Why the requirement to surrender private land may be unconstitutional
Regulations under the Land Planning Act, Cap 303, now repealed, required that land for proposed public uses such as schools, hospitals, shops, markets and open spaces, among others, be freely surrendered.
Prompted by emerging issues, I reviewed and reflected upon our planning law. I formed the opinion that the provisions requiring the surrender of private land upon applying for development approval under the Physical Planning and Land Use Act 2019 are flawed.
It may be only a matter of time before the constitutional court expunges the offending provisions. They undermine private tenure rights. One wonders how they slipped into this important law.
See, we come from a background where previous planning law was abused to illegitimately move private land from proprietors seeking development approvals to some holders of strategic State and political offices.
This is how it happened. Proprietors would make applications for the subdivision of private land, which would require the approval of the then Commissioner of Lands, and the respective local authorities, where applicable.
Regulations under the Land Planning Act, Cap 303, now repealed, required that land for proposed public uses such as schools, hospitals, shops, markets and open spaces, among others, be freely surrendered.
In some development schemes, this would amount to quite a lot of land. Once approval was accorded, the proprietor would lose such land to public purposes.
Ironically, the land administration regime of the time would have such land covertly allocated to preferred public officers or political leaders, or quickly sold out to willing buyers at below market rates. This fate befell many company and cooperative farms whose subdivision approval was sought at the time.
Such unfair practices informed subsequent land sector reforms. Our current Constitution provides that the State shall not enact a law that arbitrarily deprives a person of property of any description or interest.
It further commits the State not to deprive any person of their property except through the compulsory acquisition of the land required for a public purpose, but on the payment of prompt and full compensation.
The Constitution further provides that the State may regulate the use of any land in the interest of defence, public safety, public order, public morality, public health or land use planning.
Consequently, the Land Act of 2012 provides mechanisms for the compulsory acquisition of private land by the national and county governments, requiring that such requests be submitted to the national land commission.
Then comes the Physical and Land Use Planning Act of 2019, and its regulations. The third schedule of this Act, which dwells on development control, provides that where proposals are submitted for subdivision and amalgamation, land should be surrendered for public utilities.
The 2021 Regulations on development permission and control are more categorical. These regulations provide that where required by the county executive committee member, suitable and adequate land shall be surrendered by the applicant, at no cost to the county government, for open spaces, amenities and recreational facilities. Let us interrogate this further in the next column.
