LAND USE LAW - Architecture of Land use law In more recent years many African countries have recognised

In more recent years many African countries have recognised that land use policy is a
crucial matter which must be brought in focus.
This course is called land use law and as a course our objective is to introduce one to the
policy and legal framework and policy for regulation of land use for the management of Policy Development in Africa: 10 countries that are involved in policy development, what
land. In order to understand it is important that we should understand how public interest is happening in Kenya.
interacts with private policy.
Throughout the many years that land use questions have attracted law, there has never
Land which is being used is land which is subject of property, use of physical solum as been an attempt to define a policy framework for land. The Ministry of Lands has set up a
subject to rights of the variety of property. The course will strive to explain the secretariat to address the question of policy. Uganda is working backwards to see if they
intersection between public policy and private interest. can define a policy framework.

Basis of public intervention - Scope of intervention - Optimality of the intervention (is it useful in Why did Uganda go for legislation without policy? Policy is important because it is the
managing land) basis of legislation. Legislation any law that reflects, translates a Law as an authoritative
statement of public policy, translated into norms, a representation of policy whether
To conduct an analysis not only of the policy prescriptions regarding policy prescription explicit or implicit. How does policy link into law? how does law create property and how
but how prescriptions have been used in governing land use sector. does property become the instrument in which land use policy operates

Three basic issues What is land use? - what is it all about, how does public policy define the direction that
1. Understand what land is, What land use is about, How policy framework land use policy takes, how does the policy produce law of land use and how does that law
relating to land use affects dimension of land use sector; define property in land and what are the implications of having property rights in land.
2. How property the domain of property affects the land use centre proprietary
context of land use. The power and authority to use land that comes from Week four proprietary context: Relationship between property theory and land use
the right to property of land; analysis (Property theory and land use analysis which directs one at the importance of
3. Legislative framework for managing lands. How does the state organise property in the process of land use itself.
the land use sector so as to get optimum results of power of property.
Policy produces law, law produces property but how does property empower one to effect
Land and Land use policies over land use, what are the limits of proprietary land use.
The phenomenon of land what is land? In terms of the multiplex legal systems that deal
with land. If land is not just the soil, what else is it? Is cujus still representative of the Public land is subject to property - Private land - Community land trust land domain a
definition of land? target to strengthen the communal property regime.
How are community property rights created?
We are interested in the activities that go on on land, induced by human interactions, How does the bundle of property rights pass over land how does it form the
activities that change or alter the physical solum . it could be in the form of physical basis for action on the land?
development, environmental responses to human population. Under land and land use You dont use land, use land because one has rights to property over it.
what is the domain of the concept of land and what kinds of uses affect the physical
solum Kenyas Law of property in land: The primary question in this course is why land use law?
if property rights are the only power with which individuals can use land, there is always
Land Use Policy: If the land use process is a deliberate effort to change the condition of some form of property that explains the dynamics of the use of any particular piece of
the physical solum, is there need for a land use policy. Policy is fundamental to the land.
process of using land.
Week 5: If individuals and communities have the power to change land use cover, to Zoning why should planning of land in urban sectors be regulated,
develop the land, and if there are limits to proprietary land use, what justifies state how do you deal with slums in terms of legal process and intervention.
intervention or public intervention in the manner in which land is used? What is the point Housing development is a form of land use which as an important
of intervention? How does the state get into the land use process, by qualifying power of vocal point for law. why are developers producing flats more than
the proprietor to use land. maisonettes?
Peri urban sector interface between rural and urban governed by a
multiplex of law, statutory customary etc.
Who holds ultimate title to land? 3. Natural resource parameter water, minerals, forests, wildlife and marine
The question of radical title. From this doctrine arise the consequences that resources, should natural resources be regulated to preserve this form of land
1. the holder of radical title can direct the manner in which land may be used use?
2. holder of the radical title has power to appropriate land use, whether private or 4. Anthropogenic activities:
public, Tenure of natural resources, who owns what interest in natural resources - What is the
3. doctrine of eminent domain as an important basis for public intervention in land. framework for access to natural resources?
4. the residual power of the state to direct land use, police power of the state. Forest Act
Water Act
Doctrine of eminent domain as basis for state intervention & police power Wildlife Management & Conservation

How have the two doctrines been used to develop a body of land use law in this country ? How do you monitor Land use process? Purpose of environmental planning and policy is
to be able to take account of land use process and to have a mechanism of identifying
Property rights are important because it is the first line of power of a land user. How far how corrective measures can be taken.
can one go in exercising those rights, the public has an interest in the land through the
doctrine of eminent domain or police power. Do we have good land use law? can our framework stand the test of time. Do we reform
the sector. This requires policy challenges and we need to look at how to respond at the
Important use of police power of state is in terms of land use planning. We have in Kenya level of legal regulation.
an overall process that deals with planning. What does planning mean, i.e. physical
planning, scope of physical planning, resource necessary for effecting land use law, Question of Reform: inventory of full range of land use law statutes regulations orders
policy basis for physical planning. Legal basis for planning specifically the Physical etc. comprehensive critique of the inventory, identify the areas of difficulty which reform
Planning Act which expresses public concern in an orderly manner. should target. Determine the direction which the reform process should take.

In the process of planning it is always necessary to use the doctrine of eminent domain. Initiatives which the GOK has taken to reform land use law, starting with reform of land
Specific land use sectors use policy. Analysed against specific goals and strategies set up by the state.
1. Agrarian Sector rural sector the broad framework for regulation
Agriculture and Livestock Development, the Agriculture Act, Model Land use law for this process.
support services infrastructure for livestock development
agricultural land market these operations are not strictly speaking
aspects of land use. History of land market regulation. Reasons that LAND & LAND USE
led colonial and later to tighten controls of agricultural market. The legal conception of land is not common or systems under Kenya rather complex land
2. Urban Land Use what is urbanisation? Why are people moving into urban system. Land is conceptualised in two ways
areas and how does it affect the use of land in urban areas and what are the
environmental policies for managing the urban sector? Physical solum permanent fixtures embedded in the soil, airspace and geospace
Cujus est solum ejus land embraces more than the soil, it includes all things that are With respect to water the common law was always clear that there was no property in
attached to the soil in a manner as to be embedded in it and the geospace above. This water percolating through land or in a defined channel in case of percolating the land
include any features annexed to the soil even if annexed by strangers. This conception owner could draw the water for all or for any use. At the point of extraction of percolating
can be understood in the ideas of liberal capitalism, use of private property to appropriate water, it became the property of the person extracting it. The rights of owner were
all items found on the soil.. this with time became counter productive. This wide subscribed by a riparian owner even though the common law allowed owners that were
conception of land yielded a series of exception and limitations by statutes so as basically riparian to extract water the obligation was to ensure that extraction did not affect other
to redefine cujus. riparian owners also to extract water.

