THE SPATIAL PLANNING AND LAND USE MANAGEMENT ACT SPLUMA AS IT IS COMMONLY KNOWN)
This is our second Newsflash on SPLUMA. As a brief re-introduction SPLUMA is a national framework legislation which came into operation on the 1st July 2015. SPLUMA’s primary aim is to provide national, provincial and municipal spheres of government with a framework relating to the establishment of policies and systems relating to planning and land use management.
Historically each province had its own set of Acts governing land use within its boundaries. SPLUMA unifies all the provinces under one national legislation. SPLUMA replaced a number of Acts such as Removal of Restrictions Act 84 of 1967, Physical Planning act 88 of 1967, Less Formal Township Establishment Act 113 of 1991, The Physical Planning Act 125 of 1991 and the Development Facilitations Act 67 of 1995.
Each Municipality must approve and adopt a single land use management scheme for its entire area within 5 years from the commencement date of SPLUMA. The commencement date was 1 July 2015 and as such each Municipality is required to adopt its land use management scheme by 1 July 2020. The purposes of a land use scheme are to promote economic growth, social inclusion, efficient land development and a minimal impact on public health, the environment and natural recourses.
The land use scheme must take into account various requirements set out in SPLUMA including but not limited to including appropriate categories of land use zoning and regulations; compliance with environmental legislation and provisions to promote the inclusion of affordable housing in residential land development. Each municipality must pass by-laws to formulate the procedures they will follow to give effect to and enforce the provisions of SPLUMA.
Each municipality will have to approve and publish by-laws to give effect to SPLUMA for example the City of Johannesburg has approved and published its by-laws called the City of Johannesburg Municipal Planning By-laws, 2016. Municipalities must establish a Municipal Planning Tribunal to determine land use and development application within its jurisdiction.
Applications for rezoning, township establishment, subdivision of land, consolidation of different pieces of land and removal, amendment or suspension of restrictive conditions are governed by SPLUMA and must be brought in accordance with the processes set out in the relevant municipal By-laws.
All applications must be submitted to the relevant municipality who will determine when the municipal planning tribunal will be held or an authorized official will deal with same in accordance with their allocation procedure. All conditional approvals referred to in terms of section 41 of SPLUMA will lapse if the conditions are not complied with within 5 years from date of approval. An approval may prescribe within a shorter time period and any extension granted cannot exceed 5 years from date of original approval. Section 53 of SPLUMA prohibits any act of registration without the approval of the municipality. The municipalities are governed by strict time-lines as are the various Departments that need to provide clearance. Lastly as with all legislation that is newly introduced, the procedure and practices will be perfected with time, case-law and sometimes even amendments.
An issue which has arisen as a result of the implementation of SPLUMA, is that various Municipalities have in their By-laws adopted and imposed burdensome certification requirements for the transfer of immovable properties in the ordinary course (i.e. not relating to subdivisions, township establishments etc.). For example, Municipalities
within Mpumalanga have adopted by-laws which require a SPLUMA certificate before an immovable property may be transferred and in order to obtain such certificates owners need to establish and obtain consent from the relevant Municipality that:
• All funds due by the owner in respect of the land has been paid;
• All contravention penalties have been paid;
• All compliance directives must have been complied with;
• The land and buildings constructed on the land unit comply with the requirements of the land use scheme;
• All conditions of approval of any land development application must have been complied with.
During the approval process, if non-compliant, the seller will be required to appoint an architect to prepare plans for lodgment with the Municipality, the property may need to be re-zoned, and with encroachments must be dealt with, which may involve demolition, relocation, the registration of servitudes etc.
It remains to be seen whether other provinces, regions or municipalities will adopt similar burdensome SPLUMA certification requirements in terms of their by-laws or planning and land use by-laws or whether such certification requirements will otherwise be imposed at a regional, provincial or national level.
We confirm that the current position in Gauteng is that no SPLUMA certificate is required at all as regards to residential properties transferred in the normal course and there are no SPLUMA certification requirements in the pipeline for residential properties transferred in the normal course.
In the City of Cape Town, a SPLUMA certificate is only required for the first registration of transfer of a land unit or to obtain a certificate of registered title which arises out of an approved subdivision of a property. This would entail that, as in the past, in the City of Cape Town, a certificate from the municipality is required upon the first registration of a new portion of land, certifying that the municipality’s requirements for subdivision have been complied with. In our experience, provisions of the By-laws of those municipalities in the Western Cape which seem to provide for SPLUMA certificates to be issued for transfers other than first registrations of land units, are not being enforced by the relevant authorities.
In KwaZulu Natal the KwaZulu Natal Deeds Office has confirmed that no SPLUMA certificate will be required at this time for residential properties transferred in the normal course and there are no SPLUMA certification requirements in the pipeline for residential properties transferred in the normal course, which may be subject to
Various SPLUMA articles have appeared on numerous online platforms and news. We disagree with the views expressed that a SPLUMA certificate will be required for the transfer of residential property throughout South Africa later this year (most articles allege October). We confirm that the current position in Gauteng is that no
SPLUMA certificate is required at all as regards to residential properties transferred in the normal course and there are no SPLUMA certification requirements in the pipeline for residential properties transferred in the normal course.