NATIONAL LAND USE BILL CONSTITUTIONAL ISSUES The Bill does not accurately reflect the constitutional allocation of powers. These issues have been raised before but have not been taken into account. It is trite law that the Constitution allocates powers between the different spheres of government. Part B of Schedule 4 provides that Municipal Planning is a municipal function. Section 151 (2) provides that the executive and legislative authority of a municipality is vested in its Municipal Council. Section 156 (1) provides that a Municipality has executive authority in respect of, and has the right to administer the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5 as well as any other matter assigned to it by National or Provincial legislation. In terms of section 151(1), National government may not compromise or impeded a municipality's ability or right to exercise its powers or perform its functions. National and Provincial powers to legislate in respect of Municipal planning are therefore limited to the extent set out in sections 155 (6)(a) and in the case of National Government, section157 of the Constitution. Section 157 provides that National Government may, subject to section 44, have legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5 by regulating the exercise by municipalities of their executive authority referred to in section 156 (1). In the case of Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa 1997(2) SA 97 CC, the term "regulate" was interpreted as meaning a "broad managing function" rather than a direct authorization function. Section 164 provides that any matter concerning local government not dealt with in the Constitution may be prescribed by national legislation or by provincial legislation within the framework of National legislation. Taking into account all of the above, examples of specific clauses in the Bill that go beyond this regulating function in respect of Municipal Planning are listed below. Chapter 4: Land use Schemes. Clause 31 of the Bill provides that a Municipality may not amend its land use scheme except by way of a revision on the re-determination of a municipal boundary (section 30) or by way of an application to the Land Use Tribunal in the Province. A Land Use Scheme is an integral part of Municipal Planning. A requirement in National legislation that such cannot be amended by the Municipality itself, but must go to an outside body set up by the Provincial sphere of government amounts to unconstitutional encroachment on a Municipality's ability and right to exercise its powers and goes beyond the regulating power conferred on National Government. Chapter 6: Municipal Land Use Regulation This chapter provides that a municipality is obliged to consider a menu of applications as set out in section 45 of the Act and further sets mandatory criteria relating to the decision making body. Section 46 provides that the Council of a Municipality or a Land Use Committee established by the Council of the Municipality must consider land use applications. Where the full Council considers applications, it must appoint a land use advisory committee to make such recommendations to it. Section 160 (6) of the Constitution allows a Municipality to make by- laws to prescribe rules and orders for the establishment, composition, procedures and functions of its committees. Whilst there is nothing unusual about either full Council or a Land Use Committee considering an application, it contended that there is no need for National legislation to prescribe this. Further, the Bill prescribes the format of the land use committee. It consists of a chairperson who is a Councillor and between 3 and 15 persons who have experience in land use matters. It would appear that such people are either officials or outside professionals. Section 53 of the Municipal Systems Act no 32 of 2000 provides that a Municipality must define the role and area of responsibility of each political structure and political office bearer. At present, the impact on the City of Cape Town would be that Sub Councils would not have the power to make decisions on land use matters within their area, and at present would not have the power to make recommendations to the Executive Councillor. The Executive Councillor would further be stripped of his powers to make decisions on land use matters. Another aspect of this is that politicians take decisions on non- delegated land use matters. This is because they are thought to be accountable to their constituents. If matters are delegated to the Land Use Committee, then the decision makers are jointly politicians and either outside professionals or officials. By prescribing that full Council must take a decision on land use matters or the Land use Committee, it means that the legislation should have a delegation clause in it in order to allow Municipalities to delegate decision making on a plethora of minor applications to officials. There is no such clause in the legislation. There should however be no need to delegate a power which vests constitutionally in a Municipality in any event. Chapter 8: Land Use Appeal Tribunals In terms of Municipal Planning matters, municipalities have the decision making power. The power to regulate does not confer upon National Government the power to create Land Use Appeal Tribunals to potentially overturn Municipal decisions. Whist an outside body could and should be established to consider appeals, this is the prerogative of the Municipalities and not National government. The only power a Province would have would be to set up a body to review a municipal decision, and if it did not agree with such decision, it could make recommendations to the Municipality concerned. Chapter 10: Miscellaneous Section 78 confers upon the National Minister the power to make regulations prescribing inter alia: A(c) fair procedures concerning the lodging of land use applications and the consideration and decision of such applications. (e) fair procedures concerning applications for the amendment of conditions (f) fees payable in connection with applications.