The City’s land-use decisions and its draft Municipal Planning By-Law show its “fundamentally flawed” approach to public consultation and administrative justice.

So says Tracey Davies, the head of the Constantia Ratepayers and Residents Association's land-use committee.

Speaking to more than 80 people at the civic's annual general meeting at the Alphen Centre, on Monday, November 11, Ms Davies said a 2019 amendment to the Municipal Planning By-Law gave "additional use rights" for second and third dwellings, such as granny flat or smaller second home for extended family members, on a single plot on condition that “the dominant use of the property” was a single family dwelling and any new structure should fit the area’s residential character.

“The way the City has interpreted this ‘dominant use’ condition, is to say that as long as one house is a little bit bigger than the other - even if it's two- or three-square metres - it complies with the ‘dominant use’ condition. The question of whether it is compatible with the residential character of the area does not appear to play any role in the decision-making,” said Ms Davies.

“As a result, we are seeing a proliferation of luxury ‘estate’ or cluster developments that are destroying the tree canopy, infringing on neighbour's rights and fundamentally altering the unique character of the area. Additionally, the way the additional use right is defined in the Municipal Planning By-Law is that it can be exercised with no planning permission and no public participation.”

Using Google Earth images, Ms Davies illustrated how land use in Constantia had changed over time: heavily treed properties with single dwellings completely cleared of vegetation and replaced by three cramped dwellings.

“These developments are utilising sectional title schemes in the context of properties zoned single residential. The developer opens a sectional title register over the property, which means that several different owners have title in a property zoned single residential with mandatory minimum erf sizes. The impact is that for all intents and purposes these erven are subdivided into portions that are a fraction of the minimum erf size."

Traditionally an application for a departure to subdivide below minimum erf size needs to be advertised, but there is no public participation requirement for a sectional title scheme.

“So, what we see over and over again is that the first time neighbours know what is happening is when the erf is cleared, trees are felled, and existing structures are demolished,” Ms Davies said.

The draft Municipal Planning By-Law, she said, changed all “single residential" zonings to “residential” and removed any requirement to assess whether infrastructure could cope with second and third dwellings - the developer would only need to pay a development charge to the City.

“The by-law amendments also propose an additional use right for a ‘supplemental dwelling’. This purports to be for housing employees, but the ambiguous wording means that it will undoubtedly be used as a basis to increase the number of dwellings permitted on any erf, without planning permission or public participation, from three to four.”

Section 33 of the constitution gave everyone the right to administrative action that was lawful, reasonable and procedurally fair, but the City’s land-use decision making and the proposed changes to the planning by-law showed it had a “fundamentally flawed approach to public participation and administrative justice”, said Ms Davies.

“Each time the by-law is amended, it removes more rights to public participation. If the current by-law amendments come into effect, there will also be no right to be notified or comment on the addition of a fourth dwelling per erf and other activities that have a significant impact on people's lives, property values, privacy etc., and the fact that there is no requirement to notify the people affected, or to give them the opportunity to engage with the decision-making process is a fundamental breach of the right to just administrative action.”

The City’s approach to public participation suggested decisions were made before the public had any input with no intention to include input that could change the outcome, she said.

“Public participation should happen at the start of the process: these by-laws should reflect a process of co-creation, not a diktat from the City to implement decisions that were taking behind closed doors.”

Mayoral committee member for spatial planning and the environment Eddie Andrews said the additional use right for third dwellings on a single erf was “in line with the City’s Integrated Development Plan, Municipal Spatial Development Framework and Transit-Oriented Development Framework, which together, pursues a denser City form to improve efficiencies and our long-term sustainability”.

The Sectional Titles Act provided for the division of buildings into sections so they could have separate owners but did not provide further land-use rights or change the use of land under its zoning, he said.

“The City is also not a competent authority in terms of this Act, and no planning permission is required to register a sectional plan as long as it complies with the zoning scheme and the approved building plans.”

While Constantia lay in a protection zone that limited the subdivision of land, Mr Andrews said the landowner in the zone could apply for a departure from minimum plot sizes.

“This will have to be properly motivated and if found desirable, the departure may be approved,” he said.

Proposed amendments to the planning by-law were part of a five-year review that responded to needs and advancements in the local spatial planning environment, and many public proposals were reflected in the draft available for public comment, he said, noting that the planning by-law needed to adapt to address changes.

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