the Extended Powers Ordinance; and,  Five scheme applications in terms of the PDA Performance of the Provincial Acts including the PDA

17. 17Atelier von Riesen July 2011 Performance of the PDA - uMngeni uMgungundlovo District - uMngeni  49 applications in 2010;  25 applications in 2011;  2 or 3 were consolidated applications – included consolidation/subdivision/rezoning;  13 have been refused;  No applications have been declined;  No full township applications – although these are anticipated; and,  No statistics on withdrawals

18. 18Atelier von Riesen July 2011 Performance of the PDA Key challenge is the time limits of the act Key challenge is the time limits of the act  eThekwini has introduced the pre submission option where the clock is not ticking  Msunduzi is falling behind in terms of processing applications on time – financial and institutional conditions  UMngeni are managing but still encounter difficulty  All have concerns with sector department inputs Issue of what constitutes a complete application Issue of what constitutes a complete application Cannot process appeal applications although these are being prepared Cannot process appeal applications although these are being prepared

19. 19Atelier von Riesen July 2011 What works well Single unitary approach to address past complexity Single unitary approach to address past complexity Direction for municipal level planning regarding schemes, land development applications and procedures Direction for municipal level planning regarding schemes, land development applications and procedures Option for a comprehensive application allowing for a number of development issues to be addressed Option for a comprehensive application allowing for a number of development issues to be addressed Provision for removal of restrictive conditions in the comprehensive application Provision for removal of restrictive conditions in the comprehensive application Specific time limits related to the processing of applications once it is accepted Specific time limits related to the processing of applications once it is accepted

20. 20Atelier von Riesen July 2011 What works well Removal of restrictive conditions as part of the operation of the PDA and in the applications Removal of restrictive conditions as part of the operation of the PDA and in the applications LUMS model – which is being reviewed seems to allow sufficient flexibility for municipalities to create a suite of plans to manage development LUMS model – which is being reviewed seems to allow sufficient flexibility for municipalities to create a suite of plans to manage development Ongoing monitoring and evaluation Ongoing monitoring and evaluation Training through workshops and input from good practice Training through workshops and input from good practice

21. 21Atelier von Riesen July 2011 What is not working Key principles – need and desirability/issues of amenity/impact Key principles – need and desirability/issues of amenity/impact One application procedure fits all – no distinction made in regard to impact – a tuck shop and a regional shopping centre follow the same route One application procedure fits all – no distinction made in regard to impact – a tuck shop and a regional shopping centre follow the same route 100m notification requirement of the PDA – a tavern where there are informal residents/tenants/owners? 100m notification requirement of the PDA – a tavern where there are informal residents/tenants/owners? Full application for minor subdivisions even where there is conformity with the scheme Full application for minor subdivisions even where there is conformity with the scheme

22. 22Atelier von Riesen July 2011 What is not working Increased time for processing consolidation/ subdivisions from six weeks to three months – PDA undermining the cadastral system unintentionally Increased time for processing consolidation/ subdivisions from six weeks to three months – PDA undermining the cadastral system unintentionally Duplication of service provider inputs into environmental and land development applications Duplication of service provider inputs into environmental and land development applications No time limits for sector departmental inputs into pre submission documents Increased costs of applications No time limits for sector departmental inputs into pre 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 responsibility but in practice applicants are undertaking this task Advertising procedures – act makes this the municipality responsibility but in practice applicants are undertaking this task

23. 23Atelier von Riesen July 2011 What 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 the requirement of the PDA Lack of understanding in sector departments about the requirement of the PDA Lack of Special Consent options Lack of Special Consent options Lack of deemed to be approved option Lack of deemed to be approved option Requirements for registered planners to certify compliance with the PDA – time delays and institutional capacity Requirements for registered planners to certify compliance with the PDA – time delays and institutional capacity Interface of planning and institutional aspects of the law Interface of planning and institutional aspects of the law Communication between spheres of governance in regard to the PDA – local concerns are not heard Communication between spheres of governance in regard to the PDA – local concerns are not heard

24. 24Atelier von Riesen July 2011 What is not working Enforcement aspects of the PDA – perception that the role is now more like the Office of Sheriff rather than planning Enforcement aspects of the PDA – perception that the role is now more like the Office of Sheriff rather than planning Large developments will pay the fine and still proceed – project penalties versus enforcements fines Large developments will pay the fine and still proceed – project penalties versus enforcements fines PDA perceived to stifle small scale development – termed the bread and butter of the planning practitioners PDA perceived to stifle small scale development – termed the bread and butter of the planning practitioners Appeals process – lack of clarity due to constitutional aspects Appeals process – lack of clarity due to constitutional aspects Lack of provincial norms and standards Lack of provincial norms and standards

