When a property is initially purchased, one cannot always predict the host of possible intentions for which the property is to be used. Even when purchasing a residential property, very often in this entrepreneurially supportive country, property owners may decide to start and operate a business from their premises. Various considerations are to be made, not limited to whether the activities envisioned are within the parameters allowed by the applicable zoning by-laws and legislation. If not, property owners would find the below discussion helpful in applying for the rezoning of their property.
Spatial Planning and Land Use Management Act 2013
The framework for land use and management thereof is regulated by the Spatial Planning and Land Use Management Act 2013 (hereinafter referred to as “SPLUMA”) and as such, sets out the different uses for land. As per Schedule 2 attached to the SPLUMA, land can be used for various purposes, including but not limited to:
- Business purposes;
- Industrial purposes; and
- Residential purposes.
SPLUMA, however, under Section 23 thereof delegates the authority to ‘provide general policy and other guidance’ relating to land use, to the executive authorities of the various municipalities so concerned. As such, each municipality has developed its own set of provisions and by-laws for the zoning, rezoning and objection to rezoning processes.
Western Cape Land Use Planning Act 3 of 2014
For example, the Western Cape Land Use Planning Act (hereinafter referred to as “LUPA”) has been enacted by the Provincial Parliament of the Western Cape and consolidates the legislation of the Province relating to, among other processes, land use. This piece of legislation stipulates that Municipalities are to process and consider any land use applications when dealing with town planning.
Considering Applications for Rezoning
At this point, we have set out the enacting legislative provisions insofar as is broadly possible. From here the discussion of rezoning applications would differ from municipality to municipality.
Most Municipalities have such by-laws in place and often publish them as part of their online resources. This would usually include the applicable by-law, an explanatory document where considered necessary and also prescribed forms that would allow the public to make use of such by-laws.
An application for rezoning would be utilised where the landowner would want his property to legally be recognised for a different purpose to that which it is currently recognised for. For example, land is recognised by law for one of the abovementioned purposes. Where an owner would like to conduct a small business on land legally recognised for residential purposes, he would then have to apply to have the land rezoned from being recognised for residential purposes to that of business purposes.
Such application usually carries the requirement of the need to place a notice of intention of application in the Government Gazette calling on parties whose rights will be affected to submit objections, if any exist, to the town planning committee of the municipality considering the application. Such notice must also be distributed to all interested parties, including neighbours or potentially affected parties to ensure transparency.
Where such objections are submitted, it must be within the period prescribed or allowed for by the municipality’s by-law and show with good cause why such application should be rejected. These submissions, along with the comments in replication by the applicant are then considered by the committee who will either make their considered decision known in terms of an allowed period or a reasonable one considering the complexities of the application and objections.
In conclusion, the actual rezoning application process would vary from municipality to municipality, so it is strongly advised to consult with an attorney or otherwise reputable professional familiar with such processes and with experience in the area of jurisdiction. This could assist significantly in ensuring a speedy rezoning application process or a constructive objection being lodged.