As originally involved one of the things to deal with was fixtures quic quid whatever is Therefore the common law maxim was . Regarding air space of colum the
attached to the land is part of the land and this maxim has to be defined. Not everything assumption that everything above the owners land belonged to the owner could be
attached to the land becomes a fixture. There are a number of principles. rebutted if it became necessary e.g. to what extent would projections over others land be
In agricultural England the land use process is not always executed by those who own construed to be a nuisance? The beginning of the telegraph and telegraph poles without
property in the land, there are quite a number of cases where the land is used by reason permission of land owners began to question ownership of the airspace. The advent of
of leasor interests that lessees will get access to land and the problem that arises is how aeroplanes changed the extent that one would claim ownership of the airspace.
does one deal with fixtures put on the land by the end of the lease, do they become part
of the land or is there a way they can be severed from the land. The law of the air -
Cujus maxims has over the centuries being severely qualified in respect to what it is that
The common law developed a series of exceptions defining a category of fixtures that is the soil, geospace and what may be appropriated in the aero space. This is the
could be removed from the soil common law received in 12th August 1897 which is the date when Kenya was declared a
1. Trade fixtures necessary for carrying out of the tenants trade; protectorate. When common law was received therefore the conception of land was
2. Ornamental fixtures or domestic fixtures provided the removal did not received with the exceptions.
cause substantial damage to the land itself;
3. Englands Agricultural Holdings Act 1948 which permitted tenant to remove Under local statutes there are modifications which are contained in a number of statues.
agricultural fixtures at the end of tenancy. With regard to fixtures the Transfer of Property Act of India permits a lessee to remove all
things he has attached to the earth so long as he leaves the soil the way he found it.
Before advantage could be taken of these exceptions (Cujus) a clear notion of what The GLA permits a Lessee for a period of 30 years to remove fixtures put on the soil
constituted a fixture was always necessary and the rules that were developed to within 3 months and any buildings erected on the land during the currency of the lease
distinguished removables and unremovables were unless the president elects to purchase it. If for more than 30 years, it is not removable
1. Character of the object which was annexed to the soil, if a tree permanently and reverts to the state. Licensees are also permitted to remove certain kind of fixtures
embedded if a fence depended; but a licensee may not remove a building erected on the land before the lease expires.
2. The degree of annexation to the soil, i.e. for a fixture not to be removable Any fixtures erected on govt land will revert to the govt without compensation.
there was need for substantial connection to the soil
3. The purpose or object for which the fixture was annexed to the land. If the As regards minerals Mining Act vests all minerals except common minerals to the state.
intention was not to leave the fixture on the soil it could be removable. The mining Act has decided that common minerals belong to the surface owner but
precious minerals to the state. This is also the case with mineral oil, bitumen, asphalts
The cujus doctrine also recognised exceptions with respect to minerals. Under common etc. are vested in the state.
law gold and silver were always appropriated to the sovereign and would not be regarded
as part of the geospace. These were exceptions to the doctrine of cujus but as more As regards water, the Water Act cap 372 vests every body of water under or upon any
minerals were discovered the geospace got more exceptions land in the government, this is subject to any right of use in respect to such water. A body
of water is defined in such a way as to include surface and underground water but a body
of water does not include water in a spring which is wholly over land owned by an Land use therefore is a non-judgmental result of decisions made by human
individual as long as it does not flow to a body of water over the boundaries. beings with regard to land use. We are concern with the law that prohibits any activity
that would change the character of land or the law regarding waste.
If it is a body of water whole within the boundaries of landowner, that does not become
government owned. Note that the Water Act is very clear about tenure of water Land use is important is not simply an anthropogenic process but also the manner in
resources. which services of land can be realised i.e. extraction of wealth by individuals, land is a
factor of production in respect of food, fibre and other biotic material, provides biological
The airspace, we are dealing with the Civil Aviation Act Cap 394, Supplies Lines Act, habitat for plants and other species, land is a co-determinant of global energy balance
these pieces of legislation qualify appropriation of airspace in the public and the water cycle depends on the condition of the land. In some cultures the land is
also deity, its part of culture and therefore defines identities of communities.
The effect of these statutory provisions relating to physical solum, geospace and airspace
is to cut down on the extent to which the cujus maxim applies in this country. Land and land use are crucial not simply because the land could use its food and fibre,
the process of land use becomes important in dealing with global change matters and use
Under indigenous law i.e. customary or Islamic law, land means essentially the physical of land for oncological purposes is also important.
solum, fixtures whether permanent or not do not accrue to those surfaces where they
have been erected. In the defining land distinguish between land under common law We cannot fully protect the role of land in any of those contexts unless the quality of land
system and land governed under customary law. as we discuss the nature of property in itself is maintained. This is a function of interactive factors including land availability
rights we need to carry that distinction to understand what land use is and to appreciate population pressure, technological changes and management. As we think through land
the type of legal regime that defines ungoverned land. use, its not just a physical exercise but there are questions of quality and management of
technology etc. depending on how those parameters are dealt with, we need to
understand the degree of stress the legal system goes through. It is important to enquire
WHAT IS LAND USE? the policy framework within which questions of land use are dealt. We are presupposing
At a very general level land use is any human induced activity on the physical solum that land use processes are driven by certain policy decision which might be implicit to
(anthropogenic human induced activity) this constitutes land use. what land managers define. They should define the goals that any process of land use is
expected to meet. It is important to understand target which land users are expected to
Specifically land use comprises any arrangement or activity which produces meet in a given land use context. The policies may represent individual aspirations or
change in the physical solum or reserves and maintains conditions of the land use community concerns.
cover. The activity may be direct or indirect, it may be express or implied, it may be
accidental or incidental or deliberate as long as it affects changes or maintains land use Whatever the case it is important to conceive of policies in terms of overall land
cover. operations and therefore adequate policy should address the question of the appropriate4
land right regime to be used as the basis of policy goal. It is important to define basic
The common law of England defines land use in terms of the doctrine of waste. The principles that govern conduct of land use including strategies for the management of
common law has 4 categories of waste land.
1. Acts which improve the character of land itself ameliorating;
2. Acts of omission detrimental to land quality permissive waste; It is then important to clarify the domain of land use law and the way in which land use
3. Acts of commission which are injurious to land quality voluntary waste; law interacts with the law of property. Then discuss property, land use law.
4. Wanton acts of destruction which no prudent land user will carry out on the
land equitable waste
Each of the categories have distinct legal consequences. POLICY DEVELOPMENT IN AFRICA
Throughout Africa French, or Anglo the colonial governments never thought that
development of land policy was important before legislation. It was not their priority and
their interest was to extract returns as much as possible rather than define policy. In Specifically on land use Njonjo commission recommended a policy framework that would
England only gold and silver was appropriated to the state. During colonialism, since lead to sustainable land use, improvement of productivity of degraded land and integrated
they did not know what lay under they passed legislation that said all minerals belong to land use planning through participatory processes. Those principles it is expected will
the state. Cecil Rhodes applied to own south Rhodesia and Boars applied for South also address specifically agrarian land and urban use centres, policy should address
Africa. The people who held the surface rights had no control of what was in the establishment of enabling environment for agrarian and urban land use, question of
geospace. intersectoral of land use activities.

Policy developments ought to precede legal intervention and a series of attempts have Njonjo report was submitted last year and the govt has appointed a committee to develop
been made in a number of countries to deal with the question of land use. The first a policy framework for this country and we expect that the bulk of legislation regarding to
country was Tanzania in 1995 followed by Mozambique, for south Africa in 1994 as they land will be amended.
were emerging out of apartheid, it was imperative that they had a policy. Ghana 1998,
Zambia 1998, Namibia 1999 Zimbabwe found that they needed to expropriate land The reasons we are concerned with policy is that policy sets the goals and principles
before policy is approved. Swaziland has been discussing matters of policy and has a which are then used at the macro and mirco land regulations and the development of the
constitutional commission to advise the king. Land policy document has hit a cul-de-sac. law itself. In the context of land use the law translates policy into empowerment for land
Rwanda produced a policy document and in the case of Rwanda the whole issue of land users, it also translates policy into statements about proper management of land use and
redistribution is crucial to the development of the country. Malawi also produced a policy provides a decision making framework through standards that must be taken into account
document in 2001 and have followed it with new land law and Lesotho followed suit. in any land use activities.
Uganda in 1998 passed legislation without policy and are now struggling to redefine land
policy. Law establishes a minimum threshold to be attained before land users can appeal to.

In Kenya at the moment what goes by reason of land policy is to be extracted from some We do not have land policy or a land use policy but we have certain macro land policies
documents like national development plans or inter-sectoral documents such as poverty that are relevant to issues of land and land use i.e. national health plan, environmental,
reduction document, documents on HIV Aids, policies on investment and planning. national poverty eradication plan, policy for sustainable development, and there are
Recently when the Njonjo Commission submitted its report, it had a very lengthy and national development produces that are produced every 5 years or so. These are macro
exhaustive report on question of policy. A set of principles are recommended in njonjo level policy frameworks, at the micro level there are policies which address land use
report which include process, the draft on rural development favour, agricultural policy, national forest policy,
1. Need for a land system economically efficient, socially equitable and housing policy and water and slum upgrading policy. These policies recognise that land
operationally accountable to the Kenyan people; use policy is an essential component of development. Land use law that would translate
2. Establishment of normative and institutional framework that will ensure that this to development. Whatever the policies, it is important to understand that these
land system operates, uses are held managed and used sufficiently and policies have been translated into law.
sustainably.
3. The Njonjo reported advocates equitable use to land. Security of land The law that defines quantum of rights - Law defining land right systems, limitations
rights within generations and across generations and the question of attached to that power and sanctions which are built into the system in circumstances of
transparent management of public land resources. The Ndungu abuse of proprietary freedom.
commission is producing a report on how land allocation has been
misused. Level of intervention when state intervenes to ensure that land resources are maintained
4. Efficient and cost effective delivery of land services. and it is important to look at the nature scope and limits and the institutional framework
5. Socially acceptable mechanisms for resolution of land disputes. within which it is of any of this intervention
6. Sound conservation and protection of eco systems, wetlands, mountains
etc. Our conception of land at common and indigenous law is qualified by statutory definitions
and once one has a conception of land that is qualified, one wants to understand how the
law confers property on that land. When law confers it gives power to the proprietary to At the beginning of the 19th century many scholars wondered whether imperial
use land. (colonialism) control conferred sovereignty over land, i.e. the radical title.

The policy dimension of that policy is that the proprietary and intervention level must In the case of East Africa the argument was that by taking over political control of this
reflect whether policy is implicit. The land sector does not have a policy framework. region, was the British monarch therefore the owner of the territory?
Jurisprudence at that time was not clear: if you rule the country do you also control the
Policy produces law and that law operates at the level of property rights and level of state land? Eventually, the colonial legal authorities arrived at the conclusion that the ruler was
intervention. also the owner of the land and therefore the colonial government enacted in 1901 the first
Crown Lands Ordinance. This declared that all lands that were waste and unoccupied
HOW THE LAW DEFINES THESE INTERVENTIONS: became vested in the sovereign.
Note even though it is the law of property which sets out the power to use land,
proprietary land use must have its limits and the limits are set initially by the requirement Again there were doubts about what is waste and unoccupied. It was finally decided
that the use of land must not violate public health. A good principle in land use is good that all land occupied by Africans was waste and unoccupied and all Africans were
neighbourliness and good community living. Freedom to use land can turn into abuse tenants of the Crown. They did not have any right over the land because the land
and therefore the need arises for the regulation of land use. belonged to the sovereign and the court agreed. That means that radical title was vested
in the sovereign by the virtue of the fact that he was the sovereign. If the sovereign had
Property in the hands of the owner can create dangers to the society and hence the need the radical title, only the sovereign could allocate land. All other titles are derivatory. And it
for regulation and as we have noted the regulatory power of the state comes via two is in this sense that the freehold interest in land this country is cut out of the radical title.
mechanisms:
This was the position up to 1938. The position with regard to radical title then changed as
First, eminent domain - Second, power of the state a result of political agitation; the colonial government decided to split land ownership and
control into twonative lands and crown lands. Native lands became trust lands, and
Eminent domain crown lands remained with the colonial government.
Proprietary land use comes as part of state policy. If we go back to the Roman times, we
see the foundations of the doctrine of eminent domain. In Roman law there was very This duality survived up to 1963. Then the native lands were vested to county councils as
clear distinction between sovereignty and ownership. In other words in Roman property trust lands and therefore setting apart became possible, i.e. the county councils could
law, an owner was indeed the repository of the entire property. The sovereign did not allocate the land for individual use. Thus the county councils controlled the radical
have the radical title. domain.

