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The Stage That Cannot Say No

A tribunal deferred the water figure to the site development plan stage and approved on the reassurance that the stage would scrutinise closely. The by-law governing that stage admits no objector and may not refuse a compliant plan. Written for practitioners.

The stage that cannot say no

A tribunal approved two hyperscale data centres in July on a four-to-one vote. The member who dissented did so because the application carried no water-use figure, and recorded what the applicant's representatives had said when asked: that this would be confirmed at the site development plan stage.

The chair, voting in favour, gave the reassurance that carried the decision. The site development plan would have to be closely scrutinised, and so would the building plan, should the site development plan be approved.

Both statements are accurate. Neither is misleading. Read the by-law that governs the stage they were pointing at, and the reassurance turns out to be structurally empty.

What the by-law says about that stage

A site development plan is defined in the by-law as a scaled and dimensioned plan showing site layout, the positioning of buildings, access, building design and landscaping. Item 123 governs it. It is submitted to the administration for approval, not to the tribunal. And the provision contains a sentence that decides the whole question:

A site development plan shall not be refused if it is consistent with the development rules of a base zoning, overlay zoning, or condition of approval.

That is item 123(5). The authority's remaining power, under item 123(6), is to require amendments of detail, directed at access, parking, architectural form, urban form, landscaping, environmental management, engineering services or similar concerns. Detail, on a plan it may not refuse.

So the scrutiny is real, and it is scrutiny of a design against rules that have already been granted. If the plan complies, it goes through. There is no discretion left at that stage to weigh whether the draw on the municipal system is acceptable, because acceptability was the rights question, and the rights question was answered in July.

There is a second lock underneath the first, and it is the one practitioners will find more interesting. Section 108(2) confines the right of appeal to the applicant, the owner, the City Manager, a person granted intervener status, and a person who lodged a comment or objection complying with the notice provisions. Every one of those categories is created by the application process. The site development plan stage generates no notice, no comment period and no objection. Nobody can enter the categories, so nobody outside the applicant holds a right of appeal against the approval of a plan they could not have commented on.

Two locks working independently. A member of the public cannot acquire the standing an appeal requires, and even holding it would achieve nothing against a compliant plan.

Nothing here is a loophole

This is worth stating plainly, because the campaigning register will reach for the word and it is the wrong one.

Every element of that structure is sound planning law doing its job. A site development plan stage that could refuse a compliant design would make development rights meaningless, and an applicant who had cleared a tribunal would face a second discretionary hurdle nobody had defined. Certainty of rights is the point. The provision exists so that having won the argument, you have won it.

The problem is not the provision. It is that a question material to the rights decision was routed to a stage built on the assumption that all such questions had already been asked.

For most development classes, that assumption holds. A shopping centre's servicing demand is broadly predictable from its floor area, and floor area was on the table at the rights stage. The land-use system is calibrated to occupancy: trips generated, population equivalent, parking, pressure on social facilities, sewerage. Those proxies work because for almost every building type, impact scales with people and floor space.

A hyperscale facility inverts that. It has almost nobody in it, and it carries an industrial electrical load per square metre that a retail development would need several thousand occupants to justify. It reads low on every metric the process uses to detect significance. This is the first development class in general practice whose impact runs inversely to the measures used to size impact, which is exactly why competent professionals produce a clean file. The instruments are working correctly on the wrong variable.

The national instrument is looking somewhere else

The obvious answer is that the environmental route catches what the planning route misses, and on this class it partly does, on one component.

The visible environmental work in this sector is generator work. A rectification currently in process at a Gauteng data centre campus covers unlawfully commenced generator capacity: ten megawatts installed in 2021 on a site that had reached roughly eleven megawatts through earlier phases, with further capacity installed and not yet operational and more planned, for a combined figure above thirty megawatts. Diesel storage on that site runs to roughly 458 cubic metres. The application is a basic assessment, triggered by the activity covering an electricity-output increase of ten megawatts or more, together with the phased-activity provision that catches increments crossing a threshold in combination.

