ROL news: Overriding easements and other rights with the new Housing and Planning Act 2016
A number of high-profile projects have received this help in recent years, including the ‘Walkie Talkie’, Tottenham Hotspur FC’s new stadium and 22 Bishopsgate (see City of London gives go-ahead for 22 Bishopsgate to affect rights of light).
Currently, local authorities, and developers deriving title under them, enjoy this power under section 237 of the Town and Country Planning Act 1990. It only applies where the local authority acquired (compulsorily or by agreement) or appropriated the land for planning purposes in the interests of the proper planning of the area. They must not acquire land for planning purposes unless they think the work may help promote or improve the economic, social or environmental well-being of their area. The power of appropriation applies to local authority land that is no longer required for its original purpose. Once the acquisition or appropriation is complete, any entitlement of an affected neighbour to an injunction falls away. Compensation is payable, albeit for diminution in value, rather than in lieu of an injunction.
Section 237 is being abolished and replaced by new provisions in Part 7 of the Housing and Planning Act 2016, which will likely come into effect later this year. Section 203 of the 2016 Act will enable a person to interfere with rights of light and other easements in the course of carrying out building or maintenance work on, or using, land which has been vested in or acquired by a “specified authority”. There are a number of qualifications:
there must be planning consent for the work or use;
the specified authority must have the necessary enabling powers in legislation to be able to acquire the land compulsorily for the purposes of the work;
the work must be related to the purposes for which the land was acquired or appropriated by the specified authority; and
the land must have become vested in or acquired by a specified authority (or been appropriated for planning purposes by a local authority) after section 203 comes into force or be “other qualifying land”.
A key change is that a “specified authority” not only includes local authorities but other public bodies, such as government departments, and bodies with statutory functions, including statutory undertakers, i.e. most utilities and telecoms companies or nationalised companies such as Network Rail.
“Other qualifying land” includes land vested in or acquired by an urban development corporation or local highway authority or housing action trust and land acquired or appropriated by a local authority for planning purposes. The provisions ensure that authorities that already have the statutory power to override easements etc. will be able to exercise the new power in the same way after section 237 of the 1990 Act is abolished and section 203 of the 2016 Act is brought into effect.
As with the 1990 Act, compensation will be payable for diminution in value and is enforceable against the authority, but the authority may recover from the developer any amount it pays out.
It remains to be seen what impact the new legislation will have on key development work and the pitfalls faced by those who use it. For example, will a specified authority simply have to demonstrate it could in theory have acquired the land compulsorily for planning purposes in the public interest or will it have to prove all reasonable efforts were made to negotiate a release of the third party rights before exercising its powers? Also, the reference to “a person” means successors in title are covered, which may simplify the process by which the authority can dispose of its interest to developers, but will it be obliged to secure a binding commitment from the developer to deliver the development it envisages?
Given the wider scope for using the powers, it probably will not be too long before a court is called upon to examine the application of the legislation.
The Housing and Planning Act 2016 is available online at http://www.legislation.gov.uk/ukpga/2016/22/contents/enacted
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Lance Harris, Director, email@example.com
Aidan Cosgrave, Director, firstname.lastname@example.org
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Heather Schöpp, Director, firstname.lastname@example.org
Stephen Mealings, Director, email@example.com