Housing and Planning Bill

Written evidence submitted by Richard Max & Co, Specialist Planning and Compulsory Solicitors (HPB 73)

Planning and Housing Bill

Clause 137

Summary

The repeal of Clause 237 of the Town and Country Planning Act 1990 and its replacement by Clause 137 of the Housing and Planning Bill will lead to an unwelcome lacuna. This may easily be addressed by a minor amendment to the Clause.

Section 237 enables easements and other rights to be "overridden" where the appropriate procedure is entered into by a local planning authority. The Section has the effect of converting actionable claims into monetary compensation. It is particularly valuable in the case of inner city developments where multiplicity of easements and rights could prevent a development from proceeding. The procedure is often used alongside a Compulsory Purchase.

Clause 137 seeks to widen these powers to include all "acquiring authorities".

Clause 137 – Power to Override Easements and other rights

1. This Clause, once enacted, is intended to replace Section 237 of the Town and Country Planning Act 1990 (Clause 139 and Schedule 11 will give effect to the deletion of Section 237).

2. Our understanding is that the Government’s intention is not to remove the current power from planning authorities but to extend its scope to all acquiring authorities.

3. Section 237 currently takes effect where a planning authority acquires or appropriates land for "planning purposes" as defined in S246 of the Town and Country Planning Act.

4. Clause 137 (2) and (4) (b) of the Housing and Planning Bill provides that subsections (1) and (3) [ie the subsection which permits the interference with "a relevant right or interest"] will apply to land where "the land has at any time on or after the day on which this section comes into force becomes vested in or acquired by a specified authority" [our emphasis].

5. As currently drafted, therefore, the Clause and proposed removal of Section 237 would lead to a lacuna where:

i. A planning authority has acquired land for planning purposes (either compulsorily or by private treaty) in order to enable a development to benefit from the protection provided by Section 237;

ii. Prior to works commencing (or the works or use of land triggering an interference with the relevant right of interest) Section 237 is repealed and Clause 137 of the new Act will come into force;

iii. The planning authority (and any development partner deriving title to the site from it) would

a. not be able to rely on Section 237 at that stage because it will have been repealed; and

b. not be able to rely on Clause 137 of the new Act because the land will not have been acquired "at any time on or after the day on which" it comes into force

6. We believe the unintended consequence of this lacuna is that the planning authority would have to acquire the land for a second time in order to benefit from Section 237.

7. This is likely to affect a large number of development projects where land assembly has now been finalised but works have yet to start.

8. We note that Clause 140 of the Bill contains power to make transitional provisions but we wondered if the point was so important that the transitional arrangements should be reflected in the Bill.

9. A provision could be inserted at the end of Clause 137 (2) and (4) (b):

"…or where the land had been acquired or appropriated for planning purposes under Section 226 or 227 of the Town and Country Planning Act 1990 prior to the day on which this section comes into force."

10. On a related point - one of the advantages of Section 237 is that it makes clear that the works (and use of land) may be undertaken both by the planning authority and any person deriving title from that authority.

11. Clause 137 refers to "any person" but to avoid potential dispute it may be sensible for the Clause to clarify that this means either the specified authority or any person deriving title to the land from that authority as well.

November 2015

Prepared 24th November 2015