Municipal Planning By-law, 2015

This is the version of this By-law as it was from 29 June 2015 to 30 June 2016. Read the latest available version.

Jurisdiction

Cape Town

Date

Language

English

Type

By-law

Publication

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Municipal Planning By-law, 2015

Published in Western Cape Provincial Gazette 7414 on 29 June 2015
Assented to on 25 March 2015
Commenced on 1 July 2015 by Municipal Planning: Commencement
[This is the version of this document as it was from 29 June 2015 to 30 June 2016.]

Preamble

WHEREAS section 156(1) of the Constitution of the Republic of South Africa, 1996 confers on municipalities the executive authority and right to administer local government matters set out in (Act 16 of 2013) and the Western Cape Provincial Legislature has enacted the Land Use Planning Part B of Schedule 4 and Part B of Schedule 5 to the Constitution;WHEREAS Part B of Schedule 4 to the Constitution lists municipal planning as a local government matter;WHEREAS section 156(2) of the Constitution empowers municipalities to make and administer laws for the effective administration of matters that it has the right to administer;WHEREAS Parliament has enacted the Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013) and the Western Cape Provincial Legislature has enacted the Land Use Planning Act (Act 3 of 2014), which among other things set out development principles which apply to all organs of state responsible for the implementation of legislation regulating the use and development of land;WHEREAS the City intends to regulate and control municipal planning matters within the geographical area of the City.AND NOW THEREFORE, BE IT ENACTED by the Council of the City of Cape Town as follows:

Chapter 1
Definitions

1. Definitions

In this By-Law, unless the context indicates otherwise –"adopt", in relation to a spatial development framework, development management scheme, policy or strategy, means the approval thereof by the City;"advisory panel" means the advisory panel contemplated in section 121;"appeal authority" means the appeal authority contemplated in section 114(3);"applicant" means a person contemplated in section 40;"approval" means permission granted in terms of this By-Law and includes the conditions of approval;"authorised official" means an employee of the City responsible for carrying out any duty or function or exercising any power in terms of this By-Law and includes an employee delegated or designated to carry out or exercise such duty, function or power;"base zoning" means the zoning before the application of any overlay zoning and may include a subzoning as contemplated in the development management scheme;"City" means the municipality of the City of Cape Town established by Government Notice No 479 of 2000 issued in terms of section 12 the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998), and where the context so requires, includes –(a)the Municipal Council;(b)another political structure or a political office bearer of the City, authorised or delegated to perform a function or exercise a power in terms of this By-Law;(c)the Municipal Planning Tribunal authorised or delegated to perform a function or exercise a power in terms of this By-Law;(d)the City Manager; and(e)an authorised official;"City Manager" means the person appointed as the accounting officer of the City in terms of section 54A of the Municipal Systems Act;"commencement of construction" means to have begun a continuous programme of physical, on-site construction in accordance with building plans approved in terms of the National Building Regulations and Building Standards Act, 1977, and which has gone beyond site clearing, excavation or digging trenches in preparation for foundations;"community facilities" includes play equipment, street furniture, crèches, clinics, sports fields, indoor sports facilities and community halls;"consent use" means a land use permitted in terms of a particular zoning with the approval of the City;"councillor" means a member of the Municipal Council;"date of notification" means the date contemplated in section 111(6);"Deeds Registries Act" means the Deeds Registries Act, 1937 (Act 47 of 1937);"Department" means the directorate of the City responsible for spatial planning, land use management and building development management;"departure" means a permanent departure or a temporary departure;"determination" includes any conditions associated with the determination;"development charge" means a once-off charge imposed by the City on a developer as a condition of approval of a land development application in order to cover the cost of municipal engineering services required as a result of an intensification of land use;"development edge line" means a demarcated edge line as depicted in the municipal spatial development framework;"development management scheme" means the development management scheme contemplated in section 26(2);"development rule" means a provision, restriction or condition in the development management scheme that sets out the permissible extent of the land use in terms of a zoning;"deviation" in relation to a spatial development framework, means(a)an approval which departs from the provisions of the municipal spatial development framework contemplated in section 22(2) of SPLUMA;(b)a deviation from the provisions of the municipal spatial development framework authorised by section 9(1) of this By-Law; or(c)a deviation from the provisions of a district spatial development framework or local spatial development framework authorised by section 16(2)(b) of this By-Law;and "deviate" has a corresponding meaning;"diagram" means a diagram as defined in section 1 of the Land Survey Act;"district spatial development framework" means a district spatial development framework contemplated in section 11;"effective date of decision" means the date contemplated in section 105(2);"engineering service" means a system for the provision of water, electricity, gas, roads or storm water drainage, or collection and removal of solid waste or sewerage, required for the purpose of land development;"engineering services agreement" means an agreement between an applicant and the City in cases where an applicant constructs or installs external engineering services in lieu of the payment in full or in part of a development charge and in which the parties agree on their respective roles in the construction, installation and financing of infrastructure, including their respective responsibilities for maintenance and upkeep of infrastructure from the date of installation to the date of transfer of the land;"general plan" means a general plan as defined in section 1 of the Land Survey Act;"Integrated Development Plan" means the plan envisaged in section 25 of the Municipal Systems Act;"land development" means the erection of a building or structure on land or the change in use of land, including township establishment, the rezoning, the subdivision or consolidation of land or any deviation from the land use or use permitted in terms of the development management scheme, and "development of "land" and "develop land" have corresponding meanings;"land" means any land unit or any portion of a land unit, and includes any improvement or building on the land and any real right in land;"land unit" means a portion of land registered or capable of being registered in a deeds registry and includes a portion of land to which a registered servitude right or registered lease relates;"land use" means the purpose for which land is or may be used lawfully in terms of the development management scheme;"Land Use Planning Act" means the Western Cape Land Use Planning Act (Act 3 of 2014);"Land Survey Act" means the Land Survey Act, 1997 (Act 8 of 1997);"local spatial development framework" means a local spatial development framework contemplated in section 12;"Mayor" means the Executive Mayor of the City;"Municipal Council" means the Municipal Council of the City;"Municipal Planning Tribunal" means the Municipal Planning Tribunal referred to in section 114;"municipal spatial development framework" means the municipal spatial development framework adopted by the City in terms of Chapter 5 of the Municipal Systems Act;"Municipal Systems Act" means the Local Government: Municipal Systems Act, 2000 (32 of 2000);"National Building Act" means the National Building Regulations and Building Standards Act, 1977 (Act 103 of 1977);"notification" has the meaning contemplated in section 111 and includes the method by which the City may "call for" or "require" a person to do something, and "notice" and "notify" have corresponding meanings;"Ordinance" means the Land Use Planning Ordinance, 1985 (Cape) (Ordinance 15 of 1985);"organ of state" means an organ of state as defined in section 239 of the Constitution;"overlay zoning" means a zoning, in addition to the base zoning, stipulating the purposes for which land may be used and the development rule which may be more or less restrictive than the base zoning;"owner" includes their successor-in-title and means –(a)the person whose name is registered in a deeds registry as the owner of land;(b)the beneficial owner of land in law;(c)the owner of land by virtue of vesting in terms of this By-Law or another law; and(d)the legal representative of the owner or their estate where the registered owner lacks legal capacity for any reason including age, mental health, mental disability, death or insolvency;"owners" association" means an owners" association established or deemed to have been established in terms of section 61;"permanent departure" means right to use land otherwise than in accordance with the development rules of the zoning applicable to the property;"person" means a natural or juristic person and includes the state;"planning law" means the Townships Ordinance no 33 of 1934 or the Ordinance, whichever is applicable. "prescribe" includes prescribe by procedure, standard, requirement or rule;"previous zoning scheme" means –(a)a town planning scheme;(b)a town planning scheme in the course of preparation; or(c)zoning scheme regulations in operation in the geographic area of the City at any time before the commencement of this By-Law;"private street" means privately owned land which provides vehicle access to a separate land unit or land units and which is designated as private road or private street on an approved general plan, diagram or approved plan of subdivision; it may include ancillary access control infrastructure such as a gatehouse, guardhouse, refuse room and utility room, but does not include a driveway on a property or a servitude;"Province" means the Province of the Western Cape;"Provincial Government" means the provincial government of the Province;"Provincial Minister" means the member of the Executive Council in the Provincial Government responsible for land use planning;"public place" means any open or enclosed place, park, public street or thoroughfare or other similar area of land shown on a general plan or diagram that is for use by the general public and is owned by, or vests in the ownership of, the City, and includes a public open space and a servitude for any similar purpose in favour of the general public;"public road" means any highway, thoroughfare, lane, footpath, sidewalk, alley, passage, bridge or any other place of a similar nature or any portion thereof serving as a public right of way, whether for vehicles or pedestrians, established or proclaimed in terms of the former Municipal Ordinance, 1974 (Ordinance 20 of 1974) or any equivalent current municipal by-law and/or national legislation and includes a public street;"public street" means any land indicated on an approved general plan, diagram or map as having been set aside as a public right of way, whether for vehicles or pedestrians or public or urban squares, of which the ownership is registered in favour of or vests in the City in terms of this ByLaw or any other law;"registered planner" means a professional or technical planner registered in terms of the Planning Profession Act, 2002 (Act 36 of 2002), unless the South African Council for Planners has reserved the work to be performed by a registered planner in terms of this Act for a particular category of registered persons in terms of section 16(2) of the Planning Profession Act, 2002, in which case a registered planner means the category of registered persons for whom the work has been reserved;"Registrar of Deeds" means the Registrar of Deeds as defined in the Deeds Registries Act;"restrictive condition" means any condition registered against the title deed of land restricting the use, development or subdivision of land concerned, excluding servitudes creating real or personal rights;"rezoning" means the change of zoning in relation to a particular land unit or units in terms of this By-Law;"road" includes a public street, a public road and a private street;"road reserve" means a designated area of land that contains or is able to contain a public street or public road, including the road and associated verge, which land may or may not be defined by cadastral boundaries;"Sectional Titles Act" means the Sectional Titles Act, 1986 (Act 95 of 1986);"sectoral plan" means any written strategy or plan which deals mainly with one of the sectors or elements or particular subjects that form part of an integrated development plan and which may be an economic, land reform, environmental, housing, water, service or transport plan;"service master plan" means a high level infrastructure plan prepared by the City to cater for future development and includes an Integrated Transport Plan, Electricity Business Plan, Bulk Water and Sanitation Master Plan, Storm Water Master Plan and Integrated Waste Management Plan;"spatial development framework" means a national spatial development framework, regional spatial development framework (approved by either national or provincial government), provincial spatial development framework, municipal spatial development framework, district spatial development framework or local spatial development framework;"SPLUMA" means the Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013) and regulations promulgated in terms of thereof;"state" includes an organ of state as defined in section 239 of the Constitution and a state-owned enterprise listed as a public entity in Schedule 2 or 3 to the Public Finance Management Act, 1999 (Act 1 of 1999);"street" means "public street" or "private street";"structure plan" means a structure plan approved in terms of section 4(6) or 4(10) of the Ordinance;"subdivision plan" means a plan which depicts the relative location of newly proposed land units on a land unit that is to be subdivided;"subdivision", in relation to land, means the division of a land unit into more land units and includes any physical activity on the land to prepare the land for subdivision but does not include the surveying of land for the preparation of a subdivision plan and "subdivide" has the same meaning;"subdivisional area" when referring to a zoning, means the subdivisional overlay zoning permitting subdivision provided for in the development management scheme; and when referring to land, means land zoned with a subdivisional overlay zoning;"substitution scheme" means a zoning map or development rules which replaces, in terms of planning law, any other zoning map or portion thereof;"Surveyor-General" means the Surveyor-General as defined in the Land Survey Act;"temporary departure" means the right to use land on a temporary basis for a purpose for which no provision is made in the zoning applicable to the property;"this By-Law" includes the development management scheme and the other schedules to this ByLaw;"title deed" means any deed registered in a deeds registry recording the ownership of land or a real right in land;"urban edge line" means a development edge line to demarcate the appropriate geographic limit to urban growth or to protect natural resources;"use" means the use of land for a purpose or the improvement of land;"use right", in relation to land, means the right to use that land in accordance with its zoning, a departure, consent use, condition of approval or any other approval granted in respect of the rights to use the land;"zone" when used as a verb in relation to land, means to designate land for a particular zoning;"zoning" includes base zoning and overlay zoning and means a land use category prescribed by the development management scheme regulating the use of and development of land and setting out –(a)the purposes for which land may be used; and(b)the development rules applicable to that land use category;"zoning map" means the map of the zoning scheme contemplated in section 29(1);"zoning register" means the zoning register of the zoning scheme contemplated in section 32; and"zoning scheme" means the zoning scheme contemplated in section 25(1).

Chapter 2
Application of this by-law and conflict of laws

2. Application of this By-Law and conflict of laws

(1)This By-Law applies to all land within the geographical area of the City, including land owned by the state.

(2)This By-Law binds every owner and every user of land, including the state.

(3)When considering an apparent conflict between this By-Law and another law, a court must prefer any reasonable interpretation that avoids a conflict over any alternative interpretation that results in a conflict.

(4)If there is a conflict between this By-Law and another by-law, this By-Law prevails over the affected provision of the other by-law in respect of any municipal planning matter.

Chapter 3
Spatial planning

Part 1 – Introductory provisions concerning spatial development frameworks

3. Spatial development frameworks

(1)The City’s spatial development frameworks are –

(a)the municipal spatial development framework;

(b)district spatial development frameworks; and

(c)local spatial development frameworks.

(2)The Cape Town Spatial Development Framework adopted as part of the Integrated Development Plan as amended, until it is replaced, is deemed to be the municipal spatial development framework.