The development of feudalism led to a situation that the two separate concepts While this was happening, a movement had started to convert land use systems into
ownership and radical title were fused. individual land use system and this was seen as conferring absolute proprietorship.
What does that mean within the meaning of the Registered Land Act?
The whole basis of feudalism was that control was based on ownership of property, over Does that mean that the registered owner takes over the radical title held by the
both people and resources, and also the exercise sovereignty. Feudalism became the county council? Did the duality that we inherited at independence persist? Local
basis of dominion and sovereignty became the basis of ownership. The feudal lord was councils and government as sovereigns holding the radical title?
not only the sovereign but also the owner of the land.
Arguments have been made that suggest that absolute proprietary is not just a fee simple
Therefore the contribution of feudalism was that all rights to land were then considered to title.
derive from the sovereign. Do not assume that people have title because they went through Cap 300.
Are we going back to the Roman times where the state is not the owner? These
are questions I hope you we will clarify.
 What is important is to determine how the allocation of land title affects the
modality of land use, whether state or individual. Therefore a land use blue print, the development of desirable land use in the future is
important. If you go round Nairobi around Kitengela and ask yourself if there is a long-
Eminent domain is a power that enables the state to resume ownership to land and term plan. Is there?
therefore it is a residual power which only the holder of the radical title can exercise. In
our case, eminent domain is no longer simply an attribute of radical title: it is a In other words, how does planning help us to manage those outcomes we are able to
constitutional power which now lies with the state. predict? And the first step in planning is of course to assemble the resources that are
necessary for planning land quality and other component, You need to understand the
If you look at section 75 of the Constitution it does not say that the state holds the radical physical characteristics of the land itself. You need to be satisfied that the land is suitable
title; it simply says if the state is going to hold radical title then it must ensure proper for that of planning and the assess the impact of the proposed plan on the environment.
compensation. So the power to resume the title, by the government, is firmly put in the
constitution. Note However, the draft constitution vests ownership of land on individuals. Then you want to know the tenure characteristicif you are planning on land held by
somebody else. What is the tenure regimes that holds the land? Are we dealing with
The police power the power to regulate land without appropriation, is what the state people with real rights? How does that affect them? Directing people who draw their
has. By the exercise of police power, the state intervenes because it holds the radical rights from different tenure regimes.
title. Consequently we now reach the state where we can ask the question if there is You need to assess the infrastructure that already exists.
going to be intervention by the state what are the modalities?: Financial resources, human resources, required and environments will tell you
where you will want to audit the performance which must be part of the planning
Planning: Planning, clearly the most important or visible form of land regulation involves process.
the power to plan as an activity which affects the territory in general and not necessary
land use units. This is land use planning. We are talking about an activity that involves Why should the state be interested in all this? If you go to Luo countryside homesteads
some or all of the following: do not share fences. The planning is visual. In other words Why do we need law? The
(a) Clarify the development goals that would be achieved planning process must be legitimate and authoritative. The planning process, however
(b) informed decisions in which those goals should be achieved. Those goals determined, must have legitimacy and must have authority. These are important legal
must be prioritized. concepts.
And therefore the people who are concerned with planning must have the
Note: The strategy which you choose is important because if the resources are not authority to planfrom the law itself. If the planning activity is got to be legal
available planning will not work. then there is need for the mandate, law.
Secondly, legitimacy is important in ensuring the sequential stages of planning
It is important to anticipate the possible outcomes. What do I do with these particular can be clearly planned.
outcomes? If your plan is to put a bypass around in Nairobi. Those bypasses were Thirdly, those planning outcomes need to reflect the inspirations of the
defined in 1972. Do we need them today? Why the initial planning process created the stakeholders.
need for revising? For the process of planning to be legitimate it needs to be firmly rooted in law.
It must also be authoritative.
I am trying to get the master plan for Nairobi for 1972, so that we can look at those plans. The stakeholders must accept the authority of the planning and planning
The point I am making here is that very few people anticipated this strategic plan because process. The plan must be capable enforcement and we have said before the
they did not manage those outcomes. framework of law confers that authority it is a combination of the laws of
property and laws generated by the government.
It is only after most of these issues have been addressed -- the goals, the priorities, the
strategies that we can anticipate outcomes and further strategies on how to manage In this country the question of legitimacy and authority of planning is answered by
outcomes. Only then can land use plan be developed. legislations that operate at three levels:
 1. Acts or decisions concerned with facilitation of general planning process and
enforcement of planning, i.e. laws that give you authority to prepare indicative If the planning process require marketing suppose the land is agricultural, government
plans. Refer to Physical Planning Cap 28 (?) which you should have; land, etc.
2. These are concerned with planning in specific land use centres. These include
the Agriculture Act, the Forest Act, the Water Act, the Mining Act, Wildlife The different levels interactstart with level one- the planning process must be based
Conservation Act, Local Government Act. Level two instruments are the ones on a number of principles. The must also address the authority of that plan, what kind of
that are primarily used in planning; gives you teeth to implement the plan. Level authority issue from it and who basically manages that plan, if we when get to the actual
two takes over from level 1. Level one ought to prevail in case of conflict. planning process cap 286 but we have no laws, do you rigorously enforce the existing
3. Instrumentslegislation that deal with cross-cutting issues -- the Survey Act, laws and legislate more.
Land Acquisition Act, Land Control Act, Government Lands Act, Environment
Act(?), and specific areas of legislation, such as the Kerio Valley, Tana River, Agricultural reviewhas not been done.
etc. Cap 286: Who is responsible

U RBAN AGRICULTURE FROM A PLANNING POINT OF VIEW .

Level one instrument produced on the basis that the planning process should be guided Definition of land as a resource
by very clear and ascertainable goals and should address the following concerns: What is land use
It is important to determine the need and relevance of land use policy which must be seen
1. Scope of the land use plan as part of overall land policy. this country is in the process of developing a land use
2. power of the land use authority policy. once we understand what or how the country wants the land to be used, we shall
3. How the planning process is expected to proceed. look at the framework for land use which is at two interactive levels
4. the content of planning at various levels 1. Domain of private land use; Private land law
5. land use plans, infrastructure 2. Domain of public law
6. the specific planning consideration which the planning authority would like to
see implemented The two domains must be read interactively. There is a power conferred by the law of
7. planning service requirement property which described generally in terms of tenure arrangements which are the basis
8. the administrative content in which the land use planning will operate, i.e. the for the power to make decision about land use. Most economists would argue that
administrative structure private property tenure is the only power by which land can rationally be used. We are
9. authority of the plan what is the legal status and incidents of the plan once talking about property as a basis for management of land.
prepared. Can such a plan be varied and revoked, how do you deal with the
impact of revocation or variation. Who has the power to keep the planning How does one ensure that use of land now does not affect its quality for the future?
process. How does the plan secure compliance. If the legislation does not
provide for it, it remains just a question. If private property cannot be relied on fully to support sustainable land use, the state has
an interest to ensure that private land use does not offend public welfare, health and
A good planning law must deal with the question of consultation. What are the modalities safety. That intervention by the state is inherent in the very consent of state sovereignty
of inter-sectoral planning. More resources required? Is there authority to acquire property and we have looked at two doctrines that explain the inherent power to direct the manner
rights. What about the question of easements? Should planning legislation deal with it. in which private power may be used i.e. the power of eminent domain and the police
Summary: land use starts with policy and legislation framework; specific land centres power of the state.
require special legislation. E.g. Nairobi bylaws should support the master plan.
Eminent domain is conceptualised as the superior land law and therefore the state must
But there are cases where you have cross-cutting issues and several regimes. If planning exercise authority that derives from the fact that radical title would vest in the state and
requires new land, where is the legislation for acquisition?
therefore the state can appropriate property whether it has been allocated to private 2. Planning in specific resource context, specific land functions water,
individuals for private use. agriculture, mining forestry etc where the police power physically interacts
The police power of the state is a more extensive power which is power that is inherent in with land use. In a sense this level of legislation should derive from level 1
the political sovereignty to ensure that resources are properly use and goes beyond the legislation because it is level 2 that should implement what is derived from
domain of natural resources. level 1. in practice this hardly happens. The planning process is one that
involves a lot of other considerations, intersectoral concerns and issues;
International dimensions to the questions of land use arise primarily because land use 3. This level is mainly concerned with intersectoral cross cutting issues. This
has transitional implications. Bio diversity, protection and preservation, debate on climate level provides a mechanism for operating
change indicate that the manner in which the land is used in any private or public context
has implications to the whole global hydrological balance and therefore there are These legislations necessarily overlap and are qualified by the countrys complex
conventions that are intended to ensure that land use operations are not meant to create property system. Complex because we have community property systems, English or
global problems. common law property system and our own RLA Cap 300. When Police power is
exercised through the 3 levels there may be differential consequences depending on the
International principles concerned with the consequences of international land use. property system that one is dealing with.

Attention is to be paid to trans-boundary resources and in the way they are used. Level One Legislation should be the basis upon which an indication is given by the state
on the kind of orderly development on land for the long and short term and this should be
Land use planning the basis for providing an appropriate parameter for sectoral management. This is the
Planning is a systematic process which involves questions of prediction, one wants to mirror that reflects present and future land use terrain one can beam it on long term or
simply arrange how the terrain will look like but one has to be concerned that livelihoods short term. Once this is done the people who make decisions on land use should take
can be sustained for long periods of time. The process must identify development goals account of the images from the mirror and design their land use operations according to
and set out clear priorities, determine strategic priorities the images.
The resources needed for purposes of planning must be identified and assembled and
the possible outcomes of the land use process must be anticipated and there must be Level two is concerned with whether or not the operations provide hands on results in the
clear strategies on how to manage those consequences. There must be a plan of light of any plans that may have been developed.
operation (the land use plan) that incorporates all that.
Level 3 concerned with the environmental consequences among other issues. It
Whatever plan one considers, it should be a plan for the provision for future. provides the legal tools for arranging the plans.

