In Chapter 3, the discussion focused on the proactive, forward planning aspect of local government planning. The focus has been on the spatial element of integrated development planning.
Once the plan-making process has been successfully carried out, there will be a clear, strong framework, of historical, current, and proposed actions relating to the elements of public spatial structure (green space, movement, hard urban spaces, social facilities, utility services, and emergency services). The framework will be prioritised and backed by budgetary commitments and a selective use of legislative reinforcement.
There will also be indicative judgements about the authority’s intentions and preferences (for example, where it wishes to encourage interpretation, greater mix of use, or particular land uses) and its intentions relating to public projects, special areas and the like.
The framework therefore establishes a clear pattern of accessibility and potential relationships between different activities and it is this framework, more than anything else, that establishes the logic to which the private sector can respond.
Because policy-based planning of this trend is directed by politically-elected decision makers who have final approval over the plan, they can influence how their areas should look spatially and, in particular, redress inequities that have arisen from past planning policies.
However, public responsibility does not end there. Public authorities also have the responsibility of managing the use and development of land with their area of jurisdiction.
Managing the use and development of land has two main aspects:
In this chapter the Commission treats these two aspects as essentially similar. The recommendations that the Commission makes would ensure that the same laws, principles, planning institutions, and procedures would generally apply to both aspects.
The DFA defines ‘land development’ as ‘any procedure aimed at changing the use of land for the purpose of using the land for residential, industrial, business, small-scale farming, community or similar purposes’. The term thus covers both the aspects of land development and land use change referred to in Section 3.3. For the sake of convenience, the DFA definition is used in this sub-section. Thus the term ‘land development management’ refers to the management of new land development and that of a change of existing land use. The essential difference between this management function and the form of planning discussed in the previous sub-section is that the management function, as a public sector activity, is more reactive to private sector initiatives.
South African law grants no one an absolute right to develop and use land. Any person who wants to develop or use land can do so only subject to the law’s restrictions. Ideally the law should only regulate those aspects of land development and use necessary either to achieve particular strategic objectives or to minimise the negative impacts of land development and use changes on neighbours and the public in general. It is only through pursuing such an approach that government – with its limited resources – will be able to provide equal levels of protection and service delivery to all South Africans, regardless of whether they live in a township, a suburb or a village.
The private sector will appropriately continue to be the major force in the development of land. While land management systems in South Africa remain incoherent, unclear, cumbersome and contradictory, the private sector cannot operate with certainty and assurance in the land market and is frequently able to develop land without any regard for the needs of the general public. In order to remedy this situation two requirements are essential. Firstly, the DFA principles as expressed in plans drawn up by local councils should be central to public consideration of development proposals. Developers should be required to motivate and justify change in terms these. Permissions should not be granted if proposals are in conflict with them.
Secondly, an effective and efficient system must be devised to provide certainty and security both to the private sector involved in land development as well as to the people affected by their developments. Certainty can be achieved if the integrated development plans are clearly known, and are drawn up in an inclusive fashion.
Decisions around land development and land use change, therefore, should not be taken in a vacuum. They should be informed by a proactive plan formulated by the appropriate authority which provides sufficient guidance to the decision-makers charged with considering individual applications for land development and land use change. The plan, therefore, while not being able to cover all contingencies, should provide decision-makers with a way of thinking which allows them to deal with the unexpected. At least this degree of specificity is required.
Key disputes around land management often arise where settlement, rapid urbanisation and large scale investments are involved and where rights in land are disputed. These occur in both urban and rural areas.
In respect of land development, municipalities have a key role to play. The Commission’s view is that decisions with respect to land development and use should be made locally, except in cases where wider interests – for example, crossing municipality boundaries or issues which are province-wide or national in scope – are at issue. The vexed question of who should make such decisions at a local scale is discussed in Section 4.6.4.
Currently, there is a wide gap between different experiences of South Africans in terms of land development management. On the one hand are the experiences of people living in the previously ‘white’ centres and in the suburbs of the larger towns. Land use changes there are generally channelled through formal processes with reasonable opportunities for comment and participation by people likely to be affected by the decisions. This position must be contrasted with that of people living in ‘townships’, as well as those living in rural areas. In both these cases land development is only minimally regulated, if at all.
In principle, land development opportunities should be available to all citizens and the benefits of land use management systems should be equitably spread. Everyone within the jurisdiction of a municipality should be equally protected from the adverse impacts of land development changes, and should have an opportunity to be heard in relation to these.
