2.  PRINCIPLES AND NORMS FOR LAND USE AND MANAGEMENT

2.1 Why land use principles and norms?

The principles and norms collectively form a vision for land use and planning in the country. They constitute a single point of reference, and an overarching coherent set of policy guides to direct and steer land development, planning and decision-making in all spheres of government including other public agencies involved in land use so that outcomes thereof are consistent with the national objectives. The principles and norms are to promote the normative based spatial planning, land use management and land development system first introduced by the DFA.

Under the DFA model the general principles and norms contained in that Act had to apply to all decisions taken in terms of a host of different laws. With the intention of this White Paper being to rationalise all these laws into one uniform legal system for the planning and management of land use and development the scope of the principles and norms becomes inevitably narrower.

The objective of the principles and norms is to influence directly the substantive outcomes of planning decisions, whether they relate to spatial development frameworks or decisions on land use change or development applications. The overall aim of the principles and norms is to achieve planning outcomes that:

• restructure spatially inefficient settlements;
• promote the sustainable use of the land resources in the country;
• channel resources to areas of greatest need and development potential, thereby redressing the inequitable historical treatment of marginalized areas;
• take into account the fiscal, institutional and administrative capacities of role players, the needs of communities and the environment;
• stimulate economic development opportunities in rural and urban areas; and
• support an equitable protection of rights to and in land.

In addition they promote:

• accountable spatial planning, land use management and land development decision-making by organs of state;
• cooperative governance and wider information sharing in plan-making and implementation; and
• maximum openness and transparency in decision making.

Both the principles and norms are focused on and correlated to the field of spatial planning, land use management and land development, but, as is the case with all principles and norms, need further actualisation in specific, concrete contexts. Thus, in the practical implementation of the principles spatial planning, land use management and land development will be guided by the principles and norms.

2.2 Wise land use: application of the principles and norms

The normative approach proposed in this White Paper and the forthcoming Bill, is presented in the form of principles and norms. The principles are conceived of as first principles in the sense of general or fundamental values of a democratic and open society, on which the norms are based or from which the norms are derived. The norms emanating from the principles are understood as principles of right action, as authoritative rules or standards asserting or denying that something has to be done or has value. Both the principles and norms are focused on and correlated to the field of spatial planning and land use, but, as is the case with all principles and norms, need further actualization in specific, concrete contexts.

The purpose of a normative approach is to ensure wise land use. Wise land use is inspired by humane considerations regarding the responsibility society and the state has to preserve the earth's natural assets for present and future generations in a sustainable and economic way. Wise land use is premised on the consideration that by rational planning of all uses of land in an integrated manner, it is possible to link social and economic development with environmental protection and enhancement, making the most efficient trade-offs, and minimizing conflicts. Such an integrated approach is based on relating sectoral and different spheres of government's planning and management activities to the capabilities and limitations of landscapes to support various land uses.

The principles and norms do not prescribe black and white, yes-or-no outcomes, but serve to ensure that decisions are made with reference to a uniform and coherent set of desired policy outcomes. It is important, however, to emphasize that the interpretation and application of the principles and norms is context specific as conditions upon which principles and norms have to be applied are not uniform throughout the country.

The constitution requires that whenever a decision is made by any sphere of government it must be based on reasons given by the decision making authority. It is here that the principles and norms become critically important. Decisions concerning land use and development will have to be explicitly related to the extent to which they meet the objectives set out in the principles and norms. Where there might be a potential conflict between more than one principle it is up to the decision maker to decide which one to favour. That decision however has to be one that is clearly argued and reasoned, identifying why it is that the particular context requires the favouring of one principle over the other. In the case of the preparation of a spatial development framework it will be compulsory to include a section explaining how each of the principles and norms is accommodated in the plan. This explanation will also have to deal with any possible conflicts between principles and norms, in the local context, and establish which of the principles and norms is favoured by the municipality.

In practice the principles and norms will:

• apply to all spheres of government, state organs and other agencies involved in spatial planning, land use management and land development;
• guide the preparation of IDPs, and especially the Spatial Development Framework component of the IDPs;
• guide any body that has decision-making powers on spatial planning, land use management and land development matters when exercising its discretion or taking such decisions; and
• inform any land development application and decisions taken upon such application.

