KWAZULU-NATAL PLANNING AND DEVELOPMENT AMENDMENT BILL 2011

Transcription

1 KWAZULU-NATAL PLANNING AND DEVELOPMENT AMENDMENT BILL 2011

2 2 GENERAL EXPLANATORY NOTE: [ ] Words in bold type in square brackets indicate omissions from existing enactments Words underlined with a solid line indicate insertions in existing enactments BILL To amend the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), so as to expand the long title of the Act; to amend the definition of Appeal Tribunal; to insert the definitions of "adjacent properties", "application", "Attorney's Act", "building", "consent in terms of a scheme", "Durban Extended Power's Ordinance", "KwaZulu-Natal Traditional Leadership and Governance Act", "Less Formal Township Establishment Act", "Municipal Demarcation Act", "municipal road", "Pietermaritzburg Extended Powers Ordinance", "Professional and Technical Surveyor's Act", "property", "receiving municipality", "registrar", "regulations and Rules in terms of the Development Facilitation Act", "sending municipality" and "Sectional Titles Act"; to substitute the definitions of "engineering services" and "township"; to delete the expressions "erf" and "transfer"; to expand the objects of the Act to provide for the consent by a municipality in terms of a scheme; to provide that a person or an organ of state, other than a municipality, can initiate a scheme; to provide that a municipality may initiate applications relating to land which vests in it, land which it is in the process of acquiring and land that is owned by another person, with that person's consent; to provide for consent in terms of a scheme; to provide that consent in terms of a scheme constitutes a real right in land; to provide that a right of consent in terms of a scheme cannot be alienated separately from the property, to provide for amendments to a scheme that do not require an application in terms of the Act; to rationalise matters that must be considered for applications; to provide for the consideration of the provisions of the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989) when a municipality considers the adoption, repeal or amendment of a scheme; to require a municipality to state in its conditions of approval which conditions must be complied with before the erection of a structure or use of a property, the erection of a building on a property, the occupation of a building, the transfer of a property and which conditions must be registered against a property; to require a municipality to give reasons for its decision to an applicant and persons who commented on an application; to require a municipality to inform an applicant and persons who commented on an application of their right to appeal and the appeal process; to ensure that the appeal period lapses on the same day for all parties; to provide for the certification of compliance with conditions; to provide that building plan approval contrary to the provisions of a scheme is invalid; to provide that the approval of a building plan contrary to an approval in terms of the Act is invalid;

3 3 to delete the lapsing of final decisions by operation of law; to introduce a process for the cancellation or partial cancellation of approval if rights are not fully exercised within a specified period of time; to require an application for the consolidation of land for tieing to properties notarially; to require an application for the consolidation of land when land is added to a sectional title scheme; to not require an application for the subdivision of land for the correction of a survey diagram, the correction of a general plan or the registration of a long term lease; to provide for the application for the consolidation of unregistered properties; to delete the need for an application for the correction of a diagram that affects the extent of a property; to delete the need for an application for the correction of a registered diagram that affects the extent of a property; to delete the need for an application for the registration of a long term lease; to require a municipality to state in its record of decision if a general plan or diagram must be approved for the subdivision or consolidation of land; to require a municipality to state in its record of decision if a property must be registered as a farm, a subdivision that is not a farm, an erf in a township or an erf in a less formal settlement; to delete the requirement that documents required for the registration of land must accompany an application; to permit the sale of land of unregistrable land; to provide that the Registrar of Deeds may not register a property, if the municipality did not certify that the land is registrable; to provide for the registration of conditions of title by the Registrar of Deeds against the remainder of land when land is subdivided; to provide that land required for use as a road, park or other open space must be regarded as land that vest in the municipality contemplated in section 31 of the Deeds Registries Act; to provide a schedule of activities that constitute "development"; to require an application for development for the expansion of a development or the replacement of buildings for a development which did not require development approval at the time that the original buildings were built; to provide for the cancellation of a general plan or withdrawal of a diagram when an approved layout or part thereof is cancelled; to provide for the alteration, suspension and deletion of conditions of approval for a municipality's consent in terms of a scheme and for the permanent closing of a municipal road or a public place; to provide for the updating of records held by the Surveyor General and the Registrar of Deeds; to provide for the endorsement by the Registrar of Deeds of which conditions of title have been altered, suspended or deleted; to provide for the permanent closure of a municipal road or a public place, including the lodging of an application, public consultation, making of a decision, effective date of a decision, right of appeal, vesting of the land upon the closure of the municipal road or public place, lodging of deed, plans and documents with the Surveyor general, lodging of deeds, plans and documents with the Registrar of Deeds and compensation relating to the permanent closure of a municipal road or a public place; to provide for offences relating to the unlawful use or development of a municipal road or a public place, failure to comply with conditions of approval, failure to disclose that land is not registrable when alienating land that is not registrable and the

