Why renting an unfinished house can land you in jail

A view of Umoja and Tena Estate in Nairobi. 28-12-2018 [Phillip Orwa, Standard]

A drive across Nairobi shows a capital city that has shifted its construction industry to top gear.

In Eastlands, several areas are dominated by congested unplanned buildings that exceed nine floors, defying laws that any building that is more than four floors must have a lift.

Even formerly well-planned estates like Buruburu are today shadows of their former selves as construction of extensions has taken charge.

The 2018/2019 Economic Survey shows a country that constructs buildings around the clock. According to the survey, the construction industry gobbled up 5.8 million tonnes of cement in 2017 and 5.9 million tonnes in 2018.

The sector employed 168,000 workers in 2017 and 171,000 in 2018.

In 2017, the industry guzzled loans worth Sh112 billion. This increased to Sh114 billion in 2018.

The national deputy director of Physical Planning Timothy Mwangi is hopeful that the freshly enacted Physical and Land Use Planning Act 2019 will streamline the industry.

“The new law that came into force on August 5, 2019 does not only apply in Nairobi but caters for the new dispensation, which is the devolved governance system,” Mwangi says.

The new planning law seeks to make provision for the planning, use, regulation and development of land.

It is now mandatory that once a developer has been given approval by the county government, construction must start within three years. If this is not done, that permisiion lapses.

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 within five years.

Illegal

At the same time, it will be illegal to carry out business in an incomplete building. “A person commits an offence if that person 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,” says the law.

Mwangi, who recently presented a paper titled, Development Approvals: Processes and Procedures, at a lawyers continuing professional development seminar, says that there are general requirements for submission of approval applications.

He says the rationale of planning is to promote orderly and coordinated management of development activities.

“Planning should ensure orderly physical development and optimal land use and proper execution and implementation of approved physical development plans,” he says.

Mwangi explains that development applications should be considered based on several factors: “Development approvals are based on existing approved plans, zoning, land use policies and planning principles.”

According to the new law, a county government may, on its own motion or as may be requested by the national government or the National Physical and Land Use Planning Consultative Forum, declare an area a special planning area.

An area can be declared a special planning area if it has unique development, natural resource, environmental potential or challenges or has been identified as suitable for intensive and specialised development activity.

“A special planning area can also be declared it its development raises significant urban design and environmental challenges,” Mwangi says.

The declaration is meant to guide the implementation of strategic national projects or guide the management of internationally shared resources.

Alfred Oseko, a lawyer, says the multi-billion-shilling construction industry must be regulated.

“Regulation of construction helps in the preservation of public interest, foster sustainable development and collection of levies for provision of common services,” Oseko says. Some private developers have been on the wrong side of the law and are either charged in court or their buildings demolished for flouting environmental laws.

The National Environment Authority (Nema) director of legal services Irene Kamunge says environmental impact assessments cannot be overlooked in construction. “Private developers are required to submit a project report to the authority, which may exempt submission of the environmental impact assessment study report in certain cases,” she says.

The environmental impact assessment studies and reports should be conducted or prepared by Nema-authorised experts.

There are occasions where Nema has revoked its approvals to developers.

“Nema may suspend, revoke or cancel a licence if the licensee contravenes the conditions set out or there is a substantial change or modification in the project or its implementation,” Kamunge says.

An approval may also be revoked if a project poses an environmental threat which could not be reasonably foreseen before the licence was issued.

“Approvals can also be cancelled if established that the information or data given by the applicant in support of his application was false, incorrect or intended to mislead,” Kamunge says.

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