The Minister of Land Affairs will be empowered in the new law to issue directives on the implementation and interpretation of the principles from time to time. These will allow the Minister to guide the way in which the law is used in practice and to take into account the demands of both the public and private sectors.

2.3 The Principles and norms

2.3.1 The principle of sustainability

The principle of sustainability requires the sustainable management and use of the resources making up the natural and built environment.

Land use and development decisions must promote a harmonious relationship between the built and the natural environment while ensuring that land development is sustainable over in longer term period. The principle demands a holistic approach to land development in order to minimise the long-term negative impacts of current land use or development decisions. The long-term adequacy or availability of physical, social and economic resources to support or carry development should be thoroughly investigated. The life cycle costs of land development and its likely side effects on the environment, community, and the economy need to be understood and taken into account to sustain its benefits, while minimising or mitigating any likely negative impacts.

In the past the planning and management of land use has been characterised by extreme inequality. Not only are principles and norms required to ensure equity in the way that decisions are taken in the future but also that they address the inequitable legacy inherited from decades of planning in the interests of a racial minority.

The spatial planning, land use management and land development norms based on this principle are:

• Land may only be used or developed in accordance with law;
• The primary interest in making decisions affecting land development and land use is that of national, provincial or local interest as recorded in approved policy;
• Land development and planning processes must integrate disaster prevention, management or mitigation measures;
• Land use planning and development should protect existing natural, environmental and cultural resources;
• Land which is currently in agricultural use shall only be reallocated to other uses where real need exists and prime agricultural land should remain in production.

2.3.2 The principle of equality

The principle of equality requires that everyone affected by spatial planning, land use management and land development actions or decisions must enjoy equal protection and benefits, and no unfair discrimination should be allowed.

In the past the planning and management of land use has been characterised by extreme inequality. Not only are principles required to ensure equity in the way that decisions are taken in the future but also that they address the inequitable legacy inherited from decades of planning in the interests of a racial minority.

The spatial planning, land use management and land development norms based on this principle are:

• Public involvement in land use planning and development processes must be inclusive of all persons and groups with an interest in the matter being decided;
• Land use regulators and planning authorities must ensure that benefits and opportunities flowing from land development are received by previously disadvantaged communities and areas;
• The appropriateness of land use must be determined on the basis of its impact on society as a whole rather than only the applicant or immediate neighbours.

2.3.3 The principle of efficiency

The principle of efficiency requires that the desired result of land use must be produced with the minimum expenditure of resources.

This principle aims to achieve efficiency in institutional arrangements and operations, adopted procedures, the settlement form or pattern, and the utilization of man-made or natural resources during land planning and development.

The spatial planning, land use management and land development norms based on this principle are:

• Land use planning and development should promote the development of compact human settlements, combating low intensity urban sprawl;
• The areas in which people live and work should be close to each other; and
• Plans of contiguous municipalities and regions should relate positively to each other.

2.3.4 The principle of integration

The principle of integration requires that the separate and diverse elements involved in development planning and land use should be combined and coordinated into a more complete or harmonious whole.

The principle of integration reflects the need to integrate systems, policies and approaches in land use planning and development. This principle finds particular expression in two areas. Firstly it requires that the planning process is integrated, taking into account the often disparate sectoral concerns, policies and laws and their requirements, and reaching conclusions that are efficient and sustainable from a management and governance point of view. Secondly it requires an integrated `on the ground' outcome, one that breaks down not only the racial and socio-economic segregation that characterise our country but which also look at spatial integration of different land uses, places of living with places of working and shopping and relaxing.

The spatial planning, land use management and land development norms based on this principle are:

• Land use planning and development decisions should take account of and relate to the sectoral policies of other spheres and departments of government.
• Land use and development should promote efficient, functional and integrated settlements;
• Land use and development should be determined by the availability of appropriate services and infrastructure, including transportation infrastructure;
• Land use and development should promote racial integration;
• Land use and development should promote mixed use development.

