O/B BLOK: COMMENTS ON THE DRAFT MUNICIPAL PLANNING AMENDMENT BY-LAW, 2026

COMMENTS ON THE DRAFT MUNICIPAL PLANNING AMENDMENT BY-LAW, 2026

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Submitted on behalf of Blok

1. General comments

Blok welcomes the City of Cape Town's continued efforts to improve transparency, accountability and public confidence in municipal decision-making through the proposed Municipal Planning Amendment By-law, 2026. In particular, the proposed publication of building plan approvals, improved access to approved plans and reasons, and the introduction of a structured mechanism for identifying procedural irregularities seek to address recognised shortcomings within the existing legislative framework. These objectives are consistent with the constitutional principles of openness, accountable governance and lawful administrative action, as well as the broader objectives of the Promotion of Access to Information Act, 2000 ("PAIA").

Blok further recognises that the planning system must appropriately balance the rights of applicants, neighbouring property owners and the broader public interest. Public confidence in the development management system depends not only on transparency, but also on the ability of the City to correct genuine administrative errors where these occur.

However, while supporting the City's stated objectives, Blok is concerned that several of the proposed amendments may unintentionally reduce legal certainty following the grant of approvals and introduce additional procedural uncertainty into the development process. These consequences may ultimately undermine efficient development management, increase project risk and delay the delivery of housing and other forms of urban development.

The Spatial Planning and Land Use Management Act, 2013 ("SPLUMA") establishes that municipal planning systems should promote efficient decision-making, sustainable development, administrative justice and certainty in land use management. Similarly, the Western Cape Land Use Planning Act, 2014 ("LUPA") seeks to facilitate effective and efficient municipal development management through clear and predictable administrative processes.

It is against these broader statutory objectives that the following comments are submitted.

2. Third-party complaint mechanism (Section 122GA)

The proposed insertion of section 122GA represents one of the most significant procedural amendments contained within the draft By-law.

Blok supports the principle that genuine administrative errors should be capable of correction. Administrative decisions should remain lawful, procedurally fair and accountable. However, the proposed complaint mechanism creates a new post-approval administrative process that operates alongside existing statutory and judicial remedies available under South African administrative law.

Current legislation already provides comprehensive safeguards through internal appeals (where applicable), judicial review under the Promotion of Administrative Justice Act, 2000 ("PAJA"), constitutional legality review and municipal enforcement powers. The proposed section therefore introduces an additional mechanism through which approvals may be challenged after they have been granted.

While the explanatory memorandum correctly notes that the lodging of a complaint does not automatically suspend an approval and that the City is not obliged to amend or revoke an approval, the practical implications extend significantly beyond the legal consequences described in the memorandum.

Development projects rely upon legal certainty throughout the financing, procurement and construction process. Construction finance, purchaser agreements, contractor appointments, insurance arrangements and project programming all assume that once statutory approvals have been granted, they may reasonably be relied upon unless overturned through established legal processes.

Although section 122GA does not suspend approvals, the existence of an unresolved complaint may nevertheless influence lending decisions, delay contractor mobilisation, postpone construction commencement and increase holding costs. Even complaints that are ultimately dismissed may therefore have significant commercial and operational consequences.

The concern is therefore not the existence of a complaint mechanism itself, but rather that the proposed drafting establishes a relatively low threshold for initiating complaints without requiring any demonstration that the alleged procedural defect materially affected the outcome of the decision.

The proposed grounds—including alleged procedural non-compliance, lack of delegation, denial of hearing or incorrect information—are legitimate bases for administrative intervention where material. However, the proposed section does not expressly require that:

• the alleged defect materially influenced the decision;
• the complainant demonstrates actual prejudice;
• supporting evidence accompanies the complaint; or
• a prima facie case is established before the complaint proceeds.

In the absence of these safeguards, the proposed mechanism may inadvertently encourage speculative or tactical complaints that delay implementation rather than remedy genuine administrative error.

Recommendation

Blok recommends that section 122GA be amended to require that:

• a complaint identifies a material procedural irregularity;
• the alleged irregularity is reasonably capable of affecting the outcome of the approval;
• supporting evidence accompanies the complaint; and
• complaints that fail to disclose a prima facie case may be summarily dismissed.

This approach would continue to protect procedural fairness while ensuring that the mechanism remains focused on correcting substantive administrative defects rather than facilitating strategic delay.

3. Administrative certainty following expiry of the complaint period

The proposed amendments establish a forty-four-day period during which complaints may be lodged following publication of a building plan approval.

However, the proposed By-law does not provide corresponding certainty once that period has expired.

This omission creates an unintended consequence whereby uncertainty may persist indefinitely despite the expiry of the statutory complaint period.

Administrative finality is a well-established principle of South African administrative law. Applicants, financiers, purchasers and contractors must be able to rely upon lawfully granted approvals once the prescribed period for administrative challenge has expired.

Blok therefore recommends that the By-law expressly provide that where:

• no complaint has been lodged within the prescribed period; or
• a complaint has been dismissed,

the approval is regarded as administratively final for purposes of Chapter 8A, subject only to judicial review or other remedies available in law.

