1.3 Other Constraints
Inclusive but not limited to environmental, encroachments and competing land rights
Last updated
Inclusive but not limited to environmental, encroachments and competing land rights
Last updated
Given that the Land Assembly process envisages the possible sub-division and consolidation of land and the possible regularisation of the zoning of the properties within the POF, a SPLUMA application will be necessary.
The SPLUMA application will, inter alia, require that the applicant deal with the above aspects if relevant. Accordingly, the Land Audit must be expanded to determine whether such aspects are present and to what extent they will impact on a SPLUMA application and possibly the Land Assembly.
The programme to address these must be included in the overall Project Plan and must include the tasks and timelines and critical milestones associated therewith.
Restrictive conditions of title identified during the land audit for removal, need to be included in the SPLUMA application and or amendment thereof.
Many housing projects involve the upgrading of an ‘informal settlement’ situated on the properties within the POF. It is very probable that such occupants and/or parties enjoy rights under the following Acts of parliament:
Interim Protection of informal Land Rights Act, Act 31 of 1996.
Labour Reform (Labour Tenants) Act, Act 3 of 1996.
Extension of Security of Tenure Act, Act 62 of 1997.
Restitution of Land Rights Act, Act 22 of 1994.
Legislation and Case Law in the context of
If such rights are not addressed as early as possible in the Project cycle, there is a real risk that the eventual transfer of ownership to the beneficiary of a Project will be materially delayed.
Most informal rights are generally accommodated in the Project whereby their ‘informal right’ is essentially ‘exchanged’ within the Project for a formal freehold ownership right registered in a Deeds Registry.
Informal Settlements by implication will result in informal rights holders to ‘make way’ for infrastructure (roads, storm water, sewer etc.), public open space, education facilities, health facilities, environmentally sensitive regions, flood line regions etc. This may result in having to find alternative accommodation elsewhere or compensation paid in monetary terms and may include court applications for eviction.
Competing Land Rights such as Land Claims in terms of Act 22 of 1994, if determined, may also result in restitution in monetary terms.
This normally implies that an owner has encroached onto the neighbour’s property. In the case of the properties within the POF, such encroachments are un-common. These are generally encroachments by an adjoining informal settlement, agricultural or commercial activities. Other encroachments occur where an informal settlement has encroached into a road reserve, bulk infrastructure servitudes, environmentally sensitive areas, areas with 50% flood line etc.
Encroachments that cannot be accommodated into the planning of the Project must be relocated. This may require court application to enforce a relocation.
Given that encroachments, such as commercial activities, have in most instances been in existence for a long period, the procurement of suitable alternative land will be major initiative in its own right.
It is obvious therefore that the existence of encroachments must be determined and a solution(s) initiated very early on in the Project Cycle given the timelines involved therewith. It is imperative that Municipal Building Regulation Departments should be consulted to ensure that any further building encroachments are avoided.
The budgeted implications in this regard may also be extensive and may render the Project un-feasible until such additional funding has been procured.
