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[2014] ZACC 9
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Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council and Others; Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v City of Cape Town and Others (117/13) [2014] ZACC 9; 2014 (5) BCLR 591 (CC); 2014 (4) SA 437 (CC) (4 April 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 117/13
In
the matter between:
MINISTER
OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT
PLANNING, WESTERN
CAPE
..................................................
Applicant
and
THE
HABITAT
COUNCIL
...............................................................................
First
Respondent
EVANGELICAL
LUTHERAN CHURCH,
STRAND
STREET
........................................................................................
Second
Respondent
CITY
OF CAPE
TOWN
..................................................................................
Third
Respondent
TRUSTEES
FOR THE TIME BEING
OF
THE GERA INVESTMENT TRUST
.................................
Fourth
to Seventh Respondents
and
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
...............................................................
Amicus
Curiae
And
in the matter between:
MINISTER
OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT
PLANNING, WESTERN CAPE
..............................................
Applicant
and
CITY
OF CAPE
TOWN
................................................................................
First
Respondent
GORDONIA
MOUNT PROPERTIES (PTY) LTD
................................
Second
Respondent
GORDON’S
BAY RATEPAYERS ASSOCIATION
.................................
Third Respondent
and
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
.....................................................
Amicus Curiae
Neutral
citation:
Minister of Local
Government, Environmental Affairs and Development Planning, Western
Cape v The Habitat Council and Others; Minister
of Local Government,
Environmental Affairs and Development Planning, Western Cape v City
of Cape Town and Others
[2014] ZACC 9
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der
Westhuizen
J and Zondo J
Heard
on:
10 February 2014
Decided
on:
4 April 2014
Summary:
Land Use Planning Ordinance 15 of 1985
– constitutionality of section 44 – provision is
unconstitutional
Local
government competences – provincial government competences –
section 155 of the Constitution – all zoning
and subdivision
decisions, no matter how big, lie within the competence of
municipalities
ORDER
On
application for confirmation of an order of constitutional invalidity
granted by the Western Cape High Court, Cape Town (Davis
J):
1.
Paragraph 1 of the order of the Western Cape High Court, Cape Town,
declaring section 44 of the Land Use Planning Ordinance 15
of 1985
unconstitutional and invalid, is confirmed.
2.
The declaration of invalidity is not retrospective and does not apply
to appeals pending in terms of section 44.
3.
Paragraphs 2 to 4 of the High Court’s order are not confirmed.
JUDGMENT
CAMERON
J (Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Jafta J,
Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen
J and Zondo J
concurring):
Introduction
[1]
This
is an application for confirmation of an order of the Western Cape
High Court, Cape Town (High Court) declaring section 44
of the Land
Use Planning Ordinance
[1]
(LUPO)
unconstitutional and invalid. The section gives the Western Cape
provincial government (Province) the power to decide appeals
against
municipalities’ planning decisions and to replace them with its
own. The question is whether direct provincial intervention
in
particular municipal land-use decisions is compatible with the
Constitution’s allocation of functions between local and
provincial government. This Court recently raised but did not decide
this issue in
Lagoonbay
.
[2]
It must now be decided.
Factual
background
[2]
The
application arises from two planning decisions. In the first,
Gordonia Mount Properties (Pty) Ltd sought approval from the local
municipality, the City of Cape Town (City), to develop a residential
estate on the slopes above Gordon’s Bay. When the City
failed
to process its application timeously, the developer appealed to the
Minister of Local Government, Environmental Affairs
and Development
Planning of the Western Cape (Provincial Minister) in terms of
section 44(1)(d) of LUPO.
[3]
The
Provincial Minister upheld the appeal, granting planning approval and
permitting the property’s rezoning and subdivision
in terms of
sections 16 and 25 of LUPO.
[4]
[3]
In
the second, the Gera Investment Trust sought to redevelop a building
of historical significance in the Cape Town city centre.
The City’s
special consent was required in terms of the applicable zoning scheme
regulations, because the property fell into
an “urban
conservation area”.
[5]
The City considered the proposed development and, faced with
objections from the Habitat Council,
[6]
refused to grant special consent. The Trust appealed in terms of
section 44 to the Provincial Minister, who upheld the appeal.
However, recognising that the City had a role to play in guiding the
development, he gave it an opportunity to impose conditions
on his
approval. The City was slow in finalising the conditions, causing the
Provincial Minister to impose conditions of his own
in terms of
section 42(1) of LUPO.