4 4 development, subdivision or consolidation of land contrary to an approved layout plan that has been cancelled or partially cancelled; to provide that a municipality must apply to the High Court for a court order instead of an urgent prevention order; to provide situations where the state cannot obtain prior approval in terms of the Act because of an emergency to save human life, property or the environment; to provide for the subsequent consideration by a municipality of an application for its consent in terms of a scheme; to provide for the subsequent consideration by a municipality of an application for the permanent closure of a municipal road or a public place; deletion of the requirement that illegal development must stop until it is known if an application to regularise the illegal development has been approved; to provide that a municipality may waive a civil penalty for a public benefit organisation that did not obtain prior approval in terms of the Act; to clarify that the levying of rates in accordance with the use of a property does not render the use of the property lawful for the purposes of the principal Act; to make an official employed by an organ of state strictly liable for approving the erection of buildings without prior approval in terms of the Act; to make it a criminal offence to interfere with the evaluation of an application by a registered planner or issuing of a certificate of compliance by a registered planner; to make a land surveyor accountable for ensuring that a person or body who approved the subdivision or consolidation of land in terms of the Act was duly authorised to approve the subdivision or consolidation of land; to make a conveyancer accountable for ensuring that a person or body who approved the suspension, alteration or deletion of a restrictive condition of title in terms of the Act was duly authorised to approve the suspension, alteration or deletion of the restrictive condition of title; to make a person who approves a building plan accountable for ensuring that the building plan is in accordance with a scheme or an approval of an application in terms of the Act; to empower private persons to enforce their rights in terms of a scheme or an approval in terms of the Act; to clarify that the remedies provided for in the Act are in addition to other statutory and common law remedies; to provide that a municipality can establish an appeal tribunal; to provide that a municipality can employ the services of the Kwazulu-Natal Planning and Development Appeal Tribunal if it does not want to establish its own appeal tribunal; to clarify that only an applicant, an objector and the municipality are parties to an appeal; to require all appeals to be hand-delivered to the registrar; to delete the power of the Appeal Tribunal to penalise a municipality for failing to observe the time frames stipulated in the Act; to determine the relationship between appeals in terms of the Act and appeals in terms of section 62 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000); to require all organs of state to observe Provincial Planning and Development Norms and Standards; to provide for the delegation of the power of the Premier in to impose conditions terms of the Subdivision of Agricultural land Act, 1970 (Act No. 70 of 1970) to municipalities; to empower a municipality to delegate a power or duty conferred on it in terms of the principal Act to a committee of the municipality or to a person

5 5 employed by a municipality; to empower a municipality to enter into an agency agreement with a district municipality; to require the municipal manager to keep a record of all delegations in terms of the Act, to clarify that a power conferred on a municipality in terms of the Act that is exercised without the necessary authority is voidable; to ensure that there is a single closing date for all comments in respect of an application and for all appeals in respect of an application; to distinguish between a short period (120 days or less) and long period (121 days or more) for the purpose of calculating the number of days; to exclude the period that a council is in recess from a short period (120 days or less); to provide that a decision on an application that has not been forwarded to the Member of the Executive Council for the purposes of monitoring and capacity building (if required) is invalid; to provide for the correction of spelling errors, updating of property description, updating of a reference to a law, person, institution, place name and street name, and the clarification of a municipality's decision without the need for an application; to require the Surveyor-General to notify a municipality of the approval of diagrams, general plans, sectional plans and changes to diagrams and plans; to provide for the implications of the re-determination of a municipal boundary by the Demarcation Board; to provide for the validation of applications approved by a municipality under the wrong planning and development law before the commencement of the principal Act; to clarify the relationship between the principal Act and the Less Formal Township Establishment Act, 1991 (Act No. 113 of 1991), and the Development Facilitation Act, 1995 (Act No. 67 of 1995); to prevent a municipality from pending an application indefinitely; to require a municipality to confirm that an application is complete; to provide for instances in which public notice of an application is not required; to require a notice inviting the public to comment on an application to describe the location of a property if it does not have a physical address; to make it clear that it is not necessary for a person who commented on an application to resubmit his or her comment, if notice is given again of the application; to provide for instances where personal notice to a person with a vested interest in an application is sufficient; to provide for instances where personal notice of an application to all adjoining neighbours is unnecessary; to provide for instances where notice in a local newspaper of an application is unnecessary; to make it clear that the public has 30 days to respond to a site notice and a notice in the newspaper inviting the public to comment on an application; to require a municipality to give notice of an application by it in a newspaper, in a language that it has determined as its official language and on a day of the week that it has determined as the day of the week for the publication of notices in terms of the principal Act; to give a municipality 21 days to respond to objections to an application by it; to give a municipality 14 days to decide if it should hold a public hearing on an application by it; to require that a municipality give notice in writing to the applicant and all persons who commented on an application if it decides to hold a public hearing on an application; to require that a municipality give notice in a local newspaper if it

