guideline restrictive conditions march 2009 · applications for the alteration, suspension or...

DIRECTORATE: LEGAL SERVICES

GUIDELINE ON THE ALTERATION, SUSPENSION AND DELETION OF RESTRICTIVE CONDITIONS IN TERMS OF THE KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008 (ACT NO. 6 OF 2008)

MARCH 2009

(LS) 2/17/3/LG/3/09

Prepared by: G. L. Roos

Tel: (033) 395 2656

Cell: (072) 624 4070

Fax: (033) 394 9714

Email: [email protected]

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1. BACKGROUND

The purpose of this document is to provide guidance on the alteration, suspension and

deletion of conditions of title from deeds registered in the Deeds Office in terms of the

KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008).

2. DEFINITIONS For the purposes of this document:

"municipality" means a metropolitan council or a local municipality;

"the Act" means the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of

2009).

3. COMMENCEMENT OF THE CHAPTER OF THE ACT DEALING WITH THE ALTERATION, SUSPENSION AND DELETION OF CONDITIONS Chapter 6 of the Act provides for the alteration, suspension and deletion of conditions of title

and approval. Chapter 6 of the Act was brought into operation with effect from 1 March 2009

(See Annexure A). Other related chapters of the Act were also brought into operation to the

extent necessary, including Chapter 8 which provides for the prosecution of a person who

develops land contrary to a condition of title, Chapter 9 which provides for the compensation

for the alteration, suspension or deletion of a condition of title under certain circumstances and

Chapter 10 which provides for the establishment of the KwaZulu-Natal Planning and

Development Tribunal which will hear appeals against decisions by municipalities on the

alteration, suspension and deletion of conditions of title. The rest of the provisions of the Act

will be brought into operation at a later date, probably 1 October 2009.

Conditions of title were previously altered, suspended or removed in terms of the Removal of

Restrictions Act, 1967 (Act No. 84 of 1967) which is repealed by the Act.

A restrictive condition of title can also be altered, suspended or deleted by the court, but only if

there are no objections.

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4. APPLICATIONS FOR THE ALTERATION, SUSPENSION OR REMOVAL OF RESTRICTIVE CONDITIONS SUBMITTED BEFORE 1 MARCH 2009 Applications for the alteration, suspension or removal of restrictive conditions submitted

before 1 March 2009 must be processed as if Chapter 6 of the Act has not commenced, with

the exception of applications for the alteration, suspension or removal of restrictive conditions

of title which have been deleted by the Act (see 5. of this document). Applications for the

alteration, suspension or removal of restrictive conditions of title which have been deleted by

the Act will be returned to the applicants with a covering letter explaining that an application is

no longer required.

5. CONDITIONS WHICH DO NOT REQUIRE AN APPLICATION IN ORDER TO BE DELETED

Some conditions of title are deleted by the Act with effect from 1 March 2009 [section 60(4) read with item 3 of Schedule 5]. These conditions of title have been deleted because there

are sufficient other legal instruments which regulate the same subject matter, for example the

National Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977),

schemes and municipal by-laws. Conditions of title which are deleted by the Act must be in

favour of the Administrator, Premier, a MEC or the general public and must prohibit the

subdivision of land, restrict the use of a property to one dwelling house, restrict the use of land

to residential purposes, prohibit the use of certain building materials for the erection of

buildings or require the submission of building plans.

Conditions of title in favour of private persons or other entities, including the owner of another

property, are not deleted by the Act, irrespective of their scope.

It is not always obvious that a condition is in favour of a private person or other entity. The

reference to who the condition is in favour of is often contained in an introductory paragraph

which precedes the conditions, for example "…subject to the restrictive conditions imposed by

the owner of the Remainder of Lot XXXXX of the farm XXXX and created under Deed of

Transfer XXXXX, namely:…" or in a concluding paragraph which follows the conditions, for

example "The foregoing conditions shall operate as servitudes over the property hereby

transferred in perpetuity in favour of Lot XXXXX". The introductory or concluding paragraph

often only contains a reference to the deed under which the conditions were originally created,

for example "Subject to the following special conditions created in deed of Transfer XXXXX,

and reading:…". The deed under which the conditions were originally created must then be

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studied in order to establish whether or not the condition was in favour of a specific person or

entity.

Conditions of title in favour of the Administrator, Premier, a MEC or the general public which

falls outside the scope of item 3 of Schedule 5 of the Act are not deleted by the Act.

It is not necessary for an applicant to make an application in terms of Chapter 6 of the Act to

delete a condition of title that has been deleted by the Act [section 60(4)]. However, this

does not exempt an applicant from the need to comply with any other laws or legal

instruments, including other applications which may be required in terms of the Act or in terms

of the Ordinance, the Development Facilitation Act, 1995 (Act No. 67 of 1995), the National

Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977), or the

provisions a scheme.

An authority can ignore a condition of title that has been deleted by the Act when it considers

an application in terms of another law or legal instrument.

The Registrar of Deeds will remove conditions of title that have been deleted by the Act when

a property is transferred.

There are also conditions of title which have been deleted by national legislation:

(a) Conditions of title with racial connotations were deleted in terms of section 28 of the

General Law Amendment Act, 1969 (Act No. 43 of 1999).