[7]
In
the High Court
[4]
The
City, unhappy with the Provincial Minister’s intervention in
the Gordonia matter, instituted proceedings in the High Court
against
the Province for an order declaring section 44 of LUPO
unconstitutional and invalid. And the Habitat Council,
aggrieved
by the Provincial Minister’s decision to permit the
redevelopment of the historical site, instituted proceedings in the
same
Court seeking the same relief. The two matters were
consolidated.
[8]
Invalidating
section 44 of LUPO would mean that the Provincial Minister’s
decisions in both matters would fall to be set
aside.
[5]
The
Provincial Minister conceded that section 44 of LUPO is
unconstitutional. The High Court concluded that the concession was
correctly made, finding that the section is
“
manifestly
inconsistent with the Constitution to the extent that it not only
permits appeals to the province against every decision
made by a
municipality in terms of LUPO, but also because it allows [the
Provincial Minister] to replace every decision with his
own
decision”. This, it said, was clearly at odds with the
Constitution’s conferral upon municipalities of authority
over
“municipal planning”.
[9]
The High Court accordingly granted an order declaring section 44 of
LUPO unconstitutional and invalid.
[6]
But
it did not follow, in the High Court’s view, that the
Provincial Minister has no constitutionally permissible appellate
powers over municipal planning decisions. This was for two reasons.
The first is the potential for overlap between municipalities’
planning competence and three pertinent provincial competences,
namely “regional planning and development”, “urban
and rural development” and “provincial planning”.
[10]
The second is the “oversight” provinces are
constitutionally enjoined to exercise over municipalities.
[11]
The High Court reasoned that appeals to the Province are legitimate
to the extent that they engage the Province’s overlapping
competences or are necessary for the Province to exercise its powers
of oversight. In the former case, the Province may legitimately
substitute a municipality’s decision with its own. In the
latter, it may not. All that it may do is set the decision aside,
giving reasons, and invite the municipality to reconsider the
application. The High Court crafted its interim order in accordance
with this approach.
[7]
The
High Court suspended its declaration of invalidity for 24 months to
give the Province an opportunity to enact a new regime.
In the
interim, it adopted an extensive reading in. This keeps the
Provincial Minister’s appellate powers alive to
the extent that
they are, in the High Court’s view, constitutionally
permissible.
[12]
To
avoid the chaos that would otherwise result, it limited the
retrospective effect of its order so that it would apply solely
to
appeals not yet finally determined. In their case, the
provisions of LUPO as read in under the Court’s order
applied.
[13]
In all
these respects, the High Court was confirming the draft order to
which the parties had agreed.
This
Court
[8]
Before this Court, the Provincial Minister
urged us to confirm the High Court’s order in its entirety.
None of the respondents
appeared. However, the City of Johannesburg
Metropolitan Municipality (City of Johannesburg) was admitted as a
friend of the court
(amicus curiae). Although LUPO, a Cape Ordinance,
does not apply to the City of Johannesburg, it has an interest in
this Court’s
interpretation of the Constitution’s
division of functional competences, since this will apply throughout
the country.
[9]
The
City of Johannesburg’s stance was that provinces should not be
allowed to intervene in functions that the Constitution
reserves for
municipalities. This would be in direct conflict with this Court’s
jurisprudence. It contended that neither
the provinces’
planning competences nor their powers of oversight entitle them to
intervene at the level of individual municipal
decisions. The
provinces’ powers are exercised at a different level, it
argued, through separate statutory mechanisms. These
include the
adoption of spatial development frameworks, which guide
municipalities in their decision-making, and consultation during
national government’s establishment of minimum standards.
[14]
There is therefore no justification for a provincial power to
overturn municipalities’ land-use decisions.
Issues
[10]
The questions are these:
(a)
Are the provincial appellate powers in LUPO
constitutionally invalid?
(b)
If so, what is the appropriate remedy?
Constitutional
validity of section 44 of LUPO
[11]
As he had done in the High Court, the
Provincial Minister conceded before us that section 44 of LUPO is
unconstitutional. That concession
was correctly made. As
Moseneke J stated in
Robertson
—
“
[t]he
Constitution has moved away from a hierarchical division of
governmental power and has ushered in a new vision of government
in
which the sphere of local government is interdependent, ‘inviolable
and possesses the constitutional latitude within which
to define and
express its unique character’ subject to constraints
permissible under our Constitution. A municipality
under the
Constitution is not a mere creature of statute, otherwise moribund,
save if imbued with power by provincial or national
legislation.
