Tshwane Municipality clamps down on illegal land use

The City of Tshwane Metropolitan Municipality made headlines in August 2009, when a Faerie Glen home was demolished, following a court interdict. The city council claimed that it was built according to fraudulent building plans. Following the incident, various property owners contacted CityScope Town Planners for advice regarding illegal land use. These enquiries resulted from either legal action against land owners or an additional and inflated property taxation billed as “Illegal Use of Property” by the council. Can these actions by the council be seen as a major clampdown on illegal land use?

In order to explain illegal land use and the council’s mandate in terms of town planning legislation, it is pertinent to take note of the following statutory provisions:
Section 19 of the Town-Planning and Townships Ordinance (15 of 1986) states that: “The general purpose of a town-planning scheme shall be the co-ordinated and harmonious development of the area to which it relates in such a way as will most effectively tend to promote the health, safety, good order, amenity, convenience and general welfare of such area, as well as efficiency and economy in the process of such development.”
Section 40 of the Ordinance, indicates the role of the local authority: “(1) An approved scheme shall come into operation on the date of the publication of the notice contemplated in section 39(1), and from that date the local authority shall observe and enforce the provisions thereof.
(2) Any person who contravenes or fails to comply with a provision of an approved scheme shall be guilty of an offence”.
Over the years the council applied their powers of enforcing the provisions of the town planning legislation. Various problems however, including a lack of personnel, time-consuming court processes and inconsequential punishment by means of small fines, hampered the effective enforcement of land use control. Inevitably illegal land uses proliferated, since land owners believed that the council would not act against them.
To gain insight in the current increase in measures taken against illegal land uses, CityScope Town Planners had discussions with the Compliance and Enforcement Division of the council regarding their current strategies.
The consultation revealed that the council is certainly intensifying its action against illegal land users (both property owners and occupiers). In addition to normal criminal proceedings in terms of the Tshwane Town Planning Scheme (Clause 36) and the Criminal Procedures Act 1977, (Act 51 of 1977) which are heard in the Municipal Court, the following new measures are taken in order to combat illegal use of land:
 Urgent court applications to interdict activities which will lead to a court order to suspend the illegal activities;
 Specialized Courts will be instituted for more effective enforcement. Specialized prosecutors will ensure that proceedings will be fast tracked and punishments will be effected in shorter periods of time;
 Property rates will be adjusted according to the Property Rates Act. This means that once an illegal activity is identified, the valuation of the property will be adjusted to the higher value applicable to the land use actually exercised. Based on this value, a penalty rate of 500% of the normal rate is utilized to substantially increase the monthly property tax payable to the council, billed as “Illegal Use of Property”. The property owner’s account is further adjusted to add this amount, backdated from the date when the illegal land use was recorded. Most of the amounts so charged are substantial and often quite unaffordable;
 The City of Tshwane Metropolitan Municipality is in the process of implementing a “Law Enforcement Module”. This is an information system that informs various council departments i.e. Property Evaluation Section, Finance Department, Credit Control and Services Departments. This system will ensure that the necessary action can be taken in a much more coordinated and effective manner, with regards to illegal land uses. This may also ultimately lead to the termination of services to a property, if the above-mentioned adjusted property tax is not paid accordingly.
The severity of the offence will determine which of the above measures or combination of measures to be taken. The different levels of illegal use include cases where the land use has a clear detrimental effect on the surrounding environment and must be terminated immediately, cases where the transgression is against policy but not noxious, and then those that are in line with policies, but failed to obtain the necessary rights through the appropriate application procedure.
It is thus evident that the council is in the process of intensifying action against all illegal land uses. In view of the above, property owners whom are currently not complying, will sooner or later face legal action, harsh financial implications and a possible termination of services. We strongly recommend that property owners take the time to ensure that they are fully aware of their current property rights and utilize their properties legally. In this regard CityScope Town Planners can be of valuable assistance.