Planning decisions
- January 21, 2018
- Posted by: clarklaing
- Categories: Administrative Law, Local Government
In Highlands Organic (Pty) Ltd v MEC for Cooperative Governance and Others (Case No. 3377/2016, Gauteng Division, functioning as Mpumalanga Division, Mbombela), the High Court dealt with an appeal brought against a decision made in respect of an application for rezoning.
On 4 May 2015, Exxaro Coal (Pty) Ltd applied for the rezoning of two of its properties in the Belfast district from agricultural use to mining use. The Nkangala Land Use Committee of the Nkangala District Municipality approved the application on 27 July 2016. An unhappy party, Highland Organics (Pty) Ltd appealed against the decision on 17 August 2016. This was done in terms of sub-section 51(1) of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA).
Subsequently, Highland Organics was directed to lodge its appeal with the Mpumalanga Township Board, as contemplated under sub-section 139(1) of the Town Planning and Townships Ordinance 15 of 1998. It disagreed with this and brought an application to the High Court, arguing that the appeal provisions of the Ordinance had been repealed or must be deemed to have been repealed under sub-section 2(2) of SPLUMA, read with the regulations made in terms of thereof, together with the by-laws adopted by the Municipality on 23 November 2015.
The High Court held that any appeal that was pending on the date upon which the by-laws took effect, i.e. 23 November 2015, had to be dealt with in terms of the Ordinance. Any appeal lodged after such date had to be dealt with under the relevant provisions of SPLUMA, which meant lodging the appeal with the municipal manager for the municipality in question.
Importantly, the High Court declined to declare the appeal provisions as unconstitutional but held that they must be deemed to have been repealed by reason of their inconsistency with corresponding provisions in SPLUMA.
The High Court ordered Highlands Organic to proceed with its appeal in terms of SPLUMA and directed the municipal manager to make the necessary arrangements to hear the appeal.
