Municipal officials rule roost when it comes to regulating, controlling land use - new court case

Our Supreme Court has put an end to the struggle between certain tiers of government over the authority to regulate and control land use. The authority vests in municipalities, says Amanda de Vaux, candidate attorney at Deneys Reitz Inc.

In a matter between City of Johannesburg Metropolitan Municipality and Gauteng Development Tribunal, the court recently declared Chapters V & VI of the Development Facilitation Act unconstitutional. These chapters conferred authority upon Provincial Development Tribunals similar to the authority held by local authorities under various Provincial Ordinances. Ostensibly, the Act allowed for two separate government bodies to exercise concurrent authority, and for the possibility of conflicting decisions which was ultimately a recipe for chaos.

The decision imposes wide-spread consequences on those applicants waiting in line for a Tribunal decision on land use in their area and may lead to the unification of land use planning throughout the country.

Under the Town Planning & Townships Ordinance, the municipality is assigned the authority to regulate the use of land in the municipal area. This is accomplished through the introduction of town planning schemes for any land in its area. Furthermore, legislation governing local government, namely the Municipalities Systems Act, requires a municipality to adopt a plan for the development of the municipality, commonly known as an Integrated Development Plan ("IDP"). The Systems Act requires finely co-ordinated action and synergy amongst the many functionaries of the Municipality.

Conflict arises when another body, such as the Tribunal, with similar powers and authority elicits a different and inconsistent view to that of the municipality. Chapters V & VI of the Development Act confer a similar authority upon Tribunals, allowing them to approve land use applications that may conflict with those plans of a municipality, and override the control exercised by a municipality over the land use in its municipal area.

This may be seen, for example, when an application is made to establish land use that falls outside the IDP adopted by a municipality. The application would be inconsistent with the town planning scheme and may result in its refusal. The applicant could then simply repeat the application to the relevant Tribunal, which may approve the application, thereby overriding the municipality's authority over the use of land.

The Johannesburg Municipality alleged that the powers conferred upon Tribunals under the Development Act are reserved for municipalities by the Constitution. This led to the investigation by the court into the nature of those powers conferred directly upon the lower tiers of government by the Constitution.

In terms of Schedules 4 and 5 of the Constitution, the various tiers of government may legislate on matters within certain functional areas. Schedule 4 lists the concurrent legislative authority of the national and provincial governments, and read with section 156(1) lists functional areas over which exclusive authority is reserved for municipalities.

The question facing the court was whether the authority exercised by municipalities under the Ordinance falls within one of the listed functional areas reserved specifically for municipalities. The relevant function under examination was "Municipal Planning" and the court had to consider whether such an area includes the functions performed by municipalities in the regulation of land use. The court decided that activities such as the introduction, administration and enforcement of town planning schemes and the determination of whether land should or should not used for the establishment of townships fits into the definition of "Municipal Planning".

The Tribunal argued that those functions fell within the concurrent national and provincial legislative jurisdiction, namely "Urban Development". This argument was dismissed on the basis that it uses too broad a starting point, leaving too few functions to fall within what would become an artificially narrow interpretation of the words "Municipal Planning". Such an interpretation would stunt any intention of the Constitution to devolve powers on local government. Similarly, it would create a fictitious sense of authority for the municipalities, allowing them to prepare plans but leaving no powers by which to implement them.

The court analysed the concept of ‘planning' and reiterated the importance of understanding the meaning of a word in its particular context. Within the context of municipal activities, the meaning of ‘planning' encompasses "the control and regulation of land use", falling within the exclusive domain of ‘municipal planning' to be exercised solely by municipalities. Such an interpretation would authorise the municipalities to micro-manage the use of land within the bigger picture of ‘Urban Development'.

Chapters V & VI of the Development Act allows provincial bodies to take on the function of municipal planning, a function which the Constitution does not allow them to perform. The Chapters are therefore not in line with the Constitution and were declared invalid. The order protects the validity of decisions already made by Tribunals but at the same time, restricts the Tribunal's future activities to their legitimate functions until such a time that Parliament replaces the offending legislation.

The effect of the order is that a Provincial Development Tribunal may no longer consider any application for the grant or alteration of land use in a municipal area, nor may such a Tribunal amend any measure regulating or controlling land use within a municipal area.

All parties, from citizens in residential areas to companies based in industrial areas, will have to be more attentive to municipal decisions and may no longer rely on grievances, applications and appeals to the Tribunals for municipal land use approvals.

Article by: Amanda de Vaux - www.realestateweb.co.za