Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013)RegulationsSpatial Planning and Land Use Management Regulations: Land Use Management and General Matters, 2015SchedulesSchedule 4 : Standard Agreement for the Establishment of a joint Municipal Planning Tribunal |
AGREEMENT
FOR THE ESTABLISHMENT OF A JOINT MUNICIPAL
PLANNING TRIBUNAL
Concluded by and between:
MUNICIPALITY 1
Demarcation Code . . . . . . . . . . . . .
(Herein represented by . . . . . . . . . . . . . . . . . . . . . . . . . , in his/her capacity as Executive Mayor of
Municipality 1 and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , in his/her capacity as Municipal
Manager)
(Hereinafter referred to as " . . . . . . . . . . . . . . . . . . . . . . . . ")
AND
MUNICIPALITY 2
Demarcation Code . . . . . . . . . . . . .
(Herein represented b y . . . . . . . . . . . . . . . . . . . . . . . . . in his/her capacity as Executive Mayor of
Municipality 2 and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in his/her capacity as Municipal
Manager)
(Hereinafter referred to as " . . . . . . . . . . . . . . . . . . . . . . . . ")
WHEREAS the Spatial Planning and Land Use Management Act, 16 of 2013 makes provision in section 34(1) for the establishment of a joint Municipal Planning Tribunal to determine land development and land use applications;
AND WHEREAS the Parties have undertaken an assessment as contemplated in regulation 2 of the Regulations;
AND WHEREAS the Parties are desirous to conclude an agreement to establish a joint Municipal Planning Tribunal to jointly consider and decide the land development and land use applications submitted to their respective municipalities;
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
The headings of the clauses in this Agreement are for the purposes of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.
In this Agreement, unless a contrary intention clearly appears:
| 1.1 | Words importing— |
| 1.1.1 | any one gender includes the other gender; |
| 1.1.2 | the singular includes the plural and vice versa; and |
| 1.1.3 | natural persons include created entities (corporate or non-corporate) and vice versa. |
| 1.2 | If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the interpretation clause. |
| 1.3 | When any number of days is prescribed in this Agreement, it shall be reckoned exclusively of the first and inclusively of the last day. |
| 1.4 | The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have a corresponding meaning, namely: |
| 1.4.1 | "commencement date" means the date of publication of the notice referred to in clause 4.8 irrespective of the date of signature hereof; |
| 1.4.2 | "notice" means a written notice; |
| 1.4.3 | "Parties" mean the parties to this Agreement identified herein; |
| 1.4.5 | "the Act" means the Spatial Planning and Land Use Management Act, 16 of 2013 and the Regulations issued thereunder; |
| 1.4.6 | "the Regulations" means the Spatial Planning and Land Use Management Regulations: Land Use Management and General Matters, 2015. |
| 2. | FUNDING |
| 2.1 | The Parties shall make provision in their respective budgets to jointly fund the cost of proceedings of the joint Municipal Planning Tribunal, the remuneration of members appointed to it and any other necessary operational costs, on an annual basis. |
| 2.2 | There will be no transfer of funds between the Parties. |
| 2.3 | Each Party shall be responsible to fund the extent of considering and deciding those categories of applications that shall be heard by an authorised official as contemplated in section 35(2) of the Act. |
| 2.4 | All funding is subject to the approval of the municipal councils of the Parties. |
| 2.5 | In the event of the one of the municipal councils not approving funding, it shall result in the termination of this Agreement. |
| 3. | DURATION |
| 3.1 | This Agreement commences on the commencement date. |
| 3.2 | This Agreement shall terminate— |
| (a) | on the date that the term of office of the members of the joint Municipal Planning Tribunal expires as referred to in clause 4.7; |
| (b) | when one of the municipal councils does not approve funding as contemplated in clause 2.5; |
| (c) | when one of the Parties terminates the Agreement by giving six months' notice of its intention to withdraw from this Agreement. |
| 4. | ESTABLISHMENT OF THE JOINT MUNICIPAL PLANNING TRIBUNAL |
| 4.1 | Composition of the joint Municipal Planning Tribunal |
