Land is an asset. Land is scarce. Land is fragile.
These three statements reflect the basic relationships of humankind with land: social, economic and environmental. Humanity's association with land springs from the enduring nature of land: it is the basis of food, shelter and livelihood. The important insight is to realize that humanity must decide how negotiable the organizing principles of the linkages between society and the landscape are. Negotiable are the ways in which human society adapts to the constraints given by the natural system, and how people act in the landscape in their efforts to cope with the environmental pre-conditions while satisfying human needs and demands. These interactions more often than not happen in such an unwise fashion that the quantitative and qualitative sustainability of society itself may be undermined.
The provision of life-support systems require interferences with the landscape where the natural resources, like bio-mass, energy resources, minerals, water, land-space, are to be found. Physical interference in the land, like building, clearing and drainage, takes place, and chemical interferences are introduced: thus humanity creates its cultivated life-worlds on the earth.
What is clear is that life-support of the population is a very basic, pro-active imperative expected from the leaders of society. Human activities in the landscape are not only driven by demands for life-support, but also by population growth and growing aspirations within the economic-industrial sectors. National leaders have to secure and facilitate the availability of services that accommodate these needs, as well as giving due attention to hazard prevention.
This duty is the motivation for this White Paper, which provides policy perspectives and anticipates land use legislation to enable a structured process. Cabinet approved the White Paper. It was influenced in a very definite way by Chapter 10 of Agenda 21, which resulted from the UN Conference on Environment and Development held in 1992 in Rio de Janeiro. In relation to land resources Agenda 21 states:
"The broad objective is to facilitate allocation of land to the uses that provide the greatest sustainable benefits and to promote the transition to a sustainable and integrated management of land resources."
Conventional land-use planning has frequently failed to produce a substantial improvement in land management or to satisfy the priority objectives of land users. In recent years planning has come to be viewed as one step in land resources management, as a mechanism for decision support rather than a technical evaluation procedure. An improved approach should thus call for integrated planning for sustainable management of land resources.
This White Paper intends to show practical ways in which South Africa may move to this approach. The system should satisfy the following specific needs:
Integrated planning for sustainable management of land resources should thus ensure:
It is hoped that the present initiatives may lead to a more successful outcome, and especially to strengthen local institutions to be capable of addressing and solving the problems of South Africa related to human needs and land use. Ultimately we are all responsible in creating our worlds not to be forgetful of the earth and the essence of humanity's life on it.
It is no exaggeration to say that the economic, social and environmental future of our country depends on the wise use of our land resources. The Minister of Land Affairs, as the Minister responsible for land, proposes to introduce new legislation to parliament that provides a uniform, effective and efficient framework for spatial planning and land use management in both urban and rural contexts. This legislation will clear up the extraordinary legislative mess inherited from apartheid in this area of governance. The most dramatic effect of the White Paper is that it will rationalise the existing plethora of planning laws into one national system that will be applicable in each province, in order to achieve the national objective of wise land use. Significant progress towards this goal was made by the Development and Planning Commission, appointed by the Minister of Land Affairs, together with the Ministers for Housing and Constitutional Development (now Provincial & Local Government) in 1997. The report of the Commission was used as the basis for the Green Paper on Development and Planning published in 1999. This White Paper draws on the work of the Commission, the Green Paper as well as the extensive inputs received during a rigorous and wide ranging consultation process following the publication of the Green Paper. The White Paper also builds on the concept of the municipal integrated development plan (`IDP'), as provided in the Municipal Systems Act, 23 of 2000.
The essential elements of the new system proposed in the White Paper are:
Principles. The basis of the system will be principles and norms aimed at achieving sustainability, equality, efficiency, fairness and good governance in spatial planning and land use management. The decisions of planning authorities, whether related to the formulation of plans such as IDPs or the consideration of land development applications such as rezonings, must all be consistent with these principles and norms. A failure by an authority to effect this enables the Minister to intervene in the decision, either to require that it is reconsidered or in extreme cases to take the decision him or herself.
Land use regulators. The White Paper proposes a category of authorities able to take the different types of decision falling into the realm of spatial planning and land use management: land use regulators. The most prevalent land use regulators will be municipalities. Each province will have a provincial land use tribunal and appeal tribunal that will be land use regulators in specified situations. Nationally the Minister will be a land use regulator of last resort, only acting in cases where there has been neglect or flouting of the national principles and norms.
