Physical and land use planning prescribes the appropriate use of land to ensure there is harmony, efficiency, productivity, equity, aesthetically appealing human settlements and ultimately a sustainable environment for the current and future generations.
This is achieved through application of standards, design of interrelationship of activities as well as preparation and enforcement of plans.
Planning takes place at national, inter-county, county and sub county levels. In planning, the principle of subsidiarity is overarching with regard to assignment of planning functions.
Under this principle, a particular planning function should be carried out at the most appropriate level which is not necessarily the lowest.
Article 186 outlines categories of functions as concurrent, exclusive or residual.
Concurrent functions are broadly performed by the two levels of government. Some aspects of a function are assigned to the national government while others are under county governments.
Exclusive functions are specifically assigned to one level of government. Residual functions are those the Constitution and statutes are silent on.
In a federal system, constituent units cede certain powers to a union government. Functions that the Constitution has not specifically assigned to the union government are residual functions of constituent units.
In a unitary system as in Kenya, the central government ceded certain powers and functions to county governments. Under this system, functions not specifically assigned to county governments by the Constitution or national legislation are residual functions of the national government.
Urban Areas and Cities Act, 2011, County Governments Act, 2012, and Physical and Land Use Planning Act No 13 of 2019, further clarify the assignment of planning functions.
Broadly speaking, Physical and Land Use Planning (PLUPA) as a practice is a concurrent function shared by both levels of government. The national government is responsible for formulation of policies that set out planning standards to be applied across the country, registration of physical and land use planners, capacity building and providing technical assistance to counties and coordination of planning by the counties. This does not mean the national government superintends county governments in carrying out their planning functions.
This is done through formulation of national policies and standards, providing technical expertise during preparation of inter-county plans, convening National Physical and Land Use Forum, the National Spatial Plan and regulation of the profession.
The Cabinet Secretary prescribes projects of strategic national and inter-county importance and approves development of the former as well. Secondly, residual functions of the national government include planning transportation and development corridors such as LAPPSET, techno cities, large scale hydro power and irrigation schemes, harbours and airports and universities.
The CS also provides guidelines for establishment of new towns, planning special economic sones, nuclear power stations, radioactive wastes, planning utilisation of marine resources, approval of development on territorial waters, mineral utilisation action plans, action plans for utilisation of water bodies, public forests, wetlands and water catchment areas.
Third, under PLUPA, two or more counties may prepare inter-country plans. In addition, county governments have responsibility of implementing national physical and land use policies. They also have exclusive responsibility of preparing, approving and implementing county specific physical and land use plans that include county spatial plans, city, municipal, town and market development plans, urban renewal plans, subject plans like domestic and industrial non-radioactive waste management, rural plans, neighbourhood plans and development control.
County governments may enact county specific physical and land use laws to enhance discharge of their functions within the framework of PLUPA. PLUPA deals with matters that cannot be regulated effectively by legislation enacted by individual counties such as standards, frameworks and national policies. Under Article 191, if county specific laws contradict national laws, the former must give way.
The Constitution mandates NLC to exercise oversight and monitor land use planning in the country.
Article 6 has established an ecosystem in which the two levels of government are interdependent and must attain an equilibrium. In the Constitutional Application No. 2 of 2011, the Supreme Court of Kenya pronounced, “certain crucial governance functions at both national and county level such as…. planning, dovetail into each other and operate in unity.”
In sum, unbundling functions is a continuous process. The guiding principle is that any function not specifically assigned to county governments by the Constitution is a residual function of the national government.
Mr Mwangi is a registered physical planner
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