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A proper construction

25 October 2018

This article seeks to inculcate a proper construct of the provisions of Section 43 in order to curb the prevailing prevarications on the application thereof. It is almost trite law that most land development applications are approved with pre-promulgation or pre-establishment conditions and/or postestablishment conditions.

By land development applications we mean the following applications as prescribed in terms of Section 41(1) & (2) of SPLUMA as well as relative By-Laws:

  • A township establishment application;
  • A subdivision and/or consolidation of an erf/erven in an approved township or the subdivision of any other land application;
  • An extension of boundaries of an approved township application;
  • An amendment or cancellation either wholly or in part of a general plan of an approved township application;
  • A removal, amendment or suspension of a restrictive or obsolete condition, servitude or reservation registered against the title of land application; and
  • Any other application as provided for in this By-law.

In terms of Section 40(7) of the Spatial Planning and Land Use Management Act 16 of 2013 “A Municipal Planning Tribunal may— (a) approve, in whole or in part, or refuse any application referred to it in accordance with this Act; (b) in the approval of any application, impose any reasonable conditions, including conditions related to the provision of engineering services and the payment of any development charges

We distinguish between conditions relating to various aspects of land use namely:

  1. Provision of engineering services;
  2. Payment of development charges and/or contributions for the provision of engineering services;
  3. Provision or transfer of land to any competent authority for use as public open space and parks, private open space or the payment of an endowment in lieu of the providing thereof;
  4. Provision of engineering services in terms of section 49 of Act 16 of 2013, relevant Municipal Planning By-Law or any Council Policy;
  5. Making of arrangements with regard to the maintenance of any engineering services, open spaces and public and private parks;
  6. Matters contained or governed in a Land Use Scheme and related issues;
  7. Registration of servitudes and conditions of title;
  8. Provision of land for educational or other social facilities, or the payment of an endowment in lieu thereof;
  9. Transfer of land to an entity specifically established for the provision and maintenance of engineering services in terms of the relevant By-law or other applicable legislation; and
  10. Any other matter considered necessary by the Municipality.

The Municipality may further distinguish between conditions that are to be complied with:

  • prior to the rights coming into operation;
  • after the land use rights have come into operation, but before the rights can be exercised;
  • without which the rights may not be exercised; and/ or
  • prior to the approval of building plans.

Section 43 of SPLUMA specifically regulates the aspect of mandate, period of compliance and the lapse of a land development application which is approved subject to conditions as aforesaid.

The section in question reads as follows:

Conditional approval of application 43.

(1) An application may be approved subject to such conditions as—

(a) are determined by the Municipal Planning Tribunal; or

(b) may be prescribed.

(2) A conditional approval of an application lapses if a condition is not complied with, within—

(a) a period of five years from the date of such approval, if no period for compliance is specified in such approval; or

(b) the period for compliance specified in such approval, which, together with any extension which may be granted, may not exceed five years.

From the outset, emphasis must be made that the primary purpose of the foregoing provision is to regulate the lapsing of a conditional approval imposed by the Municipal Planning Tribunal (MPT) or by the Authorised Official (AO) and to elucidate the dynamics and premises of such lapse.

For a proper construct of the dynamics of the lapse, two different positions regarding conditional approvals must be clearly distinguished, namely:

  • Conditional approval with a defined period of compliance.
  • Conditional approval without a defined period of compliance. In the case of a conditional approval with a defined period, the notice of approval will disclose the period for such compliance. The period disclosed as such, including any relevant extensions, must not exceed 5 years from the date of approval. Deeds examiners must actually peruse the notice in the township file to determine if the application has not lapsed before registration of the relevant transaction. The date of approval is key-critical in this exercise.

However, one must take cognisance of the fact that over and above the period disclosed in the approval, there is still a prescribed period within which an application must be registered in the deeds office which is disclosed in the relevant legislation.

Usually, applications must be registered within 6-12 months from date of approval.

With regard to the conditional approval without a defined period, Section 43(2)(a) states that the approval lapses within a period of 5 years from the date of approval. The date of approval is the point of departure in computing the period of 5 years.

As far as the mandate is concerned it is clear from the provisions of Section 43(1) that an application may be approved by a MPT or AO and therefore the conditions of approval may also be imposed by the MPT and the AO.

Wiseman Bhuqa, Law Lecturer Legal Support
Deeds Training

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