Land management has two key goals. The first of these is that it must provide effective protection to both the natural environment and members of the public from negative impacts of land development and land use change. It should also attempt to ensure a continually improving spatial environment, particularly in terms of the quality of the public space. The second is that it must provide a reliable degree of certainty to developers, members of the public and all spheres of government so that there is a shared and consistent understanding of the scale, extent and nature of permissible land development and use within a specified time period. Both of these goals are essential for the operation of an efficient and fair land market.
The manner in which a land development management system achieves these goals is through the determination, allocation and restriction of rights to use and develop land. These rights can be used in two important ways. Firstly they provide a basis for the public sector to negotiate with developers of all types, as well as individuals, to achieve land use and development outcomes that will promote social, economic or environmental benefits. Secondly they provide a basis for the relevant authority to value land and so to determine an appropriate rating of the land.
What has been introduced by the DFA-induced paradigm of planning is the concept that rights to the use of land should be consistent with the policies and priorities of the municipality.
In the past these rights have been regarded as being granted in perpetuity. This undermines the government’s ability to use land development and use rights as a means of implementing and realising strategic plans. As soon as rights are allocated in perpetuity it becomes almost impossible for the relevant authority to formulate different development plans and this greatly hampers the authority’s ability to adapt and shape its plans to meet the constantly changing needs of society.
During the apartheid era, different groups, on the basis of their race, had entirely unequal access to land for residential and economic purposes. In addition to this racial fragmentation, in different areas, different laws and systems of tenure applied. In many former white areas land was managed by means of town-planning or zoning schemes. The schemes aimed at establishing and protecting very high standards of environmental amenity in white areas. A high level of resources is required to administer those schemes.
Different land use management systems applied in the former homelands and so-called TBVC states. These were far less sophisticated than the town-planning or zoning schemes that operated in white areas. They offered far less participation and protection of rights, and were generally very rudimentary.
Since 1994, as municipalities have begun to include areas that are an amalgamation of a number of former racially-defined areas. Commonly there is still an inordinately high proportion of any municipality’s planning staff tied up in administering schemes which essentially maintain white suburban environmental amenity, while very little capacity is left for the planning and development management of historically disadvantaged areas.
Land use management and control in former white South Africa has a long history. Prior to the advent of zoning, the form of development and, not uncommonly, who could occupy land, occurred via restrictions on title deeds, established when townships were formally registered. This system of control continues to operate in tandem with zoning schemes today in many older areas.
Zoning was ‘imported’ on a widespread basis from the UK in the 1930s. It is the legal declaration of what use land can be placed under and, via set-backs, height-restrictions and bulk factors, the maximum intensity of use which would be allowed. It is firmly based on the principle of the separation of major land use classes (work, live, play and move) to prevent conflict, which was a central plank of the modernist paradigm.
These schemes, which have been the central instrument of land use management in white South Africa, have therefore generally separated different land uses and densities from one another. They have also promoted high (and expensive) space standards in terms of street widths, building setbacks, and other aspects of layout. The result has been the division of urban space into sets of mono-functional and relatively uniform built environments.
Local government bodies in white areas played a central role in land development management, preparing zoning schemes and making decisions about land use. In certain parts of the country, especially outside of the larger towns, provincial government has also played this role. Zoning was seen as a proactive planning tool insofar as it predetermined the use of each land parcel within an area.
The effectiveness of zoning systems has been severely reduced in may areas over the last decade. One contributing factor has been amalgamation of municipalities, with the shrinking capacity in municipal and provincial planning departments; another has been the rapid pace of land development in urban areas.
A number of changes that have had implications on the old zoning systems have been introduced since 1994.
National government introduced the DFA, which created a new approach to the management of land development (involving general principles for land development, land development objectives and development tribunals with new procedures for land development). The philosophical starting point of this legislation is that the use of each parcel of land should be considered within a broader context, defined by the strategic spatial policy of the area.
Several provincial governments have also initiated change in the land development and use systems which apply in their provinces, through the formulation of new provincial legislation. In all cases, the main thrust of their proposals lies in bringing the management of land development and use within a single provincial system. New provincial laws have all followed the general direction of the DFA in as much as they have created an imperative for policy or strategic plans to inform land use and development.
Recently, a number of municipalities have made efforts to reduce the confusion and complexity that surrounds the existence of multiple systems and schemes in their areas of jurisdiction. Most municipalities confront myriad schemes and systems as a result of different legal frameworks governing land development operating in the different racial zones of apartheid. The Commission has investigated some of the measures adopted to address these difficulties. Most of them revolve around extending schemes and procedures adopted under pre-1994 provincial ordinances (historically which applied exclusively to ‘white’ municipality areas) to substitute for other systems (such as those created under the Black Communities Development Act) in former ‘black municipality’ areas. In some cases, changes also include simplifying the rules and procedures, though there are situations (particularly in former townships) where the opposite is the case. In some cases, municipalities have been limited in what they can achieve by the framework of existing law.
