Encroachment of Riparian: Legal advice on what to do if your property is on riparian land

Riparian land is land adjacent to an ocean, lake, sea, river, dam or water course. Over the last few weeks, the Government has embarked on demolishing buildings and structures in Nairobi that have been built on or close to a river. In recent years, the city’s rivers have been flooding due to several factors, including urbanisation and the rise of river side developments.

Private land which has a river flowing through it can be lawfully owned by an individual; however there are certain development and use restrictions that apply in law so as to protect the river’s course. Currently there are several relevant Acts which have been enacted at various points in time prescribing varying development restrictions. This has resulted in ambiguities and a disharmony between the applicable laws.

Some developments may have been constructed years ago prior to some of these laws coming into force and as a result may not be in compliance with the requirements under more recent legislation. Other developments have been constructed disregarding the riparian laws, whilst some developers claim to have complied with the law by obtaining licences and approvals from the relevant authorities.

It appears that whether or not approvals were issued for a development on riparian land is irrelevant, as the Government’s tough stance seems to be that the approvals were incorrectly granted and therefore all such buildings will be demolished. This position may seem particularly harsh to innocent purchasers (and their financiers) who may have acquired such land from a developer in good faith and in reliance on the planning approvals obtained by the developer. It is hoped that an official list of the buildings earmarked for demolition is circulated to avoid speculation and anxiety amongst property owners, allowing them to take necessary steps and protect third parties from dealing with the properties on which these buildings are erected.

Important questions emerge from the ongoing demolitions, including:

1. Were appropriate notices of intention to demolish given to the property owners and tenants whose properties have been demolished or earmarked for demolition and if so, were they given an opportunity for a fair hearing?
2. What is the fate of the property owner whose developments complied with the law at the time of development but thereafter the river altered its course through no fault of the property owner?
3. Is there compensation due to a property owner when the Government had granted a title, permitted the construction of a building, accepted payment of land rent, rates, council taxes, licence fees, levied penalties for late payments, granted consents to lease, charge or deal with the land, only to many years later destroy the building on the grounds that approvals were incorrectly given by Government and/or officers of government agencies?
4. Is there any redress for the innocent tenant who was provided copies of all approvals by a landlord relating to the development and invested in renovating a shop or home, only to have to vacate the building due to a demolition?
5. What rights does a lender have whose security value over the property is diminished overnight?
6. Are appropriate measures in place to ensure that demolition rubble is being properly removed and is not finding its way into the river?

These recent events demonstrate the need to ensure that prior to acquiring and/or developing on property that has a river flowing through it or close to it, a surveyor is engaged to identify the riparian area that cannot be developed on or used freely. It is necessary for property owners to understand the law and comply with all existing legislation and for developers to develop property well beyond the riparian area.

Going forward, it would appear that having all relevant licences, consents and approvals is no longer sufficient. A property owner must ensure that he has actually complied with all applicable laws. Further, we hope that whilst the Government has made it clear that it will take environment protection seriously, it will also ensure that the officers at the various departments, including the National Environment Management Authority (NEMA) will issue consents and approvals in accordance with all applicable laws so that they can be confidently relied upon.

Harmonisation of laws should be a priority for the legislature. Only then can developers, purchasers and their advisers be sure that future developments near riparian land will be in full compliance with the laws. It is no doubt important for all property investors to comply with environmental protection laws. Those who obtained approvals without following due process or through backhanded means are now facing the consequences. However, a lot more is at stake here as innocent people are being affected by the demolitions. It is our view that each case be assessed independently and if possible involve planning professionals to provide alternative solutions to protect riparian land.

Source: Africa Legal