Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)
II. LAND USE PLANNING AND THE ENVIRONMENT
Felicity F. !Owoses-/Goagoses
Unsustainable land management practices have been identified as one of the threats to the environment in Namibia.1 The manner in which land is used has an effect on the environment. Thus, sustainable land management is an important tool to promote environmental management2 and sustainable development. Sustainable land management is the forefront of both academic debates and institutional concerns as many jurisdictions are rethinking and reshaping their existing land use planning systems in an effort to align them to sustainable development. The question is whether Namibia’s existing policy, legislative and institutional frameworks on land use planning are functioning and whether these frameworks are geared toward sustainable development.
It is from this premise that this chapter revisits the existing land use planning system in Namibia. The chapter discusses the concept of land use planning from a developmental perspective. It further outlines the current land use planning policy, legislative and institutional frameworks in Namibia. Furthermore, the chapter discusses sectoral aspects of land use planning in the context of town planning and the coastal zone.
2 The Concept of Land Use Planning
Land use planning is concerned with principles of planning as well as law.3 While law is concerned with people and regulation of society, land use planning is concerned with people and regulation of environment.4 This interrelationship between land use planning and law is demonstrated throughout this chapter.
Sustainable development is the focus of the current approaches to land use planning and land management. The Food and Agriculture Organization (known as FAO) refers to the following definition of land:
Land is a delineable area of the earth's terrestrial surface, encompassing all attributes of the biosphere immediately above or below this surface including those of the near-surface, climate, the soil and terrain forms, the surface hydrology (including shallow lakes, rivers, marshes, and swamps), the near surface sedimentary layers and associated groundwater reserve, the plant and animal populations, the human settlement pattern and physical results of past and present human activity (terracing, water storage or drainage structures, roads, buildings, etc.).5
In terms of the above definition of land, land does not merely relate to the biophysical cover of land, but is an interrelationship between the land, plant, animal and human life on it.
On the other hand, land use refers to the function of land or what the land is used for. These uses include residential, business, institutional, industrial, agricultural, tourism, forestry, parks, conservancies, wildlife, mining, farming, transport and so on. Land uses may vary depending on the area to which it relates, as such land uses in urban areas and rural areas may differ. Land use patterns are often influenced not only by biophysical factors, but also by cultural, institutional and political aspects as well as demographics and economic dynamics.6 Often some of the functions of land have to be provided for by the same piece of land and certain functions of land require or depend on other functions, as illustrated below.
Forest land use might have several economic, environmental and societal functions such as provision of wood for forestry and/or for renewable energy, have a recreational function, be part of a cultural landscape, regulate the supply of air, water and minerals, support biodiversity in the form of landscape cohesion and maintain ecosystem processes.7
It is this dynamics in land uses that can lead to land use conflicts and – if land uses are not managed – can lead to environmental degradation and even hamper development.
On the other hand the term ‘planning’ has different undertones depending on the context in which it is used. The word planning as derived from the noun ‘plan’, means a formulated or organised method according to which something is to be done.8 Within the planning fraternity the term ‘planning’ has acquired a distinct meaning and is equated with the control and regulation of the use of land.9 A functional definition of planning links planning to a set of procedures, tools and instruments which are used to design and make decisions about what is to be done in the future.10 This leads to the question, what is land use planning?
In terms of the FAO guidelines11 land use planning is the systematic assessment of land and water potential and alternatives for land use and economic and social conditions in order to select and adopt the best land-use options. A developmental perspective on land use planning views it as a cross-sectoral and integrative decision-making process that facilitates the allocation of land uses that give the greatest sustainable benefit.12
Land use planning and land management are often seen as two separate concepts, but land management is in itself an integral part of land use planning. Land management, more particularly sustainable land management is
the use of land resources, including soils, water, animals and plants, for the production of goods to meet changing human needs, while simultaneously ensuring the long-term productive potential of these resources and the maintenance of their environmental functions.13
Some of the benefits of land use planning are the following:
- It can be used to minimise land degradation, rehabilitate degraded areas and to ensure optimal use of land resources for present and future generations.14
- It can be used to improve the well-being of the people. In this sense, sustainable land management can be used as a tool for poverty eradication amongst others.15
- Legally binding land use plans prepared in a participatory manner can prevent land grabbing, in cases where such plans address land tenure issues.16
- Land use planning can also be used as a forum for solving land use conflicts.17
3 Environmental Aspects of Land Use Planning
Land use planning, development and the environment are interrelated.18 Land itself is a component of the environment, thus the manner in which land is used impacts the other interrelated aspects of the environment such the people, the animal and plant life.
It has been emphasised in the case of Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others ,19 that the environment and development are inexorably linked:
But development cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development. Promotion of development requires the protection of the environment. Yet the environment cannot be protected if development does not pay attention to the costs of environmental destruction. The environment and development are thus inexorably linked. And as has been observed -
“(E)nvironmental stresses and patterns of economic development are linked one to another. Thus agricultural policies may lie at the root of land, water, and forest degradation. Energy policies are associated with the global greenhouse effect, with acidification, and with deforestation for fuelwood in many developing nations. These stresses all threaten economic development. Thus economics and ecology must be completely integrated in decision making and lawmaking processes not just to protect the environment, but also to protect and promote development. Economy is not just about the production of wealth, and ecology is not just about the protection of nature; they are both equally relevant for improving the lot of humankind.”
Environmental considerations in land use planning have taken forefront, both internationally and domestically. On the international level, the principles of sustainable land management20 and environmental impact assessment21 were developed as tools for environmental management. Both these principles require that environmental considerations must guide decisions affecting land use. Domestically, environmental considerations in land use planning and land development are addressed by various policies, plans and legislation.