| 4.1.1 | The joint Municipal Planning Tribunal shall consist of at least 15 members made up as follows: |
| (a) | three officials in the full-time service of Municipality 1; |
| (b) | three officials in the full-time service of Municipality 2; |
| (c) | two persons registered as a professional with the South African Council for the Planning Profession in terms of the Planning Profession Act, 36 of 2002; |
| (d) | two persons registered as a professional with the Engineering Council of South Africa in terms of the Engineering Profession Act, 46 of 2000; |
| (e) | two persons registered as a chartered accountant with a recognised voluntary association or registered in terms of the Auditing Profession Act, 26 of 2005; |
| (f) | two persons either admitted as an attorney in terms of the Attorneys Act, 53 of 1979 or admitted as advocate of the Supreme Court in terms of the Admission of Advocates Act, 74 of 1 964; and |
| (g) | an environmental assessment practitioner registered with a voluntary association; |
| (h) | any other person who has knowledge and experience of spatial planning, land use management and land development or the law related thereto. |
| 4.1.2 | In addition to the criteria determined in subclause 4.1.1 the persons referred to in paragraphs (c) to (g) must have knowledge and experience of spatial planning, land use management and land development or the law related thereto. |
| 4.2 | Invitations and nominations to serve on the joint Municipal Planning Tribunal |
The Parties shall jointly issue an invitation and a call for nominations for persons referred to in clause 4.1.1(c) - (g) to serve on the joint Municipal Planning Tribunal in the manner and form provided for in the Spatial Planning and Land Use Management Regulations: Land Use Management and General Matters, 2015.
| 4.3 | Joint evaluation panel |
| 4.3.1 | The Parties shall constitute a joint evaluation panel from employees in the full time service of the Parties to evaluate all nominations received, whether due to an invitation or call for nominations. |
| 4.3.2 | The joint evaluation panel of the Parties shall evaluate all nominations received and make recommendations to the municipal councils of the Parties including a recommendation with regard to the chairperson and deputy chairperson. |
| 4.4 | Appointment of members |
| 4.4.1 | Each municipal council shall evaluate the recommendations of the joint evaluation panel referred to in clause 4.3 and appoint such persons who qualify for appointment as members of the joint Municipal Planning Tribunal subject to all the terms and conditions of appointment to and serving on the joint Municipal Planning Tribunal referred to in the Act and the Regulations. |
| 4.4.2 | The Parties shall jointly inform the successful nominees of their appointment to the joint Municipal Planning Tribunal. |
| 4.5 | Officials in the full-time employ of the Parties to serve on joint Municipal Planning Tribunal |
| 4.5.1 | The Parties shall designate three officials each to serve on the joint Municipal Planning Tribunal and shall delegate the necessary authority to these officials. |
| 4.5.2 | The Parties shall review and amend the contracts of service of the officials designated to serve on the joint Municipal Planning Tribunal. |
| 4.6 | Appointment of the chairperson and deputy chairperson |
| 4.6.1 | The chairperson and the deputy chairperson of the joint Municipal Planning Tribunal shall be appointed by the Parties from the ranks of the officials referred to in clause 4.1 (a) and (b). |
| 4.6.2 | The term of office of the chairperson and the deputy chairperson shall be for a period of one year calculated from the commencement date of this Agreement. |
| 4.6.3 | For the first year of its existence, the chairperson shall be from Municipality 1 and the deputy chairperson shall be from Municipality 2. |
| 4.6.4 | For the second year of its existence, the chairperson shall be an official from Municipality 2 and the deputy chairperson shall an official be from Municipality 1 and for every year thereafter, the office of the chairperson and deputy chairperson shall so alternate. |
| 4.7 | Term of office |
The term of office of members of the joint Municipal Planning Tribunal shall be five years calculated from the commencement date of this Agreement.
| 4.8 | Publication of notice |
When the joint Municipal Planning Tribunal is ready to commence operations, the municipal managers of the Parties, shall jointly publish the notice referred to in section 37(4) of Act.
