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Swartland
South Africa

Municipal Land Use Planning By-law, 2017

Published in Western Cape Provincial Gazette no. 7741 on 3 March 2017
Commenced on 3 March 2017
[This is the version of this document from 3 March 2017 and includes any amendments published up to 6 May 2022.]

Chapter I
INTERPRETATION AND APPLICATION

1. Definitions

In this by-law, unless the context indicates otherwise, any word or expression to which a meaning has been assigned in the Western Cape Land Use Planning Act, 2014 (Act 3 of 2014), has the meaning assigned to it in that Act and—"adopt", in relation to a spatial development framework, zoning scheme, policy or strategy, means the approval thereof by a competent authority;"agent" means a person authorised in terms of a power of attorney to make an application on behalf of the owner of land;"Appeal Authority" means the Appeal Authority contemplated in section 89(1); 29. "applicable period", referred to in sections 27(5) and (6), 28(2), (5) , 32(1) and 42(1), means the period that may be determined by the municipality in the conditions of approval subject to section 43(2)(b) of the Spatial Planning and Land Use Management Act or the period referred to in section 43(2)(a) of the Spatial Planning and Land Use Management Act;"applicant" means a person referred to in section 25(2) who makes an application to the municipality as contemplated in that section;"application" means an application to the municipality referred to in section 25(2);"authorised employee" means a municipal employee who is authorised in terms of delegated or sub-delegated authority by the municipality to exercise a power or perform a duty in terms of this by-law or to inspect land and buildings in order to enforce compliance with this by-law or the zoning scheme;"base zoning" means the zoning before the application of any overlay zone;"comments", in relation to comments submitted by the public, municipal departments and other organs of state and service providers on an application or appeal, includes objections, representations and petitions;"consolidation" in relation to land, means the merging of two or more adjacent land units into a single land unit, and includes the physical preparation of land for consolidation;"Council" means the municipal council of Swartland Municipality;"date of notification" means the date on which a notice is served as contemplated in section 45 or published in the media or Provincial Gazette;"development charge" means a development charge contemplated in section 93 as levied by the municipality;"emergency" includes a situation that arises from a flood, strong wind, severe rainstorm, fire, earthquake or industrial accident and that requires the relocation of human settlements;"external engineering service" means an engineering service outside the boundaries of a land area referred to in an application and that is necessary for the utilisation and development of the land;"Land Use Planning Act" means the Western Cape Land Use Planning Act, 2014 (Act 3 of 2014);"local spatial development framework" means a local spatial development framework contemplated in section 9;"Municipal Manager" means a person appointed in terms of section 54A of the Local Government: Municipal System Act, (Act 32 of 2000);"municipal spatial development framework" means a municipal spatial development framework adopted by the municipality in terms of Chapter 5 of the Municipal Systems Act;"municipality" means the municipality of Swartland established in terms of section 12 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998), and includes—(a)the Council;(b)another political structure or a political office bearer of the municipality, authorised or delegated to perform a function or exercise a power in terms of this By-Law;(c)the Tribunal authorised or delegated to perform a function or exercise a power in terms of this By-Law;(d)the municipal manager; and(e)an authorised employee."non-conforming use" means an existing land use that was lawful in terms of a previous zoning scheme but that does not comply with the zoning scheme in force;"occasional use", in relation to departure, means a right to utilise land for a purpose granted on a temporary basis for a specific occasion or event;"overlay zone" means a category of zoning that applies to land or a land unit in addition to the base zoning and that—(a)stipulates additional development parameters or use rights that may be more or less restrictive than the base zoning; and(b)may include provisions and development parameters relating to—(i)primary or consent uses;(ii)base zoning;(iii)subdivision or sub divisional areas;(iv)development incentives;(v)density limitations;(vi)urban form or urban renewal;(vii)heritage or environmental protection;(viii)management of the urban edge;(ix)scenic drives or local areas;(x)coastal setbacks (where coastlines are involved); or(xi)any other purpose as set out in the zoning scheme;"owners" association" means an owners’ association contemplated in section 39;"pre-application consultation" means a consultation contemplated in section 47;"restrictive condition" means any condition registered against the title deed of land restricting the use, development or subdivision of the land concerned:"service" means a service provided by the municipality, any other organ of state or a service provider, including services for the provision of water, sewerage, electricity, refuse removal, roads, storm-water drainage, and includes infrastructure, systems and processes related to the service;"site development plan" means a dimensioned plan drawn to scale that indicates details of the proposed land development, including the site layout, positioning of buildings and structures, property access, building designs and landscaping;"social infrastructure" means community facilities, services and networks that meet social needs and enhance community well-being;"Spatial Planning and Land Use Management Act" means the 2013. Spatial Planning and Land Use Management Act, 2013 (Act 16 of 2013);"Spatial Planning and Land Use Management Regulations" means the Spatial Planning and Land Use Management 2015 Regulations: Land Use Management and General Matters, made under the Spatial Planning and Land Use Management Act published under Notice R239/2015 in Government Gazette 38594. of 23 March 2015;"sub divisional area" means an overlay zone that permits subdivision for the purposes of a subdivision application involving a change of zoning;"Tribunal" means the Municipal Planning Tribunal established in terms of section 80;"zoning" includes base zoning and overlay zoning;"Zoning scheme" means the Zoning Scheme referred to in Schedule 2;

2. Application of by-law

This by-law applies to all land situated within the municipal area, including land owned by organs of state.