2.3.5 The principle of fair and good governance

The principle of fair and good governance requires that spatial planning, land use management and land development must be democratic, legitimate and participatory.

Land use planning is a centrally important government function, directly affecting the lives of all people. It is therefore particularly important that it is characterised by fairness and transparency and that people are afforded a meaningful right to participate in decisions. When public authorities formulate new plans, they must put in place processes that actively involve citizens, interest groups, stakeholders and others. Also, where land development projects are initiated by the private and non-governmental sectors, there must be procedures that ensure that interested parties have an opportunity to express their views or to object.

In the interests of good governance it is essential that there be effective coordination between the different sectors and spheres involved in land use and development. The greater the coordination, cooperation and transparency of the planning process within government the greater will be the prospects of members of the public being able to engage with the decision making in a constructive manner.

The spatial planning, land use management and land development norms based on this principle are:

• Affected parties have a right to access information pertinent to land use and development plans that are being considered by land use regulators;
• Capacities of affected communities should be enhanced to enable them to comprehend and participate meaningfully in development and planning processes affecting them;
• Decisions must be made in the public domain, with written reasons available to any interested party on request and no planning decisions taken behind closed doors;
• The names and contact details of officials with whom the public should communicate in relation to spatial planning, land use management and land development matters must be publicised;
• Land use and development decisions must be taken within statutorily specified time frames; and
  Accessible participatory structures should be created to allow interested and affected parties to express their concerns or support for any land use or land development decision at sufficiently early stage in the decision-making process.

2.4 Operationalising the Principles

The difficulties of operationalising the DFA principles have been well documented in the Green Paper. A key limitation of the DFA principles was that they attempted to achieve important outcomes through an indirect means. That is, they attempted to influence the way in which existing laws were interpreted by requiring the application of principles. The idea was that the principles alone will have the necessary effect, that they would be `self-executing'.

This may have been too idealistic. It is clear that it must be incumbent on authorities concerned with spatial planning and land-use management to apply the principles and norms effectively. Structures, institutions and processes must be designed to ensure that the principles and norms are actualized. The best way to do this, taking into account the specific South African situation, is to establish land use regulators within the purview of municipal, provincial and national government to apply the principles in specific planning and land-use situations.

A number of approaches to address the above issues should be implemented to ensure success of the new planning system. Chapters 3 and 4 of this White Paper discuss these approaches.

Capacity building

A key function of the national Department of Land Affairs, in cooperation with the provincial departments responsible for planning will be the building of planning capacity in all three spheres. This will require dedicated capacity in both national and provincial government, as well as increased cooperation between government and the planning education institutions. It is foreseen that the duty to build capacity in the municipal sphere, will especially be the duty of provincial governments, in the light of section 154(1) of the Constitution, 1996. Where capacity does not exist in a municipality, provincial government should be able to enter into an agreement with the municipality to set up a joint spatial planning land use management system. Together with the SA Council for Town and Regional Planners the national Department of Land Affairs will ensure that the current curricula of all planning institutions include modules on the new approaches to decision making needed by a normative planning system. The proposals in the Planning Professions Bill enabling the development of a continuing professional development programme for the planning profession will be very helpful in this regard.

What should receive special attention in the development of the new system, is that equitable employment and affirmative educational practices should be promoted dynamically, because empowerment of previously disadvantaged groups in the relevant professions is a pre-condition of successfully addressing the unequal legacy of settlement patterns and land-use.

Monitoring and Review

A critical role of the Minister of Land Affairs will be the monitoring and review of the implementation of the principles and norms. The purpose and form of a monitoring system should change over time as the system matures or as the level of understanding and appreciation of the system develops. The new system should thus start off with a primarily educative and facilitative thrust. This can evolve over time into one that is firmer in nature, should the need arise. In order to assist the Minister with this function the DLA must provide the Minister with a two-yearly report on the implementation of the principles and norms in all three spheres of government. To assist the DLA it is proposed that each land use regulator furnish the DLA with a two-yearly synopsis of its decisions and the major factors that have influenced the outcome of those decisions. The development of an effective database will be necessary for this system to succeed. It is proposed that the Minister will be empowered by the new legislation to intervene in the determination of land development and land use change applications by land use regulators, where she is of the opinion that the principles and norms are being flouted.

