Provinces curbed on zoning
By Jan Cronje
Cape Town – The Constitutional Court has curbed the power of provinces to overturn municipal land zoning decisions, declaring a loophole which had allowed developers to appeal to the province against municipal decisions to be “unconstitutional and invalid”.
This means municipalities – such as the City of Cape Town – have the final say on how land inside their boundaries is developed.
In delivering its judgment on Friday, the country’s highest court upheld an earlier decision by the Western Cape High Court.
The High Court had ruled last year against the Western Cape government in two cases – including the planned development of the historic 18th-century Lutheran Church complex in the city centre – after it had overridden decisions by the City of Cape Town.
Section 44 of the apartheid-era Land Use Planning Ordinance had given the Western Cape provincial government in the form of the MEC of local government, environmental affairs and development planning, the power to hear appeals against municipalities’ planning decisions and to replace those decisions with its own. It had used this power several times.
But the court found this “usurps the power of local authorities to manage ‘municipal planning’” and declared it unconstitutional.
“Municipalities are responsible for zoning and subdivision decisions, and provinces are not,” said the unanimous judgment written by Justice Edwin Cameron.
Garreth Bloor, the city’s mayoral committee member for economic, environmental and spatial planning, said on Saturday the judgment “serves to reconfirm the sole authority of local government with regard to land-use planning decisions”.
The court said it made sense that municipalities alone decide on land use decisions within their boundaries, as they “face citizens insistent on delivery of governmental services, since they are the frontiers of service delivery”.
Previously, developers who disagreed with the planning decisions of a municipality could appeal against those decisions based on section 44 of ordinance.
Two recent cases in Cape Town resulted in the matter going before the Western Cape High Court and then the Constitutional Court.
In the first, Gordonia Mount Properties sought approval from the City of Cape Town to build a luxury housing estate on the slopes above Gordon’s Bay.
It was reported last year that 80 houses were to be built on a 13-hectare site. The development was, however, opposed by the Gordon’s Bay Residents’ Association.
When the city failed to process the application “timeously”, the developer appealed to the MEC.
“The city had not yet made a decision when the developer approached the province on appeal, alleging that the city was tardy in making a decision,” said Bloor on Saturday.
The province upheld the appeal and granted permission for the development to proceed.
The city approached the Western Cape High Court to declare the province’s powers to overturn its rulings unconstitutional.
In a second case, the Gera Investment Trust sought to redevelop the Lutheran Church complex, which includes the Martin Melck Warehouse, in the Cape Town city centre, which dates from 1764. The city refused permission, after it received objections from environmental umbrella body the Habitat Council.
The Gera trust then approached the province, which upheld its appeal.
The Habitat Council, together with the Evangelical Lutheran Church, then instituted its own proceedings against the province to declare section 44 of the ordinance invalid.
Later, the city’s case and that of the Habitat Council and the Evangelical Lutheran Church were consolidated.
The High Court decided section 44 was unconstitutional as it allowed for every land-use planning decision to be appealed.
The High Court did, however, leave the door open for appeals to provinces in restricted circumstances.
But in its ruling on Friday, the Constitutional Court found there were no circumstances in which a province could overturn municipal planning decisions.
In doing so, the court rejected the province’s argument that in some circumstances it could hear appeals.
The provincial government had argued for “some provincial legislative and executive surveillance over municipal planning decisions”, but the Constitutional Court dismissed the argument, saying: “This bogey must be slain. All municipal planning decisions that encompass zoning and subdivision, no matter how big, lie within the competence of municipalities.”
MEC Anton Bredell said: “I welcome the decision of the Constitutional Court… The declaration of invalidity is to have immediate effect to the exclusion of those appeals which have already been lodged.
“While the Constitutional Court did not confirm the interim measures imposed by the Western Cape High Court Cape Town, to provide for a suspension of invalidity, I am confident that the Western Cape Land Use Planning Act, which is to be assented to shortly, will remedy any vacuum created by the immediate effect of the judgment. The practical consequence of this aspect of the judgment is under consideration and further communication on this issue will be issued shortly.”