Municipal Planning Bylaw Comment by OCA

The OCA has submitted extensive comments on the proposed amendments of Municipal Planning Bylaw

Comments on the amendments to the Municipal Planning Bylaw, 1st April 2019
Observatory Civic Association
76 Arnold St, Observatory, 7925

On March 1st, the City released a document setting out 87 amendments (actually more than 87, since some clauses include more than one change and the meaning of the changes may be different) of the MPBL with a one month notice for comments. Some of the changes are simple language and typographical corrections. But probably about half of the changes require some application of attention to understand what is meant. Even then, for most Civic members, the changes are not understandable without expert input. The City’s consultation process involved alerting I&Ps and holding a series of road shows in public venues within one week.

Our Comments are therefore both on process and content as follows:


We question the seriousness of this consultation process and whether it is adequate in terms of the Municipal Services Act. The Amendments were released on March 1st with one month for comment.
In November 2015, the CoCT published amendments to the MPBL for comments, with same time period of one month given to communities for comment. At that time, the number of amendments put out for comment was 58 amendments, while this round of amendments totaled 87 changes, a 50% increase in the number of changes that members of the public are expected to scrutinize by the due date.

In response to the amendments in 2015, there were 58 comments in response to those amendments.

There were 7 comments objecting to the lack of time for consultation.
Of these, 5 were from Civics or from groups of Civic Associations and two were from individuals. The Civics specifically asked that the City in future afford more time and invest more resource in capacity building to support participation.

The City’s response was as follows: “Noted. Public participation processes were conducted as per formal requirements and the City ensured the proposals were distributed as widely as it could feasibly be done.” In other words, the City indicated it was not feasible to undertake more meaningful participation, both allowing more time to consider the complexities of the amendments and to implement some form of capacity building engagement with communities.

With the current amendments, the City notified the Ward Councillors and the media. Six information sessions of two hours each were held in 6 localities of the City, after hours.

Two OCA members attended one of these meetings and their experience was that there was insufficient time to deal with a lot of very complex matters and the meeting content was not able to allow them to feed back any useful information to their Civic.

The consultation which they went to was poorly attended and the issues simplistically examined. We ask whether in a City of 3 million people, 6 3-hour sessions of this sort could remotely qualify as adequate participation, irrespective of whether this is “per formal requirements.”

It should also be evident that extra time for consultation would be of benefit to the process, allowing for a better response and more informed feedback.

We point out that the City is obliged, in terms of Section 16 of the Municipal Services Act, “… to encourage, and create conditions for, the local community to participate in the affairs of the municipality …” and “must … contribute to building the capacity of the local community …” for this purpose. The Act further points out that the municipality must, in order to meet these obligations “… use its resources, and annually allocate funds in its budget, as may be appropriate …”. We do not believe that the process followed by the City, in issuing a raft of 87 amendments to a Bylaw, followed by token roadshows which few working persons are able to attend, allowing only a month for comment, constitutes a response consistent with the Municipal Services Act. Our civics made clear suggestions in 2015 that, when amendments are proposed, the city should commit to workshops and capacity building but even though these comments were ‘noted’ in 2015, this point has again been ignored. As a result, most members of the public have not been able to exercise their rights to participate meaningfully in considering and expressing their views about these amendments.

Nevertheless, because we believe the voice of citizens and the public must be heard, we make this submission again, stating very clearly that

(a) the consultation process was flawed, too short and lacked adequate explanation;

(b) a process in which civics and other public groups are empowered to engage with the material should be pursued by the municipality consistent with the Municipal Services Act;

(c) the amendments to the MPBL should not be passed by Council until such a process is followed.

The documentation provided with the Bylaw was insufficient to allow meaningful engagement with the amendments. There were 87 amendments and the documentation did not explain what the original text was that was being changed. As a result, the changes are not interpretable. The summary guidance document did not cover all changes, nor did it explain exactly how the changes were going to affect communities.

Calls for consultation and to “have your say” should not be a tick box exercise.


Listed below are the most important sections and our comments on the amendments proposed:


This proposes extending the period allowed for an approval to remain valid from 2 years to five years. There is no motivation for why the time should be extended.
We do not agree with this change.
In 5 years, many policies and other guidelines may have changed. A Spatial Development Plan may have been developed. The circumstances under which an approval is given 5 years later will be very different. Traffic patterns in an area might change, as might landscapes. We draw attention to the fact that the City introduced measures to ensure that all future buildings are fitted with water-saving devices. This is a positive regulatory change. However, an approval more than 2 prior to this change can continue to build developments that do not meet this change.
Secondly, it will make it easier for developers to speculate by buying up property and choosing the most profitable time to redevelop. This will encourage problem buildings and running down of sites.
The approval period should remain at 2 years. Planning has to be current.

