South Africa: Getting Zoned Out Of Business: Implications Of The SCA's Decision In The Cases Of Maccsand And Louw

Last Updated: 1 December 2011
Article by Stephen Levetan and Olivia Rumble

Traditionally, land use planning law has received relatively less attention in relation to the suite of environmental and development related authorisations required for development activities. Notably, in the sphere of mining, land use planning has been all but ignored as an essential authorisation required prior to the spade first hitting the soil. But two recent decisions by the SCA in the matters of Maccsand and Louw, have altered this view by re-emphasising the need for appropriate land use authorisations as a vital and independent authorisation required prior to mining or other development taking place.

These rulings are not the first to have paid heed to the important role that land use planning authorisations play in municipal planning generally, and more specifically their role in environmental protection. In a matter brought by the Hangklip Environmental Action Group against the MEC for Agriculture, Environmental Affairs and Development Planning (2007 (6) SA 65 (C), it was held that the Land Use Planning Ordinance of the Western Cape (LUPO) was legislation which was intimately concerned with the protection of the environment, as it is defined in the National Environmental Management Act 107 of 1998 (NEMA). It is a finding which supports the fact that sustainable land use planning by Municipalities not only must take into account social and economic considerations, but also must consider and take into account environmental considerations. This would apply equally in regard to all the provincial planning laws in force across South Africa's nine provinces.

The importance of this Municipal function was again re-emphasised in the recent matter of Maccsand and Another v City of Cape Town and Others which was handed down by the SCA on 23 September 2011. At issue in this matter was whether the granting of a mining right or permit by the Department of Mineral Resources (DMR) entitled the holder to mine without the required authorisation in terms of LUPO. The matter had been preceded by a bitter dispute between the Municipality and the DMR as to whether the Mineral and Petroleum Resources Development Act (MPRDA) trumped the need to obtain the requisite land use authorisation from the Municipality.

The dispute had its genesis when the DMR granted Maccsand Pty Ltd, a mining right and mining permit to mine sand on two dunes in a residential area in Mitchells Plain in the Western Cape. Three of the erven to be mined were zoned as rural and three were zoned as public open space in terms of LUPO. While Maccsand asserted that it was entitled to mine without further authority, the City of Cape Town asserted that Maccsand could not mine without obtaining a consent use for the first dune, and a departure from the restrictions imposed by the zoning scheme in respect of the second dune.

When Maccsand failed to do so, the City launched an interdict application to prohibit their mining activities until this authorisation had been obtained. This interdict was successful, but was then appealed to the SCA.

On appeal it was argued by Maccsand and the DMR that the MPRDA vests the power to determine mining related land use rights in the national executive and thus LUPO did not apply to mining. The SCA disagreed. It was held that it was appropriate for Municipalities to play a central role in land use planning given their knowledge of local conditions and intimate link with the local electorate whose interests they represent. It was important that they do so, as this was in line with their Constitutional role of "municipal planning" in terms of which they have executive authority and powers of administration. It was further held that, the MPRDA, could not provide a surrogate municipal planning function that displaces LUPO, since its concern is mining and not municipal planning. As a result it was held that LUPO operates alongside the MPRDA, and does not duplicate its objects. Maccsand was thus obliged to acquire the necessary land use authorisation prior to undertaking its mining activities. The SCA was also addressed on the issue of the relationship between NEMA and the MPRDA. The SCA, however, held that this question had since been rendered academic and thus it made no findings regarding this complex and interesting issue.

The matter of Louw v Swartland Municipality was argued jointly with the Maccsand matter, and their judgments were handed down simultaneously. As these matters concerned the same legal question, the judgment in this matter incorporates the same findings and reasons arrived at in the Maccsand matter in respect of land use planning. By way of a brief background, this matter concerned the Hugo Louw Trust which had owned property in the vicinity of Malmesbury in the Western Cape. Elsana, a company related to the trust, had been granted a mining right to mine granite on this property in 2009 by the DMR. The property was, zoned as "agricultural 1", meaning that it could only be used for the cultivation of crops or plants, the breeding of animals or that it should be left as natural veld.

In 2008 an application had been made to the Municipality to rezone the property to "industrial III" which is a zoning that includes mine use. The DMR, then advised Elsana that the granting of mining rights and control over mining activities was its exclusive preserve and as a result Elsana withdrew the rezoning application. When Elsana began its mining operations, however, the Municipality then objected, stating that it was an unauthorised land use and ordering it to cease operations and to apply for rezoning. When Elsana resisted this demand, the Municipality applied to the High Court for an urgent interdict. The interdict was successful, but was then appealed to the SCA. For the same reasons delivered in the Maccsand judgment, this appeal too was unsuccessful.

Although the DMR has stated that it intends to appeal these decisions to the Constitutional Court, it is clear from the reasoning in both these matters that land use authorisations are being afforded increased recognition and weight by the courts. It is also clear that, unless decided otherwise by the Constitutional Court, that any use of land which is contrary to its zoning will require a re-zoning or land-use departure, regardless of whether a mining right or other such statutory rights have been obtained. These decisions are thus of relevance not only to mining activities, but have a wide application to all development activities, for example, industrial or housing developments, regardless of where they are situated. Most environmental authorisations for such developments under NEMA will include a condition to the effect that the authorisation is subject to compliance with any other law. Obtaining the correct land use planning authorisation under the applicable Municipal zoning scheme and Provincial planning laws would be such other law. Careful attention should thus be paid to this aspect so as to ensure that the activity undertaken is in accordance with the land's authorised land-use to avoid the activity being halted by the relevant Municipality/Local Authority with the obvious negative commercial consequences for the activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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