The issue of planning, ownership and plan approvals

Security of tenue in South Africa is essentially guaranteed by two professions, namely the land surveyor and the conveyancer. Peter Newmarch, president of the South African Geomatics Institute (SAGI), expands on the key role that cadastral surveys play in construction, municipal consent and ownership processes.

As Newmarch points out, there is a major difference between submitting a building plan and planning in general. “In terms of the latter, planning can be defined as a multidisciplinary area of work across all built environment disciplines. Within the public sector, municipalities plan for their future infrastructure needs in line with projected socio-economic trends, examples of which include new roads, water and sewer network upgrades, residential, commercial and industrial zoning,” he explains.

A building or development plan, on the other hand, is an application by a private owner or developer to change their rights, e.g. by subdividing sections of their existing property. (Public sector entities are not legally obligated to submit a full set of building plans, except for structural matters.) The application is typically submitted to the local municipality and/or applicable organ of state – like a roads department.

“The process of legally effecting this formal change in rights through the various offices of the Surveyor General is reserved work that can only be performed by a land surveyor,” Newmarch continues.

“However, any property owner or registered professional, such as a land surveyor, architect, engineer or town planner (even a lawyer), can submit an application, including a layout plan. And that plan must record all existing elements (rights, restrictions and responsibilities), including underground services and heights/contours.”

Peter Newmarch, president, South African Geomatics Institute (SAGI)

Things become challenging, however, when the layout plan has not been verified by a land surveyor. While GPS technologies now make it possible for anyone to produce a lifelike map in their application for some form of development right, Newmarch says it is important to emphasise that these are not accurate from a cadastral and mapping perspective.

“All these non-surveyor-produced maps, including self-help GPS position and Google Earth image or other non-rectified imagery, are incorrect and are not connected to the national control and level system of the country – a vital system for the orderly development of society and land administration,” Newmarch explains.

“Accepting these coordinates, heights and images at face value can and does lead to flawed decisions at the expense of a municipality and it’s not uncommon to see a map that shows water flowing uphill! I’ve also seen roads get built with hugely inaccurate quantities because the base mapping was done incorrectly or developments where

Aerial survey and cadastral overlay

water flows on to neighbouring properties or where services do not run in servitudes.”

There is a clause in the Geomatics Profession Act (No. 19 of 2013) that covers the planning and survey of all rights (as opposed to simply real rights [property ownership]). An example of a right is the permission granted to a person by an owner to live on their land for a predetermined period.

“Any application in terms of any legislation for any right which has the end objective of leading to a diagram, sectional title or a general plan is reserved for a land surveyor,” Newmarch expands.

The land surveyor’s duty is to protect the public, and the cadastral rights system, by ensuring that every prescribed legal step has been followed. In addition to ensuring that the cadastral information is accurate, this includes checking existing title deeds (which supersedes planning schemes) to ensure that rights do not unexpectedly pop out of the system and cost developers and owners time and money. There are also proclamations and a range of other avenues in which rights are recorded.

An example would be an environmental right stated in a title deed that prohibits any new development within, say, 200 m from the top of a specified hill, or an existing land rights claim. Unresolved deceased estates where no will exists is another common issue that can stall a project. From SAGI’s perspective, it should be mandatory for every property owner to have a will. “The important point to make is that the land surveyor is legally required to obtain consent from all affected parties, which requires extensive investigation and due diligence, and to record all rights and real rights so that the state can make informed decisions on any application.” Newmarch asserts.

For this reason, it is essential that building plans – and for that matter any other type of plan that needs approval (e.g. land use and development applications) – are only approved by suitably qualified municipal and allied state officials. The framework for every building plan is a cadastral boundary of the property – it forms the setting-out basis of every building. The land surveyor must confirm that the survey beacons are in place and correct to prevent encroachment on to a neighbouring demarcated property and also to ensure building lines are preserved and SANS standards of position of buildings are adhered to. (Alarmingly, SAGI estimates that some 60-70% of all property beacons are missing – which makes one wonder how buildings can even comply with legislation.)

“Only once all the steps have been verified should building commence according to the approved plan. This ensures that rights are protected. However, it also ensures that municipal property valuations are up to date and the correct rates and taxes are being collected,” says Newmarch.

“Since irregular plan approvals continue to be an issue – and, once approved, are legally challenging to reverse – we could well see a change going forward, where the law makes it a requirement for all approved applications to be channelled through a land surveyor to make sure they are spatially and legally compliant,” adds Newmarch.

“If municipalities are not accurately recording and maintaining building, infrastructure and ownership data, it becomes difficult to plan for future land usage, such as social infrastructure and low-cost housing. Unlocking the value of land development is dependent on precise cadastral information, which is the responsibility of the land surveyor,” Newmarch concludes.