COMMENT ON THE SPATIAL PLANNING AND LAND USE MANAGEMENT BILL

1. COMMENT ON THE SPATIAL PLANNING AND LAND USE MANAGEMENT BILL PORTFOLIO COMMITTEE ON RURAL DEVELOPMENT AND LAND REFORM 21 AUGUST 2012

2. OVERVIEW OF PRESENTATION • Due to time constrains presentation will only deal with two critical issues – • Municipal Planning Tribunal • Internal Appeals • Rest of the MEC of KwaZulu-Natal Co-operative Governance and Traditional Affairs’ comment in her written submission • Martin de Lange: Will present practical considerations • GertRoos: Will present legal considerations

3. CONSTITUTIONAL VALIDITY OF MUNICIPAL PLANNING TRIBUNAL (1) • Act of Parliament cannot assign municipal planning to a tribunal consisting of officials and private persons: See JHB v Gauteng Development Tribunal Constitutional Court • SPLUMB assigns municipal planning to a tribunal consisting of officials and private persons • Municipal planning tribunals and DFA development tribunals almost identical – • Difference in who appoints: Premier v municipality • No provincial officials on municipal planning tribunal

4. CONSTITUTIONAL VALIDITY OF MUNICIPAL PLANNING TRIBUNAL (2) • What is the determining factor for constitutional validity? • A: Who appoints (Premier or municipality)? or • B:Who has the right to perform the function (municipality or tribunal)? • Constitution: section 156(1)(a): “A municipality has executive authority in respect of, and has the right to administer…municipal planning” • National government can regulate but may not impede • No problem with voluntary assignment of powers, including to a statutory body like municipal planning tribunal

5. PRACTICAL CONSIDERATIONS (1) • Previous experience with tribunals as decision makers of the first instance in KZN • Town Planning Commission (since 1952) • Private Townships Board (since 1952) • DFA Development Tribunal (since 1998) • Generally acted on advice from professional officials • Need for support staff (e.g. DFA Tribunal supported by 1 X Registrar, 3 X Deputy Registrar & 3 admin officials and 1 X Designated Officer per Municipality) • Chairman with 4 members hear an application • Adjourned hearings – difficulty in securing same quorum

6. PRACTICAL CONSIDERATIONS (2) • 2009 Reality • ± 1000 land development applications • 45 DFA applications • ± 60 hearings and inspections and continued hearings (more than 1 hearing a week) • Cost implications: ± R1,2 Million (avg. R20 000 a hearing) • This cost only relates to 5% of the applications, and excludes costs to the Department in terms of officials

7. PRACTICAL CONSIDERATIONS (3) • Implementation time and buy in – • Current KZN PDA – Taken 2 years to appoint Tribunal • Property Rates Act commenced in 2005 but by 2009 13 municipalities were about to lose R410 million in revenue because they have not implemented the Act • Sufficient expertise to support 261 municipalities? • Need at least 20 Tribunal members per municipality (=5200 members Nationally – Is there sufficient expertise available?) • Gauteng 14 000 applications annually (± 60 were DFA Tribunal) • Can all 14 000 applications go a tribunal route?

8. PRACTICAL CONSIDERATIONS (4) • Tribunal can work – • Highly capacitated municipalities + high level delegated decision making: Formalise existing situation • Municipalities that experience very low levels of development • Tribunal will not work – • Low capacity and + high levels of development • SPLUMB solution: Joint tribunals will only work where there is spare capacity not insufficient capacity • Municipal Planning Tribunals must be a voluntary option

9. SCOPE OF RIGHT OF APPEAL • SPLUMB: No right of appeal unless appellant can prove a right that has been adversely affected • Not many persons, other than an applicant appellant will be able to proof such a right • Planning authority can easily ignore IDP, national and provincial norms and standards, engineering reports, traffic impact assessments, need for community facilities etc without any fear of be challenged on appeal • Expect a lot of litigation to proof a right so that decision can be challenged on planning grounds • A person should be able to appeal on any planning ground, if he or she objected (Position in KZN 51years)

10. CONSTITUTIONAL VALIDITY OF AN INTERNAL APPEAL • A right of appeal • Can only be exercised against a final decision • Implies municipality has already determined the matter • Determining an application and imposing conditions = An administrative action: See Administrative Justice Act: • Definitions: “admin action” and “decision” • Constitution: section 33(3)(a): National legislation must provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal

11. CONSTITUTIONAL VALIDITY OF AN INTERNAL APPEAL (2) • SPLUMB: Appeal to the Executive Mayor or Executive Committee • Can it be an independent and impartial tribunal as required by the Constitution? • Applicant may have consulted ward councillor etc • Objectors may have consulted ward councillor • Officials may have consulted council before determination, especially if funding and services are involved (municipality responsible for bulk services) • Council may have to rely on officials who made the original decision for technical advice

12. PRACTICAL CONSIDERATIONS (1) • Previous experience with the hearing of appeals in KZN • Town Planning Commission • Town Planning Appeals Board • Development Appeal Tribunal

13. PRACTICAL CONSIDERATIONS (2) • Is the Executive Mayor or EXCO best geared to deal with – • Exchange of documents? • Site inspections? • Leading of evidence? • Expert evidence? • Cross-examination? • Points of law? • Multi day hearings? • Volume of appeals?

14. HOW DO THE PROVINCIAL LAWS DEAL WITH APPEALS? • Northern Cape: Use DFA Appeal Tribunal • KwaZulu-Natal: Provincial Appeal Tribunal soon to be replaced by independent municipal appeal tribunals (experts from private sector) • Gauteng Bill: Appeal Tribunal appointed jointly by municipalities, experts, officials and private sector • Western Cape Bill: Land Use Planning Board, review body appointed by MEC, experts, officials and private sector • Free State Bill: Appeal Tribunal appointed jointly by municipalities, experts, officials and private sector

15. GERT ROOS 14th Floor, North Tower Natalia Building 330 Langalibalele Street Pietermaritzburg, 3200 Tel: (033) 33 395 2656 Fax: (033) 33 3949 714 E-mail: gert.roos@kzncogta.gov.za Website: www.kzncogta.gov.za