(3)The purposes of the City’s spatial development frameworks include –

(a)providing a longer-term spatial depiction of the desired form and structure of the geographic area to which it applies;

(b)providing land use management guidelines regarding the appropriate nature, form, scale and location of development;

(c)contributing to spatial co-ordination;

(d)guiding investment and planning of municipal departments and where appropriate other spheres of government;

(e)guiding investment for the private sector;

(f)reflecting relevant provisions of strategies adopted by the Municipal Council; and

(g)guiding decision making on applications.

Part 2 – The municipal spatial development framework

4. Process for drafting the municipal spatial development framework

(1)The City must adopt a process, which includes a public participation process, for drafting the municipal spatial development framework which complies with the Municipal Systems Act and any other applicable law.

(2)Upon completion of the process contemplated in subsection (1), the Municipal Council must consider a written report from the Department that must at least –

(a)assess the draft municipal spatial development framework;

(b)summarise the process of drafting the municipal spatial development framework;

(c)summarise the consultation process;

(d)set out the City’s responses to the comments received;

(e)describe how the City has complied with, is complying with and intends to comply with the requirements of relevant national and provincial legislation, and relevant provisions of strategies adopted by the Municipal Council; and

(f)recommend the adoption of the draft municipal spatial development framework.

(3)A registered planner must sign the report required by subsection (2).

5. Process for amending the municipal spatial development framework

(1)Section 34 of the Municipal Systems Act and the contemplated regulations govern the process for an amendment of the municipal spatial development framework.

(2)Sections 4(2) and 6 apply to amendments to the municipal spatial development framework as a result of comments received by the Provincial Minister as contemplated in section 32 or 33 of the Municipal Systems Act.

(3)The City Manager may prescribe the form and process governing a request to amend the municipal spatial development framework other than as a result of the annual review process contemplated in section 34(a) of the Municipal Systems Act.

6. Decision on the adoption or amendment of the municipal spatial development framework

The Municipal Council may –

(a)accept the report envisaged in section 4(2) and adopt the draft municipal spatial development framework in terms of Chapter 5 of the Municipal Systems Act;

(b)adopt or refuse a draft amendment; or

(c)refer the report on the adoption of the draft municipal spatial development framework or draft amendment back for further – (i) specified information; and/or (ii) specified consultation.

7. Submission of municipal spatial development framework to Provincial Minister

Within 10 days of the Municipal Council adopting the municipal spatial development framework or an amendment thereof, the City Manager must submit the following to the Provincial Minister –

(a)a written notice of the decision to adopt or amend the municipal spatial development framework;

(b)the adopted or amended municipal spatial development framework;

(c)a copy of the report referred to in section 4(2); and

(d)a further report or statement to the extent required to comply with section 32(1)(b) of the Municipal Systems Act or section 14 of the Land Use Planning Act or any other legislation.

8. Publication of the adopted or amended municipal spatial development framework

Within 14 days of the Municipal Council adopting the municipal spatial development framework or an amendment thereof, the City Manager must –

(a)publish a notice of its decision to adopt or amend the municipal spatial development framework in the Provincial Gazette and in accordance with section 19;

(b)give notice to the public and publicise a summary in accordance with section 25(4) of the Municipal Systems Act; and

(c)publish a notice of the amendment of the municipal spatial development framework in the Provincial Gazette if the municipal spatial development framework is amended as contemplated in section 32 or section 33 of the Municipal Systems Act.

9. Status of the municipal spatial development framework

(1)Subject to section 22, the City may deviate from the provisions of the municipal spatial development framework only if site specific circumstances justify the deviation.

(2)In determining whether the site specific circumstances exist, the City must have regard to the development application that has been submitted and any other relevant considerations.

(3)If an application is inconsistent with the municipal spatial development framework, the applicant must describe the inconsistency in –

(a)the application; and

(b)the advertisement of the application.

(4)The municipal spatial development framework does not confer or take away rights.

(5)If there is a conflict between the municipal spatial development framework and a district spatial development framework or local spatial development framework, the municipal spatial development framework prevails over other development frameworks to the extent of the conflict.

10. Review of the municipal spatial development framework

(1)When reviewing the integrated development plan in terms of section 34(a) of the Municipal Systems Act, in relation to the review of the municipal spatial development framework, the City must consider at least –

(a)the record of deviations from the municipal spatial development framework and the reasons for the deviations;

(b)the requirements of provincial and national legislation relating to the municipal spatial development framework;

(c)relevant provisions of strategies adopted by the Municipal Council; and

(d)comments received in the review process.

(2)Sections 5(1), 6 and 7 apply to a proposal to amend the municipal spatial development framework resulting from the review process.

Part 3 – District spatial development frameworks and local spatial development frameworks

11. District spatial development frameworks

(1)The Municipal Council may adopt a district spatial development framework for a specified geographic area within the geographical area of the City.

(2)A district spatial development framework must –

(a)align with and give further effect to the municipal spatial development frameworks;

(b)identify and depict on a map current and future significant elements which give structure or spatial order to a settlement including road circulation networks, public transport systems, public open spaces, public facilities, and external engineering services;

(c)provide land use management guidelines that relate to –

(i)desirable land use patterns;

(ii)appropriate development densities and urban form;

(iii)provision of public open space and public facilities;

(iv)environmentally sensitive areas; and

(v)high potential agricultural land;

(d)provide a spatial representation to support spatial restructuring and integration within the district by indicating –

(i)areas where public and private development should be prioritised and facilitated;

(ii)areas where strategic intervention is required to enable desired changes to land use or urban form;

(iii)locations of future publicly-funded housing developments;

(iv)key infrastructure requirements to enable development of areas that have been prioritised;

(e)support the municipal spatial development framework by depicting spatially the co-ordination, alignment and integration of relevant sectoral plans or policies of City departments;

(f)include an implementation plan setting out how the proposals of the district spatial development framework are to be achieved; and

(g)identify areas where more detailed local spatial development frameworks must be developed.

12. Local spatial development frameworks

(1)The Municipal Council may adopt a local spatial development framework for a specified geographic area within the geographical area of the City.

(2)A local spatial development framework must align with and give further effect to the municipal spatial development framework and any relevant district spatial development framework by providing more detailed, local planning.

(3)Where relevant, a local spatial development framework may contain the elements envisaged in sections 11(2)(a) to 11(2)(e).

(4)A local spatial development framework may include an implementation plan which must among other things inform and guide actions aimed at realising proposals of the local spatial development framework.

13. Process for drafting or amending a district spatial development framework or a local spatial development framework

(1)If the City intends to adopt a district spatial development framework or a local spatial development framework, the City must –

(a)specify the geographic area concerned; and

(b)approve the drafting of a district spatial development framework or a local spatial development framework as the case may be.

(2)If the City intends to adopt or amend a district spatial development framework or a local spatial development framework, the City must adopt a process for doing so.

(3)Upon completion of the consultation process and the adopted process, the Department must provide a written report that must at least –

(a)describe the manner in which –

(i)the draft district spatial development framework or draft amendment thereof aligns to the municipal spatial development framework and relevant provisions of strategies adopted by the Municipal Council; or

(ii)the draft local spatial development framework or draft amendment thereof aligns to the municipal spatial development framework, the relevant district spatial development framework and relevant provisions of strategies adopted by the Municipal Council; as the case may be;

(b)summarise the process of drafting the district spatial development framework, local spatial development framework or amendment;

(c)summarise the consultation process;

(d)set out the City’s responses to the comments received; and

(e)recommend the adoption of the draft district spatial development framework, draft local spatial development framework or draft amendment.

14. Decision on the adoption or amendment of a district spatial development framework or a local spatial development framework

The Municipal Council may –

(a)accept the report envisaged in section 13(3) and adopt the draft district spatial development framework, draft local spatial development framework or draft amendment, with or without a condition;

(b)refer the report envisaged in section 13(3) back for further specified information and/or further specified consultation; or

(c)refuse to adopt the draft district spatial development framework, draft local spatial development framework or draft amendment.

15. Publication of the adopted or amended district spatial development framework or local spatial development framework

Within 30 days of adopting or amending a district spatial development framework or a local spatial development framework, the City must publish the adopted or amended district spatial development framework or local spatial development framework in accordance with section 19.

16. Status of a district spatial development framework and a local spatial development framework

(1)If an application is inconsistent with an applicable district spatial development framework or a local spatial development framework, the applicant must describe the inconsistency in –

(a)the application; and

(b)the advertisement of the application.

(2)A person who takes a decision in terms of this By-Law –

(a)must be guided by an applicable district spatial development framework and/or local spatial development framework;

(b)subject to section 22, may deviate from the provisions of an applicable district spatial development framework and/or local spatial development framework only if the circumstances justify the deviation.

(3)A district spatial development framework and a local spatial development framework do not confer or take away rights.

17. Review of a district spatial development framework or a local spatial development framework

(1)The City must review a district spatial development framework or a local spatial development framework or structure plan at least every 10 years.

(2)The City Manager must give notice in the media in accordance with section 21 of the Municipal Systems Act of the City’s intention to review a district spatial development framework or a local spatial development framework and give details of the person to whom and the date by which any comments or suggestions to be taken into account in the review process, must be submitted.

(3)When conducting a review for the purposes of subsection (1), the City must consider at least –

(a)the record of deviations from the district spatial development framework or local spatial development framework and the reasons for the deviations;

(b)any relevant amendments to the municipal spatial development framework;

(c)the requirements of provincial and national legislation relating to the municipal spatial development framework;

(d)relevant provisions of strategies adopted by the Municipal Council; and

(e)comments received in the review process.

18. Withdrawal of a district spatial development framework or a local spatial development framework

(1)If the City intends to withdraw a district spatial development framework or a local spatial development framework, the City must comply with subsection (2).

(2)Upon completion of the consultation process and the adopted process, the Department must provide a written report which must at least –

(a)describe the reasons for withdrawing the district spatial development framework or the local spatial development framework or structure plan;

(b)summarise the consultation process;

(c)set out the City’s responses to the comments received; and

(d)recommend the withdrawal of the district spatial development framework or local spatial development framework or structure plan.

(3)The Municipal Council may –

(a)accept the report envisaged in subsection (2) and withdraw the district spatial development framework or local spatial development framework or structure plan;

(b)refer the report envisaged in subsection (2) back for further specified information, and/or require further specified consultation; or

(c)refuse to withdraw the district spatial development framework or local spatial development framework or structure plan.

(4)Within 30 days of withdrawing a district spatial development framework or a local spatial development framework, the City must publish the withdrawal in accordance with section 15.

Part 4 – General provisions concerning spatial planning

19. Record of and access to spatial development frameworks

(1)The City must keep, maintain and make accessible to the public, including on the City’s website, the approved municipal spatial development framework, a district spatial development framework and a local spatial development framework and any amendment or withdrawal thereof.

(2)The City must provide a requester, on payment of the prescribed fee, with a copy of the approved municipal spatial development framework, a district spatial development framework and a local spatial development framework and any amendments thereto.

20. Structure plans

(1)A structure plan listed in Schedule 1 and which remains in force in terms of section 16(1)(b) of the Land Use Planning Act is deemed to be a district spatial development framework approved in terms of this By-Law and remains in force indefinitely until withdrawn in terms of this By-Law.

(2)A structure plan approved in terms of section 4(6) or section 4(10) of the Ordinance and listed in Schedule 2 and which remains in force in terms of section 16(1)(b) of the Land Use Planning Act is deemed to be a local spatial development framework approved in terms of this ByLaw and remains in force indefinitely until withdrawn in terms of this By-Law.

(3)Sections 13 to 18, with changes required by the context, apply to the amendment, status or withdrawal of a structure plan.

21. Policies to guide decision making

(1)The City may adopt a policy or guidelines to guide decision making in respect of applications made in terms of this By-Law.

(2)The provisions of section 138 apply to policies contemplated in subsection (1).

22. Record of deviations from spatial development frameworks

(1)A person who takes a decision in terms of this By-Law which deviates from the provisions of the municipal spatial development framework and/or an applicable district spatial development framework and/or local spatial development framework or policy must at the time of making the decision –

(a)record in writing the reasons for the deviation; and

(b)keep a record of the decision and the written reasons for the deviation.

(2)A record of decisions of applications that deviate from the municipal spatial development framework must be kept with the municipal spatial development framework.

23. Spatial development frameworks applicable to land incorporated into the geographic area of the City

When land situated in the geographic area of another municipality is incorporated into the geographic area of the City, any spatial development framework applicable to that area or to part of that area remains in force until the City reviews or amends it in terms of the provisions of this ByLaw.

Chapter 4
Development management

Part 1 – Zoning scheme

24. Zoning

(1)All land within the geographic area of the City must have a zoning.

(2)A zoning may apply to a land unit or part thereof, and a zoning need not follow cadastral boundaries.

(3)The City may, by amendment of the development management scheme, on its own initiative adopt a new overlay zoning or amend or remove an existing overlay zoning.

(4)In respect of each overlay zoning, except a subdivisional areaoverlay zoning, the City must publish in the Provincial Gazette –

(a)which specified area or land units have the overlay zoning;

(b)a reference to a map available on the City’s website that depicts which specified area or land units have the overlay zoning; or

(c)a statement that no specified area or land unit has the overlay zoning.

(5)The City may at any time designate a specified area or land unit to have an overlay zoning, or to no longer have an overlay zoning, by following the process in the development management scheme and must publish the designation in the Provincial Gazette.

(6)The City is not required to follow the process in the development management scheme contemplated in subsection (5) when publishing a notice contemplated in subsection (4) if the area or land unit specified in the notice has the same or a substantially similar overlay zoning as it does when this By-Law comes into operation.

25. Zoning scheme

(1)The zoning scheme comprises –

(a)the development management scheme;

(b)the zoning map; and

(c)the zoning register.

(2)The zoning scheme applies to all land in the geographic area of the City.

