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Classroom to chicken coop: What law says on land use

By Peter Theuri | September 10th 2020 at 12:00:00 GMT +0300

A picture of Highway Secondary School along Kakamega road in Kisumu. The picture taken on August 22, 2020. The school that was vibrant before Covid-19 struck has since been converted into a hospital that will take care of heart patients. [Denish Ochieng/ Standard]

Private schools have been converted to farms, trading centres and even hospitals as the desperate times caused by Covid-19 result to desperate measures.

Understandably, property owners have opted for whatever will make them money. With students grounded at home as schools remain shut since March this year, most of the owners have seen their fortunes dry up.

A school playground converted into a kale farm, with the classrooms as cheap rentals, is not an uncommon sight now.

But as much as it seems inevitable, these alterations are a contravention of the Physical Planning Act, Chapter 286 of The Laws of Kenya, if they did not go through the correct change of user procedure.

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“Generally, the government through the Director-General of Physical Planning (DGPP) at the Lands ministry should plan and designate land use for all properties in the country,” says Peter Mburu, a property lawyer and land law lecturer.

“The DGPP does this through the preparation of a national, regional and development plans as well as local development plans for municipalities and towns or markets.”

The office also prepares part development plans for every parcel of land.

There are different ways of classification of land use in different jurisprudences, but most common, especially in urban settings, the land is divided into industrial, commercial, transport, recreational, public utility, public purpose, educational and agricultural zones.

These land uses are, however, not cast in stone.

“Change of land use is inevitable because, for example, culture is dynamic. For instance, where 20,000 hectares were initially used as grazing lands, population growth may demand the development of schools, hospitals, roads, banks, abattoirs and milk processor plants,” Mburu tells Home & Away.

And while changes in population always necessitate updating of plans to accommodate the more urgent land uses, there is a caveat to what a parcel of land can be used for.

“It is good to note that where land is planned, parched land-use change only serves to bring chaos and confusion,” says the lecturer.

“If Karen is planned for single dwelling units each sitting on at least five-acre plot and Buruburu is zoned for high-density residences, approvals of high density in Karen should not occur and vice versa because the zoning rules should not allow.”

Another scenario would be in a place full of industrial plants.

“It would not be prudent to allow a kindergarten right in the middle as this would come with a lot of harm to the kids,” says Mburu.

“Allowing a change of use from a hospital to a pub where maybe only that one property was designated for health care would mean that a lot of people would be left without provision of healthcare.

This is because the initial zoning comes with a lot of considerations for the needs of a particular community and helps to harmonise land use to a people’s needs, culture, environment, population, and their economic activities, he says.

Ameli Inyangu and Partners Advocates, who deal with property law, say the process of change of user should be public and transparent, as is provided by law.

“Any person intending to change the use of land must first start by advertising the same in two local newspapers of wide circulation,” says Alex Inyangu, a partner at the law firm.

“The purpose of this is to give a 14-day notice to any person who wishes to object or make any comments regarding the proposed change of user.”

After the lapse of the notice, if at all there are no objections or comments made, the applicant should then, through a duly registered planner, make an application to their respective county governments for approval of change of user under Section 31 of the Physical Planning Act.

The application should be accompanied by a project brief or report, prepared by a registered physical planner, that should contain the development plan as well as particulars indicating the purpose of the development.

“The Act requires that upon receipt of the development application and project report, the county government should forward the same to the Director of Physical Planning and other relevant authorities such as the Land Control Board (where the subject property is agricultural) within 30 days,” says Inyangu.

“The county government, subject to the comments of the Director of Physical Planning and the relevant authorities to which the application was forwarded to, and having regard to other factors such as health and amenities, may grant or refuse to grant the development permission.”

In case of refusal to grant the development permit, the applicant is at liberty to appeal against the decision to the relevant Liaison Committee.

When the re-survey and deed plans are complete, the applicant is then required to surrender the old titles and the new deed plan to the registrar, who then files what is known as a deed file. The registrar then proceeds to process a lease for the property with the new user included. The applicant is then required to commence development of the apartments within two years from the date of approval.

The process of obtaining approval of change of user is quite lengthy and sometimes costly.

“The applicant may therefore need to have the necessary documents ready, such as the clearance certificates for land rates, before commencing the whole process as well as seek the services of professionals such as advocates, registered surveyors and planners,” says Inyangu.

Following the procedure is, however, of paramount importance, as it saves the property owner from possible demolitions that could be affected due to lack of adherence to the law.

“The resultant development could be rendered illegal and can be demolished. There could also be social decadence such as if one puts up a pub right in the middle of a residential area,” says Mburu.

“There could also be deaths and ill-health, such as if industries are allowed to be developed alongside residences.”

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