Spatial Planning and Land Use Management By-law, 2016
- Published in Eastern Cape Provincial Gazette 3709 on 18 July 2016
- Commenced on 18 July 2016
- [This is the version of this document from 18 July 2016.]
Definitions, applicablity and conflict of laws
1. DefinitionsIn these By-Laws, unless the context indicates otherwise, a word or expression defined in the Act or provincial legislation has the same meaning as in these By-laws and -"Act" means the Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013);"appeal authority" means the executive authority of the municipality or any other body or institution outside of the municipality authorised by that municipality to assume the obligations of an appeal authority for purposes of appeals lodged in terms of the Act;"Authorised official" means an official who may consider and determine applications as contemplated in section 35(2) of the Act;"By-Laws" mean this By-Law and includes the schedules attached hereto or referred to herein."communal land" means land under the jurisdiction of a traditional council determined in terms of section 6 of the Eastern Cape Traditional Leadership and Governance Act, (Act 4 of 2005) and which was at any time vested in -(a)the government of the South African Development Trust established by section 4 of the Development Trust and Land Act, 1936 (Act No. 18 of 1936), or(b)the government of any area for which a legislative assembly was established in terms of the Self-Governing Territories Constitution Act, 1971 (Act No. 21 of 1971);"consent" means a land use right that may be obtained by way of consent from the municipality and is specified as such in the land use scheme;"consolidation" means the joining of two or more pieces of land into a single entity;"Constitution" means the Constitution of the Republic of South Africa, 1996;"Council" means the municipal council of the Municipality;"departure" for the purposes of Part H of Chapter 5, means an application for a temporary deviation from, or permanent amendment of, land use scheme provisions applicable to land;"diagram" means a diagram as defined in the Land Survey Act, 1997 (Act No. 8 of 1997);"deeds registry" means a deeds registry as defined in section 102 of the Deeds Registries Act, 1937 (Act No. 47 of 1937);"file" means the lodgement of a document with the appeal authority of the municipality;"land" means -(a)any erf, agricultural holding or farm portion, and includes any improvements or building on the land and any real right in land, and(b)the area of communal land to which a household holds an informal right recognized in terms of the customary law applicable in the area where the land to which such right is held is situated and which right is held with the consent of, and adversely to, the registered owner of the land;"land development area" means an erf or the land which is delineated in a land development application submitted in terms of this By-law or any other legislation governing the change in land use and "land area" has a similar meaning;"land use scheme" means the land use scheme adopted and approved in terms of Chapter 3 and for the purpose of these By-laws include an existing scheme until such time as the existing scheme is replaced by the adopted and approved land use scheme."Member of the Executive Council" means the Member of the Executive Council responsible for local government in the Province;"municipal area" means the area of jurisdiction of the Buffalo City Metropolitan Municipality, demarcated in terms of the Local Government: Municipal Demarcation Act, 1998 (Act No. 27 of 1998);"Municipal Manager" means the person appointed as the Buffalo City Metropolitan Municipal Manager in terms of appointed in terms of section 54A of the Municipal Systems Act and includes any person acting in that position or to whom authority has been delegated;"Municipal Planning Tribunal" means the Buffalo City Metropolitan Buffalo City Metropolitan Municipal Planning Tribunal established in terms of section 33;"Municipality" means the Buffalo City Metropolitan Municipality or its successor in title as envisaged in section 155(1) of the Constitution, established by Notice No (1998/12/18 19614) in terms of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998) and for the purposes of this By-law includes an employee or official acting in terms of a delegation issued under section 59 of the Municipal Systems Act, section 56 of the Act;"objector" means a person who has lodged an objection with the Municipality to a draft municipal spatial development framework, draft land use scheme or a land development and land use application;"Premier" means the Premier of the Province of Eastern Cape;"previous planning legislation" means any planning legislation that is repealed by the Act or the provincial legislation;"provincial legislation" means legislation contemplated in section 10 of the Act promulgated by the Province;"Province" means the Province of Eastern Cape referred to in section 103 of the Constitution;"Regulations" means the Spatial Planning and Land Use Management Regulations: Land Use Management and General Matters, 2015;"service provider" means a person lawfully appointed by a municipality or other organ of state to carry out, manage or implement any service, work or function on behalf of or by the direction of such municipality or organ of state;"spatial development framework" means the Buffalo City Metropolitan Municipal Spatial Development Framework prepared and adopted in terms of sections 20 and 21 of the Act and Chapter 2 of this By-Law;“subdivision” means the division of a piece of land into two or more portions;“the Act” means the Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013), Spatial Planning and Land Use Management Regulations: Land Use Management and General Matters, 2015 and any subsidiary legislation or other legal instruments issued in terms thereof;“traditional communities” means communities recognised in terms of section 3 of the Eastern Cape Traditional Leadership and Governance Act, 2005 (Act No. 4 of 2005).