6 6 decides to hold a public hearing; to provide for the repeal of sections 211 and 112 of the Local Authorities Ordinance, 1974 (Ordinance No. 25 of 1974); to provide for new transitional measures for laws repealed or restricted by the Act to ensure that applications do not lapse unnecessarily, that development rights can be exercised and that conditions of approval can be enforced; to provide for the deletion of certain conditions of title by operation of law; to correct grammatical errors; to substitute certain expressions; to correct wrong cross-references; to delete duplications and to provide for matters connected therewith. BE IT ENACTED by the Provincial Legislature of the Province of KwaZulu-Natal, as follows: Amendment of long title of Act 6 of The long title of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), hereinafter referred to as the principal Act, is hereby amended by the substitution for the long title of the following long title: "To provide for the adoption, replacement and amendment of schemes[,] ; to provide for consent in terms of schemes; to provide for the subdivision and consolidation of land; to provide for the development of land outside schemes; to provide for the phasing or cancellation of approved layout plans for the subdivision or development of land; to provide for the alteration, suspension and deletion of restrictions relating to land; to [establish general principles] provide for the permanent closure of municipal roads or public places; to provide for [the adoption and recognition of schemes,] enforcement measures; to provide for compensation in respect of matters regulated by the Act; to establish the KwaZulu-Natal Planning and Development Appeal Tribunal; to provide for provincial planning and development norms and standards; and to provide for matters connected therewith". Amendment of section 1 of Act 6 of Section 1 of the principal Act is hereby amended (a) by the insertion before the definition of "Appeal Tribunal" of the following definition: "adjacent property" means all properties that border a property, and all properties that would have bordered a property, had they not been separated by a road, a railway line, a servitude, a river or a similar feature;"; (b) by the substitution for the definition of Appeal Tribunal of the following definition: "Appeal Tribunal" means [the KwaZulu-Natal Planning and Development Appeal

7 7 Tribunal established by section 100(1)] (a) an appeal tribunal established by a municipality in terms of section 100A(1)(a), if a municipality established its own appeal tribunal to determine appeals in terms of this Act; or (b) the KwaZulu-Natal Planning and Development Appeal Tribunal established by section 100(1), if a municipality decided to employ the services of the KwaZulu-Natal Planning and Development Appeal Tribunal to determine appeals in terms of this Act; (c) by the insertion after the definition of "Appeal Tribunal" of the following definitions: "application" means an application by a person or a proposal by a municipality (a) to adopt, amend or grant consent in terms of a scheme; (b) to subdivide or consolidate land; (c) to develop land situated outside the area of a scheme; (d) to phase or cancel an approved layout; (e) to alter, suspend or delete a restrictive condition relating to land; and (f) to close a municipal road or a public place; "Attorney's Act" means the Attorney's Act, 1979 (Act No. 53 of 1979) ; (d) by the insertion after the definition of "authorised person" of the following definition: "building" means a structure with a roof that is permanently fixed to the land and includes a part of a building; (e) by the insertion after the definition of "certificate" of the following definition: "consent in terms of a scheme" means a municipality's consent in terms of a scheme contemplated in section 5(d)(ii); ; (f) by the deletion of the definition of "development"; (g) by the insertion after the definition of "diagram" of the following definitions: "Durban Extended Powers Ordinance" means the Durban Extended Powers Consolidated Ordinance, 1976, (Ordinance No. 18 of 1976); "dwelling" means a building used as a permanent or a temporary residence with its own kitchen or with access to a communal kitchen; ; (h) by the substitution for the definition of engineering services of the following definition: "engineering services" means [the construction of] (a) roads [and stormwater drainage systems]; [and] (b) [any other infrastructure for the installation of water, sewage disposal, power or telecommunication systems] stormwater drainage; (c) water; (d) power;

