24 July 2012

1. SPATIAL PLANNING AND LAND USE MANAGEMENT BILLB14 - 2012Presentation to the Portfolio Committee on Rural Development & Land Reform 24 July 2012

2. Background • Pre-1994 Planning was designed to serve a different political idea – segregation, differentiation, and privilege; • Multiple laws, multiple institutions and parallel processes instituted by the pre-1994 pieces of legislation; • Planning laws were fragmented across the old boundaries of the then four (4) provincial administrations, homelands, and Self-Governing Territories (SGT); • In 1994, South Africa inherited complex and disjointed planning systems which manifest in unequal, incoherent and inefficient settlement patterns; • The Development Facilitation Act, 1995 (Act No. 67 of 1995) (“the DFA”) was promulgated as an interim measure to deal with this legacy. • SPLUMB emerged through the Green Paper (1999) and White Paper (2001) processes to replace the DFA as the legislative instrument to regulate spatial planning and land use management in the country.

3. Background Post- 1994 Realities Causes • Physical Planning Acts 1967 and 1991 • Provincial Ordinances • SGT/Bantustan laws • Planning Related laws at both National and Provincial spheres Consequences • segregation, differentiation, unevenness; • multiple institutions; • parallel processes; and • uncoordinated sectoral policies White Paper on Spatial Planning and Land Use Management 2001 Study of planning laws "revealed an extraordinarily complex and inefficient legal framework, with planning officials in all spheres of government having to deal with numerous different systems within the jurisdiction of each province, and indeed within most municipalities. The difficulty of dealing with this legal inheritance compounds the already difficult task of planning for sustainable, integrated and equitable land use and development in South Africa"

4. Shared Vision? • Until the DFA Judgment in June 2010 there has been relative lack of clarity in the Constitution about the meaning of planning and which spheres of government responsible for land use planning and management; • Lack of precision and shared understanding of the terminology that is used in the debates about planning; • Lack of clarity between key national departments over who is responsible for land use planning and spatial planning; • Subtle turf wars between national government and the provinces over who has responsibility for rationalizing and modernizing planning systems.

5. Shared Vision? • Four provinces have developed new planning and land use legislation of their own (outside of a national framework); • Lack of sustained leadership regarding the rationalization and modernizing of planning and land use management; • There is a lack of shared vision about what the Land Use Management Bill should do (Land Use Planning with/out Spatial Planning); and • Frustration with the long time it has taken to develop national framework legislation has led to autonomous initiatives by some spheres.

6. Current Land Use Realities

7. Need For SPLUMB: Post-DFA • The DFA was intended to be an interim measure, and was to be repealed by SPLUMB (in its current and earlier versions). • In June 2010, the Constitutional Court found Chapters 5 and 6 of the DFA to be invalid on grounds of unconstitutionality. • The order of invalidity was suspended for 2 years, i.e. until June 2012, to allow the defects in the DFA to be remedied. • Government’s intended remedy is to repeal the DFA in its entirety and replace it with the Spatial Planning and Land Use Management Act (currently still a Bill). • The Constitutional Court found that municipal planning includes the powers and functions necessary to determine rezoning and township establishment applications, and concluded that municipal planning is the exclusive competence of municipal government.

8. Objects of the Bill • Provide for a uniform, effective and comprehensive system of spatial planning and land use management for the Republic; • Ensure that the system of spatial planning and land use management promotes social and economic inclusion; • Provide for development principles and norms and standards • Provide for the sustainable and efficient use of land; • Provide for cooperative government and intergovernmental relations amongst the national, provincial and local spheres of government; and • Redress the imbalances of the past and to ensure that there is equity in the application of spatial development planning and land use management systems

9. Need For SPLUMB New legislation is needed to achieve: • A coherent regulatory framework for spatial planning, land use management, and land development and planning system; • Constitutional synergy (clear delineation, distribution & allocation of powers among spheres); • A predictable and transparent regulatory System; and • Clear, rational and efficient inter-linkages of sectoral and inter-sphere spatial planning tools and policies.