The Commission’s view is that these efforts to reform existing systems by provinces and municipalities should be supported and facilitated, as well as channelled in appropriate directions – in particular, in the direction of accomplishing the principles and paradigm of the DFA. It also believes that the national framework that has been referred to should set broad guidelines or principles which should inform how such efforts to reform zoning schemes takes place.
Currently, the law regulating land development management is diverse. In each of the provinces that have not passed their own development and planning laws, old ordinances that used to apply in white areas prevail, alongside apartheid regulations that applied in black areas. There are also other laws at a national level that impact on land development management such as the Less Formal Townships Establishment Act, the Removal of Restrictions Act, the Physical Planning Act. The ordinances set out the legal basis for zoning and town planning schemes and dealt with both drafting of schemes, the amendment of schemes and procedures for new developments.
The DFA introduced a system of land development linked to provincially-created tribunals which provided an alternative route for land development applications. The aim was to speed up land development and allow tribunals to override laws from the old order which impeded positive land development. Chapters 5 and 6 of the Act defined procedures for this.
The provinces that have passed their own new legislation have tried to create one set of procedures to deal with new land development and land management, yet in some cases have retained the DFA as an alternative route.
The Commission’s view is that national legislation relating to land development management should be limited and focused. It should not do more than strive to achieve an appropriate level of uniformity across the nation. This it should do through the establishment of national norms and standards, the provision of a basic national framework for land development and the empowering of a national minister to establish national policies. The nuts and bolts of land development management should be dealt with in provincial legislation that should accommodate the very different needs of each of the nine provinces.
Currently the national legislation is inconsistent with this position, especially insofar as the continued existence of the Physical Planning Act and the Less Formal Townships Development Acts are concerned. Certain aspects of the DFA also deviate from the constitutional ideal described above. National government should move swiftly to clarify and reshape the legislative position at a national level. Until this is done, the efforts of provinces to draft their own legislation are inevitably subject to a degree of uncertainty. Those provinces that have not yet finalised their legislation on land development would be well advised to wait for the national framework to be drawn up. Where, however, the need for new legislation within a province is very pressing, provincial government obviously cannot be prevented from drafting its own legislation. Waiting for national legislation would however obviate the need for later amendments, should they prove to be necessary. In cases where a province does proceed with the formulation of legislation, it should do so in close consultation with national government and national government should provide the necessary assistance where this is required.
In this context there are other laws which need to be addressed. In particular if the above approach is adopted, there will inevitably be the need to bring historical use rights which have been inappropriately granted into line with new integrated spatial development plans. This will require public authorities to deal with issues such as compensation.
The Constitution’s property clause (Section 25) may introduce a right to compensation for land use and development changes that lead to a diminution of value to the property owner. It clearly introduces such a right where an entire piece of land is expropriated (that is, where the owner is left with no rights in the land whatsoever), but is less clear on a situation where the owner is simply prevented from exercising one or two of his or her options. This is an area of law fraught with difficulty and complexity across the world. Clearly government cannot operate effectively where every move that it takes which might detract from one or other use or development right will require payment of compensation. This does not mean that government can act with complete impunity. No right can be diminished without proper notice and an opportunity to argue against the diminution. Payment of compensation however is only payable in certain extreme circumstances where so many rights are lost that it is equivalent to having the entire property expropriated.
The Commission is of the view that in order to achieve real justice as well as sustainable development, the provisions of the property clause must be understood to empower local government to change the spatial distribution of rights, where these are inappropriate in order to bring them into line with new policy plans and spatial priorities. Obviously this power has to be exercised responsibly and fairly.
The complexity and range of existing legal mechanisms for managing land development and the often extraordinary complexities of reforming them makes it very difficult for the Commission to make detailed recommendations about the precise nature of the mechanism that should be used in each province (and indeed in each municipality). The wide range of different development needs, resources and capacity would also render such precise prescriptions worthless.
The Commission does however have strong views on certain underlying and crucial requirements that must be met in any new system of land development management mechanisms. These requirements are set out below.
The management system needs to be policy-led in the first instance. The DFA principles and the new paradigm that it introduced require substantial changes to the structure and form of settlements. The spatial dimension of IDPs should aim to accomplish this purpose. Land use management should broadly have to be aligned with such plans.
Within the parameters of the policy framework, there are good reasons for a system of land development management to retard or promote rights which are defined at the level of the erf. However, a number of improvements need to made to current practices:
Ultimately, the decision as to how to deal with these dilemmas should be dealt with in provincial legislation which itself should leave the detail to local authorities: what is possible and desirable will not be the same from place to place and the law should allow for local discretion.