In theory land use planning should provide the canopy under which and in accordance The overall planning process under level 1 should seek to address at least several
with which sectoral land uses are undertaken. This means that there should be an overall questions
land use plan at whatever level and that should provide the overall reference point for the 1. What is the scope of planning? What kind of plan is expected when
planning on the ground. authority is expected under level 1 legislation? Is it national or regional or
international level
Range of legislation available: 2. Who are the planning authorities and what are their planning powers?
1. Those legislations which deal primarily with the facilitation of the planning 3. How does the planning process proceed?
process and the preparation and enforcement of physical development 4. What is the content of the plan? What does one want to prescribe?
plans; the canopy or overall vision for the country as a whole or for a local 5. Is there an administrative context in which the planning process will
area; the expectations is that proprietors having the quantum of rights will operate? Whose responsibility is it to administer the plan?
utilise them having this vision in mind (Physical Planning Act) 6. What is the authority of the plan? How legitimate is it? Does it have
binding force?
 7. How is the question of coordination of inter-sectoral effects of planning secondary and where they are needed the only person who produces them is the director
dealt with? of physical planning.

Overall indicative planning or framework planning which is a result of the Physical The policy context clearly is not pre-eminent in the scheme of Cap 286
Planning Act should deal with these 7 concerns.
Administrative context of planning. Once there is a plan, we assume that there is a
Are these concerns addressed by Cap 286 context on which that planning may be administered which may be general or specific
planning institutions may be established to deal primarily with the administration of plans
The Planning process should give as an indication of the goals which the planning once formulated and one must look at the structure of public administration and any
processes are expected to achieve. As a general rule most legislation in Kenya do not institutions established for the purpose are relevant. Community based institutions also
address issues of goals and therefore from the perspective of legislative policy do not provide a context in which planning is considered as binding.
look for goals in specific statutes even though in the case of the Physical Planning Act National Planning
when the bill was published the AG explained that the purpose was to provide for regional Regional Planning
and local plans to coordinate proper land use and especially to arrest the present Special liaison committee for Nairobi.
situations of increased number of unplanned shanties etcetera. The AG was clearly
thinking about the Urban context and not rural areas. The Long title of the Act says that it All the committees are wholly dominated by government bureaucracy.
is meant to provide .. National committee first function is to hear and decide appeals from the lower
committees. Plan issues referred to it by lower level committees, advise the Minister
We can conclude that the Act was conceived of as an instrument for the long term land through director of physical planning about planning and advise on matters which
use in this country. The Act does not give a time frame but just a mechanism for transcend more than one local authority.
designing frames to which mechanisms can be attached.
The committees are quasi judicial and have two functions
What is the scope of planning as contemplated under the PPA? Advisory
The legislation says that the Act applies to all parts of the country but he Minister has Dispute settlers
residual authority to exempt certain parts of the country from planning under that Act.
The Act says that it will be used on land of any tenure i.e. it is not an instrument for District Liaison Committees such as in Nairobi are composed basically by a cabal of state
planning in the context of any particular tenure but to be applied to regulate management of officials by they are more elaborate.
of land of any tenure whether freehold, leasehold, customary land etcetera. In terms and
scope the Act does not distinguish between rural planning and urban planning. This Complaints made about the director of physical planning
legislation is exclusive with whether the planning is intended to guide rural land uses or Power to determine conflicting claims for de
urban uses. Determining development application for change of use;
Determining applications related to industrial location
Does legislation contemplates implementation of any policy framework? Determining appeals arising from decisions made by the director of physical planning
The planning process must consider the relevant policies on development. Beyond that
the Act makes no explicit reference to instead the Act confers on the director of physical The committees are concerned with dispute control more than development. The Act has
planning authority to formulate policy (Section 5) one should not plan until they have liaison committees whose actions are broadly advisory functions to the minister and
policy. the Act does not indicate how the director will proceed to exercise of policy advisory control functions.
formulation, there is no indication whether the policy must be formulated before actual
planning can be done or whether planning can be done before policies are explicitly Who has authority to prepare plans?
stated. At what intervals are policies made. Under the Act policy questions are The responsibility for preparation of all plans whether regional, local is vested exclusively
in the director of physical planning and plans are prepared at the regional level where
they have district liaison committees and at the local level including municipalities etc. It once made should be authoritative and Cap 286 Section 21 states that once a
is rather peculiar that there is no responsibility to prepare national planning. plan is prepared and approved the relevant plan has full force and effect in the
area to which it relates and that no development can take place in that area
Planning is exclusively vested with the Director of Physical Planning and does not unless it conforms with the plan. The plan becomes binding and creates
recognize national planning and there is no place for public participation by stake holders obligations and there would be penalties for the violations of those obligations.
even though the director has the power to circulate published plans and receive
objections or recommendations on the plans. It is not a process that takes into account CAP 286
local interest or private sector concerns. The Act has many of the features required for good land use planning but the Act is also
defective in a number of respects and those defects include
The Act therefore is expecting a proliferation of plans i.e. 70 plans going with districts but 1. The Act does not address relationship between national policy and the
none that ties them all together. Secondly the Director of Physical Planning is required to planning process;
take account of a number of parameters. At the regional level he must consider the 2. The fact that the planning process is wholly top down is the most
population and the region that the plans are being prepared for. Secondly how are the fundamental flaw in that Act particularly as it does not accord opportunities
resources to be allocated in that area and how specific development activities are to be to stakeholders to participate in the plans. Implementation decision of
cited in that area. Population growth and other demographic characteristics of that plans ideally ought to involve stakeholders
population are crucial to planning. Employment patterns can be used to assess viability 3. Act provides little guidance for resolution of conflicts between local
of the economic plans and the pattern of human settlement. At the regional level where authorities and regional and the Act makes no assessment for the
one is dealing with framework planning one has to determine what will happen within a planning
given period of time. These are issues have been dealt with in other structures

At the local level the Act requires that local plans must consider first broad zoning Planning is not just a desk top exercise but it must involve all the stake holders and all the
requirements. people who are going to be affected by the Plan.

The Act requires Planning under Cap 286 is supposed to be the overall indicator of the land use process in
zoning the country. It provides the mechanism for indicative planning so that land users are
Infrastructural needs of the area must be assessed supposed to take account of that framework.
Local Planning must deal wit the question of division, non-divisions and re- Legislation for planning
adjustment. Intersectoral issues
Re-adjustment of tenure rights it may be necessary to change the tenure Local Development plans
regimes to facilitate re-adjustment Physical Planning Act
Density of development both in terms of space and also in terms of occupancy.
Local planning must address the need for the conservation and reservation of Why is legislation important for purposes of land use?
the national beauty and aesthetics for the area you are planning for. Unlike The Regional planning the district, county councils and local planning which is
regional planning, local planning is basically operation, one is not just indicating municipality, market etc. The Act does not provide for overall National Planning. The
what development should look like but prescribing patterns of land use, zoning purpose of regional planning under Section 16 is to improve the land and its physical
infrastructure, re-adjusting tenure rights and conserving spaces etcetera. development. A regional physical planning plan should consist of a number of issues i.e.
a technical report on the resources, a statement of policies and proposals with regard to
Local planning is all where it happens. Plans whether regional or local can be allocation of resources and locations for development. The Planning Authority is required
long term or short-term depending on what the planning authority is intending to to state the policies and the proposals that provide the location for development activities
achieve. Once questions of context are settled and the plan is designed and in that region.
approved, what then is the authority of the plan? Is it just a blueprint? Plans
The plan requires the Director of physical planning to take account of the 13. There should be measures, programmes, devices and instruments for the
implementation of the goals of the plan;
The plan should have marked designs showing present and future land uses in the area. 14. if there are other plans in the area particularly prepared by other public
Any other miscellaneous activities in the area ought to be indicated in the plan. Within a agencies it is important that a plan prepared under Cap 286 takes
region there will be local development plans to guide and coordinate developments within precedence by either incorporating the other plans or redesigning them to
the area. That local development plan should indicate very clear boundaries for the area allow consistency
to which it applies, plans which indicate how resources are developed in that area and 15. Any and all items which are consistent to the plan itself and necessary for
how development will be carried out. orderly growth and development for the area being planned for.

