6. PHYSICAL PLANNING
This section analyzes the particular laws and policies in the physical planning value chain, identifies gaps and makes recommendations.
The physical and land use planning component is crucial in the entire gamut of the housing value chain as it stipulates the nature and kinds of housing developments permissible in an area, as well as provides for approvals required in line with the local planning/zoning policies. These planning approvals predate the construction phase and consume a significant amount of time and costs, thus affecting the delivery of housing. Accordingly, there is a need to not only expedite the issuance of these approvals but also to reduce the associated bureaucracy and costs, say through automation and institutional reconfiguration. Most planning approvals are vested in individual county governments with the national government charged with formulating the overall national land use policy and a national spatial plan. However, given the interconnectedness of planning and the need for compatibility of the various land uses which may either be complementary or even conflicting, there are linkages and a critical need for collaboration between national and county governments. This is illustrated by the provision of national, intercounty and county physical and land use consultative forums and development plans.
The following laws, regulations and policies with respect to physical planning were reviewed. These are summarized in Annex C with links to their original source for further reference.
Gaps in the policy or legislative/institutional framework
GAP
RECOMMENDATION
The Urban Areas and Cities Act 2011 and the County Governments Act 2012, require local spheres of government to develop county spatial plans, town plans, and municipal plans in line with the National Spatial Plan.
As of July 2024, only 19 out of the 47 county governments had prepared and were implementing their county spatial plans with the technical assistance of the National Land Commission.[1] While some are still in development, very many towns and municipalities have not prepared these plans, yet they are key to planning and organization of the respective areas. This is largely on account of lack of capacity/expertise and possibly funding.
There is a critical need for county governments, municipalities and towns throughout the country to be supported in developing and expediting their plans to enable orderly physical development. These should all draw from the National Spatial Plan.
(The SUED program is an example of supporting municipal towns with spatial plans)
While rezoning and other planning interventions improve land values, there is no mechanism for these to be retained for developmental purposes. As a result, private landowners benefit from unearned economic rents as land prices escalate. This impacts on both private transactions as well as compulsory acquisition.
A detailed review of land values and property price dynamics, and measures to leverage these in support of affordable housing (and other developmental objectives) is needed, given the competing pressures, especially in urban areas. With this information, it will be possible to reform the planning system to introduce land value capture measures while reducing incentives for land speculation.
Laws/Policies/Regulations requiring review/amendment and enforcement
· Sessional Paper No. 1 of 2017 on National Land Use Policy
· National Land Use Policy Implementation Monitoring and Oversight Tool
· Kenya National Spatial Plan (2015 – 2045)
STATUS / ISSUE
RECOMMENDATION / OPPORTUNITY
The Sessional Paper identifies challenges such as the absence of secure land tenure systems, the high cost of land and building materials, low levels of income, a shortage of skilled labour, poor infrastructure and inadequate funding, which together result in inadequate shelter. While these challenges are all well noted, and recommendations for each have been developed, they have not been implemented. In particular, the recommendation for investment in infrastructure (safe water, drainage, solid waste disposal etc. especially in urban areas) has not been given attention.
The Sessional Paper on National Land Use Policy deserves greater attention and should be implemented in favour of the affordable housing sector. This will require attention to dedicated funding and coordination.
In 2022, the NLC created a monitoring and oversight tool to track the implementation of the Policy. The impact of this has not yet been felt.
The NLC requires support in deploying the monitoring and oversight tool, with respect to urban development
The National Spatial Plan seeks to address the disconnect between economic and spatial planning that has led to uncoordinated and unguided development. It establishes a broad physical planning framework that provides physical planning policies to support economic and sectoral planning. While this plan has been in place for seven years, it has largely not been implemented.
There is a need to promote the implementation of recommendations of the National Spatial Plan. This would include ensuring the development of stronger institutional structures to implement plans, and greater private sector participation. Local spatial Plans should better articulate the connection between spatial and economic factors, bringing these into planning initiatives and providing limited budgetary support in this regard.
The provisions of the Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, 2019 allow developers of strategic national and intercounty projects (including affordable housing projects) to seek development permission directly from the Cabinet Secretary of Lands and Physical Planning.
The provision for developers to obtain approvals for large intercounty affordable housing projects from the Cabinet Secretary requires an implementation framework – that is, the administrative procedures that developers must follow to access this opportunity and speed up approvals.
STATUS / ISSUE
RECOMMENDATION
The Physical Planning Handbook was prepared in 2008 to guide professionals in physical and land use planning. It is however based on the Physical Planning Act 1996. Given the Constitution of Kenya 2010, devolution, and the enactment of the Physical and Land Use Planning Act 2019, the handbook is now outdated and in need of review. The Ministry of Lands and Physical Planning has already developed a concept paper to enable this.
A review and update of the Physical Planning Handbook is critically needed to ensure it aligns with the current legal and institutional framework. Within this, there are opportunities for special attention to key planning challenges, for example, the management of land values, and the realization of sustainable human settlements.
