What are my obligations as a property owner in terms of planning law

By: Marinda le Roux Planning Professional  09-30-2012
Keywords: Property Development, Building Plans, Housing

What are myobligations as a property owner in terms of planning law

Allland and properties in the Local Municipality should be used only according totheir permitted land-use or zoning rights. If property owners and developers wantto change permitted land uses, zoning rights and their accompanyingrestrictions, an application should be lodged with the Local Municipality. Section84 of the Municipal Structures Act (1998) regulates the functions and powers ofDistricts and Local municipalities, which include YOUR Local Municipality. Typicalland-use or zoning categories include:

•               Residential zones (e.g. singleresidential dwellings, group housing schemes or blocks of flats)

•               Open space zones (e.g. publicopen spaces, parks, sports fields, cemeteries or private open spaces)

•               Business commercial zones (e.g.shops or office blocks)

•               Community use facility zones(e.g. schools, clinics or places of worship)

•               Industrial zones (e.g. factories,motor repair garages or warehouses)

•               Utility zones (e.g. electricitysubstations or water treatment plants)

•               Transport zones (e.g. publicroads, railway lines and public transport interchanges)

 

In addition tothe spatial development frameworks and structure plans drawn up by spatialplanning officials, zoning schemes and related regulations and policies areprimary tools for land-use and development management. Spatial developmentframeworks and structure plans stipulate where development may or may nothappen in future and provide an overview of land use in the Local Municipality. Other pieces of legislation thatregulate development include the National Building Regulations and BuildingStandards Act (Act 103 of 1977), the Public Health Bylaws and various otherMunicipal Bylaws, the National Environmental Management Act,1998 (Act No. 107of 1998) and the National Heritage Resources Act 25 of 1999. All decisions ondevelopment applications must be consistent with these controls, as must theguidelines and requirements and other applicable planning laws, as well as withoperational policies and requirements.

 Ifyou do not know the land use or development rights relating to your property,or know whether a specific activity or proposal will be permitted, contact theplanning office of the Local Municipality.

 How do I make aplanning application?

Ifplanning approval is required for the activity or proposed development you wishto undertake, contact the planning office for application forms and a list ofthe supporting documentation that is required for submission. You may wish toappoint a town- and regional planner or consultant to assist in preparing theapplication. Once you have submitted the application and paid the fees, anofficial will check the application to see if it is complete. An applicationnumber will be issued for your reference.

 

How will myapplication be processed in terms of the relevant planning law?

Oncean application has been accepted as valid and complete, it will be advertisedto any potentially affected parties and circulated to relevant internal andother government departments for comments. Should any objections be received,you will be given the opportunity to respond or amend your proposal to addressthese. After this, a final assessment of the application (which may includewriting a report to the provincial government) will be made and a decision willbe taken. You will be advised of the outcome in writing.

 How do I removerestrictive title deed conditions?

Inaddition to the zoning regulations, development is also controlled byconditions of title. These conditions are set out in the Title Deed of eachproperty, and can prevent or prohibit a property from being used for a specificpurpose or from being developed in a certain way. Details of restrictions setout in the Title Deed can be established by obtaining a copy of the Title Deedfrom the Deeds Office, or from the Bank or Financial Institution that holds themortgage bond. You may apply to have the relevant restriction amended,suspended or even removed. The final decision is made by the provincialgovernment. Alternatively, you may also apply to a court to have the relevantrestriction expunged from the title deed. It is advisable to appoint a town-and regional planner to assist in preparing the application.

 

How do I acquirenew or additional land use or development rights?

Youmay apply to acquire new or additional land use or development rights throughrezoning (changing existing rights), consent use (additional rights) or adeparture from the zoning scheme (additional or new rights).

 When do I need asite development plan?

TheLocal Municipality may require a developer to submit a detailed sitedevelopment plan if detailed site layout and design specifics of a proposeddevelopment are important for its consideration. This is often made a conditionof approval in a subdivision or rezoning application, or it may be required interms of a zoning scheme. A site development plan usually comprises a set ofplans or drawings and covers aspects such as building positioning, vehicularaccess and parking arrangements, architectural details, landscaping and engineeringservices, for which input from specialist consultants is advisable. Onceapproved, the details and the standards in the plan become a legal obligation,with which the developer must comply when carrying out the proposeddevelopment.

 How do I applyfor a zoning scheme departure?

Thereare numerous different kinds of applications, many of which are technically andlegally complex. It is therefore advisable to consult a professional townplanning consultant or other professional such as a land surveyor or a lawyer.Pre-application consultation of a planning official will inform you about thelikelihood of your request for a departure being granted. The consultant can thencomplete the relevant application forms and supporting documentation on yourbehalf. Building plans for the building or development may only be submittedonce the departure application has been approved.

