WHALE COAST CONSERVATION - EMS Foundation

Comment on the Proposed Overstrand Municipality Amendment By-Law on Municipal Land Use Planning 2019 and Associated Documents

Comment on the Proposed Overstrand Municipality Amendment By-Law on Municipal Land Use Planning 2019 and Associated Documents

A COPY OF A LETTER FROM WHALE COAST CONSERVATION TO THE OVERSTRAND MUNICIPALITY:

Whale Coast Conservation (WCC) has considered the above documentation and has serious reservations in a number of areas.

Once again, WCC wishes to bring to the Overstrand Municipality’s attention our serious concerns regarding the:

Definition in the Overstrand Municipality Land Use Scheme, 2019 of “Open Space Zone I: Nature Reserve” and its application to protected and conservation-worthy land in the area, and
Overstrand By-Law on Municipal Land Use Planning 2015 Section 72, defining the composition of the Municipal Planning Tribunal.

The following aspects also need consideration:

Section 51 of the Overstrand By-Law on Municipal Land Use Planning 2015;
Grammatical errors in the By-Law:
Various definitions in the Overstrand Municipality Land Use Scheme, 2019
An obscure statement in the Environmental Management Overlay ScheduleTEL +27 28 316 2527 FAX 086 695 0046 CELL +27 72 185 5726
E-MAIL greenhouse.wcc@gmail.com WEBSITE www.whalecoastconservation.org.za Green House, R43 Vermont, Hermanus PO Box 1949 Hermanus South Africa 7200

PBO 18/11/13/4541 NPO 020-771

1 ZONING OF OVERSTRAND’S NATURE RESERVES

The Fernkloof Nature Reserve (FNR) has an exceptional level of biodiversity that is well documented and world renowned. It is a biodiversity hotspot within a larger area of extreme conservation concern. As such, it is so worthy and indeed needful of protection that the reserve’s core area warrants classification as a “wilderness area” as defined inSection 26 of the National Environment Management: Protected Areas Act (NEM:PAA). The functions of a NEM:PAA wilderness area are defined as:

(a) to protect and maintain the natural character of the environment, biodiversity, associated natural and cultural resources and the provision of environmental goods and services;
(b) to provide outstanding opportunities for solitude;
(c) to control access which, if allowed, may only be by non-mechanised means.

The land use zone associated with FNR needs to be aligned with this section of NEM:PAA. If the Municipality does not ensure this it will be in dereliction of its greater duty to the protection of the area’s unique environment.

WCC pointed out in the public participation process for the drafting of the original integrated zone scheme regulations that the model zone scheme regulations given by the Western Cape Department of Environment and Development Planning (DEA&DP) provides a description for an appropriate zone for FNR. This is Conservation Zone 1: Wilderness Area (CON1). The description aligns well with the NEM:PAA wilderness area and reads as follows:

Objective

The objective of Conservation Zone 1: Wilderness Area, is to provide for the conservation of predominantly natural, remote and environmentally unspoilt areas. Such areas may be proclaimed nature areas or may not be proclaimed, but in either case the range of permitted uses is extremely limited.

Use of Property
12.1.1 The following use restrictions apply to property in this zone: (a) Primary use is: wilderness conservation
(b) Consent uses are: none.

Management Provisions

12.1.2 An environmental management plan shall be prepared to the satisfaction of the Management Agency.

12.1.3 The Management Agency, in consultation with the Council, shall determine the land use restrictions and the management provisions for the property based on the objectives of this zone, the particular circumstances of the property and in accordance with an approved environmental management plan.

The DEA&DP model zone regulations offers three conservation zone descriptions, namely CON1, CON2 and CON3. The Overstrand OS1: Nature Reserve zone which gives its highest level of protection aligns most closely with DEA&DP’s CON3 which offers the least protection for a conservation area. This is a travesty given the undisputed environmental value of FNR in particular, as well as other land that also has unique biodiversity and scenic beauty within the Overstrand.

