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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