10. Spatial Planning Spatial planning involves ‘critical thinking about space and places as the basis for action or intervention’ (RTPI, 2007). ‘spatial planning goes beyond traditional land use planning to bring together and integrate policies for the development and use of land with other policies and programmes which influence the nature of places and how they can function’. (UK Planning Policy Statement 1: Delivering Sustainable Development, 2005) The implementation of the spatial objectives contained within planning policy is: highly dependent upon the coordinating role of national government; local discretion over the interpretation of such policy guidance and the resources and action of developers and other stakeholders; degree of consistency between broad policy objectives (and governance structures associated with their delivery) across different sectoral interests. The reality is that there remain complex relationships between policies, and even high-level policy outcomes may be contradictory

11. Land Use Management Land resources are used for a variety of purposes which interactand may compete with one another; therefore, it is desirable to plan and manage all uses in an integrated manner. Land-use management examines all uses of land in an integrated manner, it makes it possible to minimize conflicts, to make the most efficient trade-offs and to link social and economic development with environmental protection and enhancement, thus helping to achieve the objectives of sustainable development. The essence of the integrated approach finds expression in the coordination of the sectoral planning and management activities concerned with the various aspects of land use and land resources. Integration should consider all environmental, social and economic factors. Integrated consideration facilitates appropriate choices and trade-offs, thus maximizing sustainable productivity and use.  The broad objective is to facilitate allocation of land to the uses that provide the greatest sustainable benefits and to promote the transition to a sustainable and integrated management of land resources.

12. Inter-Governmental Planning In Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Others the Constitutional Court held as follows:- “Planning entails land use and is inextricably connected to every functional area that concerns the use of land. There is probably not a single functional area in the Constitution that can be carried out without land. Land-use planning must be done at three levels at least: provincial planning, regional planning and municipal planning.” The Constitution confers “planning” on all spheres of government by allocating “regional planning and development” concurrently to the national and provincial spheres, “provincial planning” exclusively to the provincial sphere, and executive authority over, and the right to administer “municipal planning” to the local sphere.

13. Inter-Governmental Planning In the City of Johannesburg Metropolitan Municipality, the Constitutional Court stated:- “It is clear that the word “planning”, when used in the context of municipal affairs, is commonly understood to refer to the control and regulation of land use, and I have no doubt that it was used in the Constitution with that common usage in mind. The prefix “municipal” does no more than to confine it to municipal affairs. That construction, which gives meaningful effect to the term, has the effect of leaving in the hands of national and provincial government the authority to legislate in the functional area of “urban . . . development”, but reserving to municipalities the authority to micro-manage the use of land for any such development. On that construction the functional area of “urban development” retains considerable scope for national and provincial legislation.”

14. Inter-Governmental Planning In the City of Johannesburg Metropolitan Municipality, the Constitutional Court stated:- “the government consists of three spheres: the national, provincial and local spheres of government. These spheres are distinct from one another and yet interdependent and interrelated. Each sphere is granted the autonomy to exercise its powers and perform its functions within the parameters of its defined space. Furthermore, each sphere must respect the status, powers and functions of government in the other spheres and ―not assume any power or function except those conferred on [it] in terms of the Constitution.” See also Ss 40 & 41 of the Constitution

15. Tools & Instruments In order to address these challenges, the Bill seeks to introduce provisions to cater for: Development Principles; Norms and Standards; Inter-Governmental Support; Spatial Development Frameworks (SDFs) across National, Provincial, Regional & Municipal scales; Land Use Schemes; Municipal Planning Tribunals; and Applications affecting National Interests.

16. Development Principles Used to Guide Spatial Planning, Land Use Management and Land Development in terms of this Bill; Applied through Spatial Planning Tools i.e. SDF’s and Land Use Schemes and also guide decision making by Tribunals; Applied by National / Provincial Governments and Municipalities in developing their SDF’s and Spatial Planning policies.

17. Norms and Standards The terms “norms and standards” are commonly used interchangeably but are two different concepts: Norms may be the usual or the average level of performance. Standards, on the other hand, arethe desired and achievable level of performance. Setting norms and standards is a complex operation consisting of 4 components: Level of service to be attained (policy directive) Quantity to be provided (policy directive) Quality required (often legislated) Technical specifications (legislated) The Minister may him/herself or at the request of another Minister prescribe Norms and Standards on land use management;

18. Role of National Government • provide support to Provinces and Municipalities in the execution of their duties in terms of the Bill; • monitor capacity of Provinces and Municipalities to implement the Bill; • monitor compliance of Provinces and Municipalities with the Bill; • the compilation, approval and review of spatial development plans and policies or similar instruments, including a national spatial development framework; • the planning by the national sphere for the efficient and sustainable execution of its legislative and executive powers insofar as they relate to the development of land and the change of land use; and • the making and review of policies and laws necessary to implement national planning, including the measures designed to monitor and support other spheres in the performance of their spatial planning, land use management and land development functions.

