DEVELOPMENT APPLICATIONS LODGED WITH THE TRIBUNAL UNDER THE DEVELOPMENT FACILITATION ACT: ARE THEY “PENDING APPLICATIONS” FOR SPLUMA?
Dykema v Malebane and Another (CCT332/18)  ZACC 33; 2019 (11) BCLR 1299 (CC) (10 September 2019)
The Constitutional Court’s 2010 decision in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal was generally welcomed. It declared invalid chapters V and VI of the Development Facilitation Act (“the DFA”), thereby doing away with the parallel planning approval system that those chapters had facilitated and also clearly delineated the boundaries of “municipal planning” and “urban planning and development” as listed in Schedules 4 and 5 of the Constitution.
The declaration of invalidation was not retrospective and a period of 24 months was determined by the Constitutional Court for the legislature to do the necessary to recreate the forum and functions performed by the Tribunal, within the municipal land development approval system. Until the expiry date (17 June 2012) and with limited exceptions, the Provincial Development Tribunals established under the DFA would continue to accept new applications and decide pending applications. This was indeed done, by virtue of the passing of the Spatial Planning and Land Use Management Act (“SPLUMA”) on 1 July 2015, much later than the anticipated 24 months which expired on 17 June 2012.
The slow enactment of SPLUMA thus had the effect to create uncertainty with regards to applications lodged with the Tribunal in the period before the expiry date up until the coming into operation of SPLUMA. This was indeed the issue before the Constitutional Court (in Dykema v Malebane) towards the end of last year, where that Court had to pronounce on the effect of the invalidation of chapters V and VI of the DFA in such circumstances.
The background to the judgment relates to the application lodged by Mr Dykema with the Limpopo Development Tribunal (Tribunal) in February 2012, requesting planning permission under Chapter V of the DFA to set up a fuel station on his property. Although substantial progress was made in processing the application before the expiry date of 17 June 2012, the Tribunal only issued its decision approving the application on 1 November 2012. The local authority was unwilling to give effect to this decision and instead advised Mr Dykema to bring an application under alternative planning legislation. During this time, one Mr Malebane, decided to undertake a similar development on his property which was situated near Mr Dykema’s property. Mr Malebane lodged an application for permission to undertake this development in terms of Transvaal’s Town-Planning and Townships Ordinance 15 of 1986.
This prompted Mr Dykema, in November 2015, to approach the High Court for an order to compel the Municipality to give effect to the decision by the Tribunal made in November 2012. The High Court declined to grant this relief holding that the Tribunal’s decision was invalid because it had no decision-making power after the expiry date of 17 June 2012. The High Court did, however, grant a declaratory order to the effect that Mr Dykema has a pending application which must be dealt with in terms of section 60(2)(a) of the newly adopted SPLUMA.
Mr Malebane appealed to the Supreme Court of Appeal (“the SCA”) against the declaratory order. Here, amongst other things, it was held that Mr Dykema no longer had a valid application since, after the expiry date, there was no decision-maker: In other words, in the absence of a Tribunal to adjudicate on the application, there cannot be an application as referred to in the DFA.
Appealing to the Constitutional Court, Mr Dykema argued that the SCA erred in finding that applications submitted, but not finalised, before the expiry date were invalidated on the expiry date. The Constitutional Court held that its 2010 judgment, in declaring its order to work non-retrospectively and in affording the legislature 24 months in which to effect the amendment, evidenced an intention to preserve existing rights of developers and to create certainty with regard to applicable development application processes. In light hereof it must be assumed that development applications submitted, but not finalised, before the expiry date remained valid as pending applications when the suspension period ended on 17 June 2012. The Court further held that these applications are capable of being treated as “pending” for purposes of section 60(2)(a) of SPLUMA because it is not a logical necessity to tie the fate of an application to the continued competence of the same decision-maker.
The clarity afforded by this judgment is appropriate and resolves concerns that many developers may have had in this regard.