Chapter II
SPATIAL PLANNING

3. Compilation or amendment of municipal spatial development framework

(1)When the Council compiles or amends its municipal spatial development framework in accordance with the Municipal Systems Act, the Council must, as contemplated in section 11 of the Land Use Planning Act—(a)establish an intergovernmental steering committee to compile or amend its municipal spatial development framework; or(b)refer its draft municipal spatial development framework or draft amendment of its municipal spatial development framework to the Provincial Minister for comment.

(2)The municipality must—(a)publish a notice in two of the official languages of the Province most spoken in the area in two newspapers circulating in the area concerned of—(i)the intention to compile or amend the municipal spatial development framework; and(ii)the process to be followed, in accordance with section 28(3) and 29 of the Municipal Systems Act;(b)inform the Provincial Minister in writing of—(i)the intention to compile or amend the municipal spatial development framework;(ii)its decision in terms of subsection (1)(a) or (b); and(iii)the process to be followed to compile or amend the municipal spatial development framework, including the process contemplated in subsection (2)(a)(ii) ; and(c)register relevant stakeholders, who must be invited to comment on the draft municipal spatial development framework or draft amendment of the municipal spatial development framework as part of the process contemplated in subsection (2)(a)(ii).

4. Establishment of project committee

(1)The municipality must establish a project committee to compile or amend its municipal spatial development framework.

(2)The project committee must consist of—(a)the municipal manager or a municipal employee designated by the municipal manager; and(b)municipal employees appointed by the municipal manager from at least the following municipal departments—(i)the integrated development planning office;(ii)the spatial planning department;(iii)the engineering department;(iv)the local economic development department; and(v)the housing department.

5. Establishment of intergovernmental steering committee

If the Council establishes an intergovernmental steering committee, the municipality must, in writing, invite written nominations for representatives to serve on the intergovernmental steering committee from the following persons or organs of state—(a)the head of the provincial department responsible for land use planning;(b)the head of the provincial department responsible for environmental affairs; and(c)other relevant organs of state.

6. Procedure with intergovernmental steering committee

(1)If the Council establishes an intergovernmental steering committee, the project committee must compile a draft status quo report setting out an assessment of the existing levels of development and development challenges in the municipal area and must submit it to the intergovernmental steering committee for comment.

(2)After consideration of the comments of the inter-governmental steering committee, the project committee must finalise the status quo report and submit it to the Council for adoption.

(3)After finalising the status quo report the project committee must compile a first draft of the municipal spatial development framework or first draft of the amendment thereof and submit it to the intergovernmental steering committee for comment.

(4)After consideration of the comments of the inter-governmental steering committee, the project committee must finalise the first draft of the municipal spatial development framework or first draft of the amendment thereof and submit it to the Council to approve the publication thereof for public comment in accordance with the process adopted in terms of sections 28 and 29 of the Municipal Systems Act.

(5)After consideration of the comments and representations received by virtue of the publication contemplated in subsection (4), the project committee must compile a final draft of the municipal spatial development framework or final draft of the amendment thereof and submit it to the intergovernmental steering committee for comment.

(6)After consideration of the comments of the inter-governmental steering committee contemplated in subsection

(5), the project committee must finalise the final draft of the municipal spatial development framework or final draft of the amendment thereof and submit it to the Council for adoption.

(7)If the final draft of the municipal spatial development framework or final draft of the amendment thereof contemplated in subsection (6) is materially different to what was published in terms of subsection (4), the municipality must in accordance with subsections (4), (5) and (6) read with the necessary changes, follow a further consultation and public participation process before the municipal spatial development framework or amendment thereto is adopted by the Council.

(8)The Council or the project committee may at any time in the process of compiling a municipal spatial development framework or drafting an amendment thereof request comments from the intergovernmental steering committee.

(9)The Council must adopt the final draft municipal spatial development framework or final draft amendment thereof, with or without amendments and must within 14 days of its decision give notice of its decision in the media and the Provincial Gazette.

7. Procedure without intergovernmental steering committee

(1)If the Council does not establish an intergovernmental steering committee to compile or amend its municipal spatial development framework, the project committee must—(a)compile a draft status quo report setting out an assessment of the existing levels of development and development challenges in the municipal area and submit it to the Council for adoption;(b)after adoption of the status quo report, compile a first draft of the municipal spatial development framework or first draft of the amendment of the municipal spatial development framework and submit it to the Council to approve the publication thereof for public comment;(c)after approval of the first draft of the municipal spatial development framework or first draft of the amendment of the municipal spatial development framework for publication contemplated in paragraph (b), submit the first draft of the municipal spatial development framework or first draft of the amendment of the municipal spatial development framework to the Provincial Minister for comment in terms of section 13 of the Land Use Planning Act; and(d)after consideration of the comments and representations received from the public and the Provincial Minister, submit the final draft of the municipal spatial development framework or final draft of the amendment of the municipal spatial development framework, with any further amendments, to the Council for adoption.

(2)If the final draft of the municipal spatial development framework or final draft of the amendment of the municipal spatial development framework contemplated in subsection (1) is materially different to what was published in terms of subsection (1)(b), the municipality must follow a further consultation and public participation process before the municipal spatial development framework or amendment of the municipal spatial development framework is adopted by the Council.

(3)The Council must adopt the final draft of the municipal spatial development framework or final draft of the amendment of the municipal spatial development framework, with or without amendments, and must within 14 days of its decision give notice of its decision in the media and the Provincial Gazette.