When determining how to deal with land development management issues, local authorities should consider the following points:
When provinces enact their laws, they should suggest that the following principles be adhered to in respect of land use management:
The Commission believes that local authorities should be encouraged to introduce new management instruments to deal with locally-specific problems. A relatively widespread problem, for example, is that of inappropriate allocation of development rights historically. There are many cases where rights have been awarded in place where it is apparent, in the light of subsequent more sophisticated knowledge, that the taking up of these rights would have seriously detrimental environmental consequences. Local authorities should be encouraged to rectify these. The transfer of development rights is one instrument which would seem to hold considerable potential in this regard. The Commission is aware of potential problems in the use of this, if it becomes a widespread private sector trading mechanism. The instrument should remain firmly in public control.
The regulatory system should be streamlined. Many local authorities throughout the country are facing two interrelated problems. Firstly, they do not have the capacity to deal timeously with the flood of development applications they are receiving. Backlogs are increasing, with very negative consequences for holding costs for private sector developers. This is being aggravated by different approval routes required by different national legislation. In places, the situation has reached crisis point and delays of over two years, for relatively minor applications, are not uncommon. It must be emphasised that the Commission’s research indicates that this is not universally true. The worst situations pertain in the larger municipalities, particularly in Greater Cape Town and Johannesburg.
Secondly, within municipalities, officials are required to spend almost as much time on relatively minor issues (such as the erection of carports, internal alterations and the like) as they do on large, complex applications.
Decision-making should be streamlined and speeded up. Developers are entitled to speedy consideration of applications. To this end the following recommendations are made:
- Approval in principle: Here the developer approaches the authority with a concept motivated, inter alia, in terms of the Chapter 1 principles of the DFA and the spatial dimension of the integrated development plan. If the project is not acceptable on public good grounds, the developer need not waste time and finance in pursuing the project. If the project is acceptable in principle, the local authority should produce a short ‘contextual framework’ which outlines the authority’s requirements in terms of the project. This becomes the basis of negotiation in which the local authority seeks to maximise public good benefits.
- Approval of a developmental framework: This relates to the layout of the site as a whole. Issues of efficiency, spatial quality and public health and safety are central in assessing these.
- Approval of building plans: Health and safety considerations, as well as the reasonable protection of the rights of neighbours are central in these approvals. In the case of very complex and large projects, a more complex process of approval may be necessary. The agreed process should result from negotiations between the developer and the local authority, once approval in principle has been granted.
By adopting this system, it is also possible to treat steps within these stages as a process. Issues such as traffic impact analyses, environmental impact assessments and so on should be called for within the process only if and when required. In terms of the current procedures of many local authorities, a full range of back-up information is required before an application can be lodged. This frequently results in unnecessary costs to developers.
In the interests of fairness and transparency, no negative decisions on applications should be made without hearing the applicant, if the applicant wishes to make representations.
The issue here is who should make decisions on land development issues. Pre-1994 legislation allocated land development decision-making responsibilities exclusively to elected representatives. The introduction of the DFA challenged this.
That legislation sought to establish a clear division between policy-making and implementation and decision-making power. It introduced a system whereby elected representatives approve policies and plans and officials and others with technical skills interpret and apply these.
The issue is a thorny one. Protagonists or the ‘elected representative’ school argue that land development is inherently a political process and should be treated as such. Without political buy-in, decisions would not be implemented. They further argue that there are serious cost implications in buying in capacity in the form of ‘experts’ from without government and there are commonly issues of self-interest, and conflict of interest, particularly in smaller communities.
Supporters of the DFA position argue that, in principle, the skills and capacities of elected representatives should be directed towards formulating and approving policies and plans which establish principles and affect broader communities. Day-to-day decisions arising around the implementation of these should be objectively assessed on technical and conformance grounds and should be taken by a panel of appropriately skilled professionals, appointed by the elected representatives and drawn from within the public sector and without. Those decisions, it is argued, should not be subjected to the possibility of a veto on political, as opposed to technical, grounds.
The majority view within the Commission, although not unanimous, supported the latter argument. There was consensus, however, that all decisions should be taken in the light of the policies and plans drawn up through the integrated development planning process and should be capable of being defended on those grounds.
The DFA introduced the possibility of establishing provincial tribunals as an alternative approval route for land development proposals. The primary purpose of this was to speed up decision-making processes, particularly in relation to reconstruction and development projects. To this end, the tribunals were given extraordinary powers to override legislation which unreasonably fettered projects considered desirable.
The Commission believes that in principle it is desirable to have a single approval route in local government. However, it recognises the importance of retaining the extraordinary powers in order to bring about substantial improvements to the structure and form of South African settlements. It also recognises that too wide a distribution of extraordinary powers (for example, by allocating them to local authorities) could cause serious problems.