This deals with restrictive conditions on servitudes. The formulation of the clause appears to remove rights of property owners and it implementation may affects neighbours. Secondly, where community members have been making use of a servitude for a long period, and a prescriptive easement exists, the amendment would abolish this right.
We do not support this amendment.

This adds some conditions for developments related to servitudes which do not require approval. As above for amendment 4, we do not support this amendment as it impacts on property rights and on easement rights.

Amends the bylaw to make it easier to support declaration of an Emergency Housing area. We do not oppose this amendment as long as the requirements for notice are met and the standards for a waiver of public consultation are consistent with the narrow definition of emergency provided in section 68 of the existing bylaw. We also believe the amendment should include notice to the local councillor and to local civic organisations.

This deals with information to be submitted with a development application.
The City has simultaneous to the MPBL amendments issued a draft Problem Building bylaw to which comments were invited. We believe that the MPBL should make reference to the Problem Building bylaw here. Any compliance notices issued under the Problem Building bylaw or any declaration of a building on the erf in question as a Problem Building should be submitted and form part of the record so the MPT can make an informed decision. Speculators let a building go to rack and ruin so that they have a reason to demolish and develop. This is not good practice. Hence, there should be a reference to the Problem Building bylaw here to ensure the development application is properly assessed.

The amendment proposes to delete the clause: “Subject to the requirements of national and provincial legislation, the City Manager may exempt an application from a public notification process if the application does not materially and adversely affect the rights of the public.”
We agree to this.

This is a new clause to say that any comments must be in writing on a prescribed form.
We would support this conditional on:
The form must be available in an editable electronic form (e.g. word file). Our experience of the City’s forms up to now is that they are usually scanned forms in pdf that require you to hand write and scan. This means that an objector would need access to a printer and scanner to submit comment. This may make it difficult for some community members who only have access to such equipment with difficulty. Allowing the option to sign and return electronically would be consistent with the Electronic Communications and Transactions (ECT) Act #36 of 2005.

The forms must be user friendly. Our experience of the current forms for rates objections is that the City’s forms are not presented in a user friendly format.
Use of the form should not be prescriptive. If the City specifies the common set of information required for objections, it should be possible for objectors to submit either on a standard form or in a narrative which sets out the required information.

The form should allow “supporting documentation” to be attached to the standard form. Otherwise the form can be too limiting for a full and complete objection.
If such a form is to be introduced, is should be workshopped with communities.
In summary, having a mandated form should not be a barrier to participation.

This is about allowing copies of plans to be available to the public on payment of a fee. We strongly support this as consistent with the provisions of the Protection of Access to Information Act and with Constitutional provisions for the Right of Access to Information. It will bring clarity to public officials who deal with requests from the public. However, we would like to note current PAIA provisions result in digital copies being made available for free, and in provisions for waivers of costs if adequate motivation can be shown. The amendment should reflect both those safeguards.

This allows the public to pay for copies of the decision. At the moment, if you are an objector, you are sent a record of the decision and MPT minutes are publicly available. This is consistent with the Promotion of Administrative Justice Act and the Constitutional Right to administrative justice. We do not object to this amendment if it does not take away the right of an objector to receive a record of the decision without payment, otherwise that is an obstacle to participation.

This drops a clause relating to grounds for refusing an application, which is the requirement that “the application must comply with the requirements of this By-Law.”
The clause has been moved from a current provision which mandates the official to refuse to consider the application (prescriptive) to a provision after paragraph (g) of subsection (2) where the “the decision maker must consider” the failure to comply with requirements of the bylaw. The decision-maker may still accept the application if it does not comply.
The nett effect of this is to make the requirement to comply with the bylaw only a consideration but not grounds for automatically refusing it. This is not logical. How can an application that that does not meet ‘requirements’ of law still be considered? This makes a mockery of the notion of something being ‘required’ and extends discretion to officials which is inappropriate.
We object to this amendment. The officials must still consider compliance with the bylaw and reject an application if there are triggers.

