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LHR comments on the Draft Spatial and Land Use Management Bill, 201

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INTRODUCTION:
 
We appreciate the opportunity to make the following comments on the Land Use Management Bill, 2011, and to suggest the amendments we deal with herein. Our organisation is a national legal NGO that has been in existence since the late 1970’s. We have a proud history of human rights and anti apartheid work. We continue working on a range of human rights issues in the new South Africa. Our activities and the cases we are involved in appear from our website, www.lhr.org.za.
 
Our land and housing project, which is based in Tshwane, assists dozens of communities in informal settlements in and around Gauteng with their legal problems. Our comments are therefor focused on the situation of informal settlements, homeless people and the availability of land in the urban edge of large metropolitan areas. We deal with a few other issues in general.
 
INCLUSIONARY HOUSING – WILL IT PROVIDE LAND AND HOUSING FOR THE POOR?
 
We appreciate the fact that the Bill intends to establish framework legislation, and that a lot of the detail will eventually appear from the eventual regulation and provincial legislation. However, National Parliament, as the apex of constitutional power, has the ability and responsibility to impose obligations on citizens and businesses that other legislative and administrative authorities do not have. One of the single biggest problems faced in the metro areas is the high prices that must be paid for land on the urban edge. This land is mostly owned by private individuals and developers. Once an area is ready to be developed, the price of the land is understandably very high as it is valued according to its “best potential use”.
 
The market delivers for those with money. It will not deliver to the poor unless required to do so by National Parliament. For this reason we believe the provisions of “inclusionary housing” in the definitions, section 48, schedule 1(h) and schedule 2 should be reconsidered.
 
At present developers are required to make contributions in kind or money to matters such as open spaces, parks and external services. They are not required to make land available for the state for state assisted housing programs. We submit that this should change. 
 
“Inclusionary housing” is defined as providing “affordable housing” in middle and high income residential developments. Affordable housing, although not defined in the act, has a very specific meaning in the industry. It refers to conventional houses at the lower end of the market, typically in the range of two to five hundred thousand rand. It will be interpreted by planning tribunals to refer to such housing.
 
The definition of inclusionary housing does not refer to “low cost housing” or state assisted housing. This problem is then transplanted onto every provision that includes a reference to inclusionary housing, such as paragraph (h) of schedule 1. As legal rules of interpretation are generally conservative and do not impose obligations where they do not expressly exist, we do not see how housing for the poor will be accommodated on a compulsory basis. And we know it won’t happen on a voluntary basis. Land in metropolitan areas will remain scarce and expensive.
 
Section 6 (a) refers to spatial justice and section 8(c)(iv) requires that vacant land be identified and that access thereto be provided. However, these provisions are too unspecific to impose the type of obligations on developers that we believe are necessary to give government access to land for subsidised housing projects.
The land use categories created by schedule 2, must create a category which distinguishes ordinary “residential purposes” from state subsidised housing projects. The latter has too many peculiar problems to simply fall within the broad category of “residential purposes”.
 
Spatial development frameworks are also not required to provide for government subsidised housing. Although section 11(1) (h) and (i) refer to informal settlements and historical spatial imbalances, their provisions aren’t strong enough to achieve the goal of ensuring land availability in the metro areas.
 
The various references to “informal settlements”, “incremental upgrading areas” and “disadvantaged areas” do  not seem to solve the problem that land won’t be made available for state subsidised housing. Such provisions appear to refer to present settlements, and do not make the provision of such land compulsory.
 
As things stand at present, it is our view that government will continue to be frustrated by the lack of availability of land in metro areas, which will in turn lead to state developments taking place far away from the centre of cities, which is the precise thing that the act wishes to avoid.
 
We therefore make the following suggestions:
  • A new land use category must be included, called “state subsidised housing projects”
  • State subsidised housing projects should then be included in the definition of inclusionary housing.
  • Section 48 should then provide that developers may also be required to make land available for state subsidised housing projects.
  • Spatial Development Frameworks (section 11), the principles and norms (section 6 and 8) and the content of provincial legislation (schedule 1) must then all include a reference to state subsidised housing projects, and must make it very clear that land for this purpose must be identified, it must be integrated with other land uses and the private sector has the responsibility to assist in its provision.
 
