Cape Town Office 3rd Floor Greenmarket Place • 54 Shortmarket Street • Cape Town 8001 • South Africa PO Box 5227 • Cape Town 8000 • South Africa Tel: (021) 481 3000 • Fax: (021) 423 0935 • Website • www.lrc.org.za PBO No. 930003292 NPO No. 023-004

Your Ref: Our Ref: HS/lw

10 November 2014 The Director-General Care of Mr Sunday Ogunronbi Department of Rural Development and Land Reform Room 605 224 Helen Joseph Street Capitol Towers Pretoria

per fax to (012) 323 6419 & 0866928882 Private Bag X833 Pretoria 001

Dear Sir

RE:

Spatial Planning and Land Use Management Act – Draft Regulations 2014: Traditional Authorities and Mining

1

We refer to the General Notice issued by the Minister in terms of section 54 of the SPLUMA inviting comments on the draft regulations, such comments to be sent to the department by 10 November 2014.

2

We propose that: a)

Part F: Land Use Management in Areas under Traditional Leadership and more specifically regulations 96 to 98 dealing with

National Office: Cape Town: Durban: Grahamstown: Johannesburg: Constitutional Litigation Unit:

:

J Love (National Director), K Reinecke (Director: Finance), EJ Broster S Magardie (Director), A Andrews, S Kahanovitz, WR Kerfoot, C May, M Mudarikwa, HJ Smith FB Mahomed (Acting Director), A Turpin S Sephton (Director), C McConnachie N Fakir (Director), T Mbhense, C van der Linde, J Brickhill (Head of CLU), M Bishop, G Bizos SC, T Ngcukaitobi, S Nindi, A Singh, M Wheeldon, W Wicomb

2

allocation of land rights, land development on land in traditional area, and land development application by member of traditional community, be deleted; b)

General norms and standards as contemplated in the Act be included in the regulations;

c)

Norms and standards dealing with mining and land use management be included in the regulations;

d)

The draft regulations be brought to the attention of rural communities affected by traditional authorities and/or by mining, that the draft regulations be workshopped with such communities, and that both the Department and the Portfolio Committee engage in a process of public consultation and public involvement before traditional authorities are given powers and functions relating to land use management.

3

We say this because:

a)

the draft regulations fail to meaningfully support the Constitution and the Act, including the rights of citizens and communities to land reform, tenure reform and redistribution, the right to housing and accommodation, the right to culture and the right to development and participation in decisions about development;1

b)

The SPLUMA, the provincial planning statutes, the Traditional Leadership and Governance Framework Act of 2003 [TLGFA], the provincial traditional leadership statutes, and the draft Traditional Affairs Bill published by COGTA, cannot or should not give new or

1

The right of a community to decide on its own development path underpins the social and economic rights contained in our constitution and is aptly expressed in the African Charter signed and ratified by South Africa: Article 22 1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development… They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

3

augmented statutory roles, powers or functions relating to land use management to traditional councils.

Constitutionally, land use

management and local planning is [largely] the preserve and responsibility of municipalities. To the extent that sections 211 and 212 provide for a potential statutory role for traditional authorities, beyond the role conferred on them under customary law, both SPLUMA and the TLGFA do not authorise statutory planning and land use management functions to such bodies. In addition, the draft regulations 96 to 98 are ultra vires SPLUMA; c)

The draft regulations and the Act do not protect communities against land use changes such as mining that may involve relocation of communities and sterilisation of land without meaningful community participation in such planning decisions, and real benefit to communities from such development;2

d)

The draft regulations fail to secure community participation in planning procedures on communal land, pay scant attention living local customary law decision making procedures, and ignore the provisions of the Interim Protection of Informal Land Rights Act;

e)

The draft regulations fail to take into account recent developments and policy instruments and statements including: i.

the Green Paper on land reform which emphasises culturally appropriate development;

ii.

the Guidelines for the Formulation of Spatial Development Frameworks,3 prepared for Department of Rural Development and

Land

Reform

which

emphasise

extensive

public

participation in plans and budgets as envisaged by sections 2

The requirement, under customary law and the interpretation in the Endorois decision of the right to development contained in the African Charter, of free prior informed consent would protect communities against invasive development projects unless their support and benefit is sought and achieved 3 http://www.ruraldevelopment.gov.za/phocadownload/spatial_Planning_Information/SDFGuidelines/A4.pdf and http://www.sapi.org.za/sites/default/files/documentlibrary/Department%20Rural%20Development%20and%20Land%20Reform%20SDF%20Ev aluation%202011%20Book%203.pdf

4

151(1) (e), 152 and 195(e), which sections oblige municipalities to encourage the involvement of the public and communities in local government matters, including policy-making, and which, in a practical manner, deal with the articulation and alignment of SDFs, the Land Use Management System (LUMS), Land Use Schemes and IDPs; iii.