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3. LOCAL SPATIAL PLANNING, LAND USE MANAGEMENT AND LAND DEVELOPMENT

3.1 The role and purpose of local spatial planning, land use management and land development

The new spatial planning, land use management and land development system is based on two important points of departure. Firstly, local government forms the most important sphere for decision making. Secondly, the IDP required by the Municipal Systems Act forms the key planning instrument. The two key elements of the spatial planning, land use management and land development function of local government are traditionally known as `forward planning' and `development control'. Using the terminology created in the Municipal Systems Act however this White Paper will use instead the terms integrated development planning, or IDP, and land use management respectively, for these two concepts.

The key to successful local spatial planning, land use management and land development is the establishment of an effective link between the forward planning and development control functions. Traditionally the development control function is seen as the means for implementing forward planning. In practice though, the two functions have generally been exercised quite separately from each other. Historically local government performed development control functions, in the form of building regulations, well before it started doing any form of institutionalised forward planning. Planning requirements were generally superimposed upon existing legal frameworks for development control, having only a negligible effect on that body of rules and regulations. This meant that planning tended to have very limited impact on actual patterns of land development. Significant resources were expended on the making of elaborate plans which had little prospect of ever being implemented, especially where their planned outcomes differed from what was permitted by the existing development control rules, such as zoning or town planning schemes. The danger of this situation repeating itself in the case of the new IDPs is acute.

A further danger is that of repeating the notion that development control is the means of implementing forward planning. The essence of development control is the power to stop particular types of land development. To implement a plan it is clearly necessary also to have mechanisms in place to encourage the desired types of land development. This makes the Municipal Systems Act terminology, land use management, that much more appropriate, as it suggests a function that is broader than merely controlling development. For the purposes of this White Paper the term land use management includes the following activities:

• The regulation of land-use changes such as, for example, the rezoning of a property from residential to commercial use;
• The regulation of `green fields' land development, i.e. the development of previously undeveloped land;
• The regulation of the subdivision and consolidation of land parcels;
• The regulation of the regularization and upgrading process of informal settlements, neglected city centres and other areas requiring such processes; and
• The facilitation of land development through the more active participation of the municipality in the land development process, especially through public-private partnerships.

The last of these five activities is different from the rest in that it requires of local government a more proactive approach to land development, one that moves well beyond that simply of a regulator or market forces. The first four however correspond more closely with the traditional land development regulation role.

Land-use management has two main underlying rationales. The first is the widely felt resistance to the idea of uncontrolled land development and the second is the commonly expressed wish by particular sectors in society to promote various types of desirable land development.

The resistance to uncontrolled development is motivated by a number of concerns, the precise mix of which is determined by the particular social, economic and political contexts of different times and places. Essentially however these concerns include the following:

• Environmental concerns: uncontrolled development of land can have adverse effects on natural habitats, cultural landscapes and air and water quality.
   
• Health and safety concerns: uncontrolled development can lead to overcrowding and unsafe building construction. Certain land uses can also be detrimental to the health and safety of neighbours.
   
• Social control: the control of land uses and building types has long been a means of exerting social control, particularly through the exclusion of certain types of person, household or economic activity from certain areas through the application of particular development controls limiting, for instance, plot sizes, plot coverage and home industries.
   
• Efficiency of infrastructure provision and traffic management: increasingly it has become clear that the where the granting of development permissions is not coupled with the provision of adequate infrastructure and traffic management the consequences can be severe. Similarly, where infrastructure is provided, generally at high financial cost, without taking into account likely and relevant land-use and settlement patterns the opportunity costs to society are very high.
   
• Determination of property values for purposes of rating: the market value of land is the basis on which property valuation is determined and the extent and nature of the development permitted on the land is a key factor in that determination.
   
• Aesthetic concerns: the control of land development enables government to prescribe certain design parameters for buildings.

