by samson | Oct 6, 2022 | physical and land use planning
Have you ever come across with terms like change of use, extension of use, extension of lease or renewal of lease? This article summarizes the definitions and differences of these terms according to physical and land use planning act, 2019 amendment. Additionally, it provides a recommendation of when to apply for renewal of lease.
In this article we are going to cover briefly on:
Change of use
This means any alteration in the use, purpose or level of activity within any land or building that involves a material change that results in a use that is completely different from the previous use and which will require development permission or any development that is out of character as under the set Regulations, a zoning plan or an approved development plan, or under the lease conditions; The Change of Use is required when—
- the proposed project includes a significant change of the registered use of the land and constituting of a change of more than twenty per cent of the registered use of the land based on the plot coverage and plinth area; and
- the existing registered use of land is not in accordance to the approved plan or the zoning regulations.
Extension of use
This means additional use other than that registered on the land while maintaining the dominance of the existing registered user or the land. The extended user should be compatible with the existing user including the character of the neighbourhood; Extension of Use is required when the proposed development includes a change of registered land use not exceeding twenty per cent in instances where a developer intends to comply with any revised physical and land-use plans and land-use zoning regulations.
Extension of lease
This is a process by which the lessee, before expiry of the lease, seeks an additional unexpired term to that lease. A lease extension should state that the original agreement being extended, name both parties involved in the contract, and state when the lease begins and ends. The parties are supposed to know how a lease extension works and how it compares to other options at the time it ends, so that they are able to decide whether the lease extension is right for them. I would recommend this article for more information.
Renewal of lease
Lease renewal is a new lease agreement. Under a lease renewal, there is a legal instant in time between the expiry of the original term and the commencement of the renewal term. Unlike a lease renewal, an extension of the original lease is a continuation of the original lease, without interruption.
When to apply for renewal of lease
The National Land Commission is required to notify a person to whom a lease (lessee) is granted by registered mail, five (5) years before expiry of the leasehold that the lease is about to expire. The notice indicates the date of expiry and notifies the lessee of their pre-emptive right to apply for extension.
The National or County Government is required in cases of non-extension of leases to give the lease holder notice of at least three (3) years before the expiry of the lease, and a copy of the same issued to the Land Commission
NOTE: Where the lease expires without prior notice by the Land Commission to the lessee, the lessee may be required to apply for a renewal of lease.
Recommendations
Lease extension or renewal and change or extension of use can be difficult processes. We recommend you get professional help from Planners and Surveyors with experience in this area.
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by Georole Ltd | Oct 3, 2022 | physical and land use planning
Land is a basic utility but scarce i.e. cannot be increased. Therefore, is advisable to use it in a sustainable and in various ways in order to accommodate everyone and productively meet their needs.
There are factors that exerts pressure on the available land in various countries e.g. growth of population, development regulations and standards, etc. This leads to the need to open up a platform to change the use of land. This involves a procedure where property owners can change the use of land from one purpose to another.
There is a procedure of how one can change the use of land to another use e.g. agricultural to residential, residential to commercial, and so on
what is change of use
in the context of physical and land use planning, change of use is a process of changing the current status and registered use of land from one state to another. For example, changing the use of land from agricultural to residential, agricultural to commercial, residential to industrial, etc. Read this for more information.
why should one consider applying for change of Use
To Change a registered use of a premises to another use may lead to amenity problems to neighboring premises in the area. A planning application for change of use would allow to assess if the intended new use is compatible to neighborhood characteristics and acceptable in relation to the physical and land use planning act and other relevant planning policies, regulation and standards.
NB: Failure to obtain a change of user therefore may lead to repossession of land by the government. In addition, the government may require the owner of the land to restore the land in question to its original condition
Types of land uses that can undergo change of use
Residential use- land registered specifically for the purpose of building homes where people can reside comfortably. e.g. bungalows, mansionettes, apartments,- commercial use – registered for putting up business entities such as shops, office complexes, etc.
- institutional use – registered for purpose of establishment of institutions such schools, training colleges, judiciary, etc.
- agricultural use – this land is registered for purpose of practicing farming activities such as cash or food crops and rearing livestock or poultry.
- industrial use – registered for the purpose of establishing industries. This can either be light or heavy industries.
Example of change of use applications
- Proposed change of use from Agricultural to Residential
- Proposed change of use from Agricultural to commercial
- Proposed change of use from Agricultural to Residential cum commercial
- Proposed change of use from Agricultural to Industrial
- Proposed change of use from Agricultural to light industry
- Proposed change of use from Single Dwelling Residential to Multi – Residential
- Proposed change of use from Residential to Commercial
- Proposed change of use from commercial to Residential
- Proposed change of use from Agricultural to Institutional
- Proposed change of use from commercial to industrial
- Proposed change of use from Residential to Agricultural
- Two duly filled PLUPA 1 forms in triplicate signed by a registered physical planner
- Planning briefs prepared and duly signed by a registered physical planner
- Original title deed
- Comprehensive location plan
- Advert of the proposal on two daily newspapers with nationwide circulation
- Application fee receipt
- Current rates payment receipt
Procedure for obtaining an approval for change of use
The procedure for obtaining approval of change of use is prescribed in law. The procedure is laid down in the physical and land use planning act, land act, land registration act, County government act and the national land Commission act. Land use in Kenya is vested in the county government and therefore, the relevant authority to which the application should be made is the county government to the department of Physical planning through a registered physical planner. Below is the procedure:
- Official application to the county governments: As per the Physical and Land Use Planning Act, the landowner will submit the applications for change of use through a registered planner. The planner will fill a form known as PLUPA 1 which provides details of the property’s current use and the proposed intended use. The form should also be accompanied by a detailed project report.
- Advertise a public notice on the intension to change the use of land: The planner and the proponent should publish a public notice regarding the proposed change of use in two daily newspapers with nationwide circulation to invite comments or objections from the public within a period of not less than fourteen (14) days.
- Submit the application to relevant authority: The duly signed form accompanied with the detailed planning brief will be sent to the County Director of Physical Planning. The Director will in turn share with other stakeholders such as Land Control Board, development control officer, surveyor , etc. Upon review, the permission for changing the use of land will receive a yes or no.
- Pay the required fee: Depending on the project, you will be issued with the a fee and government bank details to pay and in return you will obtain a receipt.
- Receiving feedback: The County Government will give the feedback in writing to the proponent. In case of permission is granted the landowner will receive a PLUPA 2 form whereas if a no is the response reasons will be given. In addition, a proponent has a right to appeal when permission is declined.
- Change of title deeds: Successful approval of the proposed change of use, the proponent (landowner) will be required to surrender the old title deed to the registrar in order to get new title deed for the property. He/she files them on what is known as a deed file. A successful application of change of land use means you commence development of the property within 2 years from the date of approval.
Recommendations
- If you are proposing to change the use of buildings or land, we would always recommend that you seek advice from the local planning authority to confirm whether or not planning permission or prior approval is required.
- Additionally, before you lease or buy a property for your development, you should check whether you need to obtain planning permission or prior approval for its intended use and, if so, your chances of getting it.
- Don’t hesitate to contact Georole for advice and whenever you need all these be done on your behalf in efficient and professional manner.
