Possible impacts of the Draft Preservation and Development of Agricultural Land Framework Bill on the geomatics profession

Possible impacts of the Draft Preservation and Development of Agricultural Land Framework Bill on the geomatics profession by Melissa Akoue Mve, Department of Rural Development and Land Reform Abstract The Department of Agriculture, Forestry and Fisheries (DAFF), has long wanted to replace the Subdivision of Agricultural Land Act 70 of 1970 with a more comprehensive piece of legislation that would protect agricultural land by more than just controlled subdivisions. With the ultimate goal of maintaining and improving South Africa s food security, while supporting the land reform policies of the DRDLR, it is felt that agricultural land should have legally binding land use restrictions and be protected in various degrees according to its cropping potential. The department has since released the Draft Preservation and Development of Agricultural Land Framework Bill which, once enacted by the President, will repeal the whole of the Subdivision of Agricultural Land Act 70 of 1970 (SALA). The bill is complex in its classifications of agricultural land and processes of application for subdivision and rezoning. The purpose of this paper is to discuss the sections of the bill which will affect the geomatics profession and to present the comments and concerns brought forward by various representatives in the industry. A comparison between the PDALFA bill and SALA is provided in this paper. The comparison is used to identify the improvements and challenges which the bill will introduce should it be implemented. The concerns and comments of the South African Geomatics Institute (SAGI), and some of the Surveyor General Offices, have been included in the discussion of any significant changes. Introduction At present, agricultural land is governed by the Subdivision of Agricultural Land Act 70 of 1970 (SALA). This is a seven page document which simply states that any land not declared or proclaimed to be a township by specified legislation is considered to be agricultural land, and that if any person wishes to subdivide, place a servitude or lease a portion of that land they need to motivate this intention to the Minister of the Department of Agriculture, Forestry and Fisheries (DAFF), and abide by the resultant rejection or approval and conditions. There are some exemptions to this process listed in Section 3 of SALA [2]. The 45 year old piece of legislation has been accused of various shortfalls since its commencement. The most common complaint is the lengthy application processing time which negatively affects development as well as, since 1994, much needed land reform processes. As a result, in 1997 a repeal bill was drawn up for SALA, but it was never enacted by the president [3]. In 2013 the Preservation and Development of Agricultural Land Framework Act PDALFA was conceived to repeal the whole of Act 70 of 1970 at the same time as implementing a framework of national agricultural policy, norms and standards, while promoting economic and social development and food security [1], section 3 (3). PDALFA is far more complex than SALA. It is contained in 116 pages which, besides restricting subdivisions and rezoning, also classifies land as having a high or medium potential, and provides a means for the Minister to enforce optimal use of all agricultural land. Unlike SALA it details each step of the application process and calls for numerous committees to be established in order to assess applications at various levels of government. It is the hope of DAFF that PDALFA will meet their mandate to preserve and develop agricultural land where SALA failed to do so. Comparison of Act 70 of 70 and PDALF PDALFA is intended to address some of the shortfalls of Act 70 of 1970. These have been identified by various professionals in the industry as: Lengthy delays in processing applications and appeals [3, 5]. Inconsistent decision making due to lack of norms and standards [3]. No categorisation of applications, thereby preventing minor applications and corrections to consents, from being expedited which would decongest the production line [3, 4]. Custodianship is complicated by multiple legal systems and frameworks affecting each piece of land [3 5]. 2

In order to assess whether these shortfalls have been considered, a comparison of SALA [2] and the PDALFA bill [1] is shown in Table 1. Only sections directly affecting the geomatics profession have been included in this table and the sections have been summarised to allow for easier comparison. Topic SALA [2] PDALFA bill [1] Purpose Agriculture definition Exemptions Subdividing Agricultural land To control the subdivision and associated use of agricultural land. Section 1 Agricultural land means any land except: Pre-1994 municipalities. Land defined in various ordinances listed in section (2a and b). Land owned by the state. Land excluded by Gov. Gazette. Section 2 - the following subdivision applications are exempt: State land. By will of testament, if testator died before commencement of act. By contract entered into before commencement of this Act. Diagram approved by the Surveyor General prior to commencement of this Act. Registration of a lease prior to commencement of this Act. Section 3 (a) Prohibited, unless the minister provides written consent. To regulate