Development Planning – How do Municipal Planning Tribunals Work?

How do Municipal Planning Tribunals Work?

Background-

The City’s first Municipal Planning Tribunal (MPT) was approved by Council in June 2016 and gazetted on 3 August 2016 in terms of the Spatial Planning and Land Use Management Act, 16 of 2013 (SPLUMA), in line with section 36 and 37, and section 14 of the City’s Municipal Planning By-law, 2016 (By-Law).
The new MPT members after the first 5-year term, were approved by Council on 07 October 2021 and were gazetted on 15 February 2022.
The functions and composition of the MPT are guided by Chapter 4 of the City of Johannesburg Municipal Planning Bylaw, 2016 (as amended 2023).
Appointment of new additional MPT external members (i.e. from general public) and gazetted in April 2024.

Composition-

CHAPTER 4 – MUNICIPAL PLANNING TRIBUNAL AND AUTHORISED OFFICIAL

Section 14, deals with composition of Municipal Planning Tribunal.

“14. Composition of Municipal Planning Tribunal

(1). A Municipal Planning Tribunal must consist of-
(a). officials in the full-time employment of the City; and, at the sole discretion of the City, it may also include-
(b). persons appointed by the City who are not municipal officials and who have knowledge and experience of spatial planning, land use management and land development or the law relating thereto, including members appointed by Municipal Owned Entities.
(2). Municipal Councillors shall not be members of a Municipal Planning Tribunal”

Powers and Functions of the MPT-

(1). A Municipal Planning Tribunal may-
- (a). approve, in whole or in part, or refuse any application referred to it in accordance with this By-law;
- (b). in the approval of any application, impose any reasonable conditions, including conditions related to the provision of engineering services and the payment of any engineering services contributions;
- (c). make an appropriate determination regarding all matters necessary or incidental to the performance of its functions in terms of this By-law, the SPLUMA and/or any Provincial legislation;
- (d). conduct any necessary investigation;
- (e). give directions relevant to its functions to any person in the service of the City or Municipal Entity; or
- (f). decide any question concerning its own jurisdiction.
(2). A Municipal Planning Tribunal must keep a record of all its proceedings and decisions.
(3). A Municipal Planning Tribunal must provide reasons for any of its decisions made upon any written request submitted by any of the parties which appeared before it within 28 days of date of receipt of the notice of the decision and such reasons shall be provided by the Municipal Planning Tribunal’s Chairperson in writing within 14 days from date of receipt of such request.

Legal framework pertaining to the MPT-

Hearing of submissions, objections, comments or representations

Where in terms of any provision of this By-law a land development application is referred to the Municipal Planning Tribunal for a decision, the City shall forthwith determine a day, time and place for such hearing.
The person making the application and any other person, who timeously submitted an objection, comment or representation in terms of any provision of this By-law, including an interested person who has been granted intervener status for purposes of section 52 above, shall receive 14 days clear notice of such day, time and place of the hearing.
At such hearing contemplated in subsection (1) above the parties envisaged in subsection (2) above may appear in person and set out their motivation in support of the application or their grounds of objection or representation, as the case may be, and adduce any evidence in support thereof or authorise any other person to do so on their behalf.
A hearing contemplated in subsection (1) above shall be open to the public unless otherwise directed by the Chairperson of the Municipal Planning Tribunal.
Where an objection, comment or representation has been submitted in the form of a petition, the City will only be obliged to give notice of such hearing to the main petitioner.
The hearing may be preceded at the discretion of the Municipal Planning Tribunal by a site inspection.
The Municipal Planning Tribunal shall determine its own procedure in accordance with the objectives of administrative justice.

MPT procedures and process-

The MPT have been in operation since its establishment by way of Council approval from 2016.Prior to that the Planning committee system was in place which operated in a similar fashion as the MPT.
As mentioned above and as stipulated in the provisions of the quoted section 58 “The Municipal Planning Tribunal shall determine its own procedure in accordance with the objectives of administrative justice”.
This then entails and requires that all parties to the proceedings be given a fair opportunity to present and “set out their motivation in support of the application or their grounds of objection or representation, as the case may be, and adduce any evidence in support thereof..”
The operation of the tribunal have been tried and tested over a lengthy period and the process followed allowing for an administratively fair hearing is as follows –
The applicant or representative is allowed to make presentation to the tribunal;
This is followed by a round of questions of clarification to the presenter by all parties to the application;
Once concluded the objectors or representatives are allowed to present to the tribunal;
Again, this is followed by questions to the presenter.
It is then the opportunity of the representative from Land Use (Presenting Planner) to make presentation to the tribunal.
Again, this is followed by questions of clarification to the presenting planner.
The proceedings are then concluded by allowing the applicant to present a reply to everything presented. This is not an opportunity to raise new issues but merely some concluding remarks.
The decision on the application is made “in committee” thereafter.
Although the procedure and process could be interpreted as adversarial in nature it should be noted that the MPT is not a court, and we should attempt to steer away from it being unnecessarily formalistic in nature.
The objective of the hearing should be to obtain the necessary information, in a structured and orderly manner, from all parties to allow the members of the tribunal to make an informed decision on the application serving before the tribunal.

MPT decision making-

Decision of the tribunal are made “in committee” as soon as possible after concluding the hearing process as described above.
It should however be noted that Section 57 (5) of the bylaw stipulate “ .. any decision by the Municipal Planning Tribunal shall be made within 30 days from the date of the last meeting of the Municipal Planning Tribunal.”
The members allocated to that specific hearing make decision by way of consensus or by way of majority vote (50 % plus one).
Of importance is to understand – the chairperson of the tribunal does not have voting authority on such land decision.
The way the City structured the Tribunal is to allocate a Legal adviser to chair the tribunal to ensure due process is followed, guide the hearing process and to advise the Tribunal on any issue raised that might be legal in nature.
The chairperson is also responsible to compile reasons for the decision taken by the tribunal ( see section 59 (2) of the bylaw. Such reasons could be compiled in consultation with the members.
Decision making is also guided by Section 5 of the Municipal Planning Bylaw stipulate – Provisions and principles which shall guide and inform all land development applications.
Decisions must also be implementable from a land use and Land Use Scheme, 2018 perspective.

Current arrangements for scheduling the MPT-

Currently the MPT sits for scheduled matters from Tuesday to Thursday each week and two (2) items are heard per day depending on the complexity of the applications.
On average twenty-two (22) applications are received monthly from the Land Use Management Unit and on average 16 applications are tabled monthly to the MPT Committee.
Special Hearings for postponed items are usually reserved for Monday and Friday.
Currently the MPT hearings are held virtually and physically. The inspection in loco for complicated matters are held where required by agreement with the interested and affected parties.
The coordinators are inter alia responsible for the compiling of the agenda, formally informing all parties of the hearing date as per the stipulations of the bylaw (i.e. 14-day notice), keeping of records, the point of entry for all communications to the tribunal and preparing and processing of minutes in relation to the decision taken by the MPT.

Some of the challenges facing development planning in the MPT process-

Missing / Capturing of Objections by LUM Registration – process still very manual and a challenge when capturing a high volume of objections.
Objections without proper contact details of the objector – which at times they get omitted MPT Hearing Notifications and objections not captured appropriately which results in postponement of MPT Hearing.
Mitigation: The team (Committee Coordinators) are currently checking the number of objections captured on the Town Planning Reports and compare with the one captured on TAS. By so doing it is easy to pick up if there is difference/problems. When there is a problem then they are addressed during the notification period by also consulting with the applicant.

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