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Municipal Land Use Planning By-law, 2018
- Published in Western Cape Provincial Gazette no. 7983 on 28 September 2018
- Assented to on 23 August 2018
- Commenced on 28 September 2018
- [This is the version of this document from 28 September 2018 and includes any amendments published up to 6 May 2022.]
Interpretation and application
1. DefinitionsIn 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;"Appeal Authority" means the Appeal Authority contemplated in section 79(1);"applicable period", referred to in sections 17(5) and (6), 18(2), 19(5), 22(1) and 32(1), means the period that may be determined by the Municipality in the by-law approval;"applicant" means a person referred to in section 15(2) who makes an application to the Municipality as contemplated in that section;"application" means an application to the Municipality referred to in section 15(2);"authorised employee" means the person who is authorised in terms of section 69 to exercise a power or perform a duty in terms of the categorisation of applications as contemplated in section 68;"authorised official" means an employee of the Municipality 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 zone;"commencement", in relation to construction, means to have begun continuous physical, on-site construction in accordance with building plans approved in terms of the National Building Regulations and Building Standards Act, 1977 (Act 103 of 1977), and that has gone beyond site clearing, excavation or digging trenches in preparation for foundation;"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;"common property" means-(a)in the case of an erf on which a sectional title scheme is developed, common property as defined in the Sectional Titles Act, which is not subject to an exclusive right of use by a member in terms of that sectional title scheme;(b)the land registered in the name of the association, including, but not limited to, private space;(c)any portion of the development which is not subject to an exclusive right in favour of a member of the association;"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 the Drakenstein Municipality;"date of notification" means the date on which a notice is served as contemplated in section 35 or published in the media or Provincial Gazette;"development charge" means a once-off bulk infrastructure access fee levied by the Municipality on an applicant, developer or owner in terms of its relevant statutory powers in respect of a development which will result in an intensification of land use and increase in the use or need for bulk municipal utility services infrastructure, and may include any required social infrastructure;"emergency" includes a situation that arises from a flood, strong wind, severe rainstorm, fire, earthquake, industrial accident or any other situation that requires the relocation of human settlements or people;"Executive Director" means the manager appointed by the municipality in terms of section 56 of the Municipal Systems Act, 2000 (Act 32 of 2000) who is responsible for the function of municipal planning as contemplated in Schedule 4B of the Constitution of the Republic of South Africa, 1996;"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;"City Manager" means the person appointed as the Municipal Manager of the City in terms of section 54A of the Municipal Systems Act;"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 Drakenstein Municipality established by Establishment Notice 488 in the Provincial Gazette No 5590 of 22 September 2000 issued in terms of the local Government: Municipal Structures Act, 1998 (Act 117 of 1998), and, where the context so requires, 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)duly authorised representative of the municipality;(e)the City Manager; and(f)an authorised official."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;"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)subdivision or subdivisional areas;(iii)development incentives;(iv)density limitations;(v)urban form or urban renewal;(vi)heritage or environmental protection;(vii)management of the urban edge;(viii)scenic drives;(ix)coastal setbacks; or(x)any other purpose as set out in the zoning scheme;"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;(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;(e)if the registered owner is deceased and if an executor has not been appointed an heir; and if there is no heir or if the municipality is unable to determine the identity of the heir, the person who is entitled to the benefit of the use of the land or building or who enjoys such benefit;(f)if the registered owner is a close corporation that is deregistered, a member of the close corporation at the time of deregistration;(g)if the registered owner is absent from the Republic or their whereabouts are unknown, a person who, as agent or otherwise, undertakes the management, maintenance or collection of rentals or other moneys in respect of the land or building or who is responsible therefor; and(h)if the municipality is unable to determine the identity of a person otherwise defined as owner, a person who is entitled to the benefit of the use of the land or building or who enjoys such benefit."owners' association" means an owners' association contemplated in section 29;"organ of state" bears the meaning assigned to it in section 239 of the Constitution."pre-application consultation" means a consultation contemplated in section 37;"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 that the municipality in terms of its powers and functions provides or may provide to or for the benefit of the local community irrespective of whether-(a)such a service is provided, or to be provided, by the municipality through an internal mechanism contemplated in section 76(a) of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000) or by engaging an external mechanism contemplated in section 76(b) of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000); and(b)fees, charges or tariffs are levied in respect of such a service or not;"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 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 Regulations: Land Use Management and General Matters, 2015 made under the Spatial Planning and Land Use Management Act and published under Notice R239/2015 in Government Gazette 38594 of 23 March 2015;"subdivisional 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 70."zoning scheme" means the Drakenstein Zoning Scheme as adopted by the Council and promulgated in the Provincial Gazette of the Western Cape;
2. Application of By-lawThis By-law applies to all land situated within the municipal area, including land owned by organs of state.
