DIRECTORATE: LEGAL SERVICES

Transcription

1 DIRECTORATE: LEGAL SERVICES GUIDELINE ON THE ALTERATION, SUSPENSION AND DELETION OF RESTRICTIVE CONDITIONS IN TERMS OF THE KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008 (ACT NO. 6 OF 2008) MARCH 2009 (LS) 2/17/3/LG/3/09 Prepared by: G. L. Roos Tel: (033) Cell: (072) Fax: (033) gert.roos@kznlgta.gov.za

2 1. BACKGROUND The purpose of this document is to provide guidance on the alteration, suspension and deletion of conditions of title from deeds registered in the Deeds Office in terms of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008). 2. DEFINITIONS For the purposes of this document: "municipality" means a metropolitan council or a local municipality; "the Act" means the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2009). 3. COMMENCEMENT OF THE CHAPTER OF THE ACT DEALING WITH THE ALTERATION, SUSPENSION AND DELETION OF CONDITIONS Chapter 6 of the Act provides for the alteration, suspension and deletion of conditions of title and approval. Chapter 6 of the Act was brought into operation with effect from 1 March 2009 (See Annexure A). Other related chapters of the Act were also brought into operation to the extent necessary, including Chapter 8 which provides for the prosecution of a person who develops land contrary to a condition of title, Chapter 9 which provides for the compensation for the alteration, suspension or deletion of a condition of title under certain circumstances and Chapter 10 which provides for the establishment of the KwaZulu-Natal Planning and Development Tribunal which will hear appeals against decisions by municipalities on the alteration, suspension and deletion of conditions of title. The rest of the provisions of the Act will be brought into operation at a later date, probably 1 October Conditions of title were previously altered, suspended or removed in terms of the Removal of Restrictions Act, 1967 (Act No. 84 of 1967) which is repealed by the Act. A restrictive condition of title can also be altered, suspended or deleted by the court, but only if there are no objections. 2

3 4. APPLICATIONS FOR THE ALTERATION, SUSPENSION OR REMOVAL OF RESTRICTIVE CONDITIONS SUBMITTED BEFORE 1 MARCH 2009 Applications for the alteration, suspension or removal of restrictive conditions submitted before 1 March 2009 must be processed as if Chapter 6 of the Act has not commenced, with the exception of applications for the alteration, suspension or removal of restrictive conditions of title which have been deleted by the Act (see 5. of this document). Applications for the alteration, suspension or removal of restrictive conditions of title which have been deleted by the Act will be returned to the applicants with a covering letter explaining that an application is no longer required. 5. CONDITIONS WHICH DO NOT REQUIRE AN APPLICATION IN ORDER TO BE DELETED Some conditions of title are deleted by the Act with effect from 1 March 2009 [section 60(4) read with item 3 of Schedule 5]. These conditions of title have been deleted because there are sufficient other legal instruments which regulate the same subject matter, for example the National Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977), schemes and municipal by-laws. Conditions of title which are deleted by the Act must be in favour of the Administrator, Premier, a MEC or the general public and must prohibit the subdivision of land, restrict the use of a property to one dwelling house, restrict the use of land to residential purposes, prohibit the use of certain building materials for the erection of buildings or require the submission of building plans. Conditions of title in favour of private persons or other entities, including the owner of another property, are not deleted by the Act, irrespective of their scope. It is not always obvious that a condition is in favour of a private person or other entity. The reference to who the condition is in favour of is often contained in an introductory paragraph which precedes the conditions, for example " subject to the restrictive conditions imposed by the owner of the Remainder of Lot XXXXX of the farm XXXX and created under Deed of Transfer XXXXX, namely: " or in a concluding paragraph which follows the conditions, for example "The foregoing conditions shall operate as servitudes over the property hereby transferred in perpetuity in favour of Lot XXXXX". The introductory or concluding paragraph often only contains a reference to the deed under which the conditions were originally created, for example "Subject to the following special conditions created in deed of Transfer XXXXX, and reading: ". The deed under which the conditions were originally created must then be 3

4 studied in order to establish whether or not the condition was in favour of a specific person or entity. Conditions of title in favour of the Administrator, Premier, a MEC or the general public which falls outside the scope of item 3 of Schedule 5 of the Act are not deleted by the Act. It is not necessary for an applicant to make an application in terms of Chapter 6 of the Act to delete a condition of title that has been deleted by the Act [section 60(4)]. However, this does not exempt an applicant from the need to comply with any other laws or legal instruments, including other applications which may be required in terms of the Act or in terms of the Ordinance, the Development Facilitation Act, 1995 (Act No. 67 of 1995), the National Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977), or the provisions a scheme. An authority can ignore a condition of title that has been deleted by the Act when it considers an application in terms of another law or legal instrument. The Registrar of Deeds will remove conditions of title that have been deleted by the Act when a property is transferred. There are also conditions of title which have been deleted by national legislation: (a) Conditions of title with racial connotations were deleted in terms of section 28 of the General Law Amendment Act, 1969 (Act No. 43 of 1999). (b) Conditions of title which required the approval of national government or of a holder of an office in national government before a property can be transferred from one person to another were deleted in terms of section 1 of the Abolition of Certain Title Conditions Act, 1999 (Act No. 43 of 1999). The following conditions of title are excluded: (i) a condition of title imposed under a town planning scheme or a land use control mechanism having the effect of a town planning scheme (not found in schemes in KwaZulu-Natal); (ii) a condition of title which affect rights to minerals; (iii) a condition of title that determines a period during which a piece of land may not be alienated or transferred, if such period has not expired; 4