26. Development management scheme

(1)The purposes of the development management scheme include –

(a)regulation of use rights and control of the use of land;

(b)facilitation of the implementation of policies and principles set out in relevant spatial development frameworks and binding policies and principles set out in and in terms of national and provincial legislation;

(c)facilitation of efficient, economic and sustainable use of land;

(d)protection of areas with an environment which could be substantially adversely affected by development;

(e)other purposes lawfully prescribed by national or provincial legislation.

(2)The development management scheme is the scheme in Schedule 3. (3) The development management scheme is an integral part of this By-Law and its provisions have force of law.

(4)When considering an apparent conflict between the body of this By-Law and the development management scheme, a court must prefer any reasonable interpretation that avoids a conflict over any alternative interpretation that results in a conflict.

(5)If there is a conflict between the body of this By-Law and the development management scheme, the body of this By-Law prevails over the affected provision of the development management scheme.

27. Review of development management scheme

(1)The City Manager must, at least every five years after the commencement of this By-Law, review the development management scheme.

(2)The City Manager must give notice in the media in accordance with section 21 of the Municipal Systems Act of the City’s intention to review the development management scheme and give details of the person to whom and the date by which any comments or suggestions to be taken into account in the review process, must be submitted.

(3)The City Manager must submit a review report to the Municipal Council setting out for the period under review at least –

(a)the proposed amendments to the development management scheme, including proposed overlay zones, aimed at aligning the development management scheme with the municipal spatial development framework;

(b)the number of deviations from the municipal spatial development framework and the nature and reasons for each deviation;

(c)the response to comments received as a result of the notice published in the media in accordance with subsection (2).

(4)If the Municipal Council approves the recommendations in the review report, the City must commence a process to amend the development management scheme accordingly.

(5)The City must comply with the provisions of section 27 of the Land Use Planning Act prior to adopting any amendment of the development management scheme.

(6)A review contemplated in terms of this section is not required for ad hoc amendments to the development management scheme.

28. Zoning map

(1)The zoning map must –

(a)depict the zoning of every land unit in the City’s geographical area;

(b)depict overlay zones applicable to a land unit; and

(c)be updated within a reasonable time after a use right has been granted or has lapsed.

(2)The zoning map may –

(a)depict the proposed establishment, widening or closure of public streets and public roads;

(b)indicate by means of a symbol that a decision has been taken about a landuse right; and

(c)be kept in electronic format.

29. Adoption, amendment and substitution of zoning map

(1)The zoning map is the zoning map in operation for the City at the commencement of this By-Law as may subsequently be amended or substituted.

(2)A lawful zoning recorded on the zoning map at the commencement of this By-Law remains in force until it lapses or the zoning map is amended or substituted.

(3)The City may amend or, after consultation, substitute the zoning map in terms of this ByLaw.

(4)The substitution contemplated in subsection (3) takes effect when notification of approval of the substituted zoning map is published in the Provincial Gazette or on a future date fixed in the Provincial Gazette.

30. Error in zoning map

(1)An owner who believes that the zoning map contains an error in respect of their property may apply to the City for the zoning map to be corrected.

(2)An owner making an application contemplated in subsection (1) –

(a)must describe the nature of the error;

(b)bears the onus of proving the error and must provide written proof of the lawful land use rights; and

(c)must indicate the correct zoning.

(3)The City must advertise the application –

(a)to another owner if the application materially affects the other owner; and

(b)for public comment if the application materially affects the public.

(4)The City may approve or refuse the application.

(5)If the application is approved, the City Manager must amend the zoning map.

(6)If the City finds an error on the zoning map, the City may on its own initiative amend the zoning map after –

(a)providing notice of the error and of the City’s intention to correct the error to, and inviting representations within a specified time period from –

(i)the owner of the property concerned;

(ii)another owner if the proposed correction materially affects the other owner; and

(iii)the public if the proposed correction materially affects the public;

(b)considering any representations received; and

(c)taking a decision to amend the zoning map.

31. Status of zoning map and exemption of City from liability for any error

(1)The zoning map is the City’s record of the zoning of each land unit.

(2)A zoning recorded in the zoning map is presumed to be the correct zoning unless proved otherwise.

(3)A use right ceases to exist on the day it lapses in terms of this By-Law or a previous zoning scheme even if the zoning map still records the use right as existing.

(4)The City is exempt from liability for any damage which may be caused by –

(a)an error in the zoning map; or

(b)an erroneous representation by the City about a use right or the zoning of a land unit.

32. Zoning register

(1)The City must record in the zoning register –

(a)a decision taken in terms of this By-Law after the commencement of this By-Law to grant –

(i)a rezoning;

(ii)a permanent or temporary departure;

(iii)a consent;

(iv)a consolidation; or

(v)any other permission or approval granted in terms of the development management scheme;

(b)a non-conforming use which has been confirmed in terms of section 37(8); and

(c)any other matter which this By-Law requires to be recorded in the zoning register.

(2)The City may keep the zoning register in electronic format.

33. Access to the zoning map and zoning register

(1)The zoning map is accessible to the public on the City’s website.

(2)The zoning map and zoning register are also available for inspection at the district offices of the Department.

(3)The City must provide a requester, on payment of a fee, with a relevant extract in writing from the zoning map and zoning register.

(4)An extract contemplated in subsection (3) must be in writing and signed by an authorised official.

34. Continuation of zoning schemes

If the geographic area of the City is expanded to incorporate land from another municipality then the zoning scheme applicable to that land remains in force until the City amends, repeals or replaces it.

Part 2 – Use right and non-conforming use

35. Use right

(1)A use right vests in land and not in a person.

(2)No person may use or develop land unless the use or development is permitted in terms of the zoning scheme or an approval is granted or deemed to have been granted in terms of this ByLaw.

(3)No person may contravene or fail to comply with a condition of approval imposed or deemed to have been imposed in terms of this By-Law.

(4)A condition of approval imposed or deemed to have been imposed in terms of this By-Law binds a successor-in-title of the land unit.

36. Determination of zoning

(1)Save where land is deemed to be zoned as contemplated in the development management scheme, the City may determine a zoning for land which does not have a zoning.

(2)When the City determines a zoning contemplated in subsection (1), it must have regard to at least –

(a)the lawful use of the land, or the purposes for which it could be lawfully used immediately before the commencement of this By-Law if possible to determine;

(b)the zoning, if any, that is most compatible with that use and any applicable title deed condition;

(c)any permanent departure or consent use that may be required in conjunction with that zoning;

(d)where land was vacant immediately before the commencement of this By-Law, the use permitted in terms of the title deed conditions or, where more than one land use is so permitted, one of such land uses determined by the City; and

(e)where the lawful use of the land and the purpose for which it could be lawfully used immediately before the commencement of this By-Law cannot be determined, the zoning that is most desirable and compatible with any applicable title deed condition together with any departure or consent use that may be required.

(3)When the City determines a zoning contemplated in subsection (1) and where the land is part of a protected area contemplated in the National Environmental Management: Protected Areas Act, 2003 (Act 57 of 2003) or similar legislation, the zoning is the zoning which would be most compatible with the objects of that legislation.

(4)The zoning map must be amended to reflect the zoning determined and deemed to be the zoning of the land.

(5)The City must give notice of its intention to determine a zoning to the owner if it acts in terms of subsection (1).

(6)The City must comply with sections 79 and 80 if it acts in terms of subsection (1). (7) If the lawful use of the land cannot be determined, the City must follow a rezoning process.

37. Non-conforming use

(1)For purposes of this section, ‘non-conforming use’ means the use of land or a building or part thereof for a purpose and in a manner which does not comply with the zoning scheme,

(a)but –

(i)has been so used lawfully for the same purpose and in the same manner continuously since at least 1 June 1950 without a material interruption; or

(ii)which once complied with an applicable previous zoning scheme and since then has been used lawfully for the same purpose and in the same manner continuously without a material interruption; and

(b)is continuously so used from the commencement of this By-Law without an interruption of longer than six months.

(2)For the purposes of subsection (1)(a), a material interruption is regarded as a period of longer than –

(a)six months from 1 June 1950 to 30 June 1986; or

(b)two years from 1 July 1986 to the day before the commencement of this By-Law.

(3)A person claiming a non-conforming use has the onus of proving its existence.

(4)A non-confirming use –

(a)may continue as long as it remains otherwise lawful;

(b)does not constitute an offence in terms of this By-Law; and

(c)is confined to the part of a land unit or building for which proof of its existence exists.

(5)Notwithstanding the existence of a non-conforming use, no person may extend or alter the building concerned without approval in terms of this By-Law and any other applicable law.

(6)If a building or a substantial part of it in respect of which a non-conforming use exists is destroyed or must be demolished because of damage, the City may on application and in its discretion grant permission for its reconstruction within the envelope of the non-conforming use and subject to conditions.

(7)The permission in terms of subsection (6) does not relieve the owner from also obtaining authorisations required by any other applicable law.

(8)The City may on its own initiative or on application make a binding determination as to the existence, nature and extent of a non-conforming use.

(9)The City must advertise the application or intention to make a determination contemplated in subsection (8) –

(a)to the owner concerned if the owner is not the applicant;

(b)to another owner if the application materially affects the other owner; and

(c)for public comment if the application materially affects the public.

(10)An applicant applying for a determination contemplated in subsection (8) must use the prescribed form and must provide any information which the City calls for.

Part 3 – General lapsing provision

38. General lapsing provision

(1)Unless otherwise specified in this By-Law, an approval granted or deemed to have been granted in terms of this By-Law lapses two years after the effective date of decision –

(a)where the land is not used in accordance with the approval; or

(b)where an improvement of land is required in order to use the land in accordance with the approval, lawful commencement of construction has not occurred.

(2)An applicant may apply in terms of and subject to the requirements of section 107 for an extension of the validity periods contemplated in subsection (1), save that an extension may not exceed two years from the date that the original approval lapses.

Chapter 5
General requirements for an application

39. Applications

(1)An applicant who requires approval in terms of this By-Law for the use or development of land must apply to the City in terms of section 42.

(2)An approval granted or deemed to have been granted in terms of this By-Law does not –

(a)release anyone from their duty to also obtain any other authorisation required by this By-Law or another law, and to comply with all law, a title deed restriction or a requirement in the constitution of an owners’ association; or

(b)oblige anyone to use the approval.

40. Persons who may make application in terms of this By-Law

(1)An application may be submitted only by –

(a)the owner of the land concerned;

(b)the City in respect of land which it does not own, for the purposes of sections 44(1) and 48(1);

(c)a person to whom the land concerned has been made available for development in writing by an organ of state or such person's duly authorised agent for housing purposes; or

(d)a service provider responsible for the provision of infrastructure, utilities or other related services.

(2)A person duly authorised to make an application does so on behalf of the owner.

41. Continuation of application by new owner

If land that is the subject of an application in terms of this By-Law is transferred to a new owner, the new owner may continue with the application as the successor-in-title to the previous owner and the new owner will be regarded the applicant for the purposes of this By-Law.

42. Types of applications

A person may make application for the following in terms of this By-Law –

(a)rezoning of land, including rezoning to subdivisional areaoverlay zoning;

(b)permanent departure;

(c)temporary departure;

(d)subdivision of land;

(e)implementation of a subdivision approval in phases;

(f)consolidation of land;

(g)amendment, suspension or deletion of a restrictive condition;

(h)consent or approval in terms of, or the relaxation of, a restrictive condition in a title deed where the restriction relates to use, subdivision, development rules or design criteria;

(i)consent, approval or any other permission or requirement in terms of the development management scheme;

(j)amendment, deletion or addition of conditions in respect of an existing approval granted or deemed to be granted in terms of this By-Law;

(k)extension of the period of validity of an approval;

(l)amendment or cancellation of an approved plan of subdivision or general plan;

(m)permission required in terms of the conditions of approval of an application;

(n)determination of a zoning, a non-conforming use right or any other matter which the City may determine in terms of this By-Law;

(o)correction of a zoning map;

(p)certification of an owners’ association constitution or an amendment;

(q)alteration or amendment of a street name or number;

(r)determination of an administrative penalty as contemplated in section 129(1);

(s)to exempt a subdivision from the need for approval in terms of this By-Law as contemplated in section 67(3);

(t)any other application provided for in this By-Law;

(u)any other application which the City Manager may prescribe in terms of this By-Law.

43. Provisions which govern an application

(1)Unless otherwise provided in this By-Law, an application is governed by –

(a)the general procedures in Chapter 7;

(b)to the extent applicable, the special provisions in Chapter 6; and

(c)any other applicable provision in this By-Law.

(2)In the event of an inconsistency between a special provision in Chapter 6 and another provision of this By-Law, the special provision prevails over the other provision.

Chapter 6
Special provisions for certain applications

Part 1 – Rezoning, departure and consent use

44. Rezoning

(1)Subject to section 35(2) of the Land Use Planning Act and Chapter 7 of this By-Law, the City may on its own initiative rezone land which it does not own to give effect to approved spatial development frameworks and other City policies.

(2)No application for approval of subdivision involving a change of zoning to more than one zone may be considered unless the land is zoned or will be zoned to subdivisional area.

(3)Applications for rezoning to subdivisional area and for approval of subdivision may be considered simultaneously.

(4)The City must as soon as practicable after rezoningland amend the zoning map and the zoning register to reflect the rezoning.

45. Departure

(1)In respect of each land unit, a temporary departure to use land on a basis for which no provision is made in the zoning applicable to the land may not be granted –

(a)for a period exceeding five years;

(b)if another temporary departure is in operation at the time; or

(c)if the temporary departure includes an improvement to land that is not permitted by the zoning applicable to the property.

(2)If a condition for the approval of a temporary departure is not complied with or is contravened, the City may withdraw the approval in terms of section 127.

