“Any sensible government must learn to unleash the energy of its people and get them to perform instead of trying to get a bureaucracy to perform.” -Verghese Kurien, I Too Had a Dream
Once, when bemoaning the lack of pro-active support from Council Officials to help expedite approvals, some wise developer, who had also worked in the public sector, remarked that public sector officials are not focussed on facilitation and expedition, but only on compliance, and that when in doubt, they will always err on the more conservative side of any question. This is because no one gets fired for taking a more conservative view. With some notable exceptions that has been most professionals’ experience and this, more than anything, explains the ongoing malaise.
There are two main pieces of legislation that govern the right to build on a site: The Municipal Planning By-law (which derives its authority from the Spatial Planning and Land Use Management Act) and the National Building Regulations (which derives its authority from The National Building Regulations and Building Standards Act). There are other important acts, governing Heritage and Environment for example, but the most commonly encountered acts are the two mentioned. The former regulates use and building form and prescribes the procedure to be followed in the event one wishes to depart from the rules governing a planning zone. The latter deals with technical aspects of building like structure, fire, and so on.
Let us examine each in turn, starting with the By-law.
Of course, the best way to shorten Land Use approval time is to cut out one cycle altogether; ensure the project complies with the bylaw in all respects and one should be able to obtain Land Use Clearance in a matter of days. However, there is often a reason one might need to, or want to obtain a departure.
Arguably, there is nothing inherently wrong with the By-Law or the processes to be followed in the event of a departure. The problems arise out of the execution of these principles. Simply put, the process takes far too long, and officials do not appear to be held to account when exceeding their target review times. And while in the interest of fairness and administrative justice, parts cannot be significantly shortened, namely those that relate to public participation, other parts could be dramatically curtailed if there was the political will and the necessary staff resources. See side panel. While the timeframes suggested may seem long, they are short in comparison with what is being generally being achieved now. Developers need to collectively apply more pressure on the city to expedite this process, most probably through associations like SAPOA and the Property Developers Forum.
Additionally, we are seeing many more objections to departure applications on the grounds of spatial justice. While the cause is understandable and just and it has no doubt focused local government and the private sector, one has to question the means. The fact is, developments worth hundreds of millions mired in the Land Use approval process are, as a direct consequence, not contributing to job creation or retention at this critical time of almost zero growth in the economy. This poses a critical risk to the economic survival of many built environment practices.
Turning to Building Plan Approval, the official timeframes are much shorter but there are processes that need to be improved and, in my opinion, regulations that need amendment.
The first is the problem of amendment letters as they are called. Some time after Building Plan Submission and the payment of the scrutiny fee, almost inevitably the applicant receives an amendment letter calling for changes or additional information. That is no problem and the stated intent from Council is to only issue one such letter, but more often than not the process is repeated, sometime 3 or 4 times. It is often said that anyone can find something wrong with a drawing that is part of a building plan submission and the real problem is that each time a letter is issued, that constitutes a REFUSAL and the clock is reset to 0, allowing a further 30 or 60 days for approval EACH TIME.
When one reviews approved plans from some years ago, the level of detail is substantially less. It is generally known that Council does not often face lawsuits in relation to approved building plans, apart from Section 7 of the Regulations which is in effect related to Land Use. Is it not time to consider how to reduce the level of detail on submitted plans, especially where notes refer to ‘deemed to satisfy’ provisions of the NBR? These notes should surely suffice.
We also need to define the terms of engagement where a rational design is used. Once the credentials of the professional is accepted, should the proposed design not also be accepted, much in the same way the Structural Engineers work is accepted? After all, once a rational design is used, the primary responsibility passes to the consultant.
Recently there has been a change of attitude towards Provisional Approval to commence certain works on site prior to full building plan approval. If approval processes were not so drawn out, this may not be such an issue, but given the financial and other uncertainties deterring development, approval for early commencement can be absolutely critical, particularly if a project involves piling, basement excavations in hard rock, etc. As previously understood, once the plan has been cleared by Land Use Management, and the scrutiny fee paid, an application could be made to expedite certain initial construction activities at the owner’s risk. This appears no longer to be the case or is granted only in exceptional circumstances.
Having said all of that, anecdotally, Cape Town still comes out top among professionals for the way in which the Council is organized and has innovated with regard to plan submissions, by developing the planning portal which allows for electronic submissions. Additionally, there is a monthly engagement with top officials and professional representatives of their respective bodies which is conducted in a genuine, open and constructive manner and has yielded some significant improvements. The point of this article is to highlight some other key issues and hopefully galvanise support for change.
Chair SAIA Practice Committee
Member CiFA Council Engagement Group
Committee Member Western Cape Property Developers Forum.