8 8 (e) telecommunication; (f) sewerage disposal; (g) waste water disposal; and (h) solid waste disposal;"; (i) by the deletion of the definition of "erf"; (j) by the insertion after the definition of "integrated development plan" of the following definition: "KwaZulu-Natal Traditional Leadership and Governance Act" means the KwaZulu-Natal Traditional Leadership and Governance Act, 2005 (Act No. 5 of 2005); (k) by the insertion after the definition of "legally qualified" of the following definition: "Less Formal Township Establishment Act" means the Less Formal Township Establishment Act, 1991 (Act No. 113 of 1991); ; (l) by the insertion after the definition of "lodge" of the following definition: "Municipal Demarcation Act" means the Local Government: Municipal Demarcation Act, 1998 (Act No. 27 of 1998); ; (m) by the insertion after the definition of "municipal manager" of the following definition: "municipal road" includes any road, street or thoroughfare, which is owned by a municipality or which vests in a municipality; ; (n) by the insertion after the definition of "owner" of the following definition: "Pietermaritzburg Extended Powers Ordinance" means the Pietermaritzburg Extended Powers Ordinance, 1936 (Ordinance No. 14 of 1936); ; (o) by the insertion after the definition of "Planning Professions Act" of the following definition: "Professional and Technical Surveyor's Act" means the Professional and Technical Surveyor's Act, 1984 (Act No. 40 of 1984); (p) by the insertion after the definition of "Promotion of Administration Justice Act" of the following definition: "property" means any piece of land registered in the deeds registry, including an erf, a sectional title unit, a lot, a plot, a stand, a farm and a portion or piece of land registered in the deeds registry; ; (q) by the insertion after the definition of "public place" of the following definition: "receiving municipality" means a municipality in which land has been incorporated from another municipality in the Province as a result of the re-determination of a municipal boundary by the Demarcation Board in terms of the Municipal Demarcation Act;"; (r) by the insertion after the definition of "Registrar of Deeds" of the following definitions: "registrar" means the Registrar of the Appeals Tribunal appointed in terms of section in terms of section 112(1)(a);

9 9 "Regulations and Rules in terms of the Development Facilitation Act" means the Regulations and Rules in terms of the Development Facilitation Act, 1995 (Government Notice No. R.1 of 7 January 2000) promulgated in terms of sections 26(1), 46(1) and 59(1) of the Development Facilitation Act;"; (s) by the insertion after the definition of "scheme" of the following definitions: "Sectional Titles Act" means the Sectional Titles Act, 1986 (Act No. 95 of 1986); "sending municipality" means a municipality from which land has been incorporated into another municipality in the Province as a result of the re-determination of a municipal boundary by the Demarcation Board in terms of the Municipal Demarcation Act; (t) by the substitution for the definition of township of the following definition: "township" means [a group of erven which are combined with public places and are used for residential, business, industrial or similar purposes, or intended to be used for such purposes] a township as defined in section 102 of the Deeds Registries Act or any other law administered by Registrar of Deeds; ; and (u) by the deletion of the definition for "transfer". Amendment of section 2 of Act 6 of Section 2 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: (1) provide for the adoption, replacement and amendment of [schemes] a scheme and the granting of consent in terms of a scheme;. Amendment of section 5 of Act 6 of Section 5 of the principal Act is hereby amended (a) by the substitution for (c) of the following paragraph: "define the terminology used in the maps and clauses; and"; and (b) by the substitution for (d) of the following paragraph: (d) specify (i) kinds of land uses and development that are permitted and the conditions under which they are permitted; (ii) kinds of land uses and development that may be permitted with the municipality s [permission] consent in terms of the scheme, including (aa) the criteria that will guide the municipality in deciding whether to grant its

10 10 [permission] consent [, and]; (bb) the [conditions] controls which will apply if the municipality grants its [permission] consent; (cc) consents in terms of the scheme for which notice in a local newspaper in terms of items 6(1)(c) and 15(1)(c) of Schedule 1 is not required; (iii) kinds of land uses and development that are not permitted; (iv) the extent to which land that was being used lawfully for a purpose that does not conform to the scheme may be continued to be used for that purpose and the extent to which buildings or structures on that land may be altered or extended; and (v) areas or zones where the giving of public notice is required for the subdivision of land."; ; and (b) by the deletion of paragraphs (e) and (f). Amendment of section 6 of Act 6 of Section 6 of the principal Act is hereby amended (a) by the substitution for subsection (2) of the following subsection: "(2) The provisions of an integrated development plan will prevail over the provisions of a scheme in the event of a conflict with the provisions of an integrated development plan that was adopted prior to the scheme or amendment to the scheme."; (b) by the substitution for subsection (4) of the following subsection: "(4) A municipality or any other organ of state may not approve [a proposal] an application to subdivide or consolidate land that is in conflict with the provisions of a scheme."; (c) by the substitution for subsection (5) of the following subsection: "(5) [A proposal to subdivide or consolidate land] An approval by a municipality for the subdivision or consolidation of land [that is] in conflict with the provisions of a scheme is invalid."; (d) by the deletion of subsection (6); and (e) by the insertion of the following subsections after subsection (10): (11) Consent in terms of a scheme constitutes a real right in property which can be exercised by any person. (12) A consent in terms of a scheme may not be alienated separately from the property to which it relates..