 
INCREMENTAL UPGRADING AREAS AND INFORMAL SETTLEMENTS
 
Informal settlements lie at the centre of our work and hence also at the centre of our proposals. Reality dictates that many new informal settlements will have to be created to accommodate urbanisation and population growth. Housing delivery simply will not be able to eradicate backlogs within the foreseeable future. Government and planning authorities are reluctant to create new informal settlements where there are only rudimentary services or almost no services. Such settlements are controversial. However, denying the problem makes the problems worse.
 
Because there aren’t sufficient new informal settlements, the phenomenon of backyard dwellers is becoming worse. The resultant conditions of overcrowding creates serious health and fire hazards. It also leads to the constant threat of land invasions, as people try to escape the overcrowded conditions in existing informal settlements. The situation also unintentionally introduces a form of influx control, as it creates enormous obstacles to urbanisation.
 
For this reason the act should make express provision for the creation of new areas for informal settlement and incremental upgrading. As stated above, it should also do so on an inclusionary basis. The simple truth is that planned informal settlement is better than unplanned informal settlement and land invasion. At present informal settlements are mostly created by processes of unlawful occupation, and not by planning processes. This is not healthy.
 
Provisions such as section 6(a)(v) must be more specific in respect of the creation of new informal settlements, otherwise they will be interpreted as referring only to existing informal settlements. Provincial legislation and regulations must then also provide for such areas and the different processes that accompany them.
 
MORE DETAILED PROVISIONS FOR GOVERNMENT SUBSIDISED HOUSING
 
The Development Facilitation Act made it clear in its preamble and principles that low cost housing had to be fast tracked and was a development priority. We know that in practice things worked out very differently as the Development Facilitation Act became a preferred process for upmarket developers to side step municipal planning frameworks. The present bill should again make it clear that housing development for the poor is a development priority that should receive special treatment. And it should make sure that low cost housing is not again marginalised by market forces and disempowered planning authorities.
 
We believe that there should be a separate section dealing with all the various planning aspects of state subsidised housing that integrates this planning act with the Housing Act. The reader and interpreter of the Land Use Management Act must be left in no doubt that the planning for and provision of housing for the poor has been identified by Parliament as one of its highest priorities.
 
If a separate provision in the act is not opted for, a few more specifics can be added to the existing sections. Private developers should bear some responsibility to contribute to the process of delivering housing for the poor. This should be specifically identified as a principle of planning.
 
The governmental support and monitoring (section 9) should provide specifically for monitoring progress on the planning aspects of housing delivery to the poor. The same should also apply to the spatial development framework. Section 53, the exemption section, should also be more specific in the requirement that government subsidised housing should be fast-tracked and should receive special treatment where required. Provincial legislation and regulations should also provide for the specific and preferential treatment of government subsidised housing.
 
PROCEDURES MUST CONSIDER THE POOR
 
The bill requires of planning procedures to be fair and to be efficient (sections 6(c), (e) (iii) to (v). Provisions that deal with procedure should make sure that poor people are not excluded from the process. It often happens that land use approvals are granted without the occupiers of the land even knowing thereof. Farm workers and other ESTA occupiers in peri urban areas are especially affected by flaws in the present procedures. Not all planning tribunals are equally sensitive to the needs and rights of such occupiers.
 
The act should specify that procedures must involve effective notice to persons and communities that may normally not gain knowledge of such processes through normal notice procedures. Tribunals should also be empowered to facilitate the involvement of any person or community at any stage of the proceedings. The disqualification of people from proceedings of which they had no knowledge is contrary to the basic requirements of administrative justice.
 
We submit that this act should expressly address these issues. Otherwise the danger exists that the eventual regulations or provincial legislation may perpetuate the present exclusion of poor communities.
 
