All existing development approvals and/or consents need to be reviewed in the context of the outcome of the Land Audit undertaken thus far.

What then are the most common issues which then prohibit the opening of a Township Register?

• 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.

What is this Business Plan?

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

To whom is this Business Plan directed at?

• 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

Under who’s authority is the Business Plan submitted?

The Municipality.

Step 4 () 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.

There are eight sub-steps in the Land and Development Rights Audit phase:

1. Determination of the legal status of the Underlying Land in relation to Project Outside figure

2. Identification of the land and legal constraints including problematic / restrictive title deed conditions and procedural steps to effect land assembly

3. Identification of other constraints inclusive but not limited to environmental, encroachments and competing land rights

4. Review of Development Approval/Consents (SPLUMA, NEMA and Mineral)

5. Identification of Amendments to Development Approval/Consent arising from all of the above

6. Determination of procedures to achieve Development Approval/Consents amendments

7. Determine what rights, if any, must be expropriated and prepare Generic Expropriation Memorandum

8. 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.

What is a Land Audit?

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.

What must the Land Audit define for each POF property?

• 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?

What must the Land Audit Report Address?

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’.

What is the next step towards 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.

Why is this so important?

• 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

Give effect to the Programme of Tasks

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.

What are the potential 'Show Stoppers'?

• 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).

How does one achieve the above where there are two or more organs of state affected and who must give their comment and/or approval?

• 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.

Where land and any other rights in land cannot be acquired/accommodated by negotiations then such rights may be expropriated.

What are the 'Show Stoppers’?

• 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.

What is the Project Outside Figure?

The Project Outside Figure (“POF”) defines what properties, as registered in a Deeds Office, are affected by the Project and must be assembled.

How is the POF shown spatially?

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.

What is ‘Land Assembly’ and what is the outcome?

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.

What must be collated in reference to the POF?

Obtain copies of title deeds and surveyor general diagrams for the POF properties from the relevant Deeds Office and Surveyor General Office.

Why are these important in the context of land assembly?

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.