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DA's road to corruption: Cape Town's Municipal Planning Tribunal

In part 2 of my article of the DA's road to ANC's corruption, I look at Cape Town’s Municipal Planning Tribunal, a corrupt political tool that benefits the DA’s developer friends

 The City of Cape Town’s Municipal Planning Tribunal (MPT) adjudicates urban planning applications in terms of the Municipal Planning By-law 2015. However, its pro-development decisions are consistent with the DA-run city’s development friendly “red-carpet approach to development”.

 Its decisions are based on political pro-development considerations and its members are from development disciplines and city employees acting to promote the city’s agenda.

 Invariably reasons for approval are that there would be purported social benefits and allegedly no/negligible negative impacts.

 MPT doesn’t examine the merits of objections and all facts equally; relies upon developer applicants’ tendentious and naturally positive assessments and doesn’t objectively consider negative impacts.

 Last, it doesn’t consider planning legislation and policies in toto but only those the applicant and city/MPT consider a shoe-in for supporting the decision, i.e. sections of laws and policies that moderate or deny development are ignored.

 Application of laws and policies

 The Municipal Planning By-law (MPBL) and city deem developers have preeminent rights over the status quo. It is in fact more difficult to uphold the status the law protects than to obtain planning approval which is a tick-box exercise for developers and city. The bar for rezoning, title deed removal and departures ought to be high as the status is protected by local and national legislation and policies. Instead, objectors and residents must justify why developments may have negative impacts.

 The problem with the planning approval process is that adjudicators – municipalities generally and Cape Town in particular – are pro-development for political and secondary reasons like increasing the municipality’s revenue base. Environmental, cultural and social reasons and protecting the status quo are optional, and with the City of Cape Town, frowned upon – the executive has been combative to objectors.

 Developers need not provide objective, independent impact assessments to get applications approved. Rather, they typically make false, tendentious, unsupported and questionable assertions of alleged benefits without having to prove them. And by default the city/MPT believes them a priori.

 MPT accepts their assertions despite objections from residents on the grounds of increase in vagrancy, litter, crime, traffic, etc and residents moving away as a result. Usually potential negative impacts are not speculative guesses but factual and based on problems with similar developments.

 Contrary to universal legal precepts, the onus is on objectors to prove legislation and policies protecting the status quo are relevant, needed and development might violate the extant order should it proceed. This has been proven in Cape Town by court challenges and community objections with Princess Vlei, Philippi Horticultural Area, Bo-Kaap, etc which the MPT too approved.

 Applicants and MPT selectively quote or misapply policies to further objectives so that development can proceed. These include Municipal Planning By-law, Municipal Spatial Development Framework, Cape Flats District Plan, Economic Growth Strategy, Social Development Strategy, Land Use and Spatial Planning Act and Land Use Management Act, Urban Design Policy (nine objectives) and Transit Orientated Development Strategic Framework. 

 However, they are silent when these moderate, limit or prohibit development like the Urban Development Plan’s objective 9 that mentions respect for the character and identity of a neighbourhood and Municipal Planning By-law the social, economic and other impacts and compatibility with surrounding uses.

 Alleged socio-economic benefits

 As a rule developers say, with MPT’s concurrence, there shall be “socio-economic (social and economic) benefits” and allegedly “no negative impacts”. Typically they provide no independent consultants’ assessment or on other aspect like safety and security, health, traffic, solid waste, socio-cultural and economic and one is expected to believe them just because they say so. 

 They also like to claim developments will “increase affordable accommodation near public transport opportunities”.

 In South Africa affordable accommodation is understood to mean social and gap housing. Units in areas developers target – middle class and business districts – sell from R800 000. Rent would be in excess of R6 000 a month depending on size of unit. This is not affordable.

 In their records of approval the MPT accepts developers’ claims at face value and do not interrogate them. However, they reject objections from residents and affected parties despite the facts of the potential harm developments might cause.

 Traffic impacts

 Developers and MPT gloss over are traffic impacts. While developments may provide sufficient parking for users, MPT does not consider impact of traffic on surrounding residents. Developments may cause higher traffic volumes to and through neighbourhoods. Ludicrously, in some cases they state that increased traffic is a “socio-economic benefit”.

 Invariably applicants do not present a consultant’s traffic assessment (usually they don’t present assessments on any aspect). The city’s Transport Department approves plans without investigating the flow either.

 But this absence of knowledge and often deliberate ignorance of observable facts the ostrich position is one citizens are familiar with when dealing with the city.

 Benefits versus negative impacts

 Applicants and MPT treat applications as zero sum – all benefits and no negative impacts.

 Various laws and policies that speak about the same matter, in this case urban development, are treated like a buffet: only those that promote the development agenda are mentioned while those that prohibit or moderate (unconstrained) development are ignored or excluded from the selection.

 It is so too with the approved Rokeby Road application. Brümmer and MPT, making a selection to their liking from the legislative buffet, speak of “rights”, “create [benefits, e.g. investment and other]”, “social benefits to removing [others’, e.g. objectors/residents’] rights” [sic], benefits of “mixed use”, “optimal”, etc while choosing to ignore inconvenient facts that contradict the development narrative.

 This approach is contrary to the just general application of laws and just administrative action in that all laws and policies speaking of the same matter must be met, not only those sections the user decides is expedient.

 The zero sum in urban planning is that the developer is assumed to have preeminent rights and the city benefits while residents and the status quo are disadvantaged first, by the city often ignoring community objections; second, by the city not protecting the status quo the laws exist to enforce and, third, existing residents losing to and being affected by negative impacts in perpetuity.

 What then is the purpose of planning and zoning laws and policies if they are easily overturned and city and adjudicating agencies can be bribed (Brümmer proposes paying a “development contribution”). Extraordinary “considerations” like these go to the city, not residents affected during construction and after. Residents are always the ones to bear the cost while the city and developer benefit from the rewards.

 Development are often out of character with the immediate area (UDP, objective 9) and not compatible with surrounding uses (MPBL 2015) and the size and scale dwarfs anything nearby

 But contrary to the principle of independent adjudication, MPT deliberately focuses on the city’s economic and social development strategies at the expense of appropriate local development and social and spatial justice.

The Holy Grail of putative economic development, and tacitly for the city, rates income is pursued. Economics (including profits for the developer) and not inequality and spatial justice (Land Use Planning Act), is pursued.

 Inducement and influence to approve application: “economy before people”

 The city’s pro-development approach influences the MPT to approve applications over credible objections and not without substantial conditions and restrictions. Among the public it’s suspected, and there is anecdotal evidence for this, anonymous small owners’ plans are rejected or made to pass through hoops while others, including those who have already begun development without plans and approval, are permitted to proceed on payment of a “fine” in some cases, others without any sanction depending on the personal influence they have with Development Planning.

 The DA-run city is no stranger to controversy concerning its party political agenda in favour of development, its “red-carpet approach”.

 Developers via their planning consultants explicitly say they are prepared to pay a development contribution to mitigate the potential adverse impacts of the proposal”.

 Contradictorily, they explicitly stated there are no negative impacts of any kind to proposed developments. But they are prepared to pay the city to have these overlooked! All three states – positive impacts, neutral impacts and negative impacts – cannot be true at the same time about the same thing.

 Yet, defying the facts, rationality, process and the applicant’s own words, MPT rules there are no, or minimal, impacts despite presentation of significant evidence of potential problems should the development proceed as planned.

 At times MPT’s record of approval mentions specific benefits but in a vague sentences dispenses with possible disadvantages, disadvantages it considers a necessary evil and one the city, which expediently doesn’t have remit over social welfare and policing, says residents must put up with for the alleged “greater good”. 

 But the only good here is to the developer’s and city’s bank accounts and the few outsiders who would benefit, not the thousands residents who live nearby. So what greater good and for whom does MPT mean?

 This attitude of the “economy before people”, which applicants softly and MPT bluntly say, is that of the rightwing which often is offensively expressed in far-right media and social media, particularly now during the pandemic.  But this is no surprise because this is the political agenda of the DA-run city which voters would do well to remember.

 What MPT ought to do as its legal duty is examine and interrogate the good and bad including anti-social behaviour and social, traffic and other problems that already exist in area and would propagate with the developments.  Instead they accept developers’ false statements problems would not exist or that the developer can control it should the proposal proceed.

 It’s already known and clear from this decision MPT is biased for development. The expectation of the development contribution influenced the decision too – more revenue for city (neither care residents will bear the financial and social costs of questionable and undesirable developments).  In a slightly different context this payment can be called a “bribe” and the inducement “corruption” which section 4 of the Prevention and Combating of Corrupt Activities Act inter alia defines as acting in a “biased” manner by voting at a meeting of a public body.  MPT is such a body and also votes on decisions, unanimously.

 Members of MPT are not officers of the court.  They take no oath of office to swear to uphold the Constitution. Instead they are bureaucrats and consultants appointed by the city’s political executive which congregated development decisions under its purview and which are at mercy to its political agenda and patronage.

 However, ironically this week about another matter DA federal executive chairwoman and former Western Cape premier and Cape Town City mayor Helen Zille said “the Constitution must be defended not amended” which the DA-run city and Western Cape province does not do.

 In general the DA in government amends and softens laws and policies to benefit developers, business and farming and special interests, particularly party donors. The notorious “Zille slaughter irons” a case in point – CapeNature and WC government extended predator culling at the behest of donor farmers. And the DA and Zille herself were implicated in improper activities – interfering in a criminal case where government officials were accused that Zille refused to investigate, and influencing the WC Education Department to grant her son a contract. This does not speak of defending the Constitution but shitting on it.

 Consequently, the MPT’s decisions show they are compliant to the wishes of the city’s (and national) DA political executive. To achieve this they selectively use facts, laws and policies that support their narrative but dispense with those that detract.  I believe it was not accidental, which would make them incompetent and lack knowledge about their role, but deliberate.

 Conclusion: MPT’s faulty decisions reek of the DA’s political agenda

 The purpose of a tribunal is to fairly hear evidence from both, or all, sides and make a decision based on that evidence. However, it is clear MPT hear applicants to the exclusion of objectors. Their decisions refer to various purported real and imagined benefits including where applicants provide no evidence for it or make it up on the fly.

 MPT makes mistakes of fact, policy and procedure, and is not independent and objective. They ignore or minimise real and potential negative impacts – traffic, loitering, etc – that speaks of its bias, misinterpretation and selective use or abuse of the body of laws and policies that apply to sustainable urban design, deliberately ignored inconvenient truths and went with the alternative facts of alleged benefits presented by the developer and city’s/MPT’s own pro-development agenda.

 MPT reeks of the DA-run city’s political agenda rather than an unbiased arbitration panel. As such, it’s indistinguishable from their bureaucratic and political arms.  Ultimately, it is a corrupt tool for the benefit of the DA’s developer donors.

 

 

 

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