Under common law environmental considerations were not addressed in decisions concerning land use planning.22 With the adoption of the Constitution in 1990 and the enactment of subsequent legislation dealing with or impacting land use, environmental considerations were built into legislative frameworks. Some of the legislation affecting land use and which have incorporated environmental considerations in land use are: the Minerals (Prospecting and Mining) Act No. 33 of 1992, the Petroleum Products and Energy Act No. 13 of 1990, the Aquaculture Act No. 18 of 2002, the Water resources Management Act No. 11 of 2013, and the Forest Act No. 12 of 2001. In 2007, Parliament enacted the Environmental Management Act No. 7 of 2007 as the overarching legislation that requires environmental assessment of activities listed in terms of it, some of which are activities related to land use. Since not all activities are listed in terms of the Act, sector or industry specific legislation requiring environmental consideration remains necessary.
4 Planning Levels
Land use planning takes place at different levels of Government; namely the national, regional and local level. Within these levels of Government various functionaries have different but interrelated and often overlapping powers and functions in respect of land use planning. These powers and functions are in most cases dictated by the policy, legislative and institutional frameworks of the jurisdiction concerned.
5 Land Use Plans
Land use planning takes place through policy plans and in terms of legislation.
On the policy level, land use plans are usually presented in the form of a document or report which sets out the planning area, the responsible authority, the available resources, the maps and statistics relating to the planning area, the specific land uses and alternative uses.23 These plans take the form of land development objectives, integrated development plans and spatial development frameworks,24 amongst others.
On the legislative level land use planning takes place through statutory instruments.25 Legislation often prescribes the nature and content of the plan as well as the procedure for preparation and adoption and amendment of the plan concerned. Land use plans commonly prescribed by way of legislation include forest plans, structure plans and town planning schemes.
6 The Land Use Planning Process
The land use planning process can be triggered by a number of factors such as conflicts in land uses, urban development, rural development, environmental damage or natural resource degradation.26
Land use planning does not necessarily take place in terms of predefined stages or steps, but is an iterative and cyclical process in terms of which the different stages are revisited in order to adapt the plan concerned to changing circumstances.27 The five common stages28 in the land use planning process are: the organisational stage; the analytical stage; the planning stage; the decision making stage; and the implementation stage.29
During the organisational stage, the institution or body that will organise, steer and guide the entire planning process is identified.30 At this stage the planning area as well as the responsible authority are identified. Furthermore, stakeholders and interested parties to be consulted are identified, notified and consulted.31
During the analytical stage, information data and information in the form of maps, statistics and maps are identified, collected and analysed.32 This information relates to present land uses of the area, topographic references and administrative boundaries of the area as well as the population and legislation that will affect a particular land use.33
During the planning stage, a range of reasonable combinations of land uses are identified as well as alternatives for future-oriented changes and the best option is chosen.34 Stakeholders and interested and affected parties are consulted regarding proposed changes and scoping is carried out to avoid negative impact on the environment. The purpose of the planning stage is to make sure that the proposed changes are in line with existing policies and laws.35
During the decision making stage, decisions are taken as to the selected land uses for designated areas as well as the legislation to be complied with to give effect to the land use plans. At this stage, the land use plan is prepared and presented to the relevant body for approval in order to be binding.36
The implementation stage refers to the realisation of the land use plan. During this stage the plan is implemented according to agreed timelines and responsibilities as well as available resources.37 In order to be effectively implemented, a land use plan needs to have a binding effect.38
7 Approaches to Land Use Planning
The top down approach to land use planning has been criticised as being often non-participatory and unresponsive to changes.39 The top down approach to land use planning refers to centralised planning, carried out largely by technical teams on the national level. The plans are then passed on to local levels for implementation.40 The bottom up approach is where land use plans are based on local decision levels and integrating them in the next higher planning levels.41
The FAO42 proposes an integrative approach to land use planning which is constitutive of participatory and comprehensive cooperation between all institutions and groups at national, provincial and local levels, meaning all parts, partners or stakeholders that relate to and deal with land resources planning and the management of such planning. The FAO also acknowledges that successful land uses planning system is dependent on the willingness and cooperation of the actors involved to continuously discuss and find solutions to conflicting demands on land uses.43
8 Current Land Use Policy and Legislative Framework
8.1 Land Use Planning Approach
Since Namibia gained Independence in 1990, various discussion documents,44 policies and sectoral plans relating to land use planning have been prepared and in some cases been approved by Cabinet or the institution concerned.45
Namibia is following an approach of integrated land management and integrated ecosystem management.46 The country is praised for having pursued one of the most progressive wildlife and natural resources management approaches worldwide.47 Most notable efforts towards sustainable land management are the conservancy programme by the Ministry of Environment and Tourism, the community forest management by the Ministry of Agriculture, Water and Forestry, and fish farming activities by the Ministry of Fisheries and Marine resources.48
Despite these efforts, the major issues that still present a threat to the environment in Namibia are:
- Unsustainable land management practices;49
- conflicting land use allocations and uncontrolled land use patterns;50
- the absence of structured overall planning system in Namibia, conflicting and unclear policies, legislation and responsibilities;51 and
- land use plans that are not binding and as a result lack implementation and are not respected.52
It has been echoed that Namibia is in need of a uniform and harmonised land use planning system as well as collaborative implementation.53
8.2 Legislative and Policy Framework on Land Use Planning
Namibia inherited the land use planning system which prevailed in South Africa during the South African administration of South West Africa as Namibia was known.54 The two features that informed land use planning system in South Africa were:
- Race, since land was divided and allocated on racial lines; and55
- a planning system based on old British systems of planning, which had strong emphasis on physical planning with little or no regard for economic and social considerations.56
Namibia inherited this planning system when the planning laws and administration of those laws were transferred to South West Africa during the period 1977 to 1979 by various Administrator-General transfers’ proclamations.57 With the adoption of the Namibian Constitution in 1990, these laws continued to be in force until amended or repealed by Parliament.58 Since Independence in 1990, Namibia faces the challenges of rectifying the injustices in the land use planning system as well as developing a sound sustainable land use planning system that is adapted to the changing circumstances. The question is what principles guide land use planning systems and processes in Namibia. These principles are informed by both, principles of land use planning and the law.