This appears to allows more discretion to avoid advertising a development as a departure (although the exact wording of clause 99(d) appears to contradict itself and should be clarified). Prima facie, it appears to allow the case officer to let the development exceed the floor factor by 10%. For example, if the floor factor is 4 (Mixed Use), and a developer applies, they can submit a plan for which the floor space area is 4.4 times the erf size (i.e.10% denser). This is not logical. One either has development rules or one does not. What is the point of the DMS if the DMS says 15 but actually the MPBL means 16.5? The previous raft of amendments in 2015 handed developers a whole set of fixtures which could be excluded from floor factor calculations, which developers themselves estimated as giving them more than 10% already. Coupled with this amendment, adding 10% further discretion, the original intention of the DMS to set floor factors has been undermined by 20 to 25%. This is an effective change to the floor factor by sleight of hand. In our experience, officials do not check what developers submit as floor factor (this has been stated to us in a meeting by an official). It seems this is an amendment to relieve officials of the obligation to ensure developers follow the law. This is not about densification, this is simply allowing developers to make more money.

We oppose this. The law should not afford officials more discretion but rathe provide clarity (as it does for Access to Information).

The proposal is to delete “In the event that a decision is challenged in an application for administrative review before a competent court, the City may on application suspend the operation of the decision pending the final determination of the review.”

This is completely unacceptable and contrary to all considerations of Administrative Justice. It is widely recognised in law that any application to challenge a decision must suspend any implementation of the decision. If a planning decision can be executed before it is final, this will prejudice a party who is objecting who will have to seek a High Court order to suspend the implementation.

Our Constitution does not allow the suspension of people’s rights whilst an administrative process is underway. We believe this amendment is unconstitutional and the clause should not be deleted. If anything, the clause should be strengthened to make it mandatory for the operation of a decision to be suspended pending review.

It proposes a prescribed form for Appeals. We repeat the same concerns as for prescribing forms for objections above in amendment 14.

This amendment introduces complex language about who may still be informed and participate in an appeal. It begins to circumscribe who is able to participate and unfairly excludes people who have expressed interest in a decision. Once the process starts, if you have objected or shown interest, you should remain on the list. To do otherwise, is to restrict participation unreasonably.
We oppose this amendment in its entirely. The existing clause should be unchanged.

This allows the City to get away from using snail mail to officially use email addresses for objections. We support this.

This allows the City Manager to decide on his/her own, with no public oversight, what contraventions do not attract a fine or ‘rectification’. This is potentially arbitrary, untransparent and administratively improper, and is not consistent with the PAJA. We oppose this.

This allows the City a wide range of discretion to the City to exempt an application and this seems VERY broad. Clause (a) specifically means state subsidised housing or housing settlements but clause (b) makes no reference to these specific circumstances. So, this effectively gives the City carte blanche to exempt any application. Section 60(1) is about Amendment or cancellation of plan or subdivision, so it offers no protection. The fact that sub-clause 3 says the City must publish an exemption does not give the public any rights to oppose it. As written, this provision is excessively broad and would exclude the public from participation on matters which they should, by Constitutional right, be able to express views and influence decisions.

We oppose very strongly clause 2 and 3 as inserted. It is the back door to by-passing public comment.

This is a new clause indicating that the changes to the bylaw cannot be retrospective. We do not support this. There may well be circumstances where retrospective application of new amendments may well be found appropriate by the Courts. For example, if an HPOZ has been under consideration for many years but there has been foot-dragging by the City on promulgating such an HPOZ, applications approved during that period should not be excluded from the purview of a later decision. The courts should be allowed to judge such matters on a case-by-case basis rather than having it pre-empted by the Bylaw.

Coupled with amendment 3, which is about transitional arrangements, we believe this amendment cannot be supported.

Item 1 (a) and (b)
Redefinition of how to calculate height. We do not object to measures which seek to bring clarity to how height should be estimated. However, there should be a provision that the base height produced through the Ground Level should open to comment and objection should a party wish to dispute the estimate using a professional land surveyor.

Item 1 (i) and (jj)
These changes refer to transient guests in the context of a definition of a dwelling.
There are a number of problems with these changes.
Firstly, it opens the gate to AirBnB rentals on a scale that is a problem. If this is intended as a provision to enable home owners to develop an income stream by letting a room or a granny flat on their premises, then it fails to confine the provision to that group but opens the provisions much wider to allow non-residents to own a home and rent it for short-term rentals less than 30 consecutive days as a business – which is exactly the current AirBnB model.
It is widely recognized that this kind of very short term rental undermines solutions to the housing crisis in Cities where long-term family accommodation is needed. We refer to evidence presented by the Woodstock Residents Association: “There are over 17,380 active short-term rentals advertised in Cape Town. 94% are listed on AirBnB, 4% on HomeAway and 2% are listed on both platforms. At least 25% of the available rentals are full-time, ie listed during the entire year. The vast majority of the rentals, almost 13,000, offer to let the entire apartment.
More than half of these entire apartment on offer (7892) have between 2 and 5 bedrooms, ie would be suitable for rental by a family with dependants. The rest are studio and one-bedroom apartments. This is solid evidence that short-term lets contribute to the Cape Town housing crisis, as these full-time short-term let apartments are not available for long-term rentals.”

