The City of Cape Town is drafting a new Municipal Planning By-law. The current planning legislation regulating land use rights in the Province, the Land Use Planning Ordinance (no 15 of 1985), is considered to be partially in conflict with the planning framework as set out in the Constitution.
The planning framework outlined in the Constitution envisages that:
- Municipal planning is a municipal function meaning that municipalities can and must make laws to deal with this matter. While Provincial and National Government have certain limited powers in respect of municipal planning.
- Provincial planning is a Provincial function, meaning that each Province has the power to make laws relating to this function.
- While Regional Planning and Development, and Urban and Rural Development are powers that are conferred on both Provincial and National Government and both spheres have the power to make laws in respect of these functions.
The roles of the different spheres of government in this planning framework are being given greater clarity through various court judgments. During this process it has also been identified that the Provincial Land Use Planning Ordinance is in conflict with the Constitution and this needs to be remedied through a new legislative process.
National and Provincial spheres of government are already far advanced in the drafting of new planning legislation to replace the current planning laws within both the National and Provincial spheres. Legislation surrounding municipal planning often involves more than one of these spheres, therefore the challenge will be for all three spheres of government to create laws that dovetail where necessary and do not duplicate each other. The overriding aim of this process will be to streamline procedures.
The existing Land Use Planning Ordinance will be repealed once the new legislation has been approved. At present, most land use planning applications in the Western Cape are submitted and processed in terms of the Land Use Planning Ordinance, which came into force in 1986. It was a good law at the time, but now it no longer fully complies with the Constitutional allocation of powers to different spheres of government. The new Municipal Planning By-law will operate alongside the Provincial law once both new laws have been promulgated.
With this aim in mind, the City of Cape Town has commenced with the process of drafting a Municipal Planning By-law to apply in the City of Cape Town’s area of jurisdiction.
“Processes like these are very technical and legal in nature, therefore members of the general public who have an interest in this matter are invited to submit written presentations and proposals to the City. This will assist with the drafting process,” said the Mayoral Committee Member for Economic, Environment and Spatial Planning, Alderman Belinda Walker.
“The City considers this project to be a critical legislative intervention, as it will determine the decision-making framework for future municipal planning, as well as set the required procedures to apply for planning approvals. The public is therefore encouraged to participate at this early stage,” she added.
In the planning context, the Constitution contains different powers which are allocated in different ways to different spheres of government. Municipal planning is a municipal function, and this means that municipalities can, and must, make laws to deal with this matter. The City is currently undertaking this task.
The proposed by-law will regulate matters such as:
- the procedures for lodging applications
- time periods for dealing with applications
- criteria for considering applications
- conditions of approval
- administrative processes after approval
- appeals
- enforcement
- municipal spatial planning issues
A draft version of the by-law is being prepared by staff in the Planning and Building Development Management Department. This will be discussed during internal workshops, and will be subject to input from the Political Steering Committee that is responsible for overseeing the drafting process. Once this is complete, the proposed legislation will then be referred for legal advice.
Once these processes have been completed, the public participation procedure, implemented in accordance with the processes set out by Council, will begin. At this stage mechanisms for this procedure will be placed on the City’s website. The comments will then be assessed, and amendments made if necessary. If major changes are made to the by-law, it will be published again for further comment. It is expected that a draft will be ready for public comment before end of this year. This date may change depending on what obstacles are encountered in the drafting process. It is expected that the by-law will be in force by the end of 2013.
The City will also strive to reduce the red tape inherent in these processes, to rationalize the appeal process, to improve enforcement mechanisms and to resolve issues relating to the imposition of development contributions. One of the principles adhered to in the drafting of this by-law is that procedures must be streamlined and red tape minimized. The City is looking at ways to speed up applications whilst at the same time ensuring that everyone has a reasonable opportunity to influence the process.
The by-law will specify which applications must be submitted to the City to obtain planning approval before development can commence. In some cases, an application will also require Provincial approval. The relevant legislation will specify these particular cases. The by-law will further set out the public participation procedures, and also contains more stringent provisions relating to enforcement of planning regulations. This is to ensure that people comply with its requirements.
One of the main concerns raised by Councillors and ratepayers is the difficulty in ensuring effective enforcement. The by-law seeks therefore to give inspectors more far-reaching powers to investigate offences. In addition to criminal prosecution, it is envisaged that there will be an administrative penalty for using land without the proper land use rights being in place. The City is also investigating whether withholding rates clearance upon transfer of properties, until proof is furnished that the land and buildings comply with the zoning scheme, is a workable option.
The new by-law will apply under a wide variety of circumstances, for example: if you want additional rights on your property to run a crèche, for example, you will need to make an application in terms of the by-law and follow the procedures set out. If you want to comment on a particular development near you, you will also be invited to comment in terms of this by-law. In addition, if you run a business without having the rights to do so, you will be dealt with in terms of this legislation.
The City will be conducting a broad public participation process including consulting with Planning Professionals through their various representative stakeholder organizations, and through Council’s various structures such as the Subcouncils.
The City welcomes all input on this matter. Should members of the public wish to highlight any shortcomings within the current legislative framework, apart from the ones mentioned above, or should they have any proposals that they would like the drafting team to take into account they can e-mail lums@capetown.gov.za.