On the policy level, Vision 2030, and the National Development Goals as well as several national policies inform the country’s land use planning framework.59
Land use planning principles60 contained in international agreements binding on Namibia61 as well generally accepted principles of public international law also shape the country’s land use planning system.
The first principle of land use planning is the principle of sustainability.62 This principle echoes that land use practises must be sustainable, meaning, that they meet the needs of the present generation while, at the same time, conserving resources for future generations.63 The second is the principle of environmental protection, which echoes that environmental protection constitutes an integral part of and should inform the development process.64 Third is the principle of equitability. In terms of this principle development must equitably fulfill the developmental and environmental needs of present and future generations.65 Fourth is the principle, that land use practices must be developed taking into account the developmental opportunities and challenges of the area concerned.66 Fifth is the principle of public participation,67 this principle is concerned with involvement and participation of all persons at the relevant planning level and also that all persons should have access to information on environment. Sixth is the principle of environmental impact assessment,68 which requires that assessment be undertaken of proposed policies and activities which may impact the environment in order to minimise environmental damage. Seventh is the precautionary principle,69 which echoes that serious threats to the environment be identified and minimised as earliest as possible. Eight is the polluter pays principle70 which echoes that those responsible for damage to the environment pay for the cost for rehabilitating the environment or for the damage. Ninth is the principle of preserving the traditional knowledge and culture of indigenous people,71 meaning that land use practices must have regard to traditional land use practices. The principles stated here are not conclusive but constitute the core principles that must underpin a country’s land use planning system.
On the statutory level, the Constitution is the basic norm that must guide the current land use planning system in Namibia. The first principle to inform land use planning in Namibia is contained in the preamble of the Constitution. The preamble echoes that Namibia‘s land use planning system should address and correct imbalances created by past land practises. Also at the forefront of constitutional norms and principles relevant for land use planning are the democratic values, which are the rule of law, equality and justice,72 which must inform the land use planning system developed and implemented by Namibia. The Constitution also guarantees rights and freedoms, such as the right to equality before the law,73 the right to life74 and dignity,75 the right to property,76 the right to culture77 and freedom of speech78 . These rights translate into the right of people to participate and voice their opinions and to give input during the land use planning process. The Constitution also echoes the principle of sustainable development in Article 95 on the promotion of the welfare of the people. This principle, which is also contained in international agreements binding on Namibia, imposes an obligation on the Government to develop a sustainable land use planning system. Also important is the principle of administrative justice79 which demands that planning administration must act fairly and reasonably and comply with principles of administrative justice when making decisions related to land use planning. Furthermore, the Constitution echoes that planning policies and legislation must not infringe on rights and freedoms guaranteed by the Constitution80 and must observe the limitations set out in the Constitution.81
Namibia is in need of legislation that sets out principles to guide land use planning in Namibia. The Environmental Management Act No. 7 of 2007 sets out principles which must guide the implementation of any law and decisions relating to environmental protection,82 which includes land use planning policies, decisions and laws.
On the statutory level, there are various pieces of legislation that directly deal with or affect land use planning. The following are some of the key legislation dealing with or related to land use planning in Namibia.
- Town Planning Ordinance No. 18 of 1954
- Townships and Division of Lands Ordinance No. 11 of 1963
- Standard Building Regulations of 1970,83 as adopted in terms of the repealed Standards Act No. 33 of 1962,84 by town and village councils and building regulations made by various municipal councils
- Subdivision of Agricultural land Act No. 70 of 1970
- Communal Land Reform Act No. 5 of 2002
- Agricultural (Commercial) Land Reform Act No. 6 of 1995
- Biosafety Act No. 7 of 200685
- Aquaculture Act No. 18 of 2002
- Inland Fisheries Act No. 1 of 2003
- Fisheries and Marine resources Act No. 27 of 2000
- National Heritage Act 27 No. of 2004
- Environmental Management Act No. 7 of 2007
- Public and Environmental Health Act No. 1 of 2015
- Forest Act No. 12 of 2001
- Removal of Restrictions Ordinance No. 75 of 1975
- Nature Conservation Ordinance 4 of 1975
- Flexible Land Tenure Act No. 4 of 201286
- Water Act No. 54 of 195687
- Minerals (Prospecting and Mining) Act No. 33 of 1992
- Road, Traffic and Transport Act No. 22 of 1999
- Crown Land Disposal Proclamation No. 13 of 1920
- Expropriation Act No. 63 of 1975
- Soil Conservation Act No. 76 of 1969
- Mountain Catchment Areas Act No. 63 of 1970
The following part will discuss some of the key legislation dealing with land use planning.
8.2.1 The Town Planning Ordinance
The Town Planning Ordinance deals with the control and regulation of land use in local authority areas. Local authority areas are municipalities, towns and villages and settlement areas, which are governed by municipal, town and village and regional councils respectively.
The Ordinance requires local authority councils to prepare town planning schemes in respect of land within their areas of jurisdiction. Town planning schemes are land use management tools used by the local authority councils to regulate land use. In terms of town planning schemes land is zoned for various uses, such as residential, industrial and business. Currently, not all local authority councils have prepared and adopted town planning schemes, since the preparation of such schemes are optional, unless the Minister of Urban and Regional Development instructs a local authority council to prepare such a scheme.