We agree with the Woodstock Civic Association argument that the proposed MPBL amendment “is not in line with international best practice: All the major cities around the world which are struggling with a housing shortage are tightening the circumstances under which AirBnB is allowed (e.g. New York, Barcelona, Berlin, Paris, Reykjavík, Los Angeles, New York, San Francisco, and Tokyo, to mention just a few). See, for example, most recently Amsterdam, which reduced its annual limit of short-term letting of an entire apartment to a maximum of 30 days.”

We believe this backdoor support for AirBnB is contrary to the City’s own policies which purportedly attempt to solve the City’s housing crisis through densification. Instead this change to the Bylaw will permit profiteering by non-residents and remove housing from the stock required to address the major need – for families of all income levels needing accommodation close to work and opportunities. This will aggravate existing spatial injustice.

Firstly, any provision to permit exemption should require whomever is renting the property to be resident on the property and should specifically exclude investors or speculators using this loophole to use housing stock as a business for such short-term profitable rentals at the expense of long-term rentals.

Secondly, the provision for 30 days consecutive stay is specious as it overlooks the fact that most AirBnB stays are 4 days or less. Rather than 30 days consecutive stay, the definition should be changed to 30 days in total per year to reduce profiteering.

Thirdly, we believe that how best to regulate AirBnB rentals should be subject to a more detailed and consultative discussion rather than rushed through a set of arbitrary and ill-considered changed to Schedule 3 of the MPBL, without adequate examination of the impact on housing policy for Cape Town.

A separate regulation or a specific set of MPBL amendments – to be considered separately – should be pursued with proper consultation and attention to where and how regulations should be put in place.

We are therefore strongly opposed to the amendment to Definitions under Item 1 of Schedule 3as listed in the draft amendment bylaw – items (26.(i) and 26.(jj) of Annexure A.

Item 1 (i)
The definition of ‘dwelling unit’ has an addition which says that the number of ‘transient guests may not exceed the allowable number’. This may be trying to avoid people farming but it may adversely impact on extended families with many members coming to visit. We believe this problem may be better addressed if the definitions were amended to mandate that the owner or primary occupant should stay on the property if they have transient guests.

We want to avoid a situation where an absent landlord ‘farms’ people desperate for housing under unacceptable circumstances.

Item 1 (o).(c)
Allows bulkier lift shafts sticking out at the top of the building. There is no obvious reason presented why this is needed. A large extrusion at the top of a building is more likely to impact visibility. We do not support this.

Item 1 (p_
This adds a definition of “high-Intensity land use”. However, it does not refer to affordable housing, which should be mandatory for all new developments that are larger than a certain size (e.g. 25 apartments).
No opportunity for affordable housing

Item 1 (u) and (v)
This, linked to amendment 22a (which we have opposed), allows for a proliferation of cell phone towers of 12 m or less, including on top of residential houses. This is not consistent with the City’s own policy on Telecommunication Tower Masts, which uses a different height cut of for minor towers (12m vs 15m) but appears linked to creating an opportunity for ‘smaller’ (though 12m is still not small) to proliferate through the City, since these will not be subject to a requirement for approval.

We oppose this change completely since it can have a negative impact on the urban environment, particularly in an HPOZ. We refer to a recent decision of the Municipal Planning Tribunal on the 5th December in which an application for a communications tower of 15m was turned down on the basis that the applicants had not considered alternative sites, the nearby property may have its rights impacted and that the tower is not sensitive to the fact it abuts the HPOZ. The changes proposed in the Amendment will allow towers of 12m or less to proliferate without consideration of factors that the MPT considered important enough to refuse an application.

We are strongly opposed to these changes.

This is a reinforcement of the change proposed above (amendment 24 referring to clause 140(2) in the original Bylaw, which allows discretion to exceed floor factor by 10% without requiring advertising.

We oppose this amendment.

Item 18 of Schedule 3
This removes item 18, which refers to Land deemed as a heritage area in accordance with the National Heritage Resources Act and which notes that “All Heritage Protection Overlay Zones as published in the Provincial Gazette are deemed to be heritage areas in accordance with the National Heritage Resources Act.”

