Presentation on the Land Use Management Bill by the City of Johannesburg PORTFOLIO COMMITTEE ON AGRI

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Presentation on the Land Use Management Bill by
the City of JohannesburgPORTFOLIO COMMITTEE ON
AGRICULTURAL AND LAND AFFAIRS

• 31 July 2008

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INTRODUCTION

• The long awaited Bill is welcomed
• There are many aspects that are positive
• This draft is a distinct improvement on previous
  drafts.
• There are however areas of concern and
  disappointment.
• Expectations of the 2001 White Paper have not
  been entirely met
• There are a number of substantive areas where
  clarification and improvement is needed.
• This presentation deals with 7 main areas of
  concern.
• See written submission and detail

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Basis for comments on the draft

• The White Paper on Spatial Planning and Land Use
  Management of 2001
• Extent to which objectives were met
• Strategic developmental priorities
• Constitutional Objectives of Local Government
• Strategic priorities of the City of Johannesburg
  (e.g. informal settlement regularization)
• Relationship with other legislation
• Stated intention in the White Paper was one piece
  of enabling legislation with a single set of
  procedures
• Continued existence of parallel provincial
  legislation
• Practicality and Implementation
• Difficult to assess because detailed procedures
  will be in Regulations

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Comparison between the White Paper and the LUMB

• Some expectations are met
• E.G. Land use regulators provided for
• Uniform set of procedures (but regulations
  awaited) however, it is still possible for
  provinces to legislate different sets of
  procedures
• Principles, norms standards incorporated
• BUT others are not met
• Doesnt address existing legislation and new acts
  and Ordinances
• Roles of the different spheres of government not
  adequately clarified
• Role of spatial policy is underplayed
• Environmental Management and Development planning
  procedures remain separate procedures

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Positive aspects which the COJ supports

• The nature of the land use regulator is
  consistent with existing good practice.
• Functions of the different spheres have been
  clarified to some extent
• Overlaps that have led to litigation have been
  partly removed
• Constitutional principle for provinces to
  assist, facilitate, support and strengthen the
  capacity is confirmed in the Bill
• There is greater clarity on the meaning of
  forward planning and development
  administration
• The limitation of 5 years validity of approved
  applications is confirmed (deals with the problem
  of latent rights)

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Major areas of concern

• Lack of integration with environmental management
  and other forms of planning
• Lack of clarity on what constitutes National and
  Provincial interests
• Continued co-existence of separate/parallel
  legislation
• Lack of attention to the role of spatial policy
• Lack of consideration to engineering and social
  infrastructure
• Dealing with Informality within the City ( the
  DFA)
• Specific problems with practicality and
  implementation

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1. Lack of integration with environmental
management and other forms of planning

• Good practice internationally in recent years has
  included the full integration of environmental
  management and development applications
• The White Paper proposed this integration, the
  Bill is entirely silent on this
• Fragmented systems will continue into the future

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2. Lack of clarity on what constitutes National
Provincial interests

• Overlap and uncertainty on provincial and local
  government roles in planning led to litigation
• Bill does remove some of the overlap by
  recognising provincial national interests
• However, the determination and interpretation of
  what constitutes national and provincial
  interests is open to debate and may be a source
  of future contestation
• COJ position
• Principle accepted that provinces should deal
  with provincial interest applications and cross
  boundary interests
• Act should specify determination of interest and
  adjudication in disputes on interpretation
• Act should provide further guidance on how to
  delineate interest e.g. environmental issues,
  engineering services, transport
• The requirement that prescribed applications by
  the City must be dealt with by province may be a
  problem if the prescription deals with detailed
  local matters

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3. Continued co-existence of separate/parallel
legislation

• The City has suffered considerable difficulties
  around parallel and overlapping processes
• The White Paper promised a single piece of
  enabling legislation with common processes
• The Bill is not clear how the LUMB will co-exist
  with existing national and provincial legislation
  (Acts Ordinances)
• The Bill repeals some national legislation but is
  silent on the relationship with other national
  legislation (e.g. environmental) and does not
  address provincial Ordinances and Acts.
• We are unclear for example whether an application
  could be submitted in terms of provincial
  legislation as an alternative to the Bill.

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4. Lack of attention to the role of spatial
policy

• The major advance in spatial planning post 1994
  has been the shift towards policy led decision
  making in development planning applications
• Key advances have been IDPs and related SDFs
  (and other instruments such as introduced in the
  COJ)
• Section 35 of the MSA states that the IDP binds
  executive decision making.
• The DFA recognized this principle (bound by
  LDOs)
• 2001 White Paper gave strong emphasis to the role
  of policy in guiding or leading decision making
  IDP- based spatial planning
• The Bill gives insufficient weight and emphasis
  to the importance of producing and implementing
  spatial policy (although Section 44(1)(b) does
  require consistency with policy).

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5. Lack of consideration to engineering and
social infrastructure

• Current national problems around electricity
  highlight the importance of giving explicit
  recognition to infrastructure in planning
  processes
• The Bill makes no mention of the engineering or
  social infrastructure that is required with
  development
• The Bill should at least state that there should
  be no change in land use, form or function
  (application) without the consideration of
  engineering services, social infrastructure, and
  open space requirements
• The Bill should also deal with developers
  contributions toward the provision of
  engineering services, social infrastructure, and
  open spaces.

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6. Dealing with Informality within the City (
the DFA)

• Informality is a major feature of the urban
  landscape (COJ has over 180 informal
  settlements)
• The Bill gives no guidance or procedure for
  dealing with this urban reality
• Government at all levels has prioritized
  regularization of informal settlements by 2014.
• The extra-ordinary measures for dealing with
  tenure and settlement within the DFA could have
  been incorporated within the Bill
• Unfortunately the DFA has generally not been used
  for what it was intended for (e.g. Bypass some of
  the policies applicable within the City)
• There are however some important provision in the
  DFA which should not be lost.
• The COJ for example is in the process of
  initiating a major programme to fast track
  regularization of informal settlements and
  requires the legal instruments to do so.

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7. Specific problems with practicality and
implementation

• Regulations
• It is difficult to on comment or understand some
  of the provisions of the Bill without knowledge
  of the Regulations will the Bill be
  implementable?
• For example would the prescribed period for
  making decisions be feasible?
• Land Use Regulator (Membership and Term of
  Office)
• Members should be prohibited from serving on the
  Land Use Tribunal (Provincial) if they submit
  applications in jurisdiction

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Specific problems with practicality and
implementation

• Clause 56 is unrealistic as it brings a decision
  into operation without recording of land
  information with the Surveyor General, the
  Registrar and other databases.
• Clause 54 states that an amendment scheme shall
  have the force of law, without requiring
  publication (is this the intention?)
• It is a legal principle that to have force of law
  it should be published
• The Bill is silent on the municipalities right to
  ensure the compliance with conditions before the
  activation of a decision
• Clause 71 43 are not conducive to public
  participation
• Schedule 1 on land use purposes is silent on
  de-proclaimed mining land
• Clarity is required on the exclusion of the power
  to delegate to municipal officials decisions on
  land use applications. (Could have significant
  practical implications if unopposed applications
  cannot be delegated) Clause 61