South Africa’s Town Planning: Discretionary vs Form-Based Code in Gauteng

Summary

• Regulatory Divergence under SPLUMA: While national legislation mandates unified spatial frameworks, South Africa’s largest metropolitan municipalities are adopting radically different technical paradigms to manage land use and drive spatial transformation.
• Tshwane’s Discretionary Euclidean Model: The City of Tshwane relies on the highly regulated, digitised Tshwane Land Use Scheme 2024, which emphasises strict separation of uses, granular zoning categories, and reactive, case-by-case adjudication. This model increases the upfront entitlement risk and holding costs for developers but systematically protects existing localised suburban amenities.
• Johannesburg’s Hybrid Form-Based Transition: The City of Johannesburg’s Nodal Review Policy 2019/20 introduces form-based code principles, strategically shifting from strict unit-per-hectare density caps to Floor Area Ratio (FAR) metrics in targeted transit corridors. This unlocks vertical yield and operational flexibility; however, its hybrid nature means absolute “by-right” administrative certainty remains elusive.
• Systemic Bottleneck: Despite their divergent philosophies, both municipalities suffer from severe administrative delays at the application assessment stage. These bottlenecks indiscriminately increase holding costs, stifling rapid housing delivery and economic growth across the Gauteng City region.

The governance of urban development is fundamentally determined by the regulatory frameworks that municipalities employ to manage land use, control physical form, and guide spatial economics. Land use planning systems exist primarily to resolve endemic problems of market failure, mitigate negative externalities associated with conflicting land uses, and deliver public goods, such as infrastructure, open spaces, and environmental protection. Historically, the evolution of modern town planning has produced distinct administrative paradigms, each rooted in fundamentally different legal, political, and spatial philosophies. Two of the most globally influential paradigms in contemporary urban governance are the British discretionary planning system and the American form-based code system. These systems represent opposing methodologies in the quest to balance private property rights with public interest.

In South Africa, these regulatory paradigms intersect. South African town planning represents a complex legislative framework. Historically rooted in British colonial planning traditions and subsequently utilised to enforce apartheid spatial segregation, the system is currently undergoing a profound statutory transition under the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). SPLUMA fundamentally reformed the regulatory landscape by establishing a unified national framework built upon the normative principles of spatial justice, sustainability, efficiency, and spatial resilience.

SPLUMA is an enabling act that grants metropolitan municipalities significant autonomy in designing the specific mechanics of their local planning instruments. Consequently, as municipalities grapple with rapid urbanisation, deeply entrenched spatial inequality, and severe infrastructure deficits, divergent approaches to land-use management are rapidly emerging. The City of Johannesburg is actively integrating form-based code principles to drive transit-oriented development, whereas the City of Tshwane has chosen to retain and refine a predominantly discretionary, use-based framework.

1. Discretionary Planning

A discretionary planning system is based on the idea that urban development is too complex, dynamic and context-specific to be entirely governed by inflexible, predetermined statutory rules. Rather than granting landowners a strictly codified legal right to develop according to a zoning map, this approach emphasizes flexibility, negotiation, and localized merit. In a purely discretionary model, development applications are assessed individually. The overarching spatial plan serves as an indicative policy framework—a guiding vision, if you will—rather than a legally binding, straightforward constraint. The ultimate authority lies with municipal planners and tribunals, who exercise professional discretion to balance the unique merits of a specific proposal against potential negative externalities, such as traffic congestion or the loss of neighbourhood character. This inherent flexibility enables municipalities to respond dynamically to macroeconomic shifts and extract site-specific public benefits from developers.

a) The British Discretionary System

The discretionary nature of the British planning system is not an inherent feature of common law. It is a result of specific historical and political choices. While early British interventions focused on sanitation, the defining watershed occurred with the Town and Country Planning Act of 1947.¹ Enacted by the post-war Labour government, this legislation effectively nationalised the right to develop land. Land ownership no longer carried an inherent right to build, subdivide, or change use; instead, explicit “planning permission” was required from a democratically elected local planning authority.

The technical mechanics of this system revolve around a fundamental separation between proactive plan-making and reactive development control. Local planning authorities are legally mandated to produce comprehensive development plans. However, these designations do not confer automatic, “by-right” development entitlements to landowners. The plan serves as an indicative policy document rather than a statutory absolute. Consequently, case-by-case adjudication is the primary regulatory mechanism. Planning officers and tribunals evaluate applications against the local plan and a broad spectrum of “material considerations,” including traffic generation, environmental impact, and localised design aesthetics.

b) City of Tshwane’s Discretionary System

Building on the legacy of British discretionary system, the City of Tshwane has retained, consolidated, and digitised its traditional discretionary zoning framework through the promulgation of the Tshwane Land Use Scheme, 2024 (TLUS). Tshwane’s regulatory approach remains deeply rooted in the historical practices of Euclidean zoning, prioritising the strict separation of land uses and rigorous case-by-case adjudication. The TLUS meticulously defines granular use categories (e.g., “Residential 1” through “Residential 4”) and explicitly prohibits incompatible uses from co-locating without formalised municipal consent. This creates a highly regulated, high-friction environment for property developers. Converting a residential house into a commercial asset or increasing density requires extensive motivation reports, site development plans, and statutory public participation to apply for “Consent Use” or “Rezoning.”

