By Peter Newmarch

The KwaZulu-Natal Planning and Development Act No. 6 of 2008 came in to force on 1 May 2010. This Act is commonly referred to as simply the “PDA”. Recent amendments have been published for comment which have a direct impact on sectional title.

In drawing up this Act, legislators provided for due public process, transparency and fairness as well as offences for transgression of this Act: no longer a mere slap-on-the-wrist fine, they now constitute criminal offences punishable by up to 5 years in jail.

Zoning issues

Everybody hears stories of zoning problems – people operating a small business from a residential area, or building without approved building plans. To compound the problem, there is a perception that little or nothing can be done to stop the problem – people simply ignore warnings or pay the fine and continue as normal. This is no longer the case: people will now face the prospect of a criminal conviction and a heavy jail sentence or hefty fine for non-compliance with the Act.

The current Act (from 1 May 2010) only had implications for property owners if they undertook unapproved building activities or conducted an activity contrary to what the town planning scheme allowed for that property.

With the publication of the proposed amendments to the Act, the right to establish a sectional title scheme has now been added and thus a developer or owner would need to apply for permission to establish a sectional title scheme over a piece of land in the future, if the amendments are passed. Not only this, but once a sectional title scheme has been established and is operating, any extension or alteration to the scheme or the granting of any exclusive use areas would need the consent of the municipality. This consent is not the same as the building application process, it is completely different and a separate application under the PDA would need to be made, unless of course you fancy the prospect of a 5-year jail sentence.

Shareblock

It is interesting to note, that people living in a shareblock do not need to comply with the PDA, other than the normal approved building plan process. Of course, violations of the town planning scheme would still attract the penalties as specified in the PDA.

Its hard to comprehend why an owner of a house on a freehold property, or for that matter somebody in a shareblock, should not need to apply for some building additions under the PDA, but under the proposed amendments an owner in a sectional title scheme does have to apply for the right, irrespective of whether the building plans have been approved or not.

What does this mean?

•    Comply or face the prospect of a criminal record and a heavy fine or 5 years in jail.
•    Budget extra for any building additions you may be doing and face the prospect of a lengthy wait (even when your have approved building plans).
•    Trustees should be extra vigilant of their actions.
•    If owners or trustees have concerns, they should consult with an attorney or a land surveyor about what is needed.

Selling units

Situations could arise where a person wants to sell their unit after making some additions but has not complied with the proposed amendments (i.e., their sectional plan was never updated) – entering in to even a sale agreement without PDA approval for the additions would constitute a criminal offence in terms of this Act (even though you have approved building plans).

The proposed amendments are most certainly to be challenged before the legislature as they raise a fundamental issue of why ownership is (by virtue of a sectional title scheme) a planning issue and somehow needs control when other forms of ownership do not need such permission. Surely if a town planning scheme allows multiple-dwelling status, then planning should have no further control on how each dwelling is owned.

I assume, like me, many of you feel this is going overboard and there must be a simpler way of enforcing planning and development compliance in our municipalities. Please remember that some aspects of the PDA I have mentioned are already in force, others specific to sectional title are proposed and subject to comment which closes 6 August 2010 – all of which only applies to people living in KwaZulu-Natal.