5 (iv) a condition of title that determines that the ownership of a piece of land will revert to the State if that condition is breached; (v) a condition of title that determines that the State may resume ownership of a piece of land for public purposes; (vi) a condition that establishes a right of pre-emption in favour of the State (right to buy a property before it is offered to someone else); (vii) a condition of title that was imposed as a condition of a permit or authorisation issued in terms of the Water Act, 1956 (Act No. 54 of 1956), before the repeal of that Act by the National Water Act, 1998 (Act No. 36 of 1998); (viii) a condition of title in respect of land owned by the State; and (ix) a condition of title that relates to land of which the holder of the office in question is the nominal owner, holding it in a fiduciary capacity (the land is registered in someone else's name but the State has a right to use the land). 6. SCOPE OF THE ALTERATION, SUSPENSION AND DELETION OF CONDITIONS IN TERMS OF THE ACT Section 60 of the Act limits the alteration, suspension and deletion of conditions as following: (a) Condition must be a condition of title or a condition of approval Chapter 6 of the Act provides for the alteration, suspension and deletion of conditions of title and conditions of approval. Conditions of title are conditions contained in deeds of transfer, certificates of ownership, permission to occupy certificates and other forms of ownership registered in the Deeds Office. Conditions of approval are conditions subject to which an application in terms of the Act was approved. Until the remainder of the Act is brought into operation (1 October 2009 if everything goes according to plan), the only applications that will be approved in terms of the Act are applications for the alteration, suspension and deletion of conditions of title. (b) Condition must be a restrictive condition Most deeds contain both restrictive conditions of title and benefit conditions of title. Restrictive conditions are usually identifiable by words such as "Subject to ", "Onderhewig aan ", "The owner of the lot shall ", "Except " or "No ". The Act may only be used to alter, suspend or delete restrictive conditions. Restrictive conditions of 5

6 title are conditions in the deed of a property which restricts the development of the property. A right of way over a property restricts the development of a property. The Act may therefore be used to remove a right of way in favour of another property. Benefit conditions of title are usually identifiable by words such as "With the benefit of ", "Met die voordeel van " or "With the use of ". Benefit conditions of title are conditions in the deed of a property which restricts the development of another property. A right of way over another property does not restrict the development of a property. The Act may therefore not be used to remove a right of way from which a property benefits. It is not possible to use the Act to "clean up" deeds because it may not be used to alter, suspend or delete benefit conditions of title. (c) Condition must relate to the subdivision of land, consolidation of land, use of land, or the erection of buildings on land Most deeds contain different types of conditions. The Act may only be used to alter, suspend or delete conditions of title which relate to the subdivision of land, consolidation of land, use of land, or the erection of buildings on land. Conditions of this nature are listed in Annexure B. 7. ALTERATION, SUSPENSION AND DELETION OF CONDITIONS (a) Alteration of conditions The Act intentionally uses the word "alter" instead of "amend" or "substitute" which are wider terms. A condition of title should be altered when its needs to be reworded. A condition of title should not be reworded to the extent that it is effectively replaced (see also 5(c) of this document). (b) Suspension of conditions There is seldom a need to suspend a condition of title. A condition of title should be suspended if an action is necessary which is contrary to a condition but the condition cannot be deleted because it is still required in future. For example, a condition of title which prohibits the subdivision of a property can be suspended if a portion of the property is required by the municipality to widen a road. 6

7 (c) Deletion of conditions Most applications in terms of Chapter 6 of the Act will be applications for the deletion of a condition of title. A condition of title must be deleted when an applicant wants to develop or use land contrary to it. Applicants should first check item 3 of Schedule 5 of the Act to see if a condition of title has not already been deleted by the Act (see also 5. of this document). The whole deed should be scrutinised for consequential changes when an application is made for the deletion of a condition of title. For example, when a condition of title that restricts the use of a property is deleted, provisions which reserve the restrictions in favour of a particular person or which create a right of appeal to the Administrator must also be deleted, unless the provisions are also applicable to other conditions which will remain. To replace a condition of title, the condition of title must be deleted subject to the imposition of a more suitable condition of title. 8. PROCESS FOR THE ALTERATION, SUSPENSION OR DELETION OF RESTRICTIVE CONDITIONS (a) Each municipality can develop its own application form for applications. An example of an application form is attached at Annexure C. (b) No application fees are prescribed in the Act. If a municipality wants to charge application fees, it must impose an appropriate tariff in terms of section 74 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000). (c) Part 1 of Schedule 1 of the Act must be followed by a private person or organ of state if it wants to alter, suspend or delete a condition of title. See Annexure D for a flow diagram based on Schedule 1 of the Act. (d) Part 2 of Schedule 1 of the Act must be followed by a municipality if it wants to alter, suspend or delete a condition of title in respect of land which it owns. See Annexure D for a flow diagram based on Schedule 1 of the Act. 7

