Now in force: Replacement section 237 procedure for overcoming rights of light (along with other new provisions under the Housing and Planning Act 2016)

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

Replacement section 237:

Yesterday (13 July), the new provisions allowing local authorities to override easements and other rights (including rights to light) came into force, replacing section 237 of the Town and Country Planning Act 1990.  Yesterday's commencement date is earlier than expected.  The previous provisions are familiar to developers as they allowed development to proceed in certain circumstances where there were rights to light and other title constraints to overcome, and the new provisions under the Housing and Planning Act are similar: please see our previous blog post here for further details on the form and effect of these provisions.

Other new Housing and Planning Act 2016 provisions in force from 13 July include:

• "Planning permission in principle" for development of land:  this can be granted, or is deemed to be granted, where the development is 'housing led' and where the land use is set out in a register of brownfield land, a development plan document or a neighbourhood development plan.  The permission in principle will be followed by a technical details consent stage.  The finer details of this process are to be set out in regulations (yet to be published). The Act does not specify that the relevant register of land kept by the local authority must be a register of brownfield land, but this information was included in the recent government consultation.

• "Planning freedoms": this provision allows a local authority to request that the Secretary of State makes a "planning freedoms" scheme for their area, which means that certain planning provisions are disapplied or modified for a specified period, "to facilitate an increase in the amount of housing in the planning area concerned". The Secretary of State must be satisfied that there is need for such an increase in the area concerned and that the planning freedoms will facilitate this, and there must be a proper consultation. A planning provision which can be disapplied or modified would include a provision "to do with planning that is contained in or made under any Act" – this appears quite broad and would give local authorities more power in terms of housing provision, but it is not yet clear exactly how this would sit alongside the neighbourhood planning system.

Much of the detail of the Housing and Planning Act 2016 is still to be fleshed out in regulations which have yet to be published, we also await the government response to recent consultations on parts of the Act (we expect there might be a delay following the EU referendum).

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