While we recognise this is essentially about legal jurisdiction and do not oppose this removal, we do wish to note the following:

As we understand, the amendments will not affect (a) the requirements for, nor the process for obtaining City approval for activities in an HPOZ. Public participation in relation to an application for approval will be unaffected. (b)
The amendments will not replace the role of HWC where an NHRA trigger applies.

Open Space
This amendment permits primary use under Open Space Zoning 1 and 2 (Environmental Conservation) for minor freestanding telecommnications towers. It is not comprehensible how the notion of Environmental Conservation can be reconciled with erection of a cell phone tower as primary use. In fact, given the loosening of permissions on minor towers, it will be possible to approve without permission, a proliferation of towers within a Conservation Area – with no public participation and with no requirement to abide by any standards.
We have not found any definition of Environmental Conservation (see, for example, or that could remotely be compatible with the mushrooming of cell phone towers in a Conservation area. In fact, this appears to contradict the City’s own Environmental Management Strategy which decries the adhoc nature of environmental governance, and which calls for “considered decision-making” that ensures that these [in the natural environment] assets are protected.

The uncontrolled proliferation of cell phone towers up to 12m in public open spaces cannot be consistent with such a strategy.

We opposed this amendment.

We note that there are alternatives to securing improve signal for telecommunications which involve engineering solutions. Multiple cell phone towers are the cheapest and ugliest way to meet the need of communities for better signal. We believe the City should first explore alternative before considering an amendment that opens the door to laissez-faire and uncontrolled explosion of tower in sitings that are not appropriate.

92A and B
We believe the creation of a Transport Zoning 3: Toll Road (TR3) requires more discussion and motivation before it is rushed through as an amendment to the MPBL. It is unclear why the City needs to implement zoning for tolling on roads.

Schedule C 136B (e) (bb)
The definition of permeability of boundary walls above a set height is reduced to 25% for all zoning other than general business, industrial, risk industry and utility zonings. We believe this is inappropriate and will encourage closed street faces, encourage crime and reduce liveability of residential areas. It should be retained as it is currently 40% or preferably be increased to 50%.

Item 138
The amendment provides for a drastic reduction required for boarding houses in PT1 areas. In our experience, developers are getting away with the definition of boarding house for flats and then selling the flats. We have not had any positive experiences when reporting such misleading practices to the City. If enforcement of the conditions was effective, we would not object to this change.

The definition of what is not allowed as service trade in a Scheduled Public Transport Accessibility Overlay Zone includes a list of trades (builder’s yard and allied trades, recycling centre, spray-paint centre, fitment centre for tyres, shock absorbers or exhausts) but then ends with “similar types of uses”. This is too vague for remedy should an affected neighbor seek redress.

82, 84
Schedule 3 Item 163 and 167
It is unclear why the amendments seek to drop reference to heritage management plans. It would seem more sensible to keep the section in place (no amendments) and rather have the “plans approved by the City in terms of this bylaw”. We believe these development plans would be weakened as planning tools if the amendments were to be implemented as written.

Schedule 3 Item 164
We are in support of the addition of two conditions relating to (g) architectural form and treatment; and (h) development rules applicable to the land unit

3. We also wish to note a number of existing problems with the bylaw which the City has not addressed through amendments. We believe this is an oversight and requires focused attention from the City to rectify serious problems in the Bylaw

3.1 In contrast to the time given to community to comment on bylaws, a mere 30 days, there is no time deadline on City officials to respond to these comments. Members of the public are not given feedback on how their comments on bylaw amendments have been dealt with. This is not consistent with basic administrative justice requirements in terms of the Constitution.

3.2 Sections 114 (3), (4) and and 121 (1), (7) set up the Mayor as decision maker on appeals. This arrangement is not consistent with requirements for appeal processes to be fair, transparent and independent. The bylaw should introduce amendment to set up a higher level of appeal that is not connected to political leaders, to officials who are part of an administration who have made a lower level decision nor to persons connected to the industry whose livelihoods are dependent on the outcomes of such appeal decisions. The constitution of an independent legally appointed and legally based appeal committee would meet such standards.

3.3 Lastly, with regard to two major developments included by sleight in the amendement – a telecommunication tower frenzy and the nod to open day for AirBnB rentals, we believe the City needs to put in place proper control and guidance, with a separate consultative process that meets standards for fair and meaningful participation – rather than slipping these through as amendments, when they are substantive issues needing substantive discussion in open democratic processes.

Submitted by Leslie London and Tracy Hyde on behalf of the Observatory Civic Association
c/o [email protected]