subdivision and rezoning of agricultural land. To categorise agricultural land into high and medium potential cropping land. To provide for the use of agricultural land. To provide for the various other committees, registers, duties and processes listed in this Act. Section 1 - Agricultural land means any land except: Land in a proclaimed, demarcated township which has been approved by applicable legislation prior to the date of PDALFA commencement. Land formally zoned for nonagricultural purposes by any sphere of government prior to PDALFA commencement. Land excluded by Gov. Gazette. Section 4(1) (b) This act does not apply to land: That has the necessary authorisations for its current non-agricultural purposes, prior to PDALFA commencement, provided that all conditions imposed by government are complied with. Approved for development prior to PDALFA commencement. Sections 5, 6, 29, 30 Prohibited, unless the minister, or member of executive council (MEC) as the case may be, gives written consent. Lease areas Establishment of Section 3 (d) - A lease over a portion of agricultural land which lasts longer than ten years must have written consent from the minister. This includes shorter lease contracts which allow the lessee to renew indefinitely accumulating to more than ten years. Section 3 (g) prohibits giving public notice of the preparation of a scheme on Section 57 - Same as Act 70 of 70. There is a time limit of three months for the minister or MEC to make a decision on a lease application. Section 59 (b) - The establishment of any share block or sectional title scheme requires 3

schemes Undivided shares Selling or advertising sale of a portion of land Registration of servitudes Application process Conditions of approval agricultural land unless the minister has consented in writing. Section 3 (b) - may not be registered without written consent from the minister. Section 3 (e) May not be sold, or advertised for sale, without written consent from the minister. Section 6A A servitude over agricultural land shall not be registered without written consent from minister, unless: The servitude is less than 15m wide and is used for right of way, aqueduct, pipeline or conducting electricity. It is a supplementary and adjoining servitude area not exceeding 225 m 2. A usufruct over the whole agricultural land. Section 4 (1) (a) Applications must be lodged on a form, at a place and with documents as determined by the minister. Section 4 (4) The minister may vary or withdraw a condition of approval, even after it has been registered against a title deed. written consent from the minister or the MEC as the case may be. Section 59 (1) (c) Same as Act 70 of 1970. Section 58 same as Act 70 of 1970. There is a time limit of three months for the minister or MEC to make a decision on the application. Same as Act 70 of 1970 Part I and Part II of the bill separate the procedures for high and medium potential cropping land. Each stage of the applications process is described for different levels of government. Section 27 (1), 51 (1), 57 (6), 58 (6), 59 (6), 60 (5), 61 (6) The minister may suspend or cancel any approval if he finds that the associated conditions are not being satisfied, resulting in the automatic termination of that transaction i.e. subdivisions, consolidations, lease areas, sales, etc. Consolidations Not mentioned Section 61 (1) - The minister or the MEC as the case may be, must give written consent. The decision must be made within three months of receipt of the application. Table 1: Comparison of Act 70 of 1970 and PDALF. With reference to the shortfalls of SALA listed earlier, the comparison in Table 1 shows that some of these have been addressed, while in other cases it seems that some new challenges are going to be introduced. Creating norms and standards Time limits have been stipulated in the PDALFA bill for certain approvals, thereby creating some norms and standards, while attempting to resolve the time delays currently experienced. Other standards have been introduced to guide the minister, MEC and their supporting committees in what to consider when making decisions to ensure consistency in approvals and rejections. Definition of agricultural land The definition of agricultural land has been changed to ensure that land that has been legitimately demarcated as a township or zoned for non-agricultural purposes is excluded from the custodianship of DAFF. This is a great improvement as it should prevent unnecessary applications being submitted to DAFF when land is clearly no longer used for agricultural purposes [3]. 4

