Page 53 - Litigating Land and Housing in South Africa: Lessons and Reflections

5 6 Outcome of the decision While the the the the the client failed before the the the the the Tribunal Tribunal and in in the the the the the appeal this case paved the the the the the way for for several subsequent developments around spatial planning Ndifuna Ukwazi has taken a a a a a a a a a a a a a a a a a a a a a a a a a a a a a development development development approval approval decision of the the the the the Tribunal Tribunal and Appeal Authority on on on review The The case relates to to development development development development approvals granted to to FWJK Developments for for for a a a a a a a a a a a a a a a a a a a a a a a a a a high-rise mixed-use development development planned for for for for Buitengracht Street Cape Town 10 The The The application for for for for departure from applicable building height restrictions is is is is one of of of the the the approvals challenged The The review asks for for for for a a a a a a a a a a a a a a a a a a a a a a declaratory order that the the the Tribunal is is is empowered to to to to impose conditions requiring the the the provision of of of affordable housing housing as as a a a a a a a a a a a a a a a a a a a a a a a a a a a means of of of promoting and and and and fostering equitable access access to to to land land access access to to to adequate housing housing and and and and spatial justice when it it it it approves land land use developments The matter was still pending at at at at the the time of writing but a a a a a a a a a a a a a a a a a a settlement is potentially on the the cards In another development on 21 February 2019 the the City of Johannesburg Metropolitan Municipality approved the new Inclusionary Housing Policy: Incentives Regulations and Mechanisms The Policy Policy defines inclu- sionary housing housing as “a housing housing programme that through conditions attached to to land use rights approvals re- quires private developers to to to dedicate a a a a a a a a a a a certain percent- age of new housing developments to to to low low income income and low low middle income income households households or or to to to households households that may not otherwise afford to to live in in those developments ”
This Policy makes inclusionary housing mandatory for any development development within the jurisdiction of COJ which proposed development development includes 20 dwelling units or or or more There are four different options for the implementation of of of inclusionary housing however in in in in in each option a a a a a a a minimum of of of 30% of of of the the total units in in in in in in the the the development must must be be set aside for inclusionary housing which units must must be be located on on the the the the the same same site as the the the the remainder of the the the the development or within the the the the same same township Inclusionary housing housing includes both rentals as as well as as the implementation of of inclusionary housing housing though ownership of of such units Finally it it remains within the the the powers of the the the National Minister to promulgate norms and and standards for the the the implementation of SPLUMA country-wide There is is an opportunity for the Minister to to require inclusionary housing policies to to be implemented by municipalities – through the the enactment of of of a a a a a a a a a a regime of of of national norms and and standards The administration thereof will be carried out by local government Much of of of the the detail of of of such standards will have to be developed at municipal level in in in any event given the wide variety of consider- ations that apply when developing and and implementing an an an inclusionary housing policy Advocacy and and possible litigation to to ensure that the the Minister carries out this function – should the the the the the City of of Cape Town fail to to address the the the the the the issue as a a a a a a a a a a result of of the the the the the the current litigation and other other pressures – is is is potentially another chapter for the the the the the work of civil society in this matter The development of of norms and and and standards for inclusion- ary ary housing and and and and the implementation of of both voluntary and and statutory regimes in in this regard is is a a a a a a a a a a a a complex matter dependent to to an an an an extent on local circumstances These complexities have been extensively canvassed in in in in the the the writings of the the the Lincoln Institute which has set out to to guide civil society in in in in in in in regard to to the the the the the implementation of inclusionary housing in in in in in the the the USA Although there are significant differences in in in in our legal systems much can can be learnt about this important regulatory tool from other jurisdictions 10 The Ndifuna Ukhwazi Trust v the the City of Cape Cape Town and others – Western Cape Cape High Court case no 15767/19
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
53