The law regulates physical and land use planning including zoning requirements, institutional framework on planning, preparation spatial plans and other development control aspects.
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· This is the principal statute that regulates both physical planning and land use planning. It provides for zoning requirements, institutional framework on planning, preparation of local, regional and national spatial plans and other development control aspects including change of user, among others.
· This statute repealed the Physical Planning Act 1996 which in turn had replaced Kenya’s first physical planning legislation, the Land Planning Act of 1968 which sought to control development in urban areas through requiring preparation of town plans.
· Part II of the Act provides for various institutions in the physical and land use planning sector. These comprise of: the National Physical and Land Use Planning Consultative Forum which is the forum for consultation on the national physical and land use development plan; the National Land Commission which oversees land use planning in the country; the Cabinet Secretary who formulates policy on land use planning and coordinates planning; Director General of Physical and Land Use Planning at the national level and a County Director of Physical and Land Use Planning at the county level; a County Physical and Land Use Planning Consultative Forum for counties; County Executive Committee Member responsible for land use planning who formulates policy at the county level.
· Part III of the Act provides for various physical and land use development plans that need to be developed. They are the National Physical and Land Use Development Plan (NPLUDP), Inter-County Physical and Land Use Development Plan, County Physical and Land Use Development Plan (CPLUDP), and Local Physical and Land Use Development Plan (LPLUDP). These plans form the basis for physical and sector development in their areas of operation or provide a framework for the use and development of such land.
· Section 52 empowers a county government to declare an area as a Special Planning Area either on its own motion or upon the request of the national government if such area: has unique development, natural resources, environmental potential or challenges; has been identified as suitable intensive and specialized development activity; the development of that area might have significant effect beyond that area's immediate locality; the development of that area raises significant urban design and environmental challenges; or the declaration is meant to guide the implementation of strategic national projects; or guide the management of internationally shared resources. Accordingly, a county government that intends a particular residential area to be used in putting up huge affordable housing developments can declare such an area as a special planning area under this provision. Such an area would have a Special Area Plan that addresses a variety of issues including: infrastructure needs of the area, proposed zones in the area and proposed conditions for development. Such an area would therefore likely benefit from more attention and resources from the government such as the provision of trunk infrastructure and expedited development permissions. The Mukuru Special Area Zone is an example of this[1].
· Part IV contains provisions relating to development control whose objectives are the optimal use of land and orderly physical development, among other objectives.
· Section 56 provides that it is the county governments that have the power within their areas of jurisdiction to undertake development control. This entails: prohibiting or controlling the use and development of land and buildings in the interests of proper and orderly development of its area; controlling or prohibiting the subdivision of land; considering and approving all development applications and granting all development permissions; formulating by-laws to regulate zoning in respect of use and density of development; consider and determine development planning applications made in respect of land adjoining or within reasonable vicinity of safeguarding areas; ensure the proper execution and implementation of approved physical and land use development plans; and reserve and maintain all the land planned for open spaces, parks, urban forests and green belts in accordance with the approved physical and land use development plans.
· Section 57 provides that a person shall not carry out development within a county without development permission granted by the respective county executive committee member.
· Under section 58, application for development permission is made in a prescribed form and upon payment of the prescribed fees as detailed in the Regulations. The application must detail the proposed use of the land, the population density the land will be subjected to, and the portion of the land the applicant shall provide for easements because of the development.
· Section 58(6) is to the effect that where an applicant does not receive any written response from the county executive committee member within 60 days/2 months, such permission shall be deemed to have been given. This is an important provision in terms of expediting the approvals/development permission as has been the case in the past.
· There however needs to be put mechanisms to make this feasible and practicable, both in terms of automating applications as well as enhancing the capacity of staff in terms of numbers and skills, especially at the county level. There were attempts to automate development approval processes in the counties, which project was led by the Architectural Association of Kenya, county governments and the International Finance Corporation (IFC). The electronic permitting system known as the Electronic Development Application Management System (e-DAMS) was launched in Nairobi County and has since been adopted in at least six other counties — Mombasa, Kiambu, Machakos, Kisumu, Kajiado and Kilifi. The e-DAMS provides an opportunity to collect data on development applications to understand the supply of housing across different counties, and standardizing the fields used by various counties can be helpful to enable such data collection to support effective policy and investment.
· However, the project has stalled and the approval process remains slow and lengthy.[2] The electronic construction permit system was suspended by the Nairobi Metropolitan Service (NMS) in 2020 following concerns over fraud sparking protests among professionals.[3] This is an issue that needs to be fast tracked and expedited. Relatedly, there is a need to ensure that the approval process for all permits is a one-stop shop and automated to reduce the time spent, reduce opportunities for corruption and reduce bureaucracy.
· Section 59 provides that all plans, documents and particulars provided in the application for development permission must be prepared by relevant qualified, registered and licensed professionals. These are usually registered architects and structural engineers. In practice however, most of this documentation is usually done by unqualified persons but then signed by a qualified professional for submission in a bid to evade the high fees that would be charged if qualified and registered professionals were to draw/prepare them. This can occasion challenges in terms of competence. Accordingly, consideration may be given to the revision of scale fees.
