The Preservation of Development of Agricultural Land Act, Act 39 of 2024 (“PDALA”) was assented to by the President on 20 December 2024. A commencement date is still to be determined and published in the Government Gazette.
The Department of Agriculture (“DAF”) has already commenced preparing concept regulations for PDALA. IPP attended the provincial workshops of DAF for the concept regulations.
PDALA authorises the Minister for Agriculture to, amongst other things, determine listed activities and designate land as protected agricultural land.
The listed activities being proposed will significantly expand DAF’s consenting authority beyond the Subdivision of Agricultural Land Act, Act 70 of 1970 (“SALA”), which was limited to consenting to the subdivision of agricultural land, only.
PDALA and its regulations will empower DAF to be consenting authority for any charge in land use (zoning) of agricultural land.
Synopsis
- PDALA is prepared under the rubric of Section 27 of the Constitution, that the state must take reasonable legislative and other measures to achieve the progressive realisation of everyone’s right to sufficient food and further, the functional areas of concurrent national and provincial legislative competence in Part A of Schedule 4 of the Constitution including “agriculture”.
- The objectives of PDALA include:
- Promoting the preservation and sustainable development of agricultural land;
- To establish evaluation and classification systems for agricultural land;
- Demarcating protected agricultural areas to ensure that agricultural land is preserved and protected against non-agricultural uses in order to promote long-term agricultural production;
- Implementing a coordinated national framework, including norms, standards and authorisations for the use of agricultural land;
- To provide for mitigating measures to counteract the loss of agricultural land and the impact of non-agricultural developments on agricultural production capacity; and
- To establish a national agro-eco information system with geo-referenced information to support the objects of PDALA.
- PADALA defines “agricultural land” to mean “…all land in the jurisdiction of the Republic, excluding land-
- in a township as defined in the Deeds Registries Act, or land for which a township register, separate subdivision register or sectional title register, as defined in the Sectional Titles Act, 1986 (Act 95 of 1986), has been opened;
- which, immediately prior to the date of commencement of this Act, was lawfully zoned for non-agricultural purposes by an organ of state subject to the conditions of the zoning;
- which has been excluded in terms of the Subdivision of Agricultural Land Act, 1970 (Act 70 of 1970), by means of a notice in the Gazette; or
- which the Minister excludes in terms of section 5(2);”
- PDALA empowers the Minister of Agriculture to determine listed activities for agricultural land and for which an agro-ecosystem authorisation will have to be applied for, before such listed activity may be undertaken.
- The approach in PDALA is similar to that of the National Environmental Management Act, Act 107 of 1998, whereby the regulations are determinative of the trigger for any authorisation and the requirements for applying for authorisation.
- DAF is in the process of preparing not less than thirty-four sets of regulations to be introduced incriminatingly and to give effect to PDALA. DAF has not published the draft regulations for public comment, to date.
- The concept draft Preservation and Development of Agricultural Land (Norms and Standards Information Agro-ecosystem Authorisation Requirements for Listed Activities Involving Land Use Change), Regulation (“Land Use Change Regulation”) was one of the several concept regulations discussed at the DAF workshops.
- The Land Use Change Regulation determine:
- The listed activities for a change in the use of agricultural land and for which an agro-ecosystem authorisation will be required;
- The nature of the application that will need to be submitted for the different listed activities and land uses, subject to the classifications of the agricultural land; and
- The competent authority to consider any such application.
- The provincial agricultural sector plans to be prepared in terms of the concept draft Preservation and Development of Agricultural Land (Contents of Provincial Agricultural Sector Plans) Regulation and the classifications to be determined in the Preservation and Development of Agricultural Land (Norms and Standards for Determining the Classification of Agro-Ecosystems) Regulation, will inform the classification of all agricultural land.
- The Land Use Change Regulation also determine land uses that will not be permitted on certain classifications of the agricultural land.
- By way of example of the listed activities being proposed in the Land Use Change Regulation, an agro-ecosystem authorisation for a non-agricultural land use such as mines, residential townships and housing developments, may only be applied for on agricultural land classified as agricultural constrained land and secondary agricultural land.
- The subdivision of agricultural land is also a listed activity in terms of the concept draft Preservation and Development of Agricultural Land (Norms and Standards for Listed Activities: Subdivision) Regulations (“Subdivision Regulations”) and which activity an agro-ecosystem authorisation is required.
- The Subdivision Regulations determine the minimum economically viable farm size for different agricultural land and agricultural activities, which is a consideration to be taken into account for any application for an agro-ecosystem authorisation involving subdivision.
- The draft conceptual Regulations in terms of the Preservation and Development of Agricultural Land Act (“PDALA Regulations”) will determine the finite detail for inter alia the requirements for applying for an agro-ecosystem authorisations, the requirements of reports to accompanying applications, the timeframes for deciding on any application and the appeal procedure for any person aggrieved by any such decision for an ecosystem authorisation.
Conclusion
- Stakeholders must actively participate in the public participation of the draft regulations, when published by the Minister for public comment.
- Anyone intending to develop agricultural land may be required to apply for an agro-ecosystem authorisations in terms of PDALA, in addition to such other authorisations as may be required in terms of national and local government legislation, before commencing with any development.
- Developers and consultants will have to consider employing integrated authorisation procedures to limit delays and avoid unnecessary duplication of process when an agro-ecosystem authorisation is required.
- The classification of agricultural land may need to be established when performing any due diligence of agricultural land and to establish whether an agro-ecosystem the authorisations that will be required to develop any agricultural land.
Travis Baikie of IPP Attorneys
* If you would like to receive copies of the concept draft Regulations mentioned in this article, kindly do not hesitate to contact IPP Attorneys.
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