Minister Bredell Reacts to Land Use Planning Ordinance Ruling

Statement by Anton Bredell, Minister of Local Government, Environmental Affairs and Development Planning

Having regard to the fact that I am the Minister responsible for Local Government, Environmental Affairs and Development Planning, I have noted the issues raised in this judgment and have in fact prior to these matters being heard by the Western Cape High Court appointed counsel to prepare an application to declare the offending section in the Land Use Planning Ordinance 15 of 1985 (LUPO) unconstitutional. This, however, was overtaken by proceedings in the Habitat Council and Gordonia court cases.

In my affidavits filed in these matters, I noted that the appeal provisions in LUPO permit me to legitimately consider appeals against decisions made by municipalities so as to see to the effective performance by municipalities of their functions in respect of "municipal planning" (s 155(7) of the Constitution) and to promote the development of their capacity to perform their functions and manage their own affairs (s 155(6)(b) of the Constitution). I have submitted that this power of "oversight" permits me to assess the procedure and outcomes of municipal planning processes (spatial development frameworks, zoning schemes and specific land use decisions) and municipalities’ justifications for those outcomes. I may then require that a decision be reconsidered by a municipality if the manner in which it is taken, the justification for the decision, or the nature and effect or likely effect of the decision undermines the effective performance by the municipality of its forward-planning and land-use-control functions. If, in the exercise of this power, I remit a decision to a municipality with comments for consideration, the municipality may then decide whether to alter or amend its decision.

I have, however, submitted to the Court that Section 44 of LUPO is inconsistent with the Constitution to the extent that it not only permits an appeal to the province against every decision made by a municipality in terms of LUPO, but allows me to replace every decision with my own decision – even if the development in question only raises issues relevant to "municipal planning".

Section 44 of LUPO is also inconsistent with the Constitution to the extent that it provides that my decision taken on appeal is deemed to be a decision of the municipality involved. It is because of this overbreadth that I accepted that section 44 of LUPO must be declared to be inconsistent with the Constitution.

I further submitted that if a proposed development raises matters falling within the functional areas of "regional planning and development","urban and rural development" or "provincial planning", the province is the appropriate sphere of government to deal with the matter. This is so as the province will in these cases be exercising its own constitutionally mandated powers. It is encouraging to note that Judge Davis accepted my arguments summarised above and granted orders in accordance with the proposed draft orders attached to my affidavits.

In making submissions to the Western Cape High Court on these issues, I was mindful of the potential disruption to development within the Western Cape and proposed an interim procedure which will operate pending the introduction of new legislation to replace the LUPO. In this regard, the judgment in the above matters indicates that section 44(2) and (3) of LUPO should be read in a manner which is more aligned with the constitutional division of powers.

The judgment suspended the order of unconstitutionality for a period of 24 months so as to permit the Provincial government to amend or replace LUPO. In this regard, the Western Cape Land Use Management Bill was formally published for public comment in January 2013 and the Department of Environmental Affairs and Development Planning is currently considering the comments received on the Bill. It is envisaged that this Bill will be tabled in the Provincial Legislature and enacted within the next 12 months.

With regard to giving effect to the judgment my office and the department will be in contact with all municipalities in the Western Cape and other relevant stakeholders in the planning and development fraternity to convey the implications of the judgment and to assist implementation.