South African planning law is currently in transition with a long awaited Spatial Planning and Land Use Management Act (SPLUMA) of 2013 having come into effect only last year through adoption of its regulations. However, the City of Johannesburg still has not finalised its municipal planning bylaws that would make this new legal framework apply to the City.
The only city that is implementing SPLUMA and its regulations through a new municipal planning bylaw is Cape Town.
SPLUMA repealed various national acts. However, Town Planning Ordinances (which are provincial) and Town Planning Schemes (which are municipal) remain in effect.
The ordinances, which are archaic and legally considered unconstitutional due to their appeals procedure, can only be repealed by new provincial legislation. The Brixton reservoir case shows just how archaic these ordinances are.
Joburg Water’s town planning consultants’ options for achieving the necessary land use changes to place a water reservoir and tower in Kingston Frost Park in Brixton, shows how readily the ordinances are invoked. Under Option 1, the consultants propose using the Local Government Ordinance no. 17 of 1939 for the park closure. This Transvaal provincial ordinance predates National Party rule. It allows a 30-day objection period (the town planning consultants make no mention of public consultation being required under this law).
The consultants find this procedure ‘time consuming and tedious’ and recommend against it. In their preferred Option 2, they recommend skipping this procedure and only invoking the 1986 Town Planning and Township Ordinance (apartheid era legislation, also from the erstwhile Transvaal Province) for consolidation and rezoning. Rezoning involves a 28-day objection period and 60 days for comments.
Town planning is an area of law that is slow in transforming. The only reason SPLUMA was finalised in 2013 (a first draft appeared already in 2001) is that the City of Joburg found the legal framework that preceded it to be unconstitutional. In 2006 it began taking this through the courts, leading to a Constitutional Court ruling in the City’s favour in 2010.
Prior to 2010, the 1995 Development Facilitation Act (DFA) allowed developers to submit applications to a Provincial Tribunal for approval, bypassing the municipal approval procedure altogether. The 1986 Ordinance in turn allowed for decisions that went through its channels, through the municipality, to be overturned or amended on appeal to a provincial appeals body.
The Constitutional Court’s 2010 judgement was decisive. The ruling defined land use change approvals as a municipal function, in effect denying the provinces their power to make spatial land use and town planning decisions on grounds that this is unconstitutional.
In Brixton, a neighbourhood under immense pressure by absentee landowners-come-developers seeking opportunities to densify, the community had at times fought hard to counter plans for flattening residential street blocks to make way for faceless blocks of flats that were threatening to be approved through the DFA procedures.
Town planning consultants, in the service of such developers, know and use every loophole to help their clients obtain approval, even when local residents submit legitimate objections or the municipality disagrees with the proposed land use. In such instances, planning is a dirty profession, although planning schools and the South African Council of Town and Regional Planners work hard to place ethics at the core of this profession. In the bigger picture, planning consultants often serve entrenched interests and profit maximisation.
What about land use suitability studies, social impact studies, public consultations, the participatory integrated development planning procedures – the core of what town planning professional’s contribution ought to be, in the service of society?
Will Gauteng Province require the pressure of legal action before replacing the archaic Transvaal Ordinances with constitutionally compliant, democratic local government and planning legislation? Could a community such as Brixton, finding itself disadvantaged through the use of the old ordinances, take a legal route and perhaps obtain a court order that requires the province to conclude the process of replacing the outdated ordinances? Ordinary inhabitants across the entire province could benefit from such collective legal activism. However, courts might simply argue that by ignoring the appeals procedures, the ordinances can in fact be read to constitutionally compliant.
Even if the ordinances were updated, there is a provision in the new SPLUMA, though, that could make the Brixton community shudder. This is the dreaded public interest, which remains undefined. SPLUMA reads in Section 55(1) that ‘The Minister may, in the public interest, on the request from a province or municipality, by notice in the Gazette, exempt from one or all provisions in this act, an area specified in the notice’. The public interest of the planned reservoir would have to be weighed against that of an existing public park. Brixton community might have to ready itself for a different kind of activism and protest, perhaps taking a cue from #FeesMustFall.
There’s certainly not enough progressive activism in the field of planning law and its implementation. The fact that it was City of Joburg and not civil society that took the Gauteng Province to court on the unconstitutionality of the pre-SPLUMA legal framework shows how easy it is for the public and organisations acting in its favour to remain unaware.
The unreformed town planning regime has long pulled the wool over the eyes of the public on matters that affect it directly. As it stands, planning legislation remains so complicated and impenetrable that it seems legitimate to spend thousands of rands on planning consultant fees to provide an interpretation, and that in itself helps keep the status quo in place.
Article originally published by Urban Joburg.
Marie Huchzermeyer teaches in the School of Architecture and Planning at Wits University and lives in Brixton.Read older posts from this section