Housing and Planning Act 2016

Developers often rely on local planning authorities’ powers under section 237 Town and Country Planning Act 1990, to override easements and other rights over land which has been acquired for or appropriated to planning purposes. This is particularly helpful to combat rights of light issues. Even the threat of asking the Local Planning Authority (“LPA”) to consider using these powers, can be a useful tool in compensation negotiations with those whose right of light will be infringed.

Section 237 is being abolished and replaced by s.203 of the new Housing and Planning Act 2016. It is not clear yet when this section will come in to force.

Although the powers under s.203 are broadly the same as those under s.237, there is a new requirement that the power will apply where the LPA “could acquire the land compulsorily” for the purposes of the development.

It remains to be seen how this new requirement will be interpreted. One interpretation could be that the power will apply when the land is acquired or held for any purpose for which the LPA could have exercised CPO powers. Alternatively the new provision could mean that the LPA must establish that all of the requirements for using its CPO powers have been met, before it can exercise its s.203 power. Whilst this would add a new prerequisite to the use of the power to override third party rights, there is currently a school of thought that interfering with property rights using section 237 is akin to using CPO powers and that a similarly stringent approach should already be adopted when it comes to making a decision to override third party rights.

Key Points

  • in the absence of further guidance on which interpretation is correct, the question will no doubt end up before the courts, potentially by way of a judicial review challenge to a LPA’s decision to exercise its power under s.203
  • the new power will apply to land acquired or appropriated for planning purposes before the new Act takes effect, so current arrangements under s.237 will not be jeopardised
  • developers/LPAs considering the use of s.237 imminently should keep track of the timing of the implementation of the new Act to ensure correct procedures are followed