11 11 Amendment of heading of Part 2 of Chapter 2 of Act 6 of The heading of Chapter 2 of the principal Act is hereby amended by the substitution for the heading of the following heading: Part 2: Adoption, replacement and amendment of scheme and consent in terms of scheme. Amendment of section 9 of Act 6 of Section 9 of the principal Act is hereby amended by the substitution for section 9 of the following section: [Persons who may initiate] Application for adoption, replacement or amendment of scheme or consent in terms of a scheme 9.(1) A municipality may initiate [an adoption of] a scheme, a replacement [of a] scheme [or], an amendment of a scheme or a consent in terms of a scheme. (1A) A municipality may include (a) a schedule to a scheme consisting of a register of scheme amendments; (b) a schedule to a scheme consisting of a register of consents granted in terms of the scheme; and (c) a schedule to a scheme consisting of guidelines, forms and other information that is purely intended for information purposes, without complying with sections 10 to 16B. (1B) An application is not required for the amendment of a scheme (a) for the creation of municipal roads or district roads when land is subdivided in accordance with a scheme, unless the scheme expressly provides otherwise; (b) for recoding the actual use of a property or preferred use of a property that is in accordance with the provisions of the scheme, unless the scheme expressly provides otherwise. (2) An application to a municipality for the adoption, replacement or [an] amendment of a scheme, or for its consent in terms of a scheme, may be lodged by (a) the owner of land [who] which is affected by the proposed scheme, replacement scheme, proposed amendment to the scheme[,] or by the proposed consent in terms of a scheme, including an organ of state; and (b) a person acting with the written consent of the owner of land [who] which is affected by the proposed scheme, replacement scheme, proposed amendment of a scheme or the proposed

12 12 consent in terms of a scheme. (3) If land, which is the subject of an application for a scheme, a replacement scheme, the amendment of a scheme or for consent in terms of a scheme, is transferred to a new owner, the new owner may continue with the application as the legal successor-in-title of the previous owner.. Amendment of section 10 of Act 6 of Section 10 of the principal Act is hereby amended (a) by the substitution for the headnote of the following headnote: Process for adoption, replacement or amendment of scheme or consent in terms of scheme ; (b) by the substitution for subsection (1) of the following subsection: (1) The procedures in [Par 2 of] Schedule 1 must be followed for the adoption, [or] replacement or amendment of a scheme and for consent in terms of a scheme. ; (c) by the deletion of subsection (2) and (3); (d) by the substitution for subsection (4) of the following subsection: (4) [A proposal] Applications for the adoption, replacement or amendment of a [municipality s] scheme and for consent in terms of a scheme may be combined, and processed as one application [with a proposal to (a) subdivide or consolidate land; and (b) alter, suspend or delete restrictions relating to land, and processed as one proposal]. ; and (e) by the insertion after subsection (4) of the following subsection: (5) Applications for the adoption, replacement, or amendment of a scheme and for consent in terms of a scheme may be (a) combined with an application (i) to subdivide or consolidate land; (ii) to alter, suspend or delete restrictions relating to land, and (iii) for the permanent closure of a municipal road or a public place; and (b) processed as one application.. Amendment of section 11 of Act 6 of Section 11 of the principal Act is hereby amended by the substitution for section 11 of the following section:

13 13 Duty to obtain professional evaluation and recommendation 11. Before considering [a proposal to adopt, replace] an application for the adoption, replacement [scheme or to amend] or amendment of a scheme [,] or for its consent in terms of a scheme, a municipality must obtain [a] (a) a registered planner s written evaluation and recommendation on the [proposal] application for the adoption, replacement or amendment of the scheme or for the municipality's consent in terms thereof; and (b) a certificate signed by a registered planner (i) confirming that the [proposal] application complies in all respects with this Act; or (ii) if the [proposal] application does not comply in all respects with this Act, stating that the [proposal] application is defective and provide details of the defect.. Amendment of section 12 of Act 6 of Section 12 of the principal Act is hereby amended by the substitution for section 12 of the following section: Matters relevant in determining merits of [proposed] application for adoption, replacement, or amendment of scheme 12. For the purposes of determining the merits of [a proposal] an application to adopt, replace a scheme or amend a scheme, a municipality must take the following matters into account, if relevant (a) the application contemplated in items 1(2) or 14(1) of Schedule 1; (b) comments in response to the invitation for public comment on the [proposal] application; (c) the registered planner s (i) written evaluation and recommendation on the [proposal] application; and (ii) certificate of compliance of the [proposal] application with the Act; (d) the potential impact of the [proposal] application on the environment, socio-economic conditions, and cultural heritage; (e) the impact of the [proposal] application on (i) existing or proposed developments or land uses [in the municipality s area, or];and (ii) [on existing developmental or] mineral rights; [(f) the impact of the proposal on the national, provincial and municipal road networks;] (g) in the event of an application for the adoption or replacement of a scheme, the human and financial resources likely to be available for implementing the [proposal] scheme [, including access to the national, provincial or municipal roads network, engineering services, public transport, municipal services, sewage, water and electricity supply,

