ABSTRACT
The root of that concern is to be found within schedule six of the interim constitution in terms of which provinces are competent to create their own planning and development legislation. Like many other powers, my province is to keep, and exercise ... its own planning legislation 1•
Introduction
During the last two decades the elasticity of the institution of the nation state has been put to the test4 . In what has been termed the "New Regionalism" nation-states have been economically and politically integrated into larger units, as well as fragmented into smaller units, such as provinces and regions5• These two apparently opposing sets of trends have not only resulted in a proliferation of publications describing, debating, endorsing and/or deploring them, but have also found expression in a barrage of public appeals for the devolution of more power and/or functions to regions/provinces6. In addition to this, institutions like the World Bank have taken a keen interest in projects aimed at the decentralisation of power/functions in developing countries 7•
In the UK, where the call for devolved powers has had a long and troubled history8, the "New Regionalism" has since the 1997-New Labour election manifested in a number of novel initiatives. These include the creation of the Scottish Parliament, the Welsh Assembly, the Northern Ireland
Assembly, the passing of the Regional Development Agencies Act, 19989, and the subsequent establishment of eight Regional Development Agencies in England and the institution of an elected Assembly and Mayor for London10. At the same time voices have gone up, and the definite prospect been raised, for the eight other English Regions to be granted directly elected regional assemblies as well 11 • In other European countries, such as Belgium and Spain, new constitutional models have been implemented to accommodate calls for devolution 12. Further impetus for greater regional powers and functions in Europe has also been given through the European Spatial Development Perspective (ESDP) with its strong regional focus 13 and the European Commission's slogan of "Europe of the Regions" 14• An extreme view of this Europe a system termed "integrative federalism" 15 whereby " ... regions ... dissociate themselves from member states and affiliate directly to the Union" 16•
While these trends are of course of specific importance to regional planners who are often involved in voguish initiatives to transform lagging regions into economic powerhouses 17, there is a more general arena of planning interest to all of this. This concerns the question of planning legislation, over which, in for instance the case of Scotland, the Scottish Parliament has been granted legislative powers18 . And, even though it may be apparent from a recent publication of the Scottish Parliament that it has no desire to produce a new planning act19, it does have the power to do so20• Hence, suspending for a moment the de facto reality that the Scottish Parliament and other regional assemblies already have, or may in due course get the power to do so in the EU, the question can be asked: Should provinces and regions have their own planning acts? It is this debate that is explored in this chapter by making use of the South African experience with planning legislation in the six years since the first democratic elections in April 199421 •
Constitutional Arrangements
Two broad models can be distinguished as far as the division/sharing of powers and functions between national and provincial/regional governments goes, viz.:
Vertical power sharing In terms of this model a varying range of legislative powers are transferred from the centre to the provincial, regional or state governments22 . In some federal constitutions provincial/state powers are not specified, but a clause in the constitution reserves all powers not explicitly endowed upon the federal/national government for the states/provinces23. This is the case in the USA, Canada, Australia, Germany, Austria and Switzerland24. In other cases, like for example the Indian and Belgian constitutions, regional powers are expressly stated in the constitutions and all residual powers are vested in the central government25 . Either way, in this arrangement diversity is accommodated in an institutionally unified framework26 . Examples of countries in which the vertical model is in use include the United States, Canada, Australia and Belgium27 and to some extent also South Africa, India, Malaysia28 and Scotland.
