By Joubert Galpin Searle Associate - Phiwokuhle Ncanywa
Knowing and understanding the correct and permitted use of land or property is essential, particularly from a business perspective, whether it be purchasing a property in order to extend your current trade, or relocating to a new and desirable location.
Zoning is widely used as a town planning tool in South Africa. The Nelson Mandela Bay Metropolitan Municipality (The “NMBMM”) is the local authority responsible for administering matters relating to land use and property development in the area.
In the context of the NMBMM area Zoning Scheme Regulations (“the Regulations”), zoning or zone means a category of directions setting out the purpose for which land may be used and the land-use restrictions applicable in respect of the said category of directions. The term “use” includes the use of land as well as the erection of a building on land.
Use with special consent from the Council
There are regulated prohibitions on using and permitting the use of buildings for a purpose other than that for which the building has been erected. However, there are exceptions to the prohibitions such as:
1. If the use conforms with the provisions of the Regulations; and
2. The necessary Consent has been obtained from the council of the City.
Land Development Application
In circumstances where the property is zoned differently to the intended or desired use, a Land Development Application must be submitted in order to obtain the consent of the Council to use the property for a use that is not the primary use as per the property’s Use Zone, or to re-zone the property completely to a new Use Zone.
Example 1: ABC (Pty) Ltd operates a professional consultancy service business on Erf 173 Cape Road, which is zoned Business 3 and the property is permitted to be used (primary use) for Offices under Business 3 zoning. ABC (Pty) Ltd wishes to expand the business operation and open a small restaurant for on-site consumption of food, which is a secondary use under Business 3 zoned properties. ABC (Pty) Ltd must submit a Land Development Application to obtain the Special Consent of the Council to be permitted to operate the restaurant on the property.
Example 2: ABC (Pty) Ltd operates a professional consultancy service business on Erf 173 Cape Road, which is zoned Business 3 and the property is permitted to be used (primary use) for Offices under Business 3 zoning. ABC (Pty) Ltd wishes to now use the property to erect and operate an art gallery (Place of Instruction). An art gallery is not a secondary use listed and permitted under Business 3 zoning and as a result ABC (Pty) Ltd cannot obtain the special consent for such a use. Therefore, ABC (Pty) Ltd must re-zone the property from a Business 3 Use Zone to a Business 2 Use Zone which permits the operation of an art gallery (Place of Instruction) as a primary use.
The respective Land Development Application must be submitted in accordance with the necessary procedures as set out by the Special Planning and Land Use Management Act, 16 of 2013 (“SPLUMA”) read together with the relevant provisions of the regulations and in line with the procedures implemented by the NMBM.
Using land contrary to permitted Use Zone
Using a property other than for its primary use under the Use Zone of that property or its permitted secondary use (with the special consent of the Council) is prohibited.
It is a contravention of the regulations to use any building which does not conform to the provisions of the regulations and it is also a contravention of the regulations to erect any building when there has been a refusal by the Council.
All landowners and users of land within the Municipal area are bound by the provisions of the Zoning Scheme Regulations and SPLUMA. Land may be used only for the purposes permitted by the regulations.
A person is guilty of an offence if that person uses land contrary to the permitted land use as contemplated in the regulations and may be sentenced to a term of imprisonment for a period not exceeding 20 years, or to a fine, or to both a fine and such imprisonment.