| 5. | APPLICATIONS TO BE CONSIDERED AND DECIDED BY THE JOINT MUNICIPAL PLANNING TRIBUNAL |
| 5.1 | The Parties shall, in accordance with the criteria determined in the Regulations, categorise land development and land use applications in a corresponding manner. |
| 5.2 | The Parties shall refer such categories of applications determined by them to the joint Municipal Planning Tribunal. |
| 5.3 | The joint Municipal Planning Tribunal shall exercise and perform and the powers, duties and functions of a Municipal Planning Tribunal referred to in the Act, the relevant provincial legislation and the by-laws of the Parties. |
OR IN THE ALTERNATIVE
| 5.1 | All land development and land use applications shall be heard by the joint Municipal Planning Tribunal. |
| 5.2 | The joint Municipal Planning Tribunal shall exercise and perform and the powers, duties and functions of a Municipal Planning Tribunal referred to in the Act, the relevant provincial legislation and the by-laws of the Parties. |
| 6. | SEAT OF THE JOINT MUNICIPAL PLANNING TRIBUNAL |
| 6.1 | The meetings of the joint Municipal Planning Tribunal shall be held at the offices of the Municipality in whose employ the chairperson is for that particular year. |
OR IN THE ALTERNATIVE
| 6.2 | The meetings of the joint Municipal Planning Tribunal shall be held at the offices of the Municipality. |
OR IN THE ALTERNATIVE
| 6.3 | The meetings of the joint Municipal Planning Tribunal shall be held at the offices of the municipality in whose municipal area the land which the land development or land use application that must be considered and determined by the Municipal Planning Tribunal relates to, is located. |
| 7. | SUBMISSION OF APPLICATIONS |
| 7.1 | A land development and land use application referred to in clause 5.2 shall be submitted by an applicant to the municipality in whose municipal area the land to which the application relates, is located. |
| 7.2 | The municipality in whose municipal area the land to which the application relates, is located, shall undertake all the required public participation procedures, intergovernmental participation procedures and internal procedures. |
| 8. | DESIGNATION OF MEMBERS TO CONSIDER AND DETERMINE AN APPLICATION |
| 8.1 | On receipt of an application referred to in clause 7.3, the joint Municipal Planning Tribunal shall evaluate the application and decide on the knowledge and skills required to consider and determine the application and designate the necessary members to so consider and determine that application, including the presiding officer. |
| 8.2 | The joint Municipal Planning Tribunal shall nominate no less than three members to consider and decide an application. |
| 9. | APPOINTMENT OF TECHNICAL AND OTHER ADVISERS |
| 9.1 | The Parties shall establish and maintain— |
| (a) | a database of public sector technical and other advisers; and |
| (b) | a database of private sector technical and other advisers. |
| 9.2 | The Parties shall before publication of the notice referred to in clause 4.8— |
| (a) | in writing request the employer of an official or employee referred to in regulation 11(2)(a) to make that official or employee available on an ad hoc basis for technical and other support before that official or employee is placed on the database of public sector technical and other advisers; and |
| (b) | publish an invitation in one newspaper circulating in the municipal areas of the Parties for persons referred to in regulation 11(2) to be registered on the database of private sector technical and other advisers and may determine conditions for incorporation into that database. |
| 9.3 | The chairperson shall appoint technical and other advisers to assist the joint Municipal Planning Tribunal per application that it has to consider and determine, if necessary. |
| 9.4 | The chairperson shall first consider appointing an adviser from the database of public sector technical and other advisers and only if there is no such adviser available or no adviser available with the requisite knowledge and skill, shall the chairperson consider an adviser from the database of private sector technical and other advisers. |
| 9.5 | The municipality is whose full-time service the chairperson is, is responsible to remunerate that technical or other adviser for services rendered to the joint Municipal Planning Tribunal, if that adviser is not a public service official. |
| 10. | ASSETS |
| 10.1 | The joint Municipal Planning Tribunal shall not acquire any assets or incur liabilities and shall not employ any staff. |
