Home Loan Talk – Land Use Control

Private Property South Africa
Denise Simpson

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:
  • Single residential
  • General residential
  • Business
  • Industrial
  • Commercial
  • Special
  • Educational
  • Municipal
  • Agricultural
  • Public open space
  • Private open space

Scheme clauses, by utilising the following methods of control, limit the usage of a property by its owner:

  • Floor area ratio (FAR). This is also referred to as the 'bulk factor'. It indicates the total floor space that may be built on a property. The floor area ratio is obtained by dividing the gross floor area of the building by the area of the property i.e. house size (200 sqm) / plot size (800 sqm) = floor area ratio (0.25)
  • Coverage is expressed as a percentage of the total area of a piece of land, which may be covered by buildings. There could be a restriction that for every 1000sqm of land, only 350sqm may be covered by buildings. This concept is often referred to as the "footprint" for obvious reasons.
  • Height refers to the number of storeys that are permitted on a property. This can be expressed in the number of storeys or as the height above ground level in metres.
  • Density Zones control the number of properties that are allowed in an area, which are controlled in a number of ways:
    • Minimum erf size
    • erf units per hectare
    • A combination of FAR coverage and height
  • Building line restrictions are imaginary lines, which generally run parallel to the borders of a property, wherein buildings are not permitted to be erected.

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.

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