2. Application of By-law
3. Conflict of laws
Municipal spatial development framework
4. Municipal spatial development framework
5. Contents of municipal spatial development framework
6. Intention to prepare, amend or review municipal spatial development frameworkA Municipality which intends to prepare, amend or review its municipal spatial development framework -
7. Institutional framework for preparation, amendment or review of municipal spatial development framework
8. Preparation, amendment or review of municipal spatial development framework
9. Public participation
10. Local spatial development framework
11. Preparation, amendment or review of local spatial development framework
12. Effect of local spatial development framework
13. Record of and access to municipal spatial development framework and local spatial development framework
14. Departure from municipal spatial development framework
Land use scheme
15. Applicability of ActSections 24 to 30 of the Act apply to any land use scheme developed, prepared, adopted and amended by the Municipality.
16. Purpose of land use schemeIn addition to the purposes of a land use scheme stipulated in section 25(1) of the Act, the Municipality must determine the use and development of land within the municipal area to which it relates in order to promote -
17. General matters pertaining to land use scheme
18. Development of draft land use schemeThe Municipality which intends to prepare, review or amend its land use scheme -
19. Institutional framework for preparation, review or amendment of land use scheme
20. Council approval for publication of draft land use scheme
21. Public participation
22. Incorporation of relevant comments
23. Preparation of land use schemeThe project committee must, where required and based on the submissions made during public participation, make final amendments to the draft land use scheme, provided that; if such amendments are in the opinion of the Municipality materially different to what was published in terms of section 21(2), the Municipality must follow a further consultation and public participation process in terms of section 21(2) of this By-law, before the land use scheme is adopted by the Council.
24. Submission of land use scheme to Council for approval and adoption
25. Publication of notice of adoption and approval of land use scheme
26. Submission to Member of Executive CouncilAfter the land use scheme is published in terms of section 25 the Municipality must submit the approved land use scheme to the Member of the Executive Council for cognisance.
28. Contents of land use scheme
29. Register of amendments to land use schemeThe Municipality must keep and maintain a land use scheme register in a hard copy and electronic format as approved by the Council and it must contain the following but is not limited to:
30. Replacement and consolidation of amendment of land use scheme
Institutional structure for land use management decisions
Part A – Division of functions
31. Categories of applications for purposes of section 35(3) of Act
32. Designation and functions of Authorised official
Part B – Establishment of Municipal Planning Tribunal for local municipal area
33. Establishment of Municipal Planning Tribunal for local municipal areaSubject to the provisions of Part C and D of this Chapter, the Buffalo City Metropolitan Municipality will establish a Municipal Planning Tribunal in compliance with section 35 of the Act.
34. Composition of Municipal Planning Tribunal for local municipal area
35. Nomination procedure
36. Submission of nomination
37. Initial screening of nomination by Municipality
38. Evaluation panel
39. Appointment of members to Municipal Planning Tribunal by Council
40. Term of office and conditions of service of members of Municipal Planning Tribunal for municipal area
41. Vacancy and increase of number of members of Municipal Planning Tribunal
42. Proceedings of Municipal Planning Tribunal for municipal area
43. Tribunal of record
44. Commencement date of operations of Municipal Planning Tribunal for local municipal area
Part C – Decisions of Municipal Planning Tribunal
45. General criteria for consideration and determination of application by Municipal Planning Tribunal or Authorised official
46. Conditions of approval
Part D – Administrative arrangements and general provisions
47. Administrator for Municipal Planning Tribunal for municipal area
Part A – Types of applications
48. Types of applications
49. Land use and land development
Part B – Subdivision
50. Application for subdivision
51. Lodging of subdivision for approval with the Surveyor-General
52. Compliance with conditions of approval
53. Registration at Deeds Office
54. Extension of validity periods
55. Amendment, phasing or cancellation of subdivision plan
56. Exemption of subdivisions and consolidations
57. Services arising from subdivisionSubsequent to the granting of an application for subdivision in terms of this By-law the owner of any land unit originating from the subdivision must―
Part C – Rezoning of land
58. Application for amendment of a land use scheme by rezoning of land
Part D – Removal, amendment or suspension of a restrictive or obsolete condition, servitude or reservation registered against the title of the land
59. Requirements for amendment, suspension or removal of restrictive conditions or obsolete condition, servitude or reservation registered against the title of the land
60. Endorsements in connection with amendment, suspension or removal of restrictive conditions
Part E – Permanent closure of public place
61. Closure of public places
Part F – Consent use
62. Application for consent use
Part G – Traditional use
63. Application for development on or change to land use purpose of communal land
Part H – Departures from provisions of the Land Use Scheme
64. Application for permanent or temporary Departures
Part I – General Matters
65. Ownership of public places and land required for municipal engineering services and social facilities
66. Restriction of transfer and registration
67. First transfer
68. National and provincial interest
69. Procedure subsequent to lapsing of conditional approval of subdivision
General application procedures
70. Applicability of this ChapterThis Chapter applies to all applications submitted to the Municipality in terms of Chapter 5.
