RESEARCH FINDINGS 21 July 2011 Port Elizabeth

1. Provincial Land Use Legislative Reform RESEARCH FINDINGS 21 July 2011 Port Elizabeth

2. STUDY AREA Source: Demarcation Board 2 Metro’s (BC and NMB), 5 district councils and 38 local municipalities

3. To provide an overview of land use / planning legislation in the Eastern Cape • 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 on the status of current land use legislation and see how these • might inform new provincial legislation. PURPOSE OF STUDY

4. Literature review • Interviews (2 – 3 hours): • Provincial officials • NMBM and BCM officials • Members / Ex members of Planning Advisory Board • Locally based consultants in both metros • Focus of interviews: • What works well in law? (planning and other related legislation) • What does not work so well? • What needs to be changed and what should a new provincial (or national) law focus on? • The performance of provincial and municipal laws which focused on collection of • quantitative data (how many applications; what type of applications; • how many appeals, etc.) STUDY APPROACH

5. From hub investigations, it is apparent that existing planning legislation is outdated, confused and fragmented KEY FINDINGS: EXISTING LEGISLATION

6. The investigation of Nelson Mandela Bay Municipality (NMBM) revealed that former structure • plans that existed ito the PPA, are not referred to or recognized by the LM • Some legislation has been repealed but regulations are still in in full force e.g. • the BCDA (Chapters VI and VIA and any regulation made thereunder) which makes • provision for the granting of leaseholds in former Black development areas • The LUPO is most frequently used to obtain development rights. There are 12 zoning • schemes across the NMBM municipal area some of which predate LUPO and others that • exist in terms of LUPO – Section 7(1) makes provision for a scheme established ito the • Townships Ordinance to be deemed a scheme ito of LUPO • LUPO makes provision for areas established in terms of Ordinance 33 of 1934 to be further • dealt with, within its own provisions • Only one area was established in terms of LeFTEA which is not widely used in the two metros • The DFA is not as widely used as the LUPO and also not specifically for the purposes • intended by the Act KEY FINDINGS: EXISTING LEGISLATION (CONTINUED)

7. Legislation applicable in traditional areas of old Transkei and Ciskei KEY FINDINGS: LEGISLATION IN TRADITIONAL AREAS

8. Legislation applicable in traditional areas of old Transkei and Ciskei KEY FINDINGS: LEGISLATION IN TRADITIONAL AREAS

9. In the Ciskei, the Land Use Regulations Act 15 of 1987 is still the applicable legislation today • In the Transkei, the Townships Ordinance 33 of 1934 still applies today • Laws on land use and land administration were conflated in the old Ciskei and Transkei in • the apartheid era and, for historical reasons, continued in this fashion • Customary law is still often used in the Transkei / Ciskei and hence planning laws are often • overlooked as there is a disjuncture between the two • Planning law has to do with protecting private property rights and not necessarily the • land / land use rights of everyone which is problematic in traditional areas and goes against • the concept of ‘Ubuntu’ KEY FINDINGS: TRADITIONAL AREAS (CONTINUED)

10. There are at least six pieces of national legislation, among others, • impacting on planning legislation KEY FINDINGS: NATIONAL LEGISLATION IMPACTING ON PLANNING • Are there many other obvious / frequently used ones that need to be added?

11. The RoRA is a big show stopper to land use applications in terms of time / cost • because no land use application may be granted which breaches the terms of a • restrictive condition of title. All appeals in terms of RoRA go the PAB which adds • to delays • Confusion arises as to whether the MSA can have an overriding effect over LUPO if • there are inconsistencies between the intent of SDF and land use applications submitted • in terms of LUPO (or any other planning legislation for that matter) • Forward planning documents such as SDFs and policies are generally inadequately • co-ordinated with infrastructure planning strategieseven though they are legally obliged • to be aligned • Decision making in terms of national laws largely precedes land use regulatory decisions KEY FINDINGS: NATIONAL PLANNING (CONTINUED)

12. In the Eastern Cape there are a considerable number of planning laws that are either • applicable in different parts of the Province, or represent parallel routes to development • The laws have also spawned land use management instruments such as • zoning schemes of different standards and responsible authorities • Planning and development does not only have to comply with the multitude • of laws but must also accommodate requirements of sector laws at • national and provincial sphere (e.g. NEMA) • At the same time, there are many other laws that intersect with traditional areas’ contexts • but fall officially outside of the Eastern Cape’s boundaries • There was an attempt at law reform in the province in early 2000s however, this process • was never taken through to completion for various reasons KEY FINDINGS: LEGISLATION SUMMARY

13. The time taken from submission to getting a decision varies on average between 4 • and 15 months • In 2010 the Province received 303 applications of which 58 were appeals in terms of • LUPO (Note: the province has 11 planning personnel of whom 5 are in training / have just qualified) • Rezonings are the main type of applications appealed • Main reasons for delays in processing applications at provincial level: • Incomplete applications • Delays in responses from applicant • Delays in responses from municipality • Staff shortages KEY FINDINGS: PROVINCIAL PERFORMANCE

14. KEY FINDINGS: INSTITUTIONAL • There are differences among different laws in terms of submission requirements • and responsibilities assumed by different Competent Authorities (LUPO, DFA, LeFTEA and • Traditional Areas’ legislation) • There are clear differences in appeal processes between different laws e.g. LUPO and DFA • Planning law enforcement is a municipal responsibility in terms of LUPO • There are tensions created by different laws applying to different authorities. For example, • liquor licenses are issued in contravention of zoning laws because the provincial government • administers liquor licenses while local government is responsible for land use and zoning. • This makes enforcement of planning legislation very difficult.