· Section 61 of the Act provides that in determining an application for development permission a county executive committee member will: be bound by the relevant approved national, county, local, city, urban, town and special areas plans; take into consideration the provision of community facilities, environmental, and other social amenities in the area where development permission is being sought; take into consideration the comments made on the application for development permission by other relevant authorities in the area where development permission is being sought; take into consideration the comments made by the members of the public on the application for development permission made by the person seeking to undertake development in a certain area; and in the case of a leasehold property, shall take into consideration any special conditions stipulated in the lease.
· Section 61(3) provides that an applicant aggrieved by the decision of the county executive committee member in an application for development permission may appeal within 14 days to the County Physical and Land Use Planning Liaison Committee and the Committee shall determine the appeal within 14 days. A final appeal lies from the Liaison Committee to the Environment and Land Court, which is already operational throughout the country.
· Section 63 of the Act empowers county executive committee members in each county government to levy a development fee against an applicant for development permission. Each county government is required to publish Regulations in a Gazette Notice detailing the applicable rates or fees and circumstances where such fees may be levied and waived. Where a development fee is waived, the county executive committee member may require the applicant to develop infrastructure in relation to the property in question for general use by residents of the area.
· Section 64 provides that where development permission is granted and the applicant does not commence the proposed project within 3 years, such permission shall lapse. However, the development permission can be extended by another one year upon application.
· Section 65 provides that a county executive member may impose a fine or conditions on an applicant who fails to complete building works within 5 years as may be detailed in published regulations.
· Section 67 creates an offence for failing to adhere to development permission by imposing a jail term of no less than five years or a fine of no less than Ksh 1 million or both in case of conviction.
· Section 69 allows the Cabinet Secretary to develop regulations prescribing for projects that may be described as strategic national or inter-county projects and to approve development permissions for such projects. The Cabinet Secretary also offers public guidance to any public institution proposing a project of strategic national importance. The Cabinet Secretary promulgated the Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, 2019 pursuant to this provision. Affordable housing on public land or being done by a public institution such as the National Housing Corporation (NHC) can be a strategic national or inter-county project.
· Part V of the Act provides for enforcement provisions. Section 72 provides that a county executive member may serve an enforcement notice on any person including an owner, occupier, agent or developer if they are of the view that there has been commencement of developments without the requisite development permission, or a condition of the said permission has not been complied with. Such enforcement notice specifies: the development alleged to have been carried out, the measures that must be taken to regularize and within which period, and require the demolition, alteration or discontinuance of works or use of land which is in violation within a specified period. A person aggrieved by such enforcement notice is permitted to challenge such decision at the County Physical and Land Use Planning Liaison Committee within 14 days of service, with the Committee required to dispose of the appeal within 30 days. A final appeal also lies at the Environment and Land Court on matters of law only, and the decision must also be delivered within 30 days.
· Part VI (sections 73-89) establishes the Physical and Land Use Planning Liaison Committees both at the national level and at the county level, which have been constituted across all counties. These Committees advise on broad physical and land use planning strategies, policies and standards as well as hear and determine appeals from the respective national or county governments’ planning authorities.
· Section 90 of the Act empowers the Cabinet Secretary to make regulations for giving effect to the Act and specifically those relating to: forms to be used and fees to be charged under this Act; the norms, guidelines and standards for delivery of physical and land use planning services across the country; guidelines for operations of Inter-County Physical and Land Use Planning Committees; procedures for the conduct of Physical and Land Use Planning Liaison Committees; and procedure and process of handling applications for development permission.
· These Regulations apply to state agencies implementing projects of national significance under special licences or declarations.
· In particular, regulation 2 defines ‘projects of strategic national importance’ to mean projects that are conceived, designed and implemented in furtherance of the Kenya Vision 2030, the Big Four Agenda, Medium Term Plan and other national strategic objectives that arise out of the residual functions of the National Government and include programme activities or initiatives that have implications in terms of the obligatory demands on the State in terms of international conventions and treaties ratified by Kenya. This is especially important given that affordable housing forms part of the Big Four Agenda. In addition, article 43 of the Constitution provides that decent and affordable housing is one of the functions or obligations of the State. This means that the State can declare affordable housing as one of the strategic national projects which would benefit from the provisions of these Regulations. Projects in special planning areas as decreed by county governments are also considered as strategic projects under Regulation 5.
· Regulation 6 and the First Schedule to the Regulations provide for the criteria for determining strategic national and inter-county projects. Section 10 of the First Schedule provides for housing projects particularly affordable housing, institutional housing, public housing and emergency housing that is on public land held by the national government. Section 13 provides for land use programmes including land banking, land reservation, land acquisition and purchases and land titling as strategic projects.
· Accordingly, developers and other stakeholders engaged in affordable housing can take advantage of these Regulations to seek development permissions from the Cabinet Secretary as permitted under the Act irrespective of where the developments are located, instead of seeking the same from county governments hence potentially expediting the process
2. Physical and Land use Planning (Planning fees), Regulation 2021
· These Regulations regulate the charging of amounts payable for services offered by a planning authority (planning fees). They replaced the Physical Planning (Planning and endorsement fees) Regulations, 199
· Regulation 4 provides that planning authorities shall charge fees for: inspection of sites, vetting of applications for change of use and extension of use, subdivision, application for development permission, issuance of certificate of occupation, and issuance of certificates of compliance, among others.