It therefore recommends that the provincial tribunals be retained but that only particular types of projects (for example, reconstruction and development projects that have large impact or those which are particularly complex) should be allowed to pursue the tribunal routes. Provincial legislation should stipulate qualifying criteria.
It is recommended that each province should appoint a development appeal board which should serve as the single point in the province for the hearing of all land development and land use-related appeals. The appeal board should consist of professionals from appropriate disciplines, appointed by the MEC after a broad consultation process.
Land development and use decisions by authorities have financial implications both for governments and the private sector. The imposition of new restrictions can reduce the value of land, giving rise to possible claims for compensation by landowners against authorities. The removal of restrictions on development may enrich property owners, impose costs of servicing on local governments, and at the same time negatively affect neighbours to a new development. Both government and some private sector actors may feel entitled to a claim against those enriched.
There are various approaches to recapturing the enhanced value of land resulting from an extension of use and development rights. These should be agreed upon in consultation with the Department of Finance. Such agreement should be subject to the following overriding principles: firstly, the cost of administering the approach should not outweigh the financial benefits; and secondly the enhanced value should only be captured once. This will require careful consideration of the relationships between the land development management system and the property tax system – and the effects of both on the land market.
A constant danger in land development management is that of corruption. This can take two forms. In one, officials take bribes in return for the granting or facilitation of certain development permissions. In the second decision-making processes are dominated by certain groups (often with the assistance of officials) at the expense of other groups or individuals affected by the decision. This occurs especially where the dominant group is better resourced and more familiar with the workings of the land development management system.
In order to minimise these two dangers there must be the highest level of transparency in land development decision making. There can be no provision for in camera decision making. All people passing judgements about a decision who may have a material interest in the outcome must recuse themselves from all deliberations relating to the development.
The notification of all affected parties of an application for land development or land use change is a crucial step in ensuring that there is adequate public participation in the decision-making process. The South African context requires a particularly thoughtful and thorough type of public participation in land development decision-making. Illiteracy is widespread, many people are unfamiliar with the workings of a land development management system in particular, and administrative processes in general, and the capacity of many people to dedicate themselves to community affairs is severely compromised by poverty. This is particularly, although not exclusively, true in rural areas. Thus, special care has to be taken to ensure that all affected parties are fully informed of the implications of a proposed development or land use change, as well as informed of their rights in the adjudication process. It is unrealistic and inappropriate to foist that entire responsibility onto the local municipality. It is therefore proposed that every applicant be under the obligation to undertake a public notification and participation process under the guidance, and subject to the approval, of the municipality.
Managing the transition towards new frameworks for land development management is not straightforward. This applies equally to situations where there is already a system (or many systems) in place, as well to those where there is none.
An essential requirement for an effective transition is that there be national legislation providing both clear guidance – especially on constitutional questions – and strong support to municipalities and provinces running the transition processes. Effective transition will require government to take decisions that may well provoke strong opposition and it is important that the protagonists of change have strong legal support for their actions. In those cases where local and provincial government is reluctant to implement change, pressure from national legislation will be equally important.
Change in land development management cannot be achieved overnight. There should thus be a fixed time period within which land development management systems need to be changed. The Commissions suggests a time period of five years. This should enable careful consideration to be given to the details of the systems as well as ensuring that they adequately reflect the contents of locally developed plans and policies.
The DFA should provide the basis of a national legislative framework. This requires certain changes to the Act.
The amended Act should set out principles for land development and decision making as the DFA currently does. These principles should be re-ordered, reworded and expanded to make them clearer and more useful. Proposals to this effect have already been made by the Commission. The amended Act should also set out principles dealing with land use management. In particular, the amended DFA should set out principles applying when provinces deal with land use management in their laws. These principles should deal with how land use management in an area must be made compatible with the spatial dimension of the IDP. They should stipulate that land use management systems should be applicable throughout the entire area of jurisdiction of a municipality. The national framework should disallow systems of land use management that create special codes for particular areas such as informal settlements or former homeland areas, as this perpetuates land division and discrimination.
The amended DFA should set out, as the present Act does, the basis for policy-led planning. However, it should be clear that it is regulating only the spatial and land development aspects of policy planning. The amended Act should set out what the subject matter of the spatial and land aspect of integrated development plans should be. It should do so in broad terms, so that provinces can take the provisions further in their own laws and regulations. It should also refer to the spatial and land-related aspect of IDPs at local council, metropolitan council and district council scale. It should provide that all primary local authorities, metropolitan and district councils, and provinces should develop spatial policy plans as an aspect of their IDP process.
