Change of User and Subdivision Approvals Under the Physical Planning Act, 2019

Anyone planning to build, subdivide a plot, or use a property for something other than what its title or original plan permits, needs approval from the county government before doing so. The law governing that approval used to be the Physical Planning Act (Cap 286), enacted in 1996. It has been repealed and replaced by the Physical and Land Use Planning Act, 2019 (No. 13 of 2019), which restructures how change of user and subdivision applications are made, decided, and enforced. Developers, landowners, and advocates still citing procedures under the old Cap 286 regime are working from a repealed statute, and the practical timelines and consequences under the 2019 Act are different.

The Shift from Cap 286 to the 2019 Act

The Physical and Land Use Planning Act, 2019 repealed the Physical Planning Act and consolidated planning authority at both national and county level, in line with the devolved structure created by the Constitution of Kenya, 2010. Detailed procedure is now set out in subsidiary legislation made under the Act, principally the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021 and the Physical and Land Use Planning (Development Control Enforcement) Regulations, 2021. Together, the Act and these regulations form the current framework for development permission, change of user, and subdivision anywhere in Kenya.

What Requires Development Permission

Section 57 of the Act states the general rule plainly: a person shall not carry out development within a county without development permission granted by the respective County Executive Committee Member. “Development” is defined broadly in section 2 to include not just construction, but “making any material change in the use of any structures or land,” which is what brings a change of user within the same permission regime as new building works. In practice, this means converting a residential plot to commercial use, changing an office building into a hotel, or altering the intensity of an approved use, all require permission in the same way that erecting a new structure does.

The Regulations add a practical threshold for change of user applications: they generally apply where the proposed use departs from the registered use by more than twenty percent of the plot’s built coverage, which captures most genuine changes of use while leaving minor variations outside the formal process.

Applying for Permission: Process and Timelines

Section 58 sets out what an application must contain. It must be made in the prescribed form, accompanied by the prescribed fee, and supported by documents, plans, and particulars showing the proposed development’s purpose, proposed uses, population density, and any land set aside for easements. Where the applicant is not the registered owner of the land, the written consent of the owner must be produced. Under the Regulations, the county planning department issues a tracking number on receipt and circulates the application to relevant technical authorities, such as roads, water, and environmental agencies, for their input before a decision is made.

Section 58 also creates a deemed-approval mechanism that puts pressure on county governments to act: where an applicant does not receive a written response to a complete application within sixty days, the permission is treated as having been granted. Section 61 then governs the actual decision: the County Executive Committee Member may grant the development permission, with or without conditions, or refuse it, but a refusal must state the grounds in writing. This gives an aggrieved applicant a documented basis to challenge an unreasonable refusal.

Subdivision and Amalgamation

Splitting a single parcel into smaller plots, or combining several plots into one, is treated as a distinct category of development requiring its own approval. Section 56(b) gives county governments the power to control or prohibit the subdivision of land, and subdivision schemes must comply with planning standards set out in the Regulations, including minimum road widths for new access roads and the retention of natural features such as riparian land. County planning authorities can also require the developer to surrender a portion of the land for public purposes, such as roads or open space, as a condition of approving the subdivision. An application to subdivide agricultural land outside an urban area may additionally require the consent of the relevant land control authority before the county’s planning approval is granted, so a subdivision plan for rural or agricultural land needs both approvals lined up together.

Enforcement Against Unauthorised Development

The 2019 Act and the Development Control Enforcement Regulations, 2021 give county governments real teeth against development carried out without permission or in breach of its conditions. A County Executive Committee Member who receives a complaint may issue a stay order halting further work immediately. Where a violation persists, the county can issue a formal enforcement notice requiring the developer to stop work, alter or modify a structure, demolish unauthorised works, or restore the land to its original condition, with the notice period varying according to the type of violation. If a notice is not complied with, an enforcement team may enter the property and execute the required works itself once the notice period has lapsed. Because these powers extend to demolition, a developer proceeding without permission, or outside the scope of permission already granted, is exposed to losing the investment made in the unauthorised works.