Bill 143 also proposes the introduction of a new Article 72(11) which states:

“(11) The Minister may, by regulations, establish rules governing the period of validity of development permits, including provisions for varying such periods, provided that any variation shall have the effect of extending the validity of a permit or reinstating the validity of a permit after it has expired.”

The Bill seeks to introduce  a ministerial regulation-making power to determine, vary, and reinstate permit validity periods.

In substance, however, this is not entirely new. It reflects a mechanism already in active use through secondary legislation—most recently under Subsidiary Legislation 552.33 (“Extension of the Validity of Development Permits Regulations”), which has repeatedly been amended to extend or reinstate expired permits on a blanket basis.

Under the most recent amendments to SL 552.33:

  • Permits that expired between 1 January 2023 and 9 November 2023 are deemed valid until 31 December 2026.
  • Permits that expired between 1 January 2025 and the enactment date of the latest regulations are deemed valid until 31 December 2028.
  • Other classes of permits, previously valid until 31 December 2024, are extended to 31 December 2026.

These blanket extensions—made without individual application—are precisely the kind of temporal flexibility that Article 72(11) of Bill No. 143 seeks to embed in the primary statute. The difference is one of legal architecture: until now, such powers have been exercised through ad hoc subsidiary legislation enacted under general enabling provisions; Bill No. 143 would explicitly codify this capacity in the Act itself.

The practical effect is that what is now achieved via regulations such as SL 552.33—often in response to sectoral pressures, economic downturns, or construction delays—would henceforth rest on an express statutory foundation. The Minister’s ability to prolong, vary, or reinstate permit validity periods would no longer be a matter of pragmatic regulatory improvisation but a formally recognised part of the Development Planning Act’s toolkit.

Meanwhile, academic work on delegated regulation-making powers highlights the importance of explicit statutory language in defining ministerial authority. Victoria Bronstein, in “Mapping legislative and executive powers over ‘municipal planning’: exploring the boundaries of local, provincial and national control” (South African Law Journal, 2015), shows that clear statutory wording delineates the scope of ministerial discretion, reducing jurisdictional disputes and ensuring predictability. Andrew E. Røsnes, in “Regulatory power, network tools and market behaviour: Transforming practices in Norwegian urban planning” (Planning Theory & Practice, 6(2), 2005), demonstrates that flexible regulatory powers, including the capacity to alter permit durations, are essential for adapting to infrastructure delays, market cycles, and administrative backlogs without amending the core legislation.

Comparative planning systems provide further validation. In Germany, the Baugesetzbuch (Federal Building Code) grants ministers express statutory authority to vary and extend development approvals via secondary legislation, as described in Elke Pahl-Weber and Dietrich Henckel’s The Planning System and Planning Terms in Germany: A Glossary (Federal Office for Building and Regional Planning, 2008). Nicole Gurran, in Australian Urban Land Use Planning: Principles, Systems and Practice (Sydney University Press, 2011), similarly notes that several Australian jurisdictions provide statutory mechanisms for the extension or reinstatement of approvals, particularly to mitigate disruptions caused by economic downturns or extraordinary events.

 

 

Bibliography

  • Berrisford, Stephen, and Michelle Kihato. Local Government Planning Legal Frameworks and Regulatory Tools. Cambridge University Press, 2008.
  • Bronstein, Victoria. “Mapping legislative and executive powers over ‘municipal planning’: exploring the boundaries of local, provincial and national control.” South African Law Journal, 2015. Available at: https://www.researchgate.net/publication/282761497_Mapping_legislative_and_executive_powers_over_’municipal_planning’.
  • Røsnes, Andrew E. “Regulatory power, network tools and market behaviour: Transforming practices in Norwegian urban planning.” Planning Theory & Practice, 6(2), 2005.
  • Pahl-Weber, Elke, and Dietrich Henckel. The Planning System and Planning Terms in Germany: A Glossary. Federal Office for Building and Regional Planning, 2008. Available at: https://www.econstor.eu/bitstream/10419/60979/1/719731003.pdf.
  • Gurran, Nicole. Australian Urban Land Use Planning: Principles, Systems and Practice. Sydney University Press, 2011.