Physical Planning in Kenya

PLANNING REGULATIONS

INTRODUCTION

The essence of spatial planning is to create order to development within human settlements which in turn promotes safety, economy and beauty.

Certain controls /constraints are necessary if people have to enjoy their freedoms / rights (esp. for the weaker members or land uses). 1.1 Definitions

Planning:

• Basic human activity
• Deciding what to do in advance of doing it
• Concerned with providing the right site, at the right time, and in the right place, for the right people (Ratcliffe, 1981)
• A discipline based on the premise of order, convenience, economy and beauty.
• Keeble (1965) described it as the art and science of ordering the use of land and the siting of buildings and communication routes so as to secure the maximum practicable degree of economy, convenience and beauty.

Urban Planning, in this regard, has been defined as a conscious direction of human effort aimed at attaining a rational, efficient and cost effective land use in urban areas. The same definition can also be applied to the planning of both rural and regional areas which are the other domains of planning.

In both urban and rural areas, for instance, the acknowledgement that land is a constant resource in space and time implies the need for deliberate planning and development of such areas in order to enhance their utilization, based on the existing technological capacity (Mwangi, 2002). Development: The making of any material change in the use or density of any buildings or land or the subdivision of any land (Physical Plannning Act Cap 286 of 1996) Sustainable development: “Development that meets the needs of current generations without compromising the ability of future generations to meet their own needs” (WCED, 1987, p.

45).

Development control:

A planning activity that tries to cut down on possible infringement on freedom of others in human settlements * A process by which legal permission is granted to a person or groups of persons to implement a development project and/ or programme, * ensuring that the said activity
is undertaken according to specified local and/ or area wide development policy, technical and legislative provisions contained in the official plan, * And the legal action that can be taken against those who implement their projects and/ or programmes contrary to the plan ( Mbwagwa, 2000 and Mwangi, 2002). Zoning: consists of dividing a particular region of land into districts or zones and specifying the types of land uses that are allowed and prohibited for each zone. This is performed by a municipal corporation or county and is typically specific to certain city regions. Zoning, in its basic form, attempts to separate the various land uses. Legal Instruments: are crucial in planning because they specify the planning functions and mandates of concerned planning organizations that deal with the rural planning schemes and projects. Technical Planning Instruments: include development plans and other related schemes that are used in guiding development in rural and regional areas, and which are prepared by or carried out under the professional stewardship of qualified urban and regional planners (Goodman, 1968 and PPA, 1996). 1.2 Understanding Urban and Regional Planning

Planning in Kenya is carried out at three different levels, namely: a) National level,

1. Regional level and
2. Local level

Goals of Urban and Regional Planning:

Providing and / or improving access to means of livelihood (food, shelter and employment opportunities) with ease in terms of physical and economic efficiency; b) Improving economic productivity revolving around market functions as a means of social exchange among the settlement (urban/rural) population; Reducing ill health caused by environmental pollution and degradation; Minimizing the social and economic decay caused by high density of human population and buildings, and increasingly, the need to Involve communities and other actors, through good governance and functioning support/ administrative institutions. This in turn makes planning and development control crucial instruments of public policy formulation and implementation. (Mwangi, 2002). 1.3 Objectives of Planning

To promote accessibility

To enhance employment of resources as economically as possible so as to achieve the greatest possible improvement (benefits) with the limited resources available. To ensure separation of incompatible land uses from each other and association of compatible or mutually related uses. To create the most appropriate utilization of space and the most effective arrangement of services in order to ensure the greatest economy practicable in time and movement , the preservation of property values and assets and the full realization of benefits e) To make work, living/leisure environments safe, healthy, efficient with the use of resources, in service delivery systems and to ensure that people’s habitat is aesthetically pleasing. To come up with institutions that function effectively and efficiently in service delivery o ensure harmony between the built and the natural environment (ecosystem sustainability). Concerned also with the development of and/or redevelopment of towns/cities and the rural environment in order to relate to the existing and the proposed redevelopments. To integrate the goals of sustainability, good governance and economic viability. The specific objectives of Planning as stipulated under Physical Planning Act include: To improve the land and provide for its proper physical development. To secure suitable provision for transportation, public purposes, utilities and services; To secure suitable provision for commercial, industrial, residential and recreational areas including parks, open spaces and reserves. Making of suitable provision for the use of land for building or other purposes. 1.8 To re-plan/construct the whole or part of the plan and To control the order, nature and direction of development in such areas. The planning process

1. PROBLEM IDENDIFICATION
2. GOAL(S) FORMULATION
3. OBJECTIVE(S) SETTING
4. DEVELOPMENT OF STRATEGIES
5. CONSTRAINTS IDENTIFICATION
6. SURVEY (SOCIO-CULTURAL & POLITICAL-ECONOMIC FACTORS) 6.
   MODELLING OF OPTIONS / ALTERNATIVES
7. SELECTION OF BEST ALTERNATIVE
8. IMPLEMENTATION
9. MONITORING, EVALUATION & REVIEW (back to 1)

PLANNING INSTITUTIONAL FRAMEWORK

Institutions are structures and mechanisms of social order and cooperation governing the behavior of a set of individuals within a given human collectivity along governing rules. Institutional framework refers to the authoritative structures that society establishes for managing access to use of resources as well as conflict management in society Physical planning and Development is guided by various statutes within the Constitution with various institutions mandated to oversee their implementation. Since the time Town and country planning was adopted by the colonialists to date, various institutions have been established and commissioned to undertake planning and development. These include:

Ministry of Lands with it four departments of Land Administration, Physical Planning, Surveys and Land Adjudication and Settlement. – Their mandates are spelt out in various relevant land and physical planning acts. County Governments

Ministry of Local Government and All Local Authorities- their mandates are spelt out in the Local Government Act (outgoing) Apart from the above, there are many other relevant Ministries, Parastatals and Professional Organizations/Bodies – all these also are governed by their own acts and regulations; for example, National Environmental Management Authority (NEMA) with its Environmental Management and Coordination Act of 1999. Usually, the regulatory planning schemes such as Development plans are approved by the Minister responsible for Physical Planning, while the more specific action planning schemes that form part of development applications are approved (i.e. granting of permission) by County government/Local Authorities. The approval process involves consultation with relevant agencies whose recommendations are essential before granting approval.

Some of the recommending authorities and their key roles in the planning process are as follows: Some of the Actors in the Planning Process and their Key Roles: ACTOR| KEY ROLES|

Minister|

• Approval (endorsement) of Physical Development Plans.|

Director of Physical Planning (including District & Provincial Physical Planners)|

• Ensuring Conformity to Existing and/ or Approved Plans.
• Ensuring compliance to planning standards and regulations.| Liaison committees|
• Evaluation of development applications
• To resolve conflicts emanating from planning approval process|

Other Government Ministries|

• Supervision of developments
• Enforcing development conditions.
• Undertaking planning related activities and developments within their area of work
• Information

County Government

• coordinating integrated development planning within the county
• ensuring integrated planning within the county
• ensuring linkages between county plans and the national planning framework
• ensuring meaningful engagement of citizens in the planning process;
• ensuring the collection, collation, storage and updating of data and information suitable for the planning process; and
• Ensuring the establishment of a GIS based database system.|

Local Authorities

• To manage public land on behalf of the national Government and county governments
• To advise the national government on The National Land Commission Act, 2012
• Watch dog of any planning work being carried out, by monitoring and having oversight responsibilities over land use planning throughout the country.
• Develop and maintain an effective land information management system
• Ensure compliance with the principles of land policy set out in Article 60 (1) of the Constitution|

Director of Survey (including District Surveyors)|

• Providing base-maps for preparation of plans
• Ensuring plans conform to existing surveys to avoid duplication etc.
• Advising suitability of implementation Surveys.|

Chief Engineer Roads

• Protection of classified Roads reserves
• Ensure smooth interaction of all road networks.

Public Health Officer

• Protection of Public health considerations.

Agricultural Officer

• Ensuring agricultural land is put into viable and productive use.|

Parastatals and Boards (including NEMA, Kenya Power, Kenya Pipeline Company, Kenya Roads Board, KFS, development authorities, WRMA, among others)

• Granting consent to changes arising from new planning schemes.
• Promoting harmonious co-existence.
• Undertaking planning related activities within their area of jurisdiction
• Information

Neighbouring Properties

• Granting consent to changes arising from new planning schemes.
• Promoting harmonious co-existence.
• information

The public

• Ensuring compliance with plans,
• Consensus on the need for planning,
• Plan implementation.|

PLANNING AND DEVELOPMENT CONTROL INSTRUMENTS

Objectives of development control

• To ensure implementation of physical development projects conforms with physical development plan proposals and recommended enforcement action.
• To guard against injurious development to both human and the physical environment
• To ensure that planning standards, regulations and procedures are up-dated from time to time in order to accommodate changes that might otherwise bring conflicts.
• To ensure that strong controls are exercised so that surrounding areas do not suffer or deteriorate as various developers, particularly industrialists, carry out their activities.
• To secure proper use of land and ensure that planning powers are not misused in the process of implementation.

Town and Country planning Regulations and Acts:

Overview

To give plan legitimacy to the planning profession, legal statutes and institutions have been put in place to govern and regulate it. The aims of the Acts and Regulations include:

Making provision for orderly and progressive development of land in both urban and rural areas and to preserve the amenities thereof
Granting permission to develop land and other powers of control, over the use of land, of purpose ancillary to or connected with mattes aforesaid. The principles of the Acts include, amongst others, the following:

• Preparation of development plans to facilitate development of infrastructure, housing and social services
• Provision for the establishment of boards to assess application for planning permission and
  grant approval for development
• Provision for the delegation of planning powers to responsible Local Authorities / Private Practitioners. 4.3.2 Rationale of Planning Regulations:

Arguments in support of planning and its related regulations include, amongst others, the following: * Land, as a resource, is limited and yet there are many competing uses; which point to the need for some guidance and regulations to assist in the distribution of the scarce resource amongst competing uses. * There is growing need to incorporate environmental concerns in the development of human settlements, in particular, the provision of open spaces, reduction of traffic congestion and associated pollution and promotion of effective garbage and sewage management ( Bubba, 1991). The issue of compatibility of land uses and the use of buffer zones where necessary becomes critical. * The free market mechanism often fails when it comes to the provision of adequate social services and public utilities. This then, brings in the Government and Local Authorities, especially, in the provision of public goods and services such as roads, electricity, refuse and sewerage facilities. “Weaker” but very vital land uses such as open spaces, green belts and wetlands are poorly protected under free market mechanism as they cannot stand the strong competition from, for instance, commercial, industrial and residential land uses. * The free market acting alone is also said to fail in providing the most appropriate locations for non-profit making uses of land, such as roads, sewerage plants, fire stations, and recreation/open spaces. Planning and its related regulations comes in to assist the market by adding proximity and accessibility aspects to the non-profit making services and activities, and thus promotes their commercial viability or makes the use of such lands more profitable. * Well instituted and enforced planning regulations are essential in the realization of the goals and objectives of sustainable human settlements. The paper discusses some of these goals and objectives here below. * The validity of some of the planning regulations is currently being debated and hence the need for some critical assessment (Nyabuti, 2008). * With the move towards sustainable development, professionals in the built environment are increasingly being called upon to work in teams or consortiums that holistically look at issues. On this basis, it is crucial that ISK professionals familiarize themselves with various terms and regulations that are relevant in the professional practice, among which are planning regulations.