These amendments require a redrafting of Chapter IV of the DFA which deals with land development objectives (LDOs), so that the new planning system is given greater clarity. The rewritten Chapter IV should tighten up the requirements for LDOs and provide greater clarity about them. They should be redefined as the spatial element of IDPs.
The amended DFA should also seek to clarify the framework for land development decision-making. It should provide for decision-making on land development applications to take place in local government. It should provide that local-scale decision-making bodies should be made up of experts and officials who should be bound to make decisions within politically approved policies and plans. Chapters III, V and VI should be amended but broadly retained as they create the legal basis for the special powers necessary for speeding up decision making via the tribunal process.
The amended DFA should stipulate that each province must create independent appeal tribunals that have the final decision on appeals from other land development decision-making bodies (with appeal to the courts as provided for in the existing Act).
Finally, the amended DFA should encourage and assist each province to repeal all legislation that has been inherited from the previous era so that national uniformity and certainty can be established.
Each province when reforming its laws must rely on national government to repeal laws that lie outside their competence. This means that the law reform process that takes place in each province should be driven by each province in co-operation and collaboration with some kind of national task team charged with aligning repeals and amendments. When each province passes its own law, national government should, through appropriate legislation, repeal and amend the corresponding national laws that apply in the province.
The Commission believes that each province should develop its own planning law, along the lines generally set out below, and appropriate to its own material situation, needs and capacities. The Commission recognises, however, that some provinces may experience great difficulty in doing so, and that the possible expense of repeating this endeavour could become wasteful. To assist in this matter, the Commission recommends that the national department responsible for spatial planning be required to provide assistance to all provinces requesting help in the development of their own planning law.
To date, three provinces (the Western Cape, Northern Cape and KwaZulu-Natal) have passed their own new development and planning legislation, and certain others are following. Each of the three laws broadly follow the approach to planning initiated in the DFA, but in differing ways. Ideally, the provincial laws should be prepared after the national framework has been developed so that broad consistency exists.
The new legislation in each province should encompass the issues set out below.
Provincial law should provide principles relating to land development and decision-making. These could either be the DFA principles or the DFA principles as amplified in provincial legislation (as KwaZulu-Natal has done). They could also be a new set of principles altogether, although they would need to be substantially similar to and compatible with the DFA principles, as the DFA principles would prevail in the event of a conflict.
The National Development and Planning Commission believes that provincial commissions should be established to monitor, and to assist, the creation and implementation of the new planning and land management system. Provincial laws could give provincial commissions other functions such as:
Provincial planning laws must deal with the spatial aspect of integrated development planning in relation to both provincial and local authorities. The law should identify the minimum contents of these plans, in relation to the roles of provincial government, district, metropolitan and local councils. The focus in provincial laws on development and planning should be to give content and to regulate the spatial dimension of IDPs.
The provincial laws should deal with the status of the spatial dimension of IDPs and identify how these relate to and determine the adjudication of land development applications. In doing so it will be important that they retain the DFA’s principle that these applications should be considered on the basis of policy and principle rather than rules and regulations alone.
Provincial laws should give clear guidance to local authorities regarding the spatial aspect of the planning requirements imposed by national sectoral laws. Local authorities have recently been required to prepare transportation plans and water plans, both of which have their own reporting routes. Provincial legislation should stipulate that one integrated development planning process which meets the different requirements of the various national sectoral laws should take place. Provincial laws should also give clarity to requirements to undertake integrated development planning in terms of national local government legislation. It should attempt to align the requirements of the spatial aspect of IDPs, which is their focus, with sectoral national legislation so that there is clarity of content and consistency of process between them.
As the final provincial law is passed, these laws should replace Chapter IV of the DFA which deals with the spatial aspect of IDPs referred to above. The effect of the provincial law reform process should be to replace historical planning instruments with the spatial integrated development plans.
The provincial laws should deal with the role of the MEC in approving and supporting IDPs. The Commission supports an approval (mainly for alignment purposes), monitoring, co-ordination and support role for province in respect of local planning. The laws should spell out precisely how this should take place.
Each provincial law should articulate how land development management should proceed. It should set out streamlined, efficient and clear land development procedures that should apply to the development of all land in the province. There should not be different systems and procedures for different areas, or different types of development. For instance the Less Formal Townships Development Act creates a system of land development that is primarily for low-income housing development, and does not allow for proper participation by interested parties. All such Acts should be repealed, and all developers wishing to make any change to land, or undertake a development, should be required to follow the same approval route as any other to develop land. Land development procedures must be transparent and allow for interested parties to object, make comments and be heard.
Land development procedures must set time limits within which public authorities must respond so that development is expedited. The law should also stipulate criteria for applications being heard in tribunals.