(b) Conditions of title which required the approval of national government or of a holder of an

office in national government before a property can be transferred from one person to

another were deleted in terms of section 1 of the Abolition of Certain Title Conditions Act,

1999 (Act No. 43 of 1999). The following conditions of title are excluded:

(i) a condition of title imposed under a town planning scheme or a land use control

mechanism having the effect of a town planning scheme (not found in schemes in

KwaZulu-Natal);

(ii) a condition of title which affect rights to minerals;

(iii) a condition of title that determines a period during which a piece of land may not be

alienated or transferred, if such period has not expired;

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(iv) a condition of title that determines that the ownership of a piece of land will revert to

the State if that condition is breached;

(v) a condition of title that determines that the State may resume ownership of a piece

of land for public purposes;

(vi) a condition that establishes a right of pre-emption in favour of the State (right to buy

a property before it is offered to someone else);

(vii) a condition of title that was imposed as a condition of a permit or authorisation

issued in terms of the Water Act, 1956 (Act No. 54 of 1956), before the repeal of

that Act by the National Water Act, 1998 (Act No. 36 of 1998);

(viii) a condition of title in respect of land owned by the State; and

(ix) a condition of title that relates to land of which the holder of the office in question is

the nominal owner, holding it in a fiduciary capacity (the land is registered in

someone else's name but the State has a right to use the land).

6. SCOPE OF THE ALTERATION, SUSPENSION AND DELETION OF CONDITIONS IN TERMS OF THE ACT Section 60 of the Act limits the alteration, suspension and deletion of conditions as following:

(a) Condition must be a condition of title or a condition of approval

Chapter 6 of the Act provides for the alteration, suspension and deletion of conditions of

title and conditions of approval. Conditions of title are conditions contained in deeds of

transfer, certificates of ownership, permission to occupy certificates and other forms of

ownership registered in the Deeds Office. Conditions of approval are conditions subject

to which an application in terms of the Act was approved. Until the remainder of the Act is

brought into operation (1 October 2009 if everything goes according to plan), the only

applications that will be approved in terms of the Act are applications for the alteration,

suspension and deletion of conditions of title.

(b) Condition must be a restrictive condition

Most deeds contain both restrictive conditions of title and benefit conditions of title.

Restrictive conditions are usually identifiable by words such as "Subject to…",

"Onderhewig aan…", "The owner of the lot shall…", "Except…" or "No…". The Act may

only be used to alter, suspend or delete restrictive conditions. Restrictive conditions of

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title are conditions in the deed of a property which restricts the development of the

property. A right of way over a property restricts the development of a property. The Act

may therefore be used to remove a right of way in favour of another property.

Benefit conditions of title are usually identifiable by words such as "With the benefit of…",

"Met die voordeel van…" or "With the use of…". Benefit conditions of title are conditions

in the deed of a property which restricts the development of another property. A right of

way over another property does not restrict the development of a property. The Act may

therefore not be used to remove a right of way from which a property benefits. It is not

possible to use the Act to "clean up" deeds because it may not be used to alter, suspend

or delete benefit conditions of title.

(c) Condition must relate to the subdivision of land, consolidation of land, use of land, or the

erection of buildings on land

Most deeds contain different types of conditions. The Act may only be used to alter,

suspend or delete conditions of title which relate to the subdivision of land, consolidation

of land, use of land, or the erection of buildings on land. Conditions of this nature are

listed in Annexure B.

7. ALTERATION, SUSPENSION AND DELETION OF CONDITIONS

(a) Alteration of conditions

The Act intentionally uses the word "alter" instead of "amend" or "substitute" which are

wider terms. A condition of title should be altered when its needs to be reworded. A

condition of title should not be reworded to the extent that it is effectively replaced (see

also 5(c) of this document).

(b) Suspension of conditions

There is seldom a need to suspend a condition of title. A condition of title should be

suspended if an action is necessary which is contrary to a condition but the condition

cannot be deleted because it is still required in future. For example, a condition of title

which prohibits the subdivision of a property can be suspended if a portion of the property

is required by the municipality to widen a road.

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(c) Deletion of conditions

Most applications in terms of Chapter 6 of the Act will be applications for the deletion of a

condition of title. A condition of title must be deleted when an applicant wants to develop

or use land contrary to it.

Applicants should first check item 3 of Schedule 5 of the Act to see if a condition of title

has not already been deleted by the Act (see also 5. of this document).

The whole deed should be scrutinised for consequential changes when an application is

made for the deletion of a condition of title. For example, when a condition of title that

restricts the use of a property is deleted, provisions which reserve the restrictions in

favour of a particular person or which create a right of appeal to the Administrator must

also be deleted, unless the provisions are also applicable to other conditions which will

remain.

To replace a condition of title, the condition of title must be deleted subject to the

imposition of a more suitable condition of title.

8. PROCESS FOR THE ALTERATION, SUSPENSION OR DELETION OF RESTRICTIVE CONDITIONS (a) Each municipality can develop its own application form for applications. An example of an

application form is attached at Annexure C.

(b) No application fees are prescribed in the Act. If a municipality wants to charge application

fees, it must impose an appropriate tariff in terms of section 74 of the Local Government:

Municipal Systems Act, 2000 (Act No. 32 of 2000).