8 (e) A municipality can request additional information from the applicant [item 1(2)(f) of Schedule 1], including other approvals or consents from other organs of State which a municipality considers necessary in order to consider an application. (f) Specific provision is made for the calculation of days in the Act [section 159]. Days should be calculated by counting the next day as the first day of a period. If an application is received on a Monday, the first day of the period will be the next day i.e. Tuesday. Weekends (non-working days) are included in the period, unless they include public holidays or the last day falls on a weekend. If the last day falls on a weekend, the last day will be the Monday thereafter. All public holidays are excluded, even if they fall on a weekend. (g) It is important that a municipality observe the stipulated time frames as failure to do so can result in an award of damages against a municipality [item 13 of Schedule 1]. 9. GIVING OF PUBLIC NOTICE OF AN APPLICATION FOR THE ALTERATION, SUSPENSION OR DELETION OF A RESTRICTIVE CONDITION (a) A municipality has a duty to consult the public before it makes a decision which affects the public [items 5(1) and 14(1) of Schedule 1]. A municipality must therefore publish a notice inviting the public to comment on an application. (b) It is recommended that the municipality summarise the relevant conditions of title in notices in order to keep the cost of consultation down without compromising the right of the public to be informed of an application and the scope of the application. See the following annexures in this regard: Annexure B: Summary of conditions of title for the purposes of drafting notices inviting public comment and drafting council resolutions Annexure E: Example of alteration of a condition Annexure F: Examples of how to summarise compound conditions or multiple conditions within the same deed Annexure G: Standard wording for notices inviting public comment on an application to alter, suspend or delete restrictive conditions of title 8

9 (c) An applicant can by agreement give notice of an application on behalf of a municipality. A municipality should require proof that notice was given [item 6(2) of Schedule 1]. (d) The manner in which notice may be given is prescribed. See service of documents [section 158]. (e) The period for public comment is 30 days. (f) A site notice is required, unless it is impractical [items 6(4) and 15(2) of Schedule 1]. (g) Notice must be given to all interested parties, including neighbours and other land owners within 100 metres from the boundary of the property, the local municipal councillor, and organs of state [items 6 and 15 of Schedule 1]. Interested parties include bondholders. In the case of an application for the deletion of a condition of title which creates a servitude, interested parties should include all servitude holders, irrespective of the distance of their properties from the property to which the deed relates. (h) Notice can be given to a body corporate or a home owners association instead of individual land owners in the case of apartment buildings, simplexes and duplexes etc. [items 6(1)(b)(i) and 15(1)(b)(i) of Schedule 1] (i) Notice must be given in a newspaper which is distributed in the area concerned [items 6 and 15 of Schedule 1]. A municipality is required to give notice in a newspaper in its official languages, having regard to the language preferences and usage within its area. The language of a notice should be the same as the language of the newspaper in which it is published. (j) If it is impractical to give personal notice to all affected parties or to display a notice on site, a municipality may hold a public hearing instead [items 6(4) and 15(2) of Schedule 1]. It is highly unlikely that the court will accept that it was not practical to give personal notice to all affected parties or to display a notice on site in the case of an application for the alteration, suspension or deletion of a restrictive condition of title. 9

10 (k) The contents of a public notice for an application are prescribed [items 6(2) and 14(2) of Schedule 1]. See also Annexure G. (l) Specific provision is made for petitions and correspondence with groups [items 7 and 16 of Schedule 1]. A municipality must interact with the authorised representative of the group or, if it does not have an authorised representative, with the person whose name appears first of the list of names. 10. ASSESSMENT OF APPLICATION BY A PROFESSIONAL PLANNER OR TECHNICAL PLANNER (a) A professional planner or technical planner who is registered with the South African Council for Planners must assess applications for the alteration, suspension or deletion of conditions of title and certify that due procedure has been followed [section 63]. The professional planner or technical planner can be an official or a consultant employed by the municipality. The professional planner or technical planner's report must be in writing. The report must be considered within the time allowed for the municipality to make a decision (see Annexure C). (b) A professional planner or technical planner who certifies that an application complies with the Act when it is defective is guilty of a criminal offence and can be charged for misconduct by the South African Council for Planners [section 88]. 11. MATTERS WHICH MUST BE CONSIDERED WHEN CONSIDERING AN APPLICATION The matters which must be addressed in the report of the professional planner or technical planner are stipulated in the Act [section 64]. The report does not have to address matters which are not relevant to a particular application. Where a property is within the area of a scheme, the scheme often regulates the same matter as the conditions of title [section 64(k)] in which case the conditions of title can usually be removed. However, schemes are general instruments which treat all properties of a specific zoning the same. A specific arrangement is sometimes made by way of a condition of title. For example, a wider building line may be required in order to increase the sight distance at a busy intersection and in so doing promote road safety. 10