Those levels must be interactive: In general land use planning whether at the regional or These are all necessary for any plan.
national or local level should include the following 15 items
1. A general statement of goals objectives and standards upon which How is development in a planned area controlled?
proposals for the development of that particular area are based whether Development is defined as any change in land or building including subdivision of land
immediate or long range; parcels in any particular area i.e. any material change of user constitutes development
2. A statement of the needs regional or local of that particular area and in within the Act. The erection of buildings will constitute development within the meaning of
stating the needs of that area account should be taken of other plans the Act. Once you have a plan no development should take place unless consistent with
prepared by other govt units i.e in rural areas the ministry of agriculture the descriptions of the plan.
might have developed an agricultural development plan
3. Existing and proposed location and intensity of land users to plan as To ensure that this happens it is ensured that any development is submitted for purposes
indicated is to prescribe alternative users and planning must start by of approval and the issue is what are the criteria that the planning authority uses to
prescribing what the basis of existing land users are; decide on planning applications
4. Plans should consider the various categories of land users including the What is the extent of authority to control or prohibit development/
cultural resources of the area and where there are sensitive parameters in What is the nature of the general oversight function
that area they ought to be indicated.
5. Planning must consider population trends in an area and also the Under Cap 286 responsibility for granting plan permission is vested in county councils
demographic characteristics of the area; characteristics of the population and municipal councils, local authorities enforce while the director of physical planning
will determine kinds of users to be planned for; plans. These authorities are expected to enforce through enactment of by laws which set
6. The question of infrastructure transport etc must be taken into account , out the modes of enforcements, which specify the nature of compliance inspection. The
rural access roads and non classified roads are important in planning; authority that implements plans are county councils and municipal councils even though
7. It is important that planning should take account of planning un-proposed the plans are not drawn in consultation with them.
locations of public and private utilities i.e. hospitals, schools, dispensaries
etc; Provisions related to control are deficient in several respect. The definition of
8. For urban planning housing needs of the population must be taken into development in the legislation itself is narrow. Even though it was intended to provide a
account in the planning process; comprehensive framework is narrow.
9. Account should be taken of present and future location of historical sights
etc; Local authorities seldom have the capacity and the resources to implement plans.
10. There is need to take account of proposed recreational facilities, parks etc,
in urban context this is extremely important; Thirdly rural development questions do not seem to feature prominently in the legislation
11. The present and future location of commercial and industrial facilities; and it is not clear whether we have a plan that takes account of rural development
12. It is important for planning to take account of process and strategies for questions.
improving the economy of the local economy;
In the process of development it is sometimes necessary to reorganise not only land uses wide range of land use sectors and legislative instrument directed at the should be seen
but also land parcels in a particular area. If parcels of land are running parallel to a river it as
may be necessary to reorganise them so that they are running from the river at 90
degrees. When this happens the power of eminent domain comes into focus. The primary focus of intervention with respect to sectors is usually a two way
Consolidating and subdividing, creating statutory easements becomes necessary. When
this arises Section 75 of the Constitution read with the land acquisition act gives planning There is intervention at the sector and at the land use levels, it is important to classify the
authorities the power to acquire land for those purposes. sectors and to focus on specific uses within its sector.

The major flaw in Cap 286 is that it offers little guidance with respect to rural planning. The sectors we concerned about are
Many countries in the region are beginning to revise their land use legislation to make a 1. Agrarian Sector
distinction between rural land use planning and urban land use planning. 2. Urban Sector
3. Sensitive Eco-systems
What is the policy of planning in legislation? Professor proceeding by giving a juridical
basis that planning must start with a clear distinction over policy framework. All planning These are contained in level 2 legislation, in looking at the range of level II legislation
authorities must take accounts of policies before they can approve a specific plan. The note that those pieces of legislation have not been enacted has a result of any clear
minister has political responsibility in matters of planning and certain kinds of powers are policies defined in advance but have grown historically as a way of state responses to the
given in legislation to enable the minister to carry out the planning. The management sector. Legislation relies on the criminal justice system as a mechanism of enforcement
responsibility vests with a national land use planning commission which would have and they have not been subject of revision. We are dealing with colonial legislation.
supervisory jurisdiction over physical planning,
The agrarian land use sector includes a wide range of activities some of which are natural
The machinery of planning, who plans where does the authority to plan lie there is need and others human induced. We look at regulation of rural settlement, pastoral
for a national planning authority capable of developing framework plans at that level. development including livestock, forest development and any activity that is not
Creation of regional planning authorities and not simply county councils but an authority specifically urban. That is the predominant land use structure in Africa. Over 70% of
in charge of regional planning. The draft bomas constitution has created 14 regional African population draw their livelihood from agrarian land uses and it is important to
planning units. focus on this sector. It is useful to indicate that the agrarian sector is currently undergoing
National a land crisis a crisis of land availability and degree of deterioration because of population
Regional pressure. Africa is the only continent that cannot produce enough grain to feed her
District people.
Village initial planning process to start with the village and move up the
purpose being that it has taken account of all lower level units. Once the There is severe land pressure in Western Kenya, parts of central Kenya and the Kisii
planning authorities are established it is important to get into the questions of Highlands.
how those authorities prepare and approve plans.
Chronic under-utilisation of land. Alongside land deterioration there is underutilisation
Powers of planning authorities particularly special powers relating to acquisition of land made worse by abandonment of agricultural activities especially in areas devastated by
and the question of compliance, enforcement and coordination. HIV/AIDS. Agrarian land sector is in a crisis of productivity and it is also the case that the
sector is beset by cases of abandonment of land as a result of many other factors. This
Physical planning is the canopy under which specific kinds of land use are regulated. is also a result of a inefficiency in technologies.

LEVEL TWO LEGISLATION Tenure regimes have become chaotic as a result of western notions of land ownership,
The general theory is that physical development planning should preceded inter sectoral the interaction between customary land tenure in Kenya and other countries have created
planning. Beyond PDP the Police power of the State has been used to regulate a very a lot of confusion in the agrarian sector.
 in 1955 and has basically remained unchanged since then. It is important even though
There are policies that tend to discriminate between agriculture and other sectors of the hardly infinite. The Act has as its policy objective 5 things
economy in this country.
1. Promotion and promote of stable agriculture;
Urban Sector 2. Provide for conservation of the soil and its fertility;
This varies in characteristics from one region to another from one urban configuration to 3. Stimulate development of agricultural land in accordance with acceptable
another. Most importantly what influences urbanisations are the rates of urbanisation and principles of good land management and husbandry;
the rate in terms of expansion and the rate of population growth in the urban sector. 4. Ensuring self-sufficiency in production of food crops;
5. Ensuring production of special export crops.
The technology of urban development is an important factor that influences urbanisation,
technology not only of built up spaces but also tech of managing the urban economy Agriculture is defined by the Act to include the cultivation of land and the use of land for
itself. any purpose of husbandry including horticulture fruit growing, seed growing dairy farming
and livestock breeding, use of land as grazing or meadow land market gardening etc. its
The world is rapidly urbanising and in the year 2000 49% of the World was urbanised and for both crop production and livestock development.
it is expected that by 2010 52% and by 2020 a full 60% of the Globe will be urbanised.
Zambia is 70% urbanised. The effect of rapid urbanisation is that first there is a reduction Promotion and maintenance of stable agriculture:
in land available for agriculture. Within the urban sector rapid urbanisation leads to The Agriculture Act requires the Minister for agriculture to conduct an annual review of the
increased squalor due to lack of employment, poor infrastructure, service distribution, prospects of the agricultural industry before the minister can make specific decision about
disease prevalence and mortality. Coupled with inefficiency in urban governments the maintenance of the agricultural industry as a whole. Section 5 of the Act is mandatory
urbanisation promises to create problems for many African countries. In this country level the Minister shall before the 15th December in each year review the prospects of the
of urbanisation starts at 22% but this is increasing and when it increases if nothing is Agriculture Industry having particular regard to cost of production, market prospects and
done about infrastructure and services, or poverty driven land use responses and general any obligation to supply external demands. Section 6 if it appears to the Min at any time
lack of adequate shelters, then the question of organised urban land uses will become between annual reviews under Section 5that there has been is likely to be a change in
critical. the economic condition of the agricultural industry and that the change is or is likely to be
of sufficient importance to require that he should exercise his power under this section the
Specific regulation is required with respect to nature conservancies, marine park and minister may hold a special review of the matters referred to in Section 5.
choral reefs, mountain ranges, water sheds etc.
This section is saying that in this country there must be a review of agricultural activity
KWS a system that is a sensitive eco-system yearly but may be more. The legislation is mandatory although this has not happened
since 1966. The purpose of the review is to enable the Minister to make the following
REGULATION OF AGRARIAN LAND USE SECTOR determination
Agrarian resources constitute the single most important source of livelihood throughout 1. The kinds of agricultural produce which should be specified as scheduled
African and in this country. Protection and regulation of use becomes a crucial focus for crops;
the state because agrarian resources are in such a state of dilapidation, we should be 2. The prices for the scheduled crops and where necessary guaranteed prices
concerned. for those crops;
3. Use the review to distinguish between scheduled crops by declaring them
The regime operates at the sector wide level and secondly at specific used levels. Other as special crops i.e. for export.
instruments that are directed at specific users. the primary instrument for sectoral 4. Use review to draw an overall program of production for that sector.
regulation is the agricultural Act Cap 318 primary instrument for the regulation of both
crop production and livestock development. This is a colonial piece of legislation passed The purpose was to enable the Minister to have his finger on the Ministry so that there is
a stable . By infusing data in the decision making process leading to agricultural
process. Price fixing were abandoned in the interest of liberalisation, minimum crop The difference between the first and second once the order is issued, the land user
prices also fell by the wayside. The institutions set up for these exercises were however has to comply and failure to comply with the order carries heavy penalties. This rather
never repealed. draconian mechanism has rarely been used.

