Member Article

The Constitutional Court has confirmed a decision of the Western Cape High Court that section 44 of the Land Use Planning Ordinance is unconstitutional and invalid, thereby closing off the ability of developers and objectors to appeal to province to overturn and replace unfavourable rezoning, subdivision and departure decisions made by local authorities. This decision confirms the Constitutional Court’s interpretation of the Constitution’s division of functional competences and applies throughout the country.

The ruling gives local authorities the final say on how land inside their boundaries is developed and effectively puts the traditional appeal function of experienced provincial planning departments to pasture. The decision means that parochial local (municipal) interests are likely to prevail with only indirect provincial oversight having any sway on local authority decisions. The decision of the Constitutional Court takes effect immediately but does not have retrospective effect, which means that only those appeals that have already been decided or those appeals that are still pending will not be affected by the decision.

The Constitutional Court acknowledged that there is pending national and provincial legislation that deals with provincial and local authority planning. The Constitutional Court decision appears to be consistent with this new land use planning regime which envisages that rezoning, subdivision and departure applications will be decided by municipal planning tribunals with appeal decisions being made by the executive authority of the local authority. This will however raise questions as to the independence of the appeal authority as a separate sphere of government will no longer consider appeals because these will in the future be internally dealt with within the local authority itself.

Should you have any queries relating to this recent Constitutional Court judgment or the pending land use planning regime and how this may affect your proposed developments, feel free to contact James Brand ([email protected]) and Stephen Levetan ([email protected]).