Change of use and controlling developments

Guest post by Samuel G. Njenga

Physical Planning Act (Cap 286) change of use: “The owner of Plot LR NO. AAA/AA located wherever is proposing to change the use from agricultural to residential (multi-dwelling) subject to approval by AAAA Council. Individuals, institutions etc. with objections to the proposal are requested to forward them in writing within fourteen days of this notice to The Town clerk…."

You see them mostly on Standard’s Digger Classifieds. Most people do not even notice them, others see them and fail to understand what they mean, and others simply do not care. You may never know their implication until a block of flats (5 storey) pops up next to your nice residential home. Then the guys at 5th floor have a very nice aerial view of your compound. Worse still, a church or a mosque pops up next to you and when they hold a kesha (overnight prayers) every other weekend, you start complaining and cursing.

The requirements of the law is that whenever you want to set up flats, church/ mosque, factory etc., you must apply for change of use if the current ‘use’ is not in conformity with your proposed development. What ideally should happen as the notice reads is that anyone who objects to the development proposal should raise their objection in writing to the relevant authority failure to which you should forever hold your peace. As a pre-requisite to approval of the aforementioned type of developments, the change of use approval must be sought before the plans are approved.

Most councils have failed in as far as controlling development is concerned. It is no wonder you find flats in the middle of residential developments. Equally, you find churches in the middle of estates; some are next to each other. Generally there is a serious gap in physical planning. Some Councils do not even have a Physical Planner.

Due to the existing gap, most owners of residential homes / plots in many estates have formed welfare groups to attempt to enforce planning. We know of famous and very strong resident’s welfare Associations (read Karengata, Runda, Kahawa Sukari etc). These welfare groups have largely assisted by ensuring that plans are approved by them before they are forwarded to the respective councils. They basically have a working arrangement with the council to ensure that any plans that get to the council are first approved by the association.

I always advise that wherever and whenever possible, your residential home ought to be in an area with controlled development. With demand for housing at an all-time high around Nairobi and its environs, the pressure to developers to build flats gets overwhelming and the same leads to those developments coming up even in areas initially designated for other developments.

There is a concept called zoning that most land buying companies used to embrace back then but we seem to have lost it all together. Back then, the companies (mostly ranching companies) used to acquire huge tracks of land. They’d then subdivide the land in zones where one zone would be 1 or 2 acre pieces for farming and the other zone would have ¼ acres for the members to build residential homes. This in essence meant that the residents would farm in the larger contiguous tracks and live in smaller contiguous section. This mainly protected the agricultural relevance of the shambas and also promoted living together of the residents where common services like water and electricity would be easier to supply.

Fast forward to today where agricultural land has been subdivided into tiny portions to an extent that it never makes sense to farm the portions. Back in my village which is barely 20 km from Nairobi CBD, what was formerly agricultural land has been rendered useless due to subdivision into small plots and sale of the same. The government has in a big way failed to deal with this matter. Why does it allow coffee farms to be converted in residential estates when we all know we have large tracks of semi-arid land which ordinarily would be better off for residential developments? If this goes unchecked, the same will reach the bread basket of Kenya and land especially in North Rift might suffer the same fate that Central Kenya and to a large extent Western Kenya has suffered.

Sometimes back I stumbled onto some paper call it proposal by some NGO touching on the animal migratory corridor in Kitengela. The area to the South of Nairobi National Park (which is unfenced) opens up to Athi Kapiti Plains and Kaputiei, what they were calling Athi-Kaputiei ecosystem. It is wildlife-rich pastoral grasslands which is under threat from rapid construction of fences, infrastructure and residential areas. If unchecked, this unplanned growth will destroy Nairobi National Park because the animals move in the rainy season is search of pasture. The area is owned by private ranchers and unless the government acquires the land and compensates for the developments therein, there is no other way of recovering the corridor. This is poor planning on the part of government because it is the one that approved the developments in the first place.

One time I was selling a plot to a gentleman some place in Kitengela and he asked me whether the land is part of the migratory corridor. He was afraid of buying because he thought one day one time the government will take up the land. I told him that what is clear is that the land is not even owned by the government and if at all the government wanted to set aside the land for that purpose, it’d definitely compulsorily acquire the land by way of compensation to the private developers there but it’s not like they grabbed the land.

Interestingly, the Physical Planning Act is adequate in its content. The biggest challenge is actually enforcement by the relevant authorities. We see serious developments cropping up in riparian reserves, sometimes rivers are diverted and other times we even see building is swamps. A classic case is some house I heard about in Githurai 45 that started sinking as it was on top of a swamp. Somebody somewhere needs to get serious.

Next lesson will be on the crazy world of speculators in Kenya’s real estate.