SPLUMA is “The Spatial Planning and Land Use Management Act 16 of 2013” (“SPLUMA”) and came into operation on 1 July 2015. SPLUMA is a national framework act that requires provincial legislation to enable municipalities to enact spatial planning and land use management by-laws.
The municipal SPLUMA by-laws prescribe how land use applications and appeals are dealt with. These by-laws have many requirements and procedures regarding spatial planning and land development. One such requirement is contained in Section 53 of SPLUMA and prohibits any act of registration without the approval of the municipality. This means that no registration will take place in the Deeds office unless this approval has been obtained.
From 1st of June 2017 the Registrar of Deeds Mpumalanga no longer permits transfer of property without a certificate issued by the relevant municipality indicating that the SPLUMA requirements have been complied with.
Having regard for requests that we have recently been receiving from the King Williams Town Deeds Office, it is clear that it intends to follow suit.
Significantly SPLUMA also establishes a new administrative procedure for the removal of restrictive conditions by means of s47 of that Act, by placing the necessary authority in the hands of the Municipal Planning Tribunal (“MPT”) or designated municipal official.
In the result SPLUMA requires each Municipality to establish the MPT to determine land use and development applications within its jurisdiction such as:
Application for rezoning,Township establishment,Subdivision of land,Consolidation of different pieces of landRemoval, amendment or suspension of restrictive conditions.
These applications must be brought in accordance with the processes set out in the relevant municipal By-laws.
As it currently stands, Nelson Mandela Bay Metropolitan Municipality (“NMBM”) published a draft SPLUMA by-law for public participation/comment in September 2017. As per the Notice published by the NMBM, the MPT was established on 30 May 2018 and was scheduled to commence its operations on 25 June 2018. The MPT will endeavour to resolve the current backlog of land use and development applications referred to above.
A question which came up for consideration as a result of the advent of SPLUMA was whether or not the High Court retained its jurisdiction in relation to the removal of restrictive conditions as they occur in title deeds.
This grey area was dealt with in Ex Parte Whitfield and related matters [2017] 2 All SA 841 (ECP) which concerned seven similar applications, in terms of which the applicants sought the removal of restrictive conditions of title incorporated in the title deeds of their respective properties. Each of the matters was then referred to a Full Court of the Eastern Cape Division of the High Court for the issue of jurisdiction to be determined.
The issue to be determined was whether or not the consent of a Municipal Planning Tribunal had to be obtained before a court would authorise such removal. The court held that s 47(1) did not require the consent of a municipal planning tribunal in all circumstances. Therefore, a court’s power to grant an order authorising the removal or amendment of a restrictive condition of title on proof that all interested parties have consented thereto is not affected by the provisions of SPLUMA. In each instance it would be necessary to establish that all interested parties have indeed consented thereto which ordinarily occurs through court directed publication of the intended removal or amendment.
It is therefore clear that in the absence of the Municipal Planning Tribunal, the court does still have jurisdiction over the aforementioned applications.
It is of vital importance for each property owner to be SPLUMA compliant as the enactment of SPLUMA by-laws in the NMBM is inevitable. The owner must ensure that:
Approved building plans for all buildings are in place;the use of the property is in accordance with the municipal zoning;no encroachments over the building lines and property boundaries have occurred.