Conservation of Soil and its fertility Stimulation of agricultural land

The Agriculture Act expects this objective to be achieved through a number of measures To be achieved through what is similar to a land preservation order but this is a land
1. Through enactment of Rules for the preservation and conservation of the development order which requires compliance with a scheme for land development
Soil including rules for prevention of soil erosion enacted as long ago as designed closely with the Minister. Section 64(3) defines a land development program to
1956 and revised in 1963 and in 1965, the Agricultural Basic Land Use mean adoption of such a system of management or farming practice or other system in
Rules is the most important but the rules have not been revised. The rules relation to the land in question including the execution of such work and the placing of
make provisions for prohibiting, regulating or controlling the breaking or such things in, on or over the land as the central agricultural board may consider
clearing of land for purposes of cultivation. The rules may say that if you necessary for the proper development of land for agricultural purposes.
are cultivating on the slope you have to do is across the slope and built
terraces for that purpose. The rules are also supposed to control and Land development order basically comes in the form of a program of development or a
prohibit certain methods of grazing, carrying capacity of land in grazing scheme of development, before a land de elopement order under the Agriculture Act is
areas, access to watering points, building of dams for livestock promulgated the area would have been designated for agricultural purposes under Cap
development and the rules are supposed to prohibit, regulate, control firing 28. The Minister may exercises his powers under the Act to require that the land be
or destruction of vegetation including stub. This also affects climate developed in a particular way and the Minister may proceed in one or two ways.
change parameters. Such activities are to be controlled when it is
necessary for the preservation of the soil and its fertility specifically for He may ask the land owner to prepare a land development scheme and once this is done
protecting the soil against storms, winds, rolling stones and land slides, that scheme is then delivered to the director of agriculture and it comes back as .. If the
protection of ridges, roads and valleys, formation of gulleys, protection of land owner is unable to develop a scheme himself the director of agriculture may develop
land against erosion and deposits of alluvial soils and protection of roads, the scheme and impose it on the land user.
railways bridges etc.
2. Rules that require or regulate or control the afforestation or re-afforestation A land development scheme is expected to contain the following matters:
of land, protection of water catchment areas, drainage of land including 1. Scheme must specify area of land that is going to be affected by it;
construction maintenance and repair of artificial or natural drains. 2. Scheme must contain description of the works that are supposed to be
3. Uprooting or destruction of any vegetation which may have been planted in executed in pursuance of it;
violation of a specific order. 3. Scheme must specify or give the cost of developing the scheme itself;
4. Rules requiring supervision of unoccupied land; 4. Scheme should specify contribution if any which the Minister proposes to
5. Rules prohibiting, restricting the use of land for any agricultural purpose be made towards the cost out of public funds i.e. if the Minister thinks that
including livestock. zoning is important for specific development then some kind of
The Agriculture Act provides for land preservation orders by the director of Agriculture or contributions should be made from public funds with respect to that
the Minister in specific circumstances: scheme.
5. The scheme should consider the question of apportionment of costs as
Land owners or occupiers are expected to comply with those rules when they are made. between the owners of land or occupiers of land in the area towards the net
There will be circumstances where land users do not comply with any of the 5 categories cost of that scheme i.e. if for example the scheme will involve permanent
and the Agriculture Act allows the Minister to impose specific orders on land owners i.e. improvement of the land itself and most people there are tenants, the
land preservation order specifying action that the land owner must take to preserve the scheme should apportion costs between owners and the tenants.
soil and its fertility. 6. Scheme must specify manner and period during which payments with
respect to that scheme is due from the owners and occupiers themselves.
This power is intended to ensure that agricultural development is not left as optional rains. We also over rely on the notion that only sanctions can be used to stimulate
exercise by land users and that the state continues to guide that particular process. This agriculture, there are very few inducements and the state lacks capacity to implement the
is mostly practiced in irrigation schemes. complex array of regulations under the Act. For all these reasons and more despite the
awful arrays of power within the AA the Agricultural industry has not been able to respond
Assurance of self sufficiency in the production of food crops to the challenges of industrial growth.
Question of self sufficiency in essential crops, this under the AA are food crops and the
colonial govt concern that there should always be enough food crops to sustain this There are laws that regulate specific uses in that sector. Specific uses within the sector
country. We have been a net importer of food crops. Self sufficiency was seen as an are the subject or different kinds of legislation. There is a wide range of level II
important objective of the Agricultural industry and an important function of government. legislation.
The AA presupposes a situation in which the state will design products for essential crops
if necessary issue production orders to land users and in colonial times and for a while
after independence to ensure that those production orders were carried out, there used to REGULATION OF SPECIFIC USES
be something called Minimum Guarantees to Land users against , if a land user was It is not enough to look at the agricultural act to understand the wide array of powers. In
served with a production order, he became entitled to an advance from the state to addition to this we have legislation regulating the general environment in which crops and
finance that production and the advance was intended to guarantee minimum production. general production operate.
If the land user did indeed produce, the advance was payable to the state and in default
the produce was sold to a state agency which deducted the advance. Land users always We have legislation dealing with suppression of noxious weeds, grass fires Act, Fertilizers
connived with Agricultural Officers to declare crop failure and sell the produce in the black and Animal Foodstuffs Act and Pest Control Products are. As regards livestock
market. Irrigation production in this country is extremely high but we never use it. development, the produce and theft control act, pig industry act, animal disease Act etc.
beyond the AA each specific agricultural use is the subject of additional legislation which
Assurance of production of special crops must be read together with other general legislation concerned with the environment in
These are essential crops i.e. food crops but some essential crops may be classified as which crops are raised.
special crops and in the AA special crops are cash crops. The Act goes about this in two
ways The regulation of agricultural sector does not end with sectoral control and specific users
1. Through zoning for production and marketing of certain crops; but it is important that the government should provide mechanisation for the sector as a
2. Provision of facilities including loans and advances for production of crops. whole. The Agricultural sector requires support services from the state. the support
Minister has power to establish institutions for fostering and development of any crop services structure consists of agricultural and livestock credit facilities and marketing and
declared as a special crop and over the time this country has established a number of cooperative management facilities. On credit land users have opportunity to obtain credit,
authorities including the KTDA, Coffee Development Authority, Pineapple Development subsidies from private sources or. the AFC Cap 233, the Cooperative Societies Act 290,
Authority, Wheat Development Authority, Kenya Sugar Board etc. these are institutions . These are the support services.
that are set up to further develop those special crops and except for the Kenya sugar
board they are set up by legal notice under eh Agricultural Act. The Minister has a wide With respect to infrastructure, there have always been arguments for abandoning state
range of power to supervise the development of these crops under these authorities. participation in provision of support services, the need for liberalisation, international
obligations arising from WTO and regional arrangements. Even though we have
Despite these extensive powers, the Agricultural industry has remained sluggish and legislation and mechanism that provide for the agricultural industry they have gone into
unimpressive perhaps because of non-enforcement of the Act, over liberalisation and disuse because of globalisation.
exposure of the Agricultural industry to global competition. For example the sugar
industry and importations from COMESA are a good case in point. In addition to the provisions of support services the agricultural sector is also the subject
to a comprehensive system of land market regulations. Control and regulation of the land
We also have very crude technologies of production, they are expensive and inefficient, market is important if the market is to operate efficiently. Land must change hands
everywhere in the world, sugar is produced through irrigation but in Kenya we wait for without producing social consequences. This country has inherited an elaborate custom
of land market regulation, the colonial govt need control of the agricultural land market to The Act says the Board should refuse consent if the terms and conditions including the
keep away speculators. The current legislation is the Land Control Act 302 legislation price are markedly unfair or disadvantageous to any of the parties in the transactions.
modelled closely on the original Land Control Ordinance of 1944 but which goes beyond Where the Board refuses to grant consent, the consequences will vary firstly the
the original colonial legislation to deal with the problem of social equity of land in the transaction itself will be rendered void ab initio and for all purposes. The contract is what
market. Land control is seen a s a method through which the objective of social equity is presented to land control board for consent and when the Board gives consent to that
can be achieved. transfer, if the Board does not consent, the transaction becomes void ab initio. Any
money paid after transaction has become void is done in furtherance of the void
Cap 302 defines agricultural land in terms so as not to include land within a Municipality transaction and cannot be recovered.
or a Township. Any land that has been governed by the Townships Ordinance which has
now been repealed, any trading centre or on market. Agricultural land is land which not The initial agreement is not void until the consent has been refused i.e. where an
part of an urban area which is a loose way of defining agricultural land. Except in the application has been refused any agreement becomes void.
case of Nairobi and Mombasa where certain areas in those municipalities have been
described as agricultural land even though they are in urban areas. The definition of Cap 302 is therefore saying that an agreement for a controlled transaction is not void
agricultural land in Cap 302 differs significantly from definition of agricultural land in Cap merely because consent has not been requested but once an application for consent has
308 which is concerned with land used for purposes of agriculture not being land been made and refused the agreement becomes void and so does the total transaction.
proposed for uses other than agriculture. If the land is within a municipality it will be
governed by Cap 302 and requires consent to transactions. Over the years Agricultural Land Market Control has fallen into disrepute for many
reasons, we hear about corruption and inefficiency in land Boards, manipulation by
Cap 302 operates as follows: cheats, lack of a clear land policy with respect to a clear .. we should design a much
It provides that any sale, transfer lease mortgage exchange partition or other disposal or clearer policy in the land sector.
dealing in agricultural land is a controlled transaction. Agricultural land means land not
within a Municipality. Division of land into two or more persons to be held under different
titles is a controlled transaction and thirdly the issue, sale, transfer, mortgage of any share REGULATION OF THE URBAN LAND USE SECTOR
in a landowning private company or a cooperative society is a controlled transaction. The Land use structure of sensitive eco systems and the regulatory mechanisms for the two
courts have further said that a declaration of Trust of agricultural land is a dealing with broad categories of urban and agrarian land use systems.
that land within meanings of Cap 302. the effects of these transactions is that consent to
any of the transaction is a prerequisite to the validity of any transaction. One must obtain Regulation of Agrarian land use and we have already indicated that agricultural land use
consent before any transaction can be concluded. Technically therefore one cannot deal is covered by the Agricultural Act an old colonial Act of 1955. it was meant to treat
with agricultural land and hope to obtain consent. agriculture as a single national activity. The agriculture Act has
1. Promotion and maintenance of a stable agriculture
The effect of this is that if any money is paid in pursuance of a transaction that is 2. Conservation of the soil and its fertility which in a sense is concentrating on
subsequently void, it can be refunded under the contract but not money paid on issues that relate to soil and its fertility and measures to curb deterioration
completion of that transaction. Consent is to be obtained form Land Control Boards 3. stimulation or development of agricultural land including the possibility that the
which are set up at Division Levels and the decision of the control board subject to any minister may require certain kinds of development programs to be executed in
appeal is final. The Boards are required to consider certain factors and Cap 302 says form of agricultural schemes prepared by the Director of Agriculture or by land
that Boards should generally refuse consent if the purchaser already has sufficient owners with his permission
agricultural land and is unlikely to develop the land well or profitably given his nature or 4. Assurance of self sufficiency in essential crops of self sufficiency, there should
designated type of the purchaser would bring about control which is likely to lower the not be shortages in terms of food crops and the country ought to satisfy her
standard of husbandry in respect of that land. domestic needs before looking outside
5. Assurance of production of special crops i.e. cash crops
Given these enormous account that the minister has in Agriculture, how come we have Policy statements are often very general and coached with language that addresses
famine in this country, how were the resources sold without an understanding of how to macro level concerns and the migration is as a result of lack of policy. this calls for clear
deal with internal food self sufficiency. definition of policy, there is a process of policy development going in Kenya right now and
mainly concerned with issues of special growth, proper planning for peri-urban areas,
Coffee and Tea are doing quite well but have we done well with other crops. Why are amenities for urban areas, integration of comprehensive plans with the national
there never any reviews/ development plan, an environment for proper urban governance, this is crucial Session
paper number 10 spoke of ignorance, poverty and disease and 20 years later we had bad
There is no political will to ensure that the agricultural industry performs the obligations governance which is crucial for urban planning. Governance framework must be
laid down by the Agricultural Act. Can law be trusted to provide a framework for policy observed.
setting?
Urban govt is a crucial issue. How then are land use structures regulated this happens
Sectoral Regulation Specific use functions are governed by different types of legislation in terms of structure of land use the mechanism used is zoning. Zoning consists of two
and there are also specific functions like holticulture and coffee growing. processes the first process being structural division of land zones dividing urban sector
into zones for land uses. Sub-division of land parcels, apart from reserving the area ..
Credit Services there are legislative instruments that deal with these services but it has
been implemented. We noted that the entire agricultural land is the subject of market In times of quality of physical development, legislation exists for development of design
regulation, elaborate instruments in Cap 302 that deals with transactions of land, and to say that an area should be used for residential structure is not enough and
transfers etc. the purpose is to ensure that agricultural land is not transferred to physical development becomes important, this is the department of city planning and
individuals or companies that can develop agriculture. architecture.

URBAN LAND USE STRUCTURES Under Cap 286 the planning authority is the Director of physical planning and he uses
The urbanisation process in this country was extremely slow the reason being that local authorities to execute his plans.
1. labour migration to the urban areas was strictly controlled;
2. Whenever there was a pool of vagrance there was legislation that allowed Land use in urban centres are in the first instances regulated through the machinery of
urban authority to periodical remove, expel and send back the vagrants to zoning which consists of structural division of uses and controlling subdivision.
the village.
3. There was strict control of spontaneous settlements in the urban and pre- The question of control quality of physical development is the concern
urban areas, Mathare was part of the native area and that is how it grew.
The zoning systems within urban areas was also a factor. There is a grey area which is not effectively regulated which is the peri-urban area.
4. The question of broad instigated zoning in major urban areas except the Usually between urban and rural urban uses, typically characterised by urban type uses
coastal region. and rural type uses. This area is characterised by informal tenure regimes i.e. Dagoretti,
5. There was restricted public transport infrastructure in downtown area. Githurai etc.
Public transport ends when working hours end,
When independence came many of the restrictions were discouraged and the response, How do we deal with peri urban areas? The question of urban agriculture as a legal
urban migration started to shoot up at the rate is right now as high as 58%. system?
Many people in the urban area live on products of urban agriculture, the agricultural
Therefore in the light of a rapid urbanisation, we do not have a clear policy concept to activities clean up the green house effect and therefore there is a value to it. What legal
control the urban migration, we have no policy, no economic stimulation and no framework do we need to manage urban agriculture in peri-agriculture. Should there be
infrastructure. From Sectoral policies one may infer what policy on urban development a more reasoned, rationalised approach
ought to be.
Zoning refers to the designation or roles for specific use to ensure the following
 1. orderly developments on specific areas Zoning per se cannot ensure that urban settlements are developed to standards that
2. provide adequate space for developments of amenities such as schools, would satisfy health, safety and leisure. It is necessary that the Director should include
hospitals etc. the powers to describe standards for buildings of all categories. In exercise of their
3. instrument for protecting property values through separating incompatible powers under Section 210 of the local government act the minister for local govt
uses from each other, to preserve value of property zoning as an promulgated two sets of adopted bylaws, local govts were supposed to adopt and adapt
instrument becomes an important process. them, Adopting bylaws Building order 1968 Grade one, the local government adopted by
law of 1968.
Most zoning regulations prescribes broad land use categories usually in the form or Grade one bylaws are used to grant or refuse approvals of public buildings and
residential, commercial categories sometimes areas are reserved for mixed uses. buildings of industrial class.
Grade two applies to informal settlements only like slums.
Secondly it is important that zoning regulations should provide for use densities in terms
either of the minimum amount of physical development that may be executed on a certain People who have studied the operation of bylaws indicate that where Grade 1 by laws
plot or in terms of residency i.e how many people will live in a certain area. Zoning is not and affordable Grade 2 are not and we need Grade 3 bylaws that allow for the use of
simply an instrument that enable urban planners to structure land use arrangements, structures and implements that are not as expensive as those required by Grade 2
zoning has also been used to achieve specific social goals in the USA zoning has been bylaws.
used to exclude low income groups or minority groups from living in certain areas.
Spontaneous settlement structures have invaded all areas an
Zoning has also been used to prevent migration by such social categories into areas that
are dominated by certain minorities e.g. in race Part of the reason for the sorry state of affairs is that zoning has become meaningless
because structures that ought not to be in some zones have been accepted in those
The primary instrument of zoning in this country is the local Government Act Cap 265 zones and control of standards does not seem to make sense.
Section 166 says that every municipal council, country council, town council or urban
council may subject to any other written law relating thereto prohibit and control land Why (The reasons include)
development and the use of land and buildings in the interest of proper and orderly 1. Poverty induced responses to the stress of urban life;
development of its area. The most obvious written law is the physical planning Act which 2. Lack of capacity by urban authority to supervise urban development;
transfers the power to zoning and makes municipal councils the bodies that implement 3. Flagrant disregard of urban regulatory mechanisms;
the plans once approved. Municipal authority are implementing authorities, local 4. Lack of clear policy from the state on this matter.
authorities although desgnated as planning authority that power is with the Director of
physical planning, the local authorities normally exercises their power through There is law, good law so what has gone wrong with implementation of legislation?
implementation of bylaws and where local authorities were able to design plans this is
now done by the director of the physical planning. The question of the regulation of the urban housing market:
The urban housing market is important mostly because we have not reached a stage in
The Physical Planning Act is normally used to deal with traffic, transportation sights for which every urban dweller will be a property owner and therefore the majority are tenants
public purposes, factory areas, residential areas etc. a planning scheme once approved in one form or another and therefore the stability is essential for the general workforce in
has full force and effect as if it has been enacted in specific legislation. all sectors of the economy. It is important for law to pay attention to ensure the efficient
auxiliary of economic functions such as trade and intermediate business. Where
The power to zone which vests in the director is exercised in consultation with local business thrives on tenancy and where the labour force consists of tenants it is important
authorities and once approved it becomes and authoritative document which the local to direct attention at the urban housing market.
governments use.
Intervention becomes an important tool not just for the control of those who own property
but also for those who live on surplus consumption need to be controlled.
Control of urban land use must be more comprehensive than control of rural land use. In The legislations create statutory tenancies in certain circumstances and a tenant who
urban we are also dealing with quality of residents which cannot be allowed to remain a holds over under both Acts or stays in the premises with the permission of the landlord
purpose of quality systems. The police power of the state is an important power to deal after lease is over does not become a periodic tenant. If the building is protected the
with quality systems. Historically, urban tenancy control has been with us since 1914. tenant becomes a statutory tenant under the case of Cap 296 section 24 or Section 4
When it started it was in response to Worldwar 1 and no new houses were coming into subsection 1 of Cap 302.
the market by the demand for urban houses kept on rising where they were importing
soldiers to fight for king and country. Between 1914 and 1948 Kenya had legislation that Both legislations target certain categories of buildings and Cap 296 concern is merely
totally controlled all urban premises whether they were residential or for business. concerned with medium to low income housing and once these houses come under this
legislation the tenant becomes a protected tenant.
After 1949 when the colonial economy started to pick up, there was the start of the
beginning of decontrol for houses and the process proceeded until independence when In the case of business premises the concern of 301 is with either those premises that are
the rise of the African trader and the great influx of the African trader due to relaxation of let on an oral agreement irrespective of the length of the duration or premises that are let
urban law made the law to reconsider. for a period not exceeding 5 years or those that contain provisions for termination of a
lease otherwise by breach within the period of 5 years. Whereas in the case of
In 1966 the amendment rent control and from then to now the issue of control of urban residential premises the target control is rent,
housing has become a permanent feature of our law. Whether it is residential or control
of business premises the legislation rent restriction act, landlord and tenant shops hotels Controls are administered through tribunals, there are also criminal sanctions that are
. For business premises both Acts operate in rem meaning that the legislations confer available in ensuring that controls are complied with and criminal sanctions have never
the status upon the building and the legislation do this by providing a floor of standards been effective.
intended to override the permissive traditions of the Registered land Act and the Transfer
of property act Finally, zoning and building regulations are concerned mainly with inter urban
development but urbanisation also stimulates a great deal of development at the
The legislation with respect to a building which they apply protect the tenant from arbitrary interface. As a general rule therefore peri-urban development is regulated if at all by the
increase or recovery of rent i.e. recovery of rent is control Section 10 of rent restriction general law of regional planning. In most cases such land are classified as agricultural
act prohibits the recovery of more than the standard rent assessed by the Rent Tribunal. or agro-industrial and one must thing through this
The process of control of urban premises is based on a statutory of definition of standard
rent. The Act goes on to indicate the procedure that the landlord must follow if the 1. Should urban areas be subject the planning jurisdiction of local authority?
landlord wants to recover rent. Cap 296 prohibits arbitral increase of rent, it also controls 2. Should the extension of urban boundaries ipso facto change the status of
the powers of distress under the Distress for Rent Act i.e. not only is the landlord all land enclosed in those boundaries?
prohibited from recovering rent exceeding standard rent but he may not use procedure of 3. What criteria should be used to determine legitimate urban growth?
therein relief without leave of the rent tribunal. Both 296 and 301 operate in rem once a
building comes under the control of the Act and the building is conferred with the status of
a protected building. REGULATION OF ACCESS TO NATURAL RESOURCES FOR PURPOSES OF
CONSUMPTIVE UTILISATION (Regulation of land uses, agrarian and urban uses).
Both legislations guarantee security of tenure for the tenant. This is an important function
for tenancy control that some measure of control should be secured upon the tenant. Regulate because the natural resources are of benefit to society, make a distinction
Both legislations give to the tenants rights very close to that of owner occupier firstly by between land the soil and the resources which are naturally found on the soil not human
restricting the landlords use of power of eviction and restriction via the requirement that induced resources but the resources that are natural to land but which are normally
when the landlord wants to repossess the premises he must obtain the leave of the regarded beyond the reach and control of proprietary decision making.
respective tribunals before that can happen.
The policy framework for natural resource use is normally specific to the kind of natural those resources vest in the state and the responsibilities for those natural resources vest
resource that one is dealing with, i.e. water, forest, wildlife and minerals. Natural in the ministers and utilisation cannot happen without permission from the state. access
resources are generally considered important for the collective use of society and the is through a system of licenses which means that whenever there is any conveyance of
policy framework will be by way of national land use policy. lease of land even by private individuals the conveyance is inadequate to vest any
property in natural resources. Transfer of land cannot convey any natural resources
In the case of water the policy concern is in Sessional Paper NO. 1 of 1999 and the found within private property
concern is to provide a mechanism for managing water and water resources in the light of
increasing water stress. This paper is concern with the uneven distribution of water In the case of water the fact that the state has ownership of water the riparian rights is
resources and the danger caused by apropogenic activities and there is a need for inapplicable to this country the doctrine says that an owner whose land is next to a body
integrated management of water including effective basic management. of water had a right to it but under the water Act the accepted position in this country is
that the doctrine of riparian rights is not applicable even where the land lies along the
In the case of forests, Forest Paper of 1968 which is concerned with forest cover and body of water you need a licence to draw water from the state because the water belongs
water catchment areas. to the state. if the body of water lies wholly within a piece of land that body of surface
water is part of the property of that person. The same goes for underground water that is
As regards wildlife the policy framework is encapsulated to the preamble to the Wildlife in a specific channel but if you sink a well you need a licence from the state because it is
Conservation and Management Act Cap 376 to ensure that wildlife is conserved to yield important to regulate extraction of underground water.
to the nation optimum returns in terms of cultural aesthetic and scientific gains as well as
such gains as are incidental to wildlife Management and conservation which may be In the case of forest and wildlife the consequence of ownership by the state is that
secured without prejudice. To ensure that wildlife is managed and concerned so as to exclusionary regimes have been set up for management of those resources, these
yield to the national optimum returns as well as economic gains such as are incidental exclude communities and individuals from access to those resources, national parks are
private of govts although national reserves are trust land but the animals on the
Minerals: As regards minerals the concern of policy relates around 3 things properties are governments property.
Energy development
Trade The effect of vesting tenure in the state is among other things that community control in
Industrial and technological development the management is excluded and access to those resources is by way of discretionary
licence granted by the state and the state acquires enormous power of disposition which
Minerals include mineral oils, petroleum products etc. minerals are the source of many is not subject to any express public trust. Natural resources are in law the private
conflicts around the world and because extraction of minerals or access is through the property of the state. in the draft constitution, natural resources have been made public
process of extraction the whole question has significant bearing on the environment and property and by requiring that the state should hold public property in trust for the people
the implications of mineral development include the fact that a great deal of waste is of Kenya.
generated which is not easy to dispose off and the general cause of destruction to the soil
and the high cost of restoration after damage to the environment. The mining Act is The general responsibility with regard to access is with the Minister through instruments
concerned with mining and does not give clear policy directions on other forms of utilising of parastatals and public administration in general. Through grant of licences they
minerals. determine access to the natural resources.

Tenure in natural resources is in general held by the state. the title to natural resources Secondly it is those bureaucracies who are charged with responsibility for development,
and its ownership is with the state and this has a historical dimension. It is not in every utilisation and conservation of those resources. Individuals are obliged to contribute to
jurisdiction but the colonial government decided that natural resources should not be conservation. State has further responsibilities to monitor and supervise how the
subjected to private ownership and therefore legislation has always vested title to natural resources are it also enforces compliance with obligations arising under legislative
resources in the state and the state by being owner acquires enormous power to control instruments.
access to those resources. All legislations, water, mining forests start by stating that all
Should the state be owner and administrator of natural resources? 1. there must be analysis of the natural resource of the area for which the plan is
Whether the state should be owner, people are demanding to take control of the done
resources and the debate on privatisation of KWS is whether the state wishes to preserve 2. clear profile of land uses in that area
ownership status but admitting that government is not a good manager. The notion that 3. appropriate legal incentives not just sanctions
the state as owner should be manger of resources is being questioned because in many 4. how the public in general can be made aware of the need for constant
state the government has never proved to be a good manager. monitoring of environmental issues.
5. It should have guidelines relating to management of the environment and
Because express public trust is not generally imposed on the state the worry is what anticipate problems that are likely to affect natural resources and establish
happens when the state becomes irresponsible we have seen plunder of forests protection standards including mitigation measures.
irresponsible grants of access rights, disregard of human settlement needs and all these
questions challenge the notion that where the state owns it should be the manager. Apart from national level planning there are also provision for preparation of provincial
and district plans by committees established at those levels. Overall therefore the Act
Natural resources are also the subject of international conventions particularly forests establishes a fairly elaborate institutional bureaucracy headed by a national environment
which are considered important not just as sources of water within the domestic sphere council managed by a natural management authority and creates position of Director
but as important equations in the climate change debate, the doctrine of sovereignty General of the authority and committees. Those bureaucracies are expected not only to
stops the world from creating a mechanism for natural resources but there are guidelines formulate policies and giving directions to individual concerns but authorities are
meant, the UN framework on environment, the biodiversity conservation and the forest entrusted with the general business of ensuring environmental standards are complied
principles indicate that how natural resources are treated in domestic has implications with.
on the global environment. There is need to revise our own domestic systems to take
account of global trends. As regards environmental auditing, the Act defines environmental auditing in the following
words: it is the systematic documented periodic and objective evaluation of how well
ENVIRONMENTAL PLANNING AND AUDITING environmental organizations management and equipment are performing in conserving or
All forms of land use have implications on the environment, they improve or could have processing the environment.
adverse effects but it does mean that one has to deal with those consequences
The instruments that the Act uses for this purpose is the Environmental Impact
Level 3 legislations are meant to put together a regime for the monitoring of land use In Assessment. The EAI is a tool that is used both before and after a specific activity is
this country primary legislation is the Natural Environment Coordinating Act, conducted on the environment. Development programs must be subject to the EAI
The environmental standards where available are complied with before they are carried out and in the process EAIs are supposed to be conducted to
Environmental effects of land use are carefully monitored ensure environmental e3ffects are managed.
Strategies are in place to mitigate land use effects and
The purpose of environmental legislation is to prepare a country to deal with The environment is defined very broadly,
impact of extreme events such as floods, earthquakes, fires, etc. It includes the physical factors of the surround ding of human beings including land water
atmosphere, climate sound odour taste biological factors of animal and plants and the
The Act proceeds about these purposes in two ways: social factors of aesthetics and includes both natural and built environment.
1. through environmental planning and
2. through environmental auditing Our interest is not in the manner in which the Act proceeds about its purpose but we
worry about how to integrate environmental planning into the general land use process.
as regards planning the Act establishes a national environmental action plan committee
whose primary function is to prepare every 5 years a national environmental action plan How then do we ensure that the processes under level 3 legislation are part and parcel of
for consideration and adoption by the national assembly and the Act requires that planning?
committee in preparing that plan to consider the following:
Environmental planning and audit should be in place before land use plans at any level
are designed and approved. The national environmental authority does its own things
quite often in total ignorance in what the Director of Physical planning is doing. There is
need to revisit not only the various processes but the overall processes that are required
by different legislation particularly the environment legislation. If this is not done the vast
retinue of land use legislation which give enormous powers to various agencies may not
be able to confer the benefits that we expect out of it. It is likely that serious jurisdictional
conflicts have arisen between various agencies that exercise the police power of the
state.

Do we have adequate legislation? Not only about national level planning but also on
sustainable regulation of specific resources in specific sectors

If we have sufficient legislation for those purposes, what has been the impact of these
bodies of legislations in terms of their overall objectives? For example with the
Agricultural Act how do we always end up with famine? How de we ensure a a healthy
environment through implementation of all legislations that regulate human induced
activities on the environment. Should the Physical Environment Act be merged

Should ownership - what value do we gain by keeping ownership and control of natural
resources in the state? state is only good at regulating but not owning.

Analyse and solve specific problems