8.2.2 The Townships and Division of Land Ordinance
The Townships and Division of Land Ordinance regulates the establishment of townships, which is a component of town planning. Establishment of townships is basically the subdivision of land for development purposes for example residential purposes. Township establishment can be undertaken by a local authority council or a private developer who must get the Minister’s approval to establish the same. When approval to establish a township is granted the Minister usually imposes conditions on the land, these can be conditions stating the purpose for which land may be used, creation of servitudes, and limitation of the number of buildings, which can be built on the land.
8.2.3 The Subdivision of Agricultural Land Act
The Subdivision of Agricultural Act prohibits the subdivision of agricultural land without the consent of the Minister of Agriculture.88 The purpose of the Act is
- to prevent alienation of undivided portions of land;
- to prevent subdivision of agricultural land into uneconomic units;
- to prevent the use of uneconomic portions of agricultural land for any length of time;
- to prevent encroachment on the use of agricultural land so as to threaten its viability as such.89
8.2.4 The Flexible Land Tenure Act
The Flexible Land Tenure Act was enacted to fast track land development for the poor. In terms of this Act a local authority council or regional council, an owner of land or a group of persons, except juristic persons90 , may apply to the local authority concerned to establish a starter title scheme in respect of land in a local authority area.91 Before such a scheme is established the land concerned must be subdivided or consolidated so as to reflect as one piece of land so as to be registered as such. Although the formal requirements for township establishment need not be complied with, the outer boundaries of the land must be set out.92 Once the required deposit or amount is paid and land and boundary measurements have been carried out the starter title scheme will be established. Once the scheme is established the registered member will be entitled to hold a starter title on a block erf in in the land, this title entitles the holder to occupy the block erf, erect a structure on it, to bequeath it or to transfer the title to it.93 Starter title schemes can be converted to land hold title schemes, which entitle the holder to have all the rights in the plot concerned that an owner has in respect of his or her erf under the common law.94 Starter title schemes or land hold title schemes in an approved township can be converted to full ownership,95 but the owner of such scheme must comply with the formal provisions of town planning and township establishment legislation in that regard.
8.2.5 The Agricultural (Commercial) Land Reform Act
The Agricultural (Commercial) Land Reform Act provides for the acquisition of agricultural land by the State for purposes of land reform and for the allocation to Namibian citizens who do not own or otherwise have the use of any or adequate land and who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices.96 One of the ways through which this is done is the acquisition of agricultural land by the state in a commercial farming area. This land is subdivided into holdings,97 which are surveyed and registered as separate farming units in the Deeds Office.98 The registered units are allotted to successful qualifying applicants under 99-year lease agreements.99
8.2.6 The Environmental Management Act
One of the objects of the Environmental Management Act is to ensure that environmental impact assessments are undertaken of activities, which may have an impact on the environment.100 The Act applies to physical activities and the definition of the term ‘activities’ appears to be wide enough to also include plans and policies.101 The Minister of Environment by notice in the Gazette lists activities which may not be undertaken without an environmental clearance certificate by the Environmental Commissioner.102
9 Land Use Planning Institutions and Administration
In Namibia, the administration of land use planning takes place at national, regional and local Government level. These spheres of Government are distinct, but interrelated. Land use planning is a facet in all spheres of Government.
At national level, planning is within the executive competence. Executive competence relates to the power to give effect to legal rules.103 At national level, executive power is vested in the President and Cabinet, which consists of various Ministers.104 Insofar as land use planning is concerned, the role of Cabinet as part of the executive is to develop and implement land use policies, initiate land use planning laws and facilitate the implementation and administration of land use planning laws administered by the executive and to direct, co-ordinate and supervise the activities of Ministries and Government departments including para-statal enterprises,105 which relate to land use planning.
9.1 The National Planning Commission
On the national level, the National Planning Commission (known as NPC), drives socio economic developmental planning in the country. The role of NPC is to coordinate developmental planning on the national level.106
9.2 The Ministry of Land Reform
Nationally, the primary responsibility for land resides with the Minister of Land Reform. This is evident in the Minister’s responsibility for the administration of land, the transfer of land, the ownership of land and the cadastral boundaries of land as outlined in the 2013-2017 Strategic Plan of the Ministry. The Minister thus exercises authority over the land reform programme, the deeds registry, the office of the surveyor general, the national spatial information framework and the administration of land held in trust by the Minister.
This responsibility is also evident from the 2013-2017 Strategic Plan of the Ministry: “To manage, administer and ensure equitable access to Namibia’s land resource.” It is also clear that the Minister is the competent authority for land use planning and management. This is evident from the Ministry’s vision which states in its Strategic Plan: “To ensure that Namibia’s land resource is equitably allocated, efficiently managed, administered and sustainably used for the benefit of all Namibians.”
In terms of the National Land Policy of 1998 the Ministry of Land Reform is the custodian and implementer of the policy. The policy states that:
The Ministry of Lands, Resettlement and Rehabilitation has the primary responsibility for the implementation for the National Land Policy. This duty will be performed in close consultation with other Ministries, including the Ministry of Agriculture, Water and Rural Development (with reference, inter alia, to land use planning): the MRLGH (with reference, inter alia, to urban and regional planning, Regional Councils and local authorities): and the Ministry of Trade and Industry (with reference, inter alia, to regional planning, investment incentives schemes, export processing zones and the relationship of credit to land rights).
The Land Reform Advisory Commission established under the Agricultural (Commercial) Land Reform Act No. 6 of 1995, advises the Minister of Land Reform on the acquisition and use of agricultural land.
Apart from having institutional responsibility for land the Ministry of land reform administers legislation relating to land use, such as the:
- Communal Land Reform Act No. 5 of 2002;
- Agricultural (Commercial) Land Reform Act No. 6 of 1995;
- Flexible Land Tenure Act No. 4 of 2012;
- Land Tenure Act No. 32 of 1966;
- Deeds Registries Act No. 37 of 1947;
- Disaster Risk Management Act No. 10 of 2012; and
- Land Survey Act No. 33 of 1993.
