“Someone's sitting in the shade today because someone planted a tree a long time ago.” Warren Buffett
In 1913 the Natives Land Act paved the way for many spatial and land-use related legislation that would leave South Africa divided along racial lines for many decades. A century later, in August 2013, the Spatial Planning and Land Use Management Act, No 16 of 2013 (SPLUMA/the Act) was promulgated, enacting a new set of principles, norms and standards for planning the space in which South Africans live and work. The Act is not yet in operation. The regulations required to give effect to the Act have not yet been promulgated.
Once implemented, the Act will reflect the master plan for better living spaces. As with all legislation, the continued co-operation of government, civil society and private sector stakeholders is a necessity to ensure success for the benefit of future generations, for the envisaged shade to be enjoyed.
As municipalities will carry the core obligation to implement SPLUMA, it is necessary that local government structures and skills are in place prior to the Act coming into operation. To this end, the Department of Rural Development and Land Reform (DRDLR) is coordinating and driving a change management process through an Implementation and Change Management Plan to assist provinces and municipalities in considering and drafting spatial planning and land-use management legislation (at provincial level) and land use schemes and by-laws (at municipal level). Some provinces (for example, Gauteng, Kwa-Zulu Natal and the Western Cape) have been pro-active in their own planning and budgeting considerations, making provision for the Act to come into operation. The Western Cape is in the process of promulgating its own land use planning legislation which, inter alia, aims to give effect to SPLUMA.
Chances are that SPLUMA will be brought into operation in a staggered manner, dealing with transitional arrangements first. In terms of the transitional provisions in the Act, pending matters under the Development Facilitation Act (DFA), 67 of 1995, must be continued and disposed of in terms of that Act.
Land and its use is an emotive topic and South African legislation dealing with this controversial issue is under construction. SPLUMA was preceded by the Expropriation Bill (March 2013), the Restitution of Land Rights Amendment Bill (September 2013), and followed by the Property Valuation Bill (November 2013).
Once in operation, SPLUMA will repeal the following acts: the Removal of Restrictions Act, 84 of 1967, the Physical Planning Act, 88 of 1967, the Less Formal Township Establishment Act, 113 of 1991, Physical Planning Act, 125 of 1991 and the DFA. SPLUMA is long overdue, particularly after the Constitutional Court found a number of provisions in the DFA to be unconstitutional.
A plethora of old-order planning laws necessitated the enactment of SPLUMA. One set of principles, norms and standards envisaged in the Act aims to do away with the uncertainty and inconsistency created by old-order legislation. The Act embodies the Constitutional imperatives relating to the protection of the environment and property rights, the right of access to housing and the rights to sufficient food and water. The preamble to SPLUMA specifically refers to sustainable development, which requires the integration of social, economic and environmental considerations in forward planning and ongoing land use management. The intent of the legislature, that municipalities must participate in national and provincial development programmes, guides the content of the Act.
Components of the new system envisaged by SPLUMA
Once the Act comes into operation, the spatial planning scene will be set by spatial development frameworks which must be adopted at national, provincial and local government level. Development principles, norms and standards will guide any spatial planning. Land use schemes will direct management and facilitation of land use and the Act prescribes procedures and processes for land development applications.
Spatial development frameworks
In some cases regional frameworks must also be developed. Integrated Development Plans (IDPs), adopted in terms of the Local Government: Municipal Systems Act, 32 of 2000, will form the basis of municipal planning. IDPs must be consistent with provincial and national spatial frameworks.
Development principles, norms and standards
All organs of state must apply the development principles set out in the Act to all aspects of spatial development planning, land development and land use management. These principles are spatial justice, spatial sustainability, efficiency, spatial resilience and good administration as fleshed out in Section 7 of the Act.
The Minister of the DRDLR must, after consultation with provincial and local authorities, prescribe norms and standards for land-use management and land development in accordance with certain guidelines set out in the Act. These include, amongst others, national policy, social inclusion and efficient and effective processes.
Uniform procedures and processes
The Act aims to create uniform procedures and processes applicable to the entire country for land development approvals by proposing one set of procedures for permission to change land use. This should enhance performance management and facilitate capacity building. It should furthermore ensure alignment with the National Environmental Management Act, 107 of 1998, for environmental impact assessments.
The land-use regulators, enabled to take decisions within the realm of SPLUMA, will be municipalities (by way of by-laws regulating land-use management schemes), provinces (by way of land-use tribunals) and national government, in that the Minister of the DRDLR will be the regulator of last resort. The Minister must, within available resources, provide support and assistance to provinces and municipalities in the performance of their land-use management functions. The Minister must also monitor compliance, progress made and the quality and effectiveness of municipal spatial development frameworks.
Land use management
Municipalities must, in the development, preparation and amendment of land use schemes, provide general policy guidance. Traditional councils must be incorporated in this process, subject to certain provisions in the Act.
Land-use schemes must include land use zoning and regulations for the entire municipal area; take cognisance of environmental management instruments; allow for incremental introduction of areas under traditional leadership, rural areas, informal settlements, slums and areas not subject to earlier schemes; include affordable housing in residential land development; and include development incentives to promote a spatial development framework.
Land-use schemes may include provision for use and development with written consent; specific requirements regarding special zones; and scope for the variation of conditions of the land-use scheme. Land-use schemes must be consistent with the municipal development framework, must have the force of law and must replace all existing schemes.
Where to from here?
Two recent judgments of the Constitutional Court, respectively dealing with the DFA1 and with a major property development in the Western Cape called Lagoon Bay,2 have confirmed the proper interpretation of the Constitution which identifies the local government level as the principle sphere of government responsible for land-use planning. However, very few municipalities have the necessary skills and experience to implement SPLUMA and other related provincial legislation. Therefore, provincial governments, local governments, the private sector and civil society will all need to work together if SPLUMA's noble aims are to be achieved. Only in that way will we all be able to sit in the shade.