LAND USE CONTROL
When purchasing property with an eye to its expansion or development, it is important to note that there are many potential restrictions with regards to the use of that property. You may, for example, not be permitted to convert a home into a playschool, build a second storey or decide to extend your home without permission from the correct authority.
Title Deed Restrictions
A property cannot be sold in contravention of a title deed restriction. For
example, in terms of a will - if a minor is bequeathed a property, and there is
a restriction that says property cannot be sold before the heir reaches a
certain age. This type of restriction is registered against the title deed of
the property, and any sale of the property contrary to the will shall be deemed
null and void. The conveyancing attorney is responsible for checking this prior
to any transactions being made against the title deed.
A more common type of title deed restriction is when a property developer
registers restrictive conditions against the title deeds of erven within a
development, restricting the use of each of the erven. For example, there could
be limitations on design, house size and roof covers. This type of restriction
is very common for golf estates and gated communities.
A
scheme map restricts the erven within an area to use zones:
Scheme clauses, by utilising the following methods of control, limit the usage of a property by its owner:
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Guide Plans
A guide plan is a broad outline for determining land use patterns for the future
development of a region. These guide plans specify areas within a region that
will cater for industrial development, commercial development, residential
establishment, farmland, recreational areas, etc. A property may not be utilised
by the owner for any purpose which is contrary to the guide plan.
Urban Structure/Development Plans
The larger local authorities should each have a structure, development or policy
plan specifying the land use patterns for an entire town or city, or parts
thereof. It should set out where shops, offices and residential development can
take place.
Town Planning Schemes
Every local authority has a town planning scheme, which is devised for the
purpose of providing for the general welfare and attractiveness of the
environment. The scheme should consist of both a scheme map and scheme clauses,
which sets out limitations and controls for the usage of property in an area:
Removal of Restrictions
It is possible to have a title deed description removed in terms of the Removal
of Restrictions Act 84 of 1967. Applications for the removal of title deed
restrictions are normally dealt with on behalf of the property owner by an
attorney or town planner.
Rezoning can be more involved and the success of an application depends on the
following:
The town planning scheme
The structure/development plan
The need for re-zoning
The desirability of the rezoning
The environmental impact of the rezoning
The precedent set by the rezoning
The opportunities/restrictions relating to the property
Acceptability of proposal to adjacent residents and civic associations
A rezoning application generally takes around 6 to 12 months to be processed and
involves the following steps:
Preparation of motivation or application for rezoning by applicant
Advertising of the application, calling for comments from the public
Replying to comments and objections
Consideration of application by the local town planning department
Referral of the application if required to other town council departments
Referral of the application to the council committee
Referral to provincial authority on appeal
In conclusion, the variables in land use control are vast. If any questions or
queries on land use are required, it is prudent to refer these to a
professional; a town planner, the local municipality or an attorney.