@ The above all fall squarely within the ambit of Municipal planning and regulations which a Municipality is forced to follow would constitute unconstitutional dictation to Municipalities. It is accepted that there may be many Municipalities who do not have the capacity to create by-laws for such internal matters. It would be within National competencies to create "model by laws/ regulations" which municipalities could adopt if they wished to do so. Bigger municipalities with the competence to do so, should not be prohibited from creating their own procedures. INADEQUATE PROVISIONS RELATING TO LAPSING OF USE RIGHTS Section 40 (2) is the only clause within this Bill that deals with the lapsing of use rights. This method of dealing with the issue is inadequate. It is suggested that the lapsing of use rights needs to be dealt with. Section 40 (2) provides that when a land use application is granted, a condition may be imposed to the effect that if the permitted use is not substantially utilized within 5 year after being granted, it will lapse. Section 40 (3) allows a land use regulator to withdraw this condition. There are two concerns here. First, the lapsing of use rights is dependent on a Municipality imposing a condition to this effect. Municipalities have a long history of forgetting to impose conditions. If human error occur, use rights that may not be appropriate in 15 years time, are granted permanently. It would be more appropriate to impose the 5 year time period in legislation as LUPO does at present. Secondly, in addition to specific clauses dealing with the lapsing of rezonings, subdivisions and departures, section 14 of the Land Use Planning Ordinance no 15 of 1985 makes provision for a different lapsing periods for different rights. Section 14 (1) allows an owner 17 years to utilize use rights that were conferred under zoning schemes. If they do not use these rights, they lapse. Section 14 (4) provides that use rights granted in terms of a substitution scheme lapse after 5 years if not used. In terms of section 14 (5), any use right will lapse if it is not used for a period of two years at any stage after being granted. Whilst these periods need adjustment, the Ordinance deals comprehensively with the lapsing of use rights. Such a comprehensive provision is missing from the Bill. LACK OF PROVISIONS RELATING TO ACCELERATED DEVELOPMENT The Bill makes reference in the principles to inter alia redressing the imbalances of the past. At present, the Bill does not contain any reference to accelerated procedures for less formal housing. Since this Bill will repeal the Less Formal Townships Act, there will be no mechanism for such developments. In the light of the comments made above on the constitutionality of regulations, this issue should be dealt with in the Bill itself. DUPLICATE APPEAL PROCEDURES At present there are duplicate appeal procedures for land use planning decisions. In addition, there are other appeal procedures with their own time periods for Environmental authorisations and Heritage authorisations. In addition, all these appeal periods run sequentially. In the land use planning context, section 62 of the Municipal Systems Act provides for an internal appeal against the decision taken under delegated powers. The effect of this is that a planning decision taken under delegated authority has to be suspended until the right of internal appeal has lapsed. Once one party appeals, all other parties ( applicants or objectors) have to be given the opportunity to comment. Once the appeal has been adjudicated then there is a right of appeal in terms of section 44 of LUPO to the Provincial Minister. These appeal procedures delay an application by at least 18 months to 2 years. In terms of the Planning and Development Act which is due to replace LUPO, a review Board may make recommendations back to the Council. In terms of the Land Use Bill, there is now a right of appeal to the Land Use Appeal Tribunal. There is a desperate need to rationalize these appeal processes. One approach is to amend section 62 of the Municipal Systems Act to provide that where there is an "external" right of appeal, there is no internal right of appeal. Alternatively one could amend section 62 of the Systems Act to provide that a municipality may set up an independent appeal committee to hear appeals. This would be a hybrid of an internal appeal as well as an "external appeal." GENERAL COMMENT More detailed comments are as follows: 1. Ad Chapter 1: Definitions"change". This definition does not take account of a temporary departure. This is the right to use land on a temporary basis for a purpose which is not set out in the zoning of the property."land use management". This definition also refers to a non-statutory mechanism in terms of which the use of land is or may be restricted or regulated. It is hard to think of a non- statutory mechanism that permits this. 2. Ad Chapter 2: Directive principles Clause 8 deals with environmental sustainability. Clause 8(e) provides that the use of prime agricultural land must be preserved and a change of use permitted only in the public interest. First the term "prime agricultural land" is vague. Whilst it is obviously aimed at preserving viable farmland, a lot of land in the Western Cape in areas such as Noordhoek and Constantia are zoned agricultural and even rural. A clear distinction needs to be made between the zone and the use of land agricultural purposes. Further, the development frameworks should define what is appropriate. The introduction of "public interest" as a criterion for decision- making is of concern. I have no doubt that objectors to any land zoned as Aagricultural@ will raise this as a criteria. Land which should be able to be developed will not be able to be. Why define this in a principle?. The Regulations ( suitably framed as model by laws) could deal with this issue. Clause 9 deals with the principle of fair and good governance. Clause 9 (d)(ii) requires that in order to promote efficient administration affected persons should be invited to forums at which land use management and land development decisions are taken. It is going to be difficult to determine who is going to be affected by a decision. Often a community will be affected. However, only those who are adversely affected are invited to comment on the application. Therefore this will be difficult to implement practically unless one provides in the newspapers a list of committee meetings. It would be preferred if this is changed to those who are adversely affected by a decision. This would also be in line with sections 3 and 4 of the Promotion of Administrative Justice Act no 3 of 2000. 