Nwabisa Sihlahla
All properties in municipal areas are zoned for specific uses and section 26(2)(a) of the Spatial Planning and Land Usage Management Act 1 (“SPLUMA”) provides that land may only be used for the purposes permitted by a land use scheme.
If the Municipality suspects a property is being used for a purpose other than what is permitted, the Municipality will issue a notice of contravention of the zoning scheme and give the owner of the property 30 days to cease the illegal use of the property.
Should the owner continue with the illegal use of the property, the Municipality can take the following actions:
- Apply to a court for an order interdicting any person from using land in contravention of its land use scheme;
- authorising the demolition of any structure erected on land in contravention of its landuse scheme, without any obligation on the municipality or the person carrying out the demolition to pay compensation;
- or directing any other appropriate preventative or remedial measure.
In the case of Investec Property (Pty) Limited v China City Limpopo (Pty) Limited and
Others 2 , the First Respondent was interdicted from conducting any retail activities on the property not permitted in terms of the zoning of “Industrial I” in terms of the Polokwane Municipal Scheme (“the Scheme”) and SPLUMA.
“Industrial 1″ allowed for the following primary land uses relating to the Scheme: ” Warehouse, Builder’s yard. Mortuary, Industry, Public Garage, Service Industry, Panel Beating and Scrap Yard “. As part of the secondary land use rights for which a special consent was required from the Municipality the property could also have been utilised for the purposes of a” Crematorium, Noxious Industry, Special Use, Telecommunication Structures, Dwelling Unit (sub-ordinate to main use) and Cafeteria”.
No such special consent applied to the property and accordingly the property use was restricted to the primary use rights in terms of the Scheme. The First Respondent, however, utilised the property for purposes of retail trade conducted in shops established on the property.
Should one wish to use a property in a certain way other than its zoned use, an application for a special consent or a rezoning application will need to be submitted to the relevant Municipality.
A special consent application merely consists of applying to the local authority to grant consent to use the land in a certain way other than what is permitted under its existing zoning.
A rezoning application is a process of changing the zoning of a property for another use. Rezoning and special consent applications requires careful planning and attention to detail and knowledge of spatial planning for the property in question. An application also has to comply with the specific provisions contained in SPLUMA.
Should you need assistance with the processes, preparation of the necessary documentation and submission of applications, you can consult our land planning department.