That is a competent, properly conducted assessment. It is an assessment of the standby plant. The facility's draw on the municipal system enters only where a scoping decision is written to include it, which costs a sentence and currently costs nothing else, because nobody asks.

The phased-activity trigger deserves attention from anyone advising in this sector. It exists precisely because increments that individually stay below thresholds can exceed them together, and its use here means the instrument already anticipates the growth pattern this class follows. It also means a rectification was the route by which the increment arrived on a regulator's desk, which tells you the sequence is being priced rather than prevented.

Why an applicant should want the harder version

An approval obtained on a record that does not contain the facility's resource draw is a cheap approval and a fragile asset.

It is fragile in review, because the reviewing court or appeal authority reads the record, and the record cannot show that the question was weighed. It is fragile commercially, because the benefit claims that accompany these applications are written at a level of abstraction that no number could attach to, and an unenforceable benefit is a forecast. And it is fragile politically in a way that has nothing to do with this jurisdiction: this sector has no public constituency anywhere, its benefit claims are met with disbelief regardless of accuracy, and a developer in that position needs credible outside verification more than one with a friendly base, and cannot generate it internally.

The instruments to fix this are the ones the assessment profession already owns. An affected area drawn by shared system rather than site boundary. Cumulative municipal load assessed across facilities that nobody currently files together. Employment intensity stated as a ratio against allocated resource. A grievance route with a name on it. Monitoring that a party other than the operator can audit.

None of that requires new law. Where the environmental route is open, the scoping decision can hold every one of those questions today. Where it runs through planning, the conditions of approval are where a number can live, and conditions attached at the rights stage bind in a way that a launch page never will.

The jurisdictions that paused did not lose their sectors, and two of them have now shown what the alternative instrument looks like. Ireland's regulator ran a de facto connection moratorium from 2021 and reopened the grid in December 2025 on terms requiring anything above ten megavolt-amperes to bring its own dispatchable generation sized to its connection, to site itself where the grid is unconstrained, and to match four fifths of annual demand with renewable investment in Ireland.

New South Wales went further and did it this month. On 17 August it published a bespoke data centre policy framework, the first in Australia, resting on six performance principles that read almost exactly like the gaps described above: efficiency standards, no net cost to consumers and communities, funding additional water and energy supply, community infrastructure, supply-chain investment, and skills. The consideration offered in return is a commitment to assess a conforming application within 75 days.

Note what that is, because it is the thing missing from the South African conversation entirely. It is not a choice between approving as applied for and refusing. It is a price on the conditions, with speed to power as the consideration, and it is the strongest available answer to any applicant who treats assessment as a cost rather than as an asset.

The applicant who arrives with the draw disclosed, the cumulative picture assembled and the benefit claims written so a number can attach will have the most defensible file in the country. The one relying on close scrutiny at the site development plan stage should read what that stage is permitted to do.

Sources

The decision and the record

The instruments

  • City of Cape Town, Municipal Planning By-law, 2015. Consolidated text incorporating the 2019 amendment. Item 123 on site development plans, including 123(5) on refusal and 123(6) on amendments of detail; section 108(2) on who may appeal. The City hosts the original on its own document server, which would not answer while this was being checked, so the link here is to the consolidated public text.
  • Background Information Document, section 24G rectification and expansion, Erf 358, 401 Old Pretoria Road, Midrand, November 2025. Public participation document. Generator capacity by phase, diesel storage volumes, the listed activities triggered, and the public comment period.
  • National Environmental Management Act, 1998, and the Environmental Impact Assessment Regulations, 2014, as amended. Listing Notice 1, Activity 37 (expansion of non-renewable generation where output increases by 10 MW or more) and Activity 67 (phased activities crossing a threshold in combination).

Comparators

Related working material

Liezl Coetzee works on social performance and impact assessment for resource-intensive infrastructure. She writes Sociable Systems, a South African research and advisory practice working on AI governance, accountability and operational safety for high-stakes industries where digital failures have physical and human consequences, and maintains the SA Data Centre Register.