The wish to promote desirable development is also driven by a number of different concerns:

• The land development needs of the market seldom match precisely the social and political needs of government: government may well want to promote a type of land development in an area that the market neglects. It then has to take certain steps to facilitate that development or provide incentives. The history of land ownership in South Africa also inevitably skews the land market in favour of white people, thus creating a situation where the needs of the market reflect only those of an already privileged minority.
   
• Investment promotion: changing the applicable land-use management instruments is often seen as a prerequisite for attracting certain types of investment to certain areas. This can take the form of both relaxing controls in those areas and increasing controls in other areas which might be more favoured by the market. These strategies are likely to be linked to local economic development initiatives.

Currently, the laws regulating land development management are diverse and disparate. In each of the provinces that have not passed their own development and planning laws, old ordinances that used to apply in white, `coloured' and Indian areas prevail, alongside apartheid regulations that applied in African 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 and the Physical Planning Act. The ordinances set out the legal basis for zoning and town planning schemes and deal with both the compilation of schemes, the amendment of schemes and procedures for approving 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 most cases have retained the DFA as an alternative route.

An important conceptual shift is that in the new system the primary role of government - and especially local government - in relation to spatial planning, land use management and land development is no longer merely the control of development (although that remains an essential function). The facilitation of appropriate development is an important new responsibility. Two aspects require particular attention: firstly, there is a need to allow for public-private partnerships that are specifically equipped to facilitate land development; and secondly, there is a need to strengthen municipalities' power to negotiate development with the private sector, rather than simply applying a yes-or-no approach to land development.

3.2 Proposed approach to spatial planning, land use management and land development

3.2.1 The nature of the new mechanisms

Every municipality should have an indicative plan showing desired patterns of land use, directions of growth, urban edges, special development areas and conservation-worthy areas as well as a scheme recording the land use and development rights and restrictions applicable to each erf in the municipality. The plan should be flexible and able to change to reflect changing priorities of the municipality, whereas the scheme should be tighter and only amended where required for a particular development and where certain other requirements are met, with the most important of these requirements being conformity with the plan. The plan should thus influence the contents of the scheme as and when required, rather than act as the direct source of rights and controls itself.

There must be a strong link between both the plan and the scheme and the municipality's budget and capital expenditure framework. On the one hand the budget will record the municipality's income and expenditure and on the other the capital expenditure framework will indicate planned spending on infrastructure and services. These two elements are important for land use planning for two reasons. Firstly, the rights recorded in the municipality's scheme determine the value of the land and that value in turn forms the basis of the rates that the municipality can charge, which form the major part of its income stream. Secondly, any new land development or land use change has to be adequately serviced by infrastructure and the capital expenditure framework will indicate where the municipality is able to spend funds on the upgrading or extension of that infrastructure.

Taking into account all of the above the following is suggested as the basis on which to draft legislative provisions making the link. The underlying principle is to build on the terminology in section 26 of the Municipal Systems Act. We will use the term spatial development framework for the indicative plan and land use management system (LUMS) for the scheme. The former has the legal effect of guiding and informing land development and management and the latter has a binding effect on land development and management.

Every municipality has to compile a spatial development framework for the area of the municipality. The spatial development framework has four components:

• policy for land use and development;
• guidelines for land use management;
• a capital expenditure framework showing where the municipality intends spending its capital budget; and
• a strategic environmental assessment.

The spatial development framework guides and informs all decisions of the municipality relating to the use, development and planning of land. The timing of the process of compiling the spatial development framework must correspond with that of the IDP. Each of the three components of the spatial development framework must guide and inform the following:

• directions of growth;
• major movement routes;
• special development areas for targeted management to redress past imbalances;
• conservation of both the built and natural environment;
• areas in which particular types of land use should be encouraged and others discouraged; and
• areas in which the intensity of land development could be either increased or reduced.

The four components will also each have to expressly reflect the way in which they reflect and operationalise the principles and norms for land use and land development set out in the new legislation (replacing the DFA chapter one principles).

