Loading...
Loading...
Loading...
Loading...
Loading...
Loading...
Loading...
Loading...
Loading...
(SPLUMA, NEMA, MINERAL, OTHER)
All existing development approvals and/or consents need to be reviewed in the context of the outcome of the Land Audit undertaken thus far.
This includes problems, omissions, impediments that so often render the development approvals and/or consents flawed
The conditions of approval cannot be effected as these conditions do not accord with the underlying property(s) title deed conditions.
The conditions of approval do not adequately address the constraints other than title deed conditions of the underlying property(s).
The are conflicting conditions of approval arising from the SPLUMA consent.
The Approval/Consent issued do not accurately reflect/record the legal parameter(s) of the properties contained and/or affected by the POF.
The Conditions of Approval/Consents do not correctly record the title deed conditions that must be registered with the Certificate of Consolidated Title defining the POF.
Municipal Departments are not willing to sign off on existing/historical Planning Conditions due to issues such as encroachments into environmentally sensitive areas etc. (Ie: the actual position on the ground and the position provided for in historical planning conditions differ materially and can no longer be achieved).
Inclusive but not limited to environmental, encroachments and competing land rights
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.
Step 4 (Review of Development Approvals/Consents) will generally have identified issues, problems, omissions, impediments and conflicts with and between the different approvals/consents such as SPLUMA, NEMA etc. and conflicts between applicable Municipal Departments such as Environment, Town Planning and Building Control.
These may give rise to the specific approval/consent to be amended.
The above is not a ‘quick fix’ and may take many months to effect. It must also be supported by the relevant professionals such as the Professional Land Surveyor, Professional Planner and Conveyancer.
Any amendment that will give rise to a registration in a Deeds Office will require careful scrutiny by a conveyancer to ensure that such condition is indeed registrable.
The Project Outside Figure (“POF”) defines what properties, as registered in a Deeds Office, are affected by the Project and must be assembled.
There may be a number of outside figures where the entire project is phased
The POF is shown on the Project Layout Plan as prepared by the Project Town Planner and/or Professional Land Surveyor.
This should also be represented on a Plan prepared by a Professional Land Surveyor which includes all properties registered in Deeds Office.
Land Assembly entails the consolidation and subdivision of properties registered in a Deeds Office and which will result in a ‘newly’ consolidated property being created that defines the POF.
The process of Land Assembly must be concluded prior to the POF and Project Layout being transformed into a Township.
The Township may comprise a number of phases.
Obtain copies of title deeds and surveyor general diagrams for the POF properties from the relevant Deeds Office and Surveyor General Office.
There are eight sub-steps in the Land and Development Rights Audit phase:
Determination of the legal status of the Underlying Land in relation to Project Outside figure
Identification of the land and legal constraints including problematic / restrictive title deed conditions and procedural steps to effect land assembly
Identification of other constraints inclusive but not limited to environmental, encroachments and competing land rights
Review of Development Approval/Consents (SPLUMA, NEMA and Mineral)
Identification of Amendments to Development Approval/Consent arising from all of the above
Determination of procedures to achieve Development Approval/Consents amendments
Determine what rights, if any, must be expropriated and prepare Generic Expropriation Memorandum
Prepare a Business Plan in support of a funding application
The objective of this phase is to conduct a Land Audit to identify any land and legal constraints, including problematic and restrictive title deed conditions, and the procedural steps that need to be undertaken to effect the land assembly.
Having obtained copies of all title deeds and surveyor general diagrams of the POF properties, these must be carefully analysed by the Project Conveyancer and Professional Land Surveyor to determine the legal status of each property.
The outcome of the Land Audit will inform the pre-conveyancing and land survey tasks that must be undertaken prior to effecting the Land Assembly.
Who is the registered owner?
Are there restrictive title deed conditions?
Are there servitudes (registered and un-registered)? If so how must these be dealt with?
Are there notarial leases over the property and if so what is the lease period? How should these be dealt with?
Are there surveyor general diagrams defining, as yet, un-registered sub-division(s) of the property? How should these be dealt with? Withdraw the Diagram(s)?