A municipality enjoys ‘original’ and constitutionally
entrenched powers, functions, rights and duties
that may be qualified
or constrained by law and only to the extent the Constitution
permits.”
[15]
(Footnotes omitted.)
[12]
That constitutional vision of robust
municipal powers has been expanded in the jurisprudence of this
Court, and succinctly summarised
by Mhlantla AJ in
Lagoonbay
:
“
This
Court’s jurisprudence quite clearly establishes that: (a)
barring exceptional circumstances, national and provincial
spheres
are not entitled to usurp the functions of local government; (b) the
constitutional vision of autonomous spheres of government
must be
preserved; (c) while the Constitution confers planning
responsibilities on each of the spheres of government, those are
different
planning responsibilities, based on ‘what is appropriate to
each sphere’; (d) ‘“planning” in the
context
of municipal affairs is a term which has assumed a particular,
well established meaning
which
includes the zoning of land and the establishment of townships
’
(emphasis added); and (e) the provincial competence for ‘urban
and rural development’ is not wide enough to
include powers
that form part of ‘municipal planning’.”
[16]
(Footnotes omitted.)
[13]
This
Court in
Lagoonbay
concluded, without deciding, that “[a]t the very least there is
therefore a strong case” for holding that it is
constitutionally
impermissible for the Province to refuse rezoning
and subdivision applications under LUPO.
[17]
That strong case must be given effect here. Section 44 of
LUPO does not withstand constitutional scrutiny. This
is for
all the reasons the
Lagoonbay
synopsis sets out. The provincial appellate capability
impermissibly usurps the power of local authorities to manage
“municipal
planning”,
[18]
intrudes on the autonomous sphere of authority the Constitution
accords to municipalities, and fails to recognise the distinctiveness
of the municipal sphere. This is because, as Jafta J said in
Gauteng
Development Tribunal
,
the planning competence that the Constitution ascribes to
municipalities “includes the zoning of land and the
establishment
of townships”.
[19]
So the Provincial Minister was correct to concede that section 44’s
general appellate power is unconstitutional.
Municipalities are
responsible for zoning and subdivision decisions, and provinces are
not.
[14]
This
makes sense, given that municipalities are best suited to make those
decisions.
[20]
Municipalities
face citizens insistent on delivery of governmental services, since
they are the frontiers of service delivery.
It is appropriate
that they should be responsible for zoning and subdivision. For
these entail localised decisions, and should
be based on information
that is readily accessible to municipalities. The
decision-maker must consider whether services –
that are
provided primarily by municipalities – will be available for
the proposed development. And it must consider matters
like building
density and wall heights. These are best left for municipal
determination.
[15]
So section 44 of LUPO, which allows the
Province to interfere in all municipal land-use decisions and
substitute its decisions for
those of the municipality, is clearly
unconstitutional and invalid. But that leaves a question. Are
there any circumstances
in which a province may permissibly hear
appeals against a municipality’s land-use decisions? The High
Court, holding that
there are, adopted a reading in to preserve some
appellate powers.
[16]
The
first broad circumstance the High Court identified is where the
development that is the subject of the appeal engages the Province’s
competences. In his original written submissions, the Provincial
Minister contended that the High Court’s reading in was
fully
constitutionally compliant. But, after
Lagoonbay
was
handed down and the City of Johannesburg filed its submissions, the
Provincial Minister acknowledged that his position had “evolved”.
In further written submissions, he conceded that the portion of the
High Court’s reading in
[21]
that seeks warrant in the Province’s overlapping competences is
not constitutionally compliant. This is because the reading
in
envisages a “full-blown appellate function” for the
Province in relation to land-use decisions that, in terms of
the
Constitution, must be decided by municipalities alone.
[17]
Nevertheless, the Provincial Minister urged
this Court to confirm the High Court’s reading in. It
should, he said, be
tolerated as an interim mechanism. Taking
up a point from the City of Johannesburg, he reasoned that there can
be no objection
to provinces exercising their constitutional
competences through procedures or approvals operating in parallel to
municipalities’
powers. Those parallel procedures afford
provinces an effective veto over developments a municipality has
approved. In that
respect, he suggested, they do not differ from
full-blown appellate powers. Therefore, although affording the
Province appellate
powers during the reading-in period is not wholly
constitutionally compliant, the powers are a good approximation of
constitutionality.