46. Consent use

A consent use may be granted for a specified period of time or permanently.

47. Lapsing of rezoning, consent use or departure

(1)A rezoning, other than a rezoning to a subdivisional areazoning, consent use or permanent departure approved or deemed to have been approved in terms of this By-Law lapses five years after the effective date of the decision –

(a)where the land is not used in accordance with the approval; or

(b)where an improvement of land is required in order to use the land in accordance with the approval, lawful commencement of construction has not occurred.

(2)A rezoning to a subdivisional area approved or deemed to have been approved in terms of this By-Law lapses five years after the effective date of decision if the applicant does not make an application for approval of subdivision in accordance with the approved subdivisional areazoning.

(3)An applicant may apply in terms of and subject to the requirements of section 107 for an extension of the validity period contemplated in subsections (1) and (2). (4) In the case of a rezoning other than a rezoning to subdivisional area, consent use or departure –

(a)the City must request the owner in writing prior to the lapsing period or extended lapsing period to submit proof that the land is being used in accordance with the approval;

(b)the owner must notify the City in writing within the lapsing period or extended lapsing period that the land is being used in accordance with the approval, failing which the rezoning, consent use or departure is presumed to have lapsed.

(5)If a rezoning lapses, the zoning applicable to the land as reflected on the zoning map prior to the granting of the approval applies.

(6)If a rezoning, including rezoning to a subdivisional area, consent use or departure lapses, the City must as soon as practicable after lapsing amend the zoning map and the zoning register to reflect the lapsing.

Part 2 – Restrictive conditions

48. Removal, suspension or amendment of restrictive conditions

(1)Subject to section 39 of the Land Use Planning Act, the City may on its own initiative or on application remove, suspend or amend a restrictive condition in respect of any land unit.

(2)An applicant must submit –

(a)a certified copy of the title deed to the City; and

(b)the mortgage bond holder’s consent to the application, if relevant.

(3)In addition to the procedures in Chapter 7, notice of the application must be served on –

(a)any provincial or national department if referred to in the title deed restriction;

(b)a person whose rights or legitimate expectations are materially and adversely affected by the application;

(c)any person mentioned in the title deed for whose benefit the restrictive condition was imposed; and

(d)if the City so requires, the public or any other person.

(4)The City must have regard to section 39(5) of the Land Use Planning Act and section 47 of SPLUMA when considering whether to remove, suspend or amend a restrictive condition.

(5)A decision to amend, suspend or remove any restrictive condition –

(a)must be published by notice in the Provincial Gazette within 30 days of the effective date of the decision;

(b)may be unconditional or subject to any condition specified in the notice;

(c)may be permanent or for a period specified in the notice; and

(d)does not lapse.

(6)The City must notify the Registrar of Deeds of the approval of the application as contemplated in subsection (5) and must forward a copy of the notification in the Provincial Gazette.

49. Endorsements in connection with alterations, suspensions or removals of restrictions or obligations

(1)Upon notification of the approval of the application in the Provincial Gazette as contemplated in section 48(5)(a), the owner must, for purposes of the appropriate entries and endorsement, submit to the Registrar of Deeds –

(a)the original title deed;

(b)the original letter of approval; and

(c)a copy of the notification of the Provincial Gazette.

(2)The Registrar of Deeds concerned must, as soon as possible after the publication of the approval of the application in the Provincial Gazette as contemplated in section 48(5)(a), make, free of charge, such appropriate entries in and endorsements on any relevant register, title deeds, diagram or plan in its office or submitted to it as may be necessary to reflect the effect of the notice.

Part 3 – Consolidation

50. Consolidation

(1)A person may not construct a building or structure that straddles the boundaries of two or more contiguous land units without the City’s approval of the consolidation of the land units.

(2)An applicant who requires consolidation of land units must –

(a)obtain the City’s approval (unless the consolidation is exempt in terms of section 67);

(b)submit a diagram for consolidation to the Surveyor-General for approval (who may approve the diagram in terms of the Land Survey Act only if the City has granted approval in terms of this By-Law);

(c)after the effective date of decision but before the City’s approval lapses, obtain registration of the consolidation from the Registrar of Deeds in terms of the Deeds Registries Act.

(3)If the City approves a consolidation or exempts a consolidation in terms of section 67 –

(a)the applicant must, when submitting a diagram to the Surveyor-General for approval, include proof to the satisfaction of the Surveyor-General of –

(i)the City’s decision to approve the consolidation or proof of exemption;

(ii)the City’s conditions of approval, if any; and

(iii)the consolidation plan approved by the City;

(b)the City must –

(i)amend the zoning map, and where applicable, the zoning register accordingly; and

(ii)notify the Surveyor-General.

(4)No building plan submitted in terms of section 7 of the National Building Regulations and Building Standards Act in respect of a building or structure contemplated in subsection (1) may be approved until the consolidation has been registered or a conveyancer provides written proof that the consolidation has been lodged with the Registrar of Deeds for registration.

51. Lapsing of consolidation

(1)Subject to subsection (2), an approved consolidation of land units lapses if the Registrar of Deeds does not register it within five years, after the effective date of decision.

(2)If a consolidation of land units is approved as part of another application, the City may specify as a condition of approval that the applicant must obtain registration of the consolidation by the Registrar of Deeds within that validity period of the other application failing which the consolidation will lapse.

(3)If an approval of a consolidation lapses –

(a)the City must –

(i)amend the zoning map, and where applicable, the zoning register accordingly; and

(ii)notify the Surveyor-General; and

(b)the Surveyor-General must endorse the records of the Surveyor-General’s office to reflect that the consolidation has lapsed.

Part 4 – Subdivision

52. Approval of subdivision

(1)No land may be subdivided without approval of the City in terms of this By-Law, unless the subdivision is exempt in terms of section 67. (2) An application for approval of subdivision must be accompanied by a plan of subdivision showing at least –

(a)the location of proposed land units, public places and land needed for public purposes; and

(b)the proposed zonings in respect of the proposed land units.

(3)An applicant may apply for approval to implement a subdivision in phases.

(4)If the City approves the subdivision, the City must –

(a)impose any conditions of approval which the City considers reasonable, as contemplated in section 100, which must include conditions relating to the provision of engineering services;

(b)in the case of a phased subdivision –

(i)include in the conditions of approval, details of the phasing of the subdivision; and

(ii)require the owner to submit a separate general plan to the Surveyor-General for each phase; and

(c)endorse a plan of subdivision which must be in accordance with the approved subdivision.

(5)Land that on the date of commencement of the Townships Ordinance, 1934 (Ordinance 33 of 1934) had been laid out as a township or had been subdivided by means of an actual survey into land units and public places and the plan is registered in the office of the Surveyor-General concerned, is deemed to be a confirmed subdivision for the purposes of this By-Law except in so far as any portion thereof or any land unit therein is further subdivided or laid out.

53. Approval of general plan or diagram by Surveyor General

(1)If the City approves a subdivision and has endorsed a plan of subdivision, the applicant must submit the general plan or diagram to the Surveyor-General for approval, including proof to the satisfaction of the Surveyor-General of –

(a)the decision to approve the subdivision or an indication on the plan of subdivision (contemplated in section 67(4)) that the subdivision is exempt from the approval requirement;

(b)the endorsed plan of subdivision; and

(c)the conditions of approval contemplated in sections 52(4)(a) and 52(4)(b).

(2)If the City approves a phased subdivision, the applicant must submit a general plan or diagram for each phase to the Surveyor-General for approval.

54. Transfer of land unit arising out of approved subdivision

(1)No person may obtain transfer of a land unit arising out of an approved subdivision or the relevant phase unless –

(a)the Surveyor-General has granted the approval contemplated in section 53; (b) the engineering services required by the conditions of approval contemplated in section 52(4) and any other applicable legislation in respect of the area or the relevant phase on the approved general plan or diagram have been completely installed;

(c)all other conditions of subdivision or the conditions relating to the relevant phase on the approved general plan or diagram and all conditions precedent to the transfer of the land unit have been met; and

(d)where an owners’ association is required,

(i)the City has certified the constitution of the association (as contemplated in section 62(2));

(ii)the association has been or will be established upon transfer of the first land unit (as contemplated in section 61(5)); and

(iii)all land designated in terms of the conditions of approval to be transferred to the owners’ association including private roads and private open space, arising from the subdivision or relevant phase have been, or together with the transfer of the first land unit, will be transferred to the association, without compensation.

(2)No person may obtain transfer of a land unit arising out an approved subdivision, unless the City Manager has issued a transfer certificate contemplated in section 137.

(3)Where an owners’ association is required, an applicant is guilty of an offence if the first land unit arising from a subdivision or relevant phase is transferred without all common property, including private roads and private open spaces originating from that subdivision, being transferred to the owners’ association, and upon conviction is liable to the penalties contemplated in sections 133(2) and 133(3).

55. Confirmation of subdivision

(1)Within a period of five years after the effective date of decision, the applicant must, in respect of the approved general plan or diagram –

(a)meet all of the requirements in section 54(1); and

(b)obtain the registration of transfer in terms of the Deeds Registries Act of at least one land unit.

(2)Upon compliance with subsection (1), the subdivision or phased part thereof is confirmed.

(3)Upon confirmation of a subdivision or part thereof –

(a)the subdivision or part thereof cannot lapse;

(b)the zonings indicated on the approved subdivision plan are the zonings that apply to the land units arising from the subdivision or part thereof;

(c)the zonings contemplated in paragraph (b) cannot lapse; and

(d)the City must, as soon as practicable, amend the zoning map and the zoning register.

(4)No building or structure may be constructed on a land unit forming part of an approved subdivision unless –

(a)the subdivision or relevant phased part thereof is confirmed; or

(b)the City approves the construction before the subdivision or phased part thereof is confirmed.

56. Lapsing of subdivision and extension of validity periods

(1)An approval of a subdivision or of a phased portion thereof lapses if the requirements of section 55(1) are not met.

(2)If only a portion of the general plan complies with sections 54(1)(b) and 54(1)(c), the approval for the subdivision or phased portion lapses.

(3)An applicant may apply in terms of and subject to the requirements of section 107 for an extension of the period to comply with section 55(1). (4) If an approval of a subdivision or a phased portion thereof lapses –

(a)the zoning applicable to the land prior to the granting of the approval of the rezoning to subdivisional area applies;

(b)the City must –

(i)amend the zoning map and, where applicable, the zoning register accordingly; and

(ii)notify the Surveyor-General accordingly;

(c)the Surveyor-General must endorse the records of the Surveyor-General’s office to reflect the lapsing.

57. Land for public places and other uses

(1)When the City approves an application for subdivision, the applicant may be required to provide land for public places, community facilities and engineering services.

(2)The extent of land required for public places is determined in accordance with the normal need arising from the subdivision or in accordance with a policy adopted by the City.

(3)The land required for parks or public open spaces must be provided within the land area concerned with the application or may, with the consent of the City, be provided elsewhere within the municipal area.

(4)Where the application is approved without the required provision of land for parks or public open space, the applicant may be required to make payment of a monetary amount in lieu of the provision of land for that purpose to the City.

58. Ownership of public places and land required for municipal engineering services and community facilities

(1)The ownership of all land designated as a public place on an approved plan of subdivision vests in the City upon confirmation of the subdivision or a phased part thereof.

(2)All land which vests in the City as contemplated by subsection (1) must be registered in the name of the City at the cost of the applicant within a period of six months after confirmation of the subdivision or the phased portion thereof.

(3)In terms of the conditions imposed in terms of section 100, the City may determine that land designated for the provision of municipal engineering services and, where relevant, community facilities on an approved subdivision plan be transferred to the City upon confirmation of the subdivision or a part thereof.

(4)Section 31 of the Deeds Registries Act applies to the transfer of the land to the City.

(5)The City is not liable for compensation for the land referred to in subsection (1) if the City considers the provision of the public place to be a normal need arising from the subdivision or for internal engineering services.

(6)A person who fails to comply with subsection (2) is guilty of an offence and upon conviction is liable to the penalties contemplated in sections 133(2) and 133(3).

59. Servitude in respect of services arising from subdivision

The owner of any land unit arising from a subdivision must, after the confirmation of a subdivision –

(a)without compensation, allow any service relating to the approval of the subdivision to be conveyed across or installed on the land unit in the manner and position that the City or organs of state from time to time reasonably requires. The services include –

(i)gas mains;

(ii)electricity infrastructure;

(iii)telephone cables;

(iv)television cables;

(v)internet cables;

(vi)other electronic infrastructure;

(vii)main and other water pipes;

(viii)sewers;

(ix)storm water pipes;

(x)ditches and channels; and

(xi)surface installations such as mini-substations, meter kiosks and service pillars;

(b)allow access to the works contemplated in paragraph (a) on the land unit at any reasonable time including for the purpose of constructing, altering, repairing, maintaining, removing or inspecting the works; and

(c)receive such material or permit such excavation on the land unit as may be required to allow use of the full width of an abutting street and provide a safe and proper slope to its bank necessitated by differences between the level of the street as finally constructed and the level of the land unit, unless the owner elects to build retaining walls to the satisfaction of and within a period determined by the City.

60. Amendment or cancellation of plan or subdivision

(1)The City may approve an application for the amendment, cancellation or partial cancellation of an approved plan of subdivision, diagram or general plan of –

(a)a subdivision which has not been confirmed; or

(b)a confirmed subdivision, in relation to land units shown on the general plan in respect of which no transfer has been registered in terms of the Deeds Registries Act.

(2)Prior to approving an application in respect of a confirmed subdivision, any affected public place indicated on a plan or diagram or general plan, must be closed in terms of the applicable legislation.