Although the Minister of Land carries the core responsibility for the administration of land, other ministries, offices and agencies in Government also have legislative and institutional powers and responsibilities in respect of land use planning.
9.3 Ministry of Urban and Rural Development
The Minister of Urban and Rural Development is responsible for the administration of land earmarked for urban and regional development.
Insofar as land use planning is concerned, the Minister administers the Town Planning Ordinance No. 18 of 1954, the Townships and Division of Lands Ordinance No. 11 of 1963, the Local Authorities Act No. 23 of 1992, the Regional Councils Act No. 22 of 1992, and the Town and Regional Planners Act No. 9 of 1996 amongst others.
9.4 Other Authorities, Organisations and Persons
Other ministers and institutions also have responsibilities for land use planning arising from policy and legislative frameworks; aquaculture development for example falls under the responsibility of the Ministry of Fisheries and Marine resources, forestry management falls under the responsibility of Ministry of Forestry, environmental impact assessment, conservancy establishment, establishment of natural parks and protected areas all fall under the responsibility of Ministry of Environment and Tourism.
At the regional level land use planning is carried out by regional councils and communal land boards amongst others. On the local level land use planning is carried out by local authority councils and traditional authorities. Different organisations and non-governmental organisations and communities also play a role in the land use planning process. The Legal Assistance Centre is active in raising awareness on matters relating to land use planning through workshops and preparation and publication of documents on land use planning.107 Others include the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and the Namibia Institute for Democracy (NID) amongst others.
10 Land Use Planning in Local Government
Namibia’s current town planning system, inclusive of land use practices and legislation, derives from the South African old British style planning system which was more focused on spatial planning and not on economic development. Referring to the South African town planning system of the 19th century, Claassen and Milton described the South African town planning system of that period as more control oriented rather than developmental oriented.108 Their argument is that market forces and intentions of owners of land carry more weight than the actual allocated zoning on the town planning scheme.109 The question that needs to be answered is whether the current town planning system in Namibia is control oriented or development oriented.
Although Namibia’s current town planning system can be said to be both, control and development oriented, the control element carries more weight. This is because market forces, such as demand for land and land prices carry more weight than provision of land as a means to improve the well-being of the people. This situation has resulted in land grabbing by some individuals, especially in urban areas. Some notable efforts to curb this situation is the proposed Land Bill and Urban and Regional Planning Bill, which introduces a system of decentralised planning, and coupled to that re-engineering of the town planning process in an effort to speed up land delivery in urban and regional areas.
Within the local Government context, land use planning parallels town planning. Town planning is concerned with the control and regulation of land in local authority areas.110 Town planning basically involves zoning of land and the establishment of townships.111 The purpose of town planning and township development is to control and harmonise the use of land.112 The proposed Urban and Regional Planning Bill consolidates the law on town planning and establishment of townships. The Bill substitutes the term town planning with urban planning. Town planning activities are carried out by local authority councils and to a certain extent regional councils, which are treated as local authorities for purposes of town planning. On the local Government level are local authorities which exist in three forms, these are municipalities, followed by towns, and villages at the lowest level. The area of the specific local authority is referred to as the local authority area.113 Local authorities are governed by either, the Municipal Council, the Town Council or the Village Council. The powers and functions of these councils in respect of town planning are governed by the Townships Ordinance No. 18 of 1954 (hereafter referred to as TO), the Townships and Division of Land Ordinance No. 11 of 1963 (hereafter referred to as TDLO), and the Local Authorities Act No. 23 of 1992. The Minister of Urban and Regional Development administers this legislation.114 The Namibia Planning Advisory Board known as NAMPAB and the Townships Board make recommendations to the Minister regarding the preparation and approval of town planning schemes and the establishment of townships. In terms of the proposed Urban and Regional Planning Bill, these two boards will be substituted by one Board which will be known as Urban and Regional Planning Board.
The primary purpose of town planning is to ensure a co-ordinated and harmonious development of the local authority area or the area to which it relates and to promote health, safety, order, amenity, convenience and general welfare of people in those areas.115
10.1 Town Planning Schemes
Town planning schemes (TPS) are one of the tools used by local authority councils to control and regulate land use in their respective local authority areas. Preparation, approval, adoption and amendment of TPS is a statutory requirement and is governed by the TO. In terms of the TO, certain local authority councils are required to prepare and adopt town planning schemes for certain areas of land under their jurisdiction. In terms of the proposed Urban and Regional Planning Bill, local authority councils will be required to prepare a zoning scheme (currently known as a town planning scheme) for its local authority area.
A town planning scheme is defined as
Town planning schemes are an institutional process for organizing the components of urbanized human settlement in such was as to enhance welfare, prosperity, and progress to the highest feasible level. In practice the process involved the development of a set of legally enforceable prescriptions which direct, control, and regulate the existing and future uses that owners of immovable property may make of their property.116
The primary purpose of a town planning scheme parallels the purpose of town planning.117 Central to a town planning scheme is zoning, which is concerned with the allocation of different uses to different areas. Through zoning different areas are created in a local authority area and different use activities are permitted or prohibited.118 A TPS sets out different areas or use zones and permit or prohibit certain uses within such areas. For example a property may be zoned for residential, business or industrial purposes. The TPS sets out primary uses, consent uses and prohibited uses in respect of each use zone. Primary uses are those uses for which buildings may be erected and/or used. Consent uses are those uses for which buildings may be erected and/or used only with the consent of the Council. Prohibited uses are those uses for which buildings may not be erected and/or used. A TPS further sets different restrictions with regard to building, such the building line, height and side spaces as well as density, parking and the floor area applicable to different zones. A town planning scheme also contains provisions relating to building values of buildings to be in different zones. The TPS also contains provisions regulating the subdivision and consolidation of land to which the scheme applies. TPS are supplemented by buildings regulations and advertising regulations of the local authority council concerned which prepared and adopted the TPS concerned.