| 10.2 | The municipality is whose full-time service the chairperson is, shall provide the necessary assets and designate staff to assist the joint Municipal Planning Tribunal and shall be responsible for any other operational requirements of the joint Municipal Planning Tribunal. |
OR IN THE ALTERNATIVE
| 10.2 | The Parties shall jointly provide the necessary assets and designate staff to assist the joint Municipal Planning Tribunal and are jointly responsible for any other operational requirements of the joint Municipal Planning Tribunal. |
| 11. | LIAISON BETWEEN THE PARTIES |
The Parties agree to liaise through the following persons or their successors, duly authorised
by the Parties:
| For Municipality 1 : | The Municipal Manager |
| Phone number: | .................................... |
| Fax number: | .................................... |
| For Municipality 2: | The Municipal Manager |
| Phone number: | .................................... |
| Fax number: | .................................... |
| 12. | DISPUTES |
| 12.1 | Any dispute which arises between the Parties in connection with the interpretation of or giving effect to this Agreement shall be resolved amicably through consultation and negotiation. |
| 1 2.2 | Should a dispute remain unresolved, the provisions of the Intergovernmental Relations Framework Act, 1 3 of 2005 shall apply in the absence of specific dispute resolution measures prescribed by the Act. |
| 13. | LIMITATION OF LIABILITY |
Notwithstanding anything contained in this Agreement, the Parties' maximum liability shall be limited to—
| (a) | an act or omission of the authorised official referred to in section 35(2) of the Act; and |
| (b) | the act or omission of a member of the joint Municipal Planning Tribunal in the year that the Party is responsible for the operational expenses of the joint Municipal Planning Tribunal as contemplated in clause 10.2. |
OR IN THE ALTERNATIVE
Notwithstanding anything contained in this Agreement, the liability of Municipality 1 shall be limited to—
| (a) | an act or omission of the authorised official referred to in section 35(2) of the Act; and |
| (b) | an act or omission of a member of the joint Municipal Planning Tribunal. |
| 14. | ENTIRE AGREEMENT |
| 14.1.1 | This Agreement constitutes the entire agreement and supersedes any and all previous agreements regarding this subject matter that may exist between the Parties. |
| 14.1.2 | No representations, either verbal or written, made by either party during the tenure of this Agreement shall be of any force or effect unless agreed to by both Parties, reduced to writing, and annexed hereto, as an addendum. |
| 15. | NO WAIVER |
The failure of either Party to insist upon the strict performance of any provision of this Agreement or to exercise any right, power or remedy consequent upon a breach hereof shall not constitute a waiver by such Party to require strict and punctual compliance with each and every provision of this Agreement.
| 16. | NOTICES AND DOMICILIUM |
| 16.1 | The Parties choose as their domicilia citandi et executandi the following addresses:- |
THE MUNICIPALITY
For the Municipality
Address
THE MUNICIPALITY
For the Municipality
Address
| 16.2 | Either party hereto shall be entitled from time to time by written notice to the other party, to vary its domicilium to any other physical address. |
| 16.3 | Any notice required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing and if received or deemed to have been received by the addressee. |
| 16.4 | Any notice given by one party to the other, referred to as the addressee, which— |
| (a) | is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved, to have been received by the addressee at the time of delivery; |
| (b) | is posted by prepaid registered post from an address to the addressee at the addressee's domicilium for the time being, shall be presumed, until the contrary is proved, to have been received by the addressee on the day after the date of posting; |
| 17. | AUTHORITY |
The Parties confirm that they have the necessary authorisation to sign this Agreement on behalf of the applicable Party.
18. SIGNATURES
THUS DONE AND SIGNED BY MUNICIPALITY 1 AT ON THIS DAY OF 2015.
FOR MUNICIPALITY 1
SIGNATURE |
WITNESS FOR MUNICIPALITY 1
SIGNATURE |
FULL NAME OF SIGNATORY
|
FULL NAME OF SIGNATORY |
THUS DONE AND SIGNED BY MUNICIPALITY 2 AT ON THIS DAY OF 2015.
FOR MUNICIPALITY 1
SIGNATURE |
WITNESS FOR MUNICIPALITY 1
SIGNATURE |
FULL NAME OF SIGNATORY |
FULL NAME OF SIGNATORY |