71. Procedures for making application
72. Information required
73. Application fees
74. Grounds for refusing to accept applicationThe Municipality may refuse to accept an application if—
75. Receipt of application and request for further documentsThe Municipality must—
76. Additional information
77. Confirmation of complete application
78. Withdrawal of application
79. Notice of applications in terms of integrated procedures
80. Notification of application
81. Serving of notices
82. Content of noticeWhen notice of an application must be given in terms of section 80 or served in terms of section 81, the notice must contain the following information:
83. Additional methods of public notice
84. Requirements for petitions
85. Requirements for objections, comments or representations
86. Requirements for intervener status.
87. Amendments prior to approval
88. Further public notice
89. Cost of noticeThe applicant is liable for the costs of giving notice of an application.
90. Applicant’s right to reply
91. Written assessment of application
92. Decision-making periodThe Municipal Planning Tribunal and the Authorised official must, if no integrated process in terms of another law is being followed, consider and decide on the application within the period referred to in regulation 16(4) and (5) of the Regulations.
93. Failure to act within time periodIf no decision is made by the Municipal Planning Tribunal within the period required in terms of the Act, it is considered undue delay for purposes of these By-Laws and the applicant or interested person may report the non-performance of the Municipal Planning Tribunal or Authorised official to the municipal manager, who must report it to the municipal council and mayor.
94. Powers to conduct routine inspections
95. Determination of applicationThe Municipality may in respect of any application submitted in terms of this Chapter -
96. Notification of decision
97. Duties of agent of applicant
98. Errors and omissions
99. Withdrawal of approval
100. Procedure to withdraw an approval
101. Exemptions to facilitate expedited proceduresThe Municipality may in writing -
Engineering services and development charges
Part A – Provision and Installation of Engineering Services
102. Responsibility for providing engineering services
103. Installation of engineering services
104. Engineering services agreement
105. Abandonment or lapsing of applicationWhere an application is abandoned by the applicant or has lapsed in terms of any provision in terms of the Act, provincial legislation or conditions or this By-law, the engineering services agreement referred to in section 104 lapses and if the applicant had installed any engineering services before the lapsing of the application in terms of the engineering services agreement, he or she shall have no claim against the Council with regard to the provision and installation of any engineering services of whatsoever nature.
106. Internal and external engineering servicesFor the purpose of this Chapter:
Part B – Development Charges
107. Payment of development charge
108. Offset of development charge
109. Payment of development charge in instalmentsThe Municipality may -
110. Refund of development chargeNo development charge paid to the Municipality in terms of section 107 or any portion thereof shall be refunded to an applicant or owner: Provided that where the owner paid the applicable charge prior to the land use rights coming into operation and the application is abandoned in terms of section 105 the Municipality may, on such terms and conditions as it may determine, authorise the refund of development charges or any portion thereof.
111. General matters relating to contribution charges
Part A – Establishment of Municipal Appeal Tribunal
112. Establishment of Municipal Appeal Tribunal
113. Institutional requirements for establishment of Municipal Appeal Tribunal
114. Composition, term of office and code of conduct of Municipal Appeal Tribunal
115. Disqualification from membership of Municipal Appeal Tribunal
116. Termination of membership of Municipal Appeal Tribunal
Part B – Management of an Appeal Authority
117. Presiding officer of appeal authorityThe presiding officer of the appeal authority is responsible for managing the judicial functions of that appeal authority.
118. Bias and disclosure of interest
119. Registrar of appeal authority
120. Powers and duties of registrar
Part C – Appeal process
121. Commencing of appealAn appellant must commence an appeal by delivering an Appeal on a form approved by the Council to the municipal manager and the parties to the original application within 21 days as contemplated in section 51 of the Act.