IDP-based local spatial planning. The Municipal Systems Act requires that part of each municipality's IDP must be a spatial development framework. The White Paper spells out the minimum elements that must be included in a spatial development framework. It also proposes that the spatial development framework operate as an indicative plan, whereas the detailed administration of land development and land use changes is dealt with by a land use management scheme, which will actually record the land use and development permissions accruing to a piece of land. The inclusion of the spatial development framework, with a direct legal link to the land use management scheme, is an essential step towards integrated and coordinated planning for sustainable and equitable growth and development.
A uniform set of procedures for land development approvals. Where a proposed development is not permissible in terms of the prevailing land use management scheme, then permission is required from the appropriate land use regulator. The White Paper proposes one set of such procedures for the whole country, thereby eliminating the current situation where different procedures apply in different provinces, and even within a province in different apartheid race zones. This will facilitate national capacity building within land use regulators as well as performance management of the system. It will also introduce welcome efficiency savings into the national land development industry. The White Paper also proposes the alignment of the procedures for land development approval with those presently required in terms of the Environment Conservation Act for environmental impact assessments (`EIAs').
National spatial planning frameworks. In order to achieve more integrated and coordinated spending of public funds it is proposed that the Minister, in consultation, with cabinet, is able to prescribe national spatial planning frameworks around particular programmes or regions. This will not be a national plan as such but will rather be a policy framework for sustainable and equitable spatial planning around national priorities.
Land is a national resource. It falls squarely within the national legislative competence. The responsibility for this legislative competence resides with the Minister of Land Affairs. This is evident in the Minister's responsibility for the administration of land, the transfer of land, the ownership of land and the cadastral boundaries of land. The national Department of Land Affairs thus exercises authority over the land reform programme, the Deeds Registry, the office of the Surveyor General, the National Spatial Information Framework and the administration of land held in trust by the Minister.
An area of the Minister's responsibility for land that has been somewhat neglected since 1994 has been that of planning for and regulating the use and development of land. This gap was acknowledged in 1997 with the appointment of the Development and Planning Commission by the Minister of Land Affairs, in conjunction with the Minister of Housing, and in consultation with the Minister for Constitutional Development.1 On the basis of that Commission's finding's the Minister promulgated a Green Paper on Planning and Development2 in mid-1999. Extensive consultation and comment followed the publication of the Green Paper. A series of workshops was held throughout the country, targeting officials in all three spheres of government as well as the planning profession. Additional workshops were convened by the Department of Land Affairs for interested groups on request. Over one hundred written submissions were made. This White Paper is the result of considerable work within the Ministry, taking into account both the comments submitted on the Green Paper as well as intervening new legislation, notably the Municipal Systems Act.3 It builds on the conceptual approach to land use and development reflected in the Development Facilitation Act (`DFA').4
A key piece of work produced by the Commission was a study of the planning laws in place in each province, including laws inherited from pre-1994 provinces and homelands as well as those designed purely for application in black urban areas. This revealed an extraordinarily complex and inefficient legal framework, with planning officials in all spheres of government having to deal with numerous different systems within the jurisdiction of each province, and indeed within most municipalities. The difficulty of dealing with this legal inheritance compounds the already difficult task of planning for sustainable, integrated and equitable land use and development in South Africa. The need to rationalise this situation, through overarching national legislation, is an important rationale for this White Paper process. The Minister of Land Affairs' lead role in spatial planning, land use management and land development will allow her to prescribe the content of planning requirements that other spheres of government, especially local government, will have to comply with. The Minister is thus charged with the responsibility to take all decisions concerning land use in the country. This authority is however best exercised at the local scale. Accordingly this White Paper proposes extensive delegation of that power, primarily to municipalities, but also to provincial tribunals in specified circumstances.