3. Chapter 3 This chapter provides for the creation of National, Regional and Provincial land use frameworks,as well as Municipal Spatial Development frameworks. There is no indication in this section on the criteria to be used for the approval of such documents. Clause 16 sets out the requirements for a provincial spatial development framework. One of the requirements is a status quo report on land use in the Province and spatial dysfunctionalities that exist. However, in clause 17, municipalities are obliged to reflect the status quo on land use in the municipality including any spatial dysfunctionalities that exist. Given that there are wall -to -wall municipalities, how does Province give a status quo report on something that is within the municipality's power. This problem carries on though out subsection (2). Clause 18 deals with the spatial development framework for a municipality. It is clear from the clause that this is the spatial part of an IDP. Regulation no R 796 dated 24 August 2001, and promulgated in terms of the Municipal Systems Act sets out in section 2 (4), seven aspects which must be taken into account when created the spatial development framework. Subsection 18 (2) now adds a further four criteria (not counting the subparagraphs) which must be taken in to account when creating the spatial development framework. If these additional criteria are necessary, then they should form part of the Systems Act Regulations. It is not desirable to find half the criteria sitting in one set of Regulations and the other half in another Act. This exacerbates the problems relating to fragmented legislation. Furthermore, the Bill is completely silent on all other types of structure plans and development frameworks which are required in order to assess land use matters and to do forward planning. There is also no indication in the decision making sections that other structure plans may be taken into account. 4. Chapter 4: Land Use Schemes Clause 23(1) sets out criteria which may from part of a land use scheme although it would seem that it is not mandatory for municipalities to have regard to them when creating their own schemes. However, clause 23 (4) permits the MEC in a Province to determine minimum standards with which land use schemes in the province must comply. If this is the case, what is the point of section 23 (1)? Clause 23 (4) refers to the fact that "minimum standards" may be set. It may be more appropriate to refer to "minimum requirements" as the term "standard" has a value judgment contained within. Clause 24 provides that a municipality must prepare a land use scheme in accordance with chapter 4 of the Municipal Systems Act and in accordance with section 24 of NEMA. The reference to the Municipal Systems Act is unnecessary. The reference to section 24 of NEMA, which requires an environmental assessment prior to taking decisions on matters with may have a substantial impact on the environment is problematical. How does one carry out an environmental assessment on a land use scheme?. Does one have to do an analysis of each and every property? This is not a reference to a strategic impact assessment but to a full on analysis. It would appear that this will be impractical to implement. Clause 26 provides that a land use scheme prevails in the event of an inconsistency with a restrictive condition in a title deed. Whilst this provision is welcomed, it is suggested that it be looked at in more detail. For example, one would assume that title deeds confer rights. If the land use scheme overrides those rights, is compensation payable? This aspect becomes particularly relevant when one considers that private title deed conditions will also be affected by this clause and individual owners may have paid money for the restrictions. In the event that this section remains, can it not also apply to existing zoning schemes and not just to land use schemes created in future?. Clause 27 deals with enforcement issues. Clause 27 (1) provides that a municipality may pass by laws aimed at enforcing its land use scheme. This provision is not required since constitutionally, a municipality has this power anyway. Clause 29 provides that a municipality may not amend its scheme except by way of an application to the Land Use Tribunal. Since the creation and amendment of a land use scheme falls within the ambit of municipal planning, this provision is unconstitutional. Clause 31 allows anyone who is aggrieved by the decision to appeal to the Appeal Tribunal. This appeal is far too broadly cast. It gives anyone the opportunity either within the area affected by the scheme or outside the scheme to appeal. It should be limited to those who are adversely affected or even affected by the Scheme. It is not clear if substitution schemes would fall within the change of use as provided for in the next chapter or under clause 29. This had important ramifications. 