(c) Part 1 of Schedule 1 of the Act must be followed by a private person or organ of state if it

wants to alter, suspend or delete a condition of title. See Annexure D for a flow diagram

based on Schedule 1 of the Act.

(d) Part 2 of Schedule 1 of the Act must be followed by a municipality if it wants to alter,

suspend or delete a condition of title in respect of land which it owns. See

Annexure D for a flow diagram based on Schedule 1 of the Act.

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(e) A municipality can request additional information from the applicant [item 1(2)(f) of Schedule 1], including other approvals or consents from other organs of State which a

municipality considers necessary in order to consider an application.

(f) Specific provision is made for the calculation of days in the Act [section 159]. Days

should be calculated by counting the next day as the first day of a period. If an

application is received on a Monday, the first day of the period will be the next day i.e.

Tuesday. Weekends (non-working days) are included in the period, unless they include

public holidays or the last day falls on a weekend. If the last day falls on a weekend, the

last day will be the Monday thereafter. All public holidays are excluded, even if they fall

on a weekend.

(g) It is important that a municipality observe the stipulated time frames as failure to do so

can result in an award of damages against a municipality [item 13 of Schedule 1].

9. GIVING OF PUBLIC NOTICE OF AN APPLICATION FOR THE ALTERATION, SUSPENSION OR DELETION OF A RESTRICTIVE CONDITION (a) A municipality has a duty to consult the public before it makes a decision which affects the

public [items 5(1) and 14(1) of Schedule 1]. A municipality must therefore publish a

notice inviting the public to comment on an application.

(b) It is recommended that the municipality summarise the relevant conditions of title in

notices in order to keep the cost of consultation down without compromising the right of

the public to be informed of an application and the scope of the application. See the

following annexures in this regard:

Annexure B: Summary of conditions of title for the purposes of drafting notices inviting

public comment and drafting council resolutions

Annexure E: Example of alteration of a condition

Annexure F: Examples of how to summarise compound conditions or multiple conditions

within the same deed

Annexure G: Standard wording for notices inviting public comment on an application to

alter, suspend or delete restrictive conditions of title

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(c) An applicant can by agreement give notice of an application on behalf of a municipality. A

municipality should require proof that notice was given [item 6(2) of Schedule 1].

(d) The manner in which notice may be given is prescribed. See service of documents

[section 158].

(e) The period for public comment is 30 days.

(f) A site notice is required, unless it is impractical [items 6(4) and 15(2) of Schedule 1].

(g) Notice must be given to all interested parties, including neighbours and other land owners

within 100 metres from the boundary of the property, the local municipal councillor, and

organs of state [items 6 and 15 of Schedule 1]. Interested parties include bondholders.

In the case of an application for the deletion of a condition of title which creates a

servitude, interested parties should include all servitude holders, irrespective of the

distance of their properties from the property to which the deed relates.

(h) Notice can be given to a body corporate or a home owners association instead of

individual land owners in the case of apartment buildings, simplexes and duplexes etc.

[items 6(1)(b)(i) and 15(1)(b)(i) of Schedule 1]

(i) Notice must be given in a newspaper which is distributed in the area concerned [items 6 and 15 of Schedule 1]. A municipality is required to give notice in a newspaper in its

official languages, having regard to the language preferences and usage within its area.

The language of a notice should be the same as the language of the newspaper in which

it is published.

(j) If it is impractical to give personal notice to all affected parties or to display a notice on

site, a municipality may hold a public hearing instead [items 6(4) and 15(2) of Schedule 1]. It is highly unlikely that the court will accept that it was not practical to give

personal notice to all affected parties or to display a notice on site in the case of an

application for the alteration, suspension or deletion of a restrictive condition of title.

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(k) The contents of a public notice for an application are prescribed [items 6(2) and 14(2) of Schedule 1]. See also Annexure G.

(l) Specific provision is made for petitions and correspondence with groups [items 7 and 16 of Schedule 1]. A municipality must interact with the authorised representative of the

group or, if it does not have an authorised representative, with the person whose name

appears first of the list of names.

10. ASSESSMENT OF APPLICATION BY A PROFESSIONAL PLANNER OR TECHNICAL PLANNER

(a) A professional planner or technical planner who is registered with the South African

Council for Planners must assess applications for the alteration, suspension or deletion of

conditions of title and certify that due procedure has been followed [section 63]. The

professional planner or technical planner can be an official or a consultant employed by

the municipality. The professional planner or technical planner's report must be in writing.

The report must be considered within the time allowed for the municipality to make a

decision (see Annexure C).

(b) A professional planner or technical planner who certifies that an application complies with

the Act when it is defective is guilty of a criminal offence and can be charged for

misconduct by the South African Council for Planners [section 88].

11. MATTERS WHICH MUST BE CONSIDERED WHEN CONSIDERING AN APPLICATION The matters which must be addressed in the report of the professional planner or technical

planner are stipulated in the Act [section 64]. The report does not have to address matters

which are not relevant to a particular application. Where a property is within the area of a

scheme, the scheme often regulates the same matter as the conditions of title

[section 64(k)] in which case the conditions of title can usually be removed. However,

schemes are general instruments which treat all properties of a specific zoning the same. A

specific arrangement is sometimes made by way of a condition of title. For example, a wider

building line may be required in order to increase the sight distance at a busy intersection and

in so doing promote road safety.