3. Compilation or amendment of municipal spatial development framework
4. Establishment of project committee
5. Establishment of intergovernmental steering committee
6. Procedure with intergovernmental steering committee
7. Procedure without intergovernmental steering committee
8. Functions and duties
9. Local spatial development frameworks
10. Compilation, adoption, amendment or review of local spatial development frameworks
11. Status of local spatial development frameworks
12. Structure plans
13. Determination of zoning
14. Non-conforming uses
15. Land development requiring approval and other approvals required in terms of this By-law
16. Continuation of application after change of ownershipIf 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 and the new owner is regarded as the applicant for the purposes of this By-law.
17. Rezoning of land
19. Consent uses
21. Confirmation of subdivision
22. Lapsing of subdivision
23. Amendment or cancellation of subdivision plan
24. Exemption of certain subdivisions and consolidations
25. Ownership of public places and land for municipal services infrastructure and amenities
26. Closure of public places
27. Services arising from subdivisionSubsequent 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 the following services to be conveyed across his or her land unit as may be reasonably required by the Municipality 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 services 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.
28. Certification by the Municipality
29. Owners' associations
30. Owners' associations that cease to function
31. Consolidation of land units
32. Lapsing of consolidation
33. Removal, suspension or amendment of restrictive conditions
34. Endorsements in connection with removal, suspension or amendment of restrictive conditions
35. Manner and date of notification
36. Procedures for applications
37. Pre-application consultation
38. Information required
39. Application fees
40. Grounds for refusing to accept applicationThe Municipality may in terms of section 41(3) refuse to accept an application if-(a)there is no proof of payment of the applicable fees; or(b)the application is not in the form or does not contain the information or documents referred to in section 38.
41. Receipt of application and commencement of application process
42. Provision of additional information or documents
43. Withdrawal of application or power of attorney
44. Public notice in accordance with other laws and integrated procedures
45. Publication of notices
46. Serving of notices
47. Contents of noticeWhen notice of an application must be published or served in terms of this By-law, the notice must-(a)provide the name of the applicant and the owner;(b)identify the land or land unit to which the application relates by giving the property description and the physical address;(c)state the intent and purpose of the application;(d)state that a copy of the application and supporting documentation will be available for viewing during the hours and at the place mentioned in the notice;(e)state the name and contact details of the person to whom comments must be addressed;(f)invite members of the public to submit written comments, together with the reasons therefor;(g)state in what manner comments may be submitted;(h)state the date by which the comments must be submitted, which date may not be less than 30 days from the date on which the notice was given; and(i)state that any person who cannot write or read may during office hours come to an address stated in the notice where a named staff member of the Municipality will assist those persons by transcribing their comments.
48. Other methods of public notice
49. Requirements for petitions
50. Requirements for submission of comments
51. Intergovernmental participation process
52. Amendments before approval
53. Further public notice
54. Further public noticeThe applicant is liable for the costs of publishing and serving of all notices of an application in terms of this By-law.
55. Right of applicant to reply
56. Written assessment of application
57. Decision-making period
58. Failure to act within periodSubject to sections 41(5) an applicant may lodge an appeal with the Appeal Authority if the authorised employee or the Tribunal fails to decide on an application within the period referred to in section 57(1) or (2).
59. Powers to conduct routine inspections
60. Decisions on applications
61. Notification and coming into operation of decision
62. Duties of agent
63. Errors and omissions
64. Exemptions to facilitate expedited procedures
Criteria for decision-making
65. General criteria for consideration of applicationsWhen the authorised employee or the Tribunal considers an application, it must have regard to the following:(a)the procedure followed in processing the application;(b)the desirability of the proposed utilisation of land and any guidelines issued by the Provincial Minister in that regard.(c)the comments in response to the notice of the application, including comments received from organs of state, municipal departments and the Provincial Minister in terms of section 45 of the Land Use Planning Act;(d)the response by the applicant, if any, to the comments referred to in paragraph (d);(e)investigations carried out in terms of other laws that are relevant to the consideration of the application;(f)a written assessment by a registered planner in the employment of the municipality, who may not be the authorised employee, in respect of an application for-(i)a rezoning;(ii)a subdivision of more than 20 cadastral units;(iii)a removal, suspension or amendment of a restrictive condition if it relates to a change of land use;(iv)an amendment, deletion or imposition of additional conditions in respect of an existing use right;(v)an approval of an overlay zone contemplated in the zoning scheme;(vi)a phasing, amendment or cancellation of a subdivision plan or part thereof;(vii)a closure of a public place or part thereof;(g)the impact of the proposed land development on municipal engineering services;(h)the integrated development plan, including the municipal spatial development framework;(i)the integrated development plan of the district municipality, including its spatial development framework, where applicable;(j)the applicable local spatial development frameworks adopted by the Municipality;(k)the applicable structure plans;(l)the applicable policies of the Municipality that guide decision-making;(m)the provincial spatial development framework;(n)where applicable, a regional spatial development framework contemplated in section 18 of the Spatial Planning and Land Use Management Act and provincial regional spatial development framework;(o)the policies, principles and the planning and development norms and criteria set by the national and provincial government(p)the matters referred to in section 42 of the Spatial Planning and Land Use Management Act;(q)the principles referred to in Chapter VI of the Land Use Planning Act;(r)the applicable provisions of the zoning scheme; and(s)any restrictive condition applicable to the land concerned.
