Removing obstacles to regeneration - October 2008
REMOVING OBSTACLES TO REGENERATION
A provision in the new Planning Bill is aimed at removing an obstacle to regeneration.
The Current Law
Section 237 Town and Country Planning Act 1990 - where land is acquired or appropriated by a Local Authority for planning purposes, any construction or maintenance works (”Works”) done on the land by the Local Authority (or its successors in title) may proceed even if they involve:
• interference with any easement or right (such as a right of way over the development site for the benefit of adjoining land); or
• breach of a contractual restriction on the use of the land (such as a restrictive covenant preventing use of the land for a particular purpose).
Rights or apparatus belonging to statutory undertakers or operators of electronic communications networks are not affected.
Compensation is payable under Section 237 for any such interference or breach.
What’s the Problem?
The problem is that easements and rights can only be overridden during the period the Works are being undertaken - not permanently for the new use of the land after the construction phase has been completed.
This narrow wording is a threat to the effectiveness of regeneration CPOs and projects, particularly those required to implement the major infrastructure proposals set out in the Planning White Paper - “Planning for a Sustainable Future”.
The issue was highlighted by the decision in Thames Water Utilities -v- Oxford City Council (1998) where it was held that Section 237 didn’t allow a material change of use to impliedly override restrictions on the use of the land.
The current position causes doubt, uncertainty and delay and can give rise to expensive litigation.
What’s the proposed solution?DCLG consulted in 2007 on proposals to amend Section 237 (in so far as it applies in England) to allow rights, easements and covenants to be overridden during the subsequent use of the land, as well as during any Works, with compensation to be based on the depreciation in value of the land benefitting from the restrictive covenants.
Most consultees agreed that Section 237 should be amended and the proposed solution has been included in the Planning Bill. Although compensation costs payable by Local Authorities may increase, the total costs to developers may be reduced because of overall time savings and the fact that schemes will not have to be redesigned so as to avoid breaching a covenant or interfering with a third party right. The Bill has recently been through the House of Lords Committee stage and will be at the Report stage in early
November.
The information contained in this document is a general summary and commentary on recent legal developments and does not constitute advice. Specific legal advice must always be taken in relation to any of the issues raised in this alert.
For further information please contact The Planning Team at our Nottingham office:
Freeth Cartwright LLP, Cumberland Court, 80 Mount Street, Nottingham NG1 6HH
Tel: 0115 936 9369
Fax: 0115 859 9600