Summary and Analysis of the Physical Planning Bill, 2017

Physical Planning Bill, 2017 Analysis

1. Objects of the Act

The objects of the Act are to provide the principles, procedures and standards for the preparation and implementation of physical development plans at the national, regional, county, urban, and rural and cities level and provision of the procedures and standards for development control and the regulation of physical planning and land use.

2. Establishment of the National Physical Planning Consultative Forum

The Bill proposes to establish the National Physical Planning Consultative Forum. It will comprise of 16 members, including the Cabinet Secretary in charge of matters related to physical planning, Cabinet Secretary for matters related to economic planning, the Cabinet Secretary in charge of Environment, the Cabinet Secretary for Roads and Infrastructure, the Cabinet Secretary in charge of social and community development and the Cabinet Secretary in charge of culture. Their role is to provide a forum for consultation on the National Physical Development Plan, to promote effective coordination and integration of physical development planning and sector planning and to give advice on the mobilization of adequate resources for the preparation and implementation of physical development plans & strategies.

3. Functions of the National Land Commission

The functions of the National Land Commission in relation to the Act would be to monitor and oversee physical planning in Kenya, to prepare status reports on the preparation and implementation of physical development plans in Kenya and to develop monitoring framework and formulate oversight parameters for physical planning.

4. Functions of ;

1. Cabinet Secretary

The Cabinet Secretary is responsible for formulating a national policy on physical planning, issuing in the Gazette policy statements, guidelines and circulars on general and specific aspects of physical planning, approval of National Physical Development Plans and monitoring and overseeing the technical arm at the national level in the performance of functions.

2. National Director of Physical Planning

It also proposes the establishment of National Director of Physical Planning who shall advise and be responsible for physical development planning. For one to be appointed as a National Director of Physical Planning, one has to be a citizen of Kenya, to be registered as a planner under the Physical Planners’ Registration Act, 1996 and must possesses a postgraduate degree in urban and regional planning or related discipline from a recognized university.

It is the responsibility of National Director of Physical Planning to advise the government on strategic physical planning matters that impact the whole country and to formulate national physical planning policies, guidelines and standards.

3. County Executive Committee Member in charge of Physical Planning

The County Executive Committee Member in charge of Planning shall formulate a county policy on physical planning, monitor and oversee the planning function and approve county physical development plans.

4. County Director of Physical Planning

It proposes to establish the post of the County Director of Physical Planning who shall advise and be responsible to the County Executive Committee Member in charge of physical planning. The qualifications for the County Director of Physical Planning are the same as for the National Director of Physical Planning. He/she shall advise the county government on physical planning matters that impact on the whole county, to formulate county physical planning policies, guidelines and standards and to undertake research on matters relating to physical development planning at county level.

5. Types of Physical Development Plans

1. National Physical Development Plan (NPDP)

The National Physical Development Plan that will initiated by the Cabinet Secretary and will be finalized by the National Director of Physical Planning. The Plan will define strategic policies for the determination of the general direction and trends of physical development and sectoral development in Kenya and provide a framework for the use and development of land. It will cover an implementation period of 20 years and may be reviewed after 10 years or as necessary when special needs arise.

The National Director shall consider relevant national policies, ensure effective public participation and consult the National Physical Planning Forum before the initiation of the Plan and submit proposed plan to it for consideration and input before its final approval.

The Cabinet Secretary has a responsibility to publish a notice in the Gazette and 2 newspapers of national circulation of the intention to prepare the plan. The plan should be completed after 24 months after publication of the notice. The Cabinet Secretary may also extend the time by a year. Within 30 days of the preparation of the National Physical Plan, the Cabinet Secretary shall publish a notice in the Gazette and 2 newspapers of national circulation informing the public that the draft is available and interested persons can comment.

2. Regional Physical Development Plan (RPDP)

It can be formulated by two or more counties either by agreement or out of compelling necessity. A Regional Physical Planning Committee that will consist of the National Director of Physical Planning (who shall be the chair) and the County Executive Committee member for physical planning for each county will prepare the plan. The plan should define the scope of the plan and define the geographical area to which the plan relates.

3. County Physical Development Plan (CPDP)

It will be prepared once every ten years by the county government. It has to conform to the National Physical Development Plan. There is a responsibility on the County Executive Member in charge of physical planning to ensure the county physical development plan is prepared & published within 18 months for the time the notice of intention to plan is published. The main aim of this plan is to guide rural development & settlement and to provide a basis for infrastructure and service delivery.

Modification of a CPDP can only be done in two instances;

1. If there are practical difficulties in the execution of the plan of the enforcement of that county development plan or;
2. There has been a change of circumstances since it was approved.

When this happens, a County Executive Committee member in charge of spatial planning, on his motion or on recommendation of the county government, may initiate the modification of a CPDP. It can only be initiated 8 years after the plan was published in the Gazette.

4. Local Physical Development Plan (LPDP)

It is a plan for the area or part thereof, of a city, municipal, town or urban council and includes a plan with reference to any trading/marketing centre. It will be prepared by the county government in respect of a city, municipality, town or unclassified urban area as the case may be. Such a plan may be for long-term physical development, short-term physical development, urban renewal or redevelopment. This plan can be initiated by a County Executive Committee Member in charge of physical planning.

6. Development Control

This is the process of managing or regulating the carrying out of any works on land or making of any material change in the use of any land or structures in order to achieve a purposeful utilization of land in the interest of the general welfare of the public. Its main objectives are to ensure orderly physical development, to ensure optimal land use and to ensure the proper execution and implementation of approved physical development plans.

