1. The act, regulations and municipal by-laws
SPLUMA as an Act was placed on the Statute in August 2013 subject to a proviso that all or parts of the provisions of the Act would come into operation at a later date by the publication of a notice in the Government Gazette under the hand of the President.
The Regulations to SPLUMA were promulgated on 1 July 2015.
Constitutionally, Municipalities are authorised to prepare and adopt by-laws to give effect to their various responsibilities within their areas of jurisdiction. This includes a by-law pertaining to spatial planning and land use matters, as would be contemplated in SPLUMA. Based on a number of court judgements dealing with this matter, there appears to be general consensus that all municipalities will eventually prepare and adopt by-laws with regard to spatial planning and land use matters, which by-laws will have to align with the principles enshrined in SPLUMA and its Regulations.
The various provincial governments are in the process of preparing “model” by-laws in the form of a generic “template which may be used by individual municipalities to guide and inform the preparation and adoption of municipal specific by-laws. A number of the larger metropolitan municipalities are well progressed with having prepared draft by-laws. The SAACPP has been informed that the draft by-laws for municipalities such as the City of Tshwane and the City of Cape Town have indeed been “approved in principle” and will soon be published for public comment with a view to bringing such by-laws into operation.
The municipal by-laws will essentially present as a municipal specific “SPLUMA”, providing for all of the various land development applications which were initially contemplated in the National Act. Although the municipal by-laws are required to align appropriately with the provisions in SPLUMA and its Regulations, it may be expected that different municipal jurisdictions will indeed have different by-laws.
The original intention of SPLUMA to create a nationally uniform system with regard to spatial planning and land use management will therefore not be achieved and may be scuppered by procedural and other differences which may apply from one municipality to the next. It is important to note that, whilst the various provincial governments are preparing “model” by-laws, there are no obligations on the various municipalities within such provinces to adhere strictly to the provisions of the model by-laws. The model by-laws will merely serve as a type of guideline to be used (or not) by the affected municipalities (at their discretion).
2. PROVINCIAL ACTS
Against the aforesaid background, it appears that the original intention, to bring various provincial acts on spatial planning and land use management into effect (ostensibly to give effect to SPLUMA), has changed substantially. Given the constitutional realities which dictate that spatial planning and land use matters remain the sole province of a municipality, provincial acts (such as the old planning ordinances or the proposed provincial planning acts) appear not enjoy any form of constitutional status any longer.
Whilst it remains necessary to bring provincial legislation into effect to primarily repeal old order town planning ordinances and related legislation (such as the Gauteng Removal of Restrictions Act and the Division of Land Ordinance 20 of 1986) such provincial acts will have little if any bearing on the day-to-day determination of land development applications. It is expected that the provincial legislation will be focused primarily on repealing the old order legislation and touching on a number of provincial concerns which may have a bearing on spatial planning and land use management matters where co-operation by participating municipalities may be required.
3. THE WAY FORWARD
Against the aforesaid background, it appears evident that:
- SPLUMA and its Regulations came into effect on 1 July 2015;
- Various municipalities will jump at the opportunity to enact municipal specific by-laws with regard to spatial planning and land use matters;
- The existing provincial town planning ordinances and related legislation such as the Gauteng Removal of Restrictions Act will remain in operation until repealed by provincial legislation at some time in the future. The timeframe in this regard is uncertain;
- Old order legislation will, over time, be repealed, resulting in spatial planning and land use matters falling solely within the ambit of municipal by-laws.
This implies that there will no longer be any independent appeal body to hear disputes when an applicant is aggrieved by a decision of a municipality. A Municipal Planning Tribunal will hear matters of first instance, whilst the same Municipality will appoint it’s own Municipal Appeal Tribunal to hear appeal matters as contemplated above.
There is talk that, notwithstanding the absence of provincial legislation repealing old order ordinances and acts, it will somehow be decreed that, once a municipal by-law is officially adopted for a particular municipal jurisdiction, all land development applications within such jurisdiction will be required to be prepared and submitted and determined in terms of the by-law (and nothing else). Pending applications submitted in terms of the old order legislation will be finalised in terms of such old order legislation. It follows that the Provincial Townships Boards may continue to exist for an appropriate period of time to dispose of the various contested matters submitted in terms of the laws and ordinances relevant thereto. These matters are however still being debated by various law advisors.
4. AGRICULTURAL HOLDINGS
It is rumoured that processes are underway to arrange for the National Minister of Public Works to delegate his authority derived from the Agricultural Holdings (Transvaal) Act 1919 to either the relevant provincial departments, alternatively to the responsible municipalities, to decide on matters pertaining to the excision of agricultural holdings. Currently such authority remains solely with the Minister of Public Works.
5. PENDING DFA APPLICATIONS
There has been some concern on the part of planners and their clients regarding the practicalities of giving effect to Section 60 of SPLUMA – i.e. the “transitional” provisions pertaining to pending DFA applications.
The SPLUMA Regulations of March 2015 are curiously silent on this matter. During the recent National Co-ordinating Forum Meeting, representatives of Rural Development and Land Reform confirmed that, in their view, this would be a matter to be addressed in the municipal by-laws of municipalities in provinces where the DFA was in use – this excludes, inter alia, Western Cape and Free State (by example).
The South African Association of Consulting Professional Planners has not thus far viewed any draft municipal by-laws that contain any provisions regarding DFA matters. In the absence thereof, it is expected to result in potential technical disputes regarding procedural matters.
Nevertheless, once the Act and Regulations come into effect (expected in July 2015), it will be possible for applicants of pending DFA matters to approach the relevant municipality to proceed to finalize such matters in terms of Section 60 of SPLUMA. How this will be done, remains the important question – only time will tell.