14 14 waste management and removal, policing and security, health and educational facilities, and the fiscal ability of the municipality to pay compensation contemplated in section 95(1)]; (h) [in the event of the adoption of a scheme,] the benefits that will accrue from the adoption [thereof], replacement or amendment of a scheme compared to the cost of compensation contemplated in section 95(1); (ha) the provision and standard of engineering services; (hb) the impact of the application on the national, provincial and municipal road networks, public transport, municipal services, sewage, water and electricity supply, waste management and removal, policing and security; (hc) access to health and educational facilities; (i) the historical effects of past racially discriminatory and segregatory legislation on land ownership, land development and access to engineering services and public facilities, and the need to address the historical imbalances; (j) the protection or preservation of cultural and natural resources, including agricultural resources, unique areas or features and biodiversity; (k) the natural and physical qualities of that area; (l) the general principles for land development as stated in section 3 of the Development Facilitation Act, 1995 (Act No. 67 of 1995), and other national norms and standards, frameworks and policies contemplated in section 146(2)(b) of the Constitution; (m) the provincial planning and development norms and standards; (n) the municipality s integrated development plan; (o) the [municipality s] scheme, in the event of an application for the amend thereof; (oa) the provisions of section 13 of the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989) relating to the zoning of land owned by Transnet and other laws which regulate the zoning of land; (p) any local practice or approach to land use management that is consistent with (i) the laws of the Republic; (ii) the provincial planning and development norms and standards; and (iii) the municipality s integrated development plan; and (q) any other relevant information.". Insertion of section 12A in Act 6 of The following section is hereby inserted in the principal Act after section 12 Matters relevant in determining merits of an application for consent in terms of a scheme

15 15 12A. For the purposes of determining the merits of an application for its consent in terms of a scheme, a municipality must take the following matters into account, if relevant (a) the application contemplated in items 1(2) or 14(1) of Schedule 1; (b) comments in response to the invitation for public comment on the application; (c) the registered planner s (i) written evaluation and recommendations on the application; and (ii) certificate of compliance of the application with the Act; (d) the potential impact of the application on the environment, socio-economic conditions, and cultural heritage; (e) the impact of the application on (i) existing or proposed developments or land uses; and (ii) mineral rights; (f) the general principles for land development as stated in section 3 of the Development Facilitation Act, 1995 (Act No. 67 of 1995), and other national norms and standards, frameworks and policies contemplated in section 146(2)(b) of the Constitution; (g) the provincial planning and development norms and standards; (h) the municipality s integrated development plan; (i) the municipality s scheme, including the criteria for granting consent to use or develop land specified in the scheme; and (j) any other relevant information.. Amendment of section 13 of Act 6 of Section 13 of the principal Act is hereby amended (a) by the substitution for the headnote of the following headnote: Municipality s decision on [proposed] adoption, replacement or amendment of scheme or consent in terms of scheme"; (b) by the substitution for subsection (1) of the following subsection: (1) A municipality must within the periods contemplated in items 12 [and] or 21 of Schedule 1 [, consider the merits of the proposal to adopt, replace or amend a scheme and decide to] (a) decide to (i) [approve the adoption,] adopt a scheme; (ii) [replacement] replace a scheme; (iii) [or amendment] approve an application for the amendment of a scheme; or (iv) grant an application for its consent in terms of a scheme,

16 16 with or without [alterations] changes; or (b) decide not to (i) [refuse] adopt a scheme [,]; (ii) replace a scheme; (iii) [or amend the] approve an application for the amendment of a scheme; or (iv) grant its consent in terms of a scheme. ; (c) by the substitution for subsection (2) of the following subsection: (2) A municipality may not adopt a scheme, [or] approve an amendment to a scheme, or grant its consent in terms of a scheme [that is] in conflict with (a) the provincial planning and development norms and standards; or (b) the municipality s integrated development plan. ; (d) by the substitution for subsection (4) of the following subsection: (4) A municipality may approve an application for the adoption, replacement or amendment of [its] a scheme, or for its consent in terms of a scheme, subject to any conditions [that it considers necessary], including a condition relating to (a) the extent of the applicant s obligation to provide engineering services; (b) the creation of a servitude in favour of the property or against the property in favour of another property; (c) the alteration, suspension or deletion of restrictions relating to the land that restricts the development thereof; (d) a duty to furnish to the municipality with a guarantee issued by a financial institution or other guarantor acceptable to the municipality, within a period specified in the condition for an amount sufficient to cover the costs of (i) fulfilling the obligations of the applicant to provide engineering services; or (ii) complying with any other condition of approval. ; (e) by the insertion after subsection (4) of the following subsection: (4A) A municipality must clearly state in its decision (a) which conditions must be complied with before the erection of a structure on a property or the use of a property in accordance with the approval; (b) which conditions must be complied with before the construction of a building on a property; (c) which conditions must be complied with before occupation of a property; and (d) which conditions must be registered against a property. ; (f) by the substitution for subsection (5) of the following subsection: (5) [In formulating its decision on an] A municipality must give reasons in its record of decision on an application for the adoption, replacement or amendment to a scheme, or for its

