Conflicts and synergies between customary land use management and urban planning in informal settlements☆
Introduction
According to the state, urban planning represents the only legitimate mechanism through which land uses can be planned. Most former Commonwealth countries, including South Africa, inherited zoning codes from the global North, both due to enduring colonial legacies and academic thought (Kamete, 2013). However, in much of the global South, informal land uses are commonly informally regulated by customary land management systems (CLMS) as an alternative to zoning. Over 80% of Africa and 40% of the world’s population are subject to customary tenure (Onyebueke et al., 2020). In informal settlements, CLMS occur almost universally, resulting in more integrated, vibrant land uses with higher levels of activity than in formal developments (Chimhowu and Woodhouse, 2006).
The two systems cannot be more different. Urban planning consists of state-legitimised zoning regulations regulating land uses within rigid land-use categories according to Western social norms, and according to specific impersonal codified bureaucratic procedures. It governs relationships within a centralised system of urban management (Hirt, 2012). Urban planning is linked to a whole system of zoning schemes, development plans, local bylaws, building codes, deed restrictions, transferable development rights, planning gain, nuisance laws, architectural guidelines, business improvement districts and body corporate rules, etc.
In contrast, CLMS consist of uncodified community-legitimised procedures based on historic customs to address the uncertain legal and complex social contexts of informal developments in the global South. It is a fluid non-statutory land use management system developed to provide basic regulatory prescriptions for informal land-use activities within an uncertain political environment (Chimhowu, 2019). CLMS operates informally through personal face-to-face interactions between local actors, operating upon the authority of a plurality of authorities along multiple axes of power. It follows an idiosyncratic open-ended process of conflict resolution and cooperation in which multiple interests agonistically negotiate land use practices (Skuse and Cousins, 2007). In this system, usufruct rather than property ownership is negotiated in terms of layers of overlapping de facto entitlements, instead of state-sanctioned legal entitlements enforced through zoning.
Informal settlements consist of a mix of different land uses, tenures, authorities, and modes of regulation (McFarlane, 2012). Customary forms of social regulation provide alternative modes of regulating these uses and their externalities, despite the extreme living conditions and lack of entitlements (Onyebueke et al., 2020). This is because, in customary regulations, legitimacy is provided through de facto community cooperation, through which different land uses are regulated relationally between actors, without the need for zoning (Kudva, 2009). CLMS negotiates externalities between primary parties based on customary common law principles, rather than through a polity (Fitzpatrick, 2005). This generates the necessary degree of toleration of the numerous externalities associated with informal development. Customary mechanisms are more responsive to technological changes and economic cycles because it is self-organised flexibly and dynamically. Moreover, CLMS operates in a complementary manner to zoning, often replicating the functions of urban planning in a manner that is idiosyncratic, open-ended, and organic (Hansen and Vaa, 2004).
The research aims to analyse how informalised development is planned and regulated through the use of CLMS. Of particular interest is the tacit collaboration between the CLMS and urban planning based on implicit understandings between the community and local government authorities, and the processes of negotiation and compromise in formal-informal land use management procedures. The study focuses on how micro-neighbourhood CLMS organisations, the Streets coordinate development and negotiate externalities arising from informal development, whilst coordinating its actions within the broader structures of municipal bylaws. It focuses on how the CLMS operates in apparent disregard to normative zoning bylaws, and how formal regulatory authorities negotiate compromises to effectively manage informal development.
Section snippets
The challenges of planning informal development
In informal settlements, the categorical distinctions between the different land use zones are often superfluous. There is no real distinction between workspaces and living spaces, or even recreational spaces, as these theoretical land use distinctions traditionally do not exist in the Global South (Kudva, 2009). Juridically, informal land uses are extra-legal as it is technically illegal, but operate in legal grey areas, partially inside and partially outside formally recognised planning
How CLMS regulates informal development in the place of urban planning
Amidst the state’s failure to enforce planning regulations, informality drives the urban poor to adopt strategies from outside the formal sector to supply their working, living and recreational needs. Informality represents a gradual shift to self-determination amongst the subaltern, with a do-it-yourself attitude towards urbanism. Due to the inadequate provision of basic services, the state is seen as illegitimate or perfunctory in its authority, and thus certain of its regulations are held
Methodology
The research applies an interpretivist ethnomethodological design, inductively analysing the underlying assumptions, beliefs and understandings behind local practices through an extensive discourse-analytic approach to interviews (Anderson, 2009). The purpose of this is to discover alternate descriptions of phenomena without sacrificing the structure and theory surrounding it (Garfinkel, 1996). The primary research study area is the adjoining townships of Lwandle, Nomzamo, Greenfields, Zola,
The polycentric regulatory authorities
Due to the high densities, bewildering mix of illicit land use activities, and multicultural nature of the township, it has a hybridised regulatory structure, inheriting certain aspects of urban planning and zoning over the RDP housing substructure through the municipality and local councillors, but also operate a parallel CLMS with non-statutory regulatory powers through the Street committees over the illicit land uses and informal structures. The Street committees are autonomous voluntary
The conclusions
The township is in a grey area in terms of urban planning, with a polycentric regulatory environment and different shades of actor sovereignty. It shares some of the characteristics of informality due to the erection of backyard structures, however, it is also a zoned formal RDP housing development, albeit with a very flexible and creative zoning category - SR2. While there is a degree of zoning and formal tenure established at its inception, the greying of legislation, particularly under the
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Journal name: Land Use Policy.