APPEAL COURT SECURES SPATIAL PLANNING POLICIES OF MUNICIPALITIES
 
In a judgment handed down yesterday  by Judge Carole Lewis of Supreme Court of Appeal, the constitutional legal standing of the Spatial Planning Policies of the City of Johannesburg, and all other municipalities across the country have been secured.
 
This comes after a protracted legal process in which the Johannesburg City Council first applied to the High Court for a declaratory order on the legality of certain decisions taken by the Gauteng Development Tribunal which were in conflict with the approved development plans of the City Council. That application was turned down by the High Court, after which the Council took the judgment on appeal to the Appeal Court.
 
Councillor Christo Botes, Democratic Alliance spokesperson on Development Planning in the City of Johannesburg, says the party welcomes the judgment by the Court of Appeal.  
 
"The City and its residents cannot be held at ransom by property owners who develop property in contradiction to the Council's Spatial Planning policies," he says. "Whereas in the past, the Province has allowed virtually any development to take place without taking into account the wishes of local residents and the Council, future developments will have to comply with the City’s approved plans and policies."
 
In terms of relevant legislation, the City Council is obliged to annually compile and submit an Integrated Development Plan to the premier. This plan maps the future spatial development of the City. All infrastructure planning and provision, including electricity, sewage disposal, storm water, transportation and all social services, is then conducted based on the IDP. Council’s annual budget is aligned with the IDP in order to provide the funds required for the provision of such services. Once the premier approves the IDP it becomes the official policy of Council, and by implication, that of the province. The City Council is then bound to apply the policy on all development proposals contained in the IDP.
 
On several occasions property owners and developers submitted rezoning and other town planning applications to the premier’s office in terms of the Development Facilitation Act instead of submitting applications to the City Council. The Gauteng DFA Tribunal considered the applications and the Premier finally decided on such applications.
 
Several decisions of the Premier in the past were in direct conflict with the approved policies of Council.  Those decisions had a direct impact on the infrastructure plans of the City.
 
The Council approached the High Court pointing out the anomalies of the process and requested the Court to declare on the role and function of the Premier in deciding on development applications. The High Court at the time found in favour of the Premier.
 
The decision of the High Court called into question the enforcement of the City Council’s development planning policies. In terms of legislation, the city is required to conduct an extensive public participation process before approving its IDP and submitting it to the Premier for his approval. However, if property owners and developers for any reason decided to apply to the Premier for approval of development applications which are in direct conflict with the approved policies of Council, the Premier could approve, and in the past has approved such applications.
 
The Appeal Court now established that that municipal planning is reserved for municipalities by the constitution and that constitutionally, it cannot be dealt with by any body other than a municipality.  The judgment states categorically that “The Constitution does not permit provincial bodies to take on the function of municipal planning...”
 
"This will ensure certainty in the property market, as residents, investors and property developers will now have a clear understanding of what land uses will be allowed in any given area. The judgment sets a clear precedent and will obviously apply to municipalities across the country," Botes concludes.

--------------------------------------

TOWN PLANNING PROCESS FOLLOWED BY SAPRA:

1. The first step is to identify and record which Applications have been submitted to Council:

• - This is done by perusing the Provincial Gazettes which SAPRA subscribes to
• - Councillor for Ward 73 (Marcelle Ravid) receives applications from Council which she will then forward to SAPRA
• - SAPRA will on occasion hear from residents or see themselves, that Notices have been posted on properties (this is a required Council process).

If SAPRA does not have a copy of the Application, a copy is obtained from Council.

2.  SAPRA has retained the permanent services of Urban Terrain, Town Planning Services.   The application is forwarded to them so that they can ascertain whether it is in line with the RSDF (Regional Spatial Development Framework).  

SAPRA has spent a significant amount of time and money to limit the proposed development envisaged by Council for Saxonwold and Parkwood.   The RSDF Plan was agreed to by both parties and it is a rolling document which means that it is subject to revision every two years.   Certain parts of Parkwood are also subject to the RUDF (Rosebank Urban Development Framework).   The 800 sq metre radius around the Rosebank Gautrain Station means that some properties will have Town Planning variants.

3. The appointed Town Planner will advise whether the Application falls within the RSDF Plan.   If it is in line with the Plan, SAPRA will not object.  If it is outside the plan then SAPRA will object.     Should the application require more of the Town Planner’s time, the SAPRA Committee will discuss the issue and decide whether to proceed or not.   The immediate neighbours will be notified of the Town Planner’s assessment and a recommended response.   SAPRA will always act in accordance with the RSDF Plan.   Based on the nature of the Application it may be in the neighbourhood’s interest to object on an individual and collective basis to strengthen the opposition.   A Town Planner and/or Lawyer may be required at the Council site hearing.   These costs cannot be borne by SAPRA but it may be in the neighbour’s interest to have the necessary representation.   SAPRA can always be contacted for advice.

4.      Objections must be lodged with Council in a stipulated time-frame.

5.      All new applications received by SAPRA (whether an objection is lodged or not) is reported in the SAPRA Newsletter and at the Committee Meetings.

6.      When the application comes up for review, if there are objections on file, those objectors are invited to attend site inspections and thereafter Tribunals at Council where the various parties are given the opportunity to air their arguments.

7.      Council then sits and makes their decision.   The various parties will in time be notified of Council’s decision.

8.      If the Council refuses the Application, the Applicant might choose to lodge an Appeal.   In this instance, SAPRA will contest the Appeal.  

BUILDING REGS & RSDF PLAN:

 i.            There will be links to the RSDF, UDF and BRT.

ii.            Applicants for rezoning are invited to request SAPRA to consider the Application and complete the enclosed form (link to form comprising details of applicant’s property rezoning requirements, etc).    A fee of R500.00 is payable to SAPRA (see Bank details) for the plan to be submitted to our Town Planner for consideration.

iii.            On receipt of the duly completed form and payment, the Application will be submitted to the Town Planner for comments.