PROVINCIAL LEGISLATION ON LAND USE MANAGEMENT

1
PROVINCIAL LEGISLATION ON LAND USE MANAGEMENT

• GAUTENG AND NORTH WEST PROVINCES
• Research Findings

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Purpose of Study

• To provide an overview of land use/planning
  legislation in Gauteng and North West
• To review the state of the present provincial
  legislation to understand land use laws and
  procedures in practice
• - Law reform processes since the advent of
  democracy
• - Institutional responsibilities
• - Decision making structures and processes, and
• - The performance of provincial and municipal
  laws
• To draw conclusions and see how these might
  influence new provincial legislation

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Study Approach

• The approach included
• A literature review
• A review of the main laws
• Interviews with provincial and municipal
  officials
• Interviews with consultants
• The focus was on
• identifying the applicable laws
• Understanding what works well
• What does not work well
• What changes to provincial and national laws are
  needed
• Obtain data to assess the quantitative aspects of
  the system

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Gauteng Study Area
3 Metro Municipalities, 3 District Municipalities
(9 Local Municipalities)
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Gauteng Main Laws

• The main laws include the following
• Transvaal Ordinance, 1965
• Transvaal Ordinance, 1986, and Town Planning
  Schemes
• Division of Land Ordinance,1986
• Gauteng Removal of Restrictions Act,1996
• Less Formal Township Establishment Act,1991
• Black Administration Act, 1927
• Development Facilitation Act, 1995
• Municipal Systems Act, 2000
• Registration of Agricultural Holdings (Transvaal)
  Act,1919
• Gauteng Transport Infrastructure Act, 2001
• Advertising on Roads and Ribbon Development Act,
  1940

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Gauteng Key Findings

• What works relatively well
• The new Ordinance and the town planning scheme
  system
• The alignment of the new Ordinance system to
  existing municipal and provincial structures
• The Municipal Systems Act and the related spatial
  development frameworks
• The DFA and its innovations

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Gauteng Key Findings

• What does not work well (1)
• The match with Constitutional mandates for
  provincial and municipal planning with the
  province having an executive and oversight
  function in respect of municipal planning.
• The fragmented, complex, and diverse application
  of planning laws that is not conducive to
  effective land use decision making and management
• Delays in obtaining responses and in decision
  making
• The mismatch between capacity and legal
  requirements at provincial and municipal level
• The legacy of historical applications and
  approvals in the system (eg old Ordinance
  applications, Physical Planning Act permissions,
  incomplete townships, etc)

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Gauteng Key Findings

• What does not work well (2)
• The dispersed information on land use matters
• The decline in experienced planning staff and
  knowledgeable leaders
• The exclusion of traditional leaders and tribal
  land matters from the current dominant system
• Unrealistic expectations in the spatial
  development frameworks
• Negative consequences for investment and transfer
  of ownership

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Gauteng Key Findings

• Numbers of applications
• Large volumes of municipal decisions in terms of
  Ordinance, town planning schemes, Removal of
  Restrictions (eg Johannesburg 142 townships in
  2010)
• Provincial government deals with appeals (200
  applications), Old Ordinance (500), Less Formal
  (44), Black Communities (62), DFA (40), R293,
  Roads and Ribbon, and certain special aspects in
  the new Ordinance
• Other than DFA, processes are generally slow,
  taking in excess of a year to finalise

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North West Study Area
4.District Municipalities, 21 Local
Municipalities,
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North West Overview of Land Use Legislation

• The main laws include the following
• Transvaal Ordinance, 1986, and town planning
  schemes
• Cape Land Use Planning Ordinance,1985, and zoning
  schemes
• Division of Land Ordinance,1986
• Removal of Restrictions Act,1967
• Physical Planning, 1967
• Development Facilitation Act, 1995
• Municipal Systems Act, 2000
• Registration of Agricultural Holdings (Transvaal)
  Act,1919
• Advertising on Roads and Ribbon Development Act,
  1940

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North West Key Findings

• What works relatively well
• New Ordinance applicable in former Transvaal
• LUPO applicable in former Cape
• The new Ordinance, LUPO and the town planning and
  zoning scheme system
• Township Board/Planning Advisory Board
• The alignment of the Ordinance system to existing
  municipal and provincial structures
• The Municipal Systems Act and the related spatial
  development frameworks
• The DFA and its innovations

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North West Key Findings

• What does not work well (1)
• The match with Constitutional mandates for
  provincial and municipal planning with the
  province having an executive and oversight
  function in respect of municipal planning.
• Suspension of R293 and R188 in 1998 applicable to
  tribal areas with leaving DFA sole formal option
• The fragmented, complex, and diverse application
  of planning laws that is not conducive to
  effective land use decision making and management
• The DFA Board
• The limited capacity at the DFA Board and the
  Department of Local Government and Traditional
  Affairs (Sub Directorate of Spatial Planning and
  Land Use Management)
• Extensive rural municipalities and the mismatch
  between capacity and legal requirements at
  provincial and municipal level

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North West Key Findings

• What does not work well (2)
• Delays in obtaining responses and in decision
  making
• The legacy of historical applications and
  approvals in the system (eg old Ordinance
  applications, Cape/Transvaal/Bophuthatswana
  permissions, incomplete townships, etc)
• The dispersed information on land use matters
• The decline in experienced planning staff and
  knowledgeable leaders
• The exclusion of traditional leaders and tribal
  land matters from the current dominant system
• Unrealistic expectations in the spatial
  development frameworks
• Negative consequences for investment and transfer
  of ownership

15
North West Key Findings

• Numbers of applications
• Fairly large volumes of municipal decisions in
  terms of Ordinances and town planning schemes (eg
  Tlokwe 16 townships and 56 rezonings in 2010)
• Provincial government deals with appeals (18),
  Old Ordinance (unknown), Townships (9), DFA (9),
  Physical Planning Act (11).
• Processes are generally slow, taking in excess of
  a year to finalise

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Revision to Provincial Legislation

• Recent Law Reforms
• Gauteng
• New Gauteng Laws (ROR and Infrastructure Act)
• Gauteng Planning and Development Act 2003
• Alignment of Town Planning Schemes by
  Municipalities
• Municipal Systems Act 2000
• Gauteng Planning and Development Bill 2011 and
  Land Use Management Regulations
• North West
• North West Land Use Management Bill and Land Use
  Management Regulations
• Alignment of Town Planning Schemes by
  Municipalities

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Matters Pertinent New Provincial Laws

• Clarification of Roles and Functions of Different
  Spheres of Government
• Define Provincial Planning Functions
• Coordination
• Standards
• Alignment
• Custodian of Information
• Monitoring of Change
• Appeal Function
• Audit of Existing Information and Institutional
  Capacity
• Comprehensive Revision and Alignment of Laws
  Guided by National Framework Law
• Repeal of Non-aligned Laws
• Phased Upgrading of Laws Without Compromising
  System