The Spatial Planning and Land Use Management Act I - The Framework and Implementation

History

Before 1994 spatial planning was based on racial segregation, which led to an inefficient and dislocated system.  In 1995 the Development Facilitation Act (DFA) was put in place to address spatial planning.  In 2001, the White Paper on Spatial Planning and Land Use Management was published, proposing a uniform set of procedures for land development approvals.

Parts of the DFA were found to be unconstitutional in 2010 by the Constitutional Court on the grounds that they infringed on the exclusive powers of municipalities.   The Spatial and Land Use Management Act (SPLUMA) replaced the DFA, and came into operation in July 2015. The aim is to promote investment in land development and establish sufficient certainty in the land market; to address the segregated and unequal spatial patterns inherited from apartheid; to balance socio-economic needs with those of environmental conservation, and to improve and support infrastructure and service delivery initiatives.

Objectives

The objectives of the Act are to:

• Provide a framework for spatial planning and land use management in South Africa.
• Specify the relationship between the spatial planning and the land use management system and other kinds of planning;
• Ensure that the system of spatial planning and land use management promotes social and economic inclusion;
• Provide for development principles and norms and standards;
• Provide for the sustainable and efficient use of land;
• Provide for cooperative government and intergovernmental relations amongst the national, provincial and local spheres of government; and
• Redress the imbalance of the past and to ensure that there is equity in the application of spatial development planning and land use management systems.

The principles contained in SPLUMA are not new and can be regarded as a more detailed exposition of the general normative direction contained in planning policy and legislation since 1994 such as the White Paper on Spatial Planning and the National Development Plan.

SPLUMA is strongly normative because it highlights social justice, equity, inclusion, community participation, transparent decision-making, and awareness of the role of property and housing and environmental management in creating functional, efficient and humane settlements.  These goals are reflected in the development principles of spatial justice, spatial sustainability, spatial resilience, efficiency and good administration.  Land use management is regarded as the implementation mechanism for spatial plans and policy and the application of the principles in practice.

Main features

2. Municipal planning (such as land development, land use management) is the responsibility of municipalities, nullifying all inconsistent mechanisms, systems or institutions previously dealing with land development applications.  Prior to SPLUMA land development and planning were disorganised with various land development processes. This made it difficult to finalise land development applications.  SPLUMA is intended to ensure that a single and inclusive land use scheme is developed for the entire municipality, with alignment of authorisation processes on policies and by-laws affecting land.
3. Municipalities are required to establish municipal planning tribunals as well as appeals structures in order to determine and decide on land development applications,   SPLUMA allows municipalities options for tribunals and appeals structures, based on their capacity.  Municipalities are also required to establish SPLUMA compliant Municipal By-laws, a Municipal Planning Tribunal (MPT) and a spatial development framework (SDF) and develop Delegations and Tariffs.  Delegations refer to specific categories of decision making (to be specified by the municipality) that can be delegated to authorised officials by the Municipal Planning Tribunal or Joint Municipal planning Tribunal regarding land use applications (this is in terms of section 56 of SPLUMA).  Tariffs refer to all tariffs associated with land use management applications and land development processes (in terms of section 49 of SPLUMA).
4. The content required in the SDF ranges from the application of development principles and a long-term development vision (usually with a 25 year time horizon) to the implementation of, and investment in, programmes.  Relating municipal SDF formulation to specific sector issues requires interaction with departments in the other spheres of government. If there is a lack of commitment to the alignment process, particularly with regards the sharing of information, the quality of the Municipal SDF will be negatively affected.  Other aspects of municipal development planning (e.g. infrastructure planning and investment, capital investment, budget alignment) should be considered when developing an SDF in a municipality. In terms of municipal planning, stronger spatial guidance as part of the Integrated Development Plan (IDP) process could lead to more strategic investment and implementation in the municipal space.
4. Neither SPLUMA, nor any other legislation regarding transport, human settlement planning or any other sector gives the SDF, Integrated Development Plan (IDP) or any sector plan precedence above any other plan. This lack of a hierarchy of plans means that consensus must be reached by all departments in all spheres of government through all planning and budgeting cycles to produce aligned strategies, policies, plans and projects for aligned implementation

SPLUMA and Intergovernmental Relations

SPLUMA requires all three spheres of government to produce SDFs. The focuses of the SDFs are different.  The national SDF provides broad strategic direction, provinces focus on a coordination role, and municipalities develop detailed plans for the areas of their jurisdiction.  A municipal SDF fits into a hierarchy of spatial plans, taking direction from the national and relevant provincial SDF

At national government level, the Department of Rural development and Land Reform (DRDLR) was initially assigned the primary responsibility to implement SPLUMA. It monitors, oversees the establishment of National Spatial development Framework (NSDF) and other SDF guidelines.  It is responsible for guiding any land development in the national interest, and developing regulations, and frameworks for the applications of exemptions and for delegations in terms of the Act. Secondary responsibilities, such as Land Use Systems and Alignment of authorisation are assigned to the Department of Cooperative Governance and Traditional Affairs (DCoGTA).

