The output from the White Paper process will be a national law that replaces the current plethora of provincial and homelands planning laws, most of which were inherited from the apartheid government. There will no longer be a need for provincial legislation dealing with spatial planning, land use management and land development. All three spheres have key roles to play in the envisaged system. Cooperative governance, as established in the Constitution, forms the cornerstone on which this new system is built. The new system for spatial planning, land use management and land development will form a solid foundation on which to establish integrated intergovernmental and interdepartmental development planning, programmes and projects.
A key change introduced by this White Paper is the notion of a `land use regulator', a body which can be an organ of any one of the three spheres of government, depending on the particular circumstances of the land use application to be decided.
This chapter spells out the respective roles of each sphere of government in spatial planning, land use management and land development.
4.1 The shape of the planning system
Efficient and effective planning requires integrated and coordinated effort from the different spheres of government. This also suggests that planning should be a consensus building exercise about what should be done, and how. This necessitates a clear definition of the roles and responsibilities of the different spheres of government, so as to avoid duplication, conflict and wastage of resources.
The allocation of the roles of the different spheres of government should be informed by the Constitution. The point of departure here is land, which like water, is a function of exclusive national legislative competence. The Minister of Land Affairs is responsible, not just for land reform and administration, but also for the way that land is used and managed as a national resource.
The planning system being promoted by this White Paper is a policy led, normative planning system. This means that the planning system rotates on key principles and norms and policies that will be prescribed by the Minister of Land Affairs. The forms of planning frameworks (forward plans), which local government will develop, should give further content to these principles and norms and policies. These planning frameworks should also be strategic in their nature and not seek to be comprehensive. These principles and norms will also serve to guide the exercise of discretion and the reaching of decisions which the Minister exercise herself or may delegate to other spheres of government. In determining the roles of the different spheres, there are two principles, which will be the core of the planning system: incrementalism and minimalism.
The principle of incrementalism will also inform the evolution of planning outputs and instruments. Many municipalities, in particular, have never practiced proper planning functions and have never had any proper planning instruments. These municipalities cannot be expected to develop perfect planning systems over night, but may have to start with very rudimentary systems which can develop into more elaborate systems and instruments over time.
4.2 Roles of the different spheres
4.2.1 Roles of the national government
National government has the overall responsibility for the spatial planning, land use management and land development function. Practically, however it is essential that decision-making powers are exercised, wherever possible, by local government and, in exceptional cases, by provincial authorities. National government's role is thus primarily that of establishing one, coherent, effective framework, and then only intervening in extraordinary situations.
Enabling Legislation
The Minister of Land Affairs' main role is the rationalisation of the fragmented system of land use related laws. This will be done through the promulgation of an enabling law on spatial planning, land use management and land development, the proposed Land Use Act. This law will have to repeal all the inappropriate and outdated planning laws, e.g., the Physical Planning Act. It will replace the DFA, which was interim in nature and worked concurrently with the older planning laws. The new law will also prevail over provincially applicable planning laws, in order to reationalise and consolidate the planning system. The new law will lay down national policy, norms and standards as well as frameworks on land use, and therefore fall within the ambit of section 146 of the Constitution.
Land use principles and norms and policy
The general principles and norms9 set out in chapter 2 are broad, so that they can be applied in a wide range of development contexts. The DLA thus has to ensure that other spheres of government, as well as the non-governmental and private sectors understand and apply these principles and norms. The DLA will undertake campaigns to promote and popularise the principles and norms. Manuals and other communication material will be produced and disseminated to fulfil this responsibility.
The new law will allow the Minister of Land Affairs to prescribe land use policy statements from time to time. Planning responds to changing circumstances, and seeks to take advantage of new opportunities, and minimise the effect of new threats. It is therefore important that a degree of flexibility should be built into the planning system, to allow the system to respond quickly to changing circumstances. These policy statements may be national in scope or they may be limited to specific areas, or areas with specific developmental or growth potential, or they may be time-bound. This power will be exercised in the spirit of cooperative governance, with the Minister acting as the instrument of national government.
Monitoring and Intervention
The Minister of Land Affairs is ultimately responsible for the monitoring of the planning policy and planning system. The focus of the Minister's monitoring function will be on the application of the principles and norms set out in chapter 2, but will also have to take into account the overarching need for land use decisions to reflect national policy, as promulgated by the Minister from time to time. The Department of Land Affairs will develop a performance monitoring system, compatible with the system to be established for local government by the Department of Provincial and Local Government. The Department of Land Affairs will develop key performance indicators for spatial planning, land use management and land development.