There are, however, some questions and concerns with this new definition, as it does not specify what township legislation applies, what zoning authorities will be considered and what DAFF defines as a township. For instance, among many other exclusions listed in a) and b) of the SALA agricultural definition, are the pre-1994 boundaries included as township establishment legislation? The SG offices currently use these boundaries to determine if land is under the custodianship of DAFF and therefore if a consent is required. If these boundaries are no longer included, how will the Surveyor General (SG) determine whether a land parcel is considered to be agricultural land on DAFFs records or not? In the past it has been found that the municipalities and DAFF can have different zones shown for the same piece of land. Will the National Agricultural Land Register (section 69 73) become the new reference point for a custodianship check [6]? State land is not exempt State land will no longer be exempt when subdividing agricultural land. While this is a good tool to ensure that land is not being misused within the government structure, it could increase delays for land reform projects and the development of public services [7]. Consent for consolidations Until now consolidations have been one of the simplest submissions to the Surveyor Generals Office as no consent is required. If consent is required, as stated in the PDALFA bill, consolidations will become a less desirable process making it easier to leave land as separate portions with the same owner. This seems to contradict the intention of PDALFA, as section 42 (4) of the bill requires the minister to encourage the consolidation of agricultural land [3, 4]. It is possible that this consent has been added in order implement the land ceilings announced in President Zuma s State of the Nation Address and DRDLR Minister G E Nkwinti s 2015 Budget Policy Speech. The understanding is that the land ceilings will limit the maximum area allowed for each farm according to its production scale. If this is the reason for the consent requirement then a clause should be added that only consolidations exceeding the proposed land ceiling area restrictions should require consent [8]. Termination of approved transactions In terms of PDALFA, the minister may terminate an approval even after that transaction has been registered. The bill does not give any details on how this will happen. In our current legal environment, a registered consolidation or subdivision can only be cancelled by court order. This action has large financial implications, not mention the logistics involved in un-transferring ownership [6]. Before this act is implemented, clarity needs to be provided on how this termination will take place. Categorisation of agricultural land Land has been categorised into high and medium potential cropping land by means of land capability classes which are described in the definitions section of the PDALFA bill. This aims to shorten the processing time for applications to subdivide or rezone land which is not contributing to food production, as discussed in more detail in the next section. High and medium potential cropping land According to PDALFA, all agricultural land either falls within the high or medium potential cropping land category. An application is to go through various committees and departments until it is approved by either the minister, if the application is for high potential cropping land, or the member of executive council in the relevant provincial department for medium potential cropping land. The formation of the various committees and boards as found in Table 2, will not be discussed in this paper, but can be found in in the following sections of the PDALFA bill [1]: The National Internal Technical Committee (NITC), section 104 The Provincial Internal Technical Committee (PITC), section 112 The Intergovernmental Committee (IC), section 82 The Agricultural Land Review Board (ALRB), section 125 Table 2 compares the definitions and processes involved in subdividing or rezoning high and medium potential cropping land as described in the PDALFA bill. 5

High potential Definition Includes land capability classes 1-3 (See section 1 definitions for land capability classes): High potential for intensive crop production. Few permanent limitations that restrict its use. Conservation practices can be used to improve cropping potential. Soils are: Nearly level and deep Hold water well Well drained Easily worked Fertile The land has a favourable local climate for crop growth. Medium potential Includes land capability classes 4-8 (See section 1 definitions for land capability classes): Unsuitable for crop production Severe permanent limitations that restrict land use The land has one or more of the following limitations which cannot be corrected: Frequent flooding Rocky/stony ground Climatic limitations Steep slope Severe erosion hazard Shallow rooting zone Low water holding capacity Salinity Use Must be optimally used for food production. Game farming is prohibited (Section 55). Agri-parks (Section 47), urban agriculture developments, recreation, wildlife, water supply, aesthetic purposes (Section 1). Steps of application for subdivision/ rezoning Section Procedure Section Procedure 7(1) Submit application to the provincial department (PD) concerned. 7(2) If an application is made to the municipality which could impact high potential cropping land, then a copy must also be given to the PD concerned. 31 (1) As per high potential (HP) 31 (2) As per HP 8(a) An agro-ecosystem report must be submitted. 31 (1) (a) As per HP 10 (1) PD official must send a copy of the application to relevant municipality within five days of receiving the application. 10 (2) Municipality will consider the application, taking into account relevant development plans and frameworks. 10 (6) Municipality must respond within 20 days, else PD will proceed without municipal inputs. 34 (1) As per HP 34 (2) As per HP 34 (5) As per HP 12 (2) PD official must submit application and relevant documents to the NITC departmental land use official within 35 days of application being received. 36 (1) (iii) PD official must compile and submit application and supporting document to the PITC (no time frame specified). 12 (4) NITC will consider the application and make recommendations to the minister (no time frame specified). 36 (3) PITC will consider the application and make recommendations to the member of executive council of the province (MEC) within 35 days. 6