25. 25Atelier von Riesen July 2011 What needs to be changed Inclusion of clearer definitions re provincial and municipal planning Inclusion of clearer definitions re provincial and municipal planning The definition of municipal planning provided by the DFA ConCourt judgment – too narrow The definition of municipal planning provided by the DFA ConCourt judgment – too narrow Provision for an option for special consent application similar to the Ordinance Provision for an option for special consent application similar to the Ordinance Reconsideration of advertising requirements for applications – sub division and consolidation Reconsideration of advertising requirements for applications – sub division and consolidation Reconsideration of institutional municipal capacity and requirements of the act Reconsideration of institutional municipal capacity and requirements of the act Reconsideration of amending conditions of establishment as a full application Reconsideration of amending conditions of establishment as a full application

26. 26Atelier von Riesen July 2011 What needs to be changed Consideration of deemed to be approved where time limits are not adhered to by municipalities (PDA 1998) Consideration of deemed to be approved where time limits are not adhered to by municipalities (PDA 1998) 28 days period after approval where there are no objections – wasting time and money 28 days period after approval where there are no objections – wasting time and money Appeals process – 2 options Appeals process – 2 options  Review/Appeal at the Local or District Level  Review/Appeal at the Provincial Level Inclusion of a fast track procedural option for housing and land provision or strategic project – specific criteria Inclusion of a fast track procedural option for housing and land provision or strategic project – specific criteria Clarity about the nature of appeals – recommendation versus changing the decision Clarity about the nature of appeals – recommendation versus changing the decision

27. 27Atelier von Riesen July 2011 What needs to be changed Role of provincial planning where there are institutional limitations – extension of the DPSS model Role of provincial planning where there are institutional limitations – extension of the DPSS model Reconsideration of the enforcement requirements wrt affixing the notice on site Reconsideration of the enforcement requirements wrt affixing the notice on site

28. 28Atelier von Riesen July 2011 Principles for Legislative Framework or 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.

29. 29Atelier von Riesen July 2011 Other Findings Legal framework should be inclusive and cover areas that are excluded - informal areas Legal framework should be inclusive and cover areas that are excluded - informal areas Extension of the Scheme into areas previously administered under other legislative frameworks - a challenge Extension of the Scheme into areas previously administered under other legislative frameworks - a challenge Local institutional reorganization can impact on the implementation of the PDA – Msunduzi and the delegation notice Local institutional reorganization can impact on the implementation of the PDA – Msunduzi and the delegation notice Decrease in the number of small applications – perception of increased costs and onerous application requirements Decrease in the number of small applications – perception of increased costs and onerous application requirements Concern that there will be an increase in illegal developments – by pass the system Concern that there will be an increase in illegal developments – by pass the system

30. 30Atelier von Riesen July 2011 Other Findings None of the municipalities were concerned about the close of the DFA route perceived as being for commercial developments/by passing the municipalities/encouraging leap frogging None of the municipalities were concerned about the close of the DFA route perceived as being for commercial developments/by passing the municipalities/encouraging leap frogging Need for revisiting a single application system with environmental and land use management aspects covered Need for revisiting a single application system with environmental and land use management aspects covered Perception that environmental planning has superseded land use development in the application/approval system Perception that environmental planning has superseded land use development in the application/approval system Debate re the need for an environmental authorisation or ROD prior to submission of the PDA application Debate re the need for an environmental authorisation or ROD prior to submission of the PDA application

31. 31Atelier von Riesen July 2011 Other Findings Approved Environmental Management Frameworks (EMF) for the municipalities could assist with land use management applications – reduce need for ROD’s Approved Environmental Management Frameworks (EMF) for the municipalities could assist with land use management applications – reduce need for ROD’s Need for clarity re Act 70 of 70 and adoption of Schemes Need for clarity re Act 70 of 70 and adoption of Schemes Level of undue political influence in regard to the approval of some applications Level of undue political influence in regard to the approval of some applications Role of the councilors in decision making process – political interference versus representation of the constituency that voted for them Role of the councilors in decision making process – political interference versus representation of the constituency that voted for them Need for a public hearing process for developments that have large impact Need for a public hearing process for developments that have large impact

32. 32Atelier von Riesen July 2011 Conclusion Need a flexible legislative and procedural system that is:- Need a flexible legislative and procedural system that is:-  Based on a common vision shared by province and municipalities  Clearly defines provincial/municipal planning  Includes principles – amenity, need/desirability  Provides norms and standards  Has prescriptive elements for applications, time periods and institutional aspects  Provides clarity on requirements for different application types – based on impact  Provides for a deemed to be approved option

33. 33Atelier von Riesen July 2011 Conclusion  Provides clarity on sector department inputs – what to do if they do not contribute  Provides clarity on what constitutes a completed application  Has reasonable time limits for approvals  Provides certainty  Allows for an appeals process  Addresses institutional diversity and skill  Aligns with the Land Use Management System (LUMS) model/framework