17 17 consent in terms of a scheme [a municipality must provide reasons] (a) for approving or refusing [the amendment to the scheme] the application; and (b) why the [alterations] changes were made, if [the amendment] the application was approved with [alterations] changes [; or (c) for any condition imposed to the amendment of a scheme, if the amendment to the scheme has been approved subject to conditions (i) that had not been dealt with in the application for the amendment of the scheme; or (ii) that differ substantially from a condition proposed in the application]."; and (g) by the deletion of subsection (6).. Amendment of section 14 of Act 6 of Section 14 of the principal Act is hereby amended (a) by the substitution for the headnote of the following headnote: Persons to be informed of municipality s decision [for] on application for adoption, replacement or amendment of scheme or consent in terms of scheme ; (b) by the substitution for subsection (1) of the following subsection: (1) A municipality must, within 14 days after a decision on an application for the adoption, replacement or amendment of a scheme, or for its consent in terms of a scheme [serve notice of its decision on every person who lodged a written comment in terms of Schedule 1] (a) serve a copy of its decision, including the reasons for its decision and the conditions of approval, if the application was approved subject to conditions, on the applicant; (b) inform the applicant in writing (i) that the applicant has a right of appeal to the Appeals Tribunal in terms of this Act; (ii) of the closing date for the applicant to lodge and appeal; (iii) that the applicant may waive the right to appeal; (iv) whether any comments were received in response to the invitation for the public to comment on the application; (v) that the memorandum of appeal must be hand-delivered to the registrar; (vi) of the contents of a memorandum of appeal; (vii) of the persons that must be notified of an appeal, including their contact details, and the closing date by which they must be notified; (viii) that the applicant has a right to lodge a responding memorandum of appeal

18 18 in response to an appeal by a person who lodged a written comment in terms of items 5(2)(d) or 14(2)(d) of Schedule 1 and the period within which the applicant must lodge a responding memorandum; (ix) of the persons that must be served with a copy of a responding memorandum and the period within which the responding memorandum must be served on them; (x) that the applicant may in writing waive the right to lodge a responding memorandum; (xi) that the Appeal Tribunal can only condone the late lodging of an appeal, if the request for the late lodging on an appeal was received by the registrar before the closing date to lodge an appeal; (xii) of the contents of a request for the late lodging of an appeal; (xiii) of the persons that must be notified of a request for the late lodging of an appeal; (xiv) that the Appeal Tribunal cannot condone any failure to comply with the appeal procedure, including failure to comply with closing dates; and (xv) of the effective date of the municipality's decision; (c) serve a copy of its decision, including the reasons for its decision and the conditions of approval, on every person who lodged a written comment in terms of items 5(2)(d) or 14(2)(d) of Schedule 1; (d) inform persons who lodged a written comment in terms of items 5(2)(d) or 14(2)(d) of Schedule 1 in writing (i) that the person has a right of appeal in terms of this Act; (ii) of the closing date for the person to lodge an appeal; (iii) that the memorandum of appeal must be hand-delivered to the registrar; (iv) of the contents of a memorandum of appeal; (v) of the persons that must be notified of an appeal, including their contact details, and the closing date by which they must be notified; (vi) that the person has a right to lodge a responding memorandum of appeal in response to an appeal by an applicant or another person who lodged a written comment in terms of items 5(2)(d) or 14(2)(d) of Schedule 1 and the period within which the responding memorandum must be lodged; (vii) of the persons that must be served with a copy of a responding memorandum and the period within which the responding memorandum must be served on them; (viii) that the Appeal Tribunal can only condone the late lodging of an appeal, if the request for the late lodging on an appeal was received by the registrar before

19 19 the closing date to lodge an appeal; (ix) of the contents of a request for the late lodging of an appeal; (x) of the persons that must be notified of a request for the late lodging of an appeal; (xi) that the Appeal Tribunal cannot condone any failure to comply with the appeal procedure, including failure to comply with closing dates; and (xii) of the effective date of the municipality's decision."; and (c) by the substitution for subsection (5) of the following subsection: (5) A municipality must within 14 days of a request by [the applicant or any other] a person on whom notice was served in terms of subsection (1), provide the [applicant or that] person (a) with a copy of the municipality s decision and the reasons for the decision; and (b) if the application was approved subject to conditions, with a copy of all the conditions imposed by the municipality [, together with the reasons for imposing those conditions].. Amendment of section 15 of Act 6 of Section 15 of the principal Act is hereby amended (a) by the substitution for the headnote of the following headnote: Appeal against municipality s decision on application for adoption, replacement or amendment of scheme or [failure to decide on amendment of scheme] consent in terms of a scheme"; (b) by the substitution for subsection (1) of the following subsection: (1) A person who (a) applied for the adoption, replacement or amendment of a scheme, or for the municipality's consent in terms of a scheme, or (b) who has lodged written comments in response to an invitation for public comment on [a proposal to adopt, replace or amend] an application for the adoption, replacement or amendment of a scheme or for the municipality's consent in terms of a scheme by the closing date stated in the invitation, who is aggrieved by the decision of the municipality contemplated in section 13(1), may appeal to the Appeal Tribunal; and (c) by the substitution for subsection (2) of the following subsection: "(2) An appellant [contemplated in subsection (1)] must lodge a memorandum of appeal, contemplated in section 113(1), within 28 days of being regarded as having been notified of