A TPS also contains provisions regulating changes to land uses. A TPS permits changes to certain land uses through rezoning application and applications for consent use. These applications have to be notified in newspaper for objections by the public, before the relevant local authority council makes any decision in terms of the TPS.
10.2 Structure Plans
While TPS are short-term land use tools, which are reviewed every 5 years, urban structure plans guide the future spatial development of an area and mostly cover a 10 to 20 year period. Currently, the preparation of urban structure plans is not a statutory requirement but, some local authority councils, such as the Windhoek, Swakopmund, Walvisbay municipal councils have taken it on themselves and adopted structure plans for areas under their jurisdiction. In terms of the proposed Urban and Regional Planning Bill, the preparation and adoption of urban structure plans by local authority councils will be a statutory requirement. Although local authority councils will not be obliged to prepare urban structure plans, they must prepare such plans if be instructed to prepare such a plans by the Permanent Secretary of the ministry responsible for urban and regional development. In terms of the proposed Bill, an urban structure plan must be aligned to the national development framework.
10.3 Township Establishment
Township establishment is basically land development that parallels subdivision of land. Township establishment is a component of town planning in terms of which the land within local authority areas is developed.119 In terms of the proposed Urban and Regional Planning Bill the term ‘township’ is substituted with ‘urban area’.
A township is an area earmarked for the future establishment of an local authority area or any area of land registered as one or more pieces of land either contiguous or in close proximity to each other which is being or is intended to be laid out or divided into sites for different land use rights or for urban settlement arranged in such a manner as to be intersected or connected by or to abut on public places.120
Township establishment is governed by TDLO. In terms of this Ordinance, an owner of land may apply to the Minister to establish a township on his or her or its land.121 The Minister forwards the application to the Townships Board, who recommends to the Minister the desirability to establish the township concerned.122 The board notifies the application and makes recommendations to the Minister.123 The Minister approves or rejects the application, and if he or she approves it, declares it as an approved township by notice in the Government Gazette.124
When a township is established, certain conditions are imposed on the use of erven concerned.125 These conditions may not be in conflict with the provisions of the relevant TPS, if such TPS exist in the area of the proposed township.126 Some of the measures for restricting ownership are the conditions for establishment and conditions of title which are imposed in respect of certain erven. These conditions may relate to the reservation of erven of the state or local authority or the purposes for which an erf may be used, minimum building values of buildings to be erected on the erf.127
11 Regional Planning
Land use planning at the regional level is supervised by the National Planning Commission, Minister of Land Reform and the Minister of Urban and Regional Development.
11.1 Regional Development Plans
Regional councils are established in terms of the Regional Councils Act No. 22 of 1992. Currently, there are 14 regions in the country. The Minister of Urban and Rural Development administers the Regional Councils Act. Where land use planning is concerned in the regional context, regional councils have a coordinating function. Their function is to undertake the planning of the development of the region for which it has been established.128 In doing this, they must have due regard to powers and functions of the National Planning Commission129 and other laws on planning such as the TPO and TO, and the Communal Land Reform Act amongst others.
The principal means of planning the development of the regions is the preparation of regional development plans (RDPs).130 RDPs provide an overview of the region with a situational analysis and directions for future developments; the development plan framework for the different sectors and a programme summary with specific objectives, activities and projects.131 The Division of Land Use Planning and Allocation within the Ministry spearhead the development of RDPs. Under the auspices of this division, Namibia has carried out four Integrated Regional Land Use Planning (IRLUP) projects: for the Kunene Region (1999); the Caprivi Region (2001); the four north-central regions (Omusati, Oshana, Ohangwena and Oshikoto) combined (2002); and Otjozondjupa and Omaheke combined (2005).132 The shortcomings identified in respect of IRLP are the non-implementation of these plans as well as the non-alignment of these plans to existing polices and legislation.133
The National Planning Commission is responsible for the development of regional profiles for the different regions. Such profiles set out each of the regions’ development potentials and weaknesses.134
11.2 Town Planning Function of Regional Councils
Regional councils carry out town planning functions in respect of settlement areas. Settlement areas are areas outside local authority areas but within regional council areas but are earmarked for development as local authority areas. Regional councils control and manage settlement areas as if it’s a local authority council. A regional council may in respect of settlement areas exercise powers and functions set out in the Local Authorities Act No. 23 of 1992 as if they were village councils.135 Note the emphasis on village council because there are certain limitations on powers and functions of a local authority council based on its status as a municipal council, town council or a village council.136 Since regional councils are regarded as a local authorities for the purposes of managing and controlling a settlement area, regional councils have to prepare and adopt TPS in respect of the certain areas of land within the settlement area. Currently, the preparation of TPS is not mandatory but the Minister may require a specific regional council to prepare a TPS in respect of certain areas of land within a settlement area.
In terms of the proposed Urban and Regional Planning Bill regional councils will be required to prepare urban structure plans for each approved urban area (currently known as approved township) within the settlement area concerned. A regional council may also be required to prepare a zoning scheme (currently known as TPS) in respect of land within the settlement area.
11.3 Regional Structure Plans
In terms of the proposed Urban and Regional Planning Bill, regional councils are required to prepare regional structure plans for the region for which it is responsible. The regional structure plan guides the integrated social and economic development and land use patterns in the region concerned. A regional structure plan deals with spatial aspects and potential for social and economic development of a region or part of a region, consists of such integrated statement of policies, plans and such background studies, reports, maps, legislation that affects the plan. Furthermore the Bill requires that a regional structure plan be aligned to the national development framework and the integrated regional land use plans.