The observation of tribunal proceedings reveals a distinct sociopolitical dynamic inherent to this system: the discretionary nature might be regarded to empower residents who are often characterised as “not in my backyard ” (NIMBY) residents. Because adjudication evaluates subjective “material considerations,” resident associations in established Tshwane suburbs can exert significant political pressure on municipal planning tribunals to reject technically sound proposals based on perceived losses of local amenities. While this rigorously protects existing suburban property values, it substantially increases the upfront entitlement risk and holding costs for developers. Although Tshwane has digitised the submission process through the “e-Tshwane” portal, the technological upgrade handles only the administrative intake; adjudication remains a fundamentally subjective, case-by-case, and reactive process.

2. Form-Based Code (FBC)

In stark contrast to systems that emphasise the separation of activities within a building, the form-based code (FBC) system places significant emphasis on the building’s physical shape and its interaction with the public realm. At its core, an FBC is a land development regulation that prioritises physical form and urban morphology over the strict segregation of land uses as its primary organising principle. This paradigm operates on the philosophy that a high-quality, walkable built environment is best achieved through highly prescriptive graphical standards. These rules meticulously dictate architectural massing, scale, fenestration, and the critical relationship between private building facades and public streetscapes. By legislatively defining the three-dimensional physical envelope upfront through intensive community design charrettes, FBCs aim to eliminate the unpredictability of discretionary review. The regulatory bargain is straightforward: if a developer’s architectural plans strictly adhere to the codified visual and dimensional standards, administrative approval is theoretically guaranteed “by-right,” removing localised political interference.

a) American Form-Based Code System

To comprehend Johannesburg’s spatial trajectory, one must examine the paradigm in which form-based codes were explicitly designed to replace: Euclidean zoning. Following the landmark 1926 US Supreme Court decision in Village of Euclid v. Ambler Realty Co.,² American cities rapidly adopted systems focused almost exclusively on the strict proscriptive segregation of land uses and abstract numerical parameters (minimum lot sizes, deep building setbacks). Over decades, this regulatory approach fundamentally altered the landscape, facilitating suburban sprawl, entrenching automobile dependency, and making traditional, mixed-use, walkable neighbourhoods functionally illegal to build.

In response, the New Urbanism movement emerged in the 1980s. Architects and planners recognised that merely regulating land use did not guarantee high-quality urban form. The conceptual framework evolved significantly with the 2003 release of the “SmartCode,” which utilised the rural-urban transect as its organising principle. The transect provides a naturalised hierarchy for built form, ranging from untouched nature (T1) to high-density urban cores (T6), to allocate different intensities of development. The Form-based Codes Institute (now the Center for Zoning Solutions) defines an FBC as a land development regulation that fosters predictable built results using physical form, rather than the separation of uses, as its primary organising principle. Technical mechanics comprise highly integrated components:

• Regulating Plan: Designates specific building and street types at the granular level of the individual blocks and lots.
• Building Form Standards: These are highly prescriptive, graphically oriented rules governing building placement, massing, and the critical interaction between the private facade and the public right-of-way (e.g., utilising “build-to lines” to mandate a continuous street wall).
• Public Space Standards: Dictate precise dimensions of sidewalks and bicycle infrastructure, intentionally subjugating vehicular flow to ensure pedestrian safety.

b) City of Johannesburg under Nodal Review

The City of Johannesburg (CoJ) is the primary economic engine of South Africa. To counteract the severe economic inefficiencies of its inherited apartheid geography, which forces the urban poor into long, expensive commutes from the periphery, the CoJ adopted the Spatial Development Framework (SDF) 2040.³ The SDF significantly promotes a “compact polycentric urban form” and transit-oriented development (TOD). To operationalise this vision, the CoJ approved the Nodal Review Policy 2019/20, representing a decisive conceptual shift toward form-based principles. The most profound technical intervention for the property market is the shift from unit-based density to Floor Area Ratio (FAR).

