Page 52 - Litigating Land and Housing in South Africa: Lessons and Reflections

ensure compliance with SPLUMA in the absence of a a a municipal framework to to give effect to to this aspect of the Act It stated that:
“7 1 1 14 Notwithstanding the principles contained in in SPLUMA the MPT is not in in a a position to delay decision-making in in the absence of an appropriate Council policy framework and an an agreed upon set of criteria and mechanisms to guide the implementation of inclusionary housing in in in private developments”
The CMRM then appealed this decision It argued that the the planning tribunals established by the the City of Cape Town are mandated in terms of the legislation to base their decisions regarding land development applica- tions on on the new land use planning regime which seeks to move away from the spatial patterns established under apartheid provide social redress and actively respond to current development challenges Therefore the the appeal argued it was imperative that the the Tribunal apply its mind to both the the needs of the the community as well as those of developers when deciding applications and to to have regard to to municipal policies as as well as as the intentions of the CTSDF The CMRM argued that despite bringing to to the the the attention of the the the Tribunal their historical challenges based on forced removals and the SPLUMA 5 5 5 5 1 Bilateral discussions with the developer principles aimed at at redress redress the the Tribunal chose not to to apply its mind to the the principle principle of spatial redress redress The CMRM argued that the the the Tribunal cannot legitimately use the the the City’s failure to provide guidance on on on the the the imple- mentation of SPLUMA as a a a a a a a justification for not applying its mind to whether the the the the development meets the the the the require- ments of of the the the the the the principle of of spatial redress contained in in in in the the the Act If this were permissible the the the City by its own failure failure to to to regulate or failure failure to to to develop implementing policy would be able to to to to avoid complying with national legislation legislation In effect the Tribunal had failed to to to comply comply with a a a a a a a a a mandatory requirement of legislation legislation governing its decision making However the the appeal appeal like the the objection was dismissed in in November 2018 The appeal appeal decision reiterated the the the the reason for dismissing the the the the objection given by the the the the Tribunal that “notwithstanding the the the the the principles contained in in in in in in in SPLUMA the the the MPT is not not in in in in in in in a a a a a a a a a a a position to delay deci- sion-making in in in in the the absence of of an an an an appropriate Council policy framework and and an an an an an agreed upon set of of of criteria and and mechanisms to guide the implementation of of inclusion- ary housing in in private developments ”
No criteria for the implementation of inclusionary hous- ing in in in in private developments have yet been determined by the the Council at at at the the time of this publication The process of challenging the the the the development development on on spatial justice grounds was accompanied by discussions with with the the the the developer developer as as as to to to whether it it it could voluntarily implement implement plans to to to ensure that the the the the development development complied with with principles of of of of spatial justice The developer developer was willing to to to to to to pay an an an an amount of of of of R6 million in in in in in in in in lieu of of of of implementing inclusionary housing in in in in in in in in the the the the the development itself and to to to to to rework the the the the the plan to to to to to allow for smaller units units so so so enabling some of of of of the the the the the units units to to to to to be be sold at at lower prices However given that there is fis is is no no no fiscal mechanism in in in in in in the the the the the the local authority to to to to to to make such payment to to to to to it it it this offer offer could not not not be be implemented The offer offer was was also contingent on on on the the the the CMRM not not not objecting to to to to to a a a a a a a a a a a a a a a a a a a a a a reworked plan and application for approval of of of the the development which it it was was not not not able to to to agree to to to in in in advance 52
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS