The Demise And Resurrection Of The Provincial Townships Appeal Board
Provincial Powers (with specific regard to Gauteng) had resolved not to extend the term of office of the Gauteng Townships Appeal Board (which came to an end in June 2016). This, notwithstanding the fact that a number of undecided Townships Board Appeals and related matters remained pending at the time.
In the interim, the Constitutional Court has passed judgement with regard to the so-called Tronox KZN Sands matter which has a direct bearing on matters which may generally be described as “transitional arrangements” relevant to the coming into effect of new legislation such as the Spatial Planning and Land Use Management Act, 2013 (SPLUMA). In this regard refer to Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others [2016] ZACC 2.
In short, the Tronox Judgment pronounces on the principle that matters pertaining to land development (generally speaking) remain the sole province of the affected municipality and, as a result, a provincial body (such as a Provincial Appeal Tribunal or Townships Appeal Board or similar) has no place in the new constitutional dispensation, with particular reference to the period post the coming into effect of SPLUMA in July 2015. To quote from the High Court Judgment, the Honourable Lopes J confirmed that a provincial body “… cannot entail appellate oversight of zoning and subdivisions decisions”.
However, the same judgment also confirms that land development applications submitted to the relevant authorities in terms of legislation, other than SPLUMA (including provincial ordinances or similar) prior to the coming into effect of SPLUMA in July 2015 must, of necessity, be concluded in terms of the provisions of the prevailing legislation at the time (i.e. the provincial ordinances or similar).
Hence the resurrection of the Gauteng Townships Appeal Board and similar bodies responsible for finalising matters which were initiated prior to the coming into effect of SPLUMA in July 2015.
Although the details are not yet known, the it may be confirmed that the Gauteng Provincial Government will be reinstating the Townships Appeal Board by extending its term of office with a view to finalising the pending matters lodged with the Board in terms of, inter alia, the Town Planning and Townships Ordinance, 1986 (Ordinance 15 of 1986), the Gauteng Removal of Restrictions Act, 1996 (Act 3 of 1996) and applications for excision in terms of the Agricultural Holdings (Transvaal) Act, 1919.
As on date of this circular, the Township Board is not functional, given the expiry of its initial term of office in June 2016. As soon as the formalities have been finalised with regard to the extension of the Board’s term of office, it will again commence its business and members will be informed accordingly. The urgency of the matter suggests that this will be attended to soon.