THE City of Johannesburg lost the first round of a court bid to stop developers using fast tracked application processes for rezoning and township establishment. But developers would be well advised to take the slower route for the time being, says Brian Kew, head of the property practice area at Werksmans Attorneys.

“The dispute between the council and certain developers over approval processes has effectively halted certain commercial and residential developments in the Johannesburg area,” Kew says.

“Although the Witwatersrand local division has ruled against the council, which is challenging developers’ right to use fast-tracked processes, developers should err on the side of caution when making rezoning and township development applications.”

Kew says the Development Facilitation Act has been at the centre of the dispute, which has caused long delays in application approvals.

“The city council claims that the Development Facilitation Act was intended to accelerate reconstruction and development programmes to accommodate people in dire need of house accommodation, and not to fast-track upmarket commercial and residential developments.

“However, certain developers saw the advantages of using the act as opposed to the usual rezoning and township establishment route in terms of the Town Planning and Townships Ordinance.”

Whereas it can take 12 months or longer to obtain approval for a rezoning and township establishment application through the ordinance, this can be cut to three to five months through the processes in the act, he says.

“This is because the Development Facilitation Act contains specific time frames for various steps and makes provision for tribunals to hear applications and make quick decisions.” By contrast, Kew says, “the ordinance has no time constraints and compels developers to deal with the city council processes”.

The time-saving procedure of the act has prompted a growing number of developers to sidestep the usual city council processes.

The City has responded by refusing to implement rezoning decisions made by Development Facilitation Act tribunals and insisting that the ordinance takes precedence.

“It appears the council’s thinking was that the time demands being imposed on it through the act were unrealistic and unreasonable, especially given constraints in its town planning and delivery capacity,” says Kew.

The City took the matter to court in 2005. “The council brought an application for a declaratory order, meaning it sought clarity on the two pieces of legislation — the act and the ordinance,” says Kew.

The court ruled in February 2008 but the council has signalled it intends to appeal.

Source: Business Day