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Spatial Planning and Land Use Management Bill, 2012. A joint commentary presented by Isandla Institute. Joint Submission. Reservations about the lack of public participation and transparency on the part of the responsible Department during the formulation of the Bill
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Spatial Planning and Land Use Management Bill, 2012 A joint commentary presented by Isandla Institute
Joint Submission • Reservations about the lack of public participation and transparency on the part of the responsible Department during the formulation of the Bill • Ongoing substantive problems with the Bill: • a lack of clarity about the respective powers and functions of the different spheres of the state; • Its inability to promote an integrated approach to urban informality, spatial inequality or environmental sustainability; • the capacity constraints within the planning profession that implementing the provisions of the act will necessitate; and • the appropriateness of present land use management tools within the context of communal areas.
Joint Submission (2) • Formally introduce ‘the social and environmental value and function of land’ as a criterion to guide decision-making • The necessity of acknowledging the incomplete nature of the Bill and partial nature of our understanding of the deficits, opportunities and impact of the planning system in South Africa the need for structured ongoing learning and regular review of planning law
Isandla Institute’s Submission Selected issues
The ‘social function’ doctrine • The Colombian Supreme Constitutional Court has argued that it “signifies a great advance in western thought related to two antagonistic positions that find their conciliation in the social function: individualism and collectivism. The former negates, or at least minimizes, the social and public character of the right to property; at the same time, the latter rejects or diminishes the private and individual character that the right to property may have. The doctrine of the social function of property establishes that the right to property is simultaneously individual and social”. (cited in Ankersen and Ruppert, 2006: 104)
The social function of land • The social function ‘doctrine’ reasons that the state’s authority stems from its ability to provide for certain social needs and so its protection of private property is only justified insofar as this protection contributes to a wider social function. • For example, the Constitution of Brazil allows the Government to compel the owners of urban land that has no structures on it, is underutilized or not utilized at all to adopt measures to adequately utilize it, authorizing three forms of sanctions: (i) compulsory subdivision or edification; (ii) progressively increasing property tax over time; and (iii) expropriation of the property (art. 182, § 4)
Social function of land (2) • What does this mean for the Bill? Inclusion in the principles but also applicable elsewhere. Two examples: • Reworking the “Non-impediment of function” (S57) to include a positive injunction – land use decisions should promote the social value and function of land • The revision of the section on “Land for parks, open space and other uses” (S50) to allow the municipality to designate another use of the provided land (based on public input) that will maximise its social function • The social function is most often employed to underpin tools, such as ‘value capture’ (which are also not found in this legislation), that promote spatial justice, serve to curtail speculative activity and the underdevelopment of public and private land, and democratise urban space.
A coherent approach to addressing informality and incrementalism • A land use scheme must “include provisions that permit the incremental introduction of land use management and regulation in areas under traditional leadership, rural areas, informal settlements, slums and areas not previously subject to a land use scheme” (S24.2c) and Provinces must have procedures for “the formalisation or incremental upgrading of an informal settlement or slums, including any matters related to tenure, land use control and the provision of services to such areas” (Schedule1 g(viii)) • BUT the experience with SDFs thus far that such injunctions are not resulting in transformative practice. This goes beyond capacity issues (which are nonetheless significant) to the advancement of a coherent approach that connects objectives to particular mechanisms and clear interfaces between the formal and informal systems.