(3)If an application contemplated in this section is approved –

(a)the applicant must submit the amended or cancelled plan or diagram to the SurveyorGeneral to give effect to the amendment or cancellation;

(b)the applicant is liable for any expenditure resulting from the amendment or cancellation incurred by the City in respect of land that must be retransferred to or that reverts to the owner of the remainder of the land;

(c)after the subdivision or part thereof has been confirmed, any public place which has been closed must be given a deemed zoning or rezoned to an appropriate zoning; and

(d)the City must amend the zoning map and zoning register accordingly.

Part 5 – Owners’ association

61. Establishment and operation of an owners’ association

(1)The City may, when approving an application for subdivision, require the applicant to establish an owners’ association for an area determined in the conditions of approval.

(2)The requirement may be imposed only if the applicant satisfies the City that the owners’ association is likely to have the financial resources to maintain the private open space, private roads and other internal engineering services and amenities arising from the subdivision.

(3)The owners of land units arising from the subdivision become members of the owners’ association upon taking transfer of the land unit and may not resign from the owners’ association.

(4)No person may apply to the Registrar of Deeds for registration of, and the Registrar of Deeds may not register, a land unit arising from the subdivision without the consent of the owners’ association, which consent may not be unreasonably withheld.

(5)An owners’ association –

(a)comes into existence upon the transfer of the first unit arising from the subdivision or part thereof;

(b)is a juristic person, has perpetual succession and is capable of suing and of being sued;

(c)has as its members all the owners of land units in the association’s area who are jointly liable for the expenditure incurred in connection with the association; and

(d)must recover expenditure incurred in connection with the association from its members.

(6)The applicant for approval of subdivision must call the first meeting of the owners’ association within 60 days of the transfer of 60% of the land units arising from the subdivision or within two years of the transfer of the first land unit, whichever is the earlier.

(7)An applicant who contravenes subsection (6) is guilty of an offence and upon conviction is liable to the penalties contemplated in sections 133(2) and 133(3). (8) Members of an owners’ association must at the first meeting of the association elect the trustees of the association.

(9)The applicant for approval of subdivision must within 60 days of the first meeting notify the City that the meeting has taken place and provide the City with a copy of the minutes of the meeting.

(10)A home owners’ association established in terms of a previous planning law and which exists at the commencement of this By-Law is deemed to be an owners’ association established in terms of this By-Law.

62. Constitution of an owners’ association

(1)An owners’ association must have a constitution which –

(a)must at least provide for –

(i)the association to act in accordance with the collective mutual interests of its members;

(ii)the control, administration and management of private open space, private streets and other services and amenities arising from the subdivision and buildings on land under the association’s control for the benefit of all members;

(iii)the association’s ownership of private open space, private streets and internal engineering services arising out of the subdivision concerned;

(iv)the obligation to enforce certain conditions of subdivision approval or management plans listed in the conditions;

(v)the matters in subsection 61(5);

(vi)where relevant, any further development which must form part of the association and the procedures for incorporating the development;

(vii)the regulation of at least one yearly meeting of its members;

(viii)the prohibition of the transfer of a land unit arising from the subdivision unless the consent of the association has been obtained and the grounds upon which such consent may be refused;

(ix)arrangements for the transfer of a land unit in the event that the association ceases to function; and

(x)the association’s implementation and enforcement of the provisions of subparagraphs (i) to (viii);

(b)may also provide for –

(i)the control, administration and management of design guidelines for buildings and landscaping on land units arising from the subdivision, provided that design guidelines may not introduce more restrictive development rules or land uses than provided in the development management scheme;

(ii)financial penalties for a member who fails to comply with a provision of the constitution; and

(iii)any other matter determined by the association which does not conflict with this By-Law or any other law.

(2)The City must certify that the constitution of an owners’ association complies with subsection (1)(a).

(3)The constitution of an owners’ association, as certified by the City, is deemed to be the constitution of the owners’ association and comes into force upon the transfer of the first land unit arising from the subdivision.

(4)The constitution of an owners’ association may be amended in accordance with the provisions of the constitution provided that an amendment concerning a matter in subsection (1)(a) becomes effective only when certified by the City.

(5)The constitution of an owners’ association and any amendment thereof must be lodged with the City and the latest copy duly lodged with the City, and which the City has certified in terms of subsection (2) or (4), is presumed to contain the operative provisions of the constitution.

(6)The City is exempt from liability for any damage which may be caused by its certification of a constitution of an owners’ association or an amendment thereof or by the loss of a constitution lodged with the City.

(7)The owners’ association must enforce the provisions of its constitution.

63. Owners’ association which fails to meet an obligation or ceases to function

(1)If an owners’ association fails to meet an obligation in section 61(5)(d) or section 62(1)(a)(ii) and the City believes that the community is adversely affected by the failure, the City may take appropriate action to rectify the failure.

(2)The City may recover any expenditure in respect of the action contemplated in subsection (1) from the owners’ association or its members, who are jointly liable.

(3)The amount of any expenditure so recovered is considered to be expenditure incurred in connection with the owners’ association for the purposes of section 61(5)(d). (4) If an owners’ association ceases to function effectively or to carry out its obligations, the City may give the association a binding instruction to –

(a)hold a meeting and to reconstitute itself; or

(b)dissolve itself, subject to the amendment of the conditions of approval relating to an obligation to establish an owner’s association and the removal of relevant provisions in the title deed.

(5)In determining whether to act in terms of subsection (4)(a) or (4)(b), the City must have regard to –

(a)the purpose of the association;

(b)who will take over the maintenance of internal engineering services and other which the association is responsible for, if at all;

(c)the costs of upgrading the internal engineering services and other infrastructure if the City is to take over the infrastructure;

(d)the impact of the dissolution of the association on its members and the community;

(e)any written representations from the association and its members.

(6)If the association is dissolved, the members must jointly pay the costs of –

(a)the transfer to the City of the association’s property which contains the internal engineering services and private open space;

(b)the upgrading of the internal engineering services to the standards of the City.

(7)In the event that the owners’ association has ceased to function and its constitution does not provide for an owner who wishes to transfer a land unit in that event, the owner must obtain the consent of at least 60% of the members of the association, which consent is deemed to be the consent of the owners’ association unless the constitution provides for another procedure.

Part 6 – Engineering services

64. Definitions in this Part

In this Part, unless the context indicates otherwise –"bulk engineering service" means an engineering service required to provide an engineering service to multiple users in the municipal area and includes the land required for the bulk engineering service;"external engineering service" means a municipal engineering service situated outside the boundaries of a land area required to serve the use and development of the land area and is either a bulk engineering service or a link engineering service;"internal engineering service" means an engineering service situated within the boundaries of a land area required for the use and development of the land area and which is to be owned and operated by the City or a service provider or an owners’ association and may include a bulk engineering service or a link engineering service; and"link engineering service" means an engineering service required to connect an engineering service situated within the boundaries of a land area to a bulk engineering service and includes the land required for the link engineering service.

65. Responsibility for engineering services

(1)The City is responsible for the –

(a)provision of an external engineering service; and

(b)installation of a bulk engineering service if it is installed when planned according to the City’s service master plans and capital budget.

(2)An applicant is responsible for the –

(a)provision and installation of an internal engineering service;

(b)installation of a link engineering service, unless otherwise agreed with the City in writing; and

(c)installation of a bulk engineering service if the land development requires the installation of the bulk engineering service other than in accordance with the applicable service master plan or capital budget of the City, and if the City in the conditions of approval requires the applicant to perform the installation.

(3)If necessary to maintain the functionality of the City’s long-term plans, the City may require an applicant, when installing a bulk engineering service or a link engineering service, to install a service in excess of the capacity of service required for the land development.

(4)Subject to subsection (5), the City must set off from the applicant’s development charge liability the fair and reasonable costs to the applicant of installing the following when required by the City to do so –

(a)the portion of a link engineering service in excess of the capacity of service required for the land development; and

(b)a bulk engineering service.

(5)An applicant is liable for the full costs of installing all bulk engineering services and link engineering services to meet the capacity of service required for the land development even if the costs exceed the total development charges for all phases of the development.

(6)If the City is not the provider of a bulk engineering service or a link engineering service, the applicant must satisfy the City that adequate arrangements have been made with the relevant service provider or sphere of government for the provision of that service.

(7)An applicant must ensure that the design of a bulk engineering service or a link engineering service to be installed by the applicant –

(a)accords with the City’s guidelines, design manuals, engineering practices and approved policies;

(b)meets the standard and capacity required by the City; and

(c)is approved in writing by the City before the engineering service is installed.

(8)If the City requires the applicant to install a bulk engineering service or a link engineering service, the applicant may not commence installation until the applicant has concluded an engineering services agreement with the City.

(9)The construction and installation of engineering services must be in accordance with plans and specifications which the applicant submitted to the City for the development or for each phase of the development and, if applicable, in accordance with the engineering services agreement.

(10)An applicant may install internal engineering services and external engineering services in phases provided that –

(a)such phasing is made a condition of approval; and

(b)the installation must be done in accordance with an approved phasing plan.

(11)The City may grant an exemption from the installation of engineering services in accordance with a policy approved by the Municipal Council or in accordance with applicable legislation.

66. Development charge

(1)The applicant must pay a development charge to the City in respect of the provision and installation of bulk engineering services and link engineering services in accordance with a policy adopted by the City.

(2)The City may grant an exemption or rebate from the payment of development charges in accordance with a policy approved by the Municipal Council or in accordance with applicable legislation.

(3)The development charge is subject to annual escalation as provided for in the approved policy.

Part 7 – Exemption of certain subdivisions and consolidations from the need for approval

67. Exemption of certain subdivisions and consolidations from the need for approval

(1)Subject to subsection (5), the subdivision or consolidation of land units does not require approval in terms of this By-Law if it arises from –

(a)the implementation of a court order;

(b)an expropriation;

(c)an amendment of the common boundary between two or more land units if the resulting change in area of any of the land units is not more than 10%;

(d)the survey of closed streets or public open spaces in order to consolidate with an abutting land unit;

(e)construction or alteration of a public road or a public street;

(f)the need to transfer land units to the City or an organ of state in terms of the Deeds Registries Act for municipal or government purposes;

(g)the registration of a servitude or lease for the provision or construction of –

(i)an engineering service or other service provided by or on behalf of the state or a service provider including communication infrastructure and pipelines;

(ii)an encroachment into a road reserve; or

(iii)a municipal engineering service; or

(h)an existing state- or City-owned housing scheme in order to make ownership of individual land units possible.

(2)Subject to subsection (5), the City may, by notice in the Provincial Gazette, exempt any other type of subdivision application from the need for approval in terms of this By-Law if the exemption does not adversely affect the rights or legitimate expectations of any person.

(3)Subject to subsection (4), the City may, on application, exempt a subdivision from the need for approval in terms of this By-Law if exceptional circumstances exist and if the exemption does not adversely affect the rights or legitimate expectations of any person.

(4)The City must endorse on the plan of subdivision that a subdivision is exempt from the need for approval in terms of this By-Law.

(5)The exemptions in subsection (1) and the power to exempt in subsection (2) do not apply –

(a)if a rezoning or any other land use approval in terms of this By-Law is required;

(b)when engineering services must be moved or provided; or

(c)if the subdivision is required to create individual land units for new housing.

Part 8 – Emergency housing and urgent housing

68. Emergency housing

(1)In this section, unless the context indicates otherwise, ‘emergency housing’ means temporary housing required for households whose homes are uninhabitable as a result of a disaster situation caused by rain, flood, wind, fire, earthquake, accident or other circumstance sufficient in nature and scale to result in widespread homelessness and where the damage or threat to the homes cannot be rectified without temporary relocation and the households cannot be rehoused on site during the rectification.

(2)If the City identifies a need for the establishment of emergency housing on land which is not zoned for the purpose, the City may approve the commencement of a process to declare the land to be an emergency housing site.

(3)The City may approve the commencement of a process to declare the land to be an emergency housing site only if it is satisfied that basic water and sanitation services can be provided to the site and with the consent of owner of the land if the City is not the owner of the land.

(4)The City must advertise its intention to establish an emergency housing site in accordance with the requirements of the Municipal Systems Act and any applicable City policy.

(5)The notice must contain at least the following information-

(a)a description of the land and the physical address of the land;

(b)the reason for declaring the land to be an emergency housing site;

(c)that the City intends to suspend the zoning applicable to the land for a period of 90 days to allow the land to be used for emergency housing which would otherwise be in contravention of the development management scheme;

(d)details of where and when particulars of the matter are available for inspection;

(e)an invitation to members of the public to lodge with the City written comment or objection with reasons;

(f)details of the procedure for that person to submit written comment and the date by when it must be lodged (which may be no less than 10 days after the publication of the notice); (g) a statement that no late comment or objection will be considered; and

(h)a statement that any person who cannot write may come during office hours to a stated place where an authorised official will assist that person by transcribing that person’s comment or objection and reasons.

(6)To the extent necessary, the City must request the Provincial Minister for authorisation in terms of section 60(2) of the Land Use Planning Act to deviate from the provisions of that Act.

(7)After considering any timeous comments, the City may declare the land to be an emergency housing site and suspend the zoning applicable to the land for a period of up to 90 days to allow the land to be used for emergency housing.

(8)A declaration contemplated in subsection (7) –

(a)must be published by the City in the Provincial Gazette within 48 hours;

(b)means that the use of the land for emergency housing will be regarded as consistent with this By-Law; and

(c)does not exempt a person using land for emergency housing from their duty to comply with all other applicable law.

(9)After following a process which complies with the provisions of this section, the City may extend the declaration contemplated in subsection (7) for a further period of up to 90 days.

69. Urgent housing

(1)Subject to subsection (2), the City may declare an application for the establishment of housing to be an urgent housing application.