[18]
And
it is essential, the Provincial Minister urged, that the Province’s
veto power be preserved pending the enactment of a
new, comprehensive
statutory scheme. Here, counsel for the Provincial Minister
presented a bogey. There must, he urged, be
some provincial
legislative and executive surveillance over municipal planning
decisions, because big municipal zoning and subdivision
decisions
could have extra-municipal effects. Without oversight the Province
will be powerless to stop even very large developments
that may have
ruinous effects on the Province as a whole. Here he instanced
the possible approval by a municipality of a
major new town, for
example, “Sasol 4”,
[22]
which would have profound province-wide effects.
[19]
This
bogey must be slain. All municipal planning decisions that encompass
zoning and subdivision, no matter how big, lie within
the competence
of municipalities. This follows from this Court’s analysis of
“municipal planning” in
Gauteng
Development Tribunal
.
[23]
Provincial and national government undoubtedly also have power over
decisions so big, but their powers do not lie in vetoing zoning
and
subdivision decisions, or subjecting them to appeal. Instead, the
provinces have coordinate powers to withhold or grant approvals
of
their own.
[24]
It is
therefore wrong to fear that a province would be powerless to stop
the development of a “Sasol 4”.
That
development would depend on myriad approvals, some of them
provincial, some of them national.
[20]
The
second broad circumstance the High Court embodied in its reading in
is when a provincial appellate power is necessary in the
exercise of
its powers of “oversight” over municipalities. The
Constitution expressly envisages that national
and provincial
governments have legislative and executive authority to see to the
effective performance by municipalities of their
planning
functions.
[25]
This, the other
two spheres of government can achieve by “regulating the
exercise by municipalities of their executive authority”
in
relation to municipal planning.
[26]
[21]
But the powers in section 155(7), this
Court has held, are “hands-off”. In the
First
Certification
case, the Court described
those powers thus:
“
In
its various textual forms ‘monitor’ corresponds to
‘observe’, ‘keep under review’ and the
like.
In this sense it does not represent a substantial power in itself,
certainly not a power to control [local government] affairs,
but has
reference to other, broader powers of supervision and control. . . .
We
do not interpret the monitoring power as bestowing additional or
residual powers of provincial intrusion on the domain of [local
government], beyond perhaps the power to measure or test at intervals
[local government] compliance with national and provincial
legislative directives or with the [Constitution] itself. What
the [Constitution] seeks hereby to realise is a structure
for [local
government] that, on the one hand, reveals a concern for the autonomy
and integrity of [local government] and
prescribes
a hands-off relationship
between [local government] and other levels of government and, on the
other, acknowledges the requirement that higher levels of
government
monitor [local government] functioning and intervene where such
functioning is deficient or defective in a manner that
compromises
this autonomy.”
[27]
(Emphasis added.)
[22]
It follows that “regulating” in
section 155(7) means creating norms and guidelines for the exercise
of a power or the
performance of a function. It does not mean the
usurpation of the power or the performance of the function itself.
This is because
the power of regulation is afforded to national and
provincial government in order “to see to the effective
performance by
municipalities of their functions”. The
constitutional scheme does not envisage the province employing
appellate power over
municipalities’ exercise of their planning
functions. This is so even where the zoning, subdivision or land-use
permission
has province-wide implications.
[23]
The
Provincial Minister also urged us to accept that good government
requires that it should be able to “safeguard provincial
and
regional interests” while the Province’s Land Use and
Planning Bill is enacted and made ready for implementation.
[28]
This, it urged, was because, if municipalities alone consider
zoning and subdivision applications, “parochial municipal
interests” will triumph. The contention cannot be
sustained. The Constitution envisages, subject only to the oversight
and support role of national and provincial government, and to the
planning powers vested in them, that parochial interests should
prevail in subdivision and zoning decisions.
[24]
That
is enough to deal with the main issue. But both the Provincial
Minister and the City of Johannesburg urged the Court to use
the
opportunity to give greater content in this judgment to the
constitutional competence of “provincial planning”.
This,
the parties said, was to afford guidance to municipalities and
provincial authorities as they review and reform the existing
legislative framework for planning. This invitation is enticing. But
it must be declined. Legislation that deals with municipal
planning,
both provincial and national, is pending.
[29]
The Constitution offers mechanisms by which the President and
provincial Premiers, or legislators, can secure this Court’s
determination of the constitutional validity of both Bills and
statutes.