The monitoring system provides the means for the Minister to intervene rapidly where principles and norms, and national land use policy are deliberately or inadvertently ignored, flouted or inappropriately applied. This intervention role of the Minister will be exercised using Departmental capacity. In this regard, the Minister may overrule decisions made by other land use regulators. The only basis for this intervention will be failure to properly reflect the national interest in sustainable and equitable, integrative, efficient and fair spatial planning, land use management and land development, as set out in the principles and norms and published policy. It is not the intention that the Minister operate as a form of Appeal Mechanism. Rather it envisaged that she holds a reserve power to intervene, to be used in exceptional cases of disregard or confusion in relation to the principles and norms and national policy. It will be advisable - and possible - that the Minister delegates some of these monitoring powers to the appropriate provincial MEC's, but she retains the reserve intervention role. The Minister is not a land use regulator of the first instance. Rather she has the power to decide early on in the process of application to another land use regulator whether or not her intervention is warranted. She need not wait until that land use regulator has concluded its decision-making process.
Capacity building
The Department of Land Affairs also has a critical role to play in building the country's capacity to implement the planning system. The planning capacity in the country is currently not geared towards a normative planning system. What has to be created is a common tradition, accepted practice and discourse, which will establish a culture of wise land use in South Africa.
The focus of capacity building efforts should be decision-makers in land use regulators, and specifically municipalities. To assist them however in the exercise of their responsibilities the scope of capacity building efforts will have to extend to non-governmental participants in the land use arena such as planning consultants and NGOs. The planning community in South Africa is neither particularly large, nor particularly well organised. The Department of Land Affairs, as the Department responsible for regulating the planning profession, will work closely with members of the profession to build its capacity to support a normative planning system. The Department will have to work closely with the SA Council for Town and Regional Planners, the body responsible for regulating professional standards, to ensure that planning curricula at tertiary institutions reflect the new directions and approaches to planning. Cooperation will also be necessary with bodies such as the SA Planning Insititution, the Association of Consulting Town and Regional Planners and the Association of Municipal Planners - all of which are voluntary associations representing different parts of the profession - to deepen capacity in the profession.
National spatial planning
There is currently debate on what is the exact national spatial planning function. National government's activities fundamentally affect the spatial patterns of the country, primarily through programmes of capital expenditure. It has become increasingly clear that these programmes need to be better coordinated. The Minister of Land Affairs is in an advantageous position to see to this coordination. To do it justice however will require the allocation of significantly more resources to the Department of Land Affairs.
The true value of a national spatial planning framework will be its ability to obtain `buy-in' from other National Departments. While it is doubtful that one department alone can effectively achieve this it is certainly a goal to which this White Paper wishes to contribute. The new law accordingly proposes that the Minister of Land Affairs be empowered, at the discretion of the President, to carry out this function. This responsibility will be fulfilled through the development of national spatial frameworks formulated in response to specific needs and will give effect to national plans, strategies, policies and laws. The purpose of these frameworks is to promote intergovernmental integration through ensuring a coordinated approach to land development. It is not the purpose of the frameworks to create a hierarchy of spatial plans across the country but rather to add the element of spatial coordination to national-scale initiatives.
4.2.2 Roles of provincial government
Capacity building and joint planning approaches
With the concentration of spatial planning, land use management and land development decision-making powers in the local sphere the provinces' support and guidance to municipalities becomes centrally important. This will take the form not merely of capacity building but extends also to the implementation of joint planning approaches to high-impact and strategically important land development projects. The structured provision of interdepartmental teams, the secondment of officials and the ongoing joint capacity building programmes will be the responsibility of the provinces.
Land use tribunals and appeal tribunals
Another critical responsibility of provincial government will be the appointment and management of land use tribunals and appeal tribunals. The system of tribunals was first introduced in the South African planning system by the DFA. The positive experienced gained with the system of tribunals, as well as their effectiveness where they have been used, justifies continuing with this system. The national law on spatial planning, land use management and land development will establish the land use tribunals as land use regulators in each province. Each province will decide on the number of members for its tribunal. The Premier will be responsible for the appointment of the tribunals. The tribunals will comprise of technical experts on planning and development as well as related fields, which will allow them to take holistic decisions on land development applications.