122. Content of appeal
Part D – Parties to an appeal
123. Parties to appeal
124. Intervention by interested person
Part E – Jurisdiction of Appeal Authority
125. Jurisdiction of appeal authorityAn appeal authority may consider an appeal on one or more of the following:
126. Oral or written appeal hearing by appeal authorityAn appeal may be heard by an appeal authority by means of a written hearing and if it appears to the appeal authority that the issues for determination of the appeal cannot adequately be determined in the absence of the parties by considering the documents or other material lodged with or provided to it, by means of an oral hearing.
127. Representation before appeal authorityAt the hearing of an appeal before an appeal authority, a party to the proceeding may appear in person or may be represented by another person.
128. Opportunity to make submissions concerning evidenceThe appeal authority must ensure that every party to a proceeding before the appeal authority is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the appeal authority proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Part F – Hearings of Appeal Authority
129. Notification of date, time and place of hearing
130. Hearing date
132. Urgency and condonation
133. Withdrawal of appealAn appellant or any respondent may, at any time before the appeal hearing, withdraw an appeal or opposition to an appeal and must give notice of such withdrawal to the registrar and all other parties to the appeal.
Part G – Oral Hearing Procedure
134. Location of oral hearingAn oral hearing must be held in a location within the area of jurisdiction of the municipality where the land affected by the decision is located, but may not be held in the office of the Municipal Planning Tribunal or the Authorised official authorised in terms of section 35(2) of the Act whose decision is under appeal.
135. Presentation of each party’s case
137. Proceeding in absence of party
138. RecordingHearings of the appeal authority must be recorded in hard copy and electronic format.
139. OathsWitnesses (including parties) are required to give evidence under oath or confirmation.
140. Additional documentation
Part H – Written Hearing Procedure
141. Commencement of written hearingThe written hearing process commences with the issuance of a letter from the appeal authority to the parties establishing a submissions schedule.
142. Presentation of each party’s case in written hearing
143. Adjudication of written submissions
Part I – Decision of Appeal Authority
144. Further information or adviceAfter hearing all parties on the day of the hearing, the appeal authority –
145. Decision of appeal authority
146. Notification of decisionThe registrar must notify the parties of the decision of the appeal authority together with the reasons therefor within seven days after the appeal authority handed down its decision.
147. Directives to municipalityThe appeal authority must, in its decision, give directives to the municipality concerned as to how such a decision must be implemented and which of the provisions of the Act and the Regulations have to be complied with by the municipality as far as implementation of the decision is concerned.
Part J – General
148. ExpenditureExpenditure in connection with the administration and functioning of the appeal authority must be defrayed from moneys appropriated by the applicable municipality.
Compliance and enforcement
149. EnforcementThe Municipality must comply and enforce compliance with—
150. Offences and penalties
151. Service of compliance notice
152. Content of compliance notices
153. Objections to compliance notice
154. Failure to comply with compliance noticeIf a person fails to comply with a compliance notice the Municipality may—
155. Urgent matters
156. Subsequent application for authorisation of activity
157. Power of entry for enforcement purposes
158. Power and functions of authorised employee
159. Warrant of entry for enforcement purposes
160. Regard to decency and orderThe entry of land, a building or structure under this Chapter must be conducted with strict regard to decency and order, which must include regard to a person’s right to respect for and protection of his or her dignity.
161. Court orderWhether or not a Municipality has instituted proceedings against a person for an offence contemplated in section 150, the Municipality may apply to the High Court for an order compelling that person to—
162. Transitional provisions
163. Determination of zoning
164. DelegationsAny power conferred in this By-law on the Municipality, Council or municipal manager may be delegated by the Municipality, Council and the municipal manager subject to section 56 of the Act and section 59 of the Local Government: Municipal Systems Act.
165. Repeal of by-lawsAny existing conflicting land use management or related by-law are hereby repealed.
166. Fees payableAny fee payable to the Municipality in terms of this By-Law is determined annually in terms of section 24(2) of the Municipal Finance Management Act, 2003 read with sections 74 and 75A of the Municipal Systems Act and forms part of the By-Law to constitute the Tariff Structure of the Municipality.
167. Policy, procedure, determination, standard, requirement and guidelines
168. Short title and commencement
History of this document
Cited documents 7
- Constitution of the Republic of South Africa, 1996
- Engineering Profession Act, 2000
- Local Government: Municipal Finance Management Act, 2003
- Local Government: Municipal Structures Act, 1998
- Mental Health Care Act, 2002
- Mineral and Petroleum Resources Development Act, 2002
- Promotion of Administrative Justice Act, 2000