(2)The City may declare an application to be an urgent housing application only if –

(a)the application relates to government-subsidised housing; and

(b)the land concerned is either –

(i)designated for government subsidised housing in terms of the integrated development plan, the municipal spatial development framework, a district spatial development framework or a local spatial development framework; or

(ii)subject to an established high demand for government subsidised housing and a low supply of housing opportunities.

(3)The City may to the extent necessary exempt the applicant from a procedural requirement or shorten a time period provided for in this By-Law, provided that the procedure must still comply with the provisions of applicable legislation dealing with advertising.

(4)To the extent necessary, the City must obtain authorisation from the Provincial Minister in terms of section 60(1) of the Land Use Planning Act to deviate from the provisions of that Act in the processing of an urgent housing application.

Chapter 7
General procedures for all applications

Part 1 – Making an application

70. Pre-application consultation

(1)The City may require an applicant to consult with an authorised official prior to submitting an application in terms of this By-Law in order to determine among other things the –

(a)information which must be submitted with the application;

(b)nature of the public notification to be carried out in accordance with Chapter 7;

(c)investigations which must be carried out;

(d)further applications required in terms of this By-Law or any other relevant law;

(e)sequence in which the applications should be processed;

(f)combined advertising of different applications required in terms of different laws;

(g)engineering services required and the need to liaise with other organs of state for services regarding engineering services;

(h)liaison required with other organs of state in order to align procedures for processing applications in terms of different legislation; and

(i)whether a package of plans approach is to be followed.

(2)The City Manager may prescribe requirements to determine whether an application requires pre-application consultation, the nature of the information that is required, the procedures to be followed and the time periods within which such meetings must take place.

(3)An applicant may in writing request a pre-application consultation.

(4)The City must keep a record of a pre-application consultation.

71. Information required

(1)An application must be accompanied by at least –

(a)the prescribed application form completed and signed by the applicant and owner, where the applicant is not the owner;

(b)the following authority –

(i)if the applicant is not the owner of the land, a power of attorney signed by the owner and the owner’s contact details;

(ii)if the owner is a company, close corporation, trust, body corporate or an owners’ association, proof that the applicant is authorised to act on behalf of the owner;

(iii)if the owner is a close corporation or company proof that a close corporation or company has not been deregistered and is not in the process of being deregistered;

(iv)if the owner is a trust, a copy of the Trust Deed; and

(v)the consent of any mortgage bond holder, if any, in respect of an application prescribed by the City Manager;

(vi)the name of the representative with whom, and the method by which, the City will liaise and notify;

(c)proof of payment of all fees in respect of the application;

(d)if pre-consultation has taken place, the record of the pre-consultation proceedings;

(e)a full copy of the title deed and if required by the City Manager, a conveyancer’s certificate indicating that there are no restrictive conditions relating to the application;

(f)a locality plan, layout plan or plan depicting the proposed development in its cadastral context;

(g)a copy of the Surveyor-General’s diagram of the subject property or extract from the approved general plan;

(h)written motivation for the application based on the criteria for decision and information to support such motivation;

(i)the information required in the pre-consultation;

(j)sufficient information as required in terms of the City’s approved Development Charge policy;

(k)any additional information that the City Manager prescribes in relation to that type of application;

(l)any additional information that the City Manager calls for in relation to that particular application;

(m)in the case of an application for the subdivision of land, the subdivision plan showing the following –

(i)location of the proposed land units;

(ii)proposed zonings in respect of the proposed land units;

(iii)public places;

(iv)existing structures;

(v)existing and proposed access points;

(vi)servitudes;

(vii)contours with at least a 1m interval or such interval as the City Manager may prescribe;

(viii)existing external engineering services;

(ix)any significant natural features;

(x)street furniture;

(xi)scale of the plan; and

(xii)the proposed names and numbers of streets.

(2)If a subdivision is to be implemented in phases, the subdivision application must be accompanied by a phasing plan showing –

(a)the proposed timeline for the completion of the entire subdivision;

(b)how the subdivision will be implemented and what engineering services must be in place before a certificate contemplated in section 137 may be granted;

(c)that the engineering services for each phase will be able to function independently and in sequence;

(d)the links in engineering services to the next phase;

(e)proposed measures to avoid or mitigate any adverse impact on adjoining land units or proposed land units not located within the phase to be developed; and

(f)a map indicating –

(i)the proposed subdivision which clearly marks, in bold lines, the boundaries of each proposed phase;

(ii)each phase labelled alphabetically; and

(iii)the roads, land units, open spaces, internal engineering services and external engineering services that the applicant will provide for each phase.

(3)If an application for subdivision requires a servitude over land which does not belong to the applicant, the applicant must provide a copy of a written agreement with the owner of the land over which the servitude will be registered.

(4)If an owners’ association is to be established, the applicant must provide an indication of the financial costs of the maintenance of the private open spaces, private streets and internal engineering services and amenities for the owners’ association.

(5)An application must comply with any information specification of the City Manager in respect of that particular application or that type of application relating to matters such as size, scale, colour, number of hard copies, electronic format and file format.

(6)The City Manager may in writing waive any information requirement for a particular application or a type of application.

72. Application fee

(1)Before submitting an application, an applicant must pay the application fee.

(2)The City may refund an application fee only if permitted by the City’s Tariff, fees and charges book.

73. Refusal to accept an application

(1)The City must refuse to accept an application if –

(a)a pre-application consultation is required but has not taken place;

(b)the City has not received the application fee;

(c)the application does not comply with an information specification, lacks necessary information required in terms of section 71 or contains manifestly incorrect information; or

(d)in the City’s opinion, a materially similar application was refused within the previous six months (other than by way of a deemed refusal contemplated in section 75(4)) and there has been no relevant change in law or policy or the factual considerations upon which the decision to refuse was based have not changed.

(2)The City may refuse to accept an application if the application is not accompanied by an application for any other approval required in terms of this By-Law.

74. Acceptance of application and call for additional information

If the City accepts the application, the City Manager must –

(a)acknowledge receipt of an application either by means of a stamp on the submitted application on the day of receipt or in writing;

(b)within 14 days after receipt of the application or such further period as may be agreed in writing either –

(i)call for additional information or fees; or

(ii)notify the applicant that the application is complete.

75. Additional information

(1)The applicant must, within 30 days or such further period agreed with the City Manager, provide the City with any additional information which the City Manager calls for.

(2)If the applicant provides additional information or fees which the City Manager considers inadequate or non-compliant with an information specification, the City Manager may within 14 days or such further period as may be agreed, in writing either –

(a)again call for additional information or fees; or

(b)notify the applicant that the application is closed, in which event subsection (4) applies.

(3)If the applicant does not timeously provide the additional information and does not timeously request the City Manager to make a determination as contemplated in subsection (5), the City may close the application and notify the applicant in writing.

(4)If the City closes the application –

(a)the application is deemed to be refused; and

(b)the applicant may submit a new application and must pay a new application fee.

(5)If the applicant disputes that the additional information is necessary, the applicant may, within 21 days of the call for information, request the City Manager to make a determination.

76. Complete application

(1)An application is complete if the City has received the application fee, all information necessary for the City to assess the application and the information submitted is compliant with all information specifications.

(2)Within 14 days after receipt of any additional information which the City Manager called for and considers adequate and compliant with all information specifications, the City Manager must notify the applicant in writing that the application is complete.

(3)The date that an application is complete is regarded as the date of submission.

77. Withdrawal of application

(1)An applicant may, at any time prior to a decision being taken, withdraw an application on written notice to the City.

(2)If an applicant withdraws their application –

(a)the application fee is not refundable; and

(b)the applicant must submit a new application to proceed with the application.

78. Duties of an applicant

(1)An applicant must ensure that –

(a)no misrepresentation is made to the City;

(b)the City is not misled;

(c)all information furnished to the City is accurate; and

(d)the application does not omit any relevant information.

(2)A person who contravenes subsections (1)(a) or (1)(b) is guilty an offence and upon conviction is liable to the penalties contemplated in sections 133(2) and 133(3).

Part 2 – Notice and comment

79. Notice of application

(1)The City must, in accordance with the requirements of this Part, cause notice to be given of its intention to consider an application.

(2)Subject to sections 80, 81 and 82, the City may require the use of or use any one or a combination of these methods of notice –

(a)publish a notice in the media as contemplated in section 81;

(b)serve a notice to a person as contemplated in section 82; (c) serve a notice of no objection as contemplated in section 84.

(3)The City may, in addition to the methods contemplated in subsection (2), require the applicant to display a site notice which must –

(i)be laminated and of a size of at least 60 cm by 42 cm;

(ii)be displayed on every boundary of the land unit or units concerned which abut a street or at any other conspicuous place on the unit or units which the public is likely to see;

(iii)be displayed for a period and from a date set by the City Manager, which may not be less than 30 days; and

(iv)be replaced if it is damaged or removed during the notification period.

(4)Where an applicant gives notice, the applicant must provide proof to the City within seven days of giving notice.

(5)Subject to the requirements of national and provincial legislation, the City Manager may exempt an application from a public notification process if the application does not materially and adversely affect the rights of the public.

80. Content of notice

(1)Any notice which is given regarding an application must contain the following information –

(a)details of the applicant and the owner of the land unit (if different from the applicant);

(b)description and physical address of the land unit;

(c)the purpose of the application to which the notice relates;

(d)details of where and when particulars of the application of which notice is given are available for inspection;

(e)an invitation to members of the public to lodge with the City written comment or objection with reasons;

(f)details of the procedure for a person to submit written comment or objection and the date by when it must be lodged (which may not be a date less than 30 days from the date of the notice);

(g)a statement that no late comment or objection will be considered unless the City Manager has agreed in writing; and

(2)The notice must require a person providing written comment or objection to provide the details contemplated in section 90(5).

81. Notice in the media

(1)The City Manager must cause notice to be given in the media of the City’s intention to consider an application listed in section 43 and 44 of the Land Use Planning Act.

(2)The City Manager may prescribe any other type or category of application that requires the publication of a notice in the media.

(3)A notice in the media contemplated in subsection (1) or (2) must be published―

(a)in accordance with section 21 of the Municipal Systems Act in at least two of the official languages of the Province most spoken in the area concerned; and

(b)if publication as contemplated in paragraph (a) is considered to be ineffective, through other effective means, which may include announcements through a loudhailer, publication on websites or community notice boards, or communication through email lists or social media.

82. Notice to a person

(1)The City Manager must cause a notice to be served, as contemplated in subsections (2) and (4), of the City’s intention to consider the following applications –

(a)determination of a zoning or deemed zoning;

(b)rezoning of land;

(c)subdivision or amendment of subdivision;

(d)consolidation;

(e)amendment or imposition of a condition;

(f)removal, suspension or amendment of a restrictive condition;

(g)any other category of application contemplated in section 42(u) that the City Manager prescribes.

(2)The notice must be served –

(a)on a person whose rights or legitimate expectations are materially and adversely affected if the application is approved;

(b)in accordance with section 111 of this By-Law.

(3)If the City intends to rezone land which it does not own it must give notice to the owner.

(4)If notice is given in only one official language of the Province, the notice must contain a statement in each of the other official languages of the Province that the City will, upon request delivered within seven days of notification, translate the notice into another official language of the Province.

83. Notice to a representative

The City Manager may prescribe a category of application contemplated in section 42 which must be served on –

(a)a councillor for the area to which the application relates; or

(b)a named organisation which represents an interest to which the application relates and which is registered with the City for this purpose.

84. Notice of no objection

(1)The City Manager may cause a notice to be served as contemplated in subsection (2) of the City’s intention to consider the following applications –

(a)departure;

(b)consent use;

(c)extension of time period;

(d)consent in terms of or relaxation of a restrictive condition where provided for in the title deed condition;

(e)any other form of permission required in terms of the development management scheme.

(2)The notice must contain at least –

(a)the information contemplated in sections 80(1)(a) - 80(1)(d);

(b)details of the land use proposal or building plan number, date and version as the case may be;

(c)provisions to permit the person to whom notice is given to sign indicating that they have no objection to the proposed application and waiving their right to be notified in accordance with section 82; and

(d)information relating to the person’s right to have the application advertised to them so that they may comment or object to the application.

(3)Unless an alternative method of service is authorised by the City Manager, the notice must be served personally on a person whose rights or legitimate expectations are likely to be materially and adversely affected by the approval of the application.

(4)The procedure in section 82 must be followed if –

(a)the information on the notice of no objection is incomplete; or

(b)an affected owner refuses to sign a notice of no objection or cannot be contacted to sign the notice.

(5)If the applicant furnishes a notice of no objection from all the persons the City Manager identifies, then –

(a)that date will be regarded as the date of closure of the period for public comment; and

(b)the provisions of the Part do not apply, apart from sections 86, 87, 88, and 95.

85. Deemed notice to owners in a sectional title development

(1)Where there is a sectional title development constituted under the Sectional Titles Act, notification to the Body Corporate concerned is deemed to be notification to all owners in that sectional title development.

(2)The Chairperson of the Body Corporate must ensure that all owners in the sectional title development are notified.

86. Notice to the Provincial Government

(1)When an application relating to any of the following is complete (in accordance with section 76), the City must refer the application to the head of the department in the Provincial Government responsible for land use for comment –

(a)a development outside of the City’s development edge line in the municipal spatial development framework;

(b)a rezoning of land zoned for agricultural purposes or conservation purposes;

(c)a development prescribed by the City Manager; and

(d)a development prescribed by the Provincial Government.

(2)The City may not decide on an application contemplated in subsection (1) until –

(a)it has received comment from the head of department; or

(b)no comment has been received with 60 days of referral, or such further period agreed by the City Manager, in which event the Provincial Government will be regarded as having no comment.

87. Notice to an organ of state other than the Provincial Government

(1)An organ of state which is given notice of an application and invited to comment must do so within 60 days of –

(a)notification; or

(b)receiving all information reasonably necessary to comment if the application is incomplete and the organ made a request for additional information within 14 days of notification.