In addition and in the interests of promoting tourism to the area, the Municipality should be encouraging landowners to rezone undeveloped land, especially that above the 120 m contour line, to zones equivalent to DEA&DP’s CON2 and CON3. Tragically short-sighted planning does not provide local zones that align with the DEA&DP model and this land thus also remains unprotected and undervalued.

It is strongly recommended that the Municipality incorporates DEA&DP’s CON1, CON2 and CON3 models into its zone scheme regulations. The entire core area of FNR should be zoned as CON1 and the Cliff Path and other areas of FNR should be zoned as CON2 and CON3 as appropriate.

MEMBERSHIP OF THE OVERSTRAND MUNICIPAL PLANNING TRIBUNAL (MPT)

The Overstrand MPT comprises of municipal employees and a single (non-municipal) employee of DEA&DP. This meets the minimum legal requirement of the Spatial Planning and Land Use Management Act (SPLUMA) and Section 3(2)(a) of its regulations. In complying with the minimum requirements, the Overstrand municipal administration has been able to avoid the participation of civil society representation on the MPT as well as the requirement to advertise vacancies on the MPT.

As a result of this minimum compliance the MPT is totally dominated by municipal employeeswhoareunderthecontrolofthemunicipalmanager. Thereisno representative voice of any sectoral interest group such as environmental, heritage, business or tourism. The workings of the Tribunal are therefore obscure to the general population of the area. This is clearly not in the spirit of SPLUMA, which allows in regulation 3(2)(a) for broad participation from the following, with only the prescription of competence in spatial planning being a requirement for eligibility:

(a) an official or employee of-

(i) any department of state or administration in the national or provincial sphere of government;

(ii) a government business enterprise;
(iii) a public entity;
(iv) organised local government as envisaged in the Constitution;
(v) an organisation created by government to provide municipal support; (vi) a non-governmental organisation; and
(vii) any other organ of state not provided for in subparagraph (i) to (iv).

(b) an individual in his or her own capacity.

Section 72 of the municipal by-law should require that if only one non-Overstrand municipal employee is to be allowed as a member of the MPT, then that position must be filled by a local person with the necessary competence drawn from civil society, following advertising of the vacancy. Ideally there should be representation on the Tribunal of a range of civil society interests, including the environment, business and tourism.

It is strongly recommended that the Municipality amends the by-law to recognise the need for transparency and broader local civil society participation in the MTB in the spirit of SPLUMA and the interests of good governance.

3 OBSERVATIONS
3.1 By-Law on Municipal Land Use Planning 2015 Section 51
Section 51 sets out requirements by the Municipality for a petition to be accepted.

Section 51(a)(ii) requires that a list of details must be provided for at least two specified people, including their facsimile numbers, but not their email addresses. Facsimile numbers are no longer in common use, and this requirement should thus be for either facsimile numbers or email addresses according to the preference of those providing the details.

Section 51(a)(iv) and (v) presumably only apply to the two specified people referred to in 51(a)(ii) but is somewhat ambiguous. It could be interpreted that (iv) and (v) apply to every person signing the petition, which would be unreasonable. The wording should be changed to make the requirement clear.

Section 51(2) says “Any written notification by the municipality to petitioners shall be regarded as sufficient if such notification is sent to persons contemplated in sections 50(1)(f) and 51(1)(a)(ii).” 50(1)(f) does not relate to petitions so presumably should not be included here.

3.2 Grammatical errors

53(1) insert a comma after “submit a petition”
58(1) contains “…may not exceed than 12 months” “than” should be deleted.

64(1) contains “…does not change its decision or results in an…” … “results” should be “result”.

66(g) replace “;” with “:” at the end of the section

3.3 Definitions in the Zoning/Land Use Scheme Amendments

“Environmental Impact Assessment”: The definition should be in accordance with NEMA and NEMA regulations that provide listings of activities that trigger an EIA.

