Submission by Community Law Centre UWC

1
Land Use Management Bill

• Submission by Community Law Centre (UWC)
• Prof Jaap de Visser
• Leah Cohen

2

• Essential role of LUMB
• Clarification of national, provincial and
  municipal roles
• Rationalisation of laws on land use management
• Focus of submission constitutional roles and
  responsibilities

3
Difficulty overlapping responsibilities

• Constitution produces two types of overlap
• Overlap between functions in Schedules
• Supervisory overlap wrto local government

4
Overlap between functions

• Four functions on land use
• Schedule 4B Municipal Planning
• Schedule 5A Provincial Planning
• Schedule 4A Regional Planning and Development,
  Urban and Rural Development
• Ancillary functions
• Schedule 4A Housing, Environment etc.

5
Supervisory overlap

• Schedules 4B matters are local government
  matters
• But they are also provincial/national matters to
  a limited extent
• Nat/prov can legislate a framework for municipal
  planning
• Not detail

6

• Clarity on roles through definitions
• Municipal Planning vs Provincial Planning
  not intended to be self-explanatory

7
How to get clarity on roles?

• Let courts pronounce
• Courts are reluctant
• Conflict-driven solution
• Judgments limited to case at hand
• Administrative definitions
• Public scrutiny?

8

• Legislative definitions
• Parliament best placed to define functions of
  Schedule 4
• Broad policy process
• Public scrutiny
• If Parliament does not define Schedule 4
  functions ? provinces have concurrent power and
  may adopt their own definition (conflict resolved
  in terms of 146 Constitution)

9

• Definition of Municipal Planning is most needed
• Subject to intersection by two spheres ito
  functional overlap
• Additional intersection by supervision
• Guidance from existing judicial and
  administrative definitions

10
Constitutional Court

• Territorial principle
• Functional principle what is appropriate to each
  sphere
• Appropriate to local government
• Developmental local government
• Control over local spaces/the built-environment

11
Municipal Demarcation Boards definition of
Municipal Planning

• Integrated Development Planning
• (district) IDP framework and
• (local) Development and implementation of a town
  planning scheme or land use management scheme for
  the municipality including administration of
  development applications in terms of special
  consents and rezonings.

12
District/local division

• Bill both district and local adopt land use
  schemes, district decides cross-boundary
  applications within district
• Inconsistent with division of powers between
  district and local in terms of Municipal
  Structures Act
• S 84(1)(a) district adopts IDP and IDP framework
  for district
• rest of the Municipal Planning function remains
  with local municipality (s 84(2))

13

• District/local tension is key pressure point in
  system of local government
• Two tier system is under review ito Policy Review
  of Provincial and Local Government

14
S 36 Jurisdiction of Land Use Regulators

• S 36(c)(i) and(ii) are cumulative
• (cross-boundary AND provincial interest)
• who decides cross-boundary applications where no
  provincial interest is involved?

15
S 36 Jurisdiction of Land Use Regulators

• provincial interest
• Linked to PGDS ? legally
• undefined policy instrument
• amongst other things
• or similar instruments
• Rather give specific content to provincial
  function Regional planning and development,
  Environment etc.

Blank cheque for provinces to determine their
involvement
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• No voice for municipalities affected by
  cross-boundary application
• (Same status as affected citizens)
• Similar arguments for definition of national
  interest

17
S 73 Intervention conflict with s 139
Constitution

• S 139 national executive may intervene only-

• if provincial executive fails
• AND
• municipal failure relates to specific financial
  interventions

• Bill after consulting provincial government and
  in the public interest
• Bill failure in terms of this Act or in
  housing matters

18

• Thank You