Provincial government supports monitors and strengthens municipalities (in terms of section 10 of SPLUMA). It is also responsible for the establishment of Provincial SDF, provincial laws and regulations and to provide technical support and dispute resolution.

Local government is responsible for the establishment of Municipal SDFs which are required to be consistent with provincial and national legislation. Municipalities may receive assistance from national and provincial governments when necessary. The municipal SDF, land use systems and by-laws should be reviewed five years. 

Although the role of the various SDFs of the three spheres of government is conceptually clear, the alignment of these plans and its implications will have to be tested in practice.  The constitutional objection to the DFA is to be met by Section 22 of the Act:

S.22 (3) “where a provincial spatial development framework is inconsistent with a municipal spatial development framework, the Premier must, in accordance with the Intergovernmental Relations Framework Act, take the necessary steps, including the provision of technical assistance, to support the revision of those spatial development frameworks in order to ensure consistency between the two.”

This has already been controversial given the requirement by the national government that municipal spatial planning must be aligned with Strategic Infrastructure Projects (SIPs) and Built Environment Performance Plan (BEPPS).

Reorganization at the national level

An agreement was reached in 2015 between the ministers in the Department of Rural Development and Land Reform (DRDLR), the Department of Cooperative Governance and Traditional Affairs (DCoGTA), and Department of Planning, Monitoring and Evaluation (DPME) to reallocate the functions of national planning and land use management. The decision taken was that the DPME will monitor the national SDF and provincial SDFs, national interest projects, regulations, exemptions and delegations.  DCoGTA will oversee land use schemes, alignment of authorisation, Municipal Planning Tribunals and appeals.  DRDLR will retain the planning and information function with a specific focus on rural development and land reform programmes.  Further functions are still to be divided among the various departments.  The system will be managed by the Presidency to coordinate the work of national departments.

In each department, task teams have been established and they are expected to resume their functions once the president has signed the proclamation regarding the reallocation of functions among the various departments. The submission was prepared by the DPME and submitted to the presidency for signature. The ministers of the three departments were then advised by the legal unit in the presidency to sign the proclamation before the president signs it. The minister of PME has signed the proclamation in April 2017 and then sent to the minister of CoGTA who will then send it to the minister of RDLR. Once all ministers have signed, the document will then be sent to the presidency for final signature[1].

Implementation Challenges

Spatial planning is a complicated process and the main implementation challenges have been:

• Municipalities have not always prioritised the implementation of the Act.
• Lack of capacity to implement the Act across all three spheres of government. Insufficient capacity has limited the abilities of some municipalities to implement SPLUMA. Given that national and provincial governments also lack capacity, it is difficult for these spheres of government to assist municipalities when support is needed.
• Lack of funding has slowed down the finalisation of by-laws in some provinces, as there were no additional funds allocated to the implementation of SPLUMA.
• Delays in municipal council-decision making.
• Traditional leaders have been unwilling to cooperate and participate in the programme, as they claim custodianship of tribal land. 

Progress: metropolitan municipalities

Spatial planning and land use management are most important and most complex in metropolitan municipalities.  The table below indicates the progress made so far.

So far, all municipalities in Mpumalanga, Western Cape and Northern Cape have published their by-laws. More than 75% of municipalities in Gauteng, North West, Eastern Cape, Free State and Kwa-Zulu Natal have done so. But slow progress has been made in Limpopo.

All municipalities in Northern Cape and Mpumalanga have established MPTs. Over 65% of municipalities in the Free State, Limpopo and Western Cape have established MPTs. Slow progress is observed in Eastern Cape, Gauteng, Kwa-Zulu Natal and North-West.

Key problems

2. Vagueness.  Some principles in SPLUMA are not clearly explained. For example, the principle of spatial resilience is not explained in detail, making it difficult to take guidance from this principle or even to evaluate whether or not this principle has been followed appropriately. Moreover, principles in SPLUMA contain both process and content issues. There is no specification with regard to what principle should be prioritised over the other.
2. Co-ordination complexity.  While municipal planning is the domain of municipalities, integrated planning requires the aligned efforts of all spheres and sectors of government. The absence of a hierarchical relationship between the spheres of government implies that consensus must be reached by all departments in all spheres of government on planning, policies, strategies, plans and project to ensure aligned implementation.  Sharing information may be a problem, as may be the relationship to other aspects of municipal development planning such as infrastructure planning and investment, capital investment, and budget alignment.

Conclusion

The principal challenges to better spatial planning and land use management are:

1. Capacity, particularly in financially challenged municipalities
2. Very complex co-ordination problems between the three levels of government and within municipalities.
3. Limited resources in a low growth environment, even in metropolitan municipalities, making new investment in infrastructure required to realise an SDF a slow process.

The SPLUMA framework is better than the fragmented and unconstitutional systems which preceded it.  However, it will take years for it to bed down and its effective implementation will require competence and determination, particularly at the municipal level.  Planners will need to be well informed about, and responsive to, demographic, economic and social change in their jurisdictions. 

Agathe Fonkam
Researcher
agathe@hsf.org.za

[1] This information is taken from a DRDLR presentation to the parliamentary committee on 24 May 2017