8. Functions and duties

(1)The members of the project committee must, in accordance with the directions of municipal manager—(a)oversee the compilation of the municipal spatial development framework or drafting of an amendment of the municipal spatial development framework for adoption by the Council;(b)provide technical knowledge and expertise to the Council;(c)ensure that the compilation of the municipal spatial development framework or drafting of the amendment of the municipal spatial development framework is progressing according to the process contemplated in section 3(2)(a)(ii);(d)guide the public participation process and ensure that the registered stakeholders remain informed;(e)oversee the incorporation of amendments to the draft municipal spatial development framework or draft amendment of the municipal spatial development framework based on the consideration of the comments received during the process of drafting thereof;(f)oversee the drafting of—(i)a report in terms of section 14 of the Land Use Planning Act setting out the response of the municipality to the provincial comments issued in terms of section 12(4) or 13(2) of that Act; and(ii)a statement setting out—(aa)whether the municipality has implemented the policies and objectives issued by the national minister responsible for spatial planning and land use management and if so, how and to what extent the municipality has implemented it; or(bb)if the municipality has not implemented the policies and objectives, the reasons for not implementing it.(g)ensure alignment of the municipal spatial development framework with the development plans and strategies of other affected municipalities and other organs of state as contemplated in section 24(1) of the Municipal Systems Act;(h)facilitate the integration of other sector plans into the municipal spatial development framework; and(i)if the Council establishes an intergovernmental steering committee—(i)assist the Council in establishing the intergovernmental steering committee and adhering to timeframes; and(ii)ensure the flow of information between the project committee and the intergovernmental steering committee.

(2)The members of the intergovernmental steering committee must—(a)provide the intergovernmental steering committee with the following—(i)technical knowledge and expertise;(ii)input on outstanding information that is required to compile the municipal spatial development framework or draft an amendment thereof;(iii)information on budgetary allocations;(iv)information on and the locality of any current or planned projects that have an impact on the municipal area; and(v)written comments in terms of section 6; and(b)provide the project committee with written comments in terms of section 6.

9. Local spatial development frameworks

(1)The municipality may adopt a local spatial development framework for a specific geographical area in a part of the municipal area.

(2)The purpose of a local spatial development framework is to, for a specific geographical area—(a)provide detailed spatial planning guidelines;(b)provide more detail in respect of a proposal provided for in the municipal spatial development framework;(c)meet specific land use planning needs;(d)provide detailed policy and development parameters for land use planning;(e)provide detailed priorities in relation to land use planning and, in so far as they are linked to land use planning, biodiversity and environmental issues; and(f)guide decision-making on land use applications.

10. Compilation, adoption, amendment or review of local spatial development frameworks

(1)If the municipality compiles, amends or reviews a local spatial development framework, it must adopt a process plan, including the public participation processes to be followed for the compilation, amendment, review or adoption of a local spatial development framework.

(2)The municipality must, within 21 days of adopting a local spatial development framework or an amendment of a local spatial development framework, publish a notice of the decision in the media and the Provincial Gazette.

11. Status of local spatial development frameworks

(1)A local spatial development framework or an amendment thereof comes into operation on the date of publication of the notice contemplated in section 10(2).

(2)A local spatial development framework guides and informs decisions made by the municipality relating to land development, but it does not confer or take away rights.

12. Structure plans

(1)If the municipality intends to convert a structure plan to a local spatial development framework, the municipality must comply with sections 9 to 11 and must—(a)review that structure plan and make it consistent with the purpose of a local spatial development framework contemplated in section 9(2); and(b)incorporate the provisions of the structure plan that are consistent with that purpose in the local spatial development framework.

(2)The municipality must, in terms of section 16(4) of the Land Use Planning Act, withdraw the relevant structure plan by notice in the Provincial Gazette when it adopts a local spatial development framework contemplated in subsection (1).

Chapter III
ZONING SCHEME, USE ZONES, USES AND ZONINGS

13. Application of zoning scheme

The zoning scheme applies to the entire Swartland municipal area and forms an integral part of this by-law.

14. Purpose of zoning scheme

The purpose of the zoning scheme includes—(a)giving effect to the municipal spatial development framework;(b)making provision for orderly development and the welfare of the community;(c)the regulation of use rights and control of the use of land;(d)the 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;(e)facilitation of efficient, economic and sustainable use of land;(f)protection of areas with an environment which could be substantially adversely affected by development;(g)other purposes prescribed by national or provincial legislation; and(h)determination of use rights and development parameters, with due consideration of the principles referred to in Chapter VI - of the Land Use Planning Act.

15. Components of zoning scheme

The zoning scheme consists of the following components—(a)this by-law;(b)the zoning map; and(c)the register.

16. Use zones

(1)The municipal area is divided in the use zones referred to in column 1 of Table A set out in Schedule 2.

(2)The purpose of each use zone is set out in column 1 of Table A.

(3)The description of the primary and consent uses applicable to each use zone is set out in Table B.

(4)The location, boundaries and extent of each use zone is depicted on the zoning map.

(5)The primary and consent uses applicable to each use zone are subject to the development parameters specified for that use zone as set out in Schedule 2.

17. Zoning map

(1)The zoning map depicts—(a)the zoning of land in accordance with the use zone in which the land is located; and(b)overlay zones, if applicable to the land.

(2)The municipality must update the zoning map within a reasonable time after use rights have been granted or have lapsed.

(3)The municipality may keep the zoning map in an electronic format.

(4)The municipality may provide an extract of the zoning map to members of the public on payment of a fee determined by the municipality in terms of the municipality’s tariff policy.

18. Preparation and approval of new zoning map

(1)The municipality must give notice of a draft zoning map.