5. Chapter 5: Land Use Regulation Part 1: changes in land use Clause 33 (2) lists the applications which constitute a change in land use.. Section 33(2) (a) refers to township establishment. The Western Cape does not use this terminology and this will create uncertainty as to whether the creation of a new development will be termed a Atownship establishment@ or the amendment of a land use scheme. Furthermore, the mechanism of rezoning to subdivisional area is not catered for. The Bill does not mention the temporary departure mechanism which allows an owner to use land for a purpose which is not provided for in the zoning scheme for a temporary period. The mechanism of a substitution scheme would appear to fall under clause 33 (2) but again there is uncertainty on this provisions. Clause 34 sets out the jurisdiction of the various land use regulators i.e a metropolitan municipality, a Land Use Tribunal, an Appeal Tribunal or the Minister. The mechanism for determining which body makes a decision on the matter is based on whether the application has an implication on the use of land the boundaries of the municipality. If an application is lodged with the wrong body, the bodies must negotiate and consult in order to determine who has jurisdiction. The Minister may issue guidelines to facilitate interpretation of this section. Given that a review application in the High Court succeeds on technical grounds such as lack of jurisdiction of a body to take a decision, it follows that determining jurisdiction is crucial. The use of the term Aimplication on the use of land outside the boundaries@ is vague and capable of many interpretations. A convention center in the City of Cape Town CBD may have implications outside the boundaries but the rezoning of the site is clearly part of municipal planning. Clause 35 deals with the lodging of land use applications and the procedure to follow if an application is lodged with the wrong body. It is doubtful that agreement can be reached on whether a matter is within the jurisdictional competence of one authority or another. The fact that the Minister may issue guidelines to facilitate the implementation of this section is not helpful. This procedure is also cumbersome and will be time consuming. Clause 38 deals with applications affecting National interest. If an applications relates to a purpose which falls outside the functional areas listed in Schedules 4 and 5 of the Constitution or the approval or rejection of the application is not consistent with National or Regional frameworks, the National Minister has the power to decide the application. Again, it is difficult enough to define what falls within the competencies of municipal and provincial planning at present. This criterion is not precise enough to act as an objective determinant. Furthermore, where are the national policy objectives, and priorities listed in section 38 (3) (b) (i) set out? Are the principles referred to here the same as the directive principles as set out in Chapter 1. Clause 39 sets the criteria for decisions of land use applications. The criteria listed in Clause 39 (1) (b) are broad based policy documents and are not appropriate to all planning applications such as temporary departures or building line departures. Furthermore, municipalities may deviate from spatial development frameworks only on good cause and subject to factors prescribed. This is unduly restrictive. Clause 39 (c) obliges a decision maker to take into account factors that may be prescribed under section 78. Again, this is unconstitutional dictation to municipalities regarding their powers of decision -making. Clause 40 deals with the power to impose conditions. Two concerns are raised. First, there is no power to amend conditions imposed in terms of section 40(1), only the power to amend a time period. Second, the lapsing of development rights is entirely dependent on the diligence of municipal officials. Officials can forget to impose the lapsing condition and this will result in land use rights being granted in perpetuity, something which the Land Use Planning Ordinance sought to rectify Part 2: ProceduresClause 42, which sets out the procedures to be followed, is vague. The four examples are procedures which will be the exception rather than the rule. Chapter 6: Municipal Land Use Regulation. Clause 46 obliges a Council of a municipality to consider and decide on all land use applications referred to it or to establish a land use committee to decide it on its behalf. The constitutional concerns relating to this are documented above. Chapter 7: Land Use Tribunals Land use Tribunals are set up for each province and consider matters when the matter has an implication on the use of land beyond the boundaries of a metro municipality or when a municipality fails to take a decision within the prescribed procedure. Chapter 8: Land Use Appeal Tribunals See our comments above. It is further submitted that it is not constitutionally correct for a Land Use Appeal Tribunal set up by National government and run by Provincial government to hear and determine appeals on Municipal planning. Chapter 10: MiscellaneousClause 78 grants the Minister the power to make regulations on a wide variety of matters. These include clause 78 (c), fair procedures for lodging land use applications and the consideration and decision of such applications, section 78 (e), fair procedures concerning the lodging of amendments of the conditions relating to time periods, Clause 78 (f), fees payable in connection with applications and appeals. All of these matters fall squarely within Municipal competencies and are matters that can be regulated by Municipal by laws. It is suggested that National government create "Model By laws" which can be adopted by Municipalities who could tailor make the bylaw to fit their particular circumstances. This would be a capacity building exercise. Clause 81: deals with the repeal of legislation. In the case of the Physical Planning Act no 125 of 1991, the Guide Plans need to be saved. What about the current Provincial Planning Ordinances? Are they to be repealed? Clause 82: Rationalisation of land use legislation. This clause is to be welcomed. It provides that the National Minister must appoint a task team to made recommendations to any organ of state on the rationalization, integration and alignment of legislation which determines, regulates or affects land use management in the Republic. It is suggested that this time scale be shortened. There are many commissions who have dealt with this issue and the issues are well known.