The new Physical and Land Use Planning Act, 2019 (the 2019 Planning Act) came into force on 5 August 2019, repealing the Physical Planning Act of 1996 (the 1996 Act). The 2019 Planning Act shall now govern matters relating to planning, use, regulation and development of land in Kenya.

Similarities of the 2019 Planning Act to the 1996 Act

• The government, at both national and county level, is tasked with the preparation of physical and land use plans. The national, county, inter-county and local plans are required to be integrated, and these plans shall collectively form the basis of how land is to be used in Kenya.
• County governments have retained their role of development control in their respective counties. All applications for development permission shall therefore continue to be made in the relevant county.
• Development permission must be sought prior to undertaking any development. A developer who does not obtain such prior permission risks criminal sanctions and demolition of the unapproved works.

Changes introduced by the 2019 Planning Act

• Increased public participation: Members of the public will now be given the opportunity to give their views and raise objections to various matters e.g. the suitability of the national and county plans.
• Classification of developments: Developments are no longer classified as either Class “A” or Class “B” but rather the 2019 Planning Act lists developments that require development permission. In this regard, developments such as subdivision, amalgamation, change of user, extension of user, extension of lease and approval of building plans will still require development permission to be issued by the relevant county government.
• Additional developments requiring approvals: Processing of easements and wayleaves will now require express development permission, as will siting of educational institutions, base transmission stations, petrol stations, eco lodges, campsites, power generation plants and factories.
• Definition of commercial and industrial use: There is also more clarity as to what constitutes a commercial use versus an industrial use. This will guide applicants in selecting the correct land use, depending on the nature of the project they wish to undertake.
• Pre-requisite for other licences: Development permission in respect of commercial and industrial use is a pre-requisite for other licensing authorities granting a licence for a commercial or industrial use, or occupation of land.

Timelines

The 2019 Planning Act has also set timelines in relation to various matters, significantly:

• 6 years: The maximum time a person shall serve as Director General of Physical and Land Use Planning.
• 3 years: Period within which to commence a project before the development permission lapses.
• 2 years: Period within which the national plan should be completed.
• 90 days: Time allowed for land to be restored by the developer where development permission was not sought in advance, failing which the county shall restore the land at the cost of such developer.
• 60 days: If an applicant does not receive a response to their application for development permission after this period, such application will be deemed to have been approved.
• Every 10 years: Counties are required to prepare their respective county plans.

Way Forward

As we transition from the 1996 Act, please note also that projects which received approval under the repealed legislation must commence within 24 months from the date on which the permission was granted or risk such permission lapsing (in which case, development approval would need to be 
re-applied for under the 2019 Planning Act).

The forms used for applications for development permission will not change at present as regulations are yet to be issued under the 2019 Planning Act.

The 2019 Planning Act has aimed at solving key challenges previously faced by property owners and developers when seeking to obtain development permission and also seeking to ensure planning and development is undertaken in a rational and cohesive manner at both national and county levels going forward.

We will keep you updated on developments with regard to any rules or regulations that will be made pursuant to the 2019 Planning Act.