(2)An organ of state that fails to comment within the period contemplated in subsection (1) will be regarded as having no comment.

(3)An organ of state may be given notice by means of email addressed to the Head of Department or Director General of that organ of state.

88. Internal circulation

(1)The City Manager must forward an application simultaneously to every department of the City which may have a direct interest in the application.

(2)A department must submit comment relevant to the functional area of that department within the time period set by the City Manager, failing which it will be regarded as having no comment.

(3)If as a result of circulation to departments, the City Manager requires additional information, the provisions of section 75 apply.

89. Intervener

(1)A person contemplated in subsection (2) may, within the period contemplated in subsection (3), submit a petition on the prescribed form to the City Manager to be granted intervener status.

(2)A person may submit a petition only if he or she has not been given notice of the application in terms of sections 82 or 83 and –

(a)if the application has not yet been decided – the petitioner has an interest in the application; or

(b)if the application has been decided – the petitioner has a pecuniary or proprietary interest which is adversely affected or is able to demonstrate that she or he will be adversely affected by the decision or an appeal in respect of the decision.

(3)A petition is invalid if it is submitted –

(a)more than seven days after the petitioner became aware of the application or might reasonably have been expected to have become aware of the application; or

(b)after the effective date of decision contemplated in section 105(2).

(4)A petitioner must submit together with the petition – (a) if the application has not yet been decided – in accordance with section 90(5), any objection, comment or representations and the reasons therefor that the petitioner wishes the decision-maker to consider;

(b)if the application has been decided – a written notice of appeal and grounds of appeal in accordance with section 108(1); and

(c)an affidavit stating that he or she is not colluding with any applicant, objector or appellant and is willing to act in regard to the application or appeal as the City may direct.

(5)The City Manager must provide a copy of the petition and the information contemplated in subsection (4) to the existing parties to the proceedings for comment.

(6)The City Manager may –

(a)refuse a petition if it is late;

(b)if there is no question that the petition should be granted, grant the petitioner intervener status; or

(c)in the event that a question arises as to whether the petition should be granted, refer the petition for determination to –

(i)the Municipal Planning Tribunal or the authorised official who must decide the application if the application has not yet been decided; or

(ii)the appeal authority if the application has been decided.

(7)In deciding whether to grant a petitioner intervener status, the Municipal Planning Tribunal, authorised official or appeal authority, as the case may be, must consider at least whether – (a) the petitioner qualifies in terms of subsection (2); (b) no existing party to the proceedings adequately represents the interest of the petitioner;

(c)the petitioner represents other persons who have a similar interest in the proceedings and who are not otherwise represented;

(d)refusing the petition would impede the ability of the petitioner to protect his or her interest;

(e)the petitioner’s objection, comment or representations are relevant to the proceedings, different from those of the existing parties, and would assist the decision-maker; and

(f)granting the petition would not cause undue delay or otherwise prejudice the interest of any party to the proceedings.

(8)The decision-maker must notify the petitioner and the existing parties to the proceedings of the outcome of the petition.

(9)There is no appeal against a determination to grant or to refuse a petition.

(10)A person who is granted intervener status after an application is decided is regarded as an appellant.

90. Objection to an application

(1)A person who has been invited to comment or object, or any person in response to a public invitation to comment or object, may object to, comment on or make representations about the application in accordance with this section.

(2)An objection, comment or representation must be in writing.

(3)A late objection, comment or representation will not be considered unless the City Manager condones the late submission in terms of subsection (4). (4) The City Manager may condone the late submission of an objection, comment or representation if good cause is shown and consideration of the late objection, comment or representation would not –

(a)cause an unreasonable delay; or

(b)prejudice the public interest.

(5)A person who submits an objection, comment or representation must provide –

(a)sufficient details of the application for it to be readily identified;

(b)their full name;

(c)their address and other contact details and the method by which they may be notified;

(d)their interest in the application;

(e)the reason for their objection, comment or representation, including at least –

(i)the effect that the application will have on them or the area;

(ii)any aspect of the application that is considered to be inconsistent with policy, and how.

(6)An objection, comment or representation which does not meet the requirements of subsection (5) may be disregarded.

(7)The City Manager may keep the information provided under subsections (5)(b) and (5)(c) confidential on good cause shown.

(8)No person may request the payment of money or any other form of consideration from the applicant or any person involved in the application in return for not submitting an objection or in return for submitting a notice of no objection or a supportive comment.

(9)No person may offer a person payment of money or any other form of consideration in return for not submitting an objection or for submitting a notice of no objection or a supportive comment.

(10)Subsections (8) and (9) do not prohibit the request for or the offer to undertake measures to mitigate the impact of the development contemplated in the application.

(11)A person who contravenes subsections (8) or (9) is guilty an offence and upon conviction is liable to the penalties contemplated in sections 133(2) and 133(3).

91. Petition

(1)The minimum requirements of a petition are that –

(a)each page of the petition must contain –

(i)sufficient details of the application for it to be readily identified;

(ii)a brief statement of and reason for the petition; and

(iii)the effect that the application will have on the petitioners or the area;

(b)each petitioner must give their full name, physical address and signature;

(c)when the petition is submitted, the authorised representative of the petitioners must give their full name, postal address, telephone number and email address or fax number.

(2)A petition must be submitted within the time allowed for public comment as contemplated in Chapter 7.

(3)A late petition will not be considered unless the City Manager condones a late submission in terms of subsection (4).

(4)The City Manager may condone the late submission of a petition if good cause is shown and consideration of the late petition would not –

(a)cause an unreasonable delay; or

(b)prejudice the public interest.

(5)Notice given to the person contemplated in subsection (1)(c) will be regarded as notice to all petitioners.

(6)If support for a petition is collected electronically, the provisions of this section apply as far as possible, provided that no signatures will be required.

(7)A petition which does not meet the requirements of subsection (1) may be disregarded.

(8)A petition will be regarded as a representation for the purposes of this Part.

92. Response from the applicant

(1)Within 14 days of the closing date for comment, the City Manager must provide the applicant with –

(a)copies of all comments, representations or objections received;

(b)requirements of a department of the City; and

(c)a notice informing the applicant of their rights in terms of this section.

(2)Within 30 days of notification, or within an additional period of 14 days if the City Manager approves an extension before expiry of the 30 days, the applicant may submit to the City a written response to the comments, representations, objections and requirements.

(3)An applicant who fails to submit a response within the period contemplated in subsection (2) will be regarded as having no response.

(4)The applicant may elect to not submit a response in terms of subsection (2), in which event the date that the City receives a written communication to that effect will be regarded as the date of the applicant’s response.

93. Amendment of application before decision

(1)The applicant may amend their application at any time after notice has been given in terms of this By-Law and prior to the date a decision is taken –

(a)at the applicant’s own initiative;

(b)as a result of objections and comments made during the public notification process; or

(c)at the request of the City.

(2)If an amendment is material, the City may require additional notification in terms of this ByLaw and may require the recirculation of the application.

94. Further notice

(1)The City may require that fresh notice of an application be given if a period of more than 24 months has elapsed since the first notice of the application and the application has not been decided.

(2)The City may determine the manner of giving notice as contemplated in subsection (1).

(3)The City may require notice of an application to be republished or served again and recirculated to departments at any stage during the processing of the application if new information comes to its attention which is material to the consideration of the application and which adversely affects any person.

95. Access to information about an application

(1)By lodging an application in terms of this By-Law, the applicant acknowledges that the information contained in the application and obtained during the process may be made available to the public.

(2)By lodging an objection, representation, comment or appeal, the person doing so acknowledges that information may be made available to the public and to the applicant.

(3)A file created by the City concerning the application is available for inspection by the public during office hours at any stage during the processing of the application if not being used by the Department.

(4)After a decision has been taken, the decision and conditions imposed are available to the public on payment of the fee prescribed by the City’s Tariff, fees and charges book.

Part 3 – Process and criteria for deciding application

96. Power to conduct inspection

(1)An authorised official may enter land or a building for the purpose of assessing an application in terms of this By-Law and preparing a report contemplated in section 97. (2) When conducting an inspection, the authorised official may –

(a)request that any record, document or item be produced to assist in the inspection;

(b)make copies of, or take extracts from any document produced by virtue of paragraph

(a)that is related to the inspection;

(c)on providing a receipt, remove a record, document or other item that is related to the inspection;

(d)take any photograph that the authorised official considers necessary; and

(e)inspect any building or structure and make enquiries regarding that building or structure.

(3)No person may interfere with an authorised official who is conducting an inspection contemplated in subsection (1).

(4)The authorised official must, on request, produce identification showing that the City has authorised them to conduct the inspection.

(5)An inspection under subsection (1) must take place at a reasonable time and after reasonable notice to the owner or occupier of the land or building.

97. Assessment of application

(1)The Department must provide a written report for consideration by the decision maker containing –

(a)an assessment of the application;

(b)a recommendation;

(c)where applicable, proposed conditions; and

(d)copies of all relevant information to enable the decision maker to take an informed decision.

(2)The Department must provide the report contemplated in subsection (1) to the decision maker within the time period determined by the City Manager.

(3)In the event that the Department fails to provide the report within the time period contemplated in subsection (2), the applicant may request the City Manager to take steps to ensure that the report is provided to the decision maker within 30 days of the City Manager deciding that the report must be provided.

(4)Where a decision is to be taken by an authorised official, the authorised official taking the decision must be senior to or at the same level as the authorised official assessing the application and making a recommendation.

(5)A registered planner must provide the report contemplated in subsection (1) when dealing with the –

(a)adoption or an amendment of the municipal spatial development framework;

(b)approval or amendment of the development management scheme;

(c)rezoning of land;

(d)subdivision of land into more than 20 land units;

(e)determination of a zoning;

(f)approval of an overlay zone through the amendment of this By-Law;

(g)removal, suspension or amendment of a restrictive condition, if a change of land use is involved;

(h)amendment, deletion or additional conditions in respect of an existing use right; or

(i)phasing, amendment or cancellation of a plan of subdivision or a part thereof.

98. Determination of application

The City may in respect of an application –

(a)conduct any necessary investigation including the power to conduct an inspection as contemplated in section 96;

(b)approve the application –

(i)in whole or in part;

(ii)with an amendment provided that the amendment does not materially change the nature of the application;

(iii)subject to conditions set out in section 100; and

(iv)limit the approval to one or more of the uses included within the zoning or description of the consent use in case of an approval of a rezoning application or a consent use;

(c)refuse the application;

(d)make an appropriate determination regarding all matters necessary or incidental to the performance of its functions in terms of this By-Law and other applicable law.

99. Criteria for deciding application

(1)An application must be refused if the decision-maker is satisfied that it fails to comply with the following minimum threshold requirements –

(a)the application must comply with the requirements of this By-Law;

(b)the proposed land use must comply with or be consistent with the municipal spatial development framework, or if not, a deviation from the municipal spatial development framework must be permissible;

(c)the proposed land use must be desirable as contemplated in subsection (3); and

(d)in the case of an application for a departure to alter the development rules relating to permitted floor space or height, approval of the application would not have the effect of granting the property the development rules of the next subzone within a zone.

(2)If an application is not refused under subsection (1), when deciding whether or not to approve the application, the decision maker must consider all relevant considerations including, where relevant, the following –

(a)any applicable spatial development framework;

(b)relevant criteria contemplated in the development management scheme;

(c)any applicable policy approved by the City to guide decision making;

(d)the extent of desirability of the proposed land use as contemplated in subsection (3);

(e)impact on existing rights (other than the right to be protected against trade competition);

(f)in an application for the consolidation of land unit –

(i)the scale and design of the development;

(ii)the impact of the building massing;

(iii)the impact on surrounding properties; and

(g)other considerations prescribed in relevant national or provincial legislation.

(3)The following considerations are relevant to the assessment under subsection (1)(c) of whether, and under subsection (2)(d) of the extent to which, the proposed land use would be desirable –

(a)economic impact;

(b)social impact;

(c)scale of the capital investment;

(d)compatibility with surrounding uses;

(e)impact on the external engineering services;

(f)impact on safety, health and wellbeing of the surrounding community;

(g)impact on heritage;

(h)impact on the biophysical environment;

(i)traffic impacts, parking, access and other transport related considerations; and

(j)whether the imposition of conditions can mitigate an adverse impact of the proposed land use.

(4)An application in respect of an existing use or construction work which has commenced in contravention of this By-Law must be dealt with in terms of section 130.

(5)No decision required to be made in terms of this By-Law may be delayed pending the creation of a policy to guide decision-making on the matter.

100. Conditions of approval

(1)The City, when granting an approval or making a determination in terms of this By-Law, may impose reasonable conditions which arise from the proposed use of land.

(2)The conditions may include but are not limited to conditions relating to –

(a)the provision of land needed for public places or the payment of money in lieu of the provision of land;

(b)the cession of land or the payment of money;

(c)the provision and installation of engineering services and indicate –

(i)whether the applicant is required to provide or install engineering services as contemplated in section 65, or pay a development charge, or partly provide or install the engineering services and partly pay a development charge;

(ii)if relevant, the development charge payable and the date that it is payable;

(iii)if a phasing plan for the development is approved, that the installation of engineering services and the payment of development charges may take place separately for each phase;

(iv)if the City will take over responsibility for the engineering services, whether the applicant is required to maintain the engineering services for a specified period of time or provide a maintenance guarantee;

(v)a requirement to provide proof that an organ of state or state owned enterprise responsible for the provision of a service, is able to provide that service before the transfer of the first land unit;

(d)the provision of land needed by, and other requirements of, other organs of state;

(e)the endorsement in terms of section 31 of the Deeds Registries Act in respect of public places where ownership vests in the City;

(f)the registration of public places in the name of the City;

(g)the transfer of ownership to the municipality of land needed for other public purposes or community facilities;

(h)the implementation of a subdivision in phases;

(i)the establishment of an owners’ association by the applicant in respect of a subdivision as contemplated in section 61;

(j)a requirement to carry forward into the title deed of each land unit arising from an approved subdivision that-

(i)every owner of a land unit arising from an approved subdivision becomes a member of the owners’ association on registration of transfer in their name and must remain a member whilst owning the land unit; and

(ii)the land unit may not be sold or transferred except with the consent of the owners’ association which may not be unreasonably withheld;

(k)the payment of a administrative penalty as contemplated in section 129 in respect of the unlawful use of land;

(l)conditions contemplated in the development management scheme in respect of a particular application.

