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Property owners obtain certainty

This comes after a protracted legal process in which the City Council first applied to the High Court for a declaratory order on the legality of certain decisions taken by the Gauteng Development Tribunal which were in conflict with the approved development plans of the City Council.

That application was turned down by the High Court, after which the Council took the judgment on appeal to the Appeal Court. The Appeal Court found in favour of the Council, but referred the case to the Constitutional Court to decide on the constitutionality of its judgment.

In terms of relevant legislation, the City Council is obliged to annually compile and submit an Integrated Development Plan (IDP) to the Premier. This plan maps the future spatial development of the City. All infrastructure planning, budgeting and provision, including electricity, sewage disposal, storm water, transportation and all social services, is then conducted based on the IDP. Council’s annual budget is aligned with the IDP in order to provide the funds required for the provision of such services. Once the Premier approves the IDP it becomes the official policy of council, and by implication, that of the province. The City Council is then bound to apply the policy on all development proposals contained in the IDP.

On several occasions, property owners and developers submitted rezoning and other town planning applications to the Premier’s office in terms of the Development Facilitation Act instead of submitting applications to the City Council. The Gauteng Development Facilitation Tribunal considered the applications and the Premier finally decided on such applications.
Several decisions of the Premier in the past were in direct conflict with the approved policies of Council. Those decisions had a direct impact on the infrastructure plans of the city.

The Council approached the High Court pointing out the anomalies of the process and requested the Court to declare on the role and function of the Premier in deciding on development applications. The High Court at the time found in favour of the Premier. The decision of the High Court called into question the enforcement of the City Council’s development planning policies. In terms of legislation, the city is required to conduct an extensive public participation process before approving its IDP and submitting it to the Premier for his approval.

However, if property owners and developers for any reason decided to apply to the Premier for approval of development applications, which are in direct conflict with the approved policies of Council, the Premier could approve, and in the past has approved such applications.

The Appeal Court established that municipal planning is reserved for municipalities by the constitution, and that constitutionally it cannot be dealt with by any body other than a municipality. The judgment stated categorically that “The Constitution does not permit provincial bodies to take on the function of municipal planning...” That judgment has now been confirmed by the Constitutional Court. Parliament has been given twenty four months within which it must remove all anomalies from the Act. In the meantime, the Gauteng Development Facilitation Tribunal cannot accept any new applications, nor can it make any decisions contrary to the Council’s policy on applications which are yet to be considered.

Councillor Christo Botes, DA Spokesperson on Development Planning in the City of Johannesburg, says that: “The Democratic Alliance welcomes the judgment by the Constitutional Court. The City and its residents cannot be held to ransom by property owners who develop property in contradiction to the Councils’ Spatial Planning policies. Whereas in the past, the Province has allowed virtually any development to take place without taking into account the wishes of local residents and the Council, future developments will have to comply with the City’s approved plans and policies. This will ensure certainty in the property market as residents, investors and property developers will now have a clear knowledge and understanding of what land uses will be allowed in any given area. It will also allow council to plan and provide infrastructure in a planned and orderly fashion, without having to make provision for ad-hoc developments in areas where the provision of infrastructure is prohibitively expensive.”

Councillor Botes says that the finding of the Constitutional Court will entrench the rights of property owners to decide on the environment in which they want to live with their families.