LEGAL FRAMEWORK

This refers to the various acts of parliament and other pieces of legislation that affect physical planning. They are as follows: 4.4.3 THE CONSTITUTION OF KENYA, 2010
The Constitution is the supreme rule of law in Kenya. It guarantees fundamental rights and freedoms for the citizens. This right among others includes right to clean and healthy environment, adequate and decent housing, right to participate in decision making on issues affecting them. Chapter five of the constitution provides for use and management of land in a manner that is equitable, efficient, productive and sustainable. Article 66 provides for regulation of land use and property and therefore creates a basis for land use planning in Kenya. This provides a foundation for town and country planning practices. Article 69 provides for the management and protection of the environment. The constitution also gives planning responsibilities to the county governments as provided for under chapter eleven on devolved government. 4.4.4 PHYSICAL PLANNING ACT CAP 286 of 1996

‘An Act of Parliament to provide for the preparation and implementation of physical development plans and for connected purposes’ The Act empowers the Director of physical planning under Section 24 (1)to prepare in reference to any government trust or private lands within any area of jurisdiction of a city, municipal, town or urban council, or with reference to any trading or market centre a local physical development plan. Section 29 states that, subject to the provisions of this Act, each local authority shall have power

• To prohibit or control the use and development of land and buildings in the interests of proper and orderly development of its area
• To consider and approve all development applications and grant all development permissions Section 30(1) directs that no person shall carryout development within the area of a local authority without a development permission granted by the local authority under

Section 33.Section 31(a) indicates that for purposes of development control, and to ensure compliance to the various regulations as there may be in a respective local authority, a person requiring development permission shall make an application in the form prescribed in the Fourth Schedule (PPA1), to the Clerk of the local authority responsible for the area in which the land concerned is situated. Section 33 (1) grants the local authority powers to grant permission for development, or refuse to grant permission to an application under Section31,depending on whether the application of the development satisfies the regulations set for developments or not. Sections 29, 30 and 33 of this Act therefore place the responsibility of development control under Physical Planning.

This is practised through instruments of planning such as: Change of use, extension of use/ lease, amalgamation, environmental and social impact assessment studies, land subdivisions.

PHYSICAL PLANNERS REGISTRATION ACT, NUMBER 3 OF 1996

‘An Act of Parliament to provide for the registration of physical planners and for purposes connected therewith’ Part II of this Act provides for the establishment of a board to be known as the Physical Planners Registration Board, which shall be charged with the registration (of only qualified) and regulation of the activities of and conduct of physical planners. This act ensures that only qualified and certified(by the board) physical planners prepare physical development plans. Persons seeking to be registered as physical Planners must fulfil the following requirements as outlined under Section 12 of this Act. (1) Subject to this Act, a person shall be entitled, on making an application to the Board in the prescribed form and on the payment of the prescribed fee, to be registered and to have his name entered in the register if— (a) he is the holder of a bachelor’s or postgraduate degree in urban or regional planning or both from any university which is recognized for the time being by the Board and has passed an examination prescribed by the Board; (b) he has been admitted as a corporate member of an approved professional institution whose qualifications for such admission are not less than those prescribed in paragraph (a); or (c) if before the commencement of this Act he is a corporate member of the Architectural Association of Kenya (Town Planning Chapter). (2) A person shall not be eligible to take the examinations prescribed by the Board unless he has had two years post qualification practical experience in physical planning. (3) Notwithstanding the fact that an applicant is qualified in terms of subsection (1), the Board may require the applicant to satisfy the Board that his professional and general conduct has been such that, in the opinion of the Board, he is a fit and proper person to be registered under this Act and the Board may direct the Registrar to postpone the registration of the applicant until it is so satisfied.

Unregistered persons are not allowed to practice in planning activities as outlined under section 21: (1) After the expiration for six months from the commencement of this Act or such further period as the Minister may, by notice in the Gazette, allow either generally or in respect of any particular person or class of persons— (a) no individual shall carry on business as a registered physical planner unless he is a registered physical planner under this Act; (b) no partnership shall carry on business as registered physical planners unless all the partners whose occupation involves the preparation of plans in respect of land under the Physical Planning Act (Cap. 286) and are registered physical planners; (c) no body corporate shall carry on business as registered physical planner unless the directors thereof whose occupation involves the preparation of plans in respect of land under the Physical Planning Act (Cap 286) and are registered physical planners. (2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding twelve months or to both The following are Planning Professional misconducts outlined under LEGAL NOTICE No. 123 under THE PHYSICAL PLANNERS REGISTRATION ACT, 1996

These Rules may be cited as the Physical Planners (Professional Misconduct) (Procedure) Rules, 1998.  In these Rules, “Professional misconduct”, in relation to a charge against a registered physical planner, means conduct which the Board deems, after due inquiry, to be professional misconduct,  A registered physical planner shall be guilty of misconduct if such physical planner— knowingly accepts any professional planning work which involves the giving or receiving of discounts or commissions; accepts to complete work partly done by another planner while the latter has not been fully paid and his contract of engagement has not been terminated; undertakes specialist work without sufficient knowledge of the subject or expert assistance;  knowingly prepares or certifies any statement which is false, incorrect or misleading by reason of the mistatement, omission or suppression of a material fact or otherwise; deviates from the schedule of fees prescribed by the Board by charging less than the charges laid down without notifying the Board of his intention to do so, and the reasons for the extent of such deviation and receiving the Board’s sanction thereto; (f) being a registered physical planner in employment accepts professional work on one’s own account without the knowledge and consent of the employer unless the contract of service expressly authorizes one to do so; (g) commissions another registered physical planner and pays less than the agreed fees; (h) advertises one’s name, firm or work in the press, television, radio or by means of circulars, displays or otherwise except in a manner approved by the Board; (i) conducts oneself in a manner which the Board may deem incompetent, dishonourable or grossly negligent in connection with the work performed by him/her; (j) offers, expresses or communicates to the public or a client any criticism or adverse comment on the professional services or conduct of another registered physical planner without giving the latter a chance of defending himself/herself; (k) gives expert evidence in courts or before other judicial bodies if one has financial interests in the proceedings other than proper and reasonable fees payable for the services; (l) releases or misuses confidential information relating to the client; (m) abandons work already started without giving a satisfactory explanation to the client; (n) acts for two parties with conflicting interests without both of them knowing; (o) withholds reports, drawings and other materials connected to the project from an employer or client if the other party has fulfilled his/her part of the contract; (p) claims as his/her own another physical planner’s ideas, designs or concepts; (q) practises in a business name or style without one’s name and qualifications appearing on the letterhead. 4.4.6 THE COUNTY GOVERNMENTS ACT, 2012