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12. DECISION ON AN APPLICATION

A municipality may approve or refuse an application. A municipality may approve an

application subject to conditions. A municipality may delegate the power to decide application

[section 156]. If the power to decide applications has not been delegated to the professional

planner or technical planner, the professional planner or technical planner must make a

recommendation to the council, committee or person to who the power to decide applications

has been delegated. The municipality must record the reasons for every decision that it

makes in terms of the Act. See Annexure H for standard wording for resolutions to approve

and refuse applications.

13. PERSONS WHO MUST BE NOTIFIED OF A DECISION The municipality must notify the applicant and everyone who commented on an application of

its decision [section 66]. The municipality does not have to provide reasons for its decision or

the conditions subject to which an application was approved, unless it is requested to do so

[section 66(3)].

14. APPEAL AGAINST DECISION The applicant of a person who commented on an application may appeal against the decision

of the municipality. The appeal process is contained in Chapter 10 of the Act [sections 113 to 124]. See Annexure I for a flow diagram of the appeal process.

15. EFFECTIVE DATE OF DECISION A decision on an application comes into effect upon expiry of the appeal period (28 days after

the decision was taken) or upon the finalisation of the appeal, if an appeal was lodged.

16. SUBMISSION OF DOCUMENTS TO REGISTRAR OF DEEDS

An applicant must submit a copy of the resolution of the municipality to approve an application

signed by the municipal manager, a certificate issued by the municipality certifying that the

conditions of approval that have to be complied with before a condition of title may be altered,

suspended or deleted, and a copy of the relevant deed to the Registrar of Deeds [section 69].

The Registrar of Deeds can request additional documents from the applicant, if necessary.

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17. ENFORCEMENT

It is a criminal offence to develop, subdivide or consolidate land contrary to a restrictive

condition [section 75].

If irreparable harm will not be caused to land or buildings, the municipality must serve a

contravention notice on the offender [section 79(1)], informing the offender that the activity is

illegal and giving the offender time to discontinue the illegal activity. If the illegal activity is

continued, the municipality must serve a prohibition order on the offender and prosecute the

offender in a court of law.

If irreparable harm will be caused to the land or buildings, the municipality must serve an

urgent prohibition order on the offender [section 84(1)], obtain an interdict to prevent the

illegal activity, and prosecute the offender in a court of law.

A municipality can regularise an existing illegal development by subsequently approving and

application for the alteration, suspension or deletion of a condition of title which prohibits the

development. A municipality must impose a penalty of between 10% and 100% of the value

of the illegal buildings or land use when it regularises an illegal development [section 89(3)]. The municipality's approval lapses if the penalty is not paid in full with 28 days.

A municipality may only enter upon land for the purposes of the Act with the consent of the

land owner or occupier of the land [section 91(1)]. If the consent of the owner or occupier

cannot be obtained, or if the purpose of the inspection will be frustrated if the owner or

occupier had prior knowledge thereof, the municipality must obtain a warrant from the

magistrate of the district.

18. COMPENSATION

The Act provides for compensation where a person has suffered loss or damage as a result of

the alteration, suspension or deletion of a restrictive condition [section 97]. A person who

wants to claim compensation must prove loss or damage, a mere loss of a right is not

sufficient. A person who has suffered loss or damage must claim compensation within three

years directly from the person who was the owner of the land when the application was

approved. An example of when compensation may be payable is where a person has to

establish a new access road to a property as the result of the deletion of a condition of title

which created a servitude.

12 Maart 2009 Ule Prov~nstale Koerant van KwaZulu-Natal

PROVINCIAL NOXICESPROVINSIALE KENNISGEWINGS-IZAZISO ZESIFUNDAZWE

The iollowing notices are published for general information. Onderslaande kerinisgewings word vis algemene iriligring aeoubiiseer. -

DR K B MBANJWA D~rector-General

C)R K B MBANJMIA Direkteur generaai

300 Langaiihatele Street Langal~balelestraat 300 P~eierinariizburg Pietermar~tzburg 12 March 2009 12 Maart 2009

izaz~so eziiandelayo z~kh~sheiwe ulwaz~ lukawonkewonke

DKT. K, R. MBANJWA uMqondisi-Jikelele

300 Langalibaiele Street Pie?erma<itzburg 12 kuNdasa 2009

No. 37 12 March 2009

DEPARTMENT OF LOCAL GOVERNMENT AND TWDITIONAL AFFAIRS

COMMENCEMENT OF PROVISlONS OF THE WmULU-NATAL PLANNING AND DEVELOPMENT ACT,

2008

In terms of section 164 of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), I

determine that Chaptefs 6,10 and 11, item 15 of Schedule 2 and Schedule 5 of the Acl and Chaptern 1 , 8 , 9 and

12 and Schedule 1 of the Act in as far as it relates to the alteration, suspension and deletion of rmtdclions

relating to land; the KwaZulu-Natal Planning and Development Appeal Tribunal and provincial planning and

development norms and standards come into operation on 1 March 2009.

