Abolition of section 237 procedure for overcoming rights of light

Authors: Matthew White, Partner and Head of Planning, Real Estate, London and Lucy Morton, Professional Support Lawyer, Planning, Real Estate, London

Section 237 of the Town and Country Planning Act 1990 gives local planning authorities powers to override easements and other rights in relation to land that has been acquired or appropriated for planning purposes. However the Housing and Planning Act 2016 is set to abolish the existing procedure and bring in a replacement power.

In recent years, developers of several high profile projects have turned to section 237 to overcome rights of light and other title constraints that were threatening to prevent their developments from proceeding. The pre-requisites for the powers to be used are stringent, however, and they are intended only as a last resort.  Fortunately the threat of using section 237 proved sufficient to bring counterparties to the negotiating table in the majority of cases, without the local planning authority actually having to use the powers in practice.

Now, just as developers are becoming familiar with the procedures and tests for the use of section 237 to address their development constraints, and local planning authorities are becoming more comfortable with exercising their powers for this purpose, the Housing and Planning Act 2016 is set to abolish section 237 and replace it with a completely new power.

Section 203 of the 2016 Act will come into force from a date yet to be confirmed, at which point section 237 will be repealed.

The effect of section 203 appears to be similar to that of section 237, with one important difference.  There is a new requirement that the relevant local planning authority "could acquire the land compulsorily" for the purpose of the development in question.

It is not yet clear how liberally this requirement will be interpreted.  A narrow interpretation would require only that the authority has compulsory purchase powers available to it in relation to the land and works in question.  This is probably no more onerous than the current legal position in relation to section 237, where compulsory purchase principles are applied to the use of the powers – most notably in relation to the need for the authority to be satisfied that there is a compelling case in the public interest for the use of the powers.

But a wider interpretation would require the authority to go much further towards establishing that a full justification for the use of compulsory purchase powers in relation to the development exists.  This would potentially include a legally binding commitment from the developer actually to deliver the development for which the powers are required, as well as satisfaction that the project is fully funded.

The precise drafting of section 203 could easily support either interpretation, although I am personally more inclined to the narrow interpretation.  It is possible that the government will publish further guidance through the National Planning Practice Guidance before the new power comes into force.  If not, this will no doubt be an issue to be resolved by the courts.

Some other points to note in relation to the new sections 203–206:

• There is no specific mention of successors in title (compared to the reference to "those deriving title" in section 237), but we understand that the broad use of "a person" in section 203 will operate so as to enable successors in title to a local planning authority to make use of the power.
• The definition of "other qualifying land" in section 205 means that the new power will apply to land that was acquired or appropriated by a local authority for planning purposes before the new section comes into force.  Developers shouldn't therefore need to worry about current section 237 arrangements lapsing when the new provisions take effect.
• Powers equivalent to section 237 enjoyed by other public bodies are consolidated in the 2016 Act.  Section 203 extends not only to local planning authorities, but also to urban development corporations, local highways authorities, the Greater London Authority, the Homes and Communities Agency, Mayoral Development Corporations, the National Assembly for Wales or Welsh Ministers, and housing action trusts.
• Whereas section 237 specifically excluded interference with rights belonging to statutory undertakers, section 203 will now allow this.
• A new provision means that a right or interest annexed to land belonging to the National Trust cannot be overridden.

Section 203 will come into force on a date to be appointed in regulations.   Anyone currently preparing to use section 237 to overcome rights and restrictions in relation to a development should keep a close eye on the commencement of the 2016 Act to ensure that the correct powers and procedures are used at all times. [Update:  these provisions came into force on 13 July 2016]

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