Development Q&A: Rights and Section 203 of the Housing and Planning Act 2016, Victoria Towers answer your questions.
In this bulletin our lawyers provide practical tips and solutions to frequently encountered real estate development issues. Please feel free to submit your own questions by emailing [email protected]
Q: Is it still possible to override private rights that affect a development site?
A: Yes, if a developer can persuade the local authority to exercise its statutory powers to enable works to be carried out, notwithstanding interference with an easement or other right (such as rights to light and use restrictions). The interference of those rights is then converted into a compensatory claim only.
Such powers were previously exercisable pursuant to Section 237 of the Town and Country Planning Act 1990. However, this Section has recently been replaced by Section 203 of the Housing and Planning Act 2016.
Similarly to S.237, under S.203 there must be building or maintenance works being carried out on land which has been acquired or appropriated by the Local Authority for planning purposes. Any works undertaken must also be permitted pursuant to a planning permission.
The exercise of such a power by the Local Authority is subject to challenge and it is important that the Local Authority documents its reasoning and consideration of all relevant factors thoroughly. When looking at appropriation, certain factors must be considered, such as whether the development would contribute to the promotion of economic, social or environmental well-being and whether there is a feasible alternative scheme that would not interfere with those rights.
However, under S.203, the power to override private rights has also been extended to be exercisable in respect of works on land which has been vested in or acquired by a specified authority. A specified authority includes public bodies such as government departments and bodies with statutory functions, e.g. statutory undertakers. This means that most utilities and telecoms companies can interfere with rights in the course of carrying out works on that land.
A further requirement introduced under Section 203 is that the specified authority could acquire the land compulsorily for those works. Interpretation of this additional requirement is not yet clear and it is anticipated that guidance will be required.
S.203 took effect on 13 July 2016. Where land was acquired or appropriated before this date there are transitional provisions which mean that the land can still benefit from such powers.