15. What works well? • The structure and procedures of LUPO work well for both applicants and officials • The procedural steps from submission to decision and appeals processes are clear and familiar in LUPO • What does not work so well? • The LUPO procedure has been impeded by laws such as the RoRA, NEMA, etc. as their different procedures work in sequence not in parallel • Delegations from province to LMs are not effective • Different rights of appeal are available under different legislation (NEMA, HRA and LUPO). Three different departments are involved resulting in more than one decision affecting planning outcome • The BCDA has been repealed but certain regulations have been retained which could • be absorbed into new planning legislation and streamline planning legislation in this way KEY FINDINGS : STAKEHOLDER VIEWS

16. What does not work so well? (continued) • LM’s role in respect of enforcement is unclear in terms of the DFA and where it is clear, • there are not sufficient resources to implement enforcement • Planning applications can be prepared by anyone, not necessarily a registered planner – applications are therefore often weak and badly prepared • The calculations for the amount which the creditor (LM) is entitled to impose on the debtor • (applicant / developer) in terms of section 42 of LUPO are not defined / prescribed in law– • This should not be discretionary but determined in law KEY FINDINGS (CONTINUED): STAKEHOLDER VIEWS

17. What needs to be changed? • The PSDP should be used as a mechanism to provide norms and standards and the LM’s SDF should provide land use management guidelines which can filter down through the scales to zoning which can take the form of a by-law / LUM scheme • A new provincial law should address planning norms and standards in respect of the following: • Delegations in respect of who does what and under what competencies and authority • Clarity of planning processes and procedures • The simplification of land use management schemes • Planning policy statements which can be more detailed plans in the hierarchy at local area planning level • The number of planners prescribed in respect of the number of applications that are assessed per annum and a mechanism for review from time to time • Emphasize mentorship particularly in municipalities that have very few experienced planners or twin these to where resources are located within a province KEY FINDINGS (CONTINUED): STAKEHOLDER VIEWS

18. What needs to be changed? (continued) • A new provincial law should permit LMs to have maximum autonomy on spatial planning and land use management • Ideally there should be a single land use application assessment by the LM but external oversight must be allowed for • A new provincial law should make it obligatory for public infrastructure development programmes to be directly linked to funding sources and concrete commitments in terms of time frames • Enforcement should be defined and interpreted as a decision deemed by a LM • Pre-application discussions can happen in principle but must NOT be determined in legal procedure • There should be a single responsibility at LM level from submission to decision which means that the current appeal mechanism must be reviewed • There is no doubt inconsistency in the way that planning law is applied presently therefore new provincial laws must be consistent throughout the 9 provinces in South Africa KEY FINDINGS (CONTINUED): STAKEHOLDER VIEWS

19. What needs to be changed? (continued) • New provincial law should focus on the collective and public aspects of making settlement • New provincial law should promote collaboration in a manner that it begins to consider how new common meaning unfolds in respect of livelihoods, common pool resource management and the creation of livelihood zones focusing on unique characteristics and landscape assets of each zone • A new provincial law needs to seek a balanced approach between rural and urban and take account of the ways that people navigate their day to day existences • A new law cannot be a one size fits all and must therefore understand how people themselves make settlement and develop codes that are appropriate for different contexts • Planning at national level and all other levels must seek to address the apartheid spatial legacy of the past and ensure that future challenges such as sustainable ways of creating settlement are not only entrenched in law but also monitored and evaluated on a consistent basis KEY FINDINGS (CONTINUED): STAKEHOLDER VIEWS

20. Existing provincial planning legislation is structurally unable to address the manner in which customary law is practiced. It is critical for new provincial legislation to address this through a system that embraces the way that local traditions address settlement making • This may mean that new legislation should consider people-centred participation processes and a rethinking of making boundaries based on inappropriate freehold title / individual erven which have implications for the way one considers the relationship between planning, tenure / title as well as the existing system of cadastral registrations • The roles, powers and functions assigned to local government in respect of land administration in traditional areas post-apartheid brought into being the separation of powers concept which conflicts directly with the single authority structures that existed in the past • With planning clearly being a local competency, it means that a new provincial law has to carefully consider the question of resources for LM’s to fulfill their roles without compromising the environment • The challenges of climate change and other uncertainties that prevail in the environment require flexibility thus requiring flexibility in planning law as well OVERVIEW OF IMPLICATIONS FOR PROVINCIAL LEGISLATION

21. Because laws are generally technical and absolute in instances, the question needs to be raised as to whether planning legislation is the place to govern uncertainty? • While the provincial view holds that the DFA is more appropriate to deal with planning at a level of principle (and particularly the principle of sustainability), the hubs hold the view that LUPO works well procedurally and from a planning process point of view • The demands on the planning regulatory environment by other associated legislation such as NEMA, exacerbates the practice and implementation of planning laws even further which results in fragmentation both spatially and institutionally • The law reform process in the Eastern Cape was not followed through as a result of lack of capacity, uncertain guidance from national level planning authorities and competency confusion among different spheres of government as well as the difficulty in incorporating traditional areas’ planning into a new unified planning law for the entire province. • Appeal processes are generally long, cumbersome, expensive and too open-ended for land use decisions to be meaningfully and timeously taken and implemented OVERVIEW OF IMPLICATIONS FOR PROVINCIAL LEGISLATION

22. THANK YOU!