The Spatial Planning & Land Use Management Act, 2013 ("SPLUMA"), which is part of a law reform process designed to align land use planning with specific provisions of the Constitution, became law in August, 2013.
In September 2013 the National Office of the Department of Rural Development & Land Reform hosted a special forum in Durban to unpack the way in which SPLUMA will dovetail with the Planning & Development Act ("PDA"). Discussions revealed that under SPLUMA, municipal or 'town' planning has been placed firmly within the sphere of local government.
The Western Cape Provincial Government, for example, in agreement with The Department of Rural Development & Land Reform, has recently advised that each local Municipal Council in that Province will adopt its own planning by-laws. This approach flows from the recent decision of Judge Davis in the "Habitat and Gordon's Bay" judgment in which he held that legislation which confers on the MEC powers to make decisions on behalf of municipalities, is unconstitutional. Confirmation of this approach will be required by the Constitutional Court, but clearly the Western Cape Provincial Government, and the Department of Cooperative Governance & Traditional Affairs, have taken the view that this is inevitable.
If so, the infrastructure and proficiency of the smaller rural municipalities to deal with these changes must be examined. The MEC can publish "model" planning by-laws but it is not clear that all 46 municipalities in KwaZulu-Natal that administer municipal planning will adopt the model, and smaller municipalities may not have the capacity or expertise to draft or enforce their own planning by-laws.
Another potential problem area arises with respect to appeals against planning decisions. In terms of the PDA, an appeal is available to an aggrieved applicant or any person who has submitted comments about a planning application. Conversely, SPLUMA envisages an internal appeal procedure whereby an appeal is submitted to the executive authority of the municipality as the 'appeal authority'. This appeal procedure applies both to an affected party and the municipality itself. The municipality's ability to appeal to its own executive authority is, at face value, a somewhat ludicrous notion. Providentially, however, section 51(6) allows a municipality to resolve that, in the place of its executive authority, an institution outside of the municipality should assume the obligations of an appeal authority.
In conclusion, although the implementation of the SPLUMA may seem to present more problems than it solves, the forum showed that the three spheres of government are working together and implementation mechanisms have been put in place to ensure, or encourage, a smooth transition.
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