19. Role of Provincial Government • provide support to Municipalities in the preparation, adoption, amendment, coordination and alignment of their Land Use Schemes; • Strengthen the capacity of municipalities to implement spatial planning and land use legislation; • the compilation, approval and review of a provincial spatial development framework; • monitoring compliance by municipalities with this Act and provincial legislation in relation to the preparation, approval, review and implementation of land use management systems; • the planning by a province for the efficient and sustainable execution of its legislative and executive powers insofar as they relate to the development of land and the change of land use; and • the making and review of policies and laws necessary to implement provincial planning, and monitoring and support of municipalities.

20. Role of Municipal Government • The compilation, approval and review of integrated development plans; • the compilation, approval and review of the components of an integrated development plan prescribed by legislation and falling within the competence of a municipality, including a spatial development framework and a land use scheme; • the control and regulation of the use of land within the municipal area where the nature, scale and intensity of the land use do not affect the provincial planning mandate of provincial government or the national interest.

21. Spatial Development Frameworks An SDF is a framework that seeks to guide overall spatial distribution of current and desirable land uses within a sphere/municipality in order to give effect to the development vision, goals and objectives. The aims of SDF include to promote sustainable functional and integrated human settlements, maximise resource efficiency, and enhance regional identity and unique character of a place. All the three spheres must now make SDFs; SDF must give effect to National, Provincial or Municipal Planning; Aligned to and consistent with the frameworks of other spheres; Reviewable every 5 years or less; and, Must involve public participation.

22. Land Use Management • Municipality is responsible for Land Use Management • Primary instrument is the Land Use Scheme (LUS) • Municipality must, after public consultation, prepare, adopt and implement a LUS within 5 years of the Bill being enacted • LUS must be consistent with and give effect to Municipal SDF • All land development applications must be determined within context of the LUS • An approved and adopted LUS has the force of law and binds all owners and users of land

23. Land Development Management • Land development applications are determined by Municipalities as the authority of first instance • Municipalities are required to establish Municipal Planning Tribunals to discharge this function • Municipalities may co-operate to establish Joint Municipal Planning Tribunals • The Tribunals consist of municipal officials and suitably qualified external persons appointed by Municipal Councils • Appeals lay to the Municipal Executive Authority from decisions of MPTs • Provincial legislation may provide for post-MPT appeal processes, and matters affecting provincial interests.

24. Municipal Spatial Development Frameworks Land Use Management Municipal Land Use Schemes Land Use Management Systems Linking SP & LUM Land Use Applications

25. Scheme Proposed by SPLUMB NATIONAL GOVERNMENT e.g National Spatial Development Framework (National Planning Framework) e.g Spatial Planning & Land Use Management Bill The Role of National Government is primarily the creation of an enabling environment through Policy and Legislation Development as well as Monitoring the implementation of these Creation of Policy & Legislation / Monitoring VERTICAL ALIGNMENT PROVINCIAL GOVERNMENT Provincial Spatial Development Frameworks (Provincial Planning Framework) Provincial Planning Legislation The Role of Provincial Government is the creation of an enabling environment through Policy and Legislation Development which is aligned to National initiatives, Monitoring and also coordination Creation of Provincial Policy & Legislation / Monitoring / Coordination Metropolitan & Local Municipal Spatial Development Frameworks LOCAL GOVERNMENT Integrated Development Plans (Local Planning Framework) METRO / DISTRICT LOCAL MUNICIPALITIES METRO / DISTRICT MUNICIPALITIES LOCAL MUNICIPALITIES IDP / SDF Local IDP Local SDF Coordination / Support Implementation Land Use Scheme (SPLUMB) Gives effect to the Spatial Development Framework of a Municipality and records rights & restrictions on individual erven within a municipality Precinct Plans / Local Spatial Development Frameworks

