Everyone has a dream to finally own a piece of real estate somehow someday. For those who wish to delve into the area of real estate development and sale, you will soon find out that one of the many formalities you might have to effect sooner or later is change of user of your parcel of land.
The right to own and enjoy property as enshrined in Article 40 of the new Constitution also comes with certain restrictions on a property owner vis-a-viz the property. These restrictions include amongst other things the requirement that a parcel of land can only be utilized for the specific use designated to it by the authorities in the zoning and Local Physical Development Plans (LAPDs) and as stipulated on the ownership documents. There are various categories of uses that can be designated for a particular parcel of land including residential, commercial, agricultural, industrial, quarry and even national heritage.
A real estate developer who wishes to change the user of a parcel of land from residential or single-dwelling to multi-dwelling more often than not might require the services of a registered and practicing physical planner, surveyor and lawyer in view of the documentation involved.
The law regulating the process of change of user is contained in a number of Acts of Parliament mainly, the Physical Planning Act, Cap. 286, the Physical Planners Registration Act, No. 3 of 1996, the Local Government Act, Cap. 265 and the Cities and Urban Areas Act, Act No. 13 of 2011. However, it is important to note that under the new Constitution, there is provision for legislation to review the law relating to physical planning. It is worthy to note that the Spatial Planning Bill is in the process of preparation by the relevant authorities which legislation will be an added advantage to the current planning laws.
In the context of change of user from residential or single-dwelling to multi-dwelling, the process involves the initial application and approval stage at the local authorities and the final approval and processing of the title at the Department of Lands.
Prior to initiating the process at the local authorities, the developer is required to place an advertisement in at lease two (2) local dailies of wide circulation giving fourteen (14) days notice of the intended change of user and inviting comments and/or objections, if any. Upon expiry of the notice period and subject to no adverse comments/objections, the developer can then submit the application at the local authorities.
Initial stage: Local Authorities
The process at the local authorities is initiated by an application for development permission. In the application you must include such plans and particulars as are necessary to indicate the purposes of the development, and in particular the proposed use and density, and the land which the applicant intends to surrender either for purposes of access or public purposes connected to the development.
Under Section 32 of the Physical Planning Act, a local authority to which a development application has been made is required within 30 days of receipt of the application to refer the same to the Director of Physical Planning for his comments. In addition, referral may be made to the other related government offices for comment including the Commissioner of Lands, Chief Engineer (Roads), Chief Public Health Officer and the Director of Agriculture. In considering such an application, a number of factors are considered such as a physical development of the area, the land reference and title, where applicable, defined location and size of the land, current user of the land, proposed/intended user, area zoning regulations and whether due notification has been made for the proposed development.
The local authority upon receiving comments of no objection from the said offices may issue its approval to the development application with or without conditions or may on the other hand refuse to grant its approval. The Physical Planning Act requires the local authority to communicate its decision in regard to a development application within thirty days to the applicant specifying the conditions pertaining to the approval or in the case of a refusal, the grounds for the same. The law also makes provisions for appeal incase an applicant is dissatisfied with any decision of the local authority.
Approval by the local authorities is in the prescribed form PPA 2. Upon obtaining the approval, a developer may commence construction within two (2) years from the date of the approval subject to obtaining a licence from the National Environmental Management Authority (NEMA). In considering whether or not to grant a licence, NEMA looks at both the conditions of approval by the local authorities i.e. form PPA2 and the proposed architectural designs.
Final Stage: Lands Office
The Commissioner of Lands bears the onus to approve the change of user and set the pace for its effecting into the ownership documents. At the lands office, the Commissioner of Lands receives the application and the approval form -PPA2 in a correspondence file. The work is then assigned to a lands’ officer of the level of Chief Lands Officer, on behalf of the Commissioner.
From the Commissioner’s office is sent forth a circulation letter seeking comments from the Director of Survey and Director of Physical Planning. The comments from the two directors are then brought back to the Commissioner who then sends the Chief Lands Officer to the property. The officer compiles a Ground Report. With this, the property owner is then allowed to proceed with an Official Search to ensure every detail is in the file.
The file is then circulated vertically within the Commissioner of Lands hierarchy as follows: First, to the Chief Lands Officer, secondly, the Principal Lands Officer, thirdly the Assistant Commissioner of Lands. The file is then taken for a Technical Approval Committee (TAC) where issues pertaining to the land and its change of user are discussed and ratified. Minutes of the TAC are then circulated to the Deputy Director of Survey who forwards it to the Commissioner of Lands.
If there are no objections relating or incidental to the application, the file is then sent back to the Lands Officer who handled it who then drafts the approval letter (on behalf of the Commissioner of Lands) complete with new conditions and demands to be met. Among the conditions requested include need for new deed plans and new titles which will call for the property to be resurveyed. The Survey Act (Cap.299) provides for the modalities to survey private land. Validation and approval of the change of user by the Director of Surveys signifies the call for resurvey of the property in question. In this case, the property owner is counseled to seek services of a registered surveyor to draw new deed plans for the property, which are then approved by the Director of Survey who will then commission the confirmation, erection and/or re-erection of the beacons of the new property. The survey process has 8 stages that culminate to approval by the Director of Survey where also a new land reference number is issued for the property.
With the resurvey and deed plans complete, the applicant fills up an application form to apply for new titles from the Land Registrar. The applicant then surrenders the old title(s) and the new deed plan(s) to the Registrar who then files a deed file. The registrar then proceeds to process new title(s) for the property with the new user included and the new attendant conditions.
The back and forth process of effecting a change of user is a long- winding and tedious process that requires much knowledge and patience. Its importance, consequences and ramifications for the developer especially from the local authorities who bear the development control responsibilities within their areas of jurisdiction is worthwhile knowing.
As the process is lengthy there is no choice but to use a ‘consultant’ to make the process move!
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