Somedevelopment proposals may not require a rezoning or removal of restrictiveconditions but nevertheless need the Local Municipality’s permission. These areknown as Consent Applications and are usually less complex, but need to belegally and technically correct.

 What are myEnvironmental rights?

Accordingto Section 24 of the Constitution everyone has the right to an environment thatis not harmful to their health or well-being; and to have the environmentprotected, for the benefit of present and future generations, throughreasonable legislative and other measures that prevent pollution and ecologicaldegradation; promote conservation; and secure ecologically sustainabledevelopment and use of natural resources while promoting justifiable economicand social development.

Interms of the National Environmental Management Act,1998, you have the followingRights —

1.       You have the right to beconsulted on impact assessments

2.       You have the right toparticipate in dispute resolution

3.       You have the right to report anenvironmental risk

4.       You have the right toinformation and for decisions to be taken in an open and transparent manner

5.       You have the right to access toinformation held by the State and organs of state which relates to theimplementation of the Act and any other law affecting the environment, thestate of the environment and actual and future threats to the environment.

6.       You have the right to demandthat the environment is taken care of

7.       You have the right to legalstanding to enforce environmental laws


When is anEnvironmental Impact Assessment required?

Proposalsto develop agricultural land portions or small holdings require more thanchanges in zoning and removal of restrictive conditions (for instance if aBasic Assessment or Environmental Impact Assessment is required). During an “environmentalimpact assessment” a systematic process is followed by a professional to identify,assess and report on environmental impacts associated with an activity ordevelopment proposal.  Suchinvestigations are required for activities listed in the National EnvironmentalManagement Act,1998 (Act No. 107 of 1998). E.g. the construction of burrow pitsis a listed activity and would require environmental authorisation even if theburrow pits are associated with a mining facility.

Proposalsto develop vacant land or farms outside of the town boundaries are known as townshipdevelopments, which would require professional expertise from a Town andRegional Planner and Environmental Assessment Practitioner.  Amongst others, the following listedactivities would require Environmental Authorisation:

·        thesubdivision of a portion of land 9 hectares or larger into portions of 5hectares or less

·        Anydevelopment where the total area of the developed area is, or is intended tobe, 20 hectares or more

·        Theconstruction of filling stations or any other facility for the undergroundstorage of a dangerous good, including petrol, diesel, liquid petroleum gas orparaffin.

·        Theconstruction of resorts, lodges, hotels or other tourism and hospitalityfacilities in a protected area contemplated in the National EnvironmentalManagement Protected Areas Act, 2003 (Act No. 57 of 2003)

·        anypurpose where lawns, playing fields or sports tracks covering an area of morethan three hectares will be established

·        Theconstruction of facilities or infrastructure for the slaughter of animals witha product throughput of 10000 kilograms or more per year

·        theconcentration of animals for the purpose of commercial production in densitiesthat exceed 20 square metres per head of cattle and more than 500 head ofcattle per facility per year

·        theconcentration of animals for the purpose of commercial production in densitiesthat exceed three square metres per head of poultry and more than 250 poultryper facility at any time, excluding chicks younger than 20 days.

·        Thetransformation of undeveloped, vacant or derelict land to establish infilldevelopment covering an area of 5 hectares or more, but less than 20 hectares;or residential, mixed, retail, commercial, industrial or institutional usewhere such development (not infill) where the total area to be transformed isbigger than 1 hectare.

·        Developmentin an area with a heritage resource (these include national and provincialheritage sites, protected areas, heritage areas, and archaeological andpaleontological sites) must obtain the necessary development approval. If thereis a possibility that the heritage resources will be affected adversely, anenvironmental impact assessment must be conducted.

 

Anapplicant could apply to the Competent Authority and request to be exemptedfrom any provision of the Environmental Impact Assessment regulations.

 How do I registera complaint if property owners or occupiers are contravening, or developingwithout environmental authorisation?

Shouldany necessary legal action be taken (e.g. prosecution), once you haveestablished the facts around the alleged contravention or unauthorizeddevelopment, submit your complaint in writing to your nearest planning office.Include your name, address and contact details, the name and address of thealleged offender, and a description of the relevant contravention. Yourallegation will then be investigated by a planning inspector or other relevantofficial from the Municipality. Any necessary legal action (e.g. prosecution)will be taken, and you will be informed of the outcome.

 How long does ittake for a land use application to be processed?

Dependingon the type of application, obtaining a decision may take as long as 12 months.After the application is submitted it is circulated to relevant departments andagencies for comment. The application is then processed by a planning officerwho makes a recommendation as to whether the application should be approved ornot. If the official's recommendation opposes the application and whereinterested parties have lodged objections, the applicant, objectors and officialswill be given the opportunity to argue the case. If any party is dissatisfiedwith the decision, they may appeal to the Provincial authority thereby delayingthe process further.


Keywords: Building Plans, environmental management plan, Environmental Rights, Housing, Property Development, Town Planners, Town planning,

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