‘An Act of Parliament to give effect to Chapter Eleven of the Constitution; to provide for county governments’ powers, functions and responsibilities to deliver services and for connected purposes’ This Act provides for the regulations to guide County Planning under Part XI of The County Governments Act, 2012. It emphasizes under section 107, sub-section 2 that “The County Plans shall be the basis for all budgeting and spending in a County” It
institutes the authorities under which planning shall be undertaken within the County level under section 104, sub-section 3. ‘County departments, cities and urban areas departments, sub-counties and Wards as planning authorities of the county’ Under section 107, sub-section 1, this Act outlines the types of County plans to be prepared by each County, these are: * County integrated development plan;

• County sectoral plans;
• County spatial plan; and
• Cities and urban areas plans as provided for under the Urban Areas and Cities Act (No. 13 of 2011).

THE LOCAL GOVERNMENT ACT CAP 265 (1965)

‘An Act of Parliament to provide for the establishment of authorities for local government; to define their functions and to provide for matters connected therewith and incidental thereto.’ The key role of local government is to implement approved physical development plans. Section 166of the Local Government Act states that every City, Municipal, county, town or urban Council subject to any written law relating there to, prohibits and controls development and use of land and building in the interest of proper and orderly development of its area. Section 162 (9) of this Act empowers the local authority to control or prohibit sub division or cutting of land or sub division of existing building plots into smaller areas. Section 166 provides that every Municipal Council, County Council or Town Council may, subject to any other written law relating there-to, prohibit and control the development and use of land and buildings in the interest of the proper and orderly development of its area. Section 168 empowers local authorities to establish and maintain sewerage and drainage works within its area of jurisdiction. Also, the Act empowers the local authorities to make by laws desirable for maintenance of a safe and healthy environment for human habitation in their areas of jurisdiction; provision of other forms of infrastructure is also placed in the domains of the local authority such as the provision of roads or electricity, and to promote housing development.

THE URBAN AREAS AND CITIES ACT

‘AN ACT of Parliament to give effect to Article 184 of the Constitution; to
provide for the, classification, governance and management of urban areas and cities; to provide for the criteria of establishing urban areas, to provide for the principle of governance and participation of residents and for connected purposes’ The Act provides that for the process of preparation of integrated development plans for all Cities and Municipalities established under this Act. 4.4.9 ENVIRONMENT MANAGEMENT AND COORDINATION ACT (1999) ‘An ACT of Parliament to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for the matters connected therewith and incidental thereto’ It aims at promoting a safe, clean and healthy environment. Section 4 provides for the establishment of Environmental Conflict Management Authority, while Section 7 provides for the establishment of National Environmental Management Authority. These institutions are responsible for the execution of the requirements stipulated in this Act, in relation to policies relating to the environment. Section 58 of this Act requires that every development project likely to have impacts on the environment to undergo an environmental impact assessment before commencement of any works. According to the Act’s second schedule, preparation of local physical development plans fall under the projects required to undergo environmental impacts assessment. Section 44 provides for protection of hilltops, hillsides and mountain areas and forests. Section 45as well, provides for protection of the environment and significant areas with any area of natural beauty or species of indigenous wildlife or the preservation of biodiversity as part of environmentally sensitive areas.

LAND REGISTRATION ACT NO. 3, 2012

‘AN ACT of Parliament to revise, consolidate and rationalize the registration of titles to land, to give effect to the principles and objects of devolved government in land registration, and for connected purposes’ The Land Registration Act repealed the Indian Transfer of Property Act, 1882 (ITPA), the Government Land Act (GLA), the Registration of Titles Act (RTA), the Land Titles Act (LTA) the Registered Land Act (RLA). These legislations (now repealed) previously governed the registration of transactions in land. The Act provides for the following:

Land registry

Chapter seven of the Act states that there shall be maintained, in each registration unit, a land registry in which there shall be kept— * A land register, in the form to be determined by the Commission; the cadastral map; * Parcel files containing the instruments and documents that support subsisting entries in the land register. * Any plans which shall, after a date appointed by the Commission, be geo-referenced;

b) Public access to the register

Chapter 10 of the Act stipulates that subject to the Constitution and any other law regarding freedom of and access to information, the Registrar shall make information in the register accessible to the public by electronic means or any other means as the Chief Land Registrar may reasonably prescribe.

c) Cadastral map

The office or authority responsible for the survey of land shall prepare and thereafter maintain a map or series of maps, to be known as the cadastral map, for every registration unit. The parcel boundaries on such maps shall be geo- referenced and surveyed to such standards as to ensure compatibility with other documents required under this Act or any other law.

d) Power to alter boundary lines and to prepare new editions

The office or authority responsible for the survey of land may rectify the line or position of any boundary shown on the cadastral map based on an approved subdivision plan, and such correction shall not be effected except on the instructions of the Registrar, in writing, in the prescribed form, and in accordance with any law relating to subdivision of land that is for the time being in force. Notwithstanding subsection (1), any alteration made shall be made public and whenever the boundary of a parcel is altered on the cadastral map, the parcel number shall be cancelled and the parcel shall be given a new number. The office or authority responsible for the survey of land may prepare new editions of the cadastral map or any part thereof, and may omit from the new map any matter that it considers obsolete.

e) Approval for further surveys

Further surveys may be made for any purpose connected with this Act, but such surveys shall be used to amend the cadastral map only if it is approved by the office or authority responsible for the survey of land. The office or authority responsible for the survey of land shall submit to the Commission a copy of the cadastral maps and the Commission shall be a depository of the maps.

f) Boundaries

The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section. The determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, Cap. 299.

g) Fixed boundaries

If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries. Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.