11 12. DECISION ON AN APPLICATION A municipality may approve or refuse an application. A municipality may approve an application subject to conditions. A municipality may delegate the power to decide application [section 156]. If the power to decide applications has not been delegated to the professional planner or technical planner, the professional planner or technical planner must make a recommendation to the council, committee or person to who the power to decide applications has been delegated. The municipality must record the reasons for every decision that it makes in terms of the Act. See Annexure H for standard wording for resolutions to approve and refuse applications. 13. PERSONS WHO MUST BE NOTIFIED OF A DECISION The municipality must notify the applicant and everyone who commented on an application of its decision [section 66]. The municipality does not have to provide reasons for its decision or the conditions subject to which an application was approved, unless it is requested to do so [section 66(3)]. 14. APPEAL AGAINST DECISION The applicant of a person who commented on an application may appeal against the decision of the municipality. The appeal process is contained in Chapter 10 of the Act [sections 113 to 124]. See Annexure I for a flow diagram of the appeal process. 15. EFFECTIVE DATE OF DECISION A decision on an application comes into effect upon expiry of the appeal period (28 days after the decision was taken) or upon the finalisation of the appeal, if an appeal was lodged. 16. SUBMISSION OF DOCUMENTS TO REGISTRAR OF DEEDS An applicant must submit a copy of the resolution of the municipality to approve an application signed by the municipal manager, a certificate issued by the municipality certifying that the conditions of approval that have to be complied with before a condition of title may be altered, suspended or deleted, and a copy of the relevant deed to the Registrar of Deeds [section 69]. The Registrar of Deeds can request additional documents from the applicant, if necessary. 11

12 17. ENFORCEMENT It is a criminal offence to develop, subdivide or consolidate land contrary to a restrictive condition [section 75]. If irreparable harm will not be caused to land or buildings, the municipality must serve a contravention notice on the offender [section 79(1)], informing the offender that the activity is illegal and giving the offender time to discontinue the illegal activity. If the illegal activity is continued, the municipality must serve a prohibition order on the offender and prosecute the offender in a court of law. If irreparable harm will be caused to the land or buildings, the municipality must serve an urgent prohibition order on the offender [section 84(1)], obtain an interdict to prevent the illegal activity, and prosecute the offender in a court of law. A municipality can regularise an existing illegal development by subsequently approving and application for the alteration, suspension or deletion of a condition of title which prohibits the development. A municipality must impose a penalty of between 10% and 100% of the value of the illegal buildings or land use when it regularises an illegal development [section 89(3)]. The municipality's approval lapses if the penalty is not paid in full with 28 days. A municipality may only enter upon land for the purposes of the Act with the consent of the land owner or occupier of the land [section 91(1)]. If the consent of the owner or occupier cannot be obtained, or if the purpose of the inspection will be frustrated if the owner or occupier had prior knowledge thereof, the municipality must obtain a warrant from the magistrate of the district. 18. COMPENSATION The Act provides for compensation where a person has suffered loss or damage as a result of the alteration, suspension or deletion of a restrictive condition [section 97]. A person who wants to claim compensation must prove loss or damage, a mere loss of a right is not sufficient. A person who has suffered loss or damage must claim compensation within three years directly from the person who was the owner of the land when the application was approved. An example of when compensation may be payable is where a person has to establish a new access road to a property as the result of the deletion of a condition of title which created a servitude. 12

13 12 Maart 2009 Ule Prov~nstale Koerant van KwaZulu-Natal PROVINCIAL NOXICESPROVINSIALE KENNISGEWINGS-IZAZISO ZESIFUNDAZWE The iollowing notices are published for general information. DR K B MBANJWA D~rector-General 300 Langaiihatele Street Langal~balelestraat 300 P~eierinariizburg Pietermar~tzburg 12 March Maart 2009 Onderslaande kerinisgewings word vis algemene iriligring aeoubiiseer. - C)R K B MBANJMIA Direkteur generaai izaz~so eziiandelayo z~kh~sheiwe ulwaz~ lukawonkewonke 300 Langalibaiele Street Pie?erma<itzburg 12 kundasa 2009 DKT. K, R. MBANJWA umqondisi-jikelele No March 2009 DEPARTMENT OF LOCAL GOVERNMENT AND TWDITIONAL AFFAIRS COMMENCEMENT OF PROVISlONS OF THE WmULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008 In terms of section 164 of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), I determine that Chaptefs 6,10 and 11, item 15 of Schedule 2 and Schedule 5 of the Acl and Chaptern 1,8,9 and 12 and Schedule 1 of the Act in as far as it relates to the alteration, suspension and deletion of rmtdclions relating to land; the KwaZulu-Natal Planning and Development Appeal Tribunal and provincial planning and development norms and standards come into operation on 1 March M. MABUYAWULU, MEC: Local Government, Housing and Traditional Affairs Date: 11 Febmary 2009 No kundasa 2009 UKUQALISWA WEZIHLINZEKO ZOMTHETHO WOKUHLELA NENTUTMUKO WAKWBZULU-NAIALI, 2008 Ngokwesigaba I64 somthetho wokuhlela nenluu~uko wakwazulu-natali, 2008 (umutetho No. 6 ka 2008), nginquma ukuihi izahluko no 17, uhlarnvr~ 15 iohlelo 2 katiye nowlelo 5 IoMthetho kanye nezaliiuko 1, 8, 9 no 12 kanye nohlelo 1 lomthetho njengoba ziphethelene nokuguquk, nokumisw kanye nokususwa kwszilhibelo eziphathelene nomhlaba; nesigungu Sokudluiisa lzikhalazo Zokutilela Nentuthuko sakwazlllu- Nateli nezinhlelo zesifundame kanya nokuihuthukiswa kwazinkambiso nemigamo zboqala ukusebenza mhla lu- 1 kundasa MNU. M. MABUYAKHULU iiungu IoMkhandiu ophethe etibhekele ohulumeni bezindawo, ezaindiu kanye nezendabuko IJsuku: I 1 unhlolanja

