Appropriation for planning purposes

Local authorities will often seek to use their powers to appropriate land. Kate Silverman explains why it is essential to get the process right.

Local authorities frequently use powers to appropriate land from one statutory purpose to another. This is often treated purely as an administrative matter, but there are some instances where local authorities should exercise a significant degree of caution. One such instance is where land owned by a council is appropriated for planning purposes when in the course of being prepared for sale and development with a view to effectively overriding private rights subject of course to payment of compensation.

Given the nature of this power, a well-advised council will always take care to ensure that all the proper procedures are followed and that the i's are dotted and the t's are crossed.

Statutory Background

Section 122 of the Local Government Act 1972 empowers a local authority to appropriate land for any purpose for which the council is authorised by the 1972 Act (or any other enactment) to acquire land by agreement and which is surplus to the council's requirements. However appropriation under this section is expressly made subject to the rights of other persons in respect of the land concerned.

A local authority has for many years had the power to acquire land by agreement for planning purposes. This power is presently contained in sections 226 and 227 of the Town and Country Planning Act 1990. Although planning purposes are not expressly defined, section 246 of that Act states that any reference to the appropriation of land for planning purposes is a reference to the appropriation of it for the purposes for which land could be acquired under sections 226 and 227 of the TCPA 1990.

Therefore planning purposes means an acquisition (or appropriation) which will facilitate the carrying out of development, re-development or improvement which is likely to contribute to the economic, social or environmental well being of the area, or which is required in the interests of the proper planning of the area in which the land is situated.

Overriding Easements and Other Rights

Provided that land is validly appropriated for planning purposes, then under section 237 of the Town and Country Planning Act 1990 (power to override easements and other rights) the erection, construction or carrying out or maintenance of any building or work on the land (by the council or a person deriving title from the council) is authorised if it is done in accordance with planning permission, notwithstanding that it interferes with certain private rights such as restrictive covenants and easements.

As a consequence of the amendments made by the Planning Act 2008 Schedule 9, paragraph 4(1), the power to override easements and other rights now also applies where the use of the land which has been appropriated would otherwise involve interference with a third party right, such as a restrictive covenant.

The effect of triggering section 237 is that private rights are effectively overridden and converted into a claim for compensation. This has a two-fold benefit for the council (or a purchaser from the council) that is carrying out the works. Firstly the level of compensation for interference with rights or breach of restrictive covenant is assessed on the basis of the loss in value of the claimant's land as a consequence of the interference or breach of covenant rather than a claim for equitable damages and secondly, a claimant cannot secure an injunction, their only remedy is a claim for compensation.

As such, appropriation of land for planning purposes is very useful, but it is critical that the appropriation is validly made otherwise the operation of section 237 will not be triggered.

Getting Appropriation Right

It should be mentioned in passing that special rules apply to the appropriation of certain types of land, such as land held under the Housing Act 1985, open space commons and allotment gardens, so it is always advisable to ascertain exactly how the land is being used. Sometimes the use is not always obvious, so it is always worth inspecting the site if possible.

Assuming for these purposes that none of the special rules apply, the appropriation of land for planning purposes contains a procedural aspect and a number of key substantive elements.

Procedure

Dealing first with procedure, a local authority must ensure that there is a proper paper trail in place showing that an unequivocal resolution to appropriate land for planning purposes has been made and minuted. In addition, the memorandum executing the appropriation must be signed and dated by an officer of the council who is authorised under the council's standing orders to make the appropriation. This is something that should always be checked.

Land Surplus to Requirements

In terms of the substantive requirements, the council has to resolve that a particular piece of land is no longer required for the purposes for which it was used immediately prior to the appropriation. In reaching this decision the council must consider the public need within the locality for the existing use, but provided that the resolution is not made in bad faith and it is not a decision that no reasonable authority could possibly take, then this is entirely up to the local authority to determine. (See Dowty Boulton Paul Ltd v Wolverhampton Corporation (no2) [1973] 2 All ER 491).

Authority to Acquire Land by Agreement

The council will also have to show that the purpose of appropriating the land is in the interests of the proper planning of the area. In demonstrating this, the council must be able to show that there is a nexus between their inhabitants and the appropriation of the land other than a purely financial motive. (See Sutton London Borough Council v Bolton and another [1993] 2 EGLR 181). Therefore an appropriation for planning purposes would not be valid where the council's motive was for example, to neutralise a restrictive covenant preventing the erection of flats, in order to improve the marketability of a site intended for redevelopment as housing.

In the vast majority of cases it will be very straightforward for a council to demonstrate that the purpose of the appropriation is in the interests of the proper planning of the area, but it is important to record this in the relevant committee report.

Appropriation as a Positive Planning Tool

Appropriation of land for planning purposes is an extremely useful tool which is intended to enable a local authority to take positive steps to bring about the development of their area. However, as with all compulsory purchase type enactments, the overarching principal is that the public good is put before the needs of private individuals. Suffice to say that there may well be people who are aggrieved and therefore it is crucial to proceed with caution and to make sure that all of the proper procedures and elements are satisfied before the sale takes place and the works commence.

Kate Silverman is a social housing lawyer at national law firm TLT. She can be contacted on 020 3465 4167.