When purchasing a development site, it is important to make sure that the site can be used for the purpose for which it is acquired. When it comes to easements, in theory a purchaser should not get any nasty surprises. However, overriding equitable easements can be hard to detect but can have costly consequences. What are they, what is their impact and how can the risk they present be minimised? Continue reading
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.