14 ANNEXURE B SUMMARY OF CONDITIONS OF TITLE FOR THE PURPOSES OF DRAFTING NOTICES INVITING PUBLIC COMMENT AND DRAFTING COUNCIL RESOLUTIONS BUILDING RESTRICTIONS CONDITION No building or structure shall be placed on the said land within 7 metres of the boundary line of any road. * No building of any kind shall be erected on the lot unless the walls thereof are constructed of burnt brick, stone or concrete or of other permanent and fireproof material, provided that a building, structure or fence of iron or asbestos sheeting or similar material fixed to a framework of wood or metal shall not be permitted. All roofs must be of tiles unless XXXXX agrees otherwise. No fence shall be of such nature as would be likely in the bona fide opinion of XXXXX, to depreciate the value of any adjoin property. No building or structure shall be placed on the said land until plans and location of the same have been submitted and approved by XXXXX. No buildings shall be erected on the property until the plans, elevation, height and siting thereof have been approved in writing by the owner of XXXXX. No buildings other than outbuildings shall be erected on any of the lots fronting to the back lanes. Outbuildings should not be allowed except on the back lanes. Only single storey buildings may be erected on the lot. Except with the Consent of the Administrator no building may be erected on the lot unless provision is made for parking facilities for motor vehicles on the lot in the ratio of one (1) parking space for every eight (8) seats included in the main building on the lot. SUMMARY Condition of title that imposes a building line. Condition of title in favour of XXXXX that prohibits the use of certain building materials for the construction of buildings. Condition of title in favour of XXXXX that prohibits the use of certain building materials for the construction of buildings. Condition of title in favour of XXXXX that prohibits the use of certain building materials for the erection of fences. Condition of title in favour of XXXXX that requires the submission of building plans to XXXXX for its approval. Condition of title in favour of XXXXX that requires the submission of building plans to XXXXX for his or her approval. Condition of title that prohibits any outbuildings from facing the back lane. Condition of title that only allow outbuildings to be erected at the back of the property Condition of title that imposes a maximum building height. Condition of title that imposes parking requirements. *Condition deleted by the Act, unless it is in favour of a specified person, including the owner of a property, or an entity, including a municipality. 14

15 LAND USE CONDITION * No row of tenement house, semidetached house, boarding house, hotel or block of residential flats and not more than one dwelling house, together with such outbuildings as are ordinarily used in conjunction therewith shall be erected on the land without the consent of the Administrator. * Except with the consent of the Administrator, the lot shall not be used for purposes other than residential purposes. * Only one entirely detached residence with the necessary outbuildings will be allowed on the lot. No building shall be constructed on the said Lot, added to or altered so as to permit it being used as a block of flats or residential chambers, but the erection of two double storey houses each of which consist of two residences separately occupied shall be permitted. The land shall be used for trade or business purposes only. The lot may not be used for trade or business purposes of any kind whatsoever. The property shall not be used either in whole or in part for the purpose of carrying on any business, trade, industry, vocation or calling. No restaurant shall be erected on the lot nor shall the business of a boarding house be conducted thereon. Except with the consent of the Administrator, no trade, business or industry other than farming operations is to be conducted on the land. Except with the consent of the Administrator the lot shall not be used for purposes other than religious purposes or purposes incidental thereto. Except with the consent of the Administrator the lot shall not be used for any purpose other than a Nursery School in terms of the town planning scheme. No restaurant shali be erected on the lot nor shall the business of a restaurant be conducted thereon.. SUMMARY Condition of title in favour of XXXXX that restricts the use of the property to one dwelling house. Condition of title in favour of XXXXX that restricts the use of the property to residential purposes. Condition of title in favour of XXXXX that restricts the use of the property to one dwelling house. Condition of title that restricts the use of the property to two double storey houses. Condition of title that restricts the use of the property to business purposes. Condition of title that prohibits the use of the property for business purposes. Condition of title that prohibits the use of the property for business purposes. Condition of title that prohibits the use of the property as a restaurant or a boarding house. Condition of title that restricts the use of the property to agricultural purposes. Condition of title that restricts the use of the property to a place of worship. Condition of title that restricts the use of the property to a Nursery School. Condition of title that prohibits the use of the property as a restaurant. * Condition deleted by the Act, unless it is in favour of a specified person, including the owner of a property, or an entity, including a municipality. 15