The primary purpose of the spatial development framework is to represent the spatial development goals of a local authority that result from an integrated consideration and sifting of the spatial implications of different sectoral issues. The spatial development framework should not attempt to be comprehensive. It should take the form of a broad framework that identifies the minimum public actions necessary to achieve the direction of the plan. It must have sufficient clarity to guide decision-makers in respect of development applications. It should describe the existing and desired future spatial patterns that provide for integrated, efficient and sustainable settlements. In this regard, the spatial development framework should:

• only be a strategic, indicative and flexible forward planning tool to guide planning and decisions on land development.
• develop an argument or approach to the development of the area of jurisdiction which is clear enough to allow decision-makers to deal with the unexpected (for example, applications from the private sector);
• develop a spatial logic which guides private sector investment. This logic primarily relates to establishing a clear hierarchy of accessibility;
• ensure the social, economic and environmental sustainability of the area;
• establish priorities in terms of public sector development and investment; and
• identify spatial priorities and places where public-private partnerships are a possibility.

In a rural context it will be necessary also to deal specifically with natural resource management issues, land rights and tenure arrangements, land capability, subdivision and consolidation of farms and the protection of prime agricultural land.

Every municipality must have land use management system and that system must include at least a scheme recording the rights and restrictions applicable to erven within the municipal area. Any land development that exceeds these rights and restrictions will require the consent of the relevant land use regulator. The rights and restrictions must relate at least to land use, floor-area ratio and building height. Every scheme shall consist of a map and a set of regulations. The scheme is a key part of a municipality's regulatory powers and must therefore be formalised as a bye-law of the municipality. The rights to a particular use and development of land should not be granted in perpetuity. There must be clear provisions to the effect that once use and development rights have been granted they must be exercised within a specified time frame. In addition rights already held by landowners but not yet exercised must lapse within a specified time period unless they are realized in the interim.

The scheme is an instrument that can be either a very complex and detailed document accommodating a wide range of different land uses and the relatively strong institutional capacity of a metropolitan municipality or a much simpler document suited to the needs and capacity of smaller local or district municipalities in primarily rural areas. The Department of Land Affairs will provide a basic model scheme, for use in default situations, where a municipality does not have a scheme of its own in place.

The way in which the spatial development framework and scheme relate to individual land development or land use change applications will depend on whether or not the proposed change is consistent with the spatial development framework and, where the spatial development framework is silent, on the applicable national principles and norms. Every application will obviously be for a development that is in some way inconsistent with the scheme, as otherwise there would be no point in making an application: the owner is entitled to exercise the rights already recorded in the scheme. An applicant is only required to apply to a land use regulator where he or she wishes to develop the land or change its use in a way which is in conflict with the relevant scheme.

Where an application is made for additional land use and development rights the municipality or tribunal shall approve that application, subject to reasonable conditions, where the application is consistent with the express provisions of the spatial development framework. Where the municipality or tribunal however approves an application that is not consistent with the spatial development framework it may charge the applicant a surcharge over and above the municipality's standard bulk services connection fee, which can be up to 5% of the capital cost of the development.

Where a landowner holds a use and development right in terms of a scheme he or she must exercise that right within a five-year period after it is granted. After five years the right lapses and the landowner is not entitled to any compensation for the loss of that right. Where a person holds a right in terms of an existing scheme at the time that this legislation comes into effect and has not exercised the right within a five year period the right similarly lapses. Application may however be made to the appropriate land use regulator for permission to extend the period of lapsing by no more than three years, provided that the applicant can provide sound reasons, motivated in terms of the principles and norms to be confirmed in the new law.

Where land is used or developed contrary to the applicable scheme the land owner must within one year of the scheme coming into effect obtain the necessary permissions from the municipality. In the event that he or she is not able to obtain that permission the use or development of the land will constitute an offence. The municipality will then be able, subject to giving the landowner a month's written notice, to demolish the illegal structure or to impose a fine of R50 per square metre per week of the illegal use or structure.

The State is to be bound by this law. This will take away the exemption that many organs of state have enjoyed in the past. The provision of one land use planning system across the entire country however, makes compliance with this requirement much less onerous than it was in the past.

This law, despite the repeal of their original laws must save schemes drawn up in terms of current planning laws, such as the provincial ordinances or the Black Communities Development Act. These saved schemes will only remain in place until such time as the new land use management systems created under the new legislation and the Municipal Systems Act take effect. The new systems may create entirely new schemes, amend the existing schemes or even retain them for the future.