M. MABUYAWULU, MEC: Local Government, Housing and Traditional Affairs

Date: 11 Febmary 2009

No. 37 12 kuNdasa 2009

UKUQALISWA WEZIHLINZEKO ZOMTHETHO WOKUHLELA NENTUTMUKO WAKWBZULU-NAIALI, 2008

Ngokwesigaba I64 soMthetho wokuHlela neNluU~uko waKwaZulu-Natali, 2008 (uMUtetho No. 6 ka 2008),

nginquma ukuihi izaHluko 6. 10 no 17, uhlarnvr~ 15 ioHlelo 2 katiye noWlelo 5 IoMthetho kanye nezaliiuko 1, 8, 9

no 12 kanye noHlelo 1 loMthetho njengoba ziphethelene nokuguquk, nokumisw kanye nokususwa

kwszilhibelo eziphathelene nomhlaba; nesiGungu Sokudluiisa lzikhalazo Zokutilela Nentuthuko saKwaZlllu-

Nateli nezinhlelo zesifundame kanya nokuihuthukiswa kwazinkambiso nemigamo zboqala ukusebenza mhla lu-

1 kuNdasa 2009.

MNU. M. MABUYAKHULU

iiungu IoMkhandiu oPhethe etibhekele oHulumeni beziNdawo, ezaiNdiu kanye nezeNdabuko

IJsuku: I 1 uNhlolanja

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ANNEXURE B

SUMMARY OF CONDITIONS OF TITLE FOR THE PURPOSES OF DRAFTING NOTICES

INVITING PUBLIC COMMENT AND DRAFTING COUNCIL RESOLUTIONS

BUILDING RESTRICTIONS

CONDITION SUMMARY

No building or structure shall be placed on the said land

within 7 metres of the boundary line of any road.

Condition of title that imposes a building line.

* No building of any kind shall be erected on the lot

unless the walls thereof are constructed of burnt brick,

stone or concrete or of other permanent and fireproof

material, provided that a building, structure or fence of

iron or asbestos sheeting or similar material fixed to a

framework of wood or metal shall not be permitted.

Condition of title in favour of XXXXX that prohibits the

use of certain building materials for the construction of

buildings.

All roofs must be of tiles unless XXXXX agrees

otherwise.


use of certain building materials for the construction of

buildings.

No fence shall be of such nature as would be likely in the

bona fide opinion of XXXXX, to depreciate the value of

any adjoin property.


use of certain building materials for the erection of

fences.

No building or structure shall be placed on the said land

until plans and location of the same have been submitted

and approved by XXXXX.

Condition of title in favour of XXXXX that requires the

submission of building plans to XXXXX for its approval.

No buildings shall be erected on the property until the

plans, elevation, height and siting thereof have been

approved in writing by the owner of XXXXX.


submission of building plans to XXXXX for his or her

approval.

No buildings other than outbuildings shall be erected on

any of the lots fronting to the back lanes.

Condition of title that prohibits any outbuildings from

facing the back lane.

Outbuildings should not be allowed except on the back

lanes.

Condition of title that only allow outbuildings to be erected

at the back of the property

Only single storey buildings may be erected on the lot. Condition of title that imposes a maximum building

height.

Except with the Consent of the Administrator no building

may be erected on the lot unless provision is made for

parking facilities for motor vehicles on the lot in the ratio

of one (1) parking space for every eight (8) seats

included in the main building on the lot.

Condition of title that imposes parking requirements.

*Condition deleted by the Act, unless it is in favour of a specified person, including the owner of a property, or an entity,

including a municipality.

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LAND USE

CONDITION SUMMARY

* No row of tenement house, semidetached house,

boarding house, hotel or block of residential flats and not

more than one dwelling house, together with such

outbuildings as are ordinarily used in conjunction

therewith shall be erected on the land without the consent

of the Administrator.

Condition of title in favour of XXXXX that restricts the use

of the property to one dwelling house.

* Except with the consent of the Administrator, the lot

shall not be used for purposes other than residential

purposes.


of the property to residential purposes.

* Only one entirely detached residence with the

necessary outbuildings will be allowed on the lot.


of the property to one dwelling house.

No building shall be constructed on the said Lot, added to

or altered so as to permit it being used as a block of flats

or residential chambers, but the erection of two double

storey houses each of which consist of two residences

separately occupied shall be permitted.

Condition of title that restricts the use of the property to

two double storey houses.

The land shall be used for trade or business purposes

only.


business purposes.

The lot may not be used for trade or business purposes

of any kind whatsoever.

Condition of title that prohibits the use of the property for

business purposes.

The property shall not be used either in whole or in part

for the purpose of carrying on any business, trade,

industry, vocation or calling.


business purposes.

No restaurant shall be erected on the lot nor shall the

business of a boarding house be conducted thereon.

Condition of title that prohibits the use of the property as

a restaurant or a boarding house.

Except with the consent of the Administrator, no trade,

business or industry other than farming operations is to

be conducted on the land.


agricultural purposes.

Except with the consent of the Administrator the lot shall

not be used for purposes other than religious purposes or

purposes incidental thereto.

Condition of title that restricts the use of the property to a

place of worship.

Except with the consent of the Administrator the lot shall

not be used for any purpose other than a Nursery School

in terms of the town planning scheme.

Condition of title that restricts the use of the property to a

Nursery School.