16 LAND USE (continued) CONDITION No bar, canteen or hotel for the sale of wines, malt or spirituous liquors shall be carried on, conducted or erected on the said lot. The property shall not be used for purposes other than parking and public conveniences by the local authority. The property transferred shall not be used other than for the construction of roads. INFRASTRUCTURE Adequate sanitary conveniences shall in each case be erected or provided for on the property if any building or structure intended for human habitation or use is placed thereon and shall be of the nature and type approved by XXXXX The owner of the lot shall, without compensation, be obliged to permit the deposit of material or excavation on the lot as may, in connection with the formation of any street in the township and owing to differences in the level between the lot and the street, be deemed necessary. SERVITUDES The owner of the lot shall, without compensation, be obliged to permit the erection, laying and maintenance of electric wires and water supply piping over or under the lot along any boundary thereof within a distance of 2 metres from such boundary. XXXXX, reserve in perpetuity the right without being required to pay compensation therefore by themselves or others to lay, erect and maintain and use cables, lines and pipes on or over the said land. The owner of the lot shall, without compensation, be obliged to permit the erection, laying and maintenance of electric wires and water supply piping over or under the lot along any boundary thereof within a distance of 2 metres from such boundary. SUMMARY Condition of title that prohibits the use of the property for the sale of liquor. Condition of title that restricts the use of the property to parking or public conveniences. Condition of title that restricts the use of the property to road purposes Condition of title in favour of XXXXX that requires the approval of XXXXX for sanitary systems. Condition of title permitting depositing of materials on the property and the excavation of the property for the purposes of road construction. Condition of title that creates a servitude for the construction of infrastructure. Condition of title in favour of XXXXX to create servitudes for the construction of infrastructure. Condition of title that creates a servitude for the construction of infrastructure. * Condition deleted by the Act, unless it is in favour of a specified person, including the owner of a property, or an entity, including a municipality. 16

17 SERVITUDES (continued) CONDITION XXXXX, reserve in perpetuity the right without being required to pay compensation therefore by themselves or others to lay, erect and maintain and use cables, lines and pipes on or over the said land. Subject to a sewer and drain servitude represented by the figure a,b,c,d,e on diagram SG. No in favour of XXXXX. The transferee shall not grant any servitude or right of way or any right of access over the said property. Subject to a servitude in restraint of free alienation whereby Lot XXXXX and Lot XXXXX shall not be alienated, transferred, leased, mortgaged or otherwise dealt with, the one separate from the other. SUBDIVISION OF LAND * The lot shall not be subdivided without the consent of the Administrator. No subdivision of the land shall be permitted of an area of less than 1000 square metres. The transferee shall have no right to subdivide the lot into more than four lots. OTHER Any dwelling house erected on the property hereby transferred shall be used solely for the purpose of a private dwelling and shall not be let out or used in separate portions.the Foregoing conditions shall operate as servitudes over the property in favour of XXXXX. The transferee shall not use the property hereby transferred or any portion thereof or any buildings erected thereon for the purpose of advertising or displaying any advertising. SUMMARY Condition of title in favour of XXXXX to create servitudes for the construction of infrastructure. Condition of title that creates a sewer servitude in favour of XXXXX. Condition of title in favour of XXXXX that prohibits the creation of a access servitude. Restraint on free alienation. The properties are tied by means of a notarial deed. The restriction should be removed by agreement to cancel the Notarial Deed in Restraint of Free Alienation. Condition of title that prohibit the subdivision of the property. Condition of title that imposes a minimum lot size. Condition of title that restricts the subdivision of the property to four sites. Condition of title in favour of XXXXX that prohibits the letting of the property or occupation of the building by more than one household. Condition of title that prohibits the use of the property to display advertisements. * Condition deleted by the Act, unless it is in favour of a specified person, including the owner of a property, or an entity, including a municipality. 17

18 ANNEXURE C EXAMPLE OF AN APPLICATION FORM APPLICATION FOR THE ALTERATION, SUSPENSION OR DELETION OF A RESTRICTIVE CONDITION OF TITLE IN TERMS OF THE KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008 (ACT NO. 6 OF 2008) INSTRUCTIONS The form must be completed in block capitals or typewritten (1) Deed number (2) Conditions to be suspended, altered or deleted (lettered or numbered in the deed, or page number and line number if conditions are not lettered or numbered) (3) Registered property description (3) Physical address of the property (4) Name of the registered owner of the property 18

19 (5) Contact details of the registered owner of the property (4) Name of the applicant (if the applicant is not the registered owner of the property) (5) Contact details of the applicant (if the applicant is not the registered owner of the property) DECLARATION I hereby certify that the information supplied by me, including the documents attached to this application form is correct. Signature of Applicant Date: 19

