Ashfords LLP. In-house Legal.

If you are considering purchasing land from a Council to carry out a development, then you may be able to benefit from the Council's powers to "appropriate" land for planning purposes and then override third party rights to allow a development to proceed in accordance with a grant of planning permission (subject to payment of compensation).

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Development: Overriding Third Party Rights through Appropriation

2 March 2016

If you are considering purchasing land from a Council to carry out a development, then you may be able to benefit from the Council's powers to "appropriate" land for planning purposes and then override third party rights to allow a development to proceed in accordance with a grant of planning permission (subject to payment of compensation). This is particularly useful where there are third party rights in existence which could hinder or prevent the development. In appropriate circumstances, a Council may also be willing to acquire and then resell land to a developer to facilitate the above.

Under section 122 Local Government Act 1972 ("LGA"). A principal council may appropriate land:

  • Belonging to that council.
  • That is no longer required for the purpose for which it is held.
  • For any other purpose for which it is authorised by statute to acquire the land.

If the land is appropriated land for "planning purposes" and the appropriation is subject to the powers in section 237 Town and Country Planning Act 1990 ("TCPA"), then the LPA (and any person deriving title under them following a disposal under section 233 TCPA) is authorised to erect, construct, or carry out or maintain any building or work on land that has been acquired or appropriated by the LPA for planning purposes, or use such land, provided it is done in accordance with planning permission, even if that work or use involves either of the following:

  • An interference with an easement, liberty, privilege, right or advantage annexed to the land and adversely affecting other land, including any natural right to support.
  • A breach of a contractual restriction on the use of the land.

Section 237 does not extinguish the rights in question but merely overrides them to allow a specific development to proceed in accordance with a grant of planning permission. The owner of any such third party right will have a claim for compensation, which will generally be assessed on the basis of the loss in value of the claimant's land as a consequence of the interference or breach.

The power to override easements and other rights in land does not extend to the interference with any right of way, or right of laying down, erecting, continuing or maintaining apparatus on, under or over land which is:

  • A right vested in, or belonging to, statutory undertakers for the purpose of carrying on of their undertaking.
  • A right conferred by, or in accordance with, the electronic communications code, or the operator of an electronic communications code network.

If such rights need to be overridden there is an alternative procedure under section 271 TCPA.