No restaurant shalI be erected on the lot nor shall the

business of a restaurant be conducted thereon..

Condition of title that prohibits the use of the property as

a restaurant.

* Condition deleted by the Act, unless it is in favour of a specified person, including the owner of a property, or an entity,


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LAND USE (continued)

CONDITION SUMMARY

No bar, canteen or hotel for the sale of wines, malt or

spirituous liquors shall be carried on, conducted or

erected on the said lot.


the sale of liquor.

The property shall not be used for purposes other than

parking and public conveniences by the local authority.


parking or public conveniences.

The property transferred shall not be used other than for

the construction of roads.


road purposes

INFRASTRUCTURE

Adequate sanitary conveniences shall in each case be

erected or provided for on the property if any building or

structure intended for human habitation or use is placed

thereon and shall be of the nature and type approved by

XXXXX


approval of XXXXX for sanitary systems.

The owner of the lot shall, without compensation, be

obliged to permit the deposit of material or excavation on

the lot as may, in connection with the formation of any

street in the township and owing to differences in the

level between the lot and the street, be deemed

necessary.

Condition of title permitting depositing of materials on the

property and the excavation of the property for the

purposes of road construction.

SERVITUDES


obliged to permit the erection, laying and maintenance of

electric wires and water supply piping over or under the

lot along any boundary thereof within a distance of 2

metres from such boundary.

Condition of title that creates a servitude for the

construction of infrastructure.

XXXXX, reserve in perpetuity the right without being

required to pay compensation therefore by themselves or

others to lay, erect and maintain and use cables, lines

and pipes on or over the said land.

Condition of title in favour of XXXXX to create servitudes

for the construction of infrastructure.


obliged to permit the erection, laying and maintenance of

electric wires and water supply piping over or under the

lot along any boundary thereof within a distance of 2

metres from such boundary.

Condition of title that creates a servitude for the

construction of infrastructure.



17

SERVITUDES (continued)

CONDITION SUMMARY

XXXXX, reserve in perpetuity the right without being

required to pay compensation therefore by themselves or

others to lay, erect and maintain and use cables, lines

and pipes on or over the said land.

Condition of title in favour of XXXXX to create servitudes

for the construction of infrastructure.

Subject to a sewer and drain servitude represented by

the figure a,b,c,d,e on diagram SG. No. 12345 in favour

of XXXXX.

Condition of title that creates a sewer servitude in favour

of XXXXX.

The transferee shall not grant any servitude or right of

way or any right of access over the said property.


creation of a access servitude.

Subject to a servitude in restraint of free alienation

whereby Lot XXXXX and Lot XXXXX shall not be

alienated, transferred, leased, mortgaged or otherwise

dealt with, the one separate from the other.

Restraint on free alienation. The properties are tied by

means of a notarial deed. The restriction should be

removed by agreement to cancel the Notarial Deed in

Restraint of Free Alienation.

SUBDIVISION OF LAND

* The lot shall not be subdivided without the consent of

the Administrator.

Condition of title that prohibit the subdivision of the

property.

No subdivision of the land shall be permitted of an area of

less than 1000 square metres.

Condition of title that imposes a minimum lot size.

The transferee shall have no right to subdivide the lot into

more than four lots.

Condition of title that restricts the subdivision of the

property to four sites.

OTHER

Any dwelling house erected on the property hereby

transferred shall be used solely for the purpose of a

private dwelling and shall not be let out or used in

separate portions….The Foregoing conditions shall

operate as servitudes over the property in favour of

XXXXX.


letting of the property or occupation of the building by

more than one household.

The transferee shall not use the property hereby

transferred or any portion thereof or any buildings erected

thereon for the purpose of advertising or displaying any

advertising.

Condition of title that prohibits the use of the property to

display advertisements.



18

ANNEXURE C

EXAMPLE OF AN APPLICATION FORM APPLICATION FOR THE ALTERATION, SUSPENSION OR DELETION OF A RESTRICTIVE CONDITION OF TITLE IN TERMS OF THE KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008 (ACT NO. 6 OF 2008) INSTRUCTIONS The form must be completed in block capitals or typewritten

(1) Deed number

(2) Conditions to be suspended, altered or deleted (lettered or numbered in the deed, or page

number and line number if conditions are not lettered or numbered)

(3) Registered property description

(3) Physical address of the property

(4) Name of the registered owner of the property

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(5) Contact details of the registered owner of the property

(4) Name of the applicant (if the applicant is not the registered owner of the property)

(5) Contact details of the applicant (if the applicant is not the registered owner of the property)

DECLARATION I hereby certify that the information supplied by me, including the documents attached to this

application form is correct.

Signature of Applicant

Date:

20

(6) Checklist for documents that must be attached, mark with a √ or X if applicable and attached

or NA if not applicable:

Proof of payment of application fee (see the XXXXX Municipality's tariffs)

Locality plan showing the location of the property in relation to the surrounding properties and streets

(property lot numbers must be indicated) and the nature of the existing development surrounding the property

Copy of the deed

Copy of the Surveyor General diagram or relevant part of the general plan

a copy of the deed in which the condition was originally created, if it was originally created in another deed and

carried forward when the parent property was subdivided Certified copy of the resolution by the Board of Directors, if the applicant is a company

Registered owner's written consent, if the applicant is not the registered owner of the property

Name and contact details of the bondholder, if any

Names and contact details of owners of land within 100m from the boundary of the property, or of the

chairperson of a body corporate or of chairperson of a home owners association representing the owners of land within 100m from the boundary of the property

Names and contact details of all the servitude holders, if the application is for the suspension, alteration or

deletion of a condition of title which creates a servitude in favour of another property Copy of the development plan, including a site plan and floor plan, if the use of the property is not regulated by a

town planning scheme Motivation for application with reference to the matters which a municipality must consider as contemplated in

section 64 of the Act, including the following matters: (i) the potential impact of the proposal on the environment, socio-economic conditions, and cultural heritage; (ii) the impact of the proposal on existing or proposed developments or land uses in the vicinity, or on existing

developmental or mineral rights; (iii) the protection or preservation of cultural and natural resources, including agricultural resources, unique

areas or features and biodiversity; (iv) any prejudice to be caused by the proposal, to any person, including an engineering service provider, a

mortgagee, a holder of a servitude right, or a lessee in terms of a registered lease; (v) the general principles for land development as stated in section 3 of the Development Facilitation Act,

1995 (Act No. 67 of 1995), and other national norms and standards, frameworks and policies contemplated in section 146(2)(b) of the Constitution;

(vi) the land use and development norms or standards; (vii) the municipality’s integrated development plan; (viii) the municipality’s scheme and the regulation of the same subject matter in the scheme or in a by-law; and (ix) any other relevant information

21

APPLICATION PROCEDURE FOR APPLICANTS ANNEXURE D

Application

Yes

Complete No

28 Days to record application and

acknowledge receipt thereof

28 Days to record application,

acknowledge receipt thereof and request

further information

14 Days to prepare public notice 90 Days or longer period agreed for applicant

to submit additional information

Give 30 days public notice of

application

Yes Comments received

No

7 Days to submit comments to

applicant

Yes No

21 Days to respond

Public hearing

14 Days decide if public

hearing required

Yes No

Public hearing within 60 days

30 days to make decision

(Consider report and

recommendation by a

registered planner)

60 days to make decision


recommendation by a

registered planner)

22

PROCEDURE FOR MUNICIPALITY IN RESPECT OF LAND WHICH IT OWNS

Proposal

Give 30 days public notice of application

Yes Comments received

No

Municipality respond to

comments

Yes No

28 Days to respond

Public hearing

21 Days to decide if public hearing

required

Yes No

Public hearing within 60 days

90 Days to make decision


recommendation by a

registered planner)

23

ANNEXURE E

EXAMPLE OF ALTERATION OF A CONDITION

… to alter condition of title XXXXX of Deed XXXXX pertaining to Erf XXXXX as following:

Explanatory note:

[ ] Words in bold type in square brackets indicate omissions.

____ _ Words underlined with solid line indicate insertions.

“No building or structure of any kind whatsoever shall be erected on the erf unless the walls

thereof are constructed of burnt brick, stone, concrete, or of other permanent and fireproof

material approved by the [local authority] municipality [; provided that a building, structure or fence of iron or asbestos sheeting or similar material fixed to a framework of wood or metal shall not be permitted, nor shall the roof of any building be constructed of iron or asbestos sheeting].”

ANNEXURE F

EXAMPLES OF HOW TO SUMMARISE COMPOUND CONDITIONS OR MULTIPLE CONDITIONS WITHIN THE SAME DEED

1. Compound condition

"….of conditions A1 that restricts the use of the property to residential purposes, prohibits

the use of certain building materials for the construction of buildings and imposes a building

line..."

2. Multiple conditions within the same deed

"….of conditions A1, B1 and C1 that restricts the use of the property to residential purposes,

prohibits the use of certain building materials for the construction of buildings and imposes a

building line..."

24

ANNEXURE G

STANDARD WORDING FOR NOTICES INVITING PUBLIC COMMENT ON AN APPLICATION TO ALTER, SUSPEND OR DELETE RESTRICTIVE CONDITIONS OF TITLE 1. Notice for alteration of condition of title

KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON ALTERATION OF CONDITION OF TITLE

An application has been received in terms of section 61(2) of the KwaZulu-Natal Planning

and Development Act, 2008 (Act No. 6 of 2008), to alter condition of title XXXXX of Deed

XXXXX pertaining to Erf XXXXX as following:

Explanatory note:


______ Words underlined with solid line indicate insertions.

"……………………………………………………………"

Comments, which may be submitted by fax, email or mail must be submitted to XXXXX,

Tel: XXXXX, Fax: XXXXX, XXXXX@XXXXX, P. O. Box XXXXX by XXXXX 200X.

The Municipality may refuse to accept comments submitted after the closing date.

XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality

Date: XX XXXXX 200X

25

2. Notice for suspension of condition of title

KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON SUSPENSION OF CONDITION OF TITLE An application has been received in terms of section 61(2) of the KwaZulu-Natal Planning

and Development Act, 2008 (Act No. 6 of 2008), to suspend condition of title XXXXX of

Deed XXXXX pertaining to Erf XXXXX which XXXXX.


Tel: XXXXX, Fax: XXXXX, Email: XXXXX@XXXXX, P. O. Box XXXXX by XXXXX 200X.



