Residents of eThekwini and the surrounding areas are familiar with the “green” areas within the city such as Pigeon Valley, Burman Bush and Beachwood, all of which form part of a broader network of green areas within the city limits known as the Durban Metropolitan Open Space System (D’MOSS).
The D’MOSS system sought to identify areas of environmental significance for providing, among a host of other amenities, ecosystem goods and services and has historically been applied as a policy within the Municipality’s land use and planning operations.
In 2010 however the city passed a resolution to adopt D’MOSS as a formal part of the current town planning schemes, which form part of our law. The impact on private land owners is that land within the D’MOSS overlay is subject to development restrictions to maintain its environmental integrity. These restrictions prompted certain land owners to challenge the Municipality’s competence to legislate on matters that were of an environmental nature.
Our Constitution allocates certain legislative powers, (the ability to draft laws) to particular spheres of government. Thus Schedule 4A specifies National and Provincial areas of competence which specifically include the “environment”. Under schedule 4B Municipalities are empowered to legislate on issues related to “municipal planning”.
The property owners applied to the Durban High Court to have the Municipality’s resolution in respect of D’MOSS set aside on both procedural and constitutional grounds, arguing that municipalities were not given powers under the Constitution to legislate on environmental grounds as this is a National and Provincial competence. The Municipality contended however that to divorce environmental issues from that of municipal planning would not enable municipalities to provide a safe and healthy environment, as they are mandated to do under the Municipal Systems Act, or to comply with their duties under the National Environmental Management Act and other environmental legislation.
The court examined the development of the concept of municipal planning and its relation to the environment and ultimately found that the power of municipalities to regulate the environment at a local level has long since been recognised and that it would be “inconceivable that the drafters of the Constitution intended by the manner in which the Constitution was framed, to exclude municipalities altogether from legislating in respect of environmental matters at a local level”. This decision is significant for both the eThekwini Municipality, in the light of the growing ambit of municipal planning, and for property owners where land is subject to restrictions. For now D’MOSS is here to stay.
An appeal has been noted in this judgment.