The National Development Plan,4 which envisions irrigation schemes that will transform rural landscapes and the small scale farming sector across the boundaries of local and district municipalities, the transformation of human settlements, and which, significantly, clarifies that the role of traditional authorities do not encroach on the jurisdiction and terrain of the state;5

iv.

The State Land Lease and Disposal Policy approved by the minister and issued by the department in July 2013, contains specific policy requirements and considerations relating to authorisation for decisions regarding the lease and disposal of communal trust land by the community of rights holders and the Minister under IPILRA, equity participation and rental determination. The policy emphasises that the provisions of IPILRA must be strictly adhered to in that customary law decision making processes, including the hierarchy within decision making structures, as well as statutory protection and

4 5

And the draft Communal Land Tenure Policy (CLTP) presented by the DRDLR “A layer of complexity comes from the role assigned to traditional leadership. Traditional leadership plays an important role in facilitating communication with South Africa’s citizens to improve the effectiveness of developmental local government. However, confusion emerges when traditional forms of authority are legislated, as traditional leadership structures may then displace or duplicate the role of the state.” Elsewhere the NDP emphasises the transitional status of the SPLUMA as a response to the CC judgment in the DFA case, and that an urgent and comprehensive review of the national planning system, and further legislative and institutional reform are required to address deficiencies in the planning system. The NDP recognises upfront that the main challenge for rural development, since 1994, has been the marginalisation of the rural poor. Poor communities must take the centre position and the state must take extraordinary measures to promote poor communities, not traditional leaders.

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participation measures for the benefit of women and directly affected rights-holders, must be complied with.

Traditional

leaders and authorities are not afforded extraordinary powers with regard to the award or disposal of tenure rights.

f)

On 27 February 2014, the President lauded traditional leaders for their participation in municipal planning, saying:6 “We appreciate your participation and the advisory role you continue to play in the drafting of Integrated Development Plans (IDPs) of Municipalities. In this manner, matters that are important to traditional communities find expression in the development plans of municipalities.” The draft regulations were published in July this year. The President’s statement was limited to the advisory role of traditional leaders and did not encourage any extension of powers of traditional authorities to include traditional authorities “to perform the land use management powers and duties of a municipality” – which is now provided for in draft regulation 96(1).

4

The Legal Resources Centre is a non-profit, public interest law firm. Much of the work of our organisation is devoted to representing poor, rural communities, and our comments on the SPLUMB are on behalf of such communities.

5

This letter introduces our annotated comments on regulations 96 to 98 and proposals for the development of specific regulations relating to communal areas, as well as regulations to IPILRA, which are attached.

6

The LRC has represented and continues to represent citizens and communities in litigation involving customary law and its status, development on communal land, and community participation in

6

http://www.cogta.gov.za/index.php/uncategorised/530-president-jacob-zuma-opens-thenational-house-of-traditional-leaders-

6

development projects such as mining and the decision to authorise mining and prospecting.

Our clients include the communities that

successfully challenged the constitutionality of the Communal Land Rights Act of 2004, which Act gave extensive powers to plan, zone, subdivide and title communal land. The LRC represents communities and

individuals

who

have

given

instructions

to

challenge

the

constitutionality of provincial traditional leadership legislation that purports to give traditional councils the power to extract levies and taxes from rural communities. 7

Our opposition to those aspects of the bill that involve the participation of traditional leaders and traditional authorities, without providing for the facilitation of general community participation under customary law, is not opposition to the institution of traditional leadership, or to customary law. There is widespread acceptance of the valuable role played by customary law and the need for indigenous legal processes to be recognised and supported. The statutory regulation of customary law should not deny it the potential to develop in consonance with the Bill of Rights as envisaged in section 39(3) of the Constitution.