“Hobby”: the definition is clumsy, unnecessarily complicated and needs rewording, viz. “hobby” means an activity done regularly in one’s leisure time for pleasure, not related to a commercial venture and excluding activities creating noise, health hazards and nuisance;

“Home Occupation”: the definition is clumsy and needs rewording.

“renewable energy structures”: The definition is confusing. It suggests that only those that are erected for commercial use fall within the definition, but then ends a long and convoluted sentence with “may lead to the generation of energy on a private or commercial basis.” The definition is clumsy and confusing and needs rewording.

3.4 Environmental Management Overlay Schedule obscurity

Under the heading “Management Plans for NEM:BA Invasive Alien Species” the Environmental Management Overlay Schedule states “Overstrand Municipality may request access to IAS plans from that are required for all State Land, from Government Departments responsible for land, where such State Land falls within an EMOZ.” Please reword thisimpenetrable sentence to make its meaning clear so that it can be considered.

IN CONCLUSION

1. The Overstrand zone description for conservation areas is unacceptable as it offers inadequate protection for FNR and other conservation-worthy land in the Overstrand.

The CON1 to CON3 zones defined in the DEA&DP model zone scheme regulations must be incorporated in place of the OS1: Nature Reserve as part of the current amendment process. If the proposed zones are not changed to concur with the DEA&DP model zones this will remain a key concern. It can be expected to be a stumbling block to acceptance of any proposed management plan for FNR.

In the interests of transparency and good governance the membership of the Overstrand MPT needs to include members of civil society interest groups. The by-law must ensure that this is a requirement.
Ambiguity and errors in sections 51, 53, 58, 64 & 66 need to be clarified and corrected.
Identified definitions need to be reworded for clarity.

Kindly confirm receipt of this submission. Regards

Rob Fryer General Manager

THE LETTER IS IN RESPONSE TO THIS NOTICE:

OVERSTRAND MUNICIPALITY

Draft Amendments to the By-Laws Relating to Municipal Land Use Planning 2015

The public is in terms of section 12 of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000) invited to submit representations in connection with the proposed amendments of the by-law to the Municipality by submitting such representation on or before 2 December 2019 to the Municipal Manager (For attention Mr. Lionel Wallace) at the under mentioned address or fax number.

The proposed amendments to the by-law will be available for perusal during office hours at the office of the Area Managers in Gansbaai, Stanford, Hermanus and Kleinmond, in all the public libraries in the Overstrand and the Corporate Head Office of the municipality in Hermanus, as well as the official website at www.overstrand.gov.za

Persona who cannot write can visit the Area Managers in Gansbaai, Standford, Hermanus or Kleinmond during office hours where such persons will be assisted to transcribe their comments or representations. The designated officials for the different municipal areas are as follows:

Gansbaai, Stanford: F Myburgh

Hermanus: D Kearney

Kleinmond: D Lakey

C GROENEWALD

MUNICIPAL MANAGER

Overstrand Municipality

P.O. Box 20

HERMANUS

7200

Fax Number: 028 313 8931

Notice Number: 118/2019

EXAMPLE OF LETTER THAT CAN BE USED TO SUPPORT WCC’S COMMENTS:

You are encouraged to consider the WCC’S points and to use the pro forma letter and to add your own comments. If you decide to support the WCC’S submission, please attach it to your letter of support and include in your own letter your name and full contact details:

Municipal Manager FAO: Mr Lionel Wallace

Overstrand Municipality

PO Box 20

Hermanus 7200

Email: cgroenewald@overstrand.gov.za

CC: lwallace@overstrand.gov.za

Dear Messrs Groenewald and Wallace

DRAFT AMENDMENTS TO OVERSTRAND MUNICIPALITY’S BY-LAW ON MUNICIPAL LAND USE PLANNING AND ASSOCIATED DOCUMENTS

I align myself fully with all the points made in Whale Coast Conservation’s comment on the above draft amendments, attached hereto, and wish these to be registered as my individual comments as well.

[PLEASE PROVIDE YOUR FULL NAME AND CONTACT DETAILS]