(2)The notice must be published in newspapers with general circulation in the area concerned in at least two of the official languages of the Province most widely spoken in the municipal area and must—(a)invite persons interested in, or affected by, the draft zoning map to submit written comments within a period of not less than 30 days from the date on which the notice was given;(b)state the name and contact details of the person to whom the comments must be addressed and where the draft zoning map can be obtained; and(c)state that any person who is unable to write may, during the municipality’s office hours, attend at any address stated in the notice where a named staff member of the municipality will assist that person to transcribe that person’s comments.

(3)A zoning map may be approved by the municipality with or without amendments.

(4)A zoning map takes effect when notice of its approval is published in the Provincial Gazette or on a future date as may be determined in the notice.

(5)Subsequent amendments to the map to reflect additional use rights granted or use rights that have lapsed are not published in the Provincial Gazette.

19. Rectification of errors on zoning map

(1)If the zoning of a land unit is incorrectly indicated on the zoning map or wrongly converted from a zoning map of a former zoning scheme, the owner of an affected land unit may submit an application to the municipality to correct the error.

(2)An owner contemplated in subsection (1) must apply to the municipality in the form determined by the municipality and must—(a)submit written proof of the lawful land use rights; and(b)indicate the suitable zoning which should be allocated.

(3)The onus of proving that the zoning is incorrectly indicated on the zoning map is on the owner.

(4)The owner is exempted from paying application fees and from liability for the costs of public participation.

(5)If the municipality approves the application, the municipality must amend the zoning map.

(6)The municipality may refuse an application to correct the zoning map if the owner fails to submit written proof of the lawful use rights.

(7)The municipality may correct a zoning map if it finds an error on the map after—(a)notifying the owner in writing of its intention to correct the wrong conversion or error;(b)inviting the owner to make representations within a specified period in respect of the proposed correction of the errors on the zoning map; and(c)considering any representations received from the owner.

(8)If the municipality corrects the zoning map, it may only amend the map to show the correct zoning of the property.

20. Zoning scheme register

The municipality—(a)must record all departures, consent uses or other permissions granted and non-conforming uses in the register;(b)may keep the register from the date of commencement of the zoning scheme in an electronic format; and(c)must make the register available to members of the public for viewing.

21. Status of zoning map and exemption of the municipality from liability for an error

(1)The zoning map is the municipality’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 municipality 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 municipality about a use right or the zoning of a land unit.

22. Zoning versus ownership

(1)Notations on the zoning map are intended to indicate zonings and not land ownership.

(2)Land of which the ownership vests in a public authority may only be included in the authority zone if it is utilised for a purpose for which no other zone set out in Schedule 1 is appropriate.

(3)If any other zone in Schedule 1 is appropriate, the land must be zoned for that purpose, whether or not it is owned by a public authority.

Chapter IV
DEVELOPMENT MANAGEMENT

23. Determination of zoning

(1)The owner of land or his or her agent may apply in terms of section 25(2) to the municipality for the determination of a zoning for land referred to in section 34(1), (2) or (3) of the Land Use Planning Act.

(2)When the municipality considers an application in terms of subsection (1), it must have regard to the following—(a)the lawful utilisation of the land, or the purpose for which it could be lawfully utilised immediately before the commencement of the Land Use Planning Act if it can be determined;(b)the zoning, if any, that is most compatible with that utilisation or purpose and any applicable title deed condition;(c)any departure or consent use that may be required in conjunction with that zoning;(d)in the case of land that was vacant immediately before the commencement of the Land Use Planning Act, the utilisation that is 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 municipality; and(e)where the lawful utilisation of the land and the purpose for which it could be lawfully utilised immediately before the commencement of the Land Use Planning Act cannot be determined, the zoning that is the most desirable and compatible with any applicable title deed condition, together with any departure or consent use that may be required.

(3)If the lawful zoning of land contemplated in subsection (1) cannot be determined, the municipality must determine a zoning and serve notice of its intention in terms of section 56.

(4)A land use that commenced unlawfully, whether before or after the commencement of this by-law, may not be considered to be lawful.

24. Non-conforming uses

(1)A non-conforming use does not constitute an offence in terms of this by-law.

(2)A non-conforming use may continue as long as it remains otherwise lawful, subject to the following—(a)if the non-conforming use is ceased for any reason for a period of more than twenty-four consecutive months, any subsequent utilisation of the property must comply with this by-law and the zoning scheme, with or without departures;(b)an appropriate application contemplated in section 25(2) must be made for the alteration or extension of buildings or structures in respect of the non-conforming use;(c)the owner bears the onus of proving that the non-conforming use right exists; and(d)the use right is limited to the area of the building or land in respect of which the proven use right exists.

(3)Subject to subsection (2)(a) and (b), if an existing building that constitutes a non-conforming use is destroyed or damaged to the extent that it is necessary to demolish a substantial part of the building, the municipality may grant permission for the reconstruction of such building subject to conditions.

25. Land development requiring approval

(1)No person may commence, continue, or cause the commencement or continuation of, land development, other than the subdivision or consolidation of land referred to in section 34, without the approval of the municipality in terms of subsection (2).