12 Land Use Planning in the Coastal Zone
Namibia has a coastline, which extends some 1,570 km, from the mouth of the Orange River on the South African border, to the mouth of the Kunene River on the Angolan border.137 In the last decade there has been a crescendo of residential, recreational, tourism and mining activities at the coastal zone in Namibia. The coastal zone is considered to be the most ecologically sensitive areas in which sustainable land management is needed.138
12.2 Policy, Legal and Institutional Frameworks
Namibia does not have a national legislation that governs coastal zone management, but there are various legal provisions that deal with or affect land use planning in the coastal zone.139 Above all is the Namibian Constitution of 1990, international agreements ratified or acceded to by Namibia, principles of public international law,140 and various pieces of legislation that deal with or affect land use in the coastal zone, most notably the Nature Conservation Ordinance No. 4 of 1975; the Sea Shore Ordinance No. 37 of 1958; the Environmental Management Act 7 of 2007; the Minerals (Prospecting) and Mining Act No. 33 of 1992, Petroleum Act; the Town Planning Ordinance No. 18 of 1954 and the Townships and Division of Lands Ordinance No. 11 of 1963, amongst others.141
There are also various policies and plans geared toward the coastal zone management. Most notable is the 2012 National Policy on Coastal Management (hereafter referred to as NPCM).
At the institutional level, the various institutions that play a role in the coastal zone management, are the National Planning Commission, the Ministry of Environment and Tourism, the Ministry of Fisheries and Marine resources, the Ministry of Land Reform, the Ministry of Urban and Regional Development, Regional Councils, and Local Authority Councils. The responsibilities of these institutions in respect of land use planning are dictated by the various policy and legal frameworks. Non-Government institutions also contribute to the coastal zone management especially through awareness raising and technical support.
12.3 Status of Coastal Zone Management
In 2006 and 2008, strategic environmental assessment reports have been prepared for the coastal zones of the Erongo and Kunene regions and for the Karas and Hardap regions.142 The purpose of the reports were to be used as decision support tools by political and technical decision makers at local, regional and national levels in order to assist them in taking decisions on biodiversity conservation, land use planning, and social and economic development planning in the four coastal regions.143
- The lack of institutional capacity, or unclear, over-centralised, confused and/or overlapping legal or institutional mandates, notably in the public sector agencies involved.146
- Inability by stakeholders to find common understandings and a shared strategic perspective on the economic, social and environmental interactions involved in coastal development and of the adjustments compromises and trade-offs that need to be made to assure better coastal planning and management.147
12.4 The National Policy on Coastal Management
The NPCM is the result of the 2006 and 2008 strategic environmental assessment (known as SEA) reports, the 2010 SEA report, the 2009 Green Paper and the 2010 White Paper developed under the Namibian Coast Conservation and Management (NACOMA) project under the auspices of National Planning Commission. The Policy will be evaluated, monitored and implemented by the Ministry of Environment and Tourism.
The overarching goal of the NPCM is to ensure a coordinated and integrated approach to coastal governance in Namibia. The NPCM aims to provide a framework to strengthen governance of Namibia’s coastal areas to realise long-term national goals defined in Vision 2030 and the more specific targets of National Development Plans, namely sustainable economic growth, employment creation, and reduced inequalities in income.
12.4.1 Defining the Coastal Zone
Of importance is the definition or description of the coastal zone. Although NPCM does not define the coastal zone for the purpose of Namibia, it acknowledges the importance of defining the coastal zone:
Delineating the extent of the coastal zone is necessary for administrative purposes and to clarify areas and issues of responsibility of coastal stakeholders. It is useful for developing appropriate management systems to reduce the impact of our activities on the coast. It is also useful to be able to identify and maximize potential opportunities offered by the offshore and inland areas of our coast and ensure that any benefits are shared equitably.148
The policy proposes a twofold approach toward defining the coastal zone; namely a broad national definition and a specific definition that considers specific regional and local circumstances which will be undertaken by regional bodies.
The policy further states that:
Delineating the boundaries of coastal management should therefore consider “…terrestrial systems that significantly affect the sea, or are affected by their proximity to the sea, and those marine systems affected by their proximity to the land. This implies boundaries that (a) include those areas and activities within watersheds that significantly affect the coast and (b) may, in certain cases, extend seaward to the edge of the continental shelf or the Exclusive Economic Zone (EEZ).”149
Defining the coastal zone is important to determine the scope of coastal zone management.
12.4.2 NPCM Land Use Planning Objectives and Implementation Strategies
Strategies for implementing the NPCM have been identified as follows:
- to ensure meaningful public involvement and participation;
- to improve multiple-use planning and zoning by balance current and future multiple uses of coastal ecosystems and resources so that competing and complementary uses occur in appropriate geographic locations and are harmonised through zoning and planning;
- to ensure that all development and utilisation contribute to environmental sustainability and fall within the acceptable limits of land and resource use. Integrate efforts to maintain, and restore the health and productivity of coastal ecosystems and the services they provide;
- to clearly define, justify and communicate the demarcation of areas of ecological importance to the public;
- to establish a central authority for coastal management. This includes the creation of a Coastal Management Authority (CMA), assignment of coastal areas management to an existing planning, budget or coordinating office (such as the National Planning Commission); and
- the designation of an existing line ministry to act as the lead ministry, and the creation of strategic alliances with a national lead agency.
1 GRN (2010a).
2 Kidd (2011:209).
3 Meyer (1987:4); Van Wyk (2012:12).
4 Van Wyk (2012:12).
5 FAO (1995).
6 e Silva (2011:69).
