With the advent of municipal by-laws regulating spatial planning and land use management matters, a number of municipalities have indicated that, when land development applications are given notice of to interested and affected parties, and when the document bundles and plans lie for inspection during the notice period, the municipality will not provide copies of such documents to those who enquire and those who intend to raise objections or make representations.Whilst the sharing of documents is a well-known and established practice within the law profession, the Association is aware of a number of incidents where the responsible planning consultants have been reluctant to make the documents available upon request.
The responsible planning consultants are therefore approached to make the documents available to interested and affected parties. Members of the Association are kindly reminded of the Code of Conduct of the SAACPP, read with the Code of Conduct of the South African Council for Planners. Also, members of the SAACPP are reminded that, to withhold the documents under your control (acting for the land development applicant) may potentially be to the detriment of your client in the longer term as, when the matter proceeds to hearing, opposing parties may argue that the full complement of documents relevant to the application was never available to them and, as a result, they were hampered in the preparation for the hearing. There are various examples where, under such circumstances, the Municipal Planning Tribunal or Planning Committee or Townships Board or similar body has granted a postponement and has directed the parties to exchange documents to the extent required.
The underlying principle in this matter is that, when a land development application is placed in the public domain and is given notice of, as required in the ruling legislation, responding parties must be placed in a position to be fully informed of the matter and to prepare for whatever hearing may follow, such that the process be concluded within the shortest possible time (and, we submit to the benefit of all concerned considering costs associated therewith).
It follows that withholding documents from interested and affected parties under such circumstances is generally not justified and may indeed be to the direct detriment of the interests of the planning consultant’s client. Members of the SAACPP are therefore encouraged to make the documents available to those who enquire (obviously within the defined timeframes in terms of the ruling legislation). Also, there is no obligation on the planning consultant to provide such documents “free of charge”. Where the documents are not capable of being provided in electronic format (by way of e-mail or other means) and, where the enquiring party insists on a hard copy, it is reasonable to recover the costs associated with copying the documents for such purpose.
Certain practitioners also argue that it is not necessary to provide the full application bundle to an enquiring party. Certain parts of the application are then selectively copied and made available. This may also be to the detriment of the instructing client in that the party enquiring about the matter may later, at a hearing argue that parts of the document bundle were not available for the purpose of preparing for the hearing and, as a result, a postponement may be justified under such circumstances. It follows that, where applicable, it will be prudent for the planning consultant to provide the full application bundle to the enquiring party so as to avoid downstream difficulties with regard to applications for postponements and the associated delays.