It is worrying that some residents in parts of Nairobi and its environs are living in houses whose top floors are still under construction. Is it legal to live in such houses since the risks involved are too high - coupled with the increasing reported cases of collapsed buildings causing deaths and injuries to several people?
Maryann, Nairobi
Yes, it is illegal to live in or carry out business in an incomplete building, according to the Physical and Land Use Planning Act 2019.
However, several areas in Nairobi and its environs are dominated by unfinished buildings and others under construction where families are bravely living in. There are also several unplanned buildings that exceed nine floors, defying laws that any building that is more than four floors must have a lift.
We remain hopeful that the recently enacted Physical and Land Use Planning Act 2019 will streamline the industry.
The planning law seeks to make provision for the planning, use, regulation and development of land.
The law made it 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 permission lapses.
The planning law also mandates a County Executive Committee member in charge of Lands to impose conditions or fines on an applicant who fails to complete the building within five years.
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.
Planning experts concur that 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.
Development applications should be considered based on several factors while 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 if its development raises significant urban design and environmental challenges.
The declaration is meant to guide the implementation of strategic national projects or guide the management of internationally shared resources.
- Harold Ayodo is an Advocate of the High Court of Kenya