STATUS / ISSUE
RECOMMENDATION
Section 33 of the Urban Areas and Cities Act provides for the establishment of public-private partnerships between county, municipal, and town boards with utility companies (both national and international) to deliver social infrastructure. Such PPPs have not, however, been actualized. This is an area for improvement given the need for such social infrastructure and the financial outlay required.
There is an opportunity for technical assistance to be provided in support of PPP development as envisioned in the Urban Areas and Cities Act.
Section 33(2) of the Urban Areas and Cities Act provides for cross-city and cross-municipality services to overcome local infrastructure challenges. While the law allows for the joint financing of cross-city and cross-municipality services, the legal and administrative mechanisms to give effect to this provision do not yet exist.
There is a need to develop an implementation framework to allow for the delivery of cross-city and cross-municipality services. This may help deal with the infrastructure challenges and promote housing development in urban areas.
STATUS / ISSUE
RECOMMENDATION
While the Physical and Land Use Planning (Building) Regulations, 2021, provide for 5% green space, the National Building Code 2024 is unclear. According to the judgment in Erick Otieno Ogumo & 2 others v Chigwell Holdings Limited; County Government of Nairobi & another (Interested parties) 2022] eKLR – green space in smaller developments may not be feasible and county should provide adequate green space in their urban plans.
Research in support of a debate around the scope and form of ‘green space’ is necessary so that the requirement can be realized within the scope of affordability constraints. What constitutes ‘too small’ for the green space requirement, will need to be defined. The opportunity of using footpaths might also be considered. This will enable an approach whereby the county takes responsibility for green space more broadly, when it is impossible at a development level.
STATUS / ISSUE
RECOMMENDATION
County zoning laws are largely outdated and unresponsive to current patterns of development such that developments get approved as ‘exceptions’ to the existing plans. For example, extremely high densities are being allowed without approved zoning plans to support the densities. This runs the risk of creating infrastructure backlogs. Further, there is a high prevalence of poor uses adjacent to each other (e.g., industrial uses near housing or entertainment joints/bars) which leads to noise and effluent pollution. There have been complaints around noise pollution in residential areas mainly from bars and restaurants, with little to no enforcement from county governments. It has fallen on courts to deal with these issues (Elisabeth Kurer Heier & another v County Government of Kilifi & 4 others [2020] eKLR )
There is a critical need for county planning frameworks to engage with actual patterns of urban development, so that they can be productively shaped and managed. This would require a review of development as currently happens and then an interrogation of current zoning laws and guidelines to identify points of conflict. New, inclusionary and sustainable zoning laws and guidelines will likely need to be developed.
County governments should ensure stringent implementation of noise pollution laws, especially in urban areas.
County zoning laws pay limited or no attention to more recent efforts to ensure urban resilience, (public transport, green space e.t.c), or the ongoing process of informal urban expansion.
As above – a review of county planning frameworks should lead to new zoning laws and guidelines to accommodate new planning priorities and intentions.
The Nairobi City County Development Control Policy provides parameters upon which development applications for land use and development within the county would be evaluated and approvals granted. The Policy provides for the following interventions:
Adoption of a one-stop development approval approach through the constitution of an Urban Planning Technical Committee composed of members from different regulators.
Imposition of an infrastructure levy on development applications to facilitate infrastructure development in collaboration with other Government agencies supporting infrastructure.
Nairobi City County is to incorporate and develop a policy on green building concepts incorporating rainwater harvesting, water recycling and reuse and green energy.
Implementation of the proposals under the Policy particularly on the constitution of the Urban Planning Technical Committee and processing of development applications through the e-development permit system. This will simplify and make the approval process faster.
The proposal relating to infrastructure levy should be subjected to stakeholder engagement prior to imposition. The County should be wary of imposing a high levy which will disincetivise investments in real estate sector in the city.
STATUS / ISSUE
RECOMMENDATION
The Bill proposes that government agencies setting up commercial and residential buildings should reserve at least five percent for acquisition by persons with disabilities. The terms for acquisition should include longer repayment periods and interest-free.
This is a welcomed proposal, however, the Bill is yet to be subjected to the first reading despite being introduced to the National Assembly on 12th June 2023. This is delaying its enactment and subsequent implementation.
Fast track the enactment into law of this Bill. There is another Persons with Disabilities Bill No.7 of 2023 which was passed by the Senate and is currently before the National Assembly for consideration. This proposal is not included in the latter Bill.
The National Assembly should consider consolidation of the two bills or amend Bill No. 7 of 2023 to include the proposal relating to housing as provided in Bill No. 26 of 2023.
[1] National Land Commission, ‘Summary of Status of Land Use Planning Report’ February 2024. Counties which have approved spatial plans are Baringo, Bomet, Kericho, Kilifi, Lamu, Makueni, Kilifi, Kwale, Narok, Nakuru, Kajiado, Siaya, Trans Nzoia, Nairobi, Mombasa, Bungoma, Migori, Kirinyaga and Nyandarua.
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