12 (5) Minister can only approve rezoning, with associated subdivision if required, if: Application relates to land reform (needs to be recommended by the minister responsible for land reform). Exception circumstances exist. See section 13 (3). In both of the above cases the application must be referred to the IC for approval or rejection. 12 8) The NITC departmental official must compile notice of the decision, which must be checked and signed by the supervisor, the chairperson of NITC or IC and the minister s delegate. A decision letter must be sent to the applicant and the PD within 35 days of the final decision being made. 12 (9) Any interested party may apply for a review of the decision to the ALRB. 12 (10) All approvals and conditions must be registered on the title deed. 13 (3) Exceptional circumstances under which a rezoning and associated subdivision can be approved: Agro-ecosystem report indicates that application will not negatively impact surrounding agricultural activities. Remainder of land is still able to be used optimally for agricultural purposes. Long term benefits of rezoning outweigh loss of agricultural land. 15 The minister may deviate from the approach contemplated in this Act for any of the following reasons: Positive agro-ecosystem report. Erroneously classified. Benefits of subdivision outweigh loss of agricultural land. 19 (1) In principle, the minister must oppose applications for development of HP land close to urban edge, if the development does not promote urban agriculture. 36 (4) 36 (5) Consensus approval is required for land capability class IV for interim period of five years from commencement of PDALF. This means the application must be signed by the MEC and the minister If consensus approval is required, MEC must send application with recommendations to the minister and NITC within 40 days of receiving the application at the PD. 36 (9) As per HP, done by the PD official or, if consensus approval, by the NITC official. (no time frame specified) 36 (10) As per HP 36 (11) As per HP NA 39 (1) As per HP 43 (1) The PD may recommend development of medium potential cropping land close to the urban edge if the potential of adjacent agricultural land is not affected. Table 2: Comparison of high potential and medium potential areas as defined by PDALF. 7

The main difference between the two cropping potential categories is that high potential land is approved at ministerial level while medium potential land can be approved at provincial level, unless consensus approval is required. From the process shown in Table 2, it seems that high potential cropping land applications will be a more complex and lengthier process, with a greater chance of rejection than medium potential cropping land. This process is understandable when protecting agricultural land from developers and industries who intend to change the use of the land. However, it should not be necessary for subdivisions and consolidations which are for agricultural purposes and do not create any additional land parcels [3, 4]. Protected Agricultural areas- Section 53 of PDALFA All areas of mostly high potential cropping land will be proclaimed as Protected Agricultural Areas (PAA). An MEC may also designate medium potential cropping land to a PAA. For the geomatics practitioner, this will mean that in some cases, medium potential cropping land will also have to be dealt with on ministerial level. Agro-ecosystem report An agro-ecosystem report must be compiled by an agricultural scientist who is registered with the South African Council for Natural Science Professions (SACNASP). This detailed report will be required with every subdivision and rezoning application. It is a full assessment of the land, its resources, its current use, production levels, the neighbouring properties, the plans and frameworks under which it falls, and an impact assessment for the proposed application. The scale, and therefore the cost, of this report does not change between minor and major applications. It will have a significant impact on the affordability and processing time of an application. This expense is unnecessary when the zoning and use of the land is not changing [3]. According to section 15 and 39, an agro-ecosystem report is also required for erroneous classifications. In the initial classification process there will be errors. A window period should be given for these errors to be rectified at no cost to the land owner. In many cases misclassifications will easily be seen on satellite imagery. It is felt that agro-ecosystem reports should be required in specific cases involving a change in land use, and not as a flat rule across all applications [3, 6]. National Agricultural Land Register In terms of section 69 73, the minister must establish an electronic-based, geo-referenced register of all agricultural land called the National Agricultural Land Register (NALR) within a period of six months after the commencement of PDALFA. All governmental and public entities must