(2)The owner of land or his or her agent must apply to the municipality in terms of this Chapter for the following in relation to the development of the land concerned—(a)a rezoning of land;(b)a permanent departure from the development parameters of the zoning scheme;(c)a departure granted on a temporary basis to utilise land for a purpose not permitted in terms of the primary rights of the zoning applicable to the land;(d)a subdivision of land that is not exempted in terms of section 34, including the registration of a servitude or lease agreement;(e)a consolidation of land that is not exempted in terms of section 34;(f)a removal, suspension or amendment of restrictive conditions in respect of a land unit;(g)a permission required in terms of the zoning scheme;(h)an amendment, deletion or imposition of conditions in respect of an existing approval;(i)an extension of the validity period of an approval;(j)an approval of an overlay zone as contemplated in the zoning scheme;(k)an amendment or cancellation of an approved subdivision plan or part thereof, including a general plan or diagram;(l)a permission required in terms of a condition of approval;(m)a determination of a zoning;(n)a closure of a public place or part thereof;(o)a consent use contemplated in the zoning scheme;(p)an occasional use of land;(q)to disestablish a home owner’s association;(r)to rectify a failure by a home owner’s association to meet its obligations in respect of the control over or maintenance of services;(s)a permission required for the reconstruction of an existing building that constitutes a non-conforming use that is destroyed or damaged to the extent that it is necessary to demolish a substantial part of the building.

(3)If section 53 of the Land Use Planning Act is applicable to the land development, the owner or agent must also apply for approval of the land development in terms of that Act.

(4)If section 52 of the Spatial Planning and Land Use Management Act is applicable to the land development, the owner or agent must also apply for approval of the land development in terms of that Act.

(5)When an applicant or owner exercises a use right granted in terms of an approval, he or she must comply with the conditions of the approval and the applicable provisions of the zoning scheme.

(6)When the municipality on its own initiative intends to conduct land development or an activity contemplated in subsection (2), the decision on the application must be made by the Authorise Official and/or Tribunal in accordance with this Chapter and Chapter IV.

26. Continuation of application after change of ownership

If land that is the subject of an application 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 is regarded as the applicant for the purposes of this by-law.

27. Rezoning of land

(1)The municipality may, on its own initiative, rezone land of which it is not the owner to—(a)provide a public service or to provide a public recreational space; or(b)substitute a zoning scheme or part thereof for a zoning scheme in terms of which the land is not zoned in accordance with the utilisation thereof or existing use rights.

(2)An applicant, who wishes land to be rezoned, must submit an application to the municipality in terms of section 25(2).

(3)When the municipality creates an overlay zone for land it must comply with sections 12 and 13 of the Municipal Systems Act.

(4)Zoning may be made applicable to a land unit or part thereof and zoning need not follow cadastral boundaries.

(5)Subject to subsection (6), a rezoning approval contemplated in subsection (2) lapses after the applicable period from the date that the approval comes into operation if, within that period—(a)the zoning is not utilised in accordance with the approval; or(b)the following requirements have not been met—(i)the approval by the municipality of a building plan envisaged for the utilisation of the approved use right; and(ii)commencement of the construction of the building contemplated in subparagraph (i).

(6)An approval of a rezoning to sub divisional area contemplated in subsection 30(2) lapses after the applicable period from the date that the approval comes into operation if, within that period—(a)a subdivision application is not submitted; and(b)the conditions of approval are not complied with.

(7)If a subdivision application is submitted in respect of land that is zoned as sub divisional area, the zoning of sub divisional area lapses on the later date of the following dates—(a)the date on which the subdivision is approved; or(b)the date after the applicable period contemplated in subsection (6) including any extended period approved in terms of section 77.

(8)The approval of a rezoning to sub divisional area must include conditions that make provision for at least—(a)density requirements;(b)main land uses and the extent thereof; and(c)a detailed phasing plan or a framework including—(i)main transport routes;(ii)main land uses;(iii)bulk infrastructure;(iv)requirements of organs of state;(v)public open space requirements; and(vi)physical development constraints.

(9)If a rezoning approval lapses, the zoning applicable to the land before the approval of the rezoning applies or, where no zoning existed before the approval of the rezoning, the municipality must determine a zoning in terms of section 23.

28. Departures

(1)An applicant may apply to the municipality in terms of section 25(2)—(a)for a departure from the development parameters of a zoning or an overlay zone; or(b)to utilise land on a temporary basis for a purpose not permitted in terms of the primary rights of the zoning applicable to the land for a period not exceeding five years.

(2)A departure contemplated in subsection (1)(a) lapses after the applicable period from the date that the approval comes into operation if, within that period—(a)the departure is not utilised in accordance with the approval; or(b)the following requirements have not been met—(i)the approval by the municipality of a building plan envisaged for the utilisation of the approved departure; and(ii)commencement of the construction of the building contemplated in subparagraph (i).

(3)The municipality may approve a departure contemplated in subsection (1)(b) for a period shorter than five years but, if a shorter period is approved, the period together with any extension approved in accordance with section 77 may not exceed five years;

(4)A temporary departure contemplated in subsection (1)(b) may not be approved more than once in respect of a particular use on a specific land unit.

(5)A temporary departure contemplated in subsection (1)(b) may include an improvement of land only if—(a)the improvement is temporary in nature; and(b)the land can, without further construction or demolition, revert to its previous lawful use upon the expiry of the use right.

29. Consent uses

(1)An applicant may apply to the municipality in terms of section 25(2) for a consent use contemplated in the zoning scheme.

(2)If the development parameters for the consent use that is being applied for are not defined in the zoning scheme, the municipality must determine the development parameters that apply to the consent use in terms of conditions of approval imposed in terms of section 76.

(3)A consent use may be approved permanently or for a period specified in the conditions of approval imposed in terms of section 76.

(4)A consent use approved for a specified period must not have the effect of preventing the property from being utilised in the future for the primary uses permitted in terms of the zoning of the land.

(5)A consent use contemplated in subsection (1) lapses after the applicable period from the date that the approval comes into operation if, within that period—(a)the consent use is not utilised in accordance with the approval; or(b)the following requirements have not been met—(i)the approval by the municipality of a building plan envisaged for the utilisation of the approved consent use; and(ii)commencement of the construction of the building contemplated in subparagraph (i).