There is effectively a presumption in favour of planned development as opposed to a presumption against development. This has the twofold effect firstly of emphasising the importance of planning, and secondly of not necessitating elaborate control systems in areas in which there is little development pressure.

Every decision of a land use regulator must be derived from and based on the general principles and norms for land development. The normative basis for planning decisions provided by principles and norms ensures coherence and uniformity in the planning system across the country.

3.2.2 Procedures for making application for land use change and land development permission

The current plethora of different procedures, in terms of different laws, will be replaced in the new legislation with a single procedure, providing for thorough, yet speedy, consideration of applications as well as meaningful involvement of the public in those decisions. The relevant land use regulator in each case will be responsible for reaching the decision but the procedure throughout the country will now be uniform. The respective roles of local, provincial and national government as land use regulators are spelt out in chapter 4.

A critical problem facing many applicants and approvals bodies is the overlap between the procedures for land use change or land development approval, in terms of planning legislation, and those required in terms of the environmental impact assessment (EIA) provisions of the Environment Conservation Act. As both the Department of Environment Affairs and Tourism and the DLA are simultaneously rationalising and reforming the legislative frameworks for environmental management and spatial planning, land use management and land development respectively there is an extraordinary opportunity to ensure that these two procedures are aligned. This will have the following important effects:

• The public will better served both as applicants and objectors. This will increase the quality and extent of public involvement in decision-making and will improve the quality of applications.
• Cooperative governance will be increased, leading to a more efficient use of scarce human resources in the public sector and reducing negative `turf' squabbles.
• The quality of environmental and planning decisions will improve. It will be more difficult for an authority to justify their decision solely on `environmental' or `land use' grounds. Instead they will have to adopt a more integrated approach.

Simply collapsing the procedures for environmental impact assessments (EIAs) and land use change or land development into one, would be difficult. Nevertheless it is possible that in situations where both an EIA and a land use change or land development permission are required the procedures to be followed by the applicant, and to be engaged with by the authorities and the public, are as closely aligned as possible. The larger, better-resourced municipalities established in 2000 provide an important opportunity to allocate the integrated environmental and land use decision-making function to local government. Locating the function within one sphere of government, and one institution, would enable that body to determine practical approaches to the problem that match its own capacity and resources, within the framework set by national government. A number of important steps have to be taken though to ensure that local government is in fact able to fulfil this responsibility effectively. These are:

• municipalities must be authorized to decide EIA applications. Currently only provincial governments have this power. This ought to be done as part of a programme of environmental capacity building in local government.
   
• Municipalities must incorporate a strategic environmental assessment into their spatial development frameworks, forming part of their IDPs. If environmental concerns are expressly incorporated into the IDP process, and are then reflected in the controls and mechanisms forming part of the land use management system that would immediately resolve many environmental and planning conflicts.
   
• Both the new environmental and new land use legislation must require that a municipality establishes one committee to deal with EIAs and land use decisions, thus preventing the situation at a local level where different sets of councillors are involved in decision making for the two types of process.
   
• Both environmental and land use matters that have impacts beyond municipal boundaries should be heard by the same tribunal in each province, that is the land use tribunals to be established under the new spatial planning, land use management and land development legislation. Similarly, appeals on land use matters as well as environmental impact assessments should be considered by the same appeal tribunal in each province.

The outcome must be that in those situations where both a land use or development approval and an EIA are required the applicant should only have to follow one procedure, only one body should make the final decision and, where the application leads to an appeal, there should be a single appeals body. This arrangement should not negate the fundamental responsibilities of each of the two national departments, DEA&T and DLA, to ensure the wise use and management of the resources under their respective authority. It will however demand an approach from both Departments that is more `hands off' in relation to the actual taking of the decision, but which concentrates more on their role of providing clear guidelines and a rigorous monitoring and evaluation system. The intervention powers of both Departments would be retained, in the event of their concerns, as reflected in the principles and norms contained both in the new land use legislation and the National Environmental Management Act, are ignored or inappropriately applied.

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