ensure that any spatial datasets relating to agricultural land potential is made available to DAFF before this time. The NALR aims to provide: Geo-referenced data for the development, protection, sustainable use and management of agricultural resources. Online lodging and tracking of applications (to be established within twelve months after commencement of PDALFA section 74). Information to government and the public for research, planning, agro-ecosystem reports, the status of agricultural resources and the use of agricultural land. All necessary demarcations of protected areas, high and medium potential land, land use, land capability classes. Ownership information including nationality and gender of owner. The NALR is vital to the operation of the PDALFA. Without it geomatics practitioners, Surveyor General s and Deed s offices will have no way of knowing whether land is exempt from PDALFA requirements or not. As this system is only expected to be fully operational twelve months after the commencement of the bill, an interim measure should be proposed. Have SALA shortfalls been addressed? Despite the fact that some time limits have been given, the overall application process is expected to take longer than the current Act 70 of 1970 process. PDALFA s proposed production line is complex with numerous committees and officials involved in approving or rejecting an application. This is further complicated by the requirement for agro-ecosystem reports and consent for consolidations [3]. 8

The high and medium potential cropping land classes provide some possibility of expediting applications on land with less impact on food security. But it does not consider the fact that some applications, although they are on high potential cropping land, might not have any impact on the use of the land and the number of land parcels, e.g. boundary adjustments and corrections to consents [3, 4]. It seems that other spatial legislation has not been considered in the PDALFA bill. This is concerning considering the powerful influence the proposed legislation will have on spatial planning decisions. The bill does not contribute to the coordination of interests of different sectors as contained in spatial planning laws such as SPLUMA and the Integrated Development Planning (IDP) processes. This will likely cause conflict been the local authorities and DAFF as the bill prioritises agricultural protection over vital settlement concerns [5]. Conclusion This paper focuses on the main issues which will directly impact geomatics practitioners. There are other important implications to consider such as: The expropriation and taxation of underutilised land (section 54, 56 & 152). The registering of PDALFA categories, approvals and conditions on title deeds (section 12 (10), 36 (11). 53 (8) & 78). The right for any person to participate in the IC review process or appeal to the ARB (section 12 (9) & 14 (d) (ii)). Consent required for registration of land to a person, trust or legal entity (where majority share is held by persons ) who are not South African citizens or do not have valid permanent residence permits (Section 60(1)). It is felt that political agendas such as ownership by foreign nationals and restrictions of farm sizes should not be included in PDALFA as they do not support its purpose, which is to protect agricultural land promoting food security, and social and economic development. This purpose is greatly supported by many in the industry, but there are still many questions, ambiguities and procedural impracticalities which need to be attended to. Economic and social development play an important role in South Africa s food security and therefore DAFF should take great care to make sure that the interests of the municipality and the public are not compromised while protecting agricultural land. The most urgent needs which need to be addressed for PDALFA to work are: Collaboration with the local authorities and spatial planning laws such as SPLUMA and IDP processes. Provision for expediting applications which do not, or have minimal effect, on the agricultural use of the land. In the case of consolidations, an application should not even be necessary. Changing agro-ecosystem reports to a case-specific requirement. Providing clarity on how the public and other government departments will be able to verify if a land parcel is under DAFF s custodianship or not? References [1] Department of Agriculture, Forestry and Fisheries: Draft Preservation of Agricultural Land Framework Bill, BXX 2013. [2] Department of Agriculture: Subdivision of Agricultural Land Act 70 of 1970. [3] Spencer Dreyer: Comments on the Draft Preservation of Agricultural Land Framework Bill, South African Geomatics Institute (SAGI), May 2015. [4] Henk Wolmarans: PDALFA stakeholder consultation meeting, 5 November 2012. [5] Karl van Rensburg: Proposed SAGI response in respect of the Preservation and Development of Agricultural Land Act, South African Geomatics Institute (SAGI), 27 January 2013. [6] Minutes of meeting for Surveyor Generals Office in Cape Town, 23 April 2015. [7] Minutes of meeting for Surveyor Generals Office in Pietermaritzburg, 8 May 2015. [8] Budget Policy Speech: Minister G E Nkwinti, 2015/2016 Financial Year, 8 May 2015. Contact Melissa Akoue Mve, Department of Rural Development and Land Reform, Tel 021 467-4800, melissa.davy@drdlr.gov.za 9