30. Subdivision

(1)No person may subdivide land without the approval of the municipality in terms of section 25(2) unless the subdivision is exempted in terms of section 34.

(2)No application for subdivision involving a change of zoning may be considered by the municipality unless the land concerned is zoned as a sub divisional area.

(3)An applicant may submit a subdivision application simultaneously with an application for rezoning.

(4)The municipality must impose appropriate conditions in terms of section 76 relating to engineering services for an approval of a subdivision.

(5)If the municipality approves a subdivision, the applicant must submit a general plan or diagram to the Surveyor-General for approval, including proof to the satisfaction of the Surveyor-General of—(a)the municipality’s decision to approve the subdivision;(b)the conditions of approval imposed in terms of section 76; and(c)the approved subdivision plan.

(6)The municipality must issue a certificate to the applicant or any other person on his or her written request to confirm that all the conditions of approval contemplated in section 31(1)(c) have been met, if the applicant has submitted the proof contemplated in that section.

(7)If the municipality issues a certificate referred to in subsection (6) in error, the owner is not absolved from complying with the obligations imposed in terms of the conditions.

31. Confirmation of subdivision

(1)A subdivision or part thereof is confirmed and cannot lapse when the following requirements are met within the period contemplated in section 32(1)—(a)approval by the Surveyor-General of the general plan or diagram contemplated in section 30(5);(b)completion of the installation of engineering services in accordance with the conditions contemplated in section 30(4) and other applicable legislation;(c)proof to the satisfaction of the municipality that all the conditions of the approved subdivision that must be complied with before compliance with paragraph (d) have been met in respect of the area shown on the general plan or diagram; and(d)registration of the transfer of ownership in terms of the Deeds Registries Act of the land unit shown on the diagram or of at least one new land unit shown on the general plan.

(2)Upon confirmation of a subdivision or part thereof in terms of subsection (1), zonings indicated on an approved subdivision plan are confirmed and cannot lapse.

(3)The municipality must in writing confirm to the applicant or any other person on his or her written request that a subdivision or part of a subdivision is confirmed if the applicant has to the satisfaction of the municipality submitted proof of compliance with the requirements referred to in subsection (1)(a) to (d) for the subdivision or part thereof.

(4)No building or structure may be constructed on a land unit forming part of an approved subdivision unless the subdivision is confirmed as contemplated in subsection (1) or the municipality approved the construction before the confirmation of the subdivision.

32. Lapsing of subdivision

(1)An approved subdivision lapses after the applicable period from the date that the approval comes into operation if the requirements contemplated in section 31(1)(a) to (d) have not been met within that period.

(2)If an applicant complies with section 31(1)(b) and (c) only in respect of a part of the land reflected on the general plan contemplated in section 31(1)(a), the applicant must withdraw the general plan and submit a new general plan to the Surveyor-General.

(3)If an approval of a subdivision or part thereof lapses in terms of subsection (1)—(a)the municipality must—(i)amend the zoning map and, where applicable, the register accordingly; and(ii)notify the Surveyor-General accordingly; and(b)the Surveyor-General must endorse the records of the Surveyor-General’s office to reflect the notification that the subdivision has lapsed.

33. Amendment or cancellation of subdivision plan

(1)The municipality may in terms of section 25(2) approve the amendment or cancellation of a subdivision plan, including conditions of approval, the general plan or diagram, in relation to land units shown on the general plan or diagram of which no transfer has been registered in terms of the Deeds Registries Act.

(2)When the municipality approves an application in terms of subsection (1), any public place that is no longer required by virtue of the approval must be closed in terms of section 36.

(3)The municipality must notify the Surveyor-General of an approval in terms of subsection (1) and the Surveyor-General must endorse the records of the Surveyor-General’s office to reflect the amendment or cancellation of the subdivision.

(4)An amended subdivision approval contemplated in subsection (1) is valid for the remainder of the period applicable to the initial approval of the subdivision before it was amended, reckoned from the date of approval of the amendment or cancellation in terms of subsection (1).

34. Exemption of certain subdivisions and consolidations

(1)The subdivision or consolidation of land does not require the approval of the municipality in the following cases—(a)the implementation of a court ruling;(b)an expropriation;(c)a minor amendment to the common boundary between two or more land units if the resulting change in area of any of the land units does not exceed 10 per cent;(d)the survey of closed streets or public open spaces in order to consolidate with an abutting land unit;(e)the construction or alteration of a public or proclaimed street;(f)the transfer land units to the municipality 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 agreement for—(i)the provision or installation of water pipelines, electricity transmission lines, sewer pipelines, storm water pipes and canals, gas pipelines or oil and petroleum product pipelines by or on behalf of an organ of state or service provider;(ii)the provision or installation of telecommunication lines by or on behalf of a licensed telecommunications operator;(iii)the imposition of height restrictions;(iv)the granting of a right of habitation, private right of way or usufruct; or(v)an existing state- or municipality-owned housing scheme in order to make ownership of individual land units possible.(h)the exclusive utilisation of land for agricultural purposes if the utilisation does not lead to urban expansion.

(2)Subject to subsection (5), the municipality 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 municipality 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 municipality 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.

(6)An owner of land or his or her agent must obtain a certificate from the municipality that certifies in writing that the subdivision or consolidation is exempted from the application of section 25, and sections 30 to 33 in the case of a subdivision, or sections 25, 41 and 42 in the case of a consolidation.