OTHER MATTERS FOR CONSIDERATION
 
We are surprised that the bill does not integrate planning and development approvals with broader issues of black economic empowerment. Blacks form a very small part of the development industry. Planning approvals can potentially be one mechanism to transform the industry. There are certain perennial problems with planning approvals that are common knowledge and that should be addressed. One such matter is the fact that developers make many promises to surrounding communities that are never fulfilled. The proposed act should make it very clear that planning approvals must enforce promises by developers and may even require bank guarantees for the fulfilment thereof
 
Insolvency of developers is another problem. Development will probably always contain an element of risk. However, planning tribunals should be empowered to withhold or defer approval until they are satisfied that the developer will be financially able to implement the development.
 
The act should specify when development rights vest. It is a common problem that developers develop before they have obtained all approvals or before appeals and reviews are finalised. We believe section 34(9) of the bill is not sufficient to address this problem, in fact, it suggests the finality of the decision of a municipal tribunal, and not its conditionaltiy. Either section 24(1) or a new section 34(10) should provide that land use rights only vest once they have been published in the Gazette, and that publication in the gazette may only take place one month after all planning and other approvals have been obtained. In the event of an appeal or review being lodged, publication may only be made once the appeal or review has been finalised or has lapsed.
 
Such provisions will take away all the legal uncertainty as to when rights vest, and will ensure that the legal uncertainty created by multiple approvals does not give developers an opportunity to develop prematurely.
 
The bill only contains one very oblique reference to private agreements that regulate land use. Section 24(2) upholds the provisions of a title deed under certain circumstances. Considering how common housing estates have become, it is surprising that the drafters have not given more attention to the issue of estates and their home owners association rules (such rules are usually registered against the title deeds). Private treaties and home owners association rules have huge potential to create land use restrictions and exclusions that may not be acceptable to authorities or neighbouring communities. Providing that title deed restrictions cannot conflict with a land use scheme, is simply not good enough. Rules of interpretation will normally ensure that they are interpreted in a way that denies a conflict. We believe parliament should consider this issue more carefully. Home owners’ rules should be subject to a range of controls, including legislative controls, administrative controls and the like.
 
We believe the procedures that deal with the design of engineering services, should be integrated with the main planning approval process. Often people participating in planning processes only have concerns relating to services. All their concerns are then simply brushed aside by a condition that a services plan must be submitted for approval. The process leading to the approval of services and service contributions are not nearly as transparent as they should be. Section 46 retains the system whereby a municipality and a developer reach an agreement in respect of services. This is an archaic process and comes from a system where municipalities did not have the constitutional status that they have today. Municipalities should have the power to impose the requirements in respect of services after a fair administrative process. As stated, we submit this process should be integrated with the other planning processes.
 
The sequence of planning and environmental approvals,often gives problems in practice. We believe parliament should consider provisions that deal with these uncertainties once and for all. We suggest a provision that provides that the planning approval must be the last of all the approvals unless good reasons can be advanced that a specific approval should follow the planning approval. Land use rights are very similar to real rights. Once they are granted, they create the impression that they are unconditional and enforceable. Liquor licences are probably an exception. They should only be granted after land use approval has been granted.
 
The Land Use Management Act should be aligned with certain disaster management requirements. Land must be identified for land uses that are temporary during states of emergency. This can also be done in section 53.
 
CONCLUSION
 
In summary, the Bill is a welcome addition to the ongoing process of transforming our statute book. As framework legislation we accept that the detail will be fleshed out in the provincial legislation and regulations. But the importance of the subject matter makes it necessary for National Parliament to assert its authority in certain areas, especially in the area of government subsidised housing.
 
The free market will not provide for the poor, government must do so. As a result, Parliament is the only authority that can ensure that the free market carry some of the overall responsibility to the poor. Parliament must also ensure that other tiers of government and the state administration does not neglect its planning duties towards the poor. Again, Parliament is the authority that must ensure that the overall framework is strong and specific in this regard.
 
 
Ms L du Plessis
Adv R Jansen
LHR Land and Housing unit

5 June 2011

Publication date: 
05/05/2011