20 (6) Checklist for documents that must be attached, mark with a or X if applicable and attached or NA if not applicable: Proof of payment of application fee (see the XXXXX Municipality's tariffs) Locality plan showing the location of the property in relation to the surrounding properties and streets (property lot numbers must be indicated) and the nature of the existing development surrounding the property Copy of the deed Copy of the Surveyor General diagram or relevant part of the general plan a copy of the deed in which the condition was originally created, if it was originally created in another deed and carried forward when the parent property was subdivided Certified copy of the resolution by the Board of Directors, if the applicant is a company Registered owner's written consent, if the applicant is not the registered owner of the property Name and contact details of the bondholder, if any Names and contact details of owners of land within 100m from the boundary of the property, or of the chairperson of a body corporate or of chairperson of a home owners association representing the owners of land within 100m from the boundary of the property Names and contact details of all the servitude holders, if the application is for the suspension, alteration or deletion of a condition of title which creates a servitude in favour of another property Copy of the development plan, including a site plan and floor plan, if the use of the property is not regulated by a town planning scheme Motivation for application with reference to the matters which a municipality must consider as contemplated in section 64 of the Act, including the following matters: (i) the potential impact of the proposal on the environment, socio-economic conditions, and cultural heritage; (ii) the impact of the proposal on existing or proposed developments or land uses in the vicinity, or on existing developmental or mineral rights; (iii) the protection or preservation of cultural and natural resources, including agricultural resources, unique areas or features and biodiversity; (iv) any prejudice to be caused by the proposal, to any person, including an engineering service provider, a mortgagee, a holder of a servitude right, or a lessee in terms of a registered lease; (v) the general principles for land development as stated in section 3 of the Development Facilitation Act, 1995 (Act No. 67 of 1995), and other national norms and standards, frameworks and policies contemplated in section 146(2)(b) of the Constitution; (vi) the land use and development norms or standards; (vii) the municipality s integrated development plan; (viii) the municipality s scheme and the regulation of the same subject matter in the scheme or in a by-law; and (ix) any other relevant information 20

21 APPLICATION PROCEDURE FOR APPLICANTS ANNEXURE D Application Yes 28 Days to record application and acknowledge receipt thereof Complete No 28 Days to record application, acknowledge receipt thereof and request further information 14 Days to prepare public notice 90 Days or longer period agreed for applicant to submit additional information Give 30 days public notice of application Yes Comments received No 7 Days to submit comments to applicant Yes No 21 Days to respond Public hearing 14 Days decide if public hearing required Yes No Public hearing within 60 days 30 days to make decision (Consider report and recommendation by a registered planner) 60 days to make decision (Consider report and recommendation by a registered planner) 21

22 PROCEDURE FOR MUNICIPALITY IN RESPECT OF LAND WHICH IT OWNS Proposal Give 30 days public notice of application Yes Comments received No Municipality respond to comments Yes No 28 Days to respond Public hearing 21 Days to decide if public hearing required Yes No Public hearing within 60 days 90 Days to make decision (Consider report and recommendation by a registered planner) 22

23 ANNEXURE E EXAMPLE OF ALTERATION OF A CONDITION to alter condition of title XXXXX of Deed XXXXX pertaining to Erf XXXXX as following: Explanatory note: [ ] Words in bold type in square brackets indicate omissions. Words underlined with solid line indicate insertions. No building or structure of any kind whatsoever shall be erected on the erf unless the walls thereof are constructed of burnt brick, stone, concrete, or of other permanent and fireproof material approved by the [local authority] municipality [; provided that a building, structure or fence of iron or asbestos sheeting or similar material fixed to a framework of wood or metal shall not be permitted, nor shall the roof of any building be constructed of iron or asbestos sheeting]. ANNEXURE F EXAMPLES OF HOW TO SUMMARISE COMPOUND CONDITIONS OR MULTIPLE CONDITIONS WITHIN THE SAME DEED 1. Compound condition ".of conditions A1 that restricts the use of the property to residential purposes, prohibits the use of certain building materials for the construction of buildings and imposes a building line..." 2. Multiple conditions within the same deed ".of conditions A1, B1 and C1 that restricts the use of the property to residential purposes, prohibits the use of certain building materials for the construction of buildings and imposes a building line..." 23

24 ANNEXURE G STANDARD WORDING FOR NOTICES INVITING PUBLIC COMMENT ON AN APPLICATION TO ALTER, SUSPEND OR DELETE RESTRICTIVE CONDITIONS OF TITLE 1. Notice for alteration of condition of title KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON ALTERATION OF CONDITION OF TITLE An application has been received in terms of section 61(2) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), to alter condition of title XXXXX of Deed XXXXX pertaining to Erf XXXXX as following: Explanatory note: [ ] Words in bold type in square brackets indicate omissions. Words underlined with solid line indicate insertions. " " Comments, which may be submitted by fax, or mail must be submitted to XXXXX, Tel: XXXXX, Fax: XXXXX, XXXXX@XXXXX, P. O. Box XXXXX by XXXXX 200X. The Municipality may refuse to accept comments submitted after the closing date. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X 24