The bodies that make decisions regarding land development applications must be able to use the spatial aspect of IDPs as the framework and basis of decision-making. The regulations that define what should be contained in the spatial aspect of IDPs must therefore be clear and give local authorities guidance.
Each provincial law should have sections that deal with the management of land at the level of individual erven by local authorities. The management of land complements land development. In other words, land development takes place in accordance with policy parameters that are set out in IDPs. Land use management systems must be aligned to such policies, and must be used in conjunction with them. Provincial legislation should also encompass the full range of land management instruments (for example, zoning, title deed restrictions, building regulations) within a single law.
Provincial laws should not only state how land should be managed, and how individuals should exercise their rights in accordance with the land use management system, but should also direct the transformation of existing land use management systems, such as town planning schemes and land use law (for example, zoning) under one piece of legislation. This requires adoption of a set of principles, for example:
The law should create an imperative for reform to bring these areas into one broadly applicable land use system on an incremental basis.
Provincial laws should establish independent appeal tribunals or boards that have the final decision on appeals. These should comprise people selected for their technical and professional skills in areas relevant to land development. They should be appointed by the MEC for a fixed period, following a broad and transparent nomination and selection process.
This Chapter proposes the means towards implementation of the recommendations made in Chapters 3, 4 and 5. In the process these recommendations are ordered into a number of themes and made somewhat more specific, in order to indicate how they may be implemented.
This Draft Green Paper, produced by the Commission, is intended to form the basis for a Draft Green Paper to be published by the Department of Land Affairs in mid-1999. Thereafter, it is the Commission’s view that a period of discussion and debate should follow. To support that discussion and debate, it is envisaged that a variety of programmes – educational, informational and discursive – should take place. At the end of that period, and informed by the debate, it is anticipated that the Department will draft a White Paper on planning, for adoption by national government in March 2000. New national legislation would then follow the White Paper.
Meanwhile, it is anticipated that many of the provinces will continue to develop their own planning frameworks. The Commission believes that publication of the Draft Green Paper will contribute to such developments. In the provinces in which planning legislation has not yet been developed, the Commission will be available to assist in the process over the next year.
Change in planning is ongoing. The Commission hopes that the national discussion which will be launched by the publication of the Draft Green Paper will broaden and deepen understanding of the new planning paradigm introduced by the DFA, and accelerate the introduction of specific measures designed to take change in the planning system forward.
Investigations by the Commission have revealed a spatial planning system which is fragmented, confused and devoid of a common vision and approach. It also faces severe structural problems in all spheres of government.
The Commission believes that the role of a reformed spatial planning system is of great importance to the country as it faces up to the challenge of restructuring the legacy of fragmented, inconvenient, frequently hostile, highly inefficient settlement forms in both urban and rural areas. The recommendations outlined in this Draft Green Paper are aimed at reforming the spatial planning system.
The approach to change adopted in this document is incremental. The country has been through a period of radical restructuring over the past five years and a period of consolidation, while still managing meaningful change, is required.
It is recommended that the planning paradigm which was ushered in by the DFA in 1995, albeit imperfectly, should be the starting point of a reformed planning system. The paradigm has a number of characteristics:
A number of specific proposals flow from this. Some of these are set out below.
The DFA itself needs to be substantially redrafted and made clearer:
Terminological confusions relating to planning products and processes should be replaced by single terms: integrated development planning processes producing integrated development plans. These plans always have a spatial dimension.
All spheres of government should be required to produce integrated development plans, the spatial component of which must translate the DFA principles into contextually-specific proposals and these plans should be closely tied to budgets. Plan formulation should occur on the basis of co-operative governance and, wherever appropriate, joint decision-making. The cutting edge of the public spatial planning system is seen to be local government.
The Commission found that the principles are not clearly or widely understood. To this end it proposes:
In this campaign:
There should be ongoing monitoring of the DFA by the Department of Land Affairs. Proposals are set out in some detail in Section 3.7.1.6. They involve:
The Commission believes that most of these recommendations can be implemented immediately, although they may also imply legislative change in the medium term.
It is also recommended that a similarly vigorous campaign to that described in relation to the DFA principles be launched regarding the DFA paradigm. As yet, no manual or publication has been prepared that sets out the basis of a normatively based planning system, the role of policy plans, and so on. The Commission, together with the Department of Land Affairs, should prepare and undertake these activities as soon as possible, together with, or in parallel to, the campaign with respect to the principles.
International precedent shows that a key success factor in achieving positive planning is clarity on roles between spheres of government. The Draft Green Paper makes specific recommendations regarding the roles of the spheres of government in Chapters 3 and 4.