[30]
Outside these
mechanisms, the Court should not pronounce on intricate matters with
which legislatures are dealing. Practically,
this means the Court
should do no more here than is necessary to decide the sole question
before it, namely the constitutional
validity of the Province’s
appellate powers over zoning and land-use decisions. That is judicial
economy.
[31]
Remedy
[25]
It follows that the reading in the High
Court ordered, with the consent of both the Provincial Minister and
the other parties before
it, cannot be confirmed. That reading in
gives the Province interim appellate powers that are incompatible
with the competence
the Constitution affords municipalities over
“municipal planning”. The Constitution grants the
Province no direct decisional
oversight over the exercise of these
functions, and nothing in the evidence placed before us indicates
that powers of this sort
should be afforded as an interim measure.
[26]
For the same reasons, if we suspend the
declaration of invalidity, we will temporarily preserve an appellate
power that is unconstitutional
in its entirety. The Provincial
Minister nevertheless urged us, for practical reasons, to suspend the
declaration, as this Court
often does in the exercise of its just and
equitable remedial powers. He argued that, historically, provinces
have borne ultimate
responsibility for planning decisions.
Accordingly they have large and experienced planning departments. By
contrast, municipalities,
especially the smaller ones, do not yet
have the capacity and expertise to assume ultimate responsibility
over all planning decisions.
Provinces should retain their appellate
powers while municipalities build capacity. This will, the Provincial
Minister argued,
have the additional benefit that faulty municipal
decisions can be corrected by internal means rather than by flooding
the courts
with review applications.
[27]
The
contention that some local authorities lack planning capacity
deserves serious consideration. But it does not justify
suspending the declaration of invalidity. It cannot entail more
than this: that the Province must, as the Constitution envisages,
“promote the development of local government capacity to enable
municipalities to perform their functions and manage their
own
affairs”.
[32]
It
cannot entail appellate oversight of zoning and subdivision
decisions. And local government capacity problems do
not
justify this oversight being afforded on an interim basis. Instead,
the Province is obliged to use its constitutional
powers, which are
not insubstantial, to assist municipalities to make planning
decisions properly. That it can do by helping
them increase
their capacity. What legislative and other means the Province
may use to do this is not before us and it is
not necessary to
express any view on it.
[28]
Finally, the Provincial Minister asked this
Court to limit the retrospective effect of the declaration of
invalidity, as the High
Court had done. He noted, in
particular, the chaos that would result if even finalised approvals
granted by the Province
on appeal were rendered invalid.
Similar difficulties would arise, he said, if approvals granted by a
municipality and overturned
on appeal were now resuscitated.
[29]
Those practical difficulties cannot be
gainsaid. The retrospective effect of the declaration of
invalidity will be limited
accordingly. At the end of all this,
as emerged during argument, the Provincial Minister can have no real
complaint about
an order of invalidity that takes effect immediately,
subject only to pending appeals being exempted from it.
Costs
[30]
Since
only the Provincial Minister and the City of Johannesburg, as amicus,
appeared before us, a costs order would be redundant.
[33]
Order
[31]
It is ordered as follows:
1.
Paragraph 1 of the order of the Western Cape High Court, Cape Town,
declaring section 44 of the Land Use Planning Ordinance 15
of 1985
unconstitutional and invalid, is confirmed.
2.
The declaration of invalidity is not retrospective and does not apply
to appeals pending in terms of section 44.
Paragraphs
2 to 4 of the High Court’s order are not confirmed.
For
the Applicant:
Advocate
A Breitenbach SC, Advocate D Borgstr
ö
m
and Advocate L Dzai instructed by the State Attorney.
For
the Amicus Curiae:
Advocate
S du Plessis SC and Advocate P Verveen instructed by Moodie &
Robertson Attorneys.
[1]
15
of 1985. LUPO is old-order provincial legislation enacted by
the former Cape Province. Responsibility for its
administration was assigned by presidential proclamation to the
Western Cape provincial government (and to the Eastern Cape and
Northern Cape governments, to the extent that it applies within
those provinces) in June 1994. Section 44 of LUPO
is
headed “Appeal to Administrator” and provides:
“
(1)
(a) An applicant in respect of an application to a council in terms
of this Ordinance, and a person who has objected to the
granting of
such application in terms of this Ordinance, may appeal to the
Administrator, in such manner and within such period
as may be
prescribed by regulation, against the refusal or granting or
conditional granting of such application.