The process of policy development and the drafting and implementation of new laws that commenced after 1994 caused considerable confusion around the terminology used and the focus of different legal frameworks for planning.5 This confusion has been exacerbated by the range of meanings given in particular to `spatial planning'. One the one end of the spectrum the term is used to describe government's locational decisions - by all spheres - on where public investment should be made. On the other it is used as a catch-all phrase to describe local land-use planning and the administration of zoning and other regulatory mechanisms. In relation to the latter it has become a popular term to use in contrast to other (perhaps more accurate ones) such as `town and regional planning', `land-use planning' or even `physical planning'. This has been coupled with a sense that these terms smack of apartheid era approaches to planning. Consequently the term `development planning' has been favoured as representing a more integrated approach to planning. The way in which notions of `development planning' are related to the day to day planning for and regulation of land use and land development in both a practical and legal sense however remains unclear. This White Paper aims to clarify this area of critical importance both to effective local governance and the management of land throughout the country.
It is proposed that the term spatial planning be used sparingly, to describe a high level planning process that is inherently integrative and strategic, that takes into account a wide range of factors and concerns and addresses the uniquely spatial aspects of those concerns. It cannot continue to be used loosely as a term that means different things to different people in different contexts. Spatial planning is implemented and realized in a number of different ways. These include: capital expenditure programmes; the way in which different social and economic programmes are implemented; as well as the management and regulation of land-use change and land development.
No one department or sphere of government can effectively take responsibility for this high-level governance function. Each national department, provincial government, and municipality must take responsibility for spatial planning within their sectoral and or jurisdictional areas. Every delivery function of government has spatial implications. It is up to the appropriate sphere or department to take these into account when formulating policy, law and programmes.
The Department of Land Affairs' specific contribution towards the activity of spatial planning will be the regulation of land use planning and development. In South Africa, land is a highly contested resource. On one hand, land ownership is skewed in favour of a racial minority, while on the other there is need to strike a balance between ownership and benefits from the use of land. Equally important is to maximize the potential of the scarce but high quality agricultural land and to ensure that the correct land is set aside for tourism and other natural resources, of which the country is heavily dependent. Because all development initiatives ultimately need to take place on land, the location and use of that land is a crucial determinant of the extent to which the initiatives address the spatial concerns.
This White Paper follows closely on the Green Paper on Development and Planning. The intended outcome of the White paper is a new national law, the land use bill. The bill will replace inter alia the Physical Planning Acts and the Development Facilitation Act. The ultimate goal is a legislative and policy framework that enables government, and especially local government, to formulate policies, plans and strategies for land-use and land development that address, confront and resolve the spatial, economic, social and environmental problems of the country.
Since 1994 there have been very many laws and policies dealing with the area of planning. These have covered many sectors and all three spheres of government. The theme that has run through all of these initiatives is integration. It has been widely and correctly acknowledged that integration must happen both in the way that planning is done as well as reflected in the outcomes of the planning process. That is, there must be integration between the various planning processes and institutions of different spheres and sectors and there must be integration of the distorted and segregated spatial fabric inherited from colonialism and apartheid.
In view of the above this White Paper and the forthcoming land use bill seeks to further clarify and expand on concepts falling within the mandate of the Minister of Land Affairs, some of which are already contained in the Municipal Systems Act. It is hoped that this White Paper, the forthcoming land use bill and the Municipal Systems Act together will form a comprehensive framework for local authorities embarking on integrative development planning. It will also provide the framework necessary for the land development activities of all sectors and spheres of government and the private sector to be properly planned, taking into account the overarching development needs of society.
1.2 Historical Background
Since 1652 colonialism shaped our human settlements along racial and class lines, excluding large sections of the population from the economic, social and environmental benefits of vibrant, integrated, sustainable urban and rural development. These patterns sowed the seeds for the grand apartheid that emerged in the second half of the twentieth century. Grand apartheid was essentially a spatial, even geographic, partition attempt, with dire disintegrative spatial consequences.
Apartheid planning was integrally linked to blueprint - or `master' - planning as the dominant planning approach. This approach had as its focus the manipulation of the physical environment to implement the plan_- an inherently inflexible, static physical representation of a desired future - in this case one of `orderly', racially separate and unequal development. The approach was comprehensive in nature, striving to predetermine the use of all land parcels in order to achieve the desired end state of separate development. This desired end state became an inflexible representation of the future which necessitated complete and absolute control on the part of planning authorities.
