SPLUMB B14B – ISSUES & CONCERNS AS VIEWED FROM A MUNICIPAL PERSPECTIVE

John Forbes Associates

SPLUMB Workshop 19 April 2013Assagay Hotel, Shongweni, KZN

SPLUMB Versions

SPLUMB - 21 Feb 2012 (original comments) SPLUMB - B14 – 2012 (supplementary

comments) SPLUMB – B14A (changes to earlier version) SPLUMB – B14B (latest complete version

adopted on 26 Feb 2013 and on which presentation is based)

Note: The following issues and concerns identified are in an approximate order of priority.

The Appeal Process

s51 provides for Internal Appeals to the Executive Authority of the Municipality via Municipal Manager as before,

s51(6) provides for a municipality to alternatively authorise:- a body or institution outside of the municipality, or in a manner regulated in terms of a provincial

legislation (PDA),

to assume the obligations of an appeal authority.

This appears to open the door for KZN PDB, 2013?

Exclusion of Councillors from Decision Making Process

s35 provides for a Municipal Planning Tribunal or an authorised official to consider planning applications.

The municipality is required to categorise applications considered by the official and considered by the Tribunal.

S36 provides for officials & external experts to be appointed to the Municipal Planning Tribunal, which shall number at least 5 in total.

Municipal Councillors are specifically excluded. S39(2) precludes technical or other advisors from

voting.Note: KZN is perhaps the odd man out in that Municipal Tribunals are

already the norm in most provinces!

Linking Mechanism to Provincial Acts s2(2) provides that no legislation may prescribe an alternative

or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land development in a manner inconsistent with the provisions of SPLUMB.

s10 (1)(a) provides for provincial legislation not inconsistent with SPLUMB and the Intergovernmental Relations Framework Act to provide for matters contained in Schedule 1 of SPLUMB.

s10 (2) goes on to provide for such provincial legislation to provide for structures and procedures different from those contained in SPLUMB. [Contradictory?]

s10(6) has been added and requires that Provincial legislation having the effect of regulating land use, land use management and land development must promote the development of local government capacity to enable municipalities to perform their municipal planning functions.

SPLUMB Schedule 1 Matters

(a) Agricultural purposes; (b) Business purposes; (c) Commercial purposes; (d) Community purposes; (e) Conservation purposes; (f) Educational purposes; (g) Government purposes; (h) Industrial purposes; (i) Institutional purposes; (j) Mining purposes; (k) Public purposes; (l) Recreational purposes; (m) Residential purposes; (n) Transport purposes; and (o) any other purpose as may be prescribed.

Framework Legislation?

SPLUMB goes part of the way to address the concerns but SPLUMB is still viewed as being very detailed.

This is despite criticism from some parties that it is not detailed enough!

PDAs are in existence in KZN (only one operational), Gauteng & Western Cape.

PDAs in other provinces need extensive revision (NC) or the completion of de nova work.

Accompanying Regulations

Accompanying Regulations prepared by the Minister as provided for in s54 are still outstanding!

These regulations still have to go through a comprehensive public process and be tabled in Parliament.

Without these regulations in place can SPLUMB come into operation?

Transitional Measures

s60 states that laws repealed in Schedule 3 or by a provincial legislature in relation to planning do not affect the validity of anything done in terms of such legislation.

All pending matters in terms of the DFA, are to be proceeded with in terms of SPLUMB.

Appeals or other matters pending before a tribunal at the commencement of SPLUMB are to be construed as a reference to a tribunal of a local or metropolitan municipality (presumably it would include another body as contemplated in s51(6).

SCHEDULE 3 - REPEAL OF LAWS Removal of Restrictions Act, 1967 Physical Planning Act, 1967 Less Formal Township Establishment

Act, 1991 (new addition) Physical Planning Act , 1991 Development Facilitation Act , 1995

Comment Period

SPLUMB B-14B has been approved by the National Assembly/Portfolio Committee and is yet to be approved by the National Council of Provinces.

The individual provinces are still to make their comments and a public process is to be followed.

This meeting of 19 April 2013 is no doubt seen as being part of the public consultation process.

It is essential that an adequate comment period is allowed for meaningful input to be provided despite the need to fill the lacuna following the demise of the DFA.

Alignment between SPLUMB and Provincial Plan & Dev Acts See earlier comments on Linking

Mechanism to Provincial Acts. This goes part of the way to address

the concerns.

Transitional Window

In terms of s60(2)(d) the Minister may prescribe a date by which applications, appeals or other matters must be disposed of; & he/she may prescribe arrangements in respect of matters not disposed of by that date.

This provision provides for flexibility, but at the Minister's discretion.

Originally specific transitional measures were to be provided. Has this approach been abandoned?

Development Charges for Ecosystem Goods and Services While provision is made for

development charges embracing a variety of aspects, in respect of passive open space that provide ecosystem goods and services no such provision is made.

Alignment with Municipal Systems Act Ideally all legislation dealing with

IDPs and SDFs should reside in a single location.

IDPs sit within Chapter 4 of the Municipal Systems Act which deals with integrated development plans and superficially with spatial development frameworks.

Should this be consolidated within SPLUMB?

Traditional Areas

S2(1) SPLUMB applies to the entire area of the Republic and is legislation enacted in terms of s155(7) of the Constitution insofar as it regulates municipal planning.

There still appears to be little specific recognition of the dualistic land tenure system operating in many areas of the country, viz. tribal areas and formal areas (both urban and commercial farming areas). It is all treated the same.

Provided that s23(2) now provides that subject to s81 of the Municipal Structures Act, 1998 and the Traditional Leadership and Governance Framework Act,2003 , a municipality, in the performance of its land use management duties must allow for the participation of a traditional council. What does this mean in reality?

Definition of Municipality The definition for municipality is now

contained in s1(1) and refers to s 155(1) of the Constitution.

It further for the purposes of the Act (SPLUMB) clarifies it as including:- a municipal department, the Municipal Council, and the municipal manager,

where the context so requires.

Removal of S62 of MSA Appeal for planning matters In terms of s51(7) of SPLUMB,

appeals on planning matters in terms of S62 of the MSA are precluded.

Amendment Municipal Fiscal Powers & Functions Act, 2007 While SPLUMB cannot be a monetary bill, it

is necessary that the Municipal Fiscal Powers and Functions Act No 12 of 2007 be amended to directly provide for the collection of Development Charges and without which these provisions will be meaningless or will likely lead to court cases contesting its application by municipalities.

The National Treasury should be urged by DRDLR to expedite such amendment.

Capacitating Process

While s9 and s10 provide for National and Provincial support respectively, the necessary support and capacity needs to be put in place well prior to implementation of SPLUMB as was done by KZN COGTA in respect of the KZN PDA.

Guidelines

A "Memorandum on the objects of the SPLUMB,2012" is provided at the end of the bill. If this is to form part of the final act, and possibly further expanded, it should help in interpreting matters lacking clarity in the future.

This memorandum needs to be amended to bring matters up to date vis a vis the "Parliamentary Procedures".

Ideally certain accompanying guidelines should be prepared, such as was done by the KZN COGTA by the way of the Land Use Management Guidelines.

Conflict in Legislation NEMA, et al. s30 provides for both separate and

integrated authorisations but the potential problem of an appeal remains in any integrated authorisation.

Which legislation then takes precedence in the event of a conflict?

In the event of an appeal in a joint decision, who is responsible for hearing the appeal the Minister/MEC responsible for environmental matters or other?

Conflict in Legislation – Nat. Building Regulations s30 provides for both separate and

integrated authorisations but the problem of an appeal remains in an integrated authorisation.

Which legislation then takes precedence in the event of a possible conflict?

In the event of an appeal who is responsible for hearing the review, the SABS review board or other?

FINIS