(b)
A person aggrieved by a decision of a council in terms of section
14(1), (2), (3), (4)(d) or (5) or section 16(2)(b) or 40(4)(c)
may
appeal to the Administrator in such manner and within such period as
may be prescribed by regulation, against such decision.
(c)
A person aggrieved by a decision of a council in the application of
section 18 may similarly appeal to the Administrator
against
such decision.
(d)
For the purposes of sections 15(3), 17(3) and 24(3) provision may be
made by regulation therein referred to for a right of
appeal to the
Administrator in the manner prescribed by such regulation.
(2)
The Administrator may, after consultation with the council
concerned, in his discretion dismiss an appeal contemplated in
subsection (1)(a), (b), (c) or (d) or uphold it wholly or in part or
make a decision in relation thereto which the council concerned
could have made.
(3)
For the purposes of this Ordinance—
(a)
an application referred to in subsection (1)(a) shall be deemed to
have been granted or conditionally granted or refused by
the council
concerned in accordance with action taken by the Administrator under
the provisions of subsection (2);
(b)
a decision referred to in subsection (1)(b) or (c) shall be deemed
to be a decision of the council concerned in accordance
with action
taken by the Administrator under the provisions of subsection (2);
and
(c)
a decision made by the Administrator under the provisions of
subsection (2) shall be deemed to have been made by the council
concerned.”
In
terms of section 2 of LUPO, “Administrator” means the
competent authority to which the administration of LUPO has
been
assigned by the Premier of the Western Cape, namely the applicant
Provincial Minister.
[2]
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and Others
[2013] ZACC 39
;
2014 (1) SA 521
(CC) (
Lagoonbay
)
at paras 30-47.
[3]
See
above n 1 for the text of section 44(1)(d).
[4]
Section
16 is headed “Rezoning on application of owner of land”
and provides:
“
(1)
Either the Administrator or, if authorised thereto by the provisions
of a structure plan, a council may grant or refuse an
application by
an owner of land for the rezoning thereof.
(2) (a) A rezoning
in respect of which the application has been granted by virtue of
the provisions of subsection (1) shall lapse—
(i)
if the land concerned is not, within a period of two years after the
date on which the application for rezoning was granted,
utilised as
permitted in terms of the zoning granted by the said rezoning;
(ii)
where it has been so granted for the purposes of section 22, if a
relevant application for subdivision in accordance with
the rezoning
concerned is not made in terms of section 24 within a period of two
years after the date on which the application
for rezoning was
granted, or
(iii)
where such application for subdivision was indeed so made, but the
subdivision concerned or part thereof is not confirmed,
unless
either the Administrator or, if authorised thereto by the provisions
of the structure plan concerned, the council extends
the said period
of two years, which extension may be granted at any stage.
(b)
Subject to the applicable provisions of section 7, 14(2), 14(4)(a)
or 14(4)(b), land in respect of which a zoning has lapsed
in terms
of subsection (2) of this section shall be deemed to be zoned in
accordance with the utilisation thereof as determined
by the council
concerned.
(3)
Where an application for rezoning is granted under subsection (1) or
a rezoning has lapsed in terms of subsection (2), the
local
authority concerned shall as soon as practicable amend the zoning
map concerned and, where applicable, a register in its
possession
accordingly.”
Section
25 is headed “Granting or refusal of application” and
provides:
“
(1)
Either the Administrator or, if authorised thereto by scheme
regulations, a council may grant or refuse an application for
the
subdivision of land.
(2)
In granting an application under subsection (1) either the
Administrator or the council concerned, as the case may be, shall
indicate relevant zonings in relation to the subdivision concerned
for the purpose of the application of section 22(2).”
[5]
Section
108 of the Municipality of the City of Cape Town: Zoning Scheme:
Scheme Regulations,
Provincial
Gazette
4649
of 29 June 1990, as amended.
[6]
The
Habitat Council is a voluntary, non-profit association that promotes
conservation. The building that the Trust sought
to develop
was the Martin Melck Warehouse, dating from 1764, in the loft of
which the Lutheran community had congregated in secret.
The
Evangelical Lutheran Church did not object to the development when
the City was deliberating, because of a misunderstanding
that the
heritage aspects of the approval had already been irreversibly
decided. But in the High Court it was the second
applicant,
alongside the Habitat Council.
[7]
Section
42(1) reads:
“
When
the Administrator or a council grants authorisation, exemption or an
application or adjudicates upon an appeal under this
Ordinance, he
may do so subject to such conditions as he may think fit.”
[8]
The
High Court judgment is reported as
Habitat
Council and Another v Provincial Minister of Local Government etc,
Western Cape, and Others
[2013] ZAWCHC 112; 2013 (6) SA 113 (WCC).
[9]
In
terms of section 156(1)(a) of the Constitution, municipalities have
executive authority in respect of, and the right to administer,
“the
local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5”. Part B of Schedule
4 includes
“municipal planning”.
[10]
Section
104(1)(b) of the Constitution gives provinces legislative competence
in respect of the functional areas listed in Schedules
4 and 5.
Part A of Schedule 4 lists “Functional areas of concurrent
national and provincial legislative competence”
and includes
“regional planning and development” and “urban and
rural development”. Part A of Schedule
5 lists
“Functional areas of exclusive provincial legislative
competence” and includes “provincial planning”.
[11]
Section
155 of the Constitution provides in relevant part:
“
(6)
Each provincial government . . . , by legislative or other measures,
must—
(a)
provide for the monitoring and support of local government in the
province; and
(b)
promote the development of local government capacity to enable
municipalities to perform their functions and manage their
own
affairs.
(7)
The national government, subject to section 44, and the provincial
governments have the legislative and executive authority
to see to
the effective performance by municipalities of their functions in
respect of matters listed in Schedules 4 and 5, by
regulating the
exercise by municipalities of their executive authority referred to
in section 156(1).”
[12]
Paragraph
3 of the High Court order reads:
“
During
the period of suspension or until such sooner date when the
amendment as contemplated in paragraph 2 comes into force,
section
44(2) and (3) of LUPO will be deemed to read as follows:
‘
(2)
The Administrator may, after consultation with the council
concerned, in his discretion dismiss an appeal contemplated in
subsection (1) or, subject to subsection (3), uphold it wholly
or in part.
(3)
The Administrator:
(a)
may uphold, wholly or in part, an appeal contemplated in subsection
(1) concerning a municipal planning local government matter
referred
to in Part B of Schedule 4 of [the Constitution], only if the
upholding of the appeal is necessary for the exercise
by the
Government of the Western Cape Province of its authority to see to
the effective performance by the municipality concerned
of its
functions in respect of such local government matter, in which event
the Administrator shall set aside the decision or
part of the
decision of the council and refer the matter back to the council for
reconsideration together with a statement of
reasons for his
decision; provided that no further appeal shall lie to the
Administrator in terms of this paragraph against any
decision made
by the council after considering a matter referred back to it by the
Administrator; and
(b)
may uphold, wholly or in part, an appeal contemplated in subsection
(1) to the extent that it concerns the functional area
of concurrent
national and provincial competence of regional planning and
development or urban and rural development in Part A
of
Schedule 4 to the Constitution or the functional area of exclusive
provincial legislative competence of provincial planning
in Part A
of Schedule 5 to the Constitution, if, in the Administrator’s
opinion, the decision of the council is incorrect,
in which event
the Administrator shall substitute his decision for the decision of
the council.’”
[13]
The
High Court also crafted an exception to the non-retrospectivity of
its order by reviewing and setting aside the decisions
in the
Gordonia and Habitat Council matters, so that the applicants would
get effective relief. Section 172(2) of
the Constitution
does not require this Court to confirm that order. It is not
discussed further.
[14]
These
powers are discussed further below at n 24.
[15]
City
of Cape Town and Another v Robertson and Another
[2004]
ZACC 21
;
2005 (2) SA 323
(CC) (
Robertson
)
at para 60. See also
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at
paras 26 and 38 and
CDA
Boerdery (Edms) Bpk and Others v Nelson Mandela Metropolitan
Municipality and Others
[2007]
ZASCA 1
;
2007 (4) SA 276
(SCA) at paras 37-40
.
[16]
Lagoonbay
above
n 2 at para 46.
[17]
Id.
[18]
On
the meaning of “municipal planning” see
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
[2010] ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC)
(
Gauteng
Development Tribunal
)
at paras 49-57.
[19]
Id
at para 57. The Court there affirmed the decision of the
Supreme Court of Appeal, reported as
Johannesburg
Municipality v Gauteng Development Tribunal and Others
[2009]
ZASCA 106
;
2010 (2) SA 554
(SCA);
2010 (2) BCLR 157
(SCA), in which
Nugent JA at para 36 illuminated the proper approach to the
Constitution’s allocation of governmental powers:
“
It
is to be expected that the powers that are vested in government at
national level will be described in the broadest of terms,
that the
powers that are vested in provincial government will be expressed in
narrower terms, and that the powers that are vested
in
municipalities will be expressed in the narrowest terms of all.
To reason inferentially with the broader expression
as the starting
point is bound to denude the narrower expression of any meaning and
by so doing to invert the clear constitutional
intention of
devolving powers on local government.”
[20]
Ex
parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000 (1) SA 732
(CC);
2000 (1) BCLR 1
(CC) (
Liquor
Bill
)
at para 51, cited in
Gauteng
Development Tribunal
above
n 18 at para 53, held that the Constitution’s allocation of
governmental powers proceeds “from a functional
vision of what
was appropriate to each sphere”.
[21]
Subsection
(3)(a) of the reading in, set out in n 12 above.
[22]
This
was a reference to a large coal-to-oil plant that energy and
chemical company Sasol Limited proposes to build, and to the
town it
is anticipated will spring up around it. It would follow the
three refineries already built: one near Sasolburg,
Free State; and
two near Secunda, Mpumalanga.
[23]
Above
n 18.
[24]
For
instance, Chapter III of the Physical Planning Act 125 of 1991
empowers provinces to issue urban structure plans which “consist
of guidelines for the future physical development” of the area
to which they relate. In terms of section 27, any
development
must be consistent with that structure plan. Provinces have
the power, in terms of sections 18 and 19, to grant
or refuse
applications for the amendment of the structure plan, and thereby to
decide whether a proposed development may go ahead.
(The
developer in
Lagoonbay
above
n 2 had to secure a structure-plan amendment in addition to zoning
and subdivision permissions.) Similarly, the
Spatial Planning
and Land Use Management Act 16 of 2013
, which was promulgated on 5
August 2013 but has not yet been brought into operation, requires
the preparation of spatial development
frameworks by the national
and provincial government. These serve to “guide
planning and development decisions”
by all spheres of
government
(section 12(1)(d))
, including municipalities, and “must
guide and inform the exercise” of any decision relating to
land use and development
(section 12(2)(b)).
Finally,
section
24
of the National Environmental Management Act 107 of 1998 entitles
every province, with the concurrence of the national government,
to
identify activities which, because of their environmental and other
effects, may not be commenced without the prior authorisation
of the
national or provincial government. (This permission was also
required by the developer in
Lagoonbay
above
n 2. And it was at issue in
Maccsand
(Pty) Ltd v City of Cape Town and Others
[2012]
ZACC 7
;
2012 (4) SA 181
(CC);
2012 (7) BCLR 690
(CC), which dealt
with the interplay between LUPO approvals granted by municipalities
and statutory approvals granted by the
other spheres of
government.) Needless to say, the constitutional validity of
the powers in these various Acts is not at
issue in this litigation.
[25]
See
section 155(7), set out above at n 11.
[26]
Id.
[27]
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at
paras 372-3.
[28]
The
Western Cape Land Use Planning Bill was gazetted on 4 February 2014
in
Provincial
Gazette Extraordinary
7225.
[29]
See
the
Spatial Planning and Land Use Management Act, discussed
above n
24, and the Western Cape Land Use Planning Bill, above n 28.
[30]
In
terms of section 121 of the Constitution, a provincial Premier who
has reservations about the constitutionality of a Bill may,
in
certain circumstances, refer it to the Court for a decision on its
constitutionality. And, in terms of section 122,
a provincial
legislature may apply to this Court to declare a provincial Act
unconstitutional if at least one-fifth of the members
of the
legislature support that application. See
Premier,
Limpopo Province v Speaker of the Limpopo Provincial Government, and
Others
[2011]
ZACC 25
;
2011 (6) SA 396
(CC);
2011 (11) BCLR 1181
(CC). The
national counterparts of these provisions are sections 79 and
80. See
Liquor
Bill
above n 20.
[31]
See
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para
82.
[32]
Section
155(6)(b), set out above at n 11.
[33]
In
President
of the Republic of South Africa and Another v Modderklip Boerdery
(Pty) Ltd (Agri SA and Others, Amici Curiae)
[2005] ZACC 5
;
2005 (5) SA 3
(CC);
2005 (8) BCLR 786
(CC) at para 67
the Court stated that “it is unusual and indeed it will rarely
be appropriate for costs to be awarded in
favour of an amicus
curiae”.