20 20 the municipality s decision.". Amendment of section 16 of Act 6 of Section 16 of the principal Act is hereby amended by the substitution for section 16 of the following section: Effective date of municipality s decision on application for adoption, replacement or amendment of scheme or for consent in terms of scheme 16. A decision on an application to adopt, replace or amend a scheme, or to grant consent in terms of a scheme, comes into effect upon (Aa) the date of the municipality's decision (i) if no comments were received in response to the invitation for the public to comment on the application; and (ii) in the case on an application by a person other than the municipality, the applicant has waived the right to appeal; (a) the expiry of the 28 day period referred to in section 15(2), if no appeal was lodged against the decision of the municipality and no application [was made] for the late lodging of an appeal is pending; or (b) the finalisation of the appeal, if an appeal was lodged against the decision of the municipality.. Insertion of sections 16A to 16D in Act 6 of The principal Act is hereby amended by the insertion after section 16 of the following sections: Certification of compliance with conditions 16A.(1) A municipality must certify (a) that the conditions contemplated in section 13(4A)(a) have been complied with before a person may erect a structure on a property or use a property in accordance with the approval; (b) that the conditions contemplated in section 13(4A)(b) have been complied with before a person may construct a building on a property; and (c) that the conditions contemplated in section 13(4A)(c) have been complied with before a person may occupy a building on a property. (2) The prohibition on the use of a property before compliance with the conditions of approval does not prohibit the use of the property for the purposes that it was lawfully used before the approval

21 21 for the adoption of a scheme, the amendment of a scheme or the granting of consent in terms of a scheme, unless a municipality directed otherwise in its conditions of approval. (3) The prohibition on the occupation of a building before compliance with the conditions of approval does not prohibit the occupation of a building that was lawfully in existence on a property before the approval for the adoption of a scheme, the amendment of a scheme or the granting of consent in terms of a scheme, unless a municipality directed otherwise in its conditions of approval. Building plan approval contrary to a municipality's scheme or consent in terms of a scheme invalid 16B.(1) A municipality or any other organ of state may not approve a building plan that is in conflict with a municipality's scheme or consent in terms of a scheme. (2) A building plan that is in conflict with a municipality's scheme or consent in terms of a scheme is invalid. Initiation of cancellation by municipality of consent in terms of a scheme, if rights have not been fully exercised 16C.(1) A municipality may serve notice on the owner (a) warning the owner that it may cancel the rights that the owner have not exercised, which may include initiating the phasing of the approved layout plan and cancelling the relevant part of the approved layout plan; and (b) specifying the period in which the rights must be fully exercised, if (i) the rights granted by a municipality by consent in terms of a scheme have not been fully exercised within five years from the date on which the municipality s approval became effective in terms of section 16; and (ii) the municipality is of the opinion that the development will not be completed within a reasonable period. (2) A municipality may withdraw a notice contemplated in subsection (1) at any time before the expiry of the period specified therein. (3) A notice contemplated in subsection (1) is of no force and effect if a municipality fails to act in

22 22 terms of the notice within a period of six months after the expiry of the period contemplated in the notice. (4) Where an owner fails to fully exercise a municipality's consent in terms of a scheme within the time frame specified by the municipality in terms of subsection 16B(1)(ii), the municipality may cancel the consent, including its approval for the part of the development for which the owner has not fully exercised the consent. Cancellation of municipality s consent in terms of scheme 16D.(1) A municipality may initiate the cancellation of its consent in terms of a scheme for (a) land that it owns; (b) land that vests in it; (c) land that it is in the process of acquiring; or (d) land for which rights have not been fully exercised contemplated in section 16A. (2) The following persons may apply to a municipality for the cancellation of its consent in terms of a scheme (a) the owner of the land; and (b) a person acting with the written consent of the owner of the land. (3) If land that is the subject of an application to a municipality for the cancellation of its consent in terms of a scheme, is transferred to a new owner, the new owner may continue with the application as the legal successor-in-title to the previous owner. (4) An application to a municipality for the cancellation of its consent in terms of a scheme must be accompanied by (a) an application form; (b) a written motivation in support of the application; (c) proof of registered ownership and a copy of the diagram for the property; (d) the written consent of the registered owner of that land, if the applicant is not the owner thereof; (e) any other plans, diagrams, documents, information or fees that a municipality may require. (5)(a) Before considering an application for the cancellation of its consent in terms of a scheme, a