(3)A condition contemplated in subsection (2)(b) may require a proportional contribution to municipal public expenditure according to the normal need arising from the approval, as determined by the City in accordance with norms and standards as may be prescribed or in accordance with an approved policy.

(4)Municipal public expenditure contemplated in subsection (3) includes, but is not limited to, municipal public expenditure for municipal service infrastructure and amenities relating to –

(a)community facilities, including play equipment, street furniture, crèches, clinics, sports fields, indoor sports facilities or community halls;

(b)environment conservation purposes;

(c)engineering services; or

(d)municipal public transport.

(5)Apart from public places and land needed for internal engineering services, any additional land required by the City or another organ of state arising from an approved subdivision must –

(a)be acquired subject to any applicable law that provides for the acquisition or expropriation of land;

(b)be purchased at the time specified in a condition or in the absence of any time specified in the condition, when the applicant can prove to the City or organ of state that 50% of the saleable land units arising from the subdivision have been sold.

(6)Where relevant to the type of condition, a condition must contain an objective criterion which must be met.

(7)The decision maker may not impose a condition that stipulates that approval in terms of other legislation is required.

(8)If the City approves an application subject to a condition, it must specify the date or event by which a condition must be met (such as before the sale, development or transfer of the land), or whether it applies for the duration of the approval.

(9)A conditional approval of an application lapses if a condition is not met within –

(a)the period for compliance specified in such approval;

(b)if no period for compliance is specified in the approval, five years from the effective date of decision; or

(c)any period of extension granted in terms of section 107.

101. Further conditions and amendment of conditions

The City may amend or remove a condition imposed or deemed to have been imposed in terms of this By-Law, or impose a condition –

(a)on application; or

(b)on its own initiative after notice to the owner and any affected person.

102. Timeframe for making a decision

(1)If an application complies with all the requirements of this By-Law and any other applicable legislation the decision-maker must decide on the application within 180 days or such other period agreed with the applicant, calculated from –

(a)the date the application is complete as contemplated in section 76, in cases where no notice of the application has been given.

(b)the latest closing date for the submission of comments, objections or representations, where the City does not receive any comment, objection or representation; or

(c)the date that the applicant responds to comments, objections or representations or the closing date for a response if the applicant does not respond, where the City receives a comment, objection or representation.

(2)The City may (without the applicant’s agreement) extend the period contemplated in subsection (1) and notify the applicant of the period of the extension and the reasons for the extension –

(a)in exceptional circumstances related to the nature or complexity of the application;

(b)if the City is in recess; or

(c)where the City Manager has taken steps contemplated in section 97(3) to ensure that the report contemplated in that subsection is provided to the decision maker.

103. Failure to decide timeously

If the decision maker fails to decide on an application within the period referred to in section 102, then the applicant may exercise a right of appeal and the appeal authority must decide on the application.

Part 4 – Decision

104. Requirement for writing and notification of decision

(1)A decision in terms of this By-Law is valid only if it is in writing.

(2)Within 21 days of a decision in terms of this By-Law, the City must notify the persons contemplated in subsection (3) in writing of –

(a)the decision;

(b)where the decision may be inspected;

(c)if applicable, their right of appeal and right to request reasons; and

(d)the effective date of decision contemplated in section 105.

(3)The City must notify the following persons if applicable –

(a)the owner;

(b)the applicant, if different from the owner;

(c)any person who comments on, objects to, or intervenes in an application; and

(d)a person in respect of whom an enforcement action is taken in terms of Chapter 9.

105. Effective date of decision

(1)The operation of the approval of an application is suspended until the effective date of the decision contemplated in subsections (2) and (3).

(2)The effective date of a decision in terms of this By-Law is –

(a)the date that the City gives notice that no appeal has been timeously lodged and that the decision is accordingly effective; or

(b)subject to subsection (3), if an appeal is timeously lodged, the date that the appeal is decided by the appeal authority.

(3)If an appeal is lodged only against a condition imposed in terms of section 100, the City may determine that the operation of the approval of the application is not suspended.

(4)In the event that a decision is challenged in an application for administrative review before a competent court, the City may on application suspend the operation of the decision pending the final determination of the review.

106. Errors and omissions

(1)The City may at any time correct an error in the wording of its decision as long as the correction does not change its decision or result in an alteration, suspension or deletion of a condition of its approval.

(2)The City may at any time, of its own accord or on application by an applicant or interested party, upon good cause being shown, condone an error in the procedure provided that such condonation does not have material adverse impact on or unreasonably prejudice any party.

Part 5 – Extension of validity of an approval

107. Extension of validity of an approval

(1)Subject to the remaining provisions of this section, and unless another provision of this ByLaw provides otherwise, the City may approve an application for the extension of the validity period of an approval granted or deemed to be granted in terms of this By-Law.

(2)The City may not grant the extension if –

(a)the application for extension is submitted after the validity period has expired;

(b)the circumstances which prevailed at the time of the original approval have materially changed;

(c)the legislative or policy requirements applicable to the approval which prevailed at the time of the original approval have materially changed;

(d)the City believes that new or further conditions of approval are necessary; or

(e)an approval for a temporary departure was granted.

(3)An extension may not exceed five years from the date that the original approval lapses.

(4)An extension takes effect and is calculated from the date that the original approval lapses regardless of the date upon which the extension is granted.

(5)A validity period may be extended only once.

(6)If the City has not decided an application contemplated in subsection (1) by the date of expiry of the original validity period, the use rights at issue may not be exercised until and unless the City extends the validity period.

Part 6 – Appeal

108. Appeal

(1)A person contemplated in subsection (2) and an applicant contemplated in section 103 may appeal to the appeal authority by giving written notice of the appeal and grounds of appeal.

(2)The following persons may appeal against a decision made in terms of this By-Law –

(a)the applicant;

(b)the owner if the owner is not the applicant;

(c)the City Manager;

(d)a person contemplated in section 89 who is granted intervener status;

(e)a person contemplated in section 90(1) who submits a comment on or objection to the application which complies with the requirements of section 90; and

(f)the owner or other person –

(i)in respect of whom the City decides in terms of section 127 to withdraw an approval for a temporary departure or an approval granted for a limited period of time;

(ii)who is issued with a directive in terms of section 128; or

(iii)upon whom an administrative penalty contemplated in section 129 is imposed.

(3)An appeal contemplated in subsection (1) must be lodged within 21 days of the date of notification of the decision or, in the case of an appeal contemplated in section 103, within 21 days of the expiry of the period referred to in section 102.

(4)An appeal is invalid if it does not comply with this section.

(5)The appeal authority may receive relevant information and reconsider the matter afresh.

(6)The appeal authority must decide –

(a)whether the appeal has been lodged timeously; and

(b)the appeal according to the criteria for decision contemplated in section 99.

(7)The appeal authority may –

(a)dismiss the appeal and confirm the decision appealed against;

(b)uphold part or all of the appeal and –

(i)vary the decision appealed against;

(ii)set aside the decision and make a new decision; or

(iii)set aside the decision and remit the matter to the decision-maker, with or without directions to any person or body to take appropriate steps;

(c)decide on an application contemplated in section 103; or

(d)refer the appeal back to the advisory panel, if one was appointed, or to the Department with directions to investigate, obtain further information from a relevant department of the City or consider specific facts or issues and to report back to the appeal authority.

109. Procedure for appeal

(1)A person authorised to appeal must lodge the appeal with the City Manager, provided that if the appeal is by the City Manager, the City Manager must lodge the appeal with the appeal authority.

(2)No later than 14 days after an appeal is lodged, the City Manager must give notice of the appeal to, and invite comment on the appeal in writing within 21 days from –

(a)the applicant if the applicant is not the appellant; and

(b)any person who submitted an objection to, comment on or representation about the application.

(3)After receipt of an appeal, the City –

(a)may request the Provincial Minister to comment in writing within 60 days on the appeal; and

(b)must request such comment if the appeal concerns an application referred to in section 45(1)(a) to (f) of the Land Use Planning Act.

(4)A late opposition to or comment on the appeal will not be considered unless the appeal authority condones the late submission on good cause shown.

(5)The appeal authority may not decide on the appeal until all the parties entitled to comment have done so or the time period allowed for comment has lapsed.

(6)The Department must draft a report assessing the appeal and all comments contemplated in subsections (2) or (3) and must provide the report to the decision-maker for comment.

(7)As soon as possible and within 150 days after the lodging of the appeal the City Manager must submit the appeal to the appeal authority together with all necessary documentation including the report and comments contemplated in this section.

(8)The appeal authority must decide on the appeal within 90 days after the City Manager has submitted the appeal and documentation to the appeal authority.

(9)The appeal authority may, without the agreement of the parties to the appeal, extend the period contemplated in subsection (8) and notify the parties of the extension and the reasons for the extension –

(a)in exceptional circumstances related to the nature or complexity of the application; or

(b)if the City is in recess.

(10)The City must within 30 days of a decision of the appeal authority in writing give notice of the decision and the reasons for the decision to –

(a)the parties to the appeal; and

(b)the Provincial Minister if the appeal concerns an application referred to in section 45(1) (a) to (f) of the Land Use Planning Act.

(11)The City may determine procedures required for the determination of appeals.

Part 7 – Prescribed requirements and notification

110. Prescribed requirements for applications

(1)The City Manager may prescribe in relation to applications –

(a)information specifications relating to matters such as size, scale, colour, hard copy, number of copies, electronic format and file format;

(b)the manner of submission and communication with the City;

(c)the method by which a person may be notified;

(d)other information requirements; and

(e)other procedural requirements.

(2)A prescription contemplated in subsection (1) may –

(a)relate to the whole application or any part of it; and

(b)

Municipal Planning By-law, 2015

Related documents

Municipal Planning By-law, 2015

Preamble

Chapter 1Definitions

1. Definitions

Chapter 2Application of this by-law and conflict of laws

2. Application of this By-Law and conflict of laws

Chapter 3Spatial planning

Part 1 – Introductory provisions concerning spatial development frameworks

3. Spatial development frameworks

Part 2 – The municipal spatial development framework

4. Process for drafting the municipal spatial development framework

5. Process for amending the municipal spatial development framework

6. Decision on the adoption or amendment of the municipal spatial development framework

7. Submission of municipal spatial development framework to Provincial Minister

8. Publication of the adopted or amended municipal spatial development framework

9. Status of the municipal spatial development framework

10. Review of the municipal spatial development framework

Part 3 – District spatial development frameworks and local spatial development frameworks

11. District spatial development frameworks

12. Local spatial development frameworks

13. Process for drafting or amending a district spatial development framework or a local spatial development framework

14. Decision on the adoption or amendment of a district spatial development framework or a local spatial development framework

15. Publication of the adopted or amended district spatial development framework or local spatial development framework

16. Status of a district spatial development framework and a local spatial development framework

17. Review of a district spatial development framework or a local spatial development framework

18. Withdrawal of a district spatial development framework or a local spatial development framework

Part 4 – General provisions concerning spatial planning

19. Record of and access to spatial development frameworks

20. Structure plans

21. Policies to guide decision making

22. Record of deviations from spatial development frameworks

23. Spatial development frameworks applicable to land incorporated into the geographic area of the City

Chapter 4Development management

Part 1 – Zoning scheme

24. Zoning

25. Zoning scheme

26. Development management scheme

27. Review of development management scheme

28. Zoning map

29. Adoption, amendment and substitution of zoning map

30. Error in zoning map

31. Status of zoning map and exemption of City from liability for any error

32. Zoning register

33. Access to the zoning map and zoning register

34. Continuation of zoning schemes

Part 2 – Use right and non-conforming use

35. Use right

36. Determination of zoning

37. Non-conforming use

Part 3 – General lapsing provision

38. General lapsing provision

Chapter 5General requirements for an application

39. Applications

40. Persons who may make application in terms of this By-Law

41. Continuation of application by new owner

42. Types of applications

43. Provisions which govern an application

Chapter 6Special provisions for certain applications

Part 1 – Rezoning, departure and consent use

44. Rezoning

45. Departure

46. Consent use

47. Lapsing of rezoning, consent use or departure

Part 2 – Restrictive conditions

48. Removal, suspension or amendment of restrictive conditions

49. Endorsements in connection with alterations, suspensions or removals of restrictions or obligations

Part 3 – Consolidation

50. Consolidation

51. Lapsing of consolidation

Part 4 – Subdivision

52. Approval of subdivision

53. Approval of general plan or diagram by Surveyor General

54. Transfer of land unit arising out of approved subdivision

55. Confirmation of subdivision

56. Lapsing of subdivision and extension of validity periods

57. Land for public places and other uses

58. Ownership of public places and land required for municipal engineering services and community facilities

59. Servitude in respect of services arising from subdivision

Chapter 1
Definitions

Chapter 2
Application of this by-law and conflict of laws

Chapter 3
Spatial planning

Chapter 4
Development management

Chapter 5
General requirements for an application

Chapter 6
Special provisions for certain applications

Chapter 7
General procedures for all applications