The effects of this planning approach include displaced urbanisation and a settlement pattern that is grotesquely distorted, fragmented, unequal, incoherent and inefficient. This settlement pattern generates enormous movement across vast areas which is both time consuming and costly thereby entrenching a system of unequal access to economic and social resources. Features of development patterns today are:
The planning system created to address and support minority interests also led to the evolution of a highly complex, multiple and confusing legal environment for planning. The legal complexity is further aggravated by the fact that the major tools of management and control (e.g. zoning and title deed restrictions) derive their powers from different laws - a situation that further contributed to an already procedurally complex system. These diverse laws, ordinances etc., also left in their wake a myriad of plans all with a different legal status (e.g. masterplans, guideplans, structure plans). This led to a wide range of terms being used loosely and interchangeably e.g. land planning, land use planning, settlement planning and physical planning.
The main land-use planning and management problems currently experienced by the different spheres of government include:
Disparate land-use management systems in different former `race zones': Every municipality in the country is responsible for the administration of a range of different regulatory systems for managing land-use, an inheritance from apartheid policies. This means that different procedures have to be followed by applicants, different standards have to be met and different opportunities are available to members of the public affected by proposed developments. It also greatly increases the administrative burden on under-capacitated municipalities and contributes to the lengthy time periods it takes to get applications processed.
Disjuncture between inherited schemes and newly drawn up plans: While most municipalities have begun, and many have completed, the compilation of IDPs6 and LDOs7 these post-apartheid plans remain hamstrung by the schemes currently in place. These schemes often reflect land use patterns that are very different from those envisaged in the new plans. Because of the greater detail of the schemes, as well as the fact that they consist of concrete rights to use and develop land in particular ways, they remain relatively unaffected by the new plans. The new plans thus have had only a weak impact on inherited spatial patterns.
Lengthy approval times: Especially in the larger cities the backlogs of applications waiting to be considered by municipal authorities are substantial. This has negative economic impacts on the municipalities.
Too much control, not enough facilitation: The emphasis in local government has been on controlling land development as opposed to facilitating it. This has become starkly evident in the era of IDPs, where municipalities have anticipated often ambitious development projects in their plans but have not had the means to ensure that they actually are implemented. This has led to a sense of dissatisfaction with planning, linked to an unrealistic notion that simply because something is included in a plan it will necessarily happen. Increasingly however there is an awareness that one cannot get something to happen when the only tools at your disposal, in this case zoning schemes, are effectively instruments of control, designed to restrict land development rather than promote it.
Weak enforcement: Those controls that are in place - to prevent illegal, unsafe, environmentally unsound land development - are only rarely enforced. This is the result of two factors. Firstly, many of the controls that are unenforced are in fact inappropriate, particularly insofar as they affect the poor. Secondly, there is a general lack of law enforcement capacity in local government. These two factors combine to create a sense of impossibility: the problem is so big and the resources so small that the problem simply cannot be tackled.
Inappropriate historical rights: In many urban areas landowners hold use and development rights granted under inherited planning legislation, some dating as far back as the 1940s. In many cases these rights can be ignored - and realized - by the rights-holders at their leisure. In other cases however they represent a significant obstacle to the reconstruction and integration of towns and cities. Municipalities are afraid to plan in ways that might impact on these rights, out of a fear that they will be liable to pay compensation. This problem is aggravated by the sense that development rights, once granted, survive indefinitely, until such time as the landowner elects to realize them.
Overlap between planning permission requirements and environmental impact requirements: Most types of land development require a number of different permissions from different authorities. The two in which there is the most overlap are the rezoning permission and the consent in terms of the Environmental Impact Assessment requirements of the Environment Conservation Act. This overlap leads to a situation in which an applicant has to apply to two separate authorities for permission to use or develop land. In practice many of the requirements of the two processes are very similar and this can lead to an expensive duplication of efforts. Also, it can result in each authority giving a different decision, leading to institutional conflict and a bewildered public.
The only post-1994 planning law enacted by parliament is the Development Facilitation Act, the DFA. The DFA was promulgated as an interim measure to bridge the gap between the old apartheid era planning laws and a new planning system reflecting the needs and priorities of the democratic South Africa. The Act, however, did not wipe the slate clean with the result that the national and provincial laws relating to planning promulgated before 1994 are still in existence. The DFA thus operates parallel to the existing laws, until such time as they are replaced, as proposed by this White Paper. The key features of the DFA are: