The Physical and Land Use Planning (Development Control Enforcement) Regulations

Legal Notice 251 of 2021

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The Physical and Land Use Planning (Development Control Enforcement) Regulations

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Legal Notice 251 of 2021

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Physical and Land Use Planning Act

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English

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Legal Notice

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PHYSICAL AND LAND USE PLANNING ACT

THE PHYSICAL AND LAND USE PLANNING (DEVELOPMENT CONTROL ENFORCEMENT) REGULATIONS

LEGAL NOTICE 251 OF 2021

Published in Kenya Gazette Vol. CXXIII—No. 253 on 10 December 2021
Commenced on 10 December 2021

[Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

1. Citation

These Regulations may be cited as the Physical and Land Use Planning (Development Control Enforcement) Regulations.

2. Interpretation

In these Regulations, unless the content otherwise requires—"building inspector" means a person with professional expertise in architecture, civil engineering, structural engineering, quantity surveying, mechanical engineering or electrical engineering charged with inspection of buildings or works;"development permission" means approval granted by a planning authority for development, with or without conditions, after submission of a development application;"enforcement" means action carried out by a planning authority with respect to any development that contravenes development permission or takes place without development permission or breaches the development specifications of the drawings and plans;"electronic address’' means an email address or any other prescribed form of electronic address suitable for effecting service;"enforcement notice" means a notice served by a planning authority on a developer under the provisions of section 72 of the Act communicating the intention of the planning authority to correct a breach or act on development that has been undertaken without planning permission or in contravention of planning permission granted;"enforcement officer" means an officer mandated by the planning authority to take action on any development that contravenes development permission or takes place without development permission or breaches the development specifications of the drawings and plans;"non-compliant development" means development that is undertaken without development permission or that fails to meet any of the conditions granted under the Act;"use" means the purpose or activities carried in, alongside or on land, buildings or structures without interfering with the physical characteristics of the land;"user" means the designation given to a registered parcel of land with development conditions for continued use or enjoyment of a right;"subdivision"—

(a)in relation to land, means the division of any land other than buildings held under single ownership, into two or more parts whether the subdivision is for conveyance, transfer or partition or for the purpose of sale, gift, lease or any other purpose; and

(b)in relation to buildings, means the division of a unit as defined in the Sectional Properties Act (Cap. 286); and

"technical committee" means a working team established under these Regulations.

3. Object of the Regulations

The object of these Regulations is to provide for procedures, standards, guidelines and prescribed Forms for carrying out enforcement under the Act.

Part II – ADMINISTRATION

4. Enforcement teams

An Enforcement Team shall be composed of—

(a)the County Director Physical and Land Use Planning;

(b)the County or Municipal Physical Planners;

(c)Building Inspectors; and

(d)County Enforcement Officers.

5. Functions of members of enforcement teams.

(1)Building Inspectors shall have the authority to—

(a)inspect buildings and works for compliance;

(b)issue a stay order to a developer in case of non-compliant buildings or works; and

(c)report to the County Director any non-compliance of buildings or works.

(2)The County Director shall have the authority to—

(a)issue and enforce enforcement notices on behalf of the County Executive Committee Member;

(b)take action on the report from the Building Inspector on non-compliant buildings and works;

(c)refer the report to the Technical Committee for further investigation if need be;

(d)determine compliance of other aspects of development other than buildings and works; and

(e)issue enforcement compliance certificates.

(3)County or Municipal planners shall have the power to—

(a)inspect other aspects of development other than buildings and works for compliance to development permission;

(b)issue a stay order to the developer;

(c)report to the County Director.

(4)An enforcement officer shall have the power to—

(a)issue an enforcement notice;

(b)execute the enforcement notice upon expiry of the period specified in the notice; and

(c)report to County Director on the status of the enforcement of the enforcement notice.

6. Mandate of Technical Committees

In case a matter reported from preliminary investigation requires further investigation, the County Director shall, within fourteen days, convene a meeting of the Technical Committee to—

(a)assess the matter;

(b)prepare a report on the status of development and any corrective measures to be undertaken; and

(c)submit the status report to the County Executive Committee Member for action.

Part III – COMPLAINTS

7. Lodging of complaints

(1)Lodging of complaints about non-compliant developments may be made to the County Director by—

(a)individual members of the public;

(b)residents’ associations;

(c)private or public institutions; or

(d)any other affected persons.

(2)A complaint under subregulation (1) may be lodged through any of the following means—

(a)postal mail;

(b)hand delivered mail;

(c)transcription of verbally lodged complaints;

(d)electronic address; or

(e)website or portal.

(3)A complainant under this regulation shall provide proof of non-compliance.

(4)The complainant shall not be under an obligation to disclose his or her identity and, where a complainant discloses his or her identity, the County Director shall protect the identity of the complainant.

8. Verification of complaints

The County Executive Committee member shall verify the validity of the complaint and, if it may deem necessary, issue a Stay Order in Form PLUPA-DC-19 as set out in the Second Schedule.

Part IV – ENFORCEMENT

9. Enforcement notice

(1)Where a person fails to comply with any of the conditions specified in a stay order issued under these Regulations, the County Executive Committee Member shall, on the expiry of the stay order issue an enforcement notice in Form PLUPA-DC-20 as set out in the Second Schedule specifying the actions to be taken by that person in order to comply with the provisions of the Act or these Regulations.

(2)Where the matter is referred for further investigation by the Technical Committee, the Committee may advice the County Executive Committee Member to—

(a)lift the stay order issued under regulation 8;

(b)cause the revocation of the development permission;

(c)cause the modification or alteration of the conditions imposed on development permission;

(d)cause the development to be discontinued;

(e)cause the building to be altered or demolished; or

(f)cause the land to be restored to its original or near-original condition.

(3)The County Director shall, within seven days of approval by the County Executive Committee Member after the decision of the Technical Committee, issue an enforcement notice or lift the stay order.

10. Mode of service of enforcement notice

(1)An enforcement notice may be served—

(a)by post to any postal address inside or outside Kenya entered in the land register as an address for service or as provided in the application for development permission;

(b)by electronic transmission to the electronic address entered in the land register or in the application for development permission as an address for service;

(c)by hand delivery to the registered owner or the applicant through the national or county government administration officers within the area of jurisdiction; or

(d)by notice in the Gazette and in one newspaper with nationwide circulation where appropriate at least three months before the enforcement in case of demolition.

(2)For unregistered property or where application for development permission has not been made, the notice may be served to any address where the County Director believes the owner, occupier, agent or the developer is likely to receive it or in a newspaper of nationwide circulation.

(3)In all cases, a copy of the notice shall be visibly displayed on the property.

(4)The service of a notice under subregulation (1) shall be regarded as having taken place if—

(a)for service under subregulation (1)(a), the notice is served within seven working days in case of address within Kenya and fourteen working days in case of address outside Kenya after being posted;

(b)for service under subregulation (1)(b), the notice is served within two working days after being transmitted; or

(c)for service under paragraph 1(c), the notice is served within the same day that it was posted.

11. Feedback mechanism

(1)The County Director may send reminders to the persons in breach during the life of the enforcement notice to notify them that the breach and the enforcement notice are still in force.

(2)Where a person served with the notice complies with stipulated conditions, the County Director shall issue an enforcement compliance in Form PLUPA-DC-21 as set out in the Second Schedule.

12. General principles of enforcement

In administering the enforcement notice, the County Director shall be guided by—

(a)Article 47 of the Constitution;

(b)the achievement of the intended goals of development control enforcement;

(c)the requirement that the development control enforcement shall be commensurate to the breach; and

(d)the principle of uniformity and equity in the application of the enforcement action.

13. Execution of enforcement notice

Upon expiry of the enforcement notice and where the person on whom an enforcement has been served has not appealed to the liaison committee, the Enforcement Team shall within seven days enter the premises or property and execute the conditions in the notice.

14. Identification of Enforcement Team

Any person participating in executing an enforcement shall identify himself or herself by the production of—

(a)his or her original national identification card;

(b)his or her official or staff identification card;

(c)a letter of authorization from the County Director; and

(d)a certified copy of enforcement notice issued under regulation 9.

15. Execution of Enforcement Notice for demolition and alteration of buildings

(1)Where enforcement requires the Enforcement Team to demolish buildings or works, the demolition shall be carried out between 6.00 a.m. and 6.00 p.m.

(2)The enforcement officer taking part in enforcement action shall take an inventory of any possessions on the premise or property in Form PLUPA -DC-22 as set out in the Second Schedule.

(3)The inventory shall be served to the owner or occupiers.

(4)The owner or occupiers of the premise shall be responsible for securing the possessions on the premises when an enforcement action is initiated.

16. Determination of Restoration costs

For the purpose of determining the costs for restoration of land to its original state or near to its original state after enforcement under section 57(4) of the Act, the County Director shall—

(a)be guided by the general principles of enforcement outlined in regulation 12;

(b)develop a costing roll for restoration based on—

(i)the technology required for the restoration;

(ii)risk factors;

(iii)manpower needs;

(iv)unit cost for restoration per square meter; and

(v)transportation cost of materials from the site.

17. Appeals

Any person who is aggrieved by a decision of the County Director may appeal against such decision in accordance with section 72(3) and (4) of the Act.

18. Register

(1)The County Director shall keep a register in Form PLUPA-DC-23 as set out in the Second Schedule containing the information in respect of every enforcement notice issued.

(2)Every entry in the register shall be made within seven days of the happening of the event in respect of which an entry is required to be made.

(3)The register of enforcement notices shall be kept at the office of the County Director in paper form or electronic form.

FIRST SCHEDULE [r. 9(1)]

ENFORCEMENT NOTICE

S/No.	Nature of Non-Compliant Development	Notice period
1.	Commencing the development of a Commercial/Residential/ Industrial Institutional building without the approval of building plans	30 days
2.	Commencing the development of Commercial/Residential/ industrial/institutional building without submission of structural drawings to the county government for approval;	21 days
3.	Commencing the development of Commercial/ Residential/ Industrial/Institutional building without erecting notice of the development on the site	5 days
4.	Commencing the development of a perimeter wall without the approval of building plans by the county government;	30 days
5.	Extending development of Commercial/ Residential/Industrial/ Institutional development beyond approved level without development permission/ commencement notice;	30 days
6.	Development of Commercial/ Residential/Industrial/ Institutional buildings using outdated development permission;	30 days
7.	Development of Commercial/ Residential/Industrial/ Institutional premises without adhering to standard building lines;	90 days
8.	Occupying/ allowing the occupation of Commercial/ Residential/Industrial/ Institutional buildings without acquiring Certificate of Compliance and consequent Certificate of Occupation from the County Government;	14 days
9.	Developing/occupying/ allowing the occupation of substandard Commercial/Residential/Industrial/Institutional buildings that pose danger to the occupants and general public;	90 days
10.	Subdividing/Re-parceling/amalgamating land without development permission,	21 days
11.	Changing the Use/Extending the Use of the land without development permissions;	21 days
12.	Allowing effluent from the building to flow in the open posing danger to the public;	7 days
13.	Dumping waste on undesignated waste disposal site;	2 days
14.	Excavating soil/murram/sand without development permission;	7 days
15.	Digging channels across/ along the road without development permission;	7 days
16.	Leaving dug channels across/along roads uncovered or not cordoned posing danger to the public	Cordoning – 1 dayCovering dug channels – 7 days
17.	Encroaching on a public road of access/ railway reserves/ way leaves and easements/public space	Temporary – 7 days Permanent – 30 days
18.	Displaying advertisement without development permission	21 days
19.	Generating excessive noise causing nuisance to the public	Immediate

SECOND SCHEDULE

FORMS

FORM PLUPA-D C-19

(r. (8))

REPUBLIC OF KENYA
COUNTY GOVERNMENT OF ....................................
STAY ORDER

[Physical and Land Use Planning Act Sec. 72(1)]Serial No. ................................

Date Issued ...........

To (Owner, Developer, Agent, Occupier)
Name ..............................................................................................................
Postal address ..........................................................................................
Email Address ............................................................................................
Physical address .........................................................................................
Description of the Land Parcel No ....................................................................
Coordinate ..............................................................................................................
General description of land (for un-surveyed land) ................................
County/City/Municipality/Town/Ward ................................
Name of road/street .................................................................................................
Enforcement Notice No. ...........................................................................................

Enforcement ReportThe under signed Enforcement Officer in the presence of the owner/Developer/Agent/Occupier exercising their powers under section 72 of PLUPA, 2019 identified the following non-compliant development at ............... hrs (time) on .............. date ............... while inspecting the land/premisesDeveloper/Agent/OccupierType of Development ................................Your attention is therefore drawn to the following provisions and requirements of PLUPA, 2019Information/document required*

(i)Approved Architectural drawings

(ii)Approved Structural drawings

(iii)Commencement Notice

(iv)Site notice

(v)Approved subdivision/ Amalgamation/ Re-parcellation/ partitioning scheme plan

(vi)Consent to subdivide

(vii)Planning brief for subdivision/Change of User/Extension of User/ Extension of Lease/Renewal of Lease prepared by a registered and practising Physical Planner

(viii)Application to National Land Commission for Renewal of Lease

(ix)PLUPA Form ........... (Approval/deferment/rejection of development)

(x)PLUPA Form .............. (Certificate of compliance)

(xi)Certificate of Occupation in case of Buildings

*Tick as appropriateYou are hereby required to immediately stay the development and submit the required information/documents to the County Director of Physical and Land Use Planning within fourteen working days from the date of this notice failure to which an Enforcement Notice shall be served on you in accordance to Section 72(1) of PLUPA 2019.Signed ................ date .............Owner/Developer/Agent/OccupierSigned ................... date .............Enforcement OfficerCopy: County Executive Committee Member in charge of Physical and Land Use Planning County Director of Physical and Land Use Planning.

_____________________________

FORM PLUPA-DC-20

(r. 9(1))

REPUBLIC OF KENYA
COUNTY GOVERNMENT OF ....................................
ENFORCEMENT NOTICE

[Physical and Land Use Planning Act Sec. 72(1)]Ref No. ................................To (Owner, Developer, Agent, Occupier)Name ..........................................................Postal address ....................................................Email Address ...................................................Physical address ...................................................

1.Take notice that you have undertaken the development of land described here under without the grant of development permission and/or the following conditions required on that behalf under Part IV of the Physical and Land use Planning Act.

2.Description of the Land Parcel No. ................................Coordinates ...................................................................Correspondence file No. (If known) ................................General description of land (for un-surveyed land) ................................County/City/Municipality/Town/Ward ................................Name of road/street ..........................................................

3.Nature of Development ..................………………………………………

4.Development conditions contravened................................(See Details overleaf)

5.By this notice you are required to*

(a)Immediately stop any further activities on the land

(b)Alter/modify the buildings or works as per attached diagram

(c)Demolish the buildings or works

(d)Surrender Form PLUPA .................. Serial No/Ref. No. ................. (the approval of development permission) issued for variation of development permission conditions.

(e)Restore the land to its original or near condition as before within 90 days.

(f)Any other measure (describe) ..........................

*Tick whichever is applicable

6.This notice shall take effect on the ......... day of ............., 20 ..............

7.If you are aggrieved by this notice, you may appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days of this notice in which case the operation of this notice shall be suspended pending the final determination or withdrawal of the appeal

8.Any person who uses or causes or permits to be used the land to which this notice relates or carries out or causes or permits to be carried out operations on the said land in contravention to this notice shall be guilty of an offence provided by section 72(5) of the ActTAKE NOTICE that at the expiry ..................... from the date of this notice, failure to comply, the County Government may enter on the said land and execute the requirements as outlined above and may recover as a civil debt in Environment and Land Court any related expenses incurredOfficial use:Name and signature of Authorised Officer ..........................Official stampDated this ................. day of ...................., 20 ..................CCDeputy County commissioner.................. Sub CountyOCPD ................................ DivisionSub-County Enforcement Officer...................... Sub-County

Details

1.Commencing the development of a Commercial/Residential/Industrial/Institutional building without the approval of building plans by the county government.

2.Commencing the development of Commercial/Residential/Industrial/Institutional building without submission of structural drawings to the county government for approval.

3.Commencing the development of Commercial/Residential/Industrial/Institutional building without erecting notice of the development on the site.

4.Commencing the development of a perimeter wall without the approval of building plans by the county government.

5.Extending development of Commercial/Residential/industrial/institutional development up to…… level without development permission/commencement notice.

6.Development of Commercial/Residential/Industrial/Institutional buildings using outdated development permission.

7.Development of Commercial/Residential/Industrial/Institutional premises without adhering to standard building lines.

8.Occupying/ allowing the occupation of Commercial/Residential/Industrial/Institutional building without acquiring Certificate of Compliance and consequent Certificate of Occupation from the County Government.

9.Developing/occupying/ allowing the occupation of substandard Commercial/Residential/Industrial/ Institutional buildings that pose danger to the occupants and general public.

10.Subdividing/Re-parceling/Amalgamating land without development permission.

11.Changing the Use/Extending the Use of the land without development permission.

12.Allowing effluent from the building to flow in the open posing danger to the public.

13.Dumping waste on undesignated waste disposal site.

14.Excavating soil/murram/sand without development permission.

15.Digging channels across/along the road without development permission.

16.Leaving dug channels across/along roads uncovered/not cordoned posing danger to the public.

17.Encroaching on a public road of access/ public space.

18.Displaying advertisement without development permission.

19.Generating excessive noise causing nuisance to the public.

_____________________________

PLUPA-DC-21

(r. 11(2))

REPUBLIC OF KENYA
COUNTY GOVERNMENT OF ....................................
ENFORCEMENT COMPLIANCE CERTIFICATE

[Physical and Land Use Planning Act Sec. 72(1)]Ref No. ................................To (Owner, Developer, Agent, Occupier,)Name ................................Particulars of property ................................Postal address ................................Email Address ................................Physical address ................................IT IS HEREBY confirmed that you have FULLY COMPLIED with conditions of Enforcement Notice No. ........ of ......... Day of.........., 20 ......... and are therefore allowed to continue with utilization of the propertyOfficial use:Name and signature of Authorised Officer ................................Official stampDated this ............... day of ..................., 20 ...................CCDeputy County commissioner..........................Sub County ..........................................................OCPD ..........................................................Division ..........................................................County Enforcement Officer .....................................................County ........................................................

_____________________________

FORM PLUPA-DC-22

(r. 15(2))

REPUBLIC OF KENYA
COUNTY GOVERNMENT OF ....................................
INVENTORY OF ITEMS FOUND ON SITE DURING ENFORCEMENT

[Physical and Land Use Planning Act Sec 72(1)]Ref No. ................................................................Date ...................................................................Description of the Land Parcel No. ........................................................................................................Coordinates ..........................................................General description of land (for un-surveyed land).........................................................................................................................................................County/City/Municipality/Town/Ward ................................Name of road/street .......................................................Enforcement notice No. .....................................................

S/NO	ITEM DESCRIPTION	NO. OF ITEMS	STATUS	SIGNATURE-OWNER/AGENT	SIGNATURE-Enforcement Officer

WITNESSI hereby confirm that the items described above were retrieved from the premises on this day ...……. of……… 20……… in my presence.Name……………………… Signature………………(To be Completed by; Ward Administrator or Chief or Assistant Chief.)

_____________________________

FORM PLUPA-D C-23

(r. 18(1))

REPUBLIC OF KENYA
COUNTY GOVERNMENT OF ....................................
REGISTER OF ENFORCEMENT NOTICES

[Physical and Land Use Planning Act Sec 72(2)]

S/No	Enforce-mentNoticeNumber	DateofNotice	Particularsof personserved	Land Ref .No./descriptionofproperty	PhysicalAddress	StipulatedCorrectiveMeasure	Date &brief ofactiontakenby thepersonserved	Date ofissuance ofcomplia-nceform	Date &Decisionof appealto LiaisonCommittee	Date&Decisionof Court

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History of this document

31 December 2022 this version

Revised by 24th Annual Supplement

10 December 2021

Published in Kenya Gazette 253

Commenced

Read this version

The Physical and Land Use Planning (Development Control Enforcement) Regulations

Legal Notice 251 of 2021

The Physical and Land Use Planning (Development Control Enforcement) Regulations

Related documents

LAWS OF KENYA

PHYSICAL AND LAND USE PLANNING ACT

THE PHYSICAL AND LAND USE PLANNING (DEVELOPMENT CONTROL ENFORCEMENT) REGULATIONS

LEGAL NOTICE 251 OF 2021

1. Citation

2. Interpretation

3. Object of the Regulations

Part II – ADMINISTRATION

4. Enforcement teams

5. Functions of members of enforcement teams.

6. Mandate of Technical Committees

Part III – COMPLAINTS

7. Lodging of complaints

8. Verification of complaints

Part IV – ENFORCEMENT

9. Enforcement notice

10. Mode of service of enforcement notice

11. Feedback mechanism

12. General principles of enforcement

13. Execution of enforcement notice

14. Identification of Enforcement Team

15. Execution of Enforcement Notice for demolition and alteration of buildings

16. Determination of Restoration costs

17. Appeals

18. Register

FIRST SCHEDULE [r. 9(1)]

ENFORCEMENT NOTICE

SECOND SCHEDULE

FORMS

_____________________________

Details

_____________________________

_____________________________

_____________________________

History of this document

31 December 2022 this version

10 December 2021

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