Are there mining rights registered over the property? How should these be dealt with? Are there any endorsements including reference to an expropriation and what impact do these endorsements have on the Land Assembly? How should these be dealt with?
Establish the status of Rates and Service Charges. Establish the outstanding amount owed, if relevant, for the previous two years! As per case law only the last two years of debt may be demanded by the municipality in order to issue a Rates Clearance Certificate.
Are there bond(s) registered on the property? How must these be dealt with?
Identification of any other restrictive conditions of title that may hinder or prevent land assembly.
Having specific regard to the POF, the Project Layout Plan, the surrounding properties to the POF and other Project related matters, the Land Audit Report must set out what impact each element of the Land Audit may have on the Land Assembly process.
Identification of a set of steps that may be effected either in parallel or in serial succession.
Set out the legislative processes to be followed to effect the Land Assembly.
Determine what the ‘common ownership’ legal entity should be for the ‘Consolidated POF’.
Determine the statutory and legislative steps that must be effected for the legal entity to be formed or for an existing legal entity to assume ‘common ownership’ for the ‘Consolidated POF’.
Set out any other legal constraints that may have an impact on the Land Assembly.
From the Land Audit report determine a programme of tasks that must be commenced with immediately.
The Programme must be in the form of a ‘Project Plan’ showing dependencies as they relate to the progression of the tasks.
If any critical task is delayed the entire procedure towards Land Assembly is delayed and/or may have a fatal impact on the Project
Early intervention must be initiated. History has shown that generally, a task that cannot be effected may take up to two years or longer to resolve
The problems/blockages generally encountered are often beyond the authority of the parties involved in the Project and require extra ordinary intervention, often via other Organs of the State
It is critical to monitor this process to ensure the timelines are met and critical milestones are not missed.
Again the need for early intervention must always be a priority!
Given that in most instances the approvals/consents were issued some time ago, the relevant authority must be consulted in order to agree the procedures and documents to be submitted to effect an amended approval/consent. However, there are several "Show Stoppers" that may create delays in this process.
An amendment that will first require the intervention of a court.
Land rights, generally informal, that have not been addressed and acquired if such rights cannot be accommodated in the proposed development.
Servitudes that must be cancelled where the owner of the servitude is not traceable or refuses such cancellation.
Leases that have not been cancelled.
Any other right or condition of title that cannot be removed in terms of an administrative procedure e.g. Cancellation of a Deed Grant.
The amendments are of such material extent that the public process must be ‘re-done’.
‘Licenses’ for certain activities, generally in reference to Bulk Infrastructure requirements, must be commenced from ‘scratch’.
Encroachments (especially into environmentally sensitive areas or service corridors or roads).
Consideration must be given to concluding an Implementation Protocol in terms of Section 35 of the Intergovernmental Relations Framework Act, Act 13 of 2005.
The conclusion of certain Service Level Agreements between the relevant organs of state and between internal Municipal Departments.
Seek ‘political’ interventions.
The outcome of the Land and Development Rights Audit must be converted into a financial business plan that:
Is an extension of the original Project Budget
Provides for funding requirements to action all legal and administrative tasks identified by the Development Rights Audit and which cannot be funded from the original Project Budget
Provides a detailed timeline project plan, inclusive of critical milestones, for all tasks that must be undertaken to ultimately achieve the transfer of ownership to individual beneficiaries
NB! To include all interventions, for example:
Expropriation Compensation
Compensation for informal land rights
Court Orders
Land Assembly – Land Surveying and Conveyancing costs
Costs associated with and to comply with amended Development Consents and Conditions of Establishment, etc.
The Provincial Department of Human Settlements
The National Department of Agriculture, Land Reform and Rural Development, if necessary
Any other organ of state that will be required to assist/intervene in order to address the actions identified by the Land and Development Rights Audit
The Municipality.
Where land and any other rights in land cannot be acquired/accommodated by negotiations then such rights may be expropriated.
The time scale to obtain the necessary authority to expropriate right(s) generally is in excess of six months.
Lack of support from the Municipal Council and/or Expropriating Authority.
The compensation payable, if not budgeted for by the developing authority, generally the Municipality.
Lack of alternative accommodation where the form of compensation is alternative housing/accommodation.
Unresolved land claims.
