TO ENSURE that the property industry is included in shaping SA’s development planning policy, the South African Property Owners Association (Sapoa), has been admitted as amicus curiae (“friend of the court”) in a case before the Constitutional Court.

The property industry is in an uncomfortable state of flux and is likely to remain so well into the year. The insecurity follows a Supreme Court of Appeal ruling that municipalities, and they alone, should regulate land use.

Analysts argue that while this is theoretically consistent with orderly planning and development, much of it has been done through parallel authorities in the form of development tribunals. However, the legality of these tribunals is now in question.

Brian Frank, property law specialist and partner of law firm Glynn Marais, says it is important to appreciate that while the appeals court has declared invalid legislation that confers parallel authority on development tribunals, the decision has no force until it is confirmed by the Constitutional Court.

Sapoa, which represents by far the majority of urban land developers in SA, says it has a vital interest in the outcome of the Constitutional Court case.

Tsakane Shilubane legal services manager, says: “Sapoa’s admission as an amicus curiae was supported by the South African Council for Consulting Professional Planners, which has also been admitted”.

Shilubane says the association has applied for admission as it believes it can provide important insight into the practical aspects of town planning laws, to ensure the court’s conclusions are based on sound knowledge.

Richard Bennet, chairman of the Sapoa developer’s forum, says the chance to present the theory behind planning, spatial planning, municipal planning, and urban and rural development will help to highlight that some conclusions in the appeals court judgment on land use planning and municipal planning, are incorrect.

“The gamble faced by developers, therefore, is whether to continue to submit applications to the development tribunals in the hope they will be dealt with before the Constitutional Court rules on the matter, or whether to take the more conservative route — which is plagued with delays and difficulties — of applying to the municipality,” says Frank.

The property industry has been approaching development tribunals routinely to fast-track approval, especially for large-scale projects such as shopping centres and sectional title complexes.

Frank says by-passing municipalities enabled developers to avoid the onerous requirement of having to secure, from the minister of agriculture, permission to subdivide land. Response from this department was often tardy and approval often refused.

Source: Business Day