Failure to complete a building will land you in jail for five years
By Amos Kareithi
| Sep 13th 2019 | 5 min read
Real estate developers and prospective homeowners in the country are in for a shock following the enactment of a new law which requires all developments to be completed within five years.
According to the Physical and Land Use Planning Act, 2019, which came into effect on August 5, it is now mandatory that once a developer has been given approval by the county government, construction must start within three years.
The new law also mandates a County Executive Committee member in charge of Land to impose conditions or fines on an applicant who fails to complete the building works within five years.
At the same time it will be illegal to carry out any form of business in an incomplete building. The law reads in part “A person commits an offence if that person — (a) uses or permits to be used any land or building in contravention of any conditions imposed by a County Executive Committee member when granting development permission.”
At the same time owners of incomplete buildings have been put in check as licenses shall not be granted facilities whose development permission has not been granted by the CEC.
To better organise planning, Section 6 of the Act stipulates that ”where an applicant for development permission has been granted development permission but has not commenced the proposed project within three years of receiving the development permission that permission shall lapse.”
The law further provides that “a County Executive Committee member, where an applicant makes an application, may extend development permission by a period of one year if the CEC determines it is necessary or just to grant that extension and may impose further conditions on the applicant.”
Farida Karoney, Lands Cabinet Secretary explained that the law now anchors devolution of land in the Constitution as was envisaged.
“The overall aim of the Act is to give effect to the Constitution. Physical planning and land use is a devolved function. The law now mandates the counties to plan the land while the national government will provide oversight to ensure there is a national policy,” Karoney added.
The law, she said will now organise land use better in all the counties in a uniform manner and indicated that another outdated law, the Survey Act too will be reviewed. The law has at the same time provided for grassroots dispute resolution mechanisms to unclog the Environment and land courts.
When an applicant is aggrieved the law provides that they will first go to a county physical and land use Liasion committee instead of the Environment and Land Court. But since the committees have not been set any disputes which may arise will be determined by the court.
The law has also created a new institution, Director General of Physical and Land Use Planning and the office of the county Director of Physical Planning.
The Saturday Standard has established that land use and physical planning experts have been meeting at Ardhi House to formulate regulations to operationalise the new law.
There are fears among some developers that the introduction of a new development levy, whose funds will be pooled and used for social amenities such as land may drive up the cost of construction.
The law has directed the respective counties to create regulations which will determine the amount to be charged. However some experts have said that although the law will improve land use and planning, there are some grey areas which need to be polished.
“The requirement that developments must be completed within five years may not be applicable in all cases. While it make take just a few months to complete a bungalow, it may take many more than five years to complete a complex block of apartments of office blocks,” explained David Gatimu, an official of Town and County Planners Association of Kenya.
And a stiff punishment awaits crafty developers who might be tempted to erect buildings without obtaining the necessary approvals from the respective CEC.
According to Section 57 of the Act “a person shall not carry out development within a county without a development permission granted by the respective county executive committee member.”
The law and further provides that a person who puts up any development without obtaining development permission commits an offence and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two months or to both.
The Act further mandates the CEC to demand that a person who has commenced a development without obtaining permission to restore the land to its original condition within 90 days.
In the event such a developer fails to comply, the CEC may undertake to restore the land as required and shall recover the cost of the restoration from the developer.
In the new found powers donated by the Act, the CEC may revoke development permission if the applicant has contravened any provision of this Act or conditions imposed on the development permission for any justifiable cause.
An applicant for development permission shall indicate the proposed uses to which the land shall be put, the expected population density and the portion of the land the applicant shall provide for easements as a consequence of the applicant’s proposed development.
And in a move that may restore sanity in zoning of low and high density as well as commercial areas, the Physical and Land Use Planning Act dictates that a developer must inform all the neighbours of the intended development as a precondition for approval by the County government.
According to Section 7, of the Act, “a person applying for development permission shall also notify the public of the development project being proposed to be undertaken in a certain area in such a manner as the Cabinet Secretary shall prescribe.”
The notification entails invitation of members of the public, “to submit any objections on the proposed development project to the relevant CEC for consideration. In order to check the powers of the CEC and prevent them from frustrating developers by delaying approvals, the law has offered recourse.
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