CONSIDERATION BY A CONSIDERATION BY A MUNICIPALITY OF APPROVALS MUNICIPALITY OF APPROVALS BY OTHER ORGANS OF STATEBY OTHER ORGANS OF STATE

COMPEL TO CONSIDER OTHER COMPEL TO CONSIDER OTHER APPROVALS?APPROVALS?

• Question: Is a municipality compelled to consider approvals from other organs of state before it may consider an application in terms of the PDA?– Sometimes yes

• Expressed• Implied

– Sometimes no (it has a discretion)• Must consider the wisdom of not considering the

approval of another organ of state

CAN COMPEL APPLICANT TO CAN COMPEL APPLICANT TO PROVIDE APPROVALS?PROVIDE APPROVALS?

• Question: Can a municipality compel an applicant to provide it with the approval from another organ of state so that it can consider it when it considers an application in terms of the PDA?– Yes (item 3(1) of Schedule 1 of the PDA)– Must consider the wisdom of requiring the approval of

another organ of state

WHAT DOES AN APPROVAL WHAT DOES AN APPROVAL REPRESENT?REPRESENT?

• Decision of an organ of state with the mandate to consider a particular matter

• Findings of that organ of state• Requirements of that organ of state, if that

application was approved subject to conditions• Expert advice

– Environmental scientist, architect, archeologist, agriculturist

• Veto right of an organ of state

PRESSURE TO IGNORE PRESSURE TO IGNORE APPROVALSAPPROVALS

• It takes too long to wait for approvals• Parallel process perceived to me more

Disadvantages– Cannot be informed by decisions– Cannot align with decision– Incomplete information to make a decision– Second application may be required to achieve

alignment– Bias in favour of approval

• Leverage against unfavourable decision• Avoiding an unfavourable PDA decision– Refusal– Granted less rights than applied for– Additional obligations• Sincere belief that matters are unrelated, does

not impact on PDA application• Random approvals versus natural order of

approvals– PDA approval is independent versus– PDA approval is informed by other approvals and

informs other approvals

• Examples of natural order of approvals: building plan approval, survey diagrams, deeds

• Finances of consultant– Higher fees must be charged to prepare application– Higher fees do not cover extra time to prepare

application– Slow down cash flow because of waiting period– May not get paid if approval of another organ of state

cannot be secured

• Political pressure: Official does not want to be labeled as a person who is:– Against development– Conservative, old school– Obstructing economic development– Undermining national, provincial and local initiatives

and promises– Preventing job creation

• Wording open for interpretation that municipality shares mandate with other organs of state: Applicant has to convince both the organ of state and the municipality (for example that environmental impact is acceptable)

PDA AND ENVIRONMENTAL PDA AND ENVIRONMENTAL IMPACT APPROVALIMPACT APPROVAL

• Municipal spatial development framework requires a strategic environmental assessment in terms of regulation 2 of the Local Government: Municipal Planning and Performance Management Regulations, 2001 (Government Notice No. 796 of 2001)

• Scheme must be aligned with IDP, including the spatial development framework, in terms of section 6 of the PDA

• Municipality is compelled to require environmental approval prior to planning approval for change of zoning of land zoned for open space, conservation or similar to another zoning (activity 24 of R 544 of 2010)

• Rest of activities that may have a detrimental effect on the environment:– Construction– Transformation– Conversion– Clearance– Expansion

• Wisdom of not requiring outcome of the environmental impact assessment– Action by municipality that may significantly affect the

environment: Social, economic an environmental impact must be assessed and inform decision (section 2(1)(i) NEMA)

– PDA requires consideration of impact of development on the environment

– Activity is listed as an activity that may have a detrimental effect on the environment

– MEC or Minister has the mandate to agree to impact on the environment

– Municipality does not have the mandate to agree to impact on the environment

– Municipality has to rely on the assessment of the impact of a development on the environment by the applicant• Few municipalities have the internal expertise to

establish the impact of a development on the environment

• Few municipalities have the financial resources or time to outsource an independent assessment

– Municipality and MEC or Minister responsible for the environment may come to different conclusions

– Important planning considerations and requirements may be missed

– Further PDA applications may be required to remove irreconcilable conflicts

– Subsequent maintenance: may need to revert to the original or an alternative land use

– Best evidence rule:• Motivation of applicant• Decision by MEC or Minister responsible for the

environment• Public opnion• Municipality’s own expertise and experience

– Exceptions: Industrial areas where requirements of tenants are unknown

PDA AND AGRICULTURAL PDA AND AGRICULTURAL IMPACT APPROVALIMPACT APPROVAL

• Municipality is compelled to require approval from the Department of Agriculture prior to including agricultural land into a scheme in terms of section 3(g) of the Subdivision of Agricultural Land Act

• Other approvals required in terms of the Act:– Subdivision of agricultural land– Exclusion of agricultural land (no longer used for

agricultural purposes)– Approval for land tenure arrangements

• Wisdom of not requiring outcome of decision by Minister– PDA requires consideration of impact of development

on agricultural resources– May not subdivide or develop agricultural land without

consent of the Minister• Ensures viable agricultural units• Protect surrounding agricultural resources• Exclude land from agricultural resources if not

needed for food security and land use not threatening surrounding agricultural land

– Minister has the mandate to agree to impact on agricultural land

– Municipality does not have the mandate to agree to the impact on agriculture

– Municipality has to rely on the assessment of the impact of a development on agriculture by the applicant

• Few municipalities have the internal expertise to establish the impact of a development on agriculture

• Few municipalities have the financial resources or time to outsource an independent assessment

– Municipality and Minister responsible for agriculture may come to different conclusions

– Planning approval may be premature and useless– Time and money wasted by applicant and municipality

dealing with the application in terms of the PDA– Land use may need to revert back to agriculture– Important planning considerations and requirements

may be missed– Further PDA applications may be required to remove

irreconcilable conflicts– Best evidence rule:

• Motivation of applicant• Decision by Minister responsible for agriculture• Public opinion• Municipality's own expertise and experience

IMPLICATIONS OF IGNORING IMPLICATIONS OF IGNORING RELEVANT CONSIDERATIONSRELEVANT CONSIDERATIONS

• Decision can be reviewed if a municipality ignored a relevant consideration in terms of section 6(2)(e)(iii) of the Promotion of Administrative Justice Act, 2000

• Right of review different from right of appeal– Appeal = Tribunal, Review = High Court– Appeal = 28 day window of opportunity to appeal,

Review = Reasonable period given the circumstances: Oudekraal case: planning decision set aside 44 years after it was made

– Oudekraal development approval set aside because of subsequent discovery of historic Muslim burial place on Table Mountain

– PDA: Cultural heritage must be considered– Approval for development in close proximity of burial

places from Amafa KwaZulu-Natal Heritage Council in terms of the KwaZulu-Natal Heritage Act, 2008 (Act No. 4 of 2008)

ABDICATING RESPONSIBILITYABDICATING RESPONSIBILITY• Municipality abdicates responsibility when

approving development:– Without considering any relevant factors that are

administered by other organs of state– “subject to” other approvals or “does not absolve the

applicant from the need to obtain other approvals”– “to the satisfaction of the municipality”

• Development approval:– Should be specific– Should integrate the requirements of other organs of

state

GERT ROOS14th Floor, North Tower

Natalia Building 330 Langalibalele StreetPietermaritzburg, 3200

Tel: (033) 33 395 2656Fax: (033) 33 3949 714

E-mail: gert.roos@kzncogta.gov.za

Website: www.kzncogta.gov.za