· The fees/amounts chargeable for the different services are set out in Table 1 of the Schedule to the Regulations.
3. Physical and Land Use Planning (National Physical and Land Use Development Plan) Regulations, 2021
4. Physical and Land Use Planning (County Physical and Land Use Development Plan) Regulations, 2021
· These Regulations govern the preparation of county physical and land use development plans by respective departments within the various county governments.
5. Physical and Land Use Planning (Local Physical and Land Use Development Plan) Regulations, 2021
· These Regulations apply to all local physical and land use development plans that are prepared by various county governments (County Executive Committee Member responsible for land use planning).
· A Physical Development Plan (PDP) is made up of a survey of an area, maps and a description indicating the way land may be used by classifying the area for residential, commercial, industrial and other uses. It is a plan for an urban area.
· The Plan is initiated by the County Executive Committee Member who may outsource the services and is subjected to public participation and comments as well as from various county agencies and the Director General of Physical Planning (DGPP). The plan is then commented on by the County Physical and Land Use Planning Consultative Forum (CPLUPC) and then approved by the county assembly.
· Involvement of members of the public and other stakeholders as well as the feedback mechanism, including the provision of an appellate mechanism to challenge the inclusion or non-inclusion of comments is useful as it means that various stakeholders have a say in the Plan which guides the kind of developments that may be permitted in an area.
6. Physical and Land Use Planning (Institutions) Regulations, 2021
· They provide guidelines and procedures for physical and land use planning institutions established by the Act such as the National, Inter-County and County Physical and Land Use Planning Consultative Forums.
7. Physical and Land Use Planning (Building) Regulations, 2021
· The purpose of these Regulations is to provide for the procedures, standards and forms for carrying out development control applications and processes, and the regulation of physical planning and land use in respect of buildings.
· Part II of the Regulations provides for building plans that must be submitted to the planning authorities before an applicant may obtain development permission for erecting or altering a building.
· Regulation 5(2) provides that an application for a housing estate shall provide for a tree cover of at least five per cent of the total land area of the housing estate intended to be developed.
· Regulation 18(2) provides that every building shall be provided with adequate access to persons living with disabilities. The Regulations however seem to overly focus on mobility disabilities to the exclusion of other forms of disabilities such as sight and hearing. In addition, the significant responsibility placed on the private sector may serve to distort property markets and lead to an increase in the costs of housing.
· Regulation 25 provides that every building shall provide adequate access to persons with disability, and at least one parking space for every five hundred square metres or one per cent of the available car parking spaces whichever is higher shall be reserved for persons with disabilities, and the parking should be accessible through a lift or a wheelchair access ramp.
· Regulation 26 provides that buildings shall not discriminate against pedestrians and cyclists and that every building shall have footpaths that are well-maintained and connected and bicycle parking for bicycles. Further, a developer may be required to provide access for pedestrian access of not less than two metres wide through the development and may be compensated with additional floor area above the permitted building height.
· Regulation 27 stipulates that no developments shall be permitted where there is no provision of soft and hard infrastructure save where the developer makes provisions for such infrastructural services.
8. Physical and Land Use Planning (Liaison Committees) Regulations, 2021
· These Regulations were passed to enable the constitution of National and County Physical and Land Use Liaison Committees whose functions under section 78 of the Act include to: hear and determine complaints and claims made with respect to applications submitted to the planning authority in the county; hear appeals against decisions made by the planning authority with respect to physical and land use development plans in the county; advise the County Executive Committee Member on broad physical and land use planning policies, strategies and standards; and to hear appeals with respect to enforcement notices.
· Some counties experienced delays in establishing their liaison committees partly as a result of the regulations having not been passed. The Act at section 93 had however contemplated this situation by providing that disputes would be heard by the Environment and Land Court until such committees have been set up and as held by the court in the case of Nyeri county in Depar Limited v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another [2021] eKLR, paras 15 and 16.
9. The Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021
· The Regulations were published vide Legal Notice No. 253 of 2021 in November 2021. These Regulations replaced the Physical Planning (Building and Development Control) Rules, 1998 and the Physical Planning (Application for Development Permission) Regulations, 1998.
· The object of the Regulations is to provide for the procedures and standards for development control and the regulation of physical planning and land use.
· Part II of the Regulations provides for the process and procedure for change and extension of user.
· Part III provides for an extension of lease and renewal of leases.
· Part IV details the subdivision and amalgamation process and procedures.
· Part V contains provisions on the utilization, standards and management of easements, wayleaves and riparian reserves.[1]
· Part VI provides the procedure and requirements for the submission of development applications while Part VII provides for the processing of such development applications.
· Part VIII provides for performance conditions, monitoring and inspections.
· The Regulations also provide for the various Forms that are used in the various processes as set out in the Schedules.
