The Spatial Planning and Land Use Management Act 16 of 2013 ("SPLUMA") was gazetted on 5 August 2013 and will commence on a date to be fixed by the President by proclamation in the Government Gazette.  The regulations under the Act which will contain much of the important procedural aspects of the legislation, are still to be published for comment.

As a result of the City of Johannesburg challenging the Development Facilitation Act 67 of 1995 ("the DFA") in a dispute with the Gauteng Development Tribunal regarding whether the power to rezone and establish townships lay with the municipal or provincial sphere of government, in June 2010, the Constitutional Court held these powers were municipal ones and ruled chapters 5 and 6 of the DFA invalid.  The order of invalidity was for two years expiring in June 2012.  In May 2011, a planning bill was gazetted, which after extensive consultation process resulted in the adoption of SPLUMA.

SPLUMA falls within the jurisdiction of the Department of Rural Development and Land Reform and is intended to provide a national regulatory framework for spatial planning, land use management and land development.  SPLUMA is also proposed as a framework for provincial planning legislation and most of the Provinces are drafting new planning legislation to align with SPLUMA.  In KwaZulu-Natal, extensive changes to the KZN Planning and Development Act 2008 ("PDA") are being considered for a variety of reasons, one being an alignment with SPLUMA.

The urgency for the implementation of SPLUMA and new and/or amended Provincial Planning Legislation has been highlighted by a recent important planning judgement of the Constitutional Court.  On 4 April 2014, the Constitutional Court handed down a judgement declaring section 44 of the Western Cape Land Use Planning Ordinance ("LUPO"), unconstitutional and invalid.  Section 44 gave the Western Cape Provincial Government the power to hear appeals against municipalities planning decisions and to replace those decisions with its own.  It was held that the relevant section was manifestly inconsistent with the Constitution which reserves municipalities' authority over municipal planning.  In terms of the Constitution's division of governmental powers, municipalities are responsible for the planning decisions with which LUPO deals.   Provinces are not.

Similar situations occur in other Provinces, including in KZN where the PDA has its own Provincial Tribunal hearing planning appeals in respect of municipal planning decisions.

The sooner SPLUMA and the relevant provincial planning legislation is implemented, the sooner the inconsistencies and concerns regarding the constitutionality of current planning legislation will cease.

David Warmback, Partner

Contact: 031 575 7409 or warmback@wylie.co.za