25 2. Notice for suspension of condition of title KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON SUSPENSION OF CONDITION OF TITLE An application has been received in terms of section 61(2) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), to suspend condition of title XXXXX of Deed XXXXX pertaining to Erf XXXXX which XXXXX. Comments, which may be submitted by fax, or mail must be submitted to XXXXX, Tel: XXXXX, Fax: XXXXX, XXXXX@XXXXX, P. O. Box XXXXX by XXXXX 200X. The Municipality may refuse to accept comments submitted after the closing date. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X File reference: XXXXX 3. Notice for deletion of conditions of title from a single deed KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON DELETION OF CONDITIONS OF TITLE An application has been received in terms of section 61(2) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), for the deletion of conditions of title XXXXX from Deed XXXXX pertaining to Erf XXXXX which XXXXX. Comments, which may be submitted by fax, or mail must be submitted to XXXXX, Tel: XXXXX, Fax: XXXXX, XXXXX@XXXXX, P. O. Box XXXXX by XXXXX 200X. The Municipality may refuse to accept comments submitted after the closing date. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X File reference: XXXXX 25

26 4. Notice for deletion of multiple conditions of title KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT, 2008: INVITATION TO COMMENT ON DELETION OF CONDITIONS OF TITLE Applications have been received in terms of section 61(2) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), for the deletion of conditions of title. Comments, which may be submitted by fax, or mail must be submitted to the persons mentioned in the Schedule by XXXXX 200X. The Municipality may refuse to accept comments submitted after the closing date. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X SCHEDULE The figures used in brackets have the following meanings: (1) = Street address, property description, registration division (2) = Deed, condition, file reference (3) = Scope of deletion (4) = Contact person (5) = Contact details (1) XXXXX, XXXXX, Registration Division XXXXX (2) XXXXX, XXXXX, XXXXX (3) Removal of condition of title that XXXXX (4) XXXXX (5) Tel: XXXXX, Fax: XXXXX, XXXXX@XXXXX, P. O. Box XXXXX (1) XXXXX, XXXXX, Registration Division XXXXX (2) XXXXX, XXXXX, XXXXX (3) Removal of condition of title that XXXXX (4) XXXXX (5) Tel: XXXXX, Fax: XXXXX, XXXXX@XXXXX, P. O. Box XXXXX 26

27 ANNEXURE H STANDARD WORDING FOR MUNICIPAL RESOLUTIONS TO ALTER, SUSPEND OR DELETE RESTRICTIVE CONDITIONS OF TITLE 1. Alteration of condition of title ALTERATION OF CONDITION OF TITLE, DEED XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to alter condition of title XXXXX of Deed XXXXX pertaining to Erf XXXXX as following: Explanatory note: [ ] Words in bold type in square brackets indicate omissions. Words underlined with solid line indicate insertions. " " XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X Council Resolution: XXXXX of XXXXX File reference: XXXXX 27

28 2. Suspension of condition of title SUSPENSION OF CONDITION OF TITLE, DEED XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to suspend condition of title XXXXX of Deed XXXXX pertaining to Erf XXXXX which XXXXX. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X Council Resolution: XXXXX of XXXXX File reference: XXXXX 3. Deletion of single condition of title DELETION OF CONDITION OF TITLE, DEED XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to delete condition of title XXXXX from Deed XXXXX pertaining to Erf XXXXX which XXXXX. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X Council Resolution: XXXXX of XXXXX File reference: XXXXX 4. Deletion of single condition of title subject to conditions SUSPENSION OF CONDITION OF TITLE, DEED XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to delete condition of title XXXXX from Deed XXXXX pertaining to Erf XXXXX that XXXXX, subject to the following conditions: (a) That. You may appeal to the Planning and Development Appeal Tribunal against the decision of the Municipality within 28 days in terms of section 67(1) of the Act. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X Council Resolution: XXXXX of XXXXX 28

29 File reference: XXXXX 5. Deletion of multiple conditions of title DELETION OF CONDITIONS OF TITLE, DEED XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to delete conditions of title XXXXX from Deed XXXXX pertaining to Erf XXXXX which XXXXX, XXXXX and XXXXX. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X Council Resolution: XXXXX of XXXXX File reference: XXXXX 6. Deletion of multiple conditions from multiple deeds DELETION OF CONDITIONS OF TITLE, DEEDS XXXXX, XXXXX and XXXXX In terms of section 65(1) of the KwaZulu-Natal Planning and Development Act, 2008 (Act No. 6 of 2008), the XXXXX Municipality resolved to delete the restrictions set out in the Schedule. XXXXX (initials and surname in bold uppercase), Municipal Manager: XXXXX Municipality Date: XX XXXXX 200X Council Resolution: XXXXX of XXXXX SCHEDULE The figures used in brackets have the following meanings: (1) = Street address, property description, registration division (2) = Deed, condition, file reference (3) = Scope of deletion (1) XXXXX, XXXXX, Registration Division XXXXX (2) XXXXX, XXXXX, XXXXX (3) Removal of condition of title that XXXXX (1) XXXXX, XXXXX, Registration Division XXXXX (2) XXXXX, XXXXX, XXXXX (3) Removal of condition of title that XXXXX 29