(7)The municipality must indicate on the subdivision plan, or on the diagram in respect of the consolidation, that the subdivision or consolidation is exempted from the application of the sections referred to in subsection (2).

35. Ownership of public places and land for engineering services and social facilities

(1)The ownership of land that is earmarked for a public place as shown on an approved subdivision plan vest in the municipality upon confirmation of the subdivision or a part thereof.

(2)The municipality may in terms of conditions imposed in terms of section 76 determine that land designated for the provision of municipal service infrastructure and amenities on an approved subdivision plan be transferred to the municipality upon confirmation of the subdivision or a part thereof.

36. Closure of public places

(1)The municipality may, on own initiative or on application, permanently close a public place or any part thereof in accordance with Chapter IV.

(2)An applicant who requires the closure of a public place, whether permanently or temporarily, must apply in terms of section 25(2) to the municipality.

(3)If any person lodges a claim against the municipality for loss or damage that he or she has allegedly suffered due to wrongdoing on the part of the municipality when it permanently closed a public place, the authorised employee must—(a)require proof of negligence or any other wrongdoing on the part of the municipality which resulted in the loss or damage; and(b)before any claim is paid or settled, obtain a full technical investigation report in respect of the circumstances that led to the closure of the public place to determine whether or not there has been negligence on the part of the municipality.

(4)The municipality may pay a claim if—(a)the circumstances of the loss or damage reveal that the municipality acted wrongfully;(b)the claimant has proved his or her loss or damage;(c)the claimant has provided proof of a fair and reasonable quantum;(d)no claim has been paid by personal insurance covering the same loss; and(e)any relevant information as requested by the authorised employee has been received.

(5)The ownership of the land comprising any public place, or a part thereof, that is permanently closed in terms of this section continues to vest in the municipality unless the municipality determines otherwise.

(6)The municipal manager may, without complying with Chapter IV , temporarily close a public place—(a)for the purpose of, or pending, the construction,reconstruction or maintenance of the public place;(b)for the purpose of, or pending, the construction, extension, maintenance or demolition of any building, structure, works or service alongside, on, across, through, over or under the public place;(c)if the public place is in a state that is dangerous to the public;(d)by reason of an emergency or public event that requires special measures for the control of traffic or crowds; or(e)for any other reason that renders the temporary closing of the public place necessary or desirable.

(7)The municipality must notify the Surveyor-General of an approval in terms of subsection (1) and the Surveyor-General must endorse the records of the Surveyor-General’s office to reflect the closure of the public place.

37. Services arising from subdivision

Subsequent to the approval of an application for subdivision in terms of this by-law, the owner of any land unit originating from the subdivision must—(a)allow without compensation that the following be conveyed across his or her land unit in respect of other land units originating from the subdivision—(i)gas mains;(ii)electricity cables;(iii)telephone cables;(iv)television cables;(v)other electronic infrastructure;(vi)main and other water pipes;(vii)foul sewers;(viii)storm-water pipes; and(ix)ditches and channels;(b)allow the following on his or her land unit if considered necessary and in the manner and position as may be reasonably required by the municipality—(i)surface installations such as mini-substations;(ii)meter kiosks; and(iii)service pillars;(c)allow access to the land unit at any reasonable time for the purpose of constructing, altering, removing or inspecting any works referred to in paragraph (a) or (b); and(d)receive material or permit excavation on the land unit as may be required to allow use of the full width of an abutting street and to provide a safe and proper slope to its bank where necessitated by differences between the level of the street as finally constructed and the level of the land unit unless he or she elects to build retaining walls to the satisfaction of and within a period to be determined by the municipality.

38. Certification by municipality

(1)A person may apply to the Registrar of Deeds to register the transfer of a land unit in the instances referred to in subsection (3)(a) to (c), only if the municipality has issued a certificate in terms of this section.

(2)The Registrar of Deeds may register the transfer of a land unit in the instances referred to in subsection (3)(a) to (c) only if the municipality has issued a certificate in terms of this section.

(3)The municipality must issue a certificate to transfer a land unit contemplated in subsections (1) and (2) if the owner provides the municipality with the following—(a)where an owners’ association has been established in respect of that land unit, a conveyancer’s certificate confirming that money due by the transferor of the land unit to that owners’ association has been paid, or that provision has been made to the satisfaction of the owners’ association for the payment thereof;(b)proof of payment of any existing contravention penalty due by the transferor of the land unit or proof of compliance with an instruction in a compliance notice issued to the transferor in terms of Chapter IX;(c)in the case of the first transfer of a land unit arising from a subdivision, proof that—(i)all common property arising from the subdivision has been transferred to the owners’ association as contemplated in section 39(3)(e) or will be transferred to the owners’ association simultaneously with the registration of the transfer of that land unit;(ii)land needed for public purposes or other municipal infrastructure as contemplated in terms of a condition imposed under section 76 has been transferred to the municipality or will be transferred to the municipality simultaneously with the registration of the transfer of that land unit;(iii)the engineering services and amenities that must be provided in connection with the subdivision are available; and(iv)a certificate contemplated in section 30(6) has been issued by the municipality.

39. Owners’ associations

(1)The municipality may, when approving an application for a subdivision of land, impose conditions relating to the compulsory establishment of an owners’ association by the applicant for an area determined in the conditions.

(2)An owners’ association that comes into being by virtue of subsection (1) is a juristic person and must have a constitution.