A summary of the different roles is as set out below following the recommendations of Chapter 3, with suggestions on measures towards implementation:
The role of national government should be to:
Provincial governments can play an immediate further role in the development of the planning system through the following:
In a context in which local governments are devoting increasing attention to integrated development planning, the Commission believes that they can immediately engage in:
International precedent suggests that a key success factor in achieving successful planning is co-ordination and integration between and within spheres of government:
The Draft Green Paper makes a number of recommendations regarding capacity, which it identifies as a major problem. The issue of inadequate capacity has both quantitative and qualitative dimensions and relates to officials, private practitioners and decision-makers.
Recommendations include:
The main thrust of the Draft Green Paper’s recommendations regarding legal reform revolves around creating ten acts that deal with planning and development. These should be the DFA and nine provincial laws. The DFA should essentially set national norms and standards, policies and frameworks, and the provincial laws should deal with details.
The DFA should do the following, leading up to and following the proposed White Paper on Planning:
The Draft Green Paper proposes that the task of reformulating the DFA should be undertaken by the Department of Land Affairs. The Commission will assist in this task to the extent that it is called upon to do so.
The draft Green Paper makes recommendations regarding what should be covered in the provincial laws. The issues are:
Where provinces request assistance with the task of this legislative reform, the Commission will assist.
In summary, it is proposed that the Development and Planning Commission should:
| CIU | Co-ordination and Implementation Unit in the Executive Deputy President’s office |
| DFA | Development Facilitation Act 67 of 1995 |
| DLA | Department of Land Affairs |
| DPC | National Development and Planning Commission |
| EIA | Environmental impact assessment |
| FEPD | Forum for Effective Planning and Development |
| IDP | Integrated development plan in terms of the Local Government Transition Act no. 200 of 1993 |
| LDO | Land development objective in terms of the Development Facilitation Act no. 67 of 1995 |
| MEC | Member of the Executive Council – the provincial equivalent of a Cabinet minister |
| MTEF | The Medium Term Expenditure Framework which requires the formulation of departmental budgets on a rolling three-year basis |
| NGO | Non-governmental organisation |
| Normative | Based on principles and policies, not on standardised rules and regulations |
| PGDS | Provincial growth and development strategy |
| R188 of 1969 | A proclamation which governed land development and tenure law applicable in rural areas for black people |
| R293 of 1962 | A proclamation which governed land development and tenure law applicable in urban areas for black people |
| SALGA | South African Local Government Association |
| SDI | Spatial development initiative |
| Spatial planning | The organisation of space, rather than land planning which sought to plan all land parcels comprehensively |
| TBVC | Transkei, Bophuthatswana, Venda and Ciskei |
Black Communities Development Act no. 4 of 1984
Constitution of the Republic of South Africa. Act no. 108 of 1996.
Development Facilitation Act no. 67 of 1995.
Environmental Conservation Act no. 73 of 1989
KwaZulu-Natal Planning Act no. 5 of 1998
Less Formal Township Establishment Act no. 113 of 1991.
Local Government Transition Act no. 209 of 1993.
Local Government: Municipal Structures Act no. 117 of 1998
National Environmental and Management Act no. 107 of 1998
Physical Planning Act no. 104 of 1991.
Proclamation R188 of 1969 in terms of the Bantu Administration Act no. 38 of 1927
Proclamation R293 of 1962 in terms of the Bantu Trust and Land Act no. 18 of 1936 and the Bantu Administration Act no. 38 of 1927
Removal of Restrictions Act no. 84 of 1967.
Rural Development Framework. 1997. Pretoria: Rural Development Task Team & Department of Land Affairs.
Subdivision of Agricultural Land Act no. 70 of 1970
Urban Development Framework. 1995. Pretoria: Department of Housing.
Water Services Act no. 108 of 1997.
White Paper on South Africa Land Policy. 1997. Pretoria: Department of Land Affairs.
Chairperson: Ms PB Yako
Vice-chairperson: Prof A Mabin
Mrs DM Balatseng
Mr RG Barry
Prof D Dewar
Ms EA Emdon
Mr JE Greig
Mr PG Grobler
Mr J Latsky
Mr OS Lebese
Dr NP Makgalamele
Ms S Mayet
Ms G Moloi
Mr DW Perkins
Mr M Ralekhetho
Prof DP Smit
Mr HJ Smith
Ms J Strelitz
Ms K van Deventer
Mr JGM van Straten
Ms VN Vedalankar
Ms J Yawitch
Mr IM Jonker (September 1997–March 1998)
Mr DP Msibi (September 1997–January 1999)
Mr JM Rantete (September 1997–November 1998)
Mr T Tolmay (March 1998–January 1999)
These documents were requested to assist the Green Paper process by providing information on a particular issue. They comprise research reports, memoranda and notes.
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