THE SURVEY ACT

“An Act of Parliament to make provision in relation to surveys and geographical names and the licensing of land surveyors, and for connected purposes” The Fourth Schedule under this Act outlines the authorities responsible for giving approval for the Subdivision of land under various legislation. Forms a Base for the preparation of planning base maps and survey plans To facilitate planning, The Act provides for the survey of any development, wayleave, easement, topographical and contours The act provides for the Survey Regulations which includes licensing of surveyors. Only licensed surveyors should execute survey works which mitigates errors and inaccurate execution of field surveys which subsequently facilitates proper planning.

THE LAND ACT NO 6 OF 2012

The land Act has revised, consolidated and rationalized previous land laws so as to provide for the sustainable administration and management of land and land-based resources and other connected purposes. The Act gives effect to the principles and objects of devolved government in land registration. Prior to the enactment of this legislation, the country’s substantive land laws were contained in several statutes making it incomprehensible to most users. The upshot is that the Land Act helped to bring all substantive laws under one statute. The Land Act provides for the rationale and process of wayleave creation and land acquisition. This act repeals the Land Acquisition Act (Cap. 295), the Wayleaves Act (Cap. 292) and amends Agriculture Act- 1980 The Land Act shall apply to all category of land as provided under section 3 of the Act. It recognizes four categories of tenure namely: freehold, leasehold, customary land rights and Partial interest defined in the Act or any other law.

THE NATIONAL LAND COMMISSION ACT 2012

‘AN ACT of Parliament to make further provision as to the functions and powers of the National Land Commission, qualifications and procedures for appointments to the Commission; to give effect to the objects and principles of devolved government in land management and administration, and for connected purposes’ This act insists and affirms what is in the constitution of Kenya under article (67) on the mandate of the national land commission concerning land and planning there on. Some of this mandates are: * To manage public land on behalf of the national Government and county governments as well as to recommend a national land policy to the national government; * To advise the national government on The National Land Commission Act, 2012 comprehensive programme for the registration of title in land throughout Kenya. * They will be the watch dog of any planning work being carried out, by monitoring and having oversight responsibilities over land use planning throughout the country. * ensure that public land and land under the management of designated state agencies are sustainably managed for their intended purpose and for future generations; * Develop and maintain an effective land information management system at national and county levels, also constitute a way to manage and administer all unregistered trust land and unregistered community land on behalf of the County government. * Take any measures it considers necessary to ensure compliance with the principles of land policy set out in Article 60 (1) of the Constitution

ENVIRONMENT AND LAND COURT ACT NO. 19 OF 2011

‘An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes’

LAND CONTROL ACT CAP 302

This is an Act of Parliament that provides for control of transactions involving agricultural land. The applications for sub division of land are to be accompanied by a proposed sub division plan prepared by a registered physical planner, before consent is granted. However, complications may arise when the agricultural land falls within designated urban areas where other pieces of legislation apply.

WATER ACT

‘An Act of Parliament to provide for the management, conservation, use and control of water resources and for the acquisition and regulation of rights to use water; to provide for the regulation and management of water supply and sewerage services; to repeal the Water Act (Cap. 372) and certain provisions of the Local Government Act; and for related purposes’ This Act outlines the regulations towards water use, water rights, water resource management, protected areas and ground water conservation areas management (part XI), catchment area management (part X) and riparian reserve management (part IX). The management of these areas is also provided for under the Fourth Schedule in this Act outlining the activities allowed and disallowed along a riparian, catchment area and a protected area. Other relevant Acts include:

• Public Health Act
• Local Government Finance Act
• Local Government Service Act
• Mines and minerals Act
• Registration of documents Act Cap 285
• Government Lands Act Cap 280
• Registration of titles Act Cap 281
• Registered Land Act Cap 300
• Sectional Properties Act of 1987
• Agriculture Act (Cap 318 Of 1986)

POLICY FRAMEWORK

Vision 2030

The Kenya Vision 2030 seeks to transform Kenya into a newly industrializing, middle income country providing a high quality of life to all its citizens by the year 2030. The vision will be implemented under five year medium term plans starting with the 2008-2012. The Kenya Vision 2030 is founded on three pillars: The economic Pillar; that aims at raising Kenya’s GDP growth rate to 10% p.a. The social Pillar; which aims at making the Country a just and cohesive society with Social Equity, Clean and secure environment and the Political Pillar; that seeks to structure Kenya’s political system into one that is Democratic with rule of law that protects individuals’ rights and freedoms. This policy forms a framework under which all plans are prepared towards a common objective set out under the vision through: economic, social, environmental, physical and institutional enhancement.