26. Addressing Municipal Capacity • Obligations to do Spatial Development Frameworks (SDFs), Land Use Schemes and Land Development Management; • Obligation to establish Municipal Planning Tribunals (MPTs); • Member of MPT need not be just officials. Opportunity to share limited resources; • Councils may agree to do joint land use schemes, and establish joint MPTs (Council resolution on Joint MPT with another Municipality or all Municipalities within a District); • Opportunity to learn from Best practices as all now within a National Framework; • Relative clarity on roles & responsibilities of the three spheres; and • Stronger national support and capacity building (SDF Guidelines, Planning Manuals, Model land use schemes, etc)

27. National Interest • A land development application must be referred to the Minister where the outcome of the application affects the National interest • The National interest includes: • matters within the exclusive functional area of the national sphere in terms of the Constitution; • strategic national policy objectives, principles or priorities, including food security, international relations and co-operation, defence and economic unity; or • land use for a purpose which falls within the functional area of the national sphere of government.

28. Chapters 1 - 2 • Chapter 1 (Clauses 1 to 5) provides for definitions, the application of the Act, objects of the Act, an outline of the system of planning in South Africa and the categories of spatial planning. • Chapter 2 (Clauses 6 to 8) provides an outline of key principles that are applicable to the spatial planning system and will also guide land development in general. It provides scope for the Minister of Rural Development and Land Reform to develop more comprehensive principles. The chapter also provides for the Minister to set out compulsory norms and standards for land use management.

29. Chapters 2 - 4 • Chapter 3 (Clauses 9 to 11) outlines the mandates of national and provincial spheres in monitoring and support provision to ensure effective spatial planning and land use management processes. It also provides for a differentiated approach to municipalities. • Chapter 4 (Clauses 12 to 22) provides for the preparation and contents of national, provincial, regional and municipal spatial development frameworks, as well as the status of spatial development frameworks.

30. Chapters 5 - 6 • Chapter 5 (Clauses 23 to 32) provides for the adoption of municipal land use schemes, including their purpose, content, status, review and relationship with existing land use schemes. The section also provides for the amendment of land use schemes and the alignment of authorisations in terms of other applicable legislation. • Chapter 6 (Clauses 33 to 52) provides for the establishment, composition, powers and functions of Municipal Planning Tribunals, as well as for internal appeals against the decisions of Municipal Planning Tribunals. It also deals with possible municipal cooperation in adopting land use schemes and joint consideration of development applications that affect the national interest.

31. Chapter 7 • Chapter 7 (Clauses 53 to 61) contains general provisions relating to commencement of registration of ownership, regulations, powers of the Minister to grant exemptions from provisions of the Act, delegations by the Minister, Premiers and municipalities to officials, non-impediment of function, offences and penalties, repeal of legislation, transitional provisions, and short title and commencement.

32. Areas of Concern • What does “municipal planning” mean? [in the wider context of the planning roles and responsibilities of each sphere of government] • What is the provincial interest in land use planning? & how do the provinces [powers] deal with those interests? • What practical instruments can be designed to manage the overlap? • Capacity of municipalities to comply with requirements in terms of legislation • Municipal differentiation • Support and monitoring of municipalities • Planning Tribunals and role of Councillors / officials • Appeals (internal –to Council - and external – to Province) • Land Use Management in Rural Areas, participation & role of Traditional Leaders

33. Status of the Bill • The draft Bill was approved by Cabinet for publication and public consultation in April 2011. The draft Bill was gazetted on 6 May 2011, with the consultation period closing on 6 June 2011. • During this period, the Department held workshops in all provinces for public and private sector stakeholders, as well as bilateral engagements with municipalities, provinces and government departments. • In response to this call a total of 110 comments were received from all sectors. • A Regulatory Impact Assessment of the Bill was also concluded in June 2011. • The SPLUMB has now been approved by Cabinet in March 2012 after an extensive public participation for introduction to Parliament. • The State Law Advisers and the Dept are of the view that the Bill is a section 76 Bill because it affects the powers of the Provinces and Municipalities.

34. Implementation Framework

35. Implementation Framework

36. COMMENTS AND QUESTIONS 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