Provincial Land Use Legislative Reform KwaZulu-Natal

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

2. Study Area

3. Study Area 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. Project Aims • Understand the historical trajectory of provincial legislation – where have we come from? • Understand the current provincial legislative terrain – where are we now? • 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

7. Project Methodology • Understand the context within which the PDA has been introduced • Understand contemporary developments – SPLUMB and PDA review process • Literature review • Detailed assessment of the PDA • 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. Interviews • 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. 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. 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. Legislative Context - Starting Point • 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 • Understanding that development planning is impacted upon at all levels by legal policies, statutes and regulations • 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

12. Other Key Legislation - Land Use Development

13. 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. Provincial Legislation Review Outputs • Province has been engaged in a review process for a decade • 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 eThekwini

16. Performance of the Provincial Acts including the PDA • 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

17. Performance of the PDA • 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. Performance of the PDA • 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 • Cannot process appeal applications although these are being prepared

19. What works well • Single unitary approach to address past complexity • 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 • Provision for removal of restrictive conditions in the comprehensive application • Specific time limits related to the processing of applications once it is accepted

20. What works well • 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 • Ongoing monitoring and evaluation • Training through workshops and input from good practice

21. What is not working • 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 • 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

22. What is not working • 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 • 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 procedures – act makes this the municipality responsibility but in practice applicants are undertaking this task

23. What is not working • Lack of finance to pay back applicants for advertising • Lack of understanding in sector departments about the requirement of the PDA • Lack of Special Consent options • Lack of deemed to be approved option • Requirements for registered planners to certify compliance with the PDA – time delays and institutional capacity • Interface of planning and institutional aspects of the law • Communication between spheres of governance in regard to the PDA – local concerns are not heard

24. What is not working • 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 • 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 • Lack of provincial norms and standards

25. What needs to be changed • Inclusion of clearer definitions re provincial and municipal planning • 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 • Reconsideration of advertising requirements for applications – sub division and consolidation • Reconsideration of institutional municipal capacity and requirements of the act • Reconsideration of amending conditions of establishment as a full application

26. What needs to be changed • 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 • 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 • Clarity about the nature of appeals – recommendation versus changing the decision

27. What needs to be changed • 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

28. 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. Other Findings • 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 • 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 • Concern that there will be an increase in illegal developments – by pass the system

30. 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 • 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 • Debate re the need for an environmental authorisation or ROD prior to submission of the PDA application

31. Other Findings • 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 • 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 • Need for a public hearing process for developments that have large impact

32. Conclusion • 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. 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