National Land Policy, 2009

The land question has manifested itself in many ways including fragmentation, breakdown in land administration, disparities in land ownership and poverty. This has resulted in environmental, social, economic and political problems including deterioration in land quality, squatting and landlessness, disinheritance of some groups and individuals, urban squalor, under-utilization and abandonment of agricultural land, tenure insecurity and conflict. To address problems, the Government embarked on the formulation of a National Land Policy through a widely consultative process with the aim of producing a policy whose vision was “to guide the country towards a sustainable and equitable use of land. Objectives of the National Land Policy

All citizens with the opportunity to access and beneficially occupy and use land ii) An economically, socially equitable and environmentally sustainable allocation and use of land iii) The efficient, effective and economic operation of the land market iv) An efficient and effective utilization of land and land-based resources; and v) Efficient and transparent land dispute resolution mechanisms

National Housing Policy for Kenya, 2004

One of the key goals of the policy is to facilitate the provision of adequate, habitable shelter and a healthy living environment at an affordable cost to all socio-economic groups in the country so as to foster sustainable human settlements. It also aims to minimize the number of citizens living in shelters that are below the habitable living conditions as well as curtailing the mushrooming of slums and informal settlements in the major towns and urban centres. Proper planning is necessary in providing adequate and good housing as well as the supporting infrastructure such water, sewerage, circulation, electricity, drainage and solid waste management.

The Integrated National Transport Policy of 2003

The policy calls for optimal planning for development and maintenance of transport infrastructure. Further it notes that many of the statutes governing the transportation sector are out-dated or in need of urgent review to deal with inconsistencies that hamper the effective functioning of the institutions they create. The policy emphasizes more on the role of the road transport network as the mechanisms through which the economic activities are affected across the country by inter connecting various regions.

Millennium Development Goals, Targets and Indicators

The Millennium Development Goals adopted by the UN member states in the year 2000 are broad goals for the entire world. They address essential dimensions of poverty and their effects on people’s lives attacking pressing issues related to poverty reduction, health, gender equality, education and environmental sustainability. By accepting these goals, the international community has made a commitment to the world’s poor, the most vulnerable, in precise terms, established in quantitative targets.

TOWN AND COUNTRY PLANNING STANDARDS

THE BUILDING CODE OF 1968

This is a document based on British building standards introduced in Kenya to control building design and control. The adoptive by-laws are divided into Local Government Adoptive By-laws Grade 1and Local Government Adoptive By-laws Grade The Local Government Adoptive By-laws Grade 1controls high income housing, while Grade 2 By-laws control buildings for low-income populations. The Building Code, 1968 deals with controls in housing quality, building materials and planning standards. The by-laws rigidly prescribe planning and design standards with respect to minimum plot sizes, maximum coverage, and minimum space around buildings. They also outline room dimensions, including minimum room area, minimum room height, kitchen dimensions, wet cores/ablutions minimum dimensions, access to rooms (minimum width of doors), lighting and ventilation(minimum widths of windows). They also provide for standards on construction materials for foundations, floors, walls, roofs. They are adoptive in the sense that any local authority in Kenya can adopt them for application within their areas of jurisdiction.

THE BUILDING CODE of 1995

These are Local Government Adoptive By-laws, introduced in 1995. They are basically Grade 2 bylaws applicable for the provision of low-income housing in Kenya.

THE PHYSICAL PLANNING HANDBOOK

The Physical Planning Handbook (2007) provides guidelines for the preparation and implementation of physical development plans. It is meant for use by physical planners, land administrators, local authorities and other relevant personnel and institutions responsible for guiding and controlling the use and development of land in Kenya. The objectives of this handbook include provision of understanding and uniformity in the following planning, development control and development coordination tasks: • Preparation of physical development plans for both rural and urban areas, (chapter one); • Provision of equitable levels of socio-economic facilities and services, (chapter two); • Consideration of development applications,(chapter three); and • Development co-ordination (chapter four).

The handbook is largely as a reference in the preparation of local and regional physical development plans; guidance of the use and development of land; and administration procedures involved thereto. This is due to Kenya’s dynamic environment, diverse physical and socio-economic conditions and political changes.

ZONING REGULATIONS:

Zoning is the legal regulation of the use of land. It involves the segregation of parcels of land in towns and cities in a physical development plan and ascribes them broad classifications such as residential, industrial, educational, commercial etc. The regulations are aimed at protecting public health, welfare and safety. They include the provision for the use of property an limitations upon the shape and bulk of the building that occupy a given parcel of land. The zoning plan serves as a comprehensive guide for urban and regional development and is adopted and rendered effective as a legal ordinance. Such plans have their strength and weaknesses. * Plot sizes/Areas:

The essence of fixing minimum plot sizes or areas is to prevent overcrowding, to ensure adequate lighting and ventilation, and to facilitate easy movement of people, vehicles and goods. The actual amount of plot size will depend on the type of land use/activity/industry, the number of workers to be employed and recommended densities and plot coverage. * Plot Coverage/ Ratio

Plot coverage as applied to a building / area means the portions of horizontal area of the site of the building / area to be built. The essence of fixing plot coverage is to ensure a healthy environment and allow for the expansion and improvement of infrastructural facilities and social amenities. The Floor Area Ratio (FAR) or Floor Space Index (FSI) is the ratio of the total floor area of buildings on a certain location to the size of the land of that location, or the limit imposed on such a ratio. A formula for Floor Area Ratio = (Total covered area on all floors of all buildings on a certain plot) / (Area of the plot). The Floor Area Ratio can be used in zoning to limit the amount of construction in a certain area. For example, if the relevant zoning ordinance permits construction on a parcel, and if construction must adhere to a 0.10 floor area ratio, then the total area of all floors in all buildings constructed on the parcel must be no more than one-tenth the area of the parcel itself. In Kenya the suggested plot coverage for residential, industrial and commercial should not exceed 50 percent, 75 percent and 90 percent respectively; to allow for sufficient scope for circulation, utilities, services and facilities. If the plot coverage is given as 50% then the building to be constructed can only cover 50% of the site in question. * Building Lines/ Setbacks:

The principle rationale behind building lines is to achieve visual effects and reserve a certain access of area of ground. In an industrial area, for instance, the objective of fixing building lines is to mitigate the effects of noise, fumes, odour, dust, vibration, fires, heat, glare and other hazards. Set-backs can also be placed between buildings for similar reasons. (See the Physical Planning Handbook for more information). * Buffer zones:

These are zones that separate incompatible land-uses and try to prevent conflicts and reduce possible inconvenience. Zones with planted strips of trees, major routes of transportation or the use of natural features such as rivers and wetlands are often used as buffer zones between incompatible land-uses. * Easement

Is a right of attachment to a parcel of land, which allows the proprietor of the parcel either to use the land of another in a particular extent without owning it, but not include a profit. * Way leaves:

These are rights of way over or through land for the carriage of sewers, drains, water pipes, electricity cables or wires on pylons into, through, over or under any land whatsoever. Such rights are provided under the Way leaves Act Cap 292 of 1962. * Riparian reserves:

Means land in respect of which management obligations are imposed on the owner by the Authority due to its proximity to a water body. The right to these lands are provided under the Water Act Cap 372 of 2002. 4.6.26 BY-LAWS:

These are building rules (normally part of the entire township ordinances). They stipulate the rules on materials for houses built in urban areas and
give specific technical details on size and specifications of different house components such as rooms, wall heights and thickness, wall finish-up, ventilation, etc. By-Laws, in other words, are simply ordinances or rules imposed by Local Authorities on the public in order to control standards and ensure good governance e.g. Health by-laws, Hawkers and Vendors Adoption by- Laws and Shop licensing by-Laws. i. The Local Government (Adoptive By-Laws) order of 1968 or Grade 1 By-Laws. ii. The Local Government (Adoptive By-Laws) – Grade 1 By-Laws order of 1968. These are made under the powers conferred by section 210 of Local Government Act.

THE APPLICATION OF PLANNING REGULATIONS AND ROLE OF A PLANNER IN LAND ALLOCATION

Basically, the role of the planner has been that of guiding and controlling development in planned human settlements. This is currently backed by the Physical Planning Act of1996, Cap 286 and the Physical Planners Registration Act. It is also important to note that before any government or trust land is considered for allocation, it must have been planned by the Director of Physical Planning (DPP) or by a Registered Physical Planner (RPP).

This could be in the form of a Development Plan (DP) covering a large area of Part Development Plan (PDP) dealing with one or several plots, indicating the various uses to which the land is to be put. The planner in this case is normally referred to as the designing authority, while the Minister of Lands is the approving authority and the Commissioner of lands (COL) is the implementing authority. When it comes to land allocation, the procedure is as follows: 5.6 The application and confirmation of the status of the land to be developed Usually those in need of land are either individual members of the public, private firms, local authorities, District Commissioners or institutional organizations. The application or the letter expressing interest to develop a particular portion of land can be done by the Registered Physical Planner on behalf of the client. The status identification stage is very crucial as the current legal ownership of the land in question has to be ascertained (could be private-freehold/leasehold, government, trust land etc). Many problems such as long bureaucratic and outdated methods of retrieving the necessary information / data from the ministry of Lands and Settlement or City Hall often cause delays on the land allocation process. The other purpose of this stage is to ascertain whether or not the plot is vacant in order to avoid the conflict in land uses that
arise from double allocations 5.7 The preparation of the proposed plans (DP or PDP)

As already mentioned, the Physical panning Act (PPA) requires that the DPP or RPP be responsible for the preparation of the plan before approval and allocation is done. Section 5(1) of the PPA of 1996 draws out the functions of the planner among which is the advising of the COL on matters concerning the alienation of land which is also in line with the Government Land Act (Cap 280) and Trust Act (Cap 288). The planner has to take various issues into consideration including that of accessibility, compatibility with surrounding users and the adequacy of the parcel in relation to the proposed user. The planner is to advice the COL and the Local authorities on the most appropriate utilization of the land. This advice is in form of the planning briefs and it is in the following areas: * Subdivision of land to required parcels: This refers to sub-division of government or privately owned parcels of land into one or more portions. * Amalgamation of land-where existing parcels of land /plots are combined to a size that allows better utilization of the parcel for the same user or a combination of users. * Change of User- where there is a desire to change use from the permitted user to another, e.g. from agricultural to commercial use. Such a process can result in harmful effects to the surrounding users and hence are restricted and require permission. * Extension of User-where the developer or owner of the property intends to add an extra use to an existing one outside what is specified in the lease; e.g. introduction of a nursery school on land designated for religious purposes. * Extension of Lease- where the term is about to expire in accordance with the Registration o Titles Act, Cap 281 or Government Act, Cap 280. Application for Extension or Renewals of lease may be rejected for various reasons such as if:- * Land is undeveloped

* Planning requires that land be availed for public use. * Buildings are in poor and irreparable state.
* Government and local Authority dues / rates are not fully paid * Land or buildings are not used for the permitted purposes * Advertisements- often impact significantly on the use of land and may adversely affect the basic objectives of better land use planning such as compromising on safety, amenity, aesthetics etc. Hence, development permission should be sought if they are to be placed ‘outside’ of building or on land. Advertisements that may be erected without consent include * Names and occupations of shop occupiers provided the letters are less than 12 inches and not composed of more than 6 words. * Office notice boards at ground floor entrance to premises not exceeding 3sq ft in total coverage. * Advertisements displayed within buildings or land but not visible from a street. * Notices in connection with religious events or residential plots. NB: Most of the above activities fall under Urban Redevelopment / Renewal programmes- that provide a guide to the redevelopment of old parts of towns. The PPA expects the planner to involve the public in the planning process of these areas as much as possible. Public involvement is, however, still weak as there are poor or no institutional frameworks that can enable the planners to effectively get the views of all the stakeholders. At this planning stage, the planner can also involve the services of the Surveyor in picking the appropriate topographic information, especially if the area to be planned is expansive. It is also at this stage that the planner can make sure the often neglected facilities such as the schools, clinic and recreational areas are fully incorporated in the proposed planning schemes. The planner has to use a lot of participatory methodologies and try to influence the clients and the general public to see the need of leaving room for such community services. Often there is so much resistance because of either lack of awareness or simply because such land has been “abused” by those administering them. 5.8 Submission of the proposed plan for approval:

Once the plan is prepared, it is submitted to approving authorities who include County planning authorities/units, DPP, Minister of Lands, housing and Urban development, Chairman- National Land Commission. The plan is thoroughly scrutinized to ensure that it has complied with the laid down planning regulations / requirements. The plan is then approved and the client notified accordingly. Normally after this stage, the planner follows-up and ensures that the plan he/she has prepared is implemented according to the set down planning regulations. This is however, rarely done
because the practice has been to leave the task to the implementing agencies and the local authorities who are often not keen on monitoring and enforcing the regulations.