Unlike the situation under the DFA where any applicant can elect whether to make an application to the relevant municipality, or to a provincial development tribunal, under the new system only certain types of applications should be decided by the new land use tribunals. They are:
· applications that have been referred to the tribunal by a municipality;
· applications where the municipality has failed to reach a decision timeously; and
· applications with an impact that extends beyond a municipality's boundaries.National legislation on spatial planning, land use management and land development will also establish an appeal tribunal for each Province. The Premier of each province shall appoint the appeal tribunal. The appeal tribunal shall hear appeals from land development decisions taken by municipalities and land use tribunals.
4.2.3 Roles of local government
Local government shall play the most direct role in spatial planning, land use management and land development. This sphere of government will be responsible for formulating the planning frameworks on which all the decisions on land development should be based. Municipalities will be responsible for the formulation and approval of their spatial development frameworks and for the making of decisions relating to land development and land use change, except where those decisions have impacts that extend beyond the particular municipality's boundaries or where the impacts have national importance.10 Every municipality will be required to designate a committee of councillors with a direct mandate to take decisions relating to land use and land development.11
Spatial development framework
The preparation and approval of spatial development frameworks, as an integral part of each municipality's IDP is the most critical planning responsibility within all three spheres of government. Once the spatial development framework is approved it will have a binding effect not only on the private sector but also on all spheres of government. It will thus become a central element in the system of cooperative governance. For further detail on this function see chapter 3.
Decision making
Apart from the plan-making role of government, municipalities will also be charged with the responsibility of taking decisions on land development applications made to them. Local government is the sphere of government at the coalface of land development. It is therefore important that this sphere of government be charged with the responsibility for making decisions regarding land development. This view is supported and promoted by international instruments that South Africa is a signatory to, notably the Agenda 21, 1992. This view is also supported by the concept of developmental local government, in the White Paper on Local Government.
Many municipalities, particularly in the former Transvaal, Natal and Cape Province have been taking land development and land use decisions under the old Provincial Planning Ordinances. Municipalities in the former homelands have not been extensively involved in land development management. With the abolition of the fragmented South African state and the demarcation of municipal boundaries, there has been considerable confusion regarding the powers and authority of municipalities to take land development decisions in certain areas. The new law on spatial planning, land use management and land development will empower all municipalities to take all land development decisions, save for those that have to be referred to the land use tribunals.
Together with the decision making powers of municipalities, comes the responsibility for municipalities to consult with their communities in making these decisions. The law on spatial planning, land use management and land development will prescribe the process of consultation to be followed by municipalities in making land development decisions.
Enforcement
The enforcement problem has to be approached incrementally, both through the ongoing revision of land use and development controls by municipalities to achieve appropriate outcomes and through the building of local enforcement capacity. The new law will empower municipalities to enforce the provisions of their land use schemes. They will be able issue notices to offenders and, failing a positive, response, impose a fine. Municipalities will be empowered, as a last resort to demolish structures willfully developed contrary to the provisions of a land use scheme.
5.1 Definitions
A pervasive feature of the planning scene in South Africa has been terminological confusion. This White Paper is premised on the following definitions, which represent an understanding of the various terms that tries to capture both the most commonly understood international meanings ascribed to them as well as aspects of their specifically South African interpretations. The first three definitions cover three terms frequently used in relation to planning in South Africa. Over the years each has come to assume a particular meaning. The last three definitions are terms that come from Schedules 4 and 5 of the Constitution. As is often the case with constitutional terminology a number of different interpretations have emerged for each one of them. The need for uniform and shared understandings of these terms is very important because they form the basis for determining the scope of each sphere of government's legislative power in relation to planning.
Spatial planning: planning of the way in which different activities, land uses and buildings are located in relation to each other, in terms of distance between them, proximity to each other and the way in which spatial considerations influence and are influenced by economic, social, political, infrastructural and environmental considerations.
Land-use planning: planning of human activity to ensure that land is put to the optimal use, taking into account the different effects that land-uses can have in relation to social, political, economic and environmental concerns.
Land development: the process of building and landscaping land in order to enhance its commercial or social value
Municipal planning: planning by municipal government for the more effective management of its functions
Regional planning & development: planning by district or provincial or national government for the more effective utilisation of the resources of a particular area larger than a `local municipality'.
Provincial Planning: planning by a provincial government for the more effective management of its functions.
5.2 List of Acronyms
| DEA&T | - | Department of Environment Affairs and Tourism |
| DLA | - | Department of Land Affairs |
| IDP | - | Integrated Development Plan |
| LDO | - | Land Development Objective |
| EIA | - | Environmental Impact Assessment |
| NEMA | - | National Environmental Management Act |
| DFA | - | Development Facilitation Act |
| ... |