Planning authorities have been granted, within their areas of jurisdiction, some of the following powers;

1. To prohibit or control the use and development of land and buildings in the interest of proper and orderly development
2. To formulate by-laws to regulate zoning
3. To control or prohibit the sub-division of land

1. Development Permission

One cannot carry out development within the area of a planning authority without permission from the authority. It is an offence for a person to commence development without permission from a planning authority and is liable on conviction to a fine not exceeding Ksh. 500, 000 or to imprisonment for a term not exceeding two months or both.

If a person has commenced a development without permission from the relevant authority, the authority may require the person to restore the land to its original condition or as near as to its original condition and this shall take 90 days. In the event where a person fails to do so, the planning authority may undertake to restore the land as required and may recover the cost of restoration from the person.

Where a person has contravened any provisions of this Act, the planning authority may revoke development permission.

2. Application for Development Permission

In the application, one has to indicate the proposed uses of the land, the population density to which the land will be subjected to and the portion of land which the applicant shall provide for easements. An easement is a right to cross/use someone’s land for a specified purpose. Therefore, it means the application should outline where electric power supply, water and sewerage networks etc. will pass through.

If an applicant is not the registered owner of the land, he/she has to receive the written consent of the registered owner of that land and provide it to the planning authority. Where a written response is not received within 60 days, such permission will assume to have been granted.

However, where permission was granted but no development has started on the land within 2 years, the permission granted lapses. However, the applicant may seek extension of permission and it may be granted if deemed necessary. A fine may be imposed where an applicant fails to complete the building works within 5 years.

Moreover, a licensing authority shall not grant license for the commercial/industrial use or occupation of any building which has not been granted development permission.

3. Appeals

If one is aggrieved by the decision of a planning authority with regards to granting of development permission, they can appeal to the County Physical Planning Liaison Committee within 14 days and it shall be heard and determined within 14 days. If the individual is still aggrieved by the decision of that committee, they can appeal to the Environment and Land Court.

4. Offences Relating to Development Permission

It is an offence if a person either;

1. Uses or permits any land or building to be used against any conditions given by a planning authority when granting development permission
2. Starts, undertakes or carries out-

1. A development where development permission was revoked
2. A development where development permission has been modified and the development does not conform with the development permission
3. A development where the building works are inconsistent with the plans approved by the planning authority.

In such a case, one is liable to a fine not exceeding Ksh. 500, 000 or to imprisonment for a term not exceeding 2 months or both.

7. Access to Information

The Bill proposes that a planning authority may demand the production of all registers or other records or instruments belonging to, any public officer or any person in which are contained particulars of any land or property affected by the relevant physical development plan. Any request for information shall protect the rights enshrined in Article 31 of the Constitution.

Article 31 of the Constitution of Kenya, 2010 states that “Every person has the right to privacy, which includes the right not to have-

1. Their person, home or property searched
2. Their possessions seized
3. Information relating to their family or private affairs unnecessarily required or revealed; or
4. The privacy of their communications infringed.

It is not clear at what stage the planning authority may demand this information or how they will access it. Despite guaranteeing the right in Article 31, the Bill has not attempted to provide proper guidelines as to how the process will occur and as a result, the right to privacy may be abused.

8. Preservation of Heritage Sites

The county government may, after consultation with the Cabinet Secretary responsible for national heritage, serve on the owner/occupier of a building which in the opinion of the county government is of special architectural value or historic interest, an order prohibiting the demolition, alteration or extension of such a building. There is compensation for owners of such buildings for loss of use and income.

9. Enforcement Notice

A planning authority may serve an enforcement notice when a developer starts development on any land without development permission or when any condition of a development permission granted has not been complied with.

Any person who has aggrieved by an enforcement notice may appeal to the County Physical Planning Liaison Committee within 14 days and the committee shall hear & determine the appeal within 30 days. If aggrieved by the decision of the Committee, one can appeal to the court only on a matter of law and the court shall hear and determine the appeal within 30 days.

Offence- Non-compliance of an enforcement notice makes one liable on conviction to a fine not exceeding Ksh. 100, 000 or to imprisonment for a term not exceeding two months or both.

10. Types of Physical Planning Liaison Committees

1. National Physical Planning Liaison Committee

The function of the Committee is to advise the Cabinet Secretary on broad physical planning policies, strategies and standards and to hear and determine appeals under the Act. However, it is worth noting that the Chief of Defence Forces is a member of the Committee. It is not clear what his role is.

If a member of the committee has a personal interest in a matter being considered, they have to declare their personal interest and not take part in any proceedings related to the matter. It is an offence for a member not to disclose interest and is liable on conviction to a fine not exceeding Ksh. 100, 000 or to imprisonment for a term not exceeding 2 months or to be both.

2. County Physical Planning Liaison Committee

They have three functions; to hear and determine complaints and claims made in respect to application submitted to the planning authority in the county, to hear appeals against decisions made by the planning authority with respect to physical development plans in the county and to hear appeals with respect to enforcement notices.

Appeals shall be in writing and shall be heard and determined within 30 days of being filed. Appellants shall be informed of the decision within 14 days. The determination of the committee shall be considered as a judgement of the court and shall be filed in the Environment and Land Court. There is a duty for participants to appear and failure to, is an offence resulting to a fine not exceeding Ksh. 25, 000.

Also, a person who has made an appeal before a County Physical Liaison Committee may withdraw it in writing before the appeal is determined.

All in all, the Bill provides sound proposals for the planning, use, regulation and development of land in the interest of defence, public safety, public order, public morality, public health or land use planning.

This article was written by
Sylvia Katua of Mzalendo Trust .
It was published on Nov. 20, 2017.