CHALLENGES FACED BY ISK PROFESSIONALS IN RELATION TO PLANNING REGULATIONS:

In Kenya, the Planning/development control administrators including ISK professionals are faced with many challenges. These include:  Uncontrolled developments leading to encroachment to boundaries and tampering with set beacons Poor institutional framework to oversee the adherence to plans and planning regulations e.g. weak development control which have in turn resulted in unplanned developments. Conflict of interests between ISK and planning professionals Outdated planning regulations.

Lack of Awareness on existing urban planning and development regulations. Laxity in approving development applications- the processes involved are not only lengthy but bureaucratic and slow in making decisions and granting permission (Mwangi, 2008) vii) Lack of effective mechanism for improvement of rural standards of living and land development.

RECOMMENDATIONS

In conclusion, it can be noted that for effective planning, land allocation and development control to be realized, the following issues have to be observed: i) Enhanced implementation mechanisms and institutional capacity building ii) Creation of appropriate institutional mechanisms that allow for the participation of the public and related professions in planning and development control iii) Avoid sectoral approaches in addressing planning issues in order to come out with more realistic plans that take the needs of the poor and environmental concerns into consideration. iv) Review of existing planning laws and regulations

Create awareness on existing planning regulations
vi) More participation of academia, professionals and practitioners in the planning and implementation of plans aimed at reducing land use conflicts and provide adequate and appropriate land for the poor, who have been relegated to the slums due to out-dated planning regulations and lack of commitment.

REFERENCES:

1. Alder, J. (1979) Development Control. London: Sweet and Maxwell. Bubba, N and Davinder Lamba (1991)
2. Urban Management in Kenya in Environmental and urbanization. Chapin F.S (1976)
3. Urban land Use Planning Chicago; University of Illinois Press. Urbana Garner, J.F. (1975 Ed) Planning Law in Western Europe. Amsterdam: North Holland Publishing Company. GoK (1996)
4. The Physical planners Registration Act, Kenya Gazette, Government Printer, Nairobi GoK (1999), Environmental Management and Co-ordination Act, Kenya Gazette, Government Printer, Nairobi GoK (2001)
5. Ministry of Local Government, Kenya Local Government Reform Programme. Local Authority Service Delivery Reform Programme (LASDAO), Dissemination Seminar Materials, August/September, Nairobi. GoK (2002)
6. Water Act, Kenya Gazette, Government Printer, Nairobi GoK (2004), The National Housing Policy, Kenya Gazette, Government Printer, Nairobi GoK (2007)
7. Vision 2030, Kenya Gazette, Government Printer, Nairobi GoK (2009)
8. The National Land Policy, Kenya Gazette, Government Printer, Nairobi GoK (2011)
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10. County Government Act, Kenya Gazette, Government Printer, Nairobi GoK (2012)
11. The Land Act No. 6 of 2012, Kenya Gazette, Government Printer, Nairobi GoK (2012)
12. The Land Registration Act, Kenya Gazette, Government Printer, Nairobi GoK (2012)
13. The National Land Commission Act, Kenya Gazette, Government Printer, Nairobi GoK, (1996)
14. The Physical Planning Act, 1996 of The Government Printer Nairobi. GoK, (2010)
15. The Constitution of Kenya.
16. The Government Printer, Nairobi. GoK, Ministry of Lands and settlement (1992)
17.  Physical Planning Handbook, Department of Physical Planning Nairobi. Goodman, W. (1987 Ed)
18. Principals Practice of Urban Planning Washington: Blackwell Publishers Inc. John Drexhage and Deborah Murphy (September 2010)
19. Sustainable Development: From Brundtland to Rio 2012, International Institute for Sustainable Development (IISD) Keeble, L. (1969)
20. Principles and Practices of town and County Planning. London: Gaxtle Ltd. Khamati, A. (1976)
21. The legal Control of the use of Urban Land with Specific Reference to Nairobi. Nairobi: Department of Public Law. University of Nairobi. LL.B. Dissertation. Mbwagwa, R. (2000)
22. Paper presented to the Town Planning Chapter on Planning and Development in Kenya, Nairobi, Kenya Mwangi W.N. (2008)
23. An Evaluation of the Administration of Land Development Applications in Nairobi, Kenya, PhD thesis, University of Nairobi. Mwangi, I.K. (1994)
24. Urban land Development and Planning Law in Kenya: The Case Study of Nairobi City and Bordering Urban Areas. Waterloo, Ontario, Canada: School of Urban and Regional planning, University of Waterloo, Ph.D. Thesis. Mwangi, I.K. (2002)
25. Using Urban Instrument in Improving Urban Food Security, Paper Presented in the Regional Workshop on Urban Implications of Enhancing Food Security in African Cities, Organized by UN HABITAT in Partnership with FAO IDRC and SIUPA, Gigiri, Nairobi, Kenya. Nyabuti J.A. (2008)
26. Land use patterns and in-optimal spatial patterns in peri-urban areas of the city of Nairobi, Kenya, PhD thesis, University of Nairobi, Kenya UNCHS (Habitat)
27. An Urbanizing World: Global Report on human Settlement 1996, London: Oxford University Press