We are

concerned about the manner in which new laws, including the Traditional Leadership and Governance Framework Act of 2003, bolster unilateral chiefly power and undermine indigenous accountability mechanisms. The TLGFA, founded as it is on the artificial boundaries and powers created by the Bantu Authorities Act of 1951, is criticised for entrenching the colonial and apartheid distortions and divisions that were central to the creation of the Bantustan political system and its use to justify the denial of equal citizenship to all South Africans.

8

The resolutions of the African National Congress at the 52nd National Conference, held in Polokwane in December 2007, are relevant to the draft regulations. Various resolutions under the chapter heading ‘Rural

7

Development, Land Reform and Agrarian Change’ are relevant to the context in which the draft regulations are being considered. The party resolved to:

“Strengthen the voice of rural South Africans, empower poor communities and build the momentum behind agrarian change and land reform by supporting the self-organisation of rural people; working together with progressive movements and organisations and building forums and structures through which rural people can articulate their demands and interests... “Build stronger state capacity and devote greater resources to the challenges of rural development, land reform and agrarian change... “Ensure that the allocation of customary land be democratised in a manner which empowers rural women and supports the building of democratic community structures at village level, capable of driving and coordinating local development processes. The ANC will further engage with traditional leaders, including Contralesa, to ensure that disposal of land without proper consultation with communities and local governments is discontinued. 9

Both the National Development Plan of the National Planning Commission and the Green Paper on Land Reform emphasise agrarian transformation and changes in production relations.

Rural local

government and governance in general must also be geared to the transformation process. The Rural Women’s Assembly7 of 2011 focused on skewed power and governance relations in rural areas.8 It is in this

7

MEMORANDUM to the South African Presidency, and Parliament from the Rural Women of South Africa International Rural Women’s Day October 15, 2011

8

“Agrarian reform, redistribution and tenure 1. Equal rights and access to land, water and natural resources for women producers 2. Ensure that traditional governance systems do not discriminate against women’s land rights. “Traditional governance and customary law 11. All laws and traditional structures including the traditional courts Bill, the traditional councils and the traditional leadership and governance framework must be brought into line with the constitution and operate according to its values.

8

context that the role of traditional leaders, and the furtherance of their role as envisioned by the draft regulations, must be considered. 10

Finally, and with reference to the minutes of your workshop held on 16 September 2014, which we attended, we point out that the “master plans” of the Bafokeng and Bakgatla do not, in our view, conform with the Constitution or SPLUMA.

Thank you for the opportunity to make this submission.

Yours faithfully

[signed] LEGAL RESOURCES CENTRE Per: HENK SMITH and WILMIEN WICOMB

Copies to: The Chief Director: Spatial Planning & Information Department of Rural Development & Land Reform Attention: Sunday Ogunronbi/ Rajesh Makan Private Bag X833 Pretoria 0001 e-mail: [email protected] [email protected] [email protected]

13. End discrimination against women within all traditional systems and end traditional harmful practices. 14.Rural women from all walks be represented equally in all systems particularly the most marginalized and poor women.

9

Note on objects of SPLUMA and its relationship with the draft regulations relevant to communal land and our comments and proposals below

Principles 1) All organs of state must apply the development principles set out in the Act to all aspects of spatial development planning, land development and land use management. These principles are spatial justice, spatial sustainability, efficiency, spatial resilience and good administration, as fleshed out in section 7 of the Act.

Norms and standards 2) The Minister of the DRDLR must, after consultation with provincial and local

authorities,

prescribe

norms

and

standards

for

land-use

management and land development in accordance with certain guidelines set out in the Act., including national policy, social inclusion and efficient and effective processes.

The prescribed norms and

standards are to be part of the regulations as envisaged in section 54 of SPLUMA. 3) The Minister must, after consultation with organs of state in the provincial and local spheres of government, prescribe norms and standards for land use management and land development that are consistent with this Act, the Promotion of Administrative Justice Act of 2000 [PAJA], and the Intergovernmental Relations Framework Act.

However, PAJA is not

applicable to traditional authorities and their functions, unless the contrary is specifically provided for in statute law. This is an indication that the legislature, in SPLUMA, did not envisage the assignment of statutory powers to traditional authorities.