66. Conditions of approval
Extension of validity of period of approvals
67. Applications for extension of validity period
Municipal planning decision-making structures
68. Municipal planning decision-making structures in respect of applicationsThe Council institutes the following decision-making structures in respect of applications in terms of this By-law-(a)the authorised employee;(b)the tribunal; and(c)the Executive Director;
69. Consideration of applications
70. Establishment of Tribunal
71. Composition of Tribunal for municipal area
72. Process for appointment of members for Tribunal for municipal area
73. Term of office and conditions of service of members of Tribunal for municipal area
74. Disqualification from membership of Tribunal
75. Meetings of Tribunal for municipal area
76. Code of conduct for members of Tribunal for municipal area
77. Administrator for Tribunal for municipal area
78. Functioning of Tribunal for municipal area
80. Procedure for appeal
81. Consideration by Appeal Authority
Provision of engineering services
82. Responsibility for provision of engineering services
83. Development charges and other contributions
84. Land for parks, open spaces and other uses
85. EnforcementThe Executive Director must enforce compliance with-(a)the provisions of this By-law;(b)the provisions of the zoning scheme; and(c)conditions imposed in terms of this By-law or any law repealed by the Land Use Planning Act.
86. Offences and penalties
87. Serving of compliance notices
88. Contents of compliance notice
89. Objections to compliance notice
90. Failure to comply with compliance noticeIf a person fails to comply with a compliance notice, the Municipality may-(a)institute criminal proceedings against the person;(b)apply to a competent court for an order-(i)restraining that person from continuing the unlawful utilisation of the land;(ii)directing that person to, without the payment of compensation-(aa)demolish, remove or alter any building, structure or work unlawfully erected or constructed; or(bb)rehabilitate the land concerned;(c)in the case of consent use or a temporary departure, withdraw the approval granted and take any of the other steps contemplated in section 88(1)(g).
91. Compliance certificatesIf the authorised official is satisfied that the owner or occupier of any land or premises has complied with a compliance notice, he or she may issue a certificate, in the manner and form determined by the Municipality, to confirm the compliance.
92. Urgent matters
93. General powers and functions of authorised officials
94. Powers of entry, search and seizure
95. Warrant of entry for enforcement purposes
96. Regard to decency and orderThe entry upon land or premises or in a building under this Chapter must be conducted with strict regard to decency and order, which must include regard to-(a)a person's right to respect for and protection of his or her dignity;(b)the right to freedom and security of the person; and(c)a person's right to personal privacy.
97. Enforcement litigationWhether or not the Municipality lays criminal charges against a person for an offence contemplated in section 86, and despite section 87, the City Manager may apply to a competent court for an interdict or any other appropriate order, including an order compelling that person to-(a)demolish, remove or alter any building, structure or work unlawfully erected or constructed;(b)rehabilitate the land concerned;(c)cease the unlawful utilisation of land;
98. Administrative penalty
99. Rectification of contraventionThe Executive Director may take any action as contemplated in section 90(a) and (b) in order to rectify a contravention, should the applications as contemplated in 98(2) be refused.
100. Naming and numbering of streets
101. DelegationsThe City Manager and the Executive Director, as the case may be, may delegate any power, function or duty conferred upon them in terms of this by-law to an official.
102. Repeal of by-lawsThe Drakenstein By-law on Municipal Land Use Planning, 2015, published in Extraordinary Provincial Gazette dated 13 November 2013 is hereby repealed as a whole.
103. Transitional arrangementsAnything done under or in terms of any provision repealed by this by-law shall be deemed to have been done under the corresponding provisions of this by-law and the repeal in section 102 shall not affect the validity of anything done under the by-law so repealed.
104. Short title and commencementThis By-law shall be known as the Drakenstein By-law on Municipal Land Use Planning, 2018, and comes into operation of the date of publication thereof in the Provincial Gazette.
History of this By-law
28 September 2018 this versionPublished in Western Cape Provincial Gazette no. 7983By-law commences.
23 August 2018Assented to by council.