In Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council and Others; Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v City of Cape Town and Others [2014] ZACC 9, the Constitutional Court considered the constitutionality of section 44 of the Land Use Planning Ordinance 15 of 1985 (LUPO). The provision authorised the Western Cape provincial government to deal with appeals arising from decisions made by municipalities in relation to planning matters. Under section 44, the provincial government was able to substitute such decisions with its own ruling.

Here, the provincial government had relied on section 44 to reject planning decisions made by the City of Cape Town with regard to a residential development intended for the slopes above Gordon’s Bay and the redevelopment of an historical building in the city centre. The High Court declared section 44 to be unconstitutional and invalid. This was referred to the Constitutional Court for confirmation.

The Constitutional Court held that section 44 was indeed unconstitutional. A municipality, not the provincial government, is responsible for LUPO planning decisions. This was in accordance with the division of powers set out in the Constitution.

Furthermore, the Constitutional Court held that there were no circumstances where the provincial government enjoyed appellate power over municipal planning decisions. To that effect, there were separate statutory mechanisms in terms of which the provincial government could exercise overlapping planning powers and prevent developments that compromised its interests.

The order made by the Constitutional Court was made with immediate, but not retrospective, effect. However, appeals that had already been lodged in terms of section 44 of LUPO but not yet finalised were made exempt from the order.