Uniform procedures 4) The Act aims to create uniform procedures and processes applicable to the entire country for land development approvals by proposing one set

10

of procedures for obtaining permission to change land use. This should enhance performance management and facilitate capacity building. It should furthermore ensure alignment with the National Environmental Management Act, 107 of 1998, for environmental impact assessments. 5) The draft regulations envisage that traditional authorities will have jurisdiction over communal land or traditional authority precincts of local land use management systems or schemes or plans. The act envisages a uniform system and not different systems delineated along apartheid spatial boundaries.

Municipalities 6) The land-use regulators, enabled to take decisions within the realm of SPLUMA, will be municipalities (by way of by-laws regulating land-use management schemes), provinces (by way of land-use tribunals) and national government, in that the Minister of the DRDLR will be the regulator of last resort. The Minister must, within available resources, provide support and assistance to provinces and municipalities in the performance of their land-use management functions. The Minister must also monitor compliance, progress made and the quality and effectiveness of municipal spatial development frameworks. 7) The draft regulations envisage the outsourcing of planning and management functions to traditional authorities which are not one of the designated regulators in SPLUMA.

Land use management 8) Municipalities must, in the development, preparation and amendment of land use schemes, provide general policy guidance. Traditional councils can be incorporated in this process, subject to certain provisions in the Act. The role of traditional councils is limited to policy guidance and advice, rather than constituting part of the regulatory and policing mechanism itself.

11

9) Land-use schemes must: include land use zoning and regulations for the entire municipal area; take cognisance of environmental management instruments; allow for incremental introduction of areas such as communal land “under traditional leadership”, rural areas, informal settlements, slums and areas not subject to earlier schemes; include affordable housing in residential land development; and include development incentives to promote a spatial development framework.

10) Land-use schemes may include: provision for use and development with written consent; specific requirements regarding special zones; and scope for the variation of conditions of the land-use scheme. Land-use schemes must be consistent with the municipal development framework, must have the force of law and must replace all existing schemes.

12

Annotations to the relevant regulations Part F: Land Use Management in Areas under Traditional Leadership Allocation of land rights 96. (1) A traditional authority may conclude a service level agreement with the municipality in whose municipal area that traditional authority is located as contemplated in the Traditional Leadership and Governance Framework Act, 41 of 2003 or any of the applicable provincial Acts providing for traditional leadership and governance in terms of which the traditional authority performs the land use management powers and duties of a municipality as contemplated in the Act on behalf of the municipality in the traditional area concerned. The TLGFA does not define “a municipal area [within which] a traditional authority is located.” In fact the boundaries of traditional councils is contested. There are many disputes pending in the provincial commissions. There are several traditional authorities in many district municipal and local municipal areas. To the extent that the sub regulation provides that the TLGFA and provincial statutes authorise traditional councils to “perform the land use management powers and duties of a municipality as contemplated in [SPLUMA] on behalf of the municipality” it is pointed out that the TLGFA does not confer any land use functions to traditional councils. The closest approximate function deals with IDPs in the following terms: “facilitating the involvement of the traditional community in the development or amendment of the integrated development plan of a municipality in whose area that community resides.” Constitutionally, a provincial law cannot confer statutory planning function to a traditional council, and in any event the TLGFA does not authorise such. (2) If a traditional authority concludes a service level agreement with the municipality as contemplated in subregulation (1), that traditional authority must undertake land use management in its traditional area in accordance with provisions of that service level agreement and all the provisions in this Chapter that apply to a municipality applies, with the necessary changes, to the traditional authority. In cases where the municipality had outsourced its planning powers to a traditional authority in terms of a service level agreement, this sub regulation purports to confer municipal powers to such traditional authority. Open ended discretionary service level agreements are not authorised under SPLUMA. Traditional authorities are not municipal entities as defined in the Municipal Systems Act. Sub regulation 2 places the traditional council with a service level agreement in the shoes of the municipality for purposes of chapter 6. It means that the traditional council will have to or may do amongst the following: 1. Categorise land development applications [reg 52] 2. Appoint a land development officer [54] 3. Appoint a tribunal [55] 4. Appoint an administrator [60] 5. Appoint a registrar [62]

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6. Keep a record and registry [69; 74] 7. Appoint a service provider 8. Receive guarantees and benefits from conditions [87] 9. act as if is a municipality and landowner when townships are established [95] Traditional councils do not ordinarily have these powers and functions. Land ownership by traditional councils is governed by the ULTRA, and it is in disuse. Traditional councils are not subject to the PFMA or the MFMA. The provincial traditional leadership statutes and treasury regulatory authorities of provinces are not designed or capacitated to handle township establishment. Traditional councils to not have taxation powers or a tax base to establish and maintain the bureaucracy and make the appointments envisaged in the chapter.