Date: XX XXXXX 200X

File reference: XXXXX

3. Notice for deletion of conditions of title from a single deed

KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON DELETION OF CONDITIONS OF TITLE An application has been received in terms of section 61(2) of the KwaZulu-Natal Planning

and Development Act, 2008 (Act No. 6 of 2008), for the deletion of conditions of title

XXXXX from Deed XXXXX pertaining to Erf XXXXX which XXXXX.


Tel: XXXXX, Fax: XXXXX, Email: XXXXX@XXXXX, P. O. Box XXXXX by XXXXX 200X.



Date: XX XXXXX 200X


26

4. Notice for deletion of multiple conditions of title

KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON DELETION OF CONDITIONS OF TITLE Applications have been received in terms of section 61(2) of the KwaZulu-Natal Planning

and Development Act, 2008 (Act No. 6 of 2008), for the deletion of conditions of title.

Comments, which may be submitted by fax, email or mail must be submitted to the

persons mentioned in the Schedule by XXXXX 200X.



Date: XX XXXXX 200X

SCHEDULE

The figures used in brackets have the following meanings:

(1) = Street address, property description, registration division

(2) = Deed, condition, file reference

(3) = Scope of deletion

(4) = Contact person

(5) = Contact details

(1) XXXXX, XXXXX, Registration Division XXXXX

(2) XXXXX, XXXXX, XXXXX

(3) Removal of condition of title that XXXXX

(4) XXXXX

(5) Tel: XXXXX, Fax: XXXXX, Email: XXXXX@XXXXX, P. O. Box XXXXX




(4) XXXXX

(5) Tel: XXXXX, Fax: XXXXX, Email: XXXXX@XXXXX, P. O. Box XXXXX

27

ANNEXURE H

STANDARD WORDING FOR MUNICIPAL RESOLUTIONS TO ALTER, SUSPEND OR DELETE RESTRICTIVE CONDITIONS OF TITLE

1. Alteration of condition of title

ALTERATION OF CONDITION OF TITLE, DEED XXXXX

In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act

No. 6 of 2008), the XXXXX Municipality resolved to alter condition of title XXXXX of Deed

XXXXX pertaining to Erf XXXXX as following:

Explanatory note:


______ Words underlined with solid line indicate insertions.

"…………………………………………"


Date: XX XXXXX 200X

Council Resolution: XXXXX of XXXXX


28

2. Suspension of condition of title

SUSPENSION OF CONDITION OF TITLE, DEED XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act

No. 6 of 2008), the XXXXX Municipality resolved to suspend condition of title XXXXX of



Date: XX XXXXX 200X



3. Deletion of single condition of title

DELETION OF CONDITION OF TITLE, DEED XXXXX


No. 6 of 2008), the XXXXX Municipality resolved to delete condition of title XXXXX from



Date: XX XXXXX 200X



4. Deletion of single condition of title subject to conditions

SUSPENSION OF CONDITION OF TITLE, DEED XXXXX


No. 6 of 2008), the XXXXX Municipality resolved to delete condition of title XXXXX from

Deed XXXXX pertaining to Erf XXXXX that XXXXX, subject to the following conditions:

(a) That ….

You may appeal to the Planning and Development Appeal Tribunal against the decision of

the Municipality within 28 days in terms of section 67(1) of the Act.


Date: XX XXXXX 200X


29


5. Deletion of multiple conditions of title

DELETION OF CONDITIONS OF TITLE, DEED XXXXX


No. 6 of 2008), the XXXXX Municipality resolved to delete conditions of title XXXXX from

Deed XXXXX pertaining to Erf XXXXX which XXXXX, XXXXX and XXXXX.


Date: XX XXXXX 200X



6. Deletion of multiple conditions from multiple deeds

DELETION OF CONDITIONS OF TITLE, DEEDS XXXXX, XXXXX and XXXXX


No. 6 of 2008), the XXXXX Municipality resolved to delete the restrictions set out in the

Schedule.


Date: XX XXXXX 200X


SCHEDULE

The figures used in brackets have the following meanings:

(1) = Street address, property description, registration division

(2) = Deed, condition, file reference

(3) = Scope of deletion







30

7. Refusal of an application for the deletion of single condition of title

SUSPENSION OF CONDITION OF TITLE, DEED XXXXX

I regret that in terms of section 65(1)(b) of the KwaZulu-Natal Planning and Development

Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to refuse your application

for the deletion of condition of title XXXXX from Deed XXXXX pertaining to Erf XXXXX that

XXXXX.

You may appeal to the Planning and Development Appeal Tribunal against the decision of

the Municipality within 28 days in terms of section 67(1) of the Act.


Date: XX XXXXX 200X



31

ANNEXURE I APPEAL PROCEDURE

Decision by Municipality on

application or proposal

28 Days for applicant to serve memorandum of appeal with

Appeal Tribunal and parties to application or proposal

28 Days for parties to serve responding

memorandum with Appeal Tribunal and other

parties

All parties waive right to lodge

responding memorandum

21 Days to set appeal hearing

90 Days for appeal hearing

7 Days for decision on appeal

30 Days for reasons for decision

guideline restrictive conditions march 2009 · applications for the alteration, suspension or...

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