Providing certainty following expiry of the complaint period would materially improve investment confidence while preserving the City's ability to address genuine procedural irregularities.

4. Absence of statutory timeframes for determining complaints

While section 122GA requires the City to consider whether a complaint should proceed within the prescribed period, the proposed amendments do not establish a corresponding timeframe within which the complaint itself must be finalised once accepted for consideration.

This omission creates the possibility that complaints may remain unresolved for extended periods, with no statutory obligation on the City to conclude the process within a reasonable time.

The resulting uncertainty affects not only applicants but also neighbouring property owners, financiers, purchasers and contractors, all of whom have a legitimate interest in the timely finalisation of administrative processes.

Section 33 of the Constitution guarantees administrative action that is lawful, reasonable and procedurally fair. Those principles are given legislative effect through the Promotion of Administrative Justice Act, 2000, which recognises that administrative decisions should be taken within a reasonable time. Similarly, SPLUMA promotes efficient and integrated development management systems capable of facilitating sustainable development and investment certainty.

A complaint mechanism that contains no defined period for final determination risks creating prolonged administrative uncertainty that may extend well beyond the forty-four-day complaint period itself.

Recommendation

Blok recommends that the By-law prescribe a maximum period within which accepted complaints must be determined.

Alternatively, the By-law should provide that where the City has not concluded the complaint within the prescribed period, the complaint is deemed to have been dismissed unless exceptional circumstances justify an extension.

Introducing statutory determination periods would significantly improve certainty for all interested parties while encouraging efficient administration.

5. Transparency and access to approved building plans (Sections 95A and 95B)

Blok supports the City's objective of improving transparency through the publication of building plan approvals and allowing surrounding owners access to approved plans and the reasons supporting those approvals.

Greater transparency promotes accountability and public confidence in municipal decision-making.

However, the proposed amendments should also recognise that approved building plans frequently contain commercially sensitive information, proprietary architectural design solutions, security-related information and technical construction details.

Although sections 95B(7) and (8) introduce offences relating to misuse of disclosed information, these provisions operate only after disclosure has occurred.

Once detailed plans have been copied and distributed, any commercial prejudice may already have occurred.

Accordingly, Blok recommends that the City consider permitting reasonable redaction of security-sensitive or commercially confidential information where such information is not necessary for surrounding owners to understand the planning implications of the approval.

This would provide a more appropriate balance between transparency and the legitimate protection of commercially valuable information.

6. Administrative efficiency and housing delivery

Both SPLUMA and LUPA recognise that planning systems should promote efficient, integrated and sustainable development through predictable administrative processes.

Cape Town continues to experience significant demand for well-located housing and increased urban densification. Development management processes therefore play a critical role in facilitating the City's strategic planning objectives.

While individual procedural safeguards may appear limited in isolation, their cumulative effect may significantly influence project feasibility, financing and construction programming.

Additional post-approval uncertainty increases project risk, extends holding costs, delays housing delivery and may ultimately increase the cost of development. These costs are frequently passed through the development process and may affect housing affordability.

The planning system should therefore ensure that procedural safeguards remain proportionate to the risks they seek to address and do not unintentionally undermine the efficient delivery of development that complies with adopted planning policy and statutory requirements.

7. Retrospective application

Blok notes that several of the proposed amendments apply retrospectively to pending matters and certain existing approvals.

While retrospective amendments may be justified where they clarify drafting anomalies or preserve existing rights, retrospective procedural amendments should be approached cautiously as they may affect legitimate expectations that arose under the legislative framework applicable at the time applications were submitted.

To promote fairness and certainty, transitional provisions should clearly preserve accrued procedural rights and minimise unintended consequences for applications already in progress.

8. Conclusion

Blok supports the City's objectives of improving transparency, accountability and procedural fairness within the municipal planning system. The proposed amendments represent a positive opportunity to strengthen public confidence in municipal decision-making and improve access to information relating to approved developments.

However, transparency should be balanced with the equally important principles of legal certainty, administrative finality and efficient development management. A planning system that permits lawful approvals to remain subject to prolonged procedural uncertainty may unintentionally discourage investment, delay construction and undermine the delivery of much-needed housing.

Accordingly, Blok respectfully recommends that the proposed amendments be refined by:

1. introducing a higher threshold for complaints under section 122GA through a requirement for material procedural prejudice and supporting evidence;
2. expressly confirming administrative finality once the statutory complaint period has expired or complaints have been dismissed;
3. prescribing statutory timeframes for the determination of accepted complaints to avoid prolonged administrative uncertainty;
4. introducing appropriate safeguards for commercially sensitive information disclosed under sections 95A and 95B; and
5. ensuring that retrospective provisions preserve procedural fairness and legal certainty for existing approvals and pending applications.

These refinements would better align the proposed amendments with the objectives of SPLUMA, LUPA and the broader principles of South African administrative law by promoting a planning system that is transparent, accountable, efficient and capable of facilitating sustainable urban development while maintaining appropriate procedural safeguards for all interested parties.