Under traditional discretionary schemes, residential density is strictly controlled by a “dwelling units per hectare” metric, which limits yield and incentivises developers to build larger, more expensive units. The Nodal Review largely set aside this metric in designated high-intensity zones, relying instead on FAR and maximum height limits to determine the permissible three-dimensional envelope. This calculus unlocks significant vertical potential. A developer operating within a generous FAR envelope can mathematically subdivide the internal space into hundreds of micro-apartments or mixed-income housing units, provided the entire structure fits within the prescribed physical envelope. This fundamentally alters the financial feasibility of dense urban housing. Furthermore, the policy utilises the New Urbanist transect model to clearly signal where high-intensity development and capital deployment are expected and supported. Johannesburg is currently operating in a hybrid transition. The traditional City of Johannesburg Land Use Scheme of 2018 remains the foundational statutory document. The Nodal Review introduces form-based design guidelines to supplement, rather than replace, traditional zoning controls.

3. Implications for Town Planning and Property Development

These divergent town planning paradigms present distinct calculations regarding risk, yield, and design for property developers.

a) Entitlement Risk vs. Administrative Predictability

In Tshwane’s discretionary system, developers may face significant speculative risk. Because land designations do not guarantee permission, holding costs accrue rapidly during protracted negotiations and vulnerability to objections from NIMBYism. However, the system offers high systemic adaptability; developers can negotiate significant site-specific variances if macroeconomic conditions shift dynamically.

Conversely, pure form-based codes shift the burden of uncertainty to the upfront, proactive code-drafting phase (typically via intensive public participation). Once adopted, developers theoretically benefit from “by-right” administrative approval if they meet strict physical standards. This drastically reduces holding costs and makes construction financing easier to secure. However, because Johannesburg operates a hybrid system, absolute “by-right” is not yet realised. Planners explicitly retain final discretion in interpreting these form-based guidelines against the broader intent of the SDF 2040, meaning developers must carefully structure their Site Development Plans to satisfy both the new morphological metrics and the traditional scheme.

b) Operational Flexibility vs. Morphological Rigidity

Because FBC principles generally deregulate the internal uses of buildings, Johannesburg’s current trajectory offers developers significant operational flexibility. A building conforming to the physical envelope can interchangeably house retail or residential uses as market demands dictate, without protracted rezoning. The trade-off is morphological rigidity: developers cannot pursue cheap architectural solutions that violate fenestration or build-to-line requirements. Tshwane’s Euclidean model does the opposite: it strictly regulates use, forcing developers into complex applications to alter a building’s commercial function, although it imposes fewer highly prescriptive architectural mandates.

c) The Implementation Reality: Systemic Bottlenecks

Despite their theoretical differences, both metropolitan municipalities; Johannesburg and Tshwane, share a critical operational challenges that sets back spatial transformation. Industry research indicates that the planning approval processes for housing developments in Johannesburg and Tshwane are persistently fraught with administrative delays and systemic hindrances. Whether navigating Tshwane’s digitised discretionary system or Johannesburg’s hybrid form-based interpretations, developers face significant bureaucratic challenges commons in most cities. Ultimately, these protracted approval timelines tend to contribute to holding costs for property developers across the Gauteng City region.

Conclusion

The ongoing evolution of spatial planning systems underscores a fundamental, enduring tension in urban governance: the difficult balance between providing regulatory certainty to stimulate economic investment and retaining discretionary power to protect local amenities and mitigate site-specific impacts.

The British discretionary model, embodied by the meticulous case-by-case adjudication processes in the City of Tshwane, prioritises adaptability, localised context, and strict policy alignment. It empowers town planners to act as mediators between capital interests and community concerns; however, it exacts a steep cost in the form of systemic unpredictability and an inability to proactively guarantee cohesive urban design outcomes.

Conversely, the American form-based code system, elements of which are driving Johannesburg’s nodal review, prioritises the physical morphology and functionality of the public realm. By deregulating strict unit counts in favour of floor area ratios, Johannesburg is signalling a clear, transit-oriented physical vision to the market. However, its hybrid execution prevents the realisation of absolute procedural certainty.

As South African cities experience modern spatial transformation, the differences between Johannesburg’s form-based ambitions and Tshwane’s discretionary controls provides a real-time laboratory for urban spatial theory. Ultimately, the success of either system relies less on theoretical purity and more on the technical capacity of the municipality to efficiently administer the framework, overcome systemic administrative delays, and communicate its spatial vision with absolute clarity to the property market.

Footnotes

1. See the Town and Country Planning Act 1947: https://www.legislation.gov.uk/ukpga/Geo6/10-11/51/contents/enacted ↩︎
2. See the Case Law, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926): https://tile.loc.gov/storage-services/service/ll/usrep/usrep272/usrep272365/usrep272365.pdf ↩︎
3. See the SDF 2024: https://joburg.org.za/documents_/Documents/Johannesburg-Spatial-Development-Framework-2040.pdf ↩︎