Planning law and development approval

Prompted by emerging issues, I reviewed and reflected upon our planning law. I looked at other land laws and the constitution too. There are fundamental questions. I formed the opinion that the provisions requiring the surrender of private land upon applying for development approval under the Physical Planning and Land Use Act 2019 are flawed. It may be only a matter of time before the constitutional court expunges the offending provisions. They undermine private tenure rights. One wonders how they slipped into this important law.

See, we come from a background where previous planning law was abused to illegitimately move private land from proprietors seeking development approvals to some holders of strategic state and political offices. This is how it happened. Proprietors would make applications for the subdivision of private land, which would require the approval of the then Commissioner of Lands, and the respective local authorities, where applicable. Regulations under the Land Planning Act, Cap 303, now repealed, required that land for proposed public uses such as schools, hospitals, shops, markets and open spaces, among others, be freely surrendered. In some development schemes, this would amount to quite a lot of land. Once approval was accorded, the proprietor would lose such land to public purposes. Ironically, the land administration regime of the time would have such land covertly allocated to preferred public officers or political leaders, or quickly sold out to willing buyers at below market rates. This fate befell many company and cooperative farms whose subdivision approval was sought at the time.

Constitutional protection of private property

Such unfair practices informed subsequent land sector reforms. Reason why our current constitution underscores that the state shall not enact a law that arbitrarily deprives a person of property of any description or interest. It further commits the state not to deprive any person of their property except through the compulsory acquisition of the land required for a public purpose, but on the payment of prompt and full compensation. The constitution further provides that the state may regulate the use of any land in the interest of defence, public safety, public order, public morality, public health or land use planning. Consequently, the Land Act of 2012 provides mechanisms for the compulsory acquisition of private land by the national and county governments, requiring that such requests be submitted to the national land commission.

Requirement for surrender without compensation

Then comes the Physical and Land Use Planning Act of 2019, and its regulations. The third schedule of this Act, which dwells on development control, provides that where proposals are submitted for subdivision and amalgamation, land should be surrendered for public utilities. The 2021 Regulations on development permission and control are more categorical. These regulations provide that where required by the county executive committee member, suitable and adequate land shall be surrendered by the applicant, at no cost to the county government, for open spaces, amenities and recreational facilities. The regulations further require that the land surrendered be utilized for the planned purpose, and be registered in the name of the County Government, or the Cabinet Secretary responsible for matters on finance, where the national jurisdiction pertains.

Requirement negates constitutional principle

Looking at the related constitutional provisions and those in the Land Act, highlighted earlier, one gets the impression that the planning provisions requiring a proprietor to surrender land for free may not be justifiable. They look more of a legacy carried over from past practice under the repealed Land Planning Act, without regard for compliance with our current constitutional provisions. Why? With due respect to the importance of planning our spaces, the surrender of private land for free is a substantive issue. Think about its cost implications in today’s land market. Look at the depth to which the constitution goes in protecting private property. Then juxtapose these against a sub-sectoral law which overtly seeks to oblige a proprietor or investor to surrender part of their land for free just because they have submitted a development proposal.

I doubt that the drafters of our constitution would have failed to address a requirement with such fundamental implications to private tenure rights. It not only negates the constitutional principle not to deprive one of their property without due compensation, but also serves as a disincentive to development. If anticipated during the constitution making process, such a punitive requirement would have raised a major red flag in discussions on chapter five on land and environment. I suppose that no one expected such a provision to be introduced through sectoral or subsidiary legislation.

Need to revisit planning law

One will for instance notice that, in appreciating the continuous need for land for public purposes at both levels of government, the constitution specifically provided for compulsory acquisition on compensation. Moreover, in efforts to ensure that all land uses are in conformity with public interest, the constitution specifically provided for the state to intervene and regulate land use. One of the reasons given for such regulation is land use planning. In the same spirit, nothing would have prevented the drafters of the constitution from providing for the free surrender of land in the interest of development control, if deemed foundational. It’d suffice to require proprietors and investors to reserve land for purposes such as schools, hospitals, recreation and open spaces. Government would then provide oversight mechanisms to ensure that such spaces are committed to the designated purposes, without requiring their surrender. This wouldn’t contravene the constitution.

The line ministry, and planning experts, may need to revisit this legislation and formulate how to recast the pertinent legislative provisions. Else, it will soon come up for judicial determination.

Dated: 29th August, 2024