(3) If a traditional authority does not conclude a service level agreement with the municipality as contemplated in subregulation (1) that traditional authority is responsible for providing proof of the allocation of land rights in terms of the customary law applicable in that traditional area to the applicant of a land development application in order for that applicant to submit it in accordance with the provisions of these Regulations. This is an extra ordinary right afforded to a traditional authority. The traditional authority is expected to play the role of a local deeds registry, transfer agency and, by implication, estate agent. The regulations provide no checks and supervision of these functions which may render rights holders whose rights are not recognised or even known to a particular traditional authority vulnerable. The rights of women and elders may be ignored or undermined. Legislation such as IPILRA, the repealed CLARA, the Upgrading of Land Tenure Rights Act and the Land Titles Adjustment Act require extensive inquiries into the rights of holders in order to address conflictual claims, boundary disputes, overlapping holdings, consequential use and common use areas. It is unprecedented in our law that the power to recognise rights on communal land is given to a single body at the level of traditional council which may comprise of 10 000s of households and 100 000s of adults resident in 10s of villages. Traditional authorities are not the source and authority of customary law. The CC has expressed itself in this regard in a number of judgments including Bhe, Alexkor, Shilubana and Sigcau. In many communities proof of customary ownership or title, or holder ship of informal land rights may depend on participation of neighbours, village councils, headmen or other institutions depending on the living local customary law. The costs of proof of title or certification are left to the discretion of traditional authorities. Such costs or levies are unknown in living local customary law. Land development on land in traditional area 97. (1) No land development on land in a traditional area may be considered and approved by a tribunal unless such land development is (a) first sanctioned by the traditional authority with jurisdiction in the area in which the land development is to be undertaken in accordance with customary law; or

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1 In terms of living local customary law a land development including the erection of buildings or structures and modest land use change or more intensive agricultural development, may invoke customary law decision making processes involving neighbours, the village council and the headman’s council. But it would not involve the traditional authority/council. 2 IPILRA already requires community consent and the consent of affected land rights holders in terms of both living customary law and a statutory supervised general meeting of affected holders in respect of disposals and development. The subregulation thus implies two customary law processes: a) one involving the traditional authority which may be the inappropriate authority; and b) one involving the meeting of affected rights holders and the community affected. 3 The subreg refers to traditional authority “sanction”. Firstly, “sanction” is an odd word to describe the outcome of customary consultative decision making processes. Second, the traditional authority or traditional council recognised under the TLGFA is not an appropriate arbiter for a number of reasons: a) the traditional council is not the owners of communal land b) the council cannot make decisions without full council meetings and many uncategorised land development applications and decisions would not be appropriate for full council consideration c) traditional councils for populations of up to 350 000 residents are inappropriate distant bodies which is not appropriate for bureaucratic or local routine decisions d) many traditional councils are non compliant with the provisions of the TLGFA, have not held elections, have not been audited, and their boundaries and or leadership and or royal houses are contested in provincial commissions. 4 The costs of or levies in respect of applications are left to the discretion of traditional authorities. Such costs or levies are unknown in living local customary law. (b) if the traditional authority of the land in question has a service level agreement with the municipality as contemplated in regulation 96, the land development is approved in accordance with the precinct plan of that traditional authority, the provisions of that service level agreement and the planning and participation procedures of that traditional authority. The subregulation now introduces two new instruments unique to traditional authorities which are a) not described or regulated elsewhere in the regulations or b) known to customary law. these are: a) precinct plan b) planning and participation procedures of the traditional authority We have considered the masterplans including the spatial aspects thereof, of the Bafokeng and the Bakgatla. These plans, if they are meant to amount to precinct plans envisaged in the regulation, do not comply with SPLUMA and their constitution and adoption were not participatory or democratic.

