MAKING A PLAN The Development Applications Branch

Presenter: Richard Holgate

DEVELOPMENT APPLICATIONS BRANCH

• 5 Regions • Regional Co-ordinator • Team Leader • Assessment Officer • Development Applications Assistant • 12 000 – 14 000 Applications a year

The Hierarchy of Legislation.

“the principal legislation governing urban

development in South Africa is the National Building Regulations and Building Standards Act No. 103 of 1977.”

In judgement Ruck v Makana Municipality and others. Judge AJ MAGEZA

The Purpose of the Act;

To provide for the

promotion of uniformity in the law relating to;

o the erection of buildings in

the areas of jurisdiction of local authorities;

o for the prescribing of building standards and for

o matters connected therewith.’

The Enabling Legislation:

Act 103/1977 : The National Building Regulations and Building Standards Act

National Building Regulations South African National Standards Other Applicable Laws

Section 4 of Act 103/1977. • Approval by Local Authorities of Applications in Respect of Erection of Buildings (1) No person shall without the prior approval in writing of the local authority in question, erect any building in respect of which plans and specifications are to

. be drawn and submitted in terms of this Act. [Lester case – Eastern Cape]

• Appointed by the local authority to exercise and perform the power, duties or activities granted or assigned a BCO under the Act.

Section 6: Functions of a BCO • Make recommendations to LA • Ensure LA instructions are carried out • Inspect buildings for which approval was granted • Report to LA regarding non-compliance

Section 5: Appointment of a BCO by the local authority

The eThekwini Formula

How the process works.

A pre-requisite Step 1

First obtain “planning clearance” Why: * separate legislation * restrictive conditions * associated processes + timeframes.

STEP 2 The Building Application

Submit ITO sec 4 of Act 103/1977. A] internal circulation (only Fire Plan is mandatory) B] recommendation -Assessment Officer (BCO) C] approval/refusal –Team Leader (LA) TIME FRAMES: <500 sq m 30 days >500 m sq 60 days

Circulation and

Assessment Process

Application submitted

Admin. and Routing

Distribute to Int. Depts

(Fire, WWM, Health…)

5 days

Int Depts consider and

comment

Application returned to Assessment

Assessment Officer assesses

(Act & applicable laws)

Application approved or refused by

Team Leader

Applicant notified to

collect

1 day

5 days

26 DAY CYCLE

• Assessment Officer (BCO delegation) - ensures acceptability of appointed registered

persons - considers application ITO NBR and applicable

standards (compliance) - considers all associated rational designs and

reports (incl those rec’d from other depts.) + no dept. response = refused Makes a recommendation to the Local Authority (Sec. 6)

The Recommendation

The National Building Regulations. • Effected in terms of Sect 17 of the Act. • Published in Government Gazette. • These are mandatory requirements that must be

met. • Wide ranging from requirements for plan

submission to compliance requirements as regards the spread and containment of fire to lighting and ventilation of buildings.

• SANS 10400 provides acceptable solutions (deemed to satisfy)

•Registered competent person…

•Equal or better…

RATIONAL DESIGN OPTION

The Decision: (By Team Leader on behalf of the Local Authority)

• Section 7(1)(a)

Satisfied that it complies with the NBR and any other applicable law.

The Act obliges the local authority to refuse an application which does

not satisfy these requirements. REMEMBER THAT: IT IS THE RESPONSIBILITY OF THE APPLICANT, NOT THE LOCAL AUTHORITY, TO ACHIEVE

COMPLIANCE. THE MANDATE OF THE LOCAL AUTHORITY IS NOT “TO APPROVE” APPLICATIONS BUT RATHER

TO ASSESS COMPLIANCE

Only one of two options: APPROVE or REFUSE (with reasons)

THE DECISION

End of Part 1

Section 7 (1)(a) of the Act prescribes that in order for a Local Authority (LA) to approve an application it must ;

• be satisfied that the application complies with the requirements of this Act and

any other applicable law. • Section 7(1)(b)(ii) states that where a proposal “will probably or in fact”,

– disfigure an area in which it is to be erected, – be objectionable, – derogate from the value of adjoining or neighbouring properties, – or be dangerous to life or property

the local authority shall refuse to grant its approval.

Section 7 of the Act 103 - Approvals

.

Why does application and interpretation change? • Amendments to existing regulations • The introduction of new regulations and codes • Revision and introduction of other legislations • Innovative building methodology • Legal precedent • Review Board (http://www.buildingcontrol.co.za/)

The Application Of The Law.

• Recent changes to the NBR & introduction of revised & new standards – (SABS0400 to SANS 10400 and others)

• Introduction of new Regulations (example Part X: Energy Usage in Buildings)

– Regulation XA2 now requires that: – “At least 50% (volume fraction) of the annual average hot

water heating requirement shall be provided by means other than electrical resistance heating …”

"we did not inherit our environment from our ancestors we are borrowing it from

our children” Native American proverb.

Changes and amendments to the NBRs

Recent judgments have relevance to the application of the NBRs and Act 103;

• The Paola v Jeeva and others,

– this case was ground breaking in the way that LA applied section 7(1)(b)(ii) with regard to the impact of development on adjacent properties and amenity

Clarke v Faraday similar effect compelling the LA to consider Section 7 as never before.

Changes as a result of Legal Precedent

Walele v City of Cape Town and others, • Issues relating to Section 7(1)(b)(ii) but emphasizes that a LA;

– must apply its mind and – maintain written records of decision when considering

building applications and – must have sufficient information on record in order to

make an informed decision. This includes sufficient information to ensure compliance with

other applicable laws. (This case proceeded to Constitutional Court)

Changes as a result of Legal Precedent continued

• Submission anew [sec 7(5)] • Fees, original decision date, submission

check

• Sec 7(6) not granted other than under exceptional circumstances.

Appeals Sec 9 of Act 103/1977 (1) Any person who- (a) feels aggrieved by the refusal of a local authority to grant approval referred to in section 7 in respect of the erection of a building; (b) feels aggrieved by any notice of prohibition referred to in section 10; or (c) disputes the interpretation or application by a local authority

of any national building regulation or any other building regulation or by-law,

may, within the period, in the manner and upon payment of

the fees prescribed by regulation, appeal to a review board.

• Sec 62 of MSA (3) The appeal authority must consider the appeal, and confirm, vary or revoke the decision, but no such variation or revocation of a

decision may detract from any rights that may have accrued as a result of the decision.

Internal Appeals

CHALLENGES • Build First Seek Forgiveness Later. “No person shall, without the prior approval, in writing of the local authority in question, erect any

building in respect of which plans and specifications are to be drawn and submitted in terms of this Act”.

The wording is clear. It is a prohibition of construction of a building without approved building plans. It could never have been the intention of the Legislature, in my view, to allow buildings to be erected and to only seek approval of the building plans subsequent thereto. Such a situation would defeat the very foundation and purpose of the Act and would result in lawlessness and chaos. (TRACTOR OUTDOOR EASTERN CAPE (PTY) v THE NELSON MANDELA BAY METROPOLITAN MUNICIPALITY)

(NDLAMBE MUNICIPALITY v LESTER) • The Energy Crisis.

• Revised Regulations.

• Registered Professionals.

• Internal delays.

• Planning vs NBR

QUESTIONS

THANK YOU Nov 2013