8 Van Wyk (2012:12).
10 Haubt (2009).
11 FAO (1993).
12 Haubt (2009); GIZ (2011); Van Wyk (2012:57); Becker (2013:1).
13 FAO (2015).
14 FAO (1993).
15 GIZ (2011).
18 Principle 25 of Rio Declaration on Environment and Development. Van Wyk (2012:410). Kidd (2011:209).
19 CCT67/06)  ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007) para 44.
20 FAO (2015).
21 Principle 17 of the Rio Declaration.
22 Kidd (2011:209).
23 FAO (1993); Haubt (2009).
24 Van Wyk (2012:246).
26 GIZ (2011); Haubt (2009).
27 GIZ (2011).
28 There can be fewer or more stages. See FAO (1993).
29 GIZ (2011); Haubt (2009); FAO (1993).
30 Haubt (2009).
42 FAO (1995).
44 GIZ (2011); Haubt (2009); Jones (2009); Raith (2011); Zeidler (2008).
46 Zeidler (2008).
48 Haubt (2009).
49 GRN (2010a).
50 GIZ (2011).
51 Haubt (2009); GIZ (2011); Jones (2009).
52 GIZ (2011).
53 Haubt (2009); GIZ (2011).
54 LAC (2010); !Owoses-/Goagoses (2013:19-29).
55 Van Wyk (2012:1).
56 Ibid; Silva (2015:75-76).
57 !Owoses-/Goagoses (2013:19-29).
58 Article 140.
59 Policies such as the National Land Policy 1998, the National Agricultural Policy of 1995, the National Coastal Management Policy 2012; the National Policy on Resettlement 2001; the National Forest Policy, the Agriculture policy and National Drought Policy of 1997, the National Policy on Climate Change in 2011, the National Housing Policy 1991 as reviewed in 2009.
60 Haubt (2009).
61 Namibia has agreed to several environmental agreements; among the most notable are the Banjul Charter on Human and Peoples’ Rights with its Article 24 on the right to a satisfactory environment, the Stockholm Declaration, the United Nations Convention on Climate Change and the Kyoto Protocol, the Convention on Biodiversity and the Rio Declaration.
62 Principle 1 of the Rio Declaration.
63 FAO (1993).
64 Principle 4 of the Rio Declaration.
65 Principle 3 of the Rio Declaration.
66 Principle 11 of the Rio Declaration.
67 Principle 10 of the Rio Declaration.
68 Principle 17 of the Rio Declaration.
69 Principle 15 of the Rio Declaration.
70 Principle 16 of the Rio Declaration.
71 Principle 22 of the Rio Declaration.
72 Article 1(1).
73 Article 10.
74 Article 6.
75 Article 8.
76 Article 16.
77 Article 19.
78 Article 21.
79 Article 18.
80 Article 25.
81 Article 22.
82 Section 3.
83 Published in Government Notice R.1830 of 23 October 1970, as amended by Government Notice R.1431 of 17 August 1973.
84 Repealed by the Standards Act No. 18 of 2005.
85 Not in operation.
86 Not in operation.
87 This Act will be repealed by the Water resources Management Act No. 11 of 2013, which is not yet in operation.
88 Section 3.
89Adlem v Arlow (782/11)  ZASCA 164.Theron and Another v Tegethoff and Others (PA283/00, PA283/00)  NAHC 1 (6 April 2001).
90 Section 9(9).
91 Section 11(1).
92 Section 11(2).
93 Section 9.
94 Section 10(1).
95 Section 15.
96 Section 14.
97 Section 36.
98 Section 36.
99 Section 36.
100 Section 2.
101 Section 1.
102 Section 27.
103 Van Wyk (2012:147); Currie / De Waal (2001:228).
104 Article 35(1) of the Constitution.
105 Article 40 of the Constitution.
106 Jones (2009).
107 LAC (2005 and 2012).
108 Claassen / Milton (1992:716).
110 Although settlement areas are within the jurisdiction of regional councils, they are developed to eventually become local authority areas.
111 Van Wyk (1999:5); Van Wyk (2012:360); Meyer (1987:4).
112 !Owoses-Goagoses (2013:1).
113 Section 1 Local Authorities Act No. 23 of 1992.
114 Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others A 310/08  NAHC 90 (24 March 2011) .
115 Section 1 of Town Planning Ordinance No. 18 of 1954; also see !Owoses-/Goagoses (2013:39-40).
116 Kidd (2011:211).
117 Section 1 of Town Planning Ordinance No. 18 of 1954; also see !Owoses-/Goagoses (2013:39-40).
118 Kidd (2011:212); Van Wyk (1999:21 and 39-40); !Owoses-/Goagoses (2013:44-46).
119 von Dönges / Van Winsen (1953:596).
120 Section 1 of the TDLO.
121 This definition is ambiguous, on literal interpretation it implies that any person who owns land can establish a township. See !Owoses-/Goagoses (2013:90-92).
122 Section 5 of the TDLO.
123 Section 6 of the TPDLO.
124 Section 6 of the TDLO.
125 Section 6(3) of the TDLO.
126 Section 6(1) of the TDLO.
127 Section 6 of the TDLO.
128 Section 28 of the Regional Councils Act No. 22 of 1992.
129 Section 4 of the National Planning Commission Act No. 2 of 2013.
130 Mukwena / Drake (2000).
132 Haubt (2009).
134 Mukwena / Drake (2000).
135 Section 32(1) of the Regional Councils Act.
136 Sections 30(2) and (3) of the Local Authorities Act.
137 GRN (2012f:7).
138 Kidd (2011:229).
139 NACOMA (2007).
140 Article 144.
141 These include the 1992 Convention on Biological Diversity, the 1992 United Nations Framework Convention on Climate Change, and Kyoto Protocol, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.
142 Skovet al. (2010).
148 GRN (2012f:9).
149 Ibid quoting from GESAMP (1996).