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(2) Notwithstanding the requirements of regulations 75 and 76, notice required to be given in the case of land in a traditional area must be given in such manner that will ensure that all members of the traditional community resident in the area in which the land development is to be undertaken may reasonably have notice thereof and in accordance with customary law. (3) Despite participation in any customary law forum where notice is given of a land development, any member of the traditional community may object or comment as contemplated in regulations 77 and 78 in regard to any land development application and may be made in an official language chosen by the person making such comment or objection. (4) The failure to afford a person referred to subsections (3) or (4) the opportunity of making a comment or objection in an official language chosen by that person is grounds for setting aside any decision taken by the municipality on the relevant land development application concerned. Land development application by member of traditional community 98. (1) The provisions of this Chapter apply to a land development application on land in a traditional area and the applicant must, in addition to the required , submit proof that the land was allocated to him or her by the traditional authority and that the development was approved by the traditional authority. (2) Any land development application by a member of a traditional community on land in a traditional area may be made in an official language chosen by the applicant. (3) If by reason of illiteracy or lack of technical knowledge a person referred to in subsection (1) is unable to comply strictly with the requirements applicable to the process of receiving, preparing and promoting a land development application in terms of this Act, then the municipality must condone any non-compliance with such requirements consistent with fair and equitable practices,. (4) If any person comments or objects to any application made in terms of subsection (1) in a language which the applicant is not familiar with then the municipality must, at its expense, translate such comment or objection into a language that the applicant understands and is familiar with. (5) The failure to comply with subsections ((3) or (4) must be grounds for setting aside any decision taken by the municipality on the relevant land development application concerned.

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Proposals: 1

2 3

4

The land use management challenges facing rural communities on communal land warrant special consideration and special regulations under SPLUMA. Such regulations must be compatible with the provisions of IPILRA. In addition, the department must develop regulations under IPILRA. The development of regulations should be subject to extensive consultation with affected rural communities on communal land. The State Land Lease and Disposal Policy9 approved by the minister and issued by the department in July 2013, contains specific policy requirements and considerations relating to the lease and disposal of communal trust land relating to authorization of such disposal decisions by the community of rights holders and the minister under IPILRA, equity participation and rental determination. The policy emphasizes that the provisions of IPILRA must be closely adhered to in that customary law decision making processes, including a hierarchy of layers of decision making structures, as well as statutory protection and participation measures for the benefit of women and directly affected rights-holders, must be complied with. Traditional leaders and authorities are not afforded extraordinary powers with regard to the award or disposal of tenure rights. The disposal policy, to the extent relevant, and the proposed SPLUMA and IPILRA regulations should be aligned. IPILRA is augmented by policy statements and directives of the Department of Rural Development Land Reform. The Department developed a policy and procedure governing land development decisions which require the consent of the Minister of Rural Development and Land Reform as nominal owner of the land. That policy and procedure was adopted by the policy committee (POLCOM) of the Department on 20 November 1997 and amended on 14 January 1998. The policy and procedure was approved by the Minister’s predecessor and placed on the website of the department. The policy provides that: “1.2 The lack of clarity about the status of such land has created serious disputes in some areas. Disputes are triggered when a change in land use or a development is proposed. The disputes tend to degenerate into a conflict over power and authority between local or provincial government on the one hand, and chiefs and tribal authorities on the other. In such disputes the chiefs typically say that government is disregarding or confiscating their land rights by treating the land as if it were state owned. Local and provincial governments on the other hand complain that chiefs

9

http://www.ruraldevelopment.gov.za/phocadownload/Policies/state_land_lease_and_disposal_po licy_25july2013.pdf

17

5

or tribal authorities are using their land rights to keep government out of the area, thus depriving the people living there of access to government resources and assistance. It is necessary to clarify the rights and responsibilities involved, and adopt procedures to govern these situations. This should provide clarity and end the confusion which in some instances has led to disputes.” The policy contains specific provisions relating to the appropriate land rights inquiry and processes which are relevant to the proposed draft regulations under SPLUMA and IPILRA. In the absence of norms and standards in the draft regulations, conflict about the jurisdiction of, for example, the national minister of mineral resources and mining tenure grants may conflict with land use planning and management decisions. Norms and standards relating to land use decisions and planning generally, and specifically for communal areas, are essential.