(3)The constitution of an owners’ association must be approved by the municipality before the transfer of the first land unit and must make provision for—(a)the owners’ association to formally represent the collective mutual interests of the area, suburb or neighbourhood set out in the constitution in accordance with the conditions of approval;(b)control over and maintenance of buildings, services or amenities arising from the subdivision;(c)the regulation of at least one annual meeting with its members;(d)control over the design guidelines of the buildings and erven arising from the subdivision;(e)the ownership by the owners’ association of all common property arising from the subdivision, including—(i)private open spaces;(ii)private roads; and(iii)land required for services provided by the owners’ association;(f)enforcement of conditions of approval or management plans;(g)procedures to obtain the consent of the members of the owners’ association to transfer an erf in the event that the owners’ association ceases to function; and(h)the implementation and enforcement by the owners’ association of the provisions of the constitution.

(4)The constitution of an owners’ association may have other objectives as set by the association but may not contain provisions that are in conflict with any law.

(5)The constitution of the owners’ association takes effect on the registration of the first land unit.

(6)An owners’ association may amend its constitution when necessary, but if an amendment affects the municipality or a provision referred to in subsection (3), the amendment must also be approved by the municipality.

(7)An owners’ association that comes into being by virtue of subsection (1)—(a)has as its members all the owners of the land units arising from the subdivision and their successors in title, who are jointly liable for expenditure incurred in connection with the association; and(b)is upon registration of the first land unit automatically established.

(8)The design guidelines contemplated in subsection (3)(d) may introduce more restrictive development rules than the rules provided for in the zoning scheme.

40. Owners’ associations that cease to function

(1)If an owners’ association ceases to function or carry out its obligations, the municipality or any affected person, including a member of the association, may apply—(a)in terms of section 25(2)(q) to disestablish the owners’ association subject to—(i)the amendment of the conditions of approval to remove the obligation to establish an owners’ association; and(ii)the amendment of title conditions pertaining to the owners’ association, to remove any obligation in respect of an owners’ association;(b)in terms of section 25(2)(r) for appropriate action by the municipality to rectify a failure of the owners’ association to meet any of its obligations in respect of the control over or maintenance of services contemplated in subsection 39(3)(b); or(c)to the High Court to appoint an administrator who must exercise the powers of the owners’ association to the exclusion of the owners’ association.

(2)In considering an application contemplated in subsection (1)(a)(i) , the municipality must have regard to—(a)the purpose of the owners’ association;(b)who will take over the control over and maintenance of services for which the owners’ association is responsible; and(c)the impact of the disestablishment of the owners’ association on the members of the owners’ association and the community concerned.

(3)The municipality or the affected person may recover from the members of the owners’ association the amount of any expenditure incurred by the municipality or that affected person, as the case may be, in respect of any action taken in terms of subsection (1).

(4)The amount of any expenditure so recovered is, for the purposes of section 39(7)(a), considered to be expenditure incurred in connection with the owners’ association.

41. Consolidation of land units

(1)No person may consolidate land without the approval of the municipality in terms of section 25(2) unless the consolidation is exempted in terms of section 34.

(2)If the municipality approves a consolidation, the applicant must submit a diagram to the Surveyor-General for approval, including proof to the satisfaction of the Surveyor-General of—(a)the municipality’s decision to approve the consolidation;(b)the conditions of approval imposed in terms of section 76; and(c)the approved consolidation plan.

(3)If the municipality approves a consolidation, the municipality must—(a)amend the zoning map and where applicable the register, accordingly; and(b)issue a certificate to the effect that all conditions of consolidation have been complied with.

42. Lapsing of consolidation

(1)An approved consolidation of land units lapses if the consolidation is not registered in terms of the Deeds Registries Act within the applicable period from the date that the approval comes into operation.

(2)If an approval of a consolidation lapses in terms of subsection (1)—(a)the municipality must—(i)amend the zoning map, and where applicable the register, accordingly; and(ii)notify the Surveyor-General accordingly; and(b)the Surveyor-General must endorse the records of the Surveyor-General’s office to reflect the notification that the consolidation has lapsed.

43. Removal, suspension or amendment of restrictive conditions

(1)The municipality may, on its own initiative or on application in terms of section 25(2), remove, suspend or amend a restrictive condition.

(2)The municipality may remove, suspend or amend a restrictive condition—(a)permanently;(b)for a period specified in the approval; or(c)subject to conditions of approval.

(3)In addition to the procedures set out in Chapter IV, the owner must—(a)submit a certified copy of the relevant title deed to the municipality; and(b)where applicable, submit the bondholder’s consent to the application.

(4)The municipality must cause a notice of an application in terms of subsection (1) to be served on—(a)all organs of state that may have an interest in the restrictive condition;(b)a person whose rights or legitimate expectations will be affected by the approval of the application; and(c)all persons mentioned in the title deed for whose benefit the restrictive condition applies.

(5)When the municipality considers the removal, suspension or amendment of a restrictive condition, the municipality must have regard to the following—(a)the financial or other value of the rights in terms of the restrictive condition enjoyed by a person or entity, irrespective of whether these rights are personal or vest in the person as the owner of a dominant tenement;(b)the personal benefits which accrue to the holder of rights in terms of the restrictive condition;(c)the personal benefits which will accrue to the person seeking the removal, suspension or amendment of the restrictive condition if it is amended, suspended or removed;(d)the social benefit of the restrictive condition remaining in place in its existing form;(e)the social benefit of the removal, suspension or amendment of the restrictive condition; and(f)whether the removal, suspension or amendment of the restrictive condition will completely remove all rights enjoyed by the beneficiary or only some of those rights.

(6)An approval to remove, suspend or amend a restrictive condition comes into operation—(a)if no appeal has been lodged, after the expiry of the period contemplated in section 89(2) within which an appeal must be lodged; or(b)