The Housing and Planning Act 2016
Author: Sam Grange
Applies to: England and Wales
Overriding Easements and Other Rights: this article considers the new power contained in section 203 of the Housing and Planning Act 2016.
Readers will be aware that the Housing and Planning Act 2016 (the 2016 Act) received royal assent on 12 May 2016. Commencement regulations made on 25 May and 11 July 2016 have brought certain of the Act's provisions into force, however, the majority remain to be enacted.
Amongst those provisions which are now in force are sections 203-206 regarding compulsory purchase and, in particular, the power to override easements and other rights (such as rights to light and restrictive covenants). Prior to the coming into force of these provisions on 13 July 2016, local planning authorities (LPAs) and agencies with regeneration powers had statutory powers, which for LPAs were contained in section 237 of the Town and Country Planning Act 1990 (the 1990 Act), to override such rights in order to facilitate the implementation and delivery of development. The effect of sections 203-206 of the 2016 Act is to repeal those powers and to replace them with a new power which broadens the categories of authority (referred to as a 'specified authority') to whom the ability to override easements and other rights is afforded (ie to include statutory undertakers).
While the effect of the new section 203 power is similar to that of section 237 (now repealed), there are a handful of substantive, albeit subtle, changes which are worthy of note.
Section 203 enables a person to interfere with a relevant right or interest or to breach a restriction as to the user of land when carrying out building or maintenance work (which means the 'erection, construction, carrying out or maintenance of any buildings or work') or when using land which has been vested in or acquired by a specified authority, or appropriated by an LPA for planning purposes. A person would include a successor in title (ie a development partner) to the specified authority or LPA.
A number of conditions/limitations are placed on the exercise of the new section 203 power.
As before, planning permission must have been obtained for the building or maintenance work/use of the land. However, it is now also a requirement that the specified authority could acquire the land in question compulsorily for the relevant building or maintenance work/the purposes of erecting or constructing any building, or carrying out any works, for the relevant use. It is unclear at this stage precisely how this requirement will be interpreted (case law having previously directed authorities to develop a public interest case in order to support an intention to rely on the use of the overriding powers contained in section 237 of the 1990 Act and other legislative provisions) and it is anticipated that guidance will be required (or failing this, intervention from the courts) to clarify the position.
In addition, the development which the new section 203 power is being engaged to deliver must be related to the purposes for which the relevant land has been acquired or appropriated (whether such acquisition or appropriation is recent or historic). This requirement also has its origins in case law, however, section 203 sets the requirement out more formally and effectively codifies it.
Transitional provisions are included in section 203 so that land which has already been acquired (whether compulsorily or by negotiation) or appropriated for planning purposes before 13 July 2016 (referred to as 'other qualifying land') can take the benefit of the section (given that the overriding powers that any such acquisition/appropriation was intended to engage are now repealed).
Finally, the power to override easements and other rights contained in section 203 is not available in respect of a protected right (ie a right vested in or belonging to a statutory undertaker for the purpose of its statutory undertaking or a right conferred by the electronic communications code on the operator of a code network). Protection from interference is also afforded to rights or interests annexed to land belonging to the National Trust.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.