Archive for December, 2016

Overriding easements

We looked at rights to light two years ago in December 2014.  We still await the Government’s reaction to the Law Commissioners’ draft bill although the chances of MPs taking time with this issue in the present political climate are exceedingly unlikely.  In consequence, developers still face the difficulties presented by rights to light.  Some will have proposed developments redesigned to avoid breach of a neighbour’s rights, others will purchase those rights and a few will fight the matter out in the courts hoping the change in the Shelfer rules will assist them (see our May 2015 newsletter).

On occasions, however, the relevant local planning authority, wishing to see a development go ahead for planning purposes, will exercise their statutory right to override easements by acquiring or appropriating an interest in the property concerned.  Originally, this right was encapsulated in s237 Town and Country Planning Act, 1990.  However, this has now been rescinded and replaced by s203 Housing and Planning Act, 2016.  The sections are similarly worded and many commentators say differ little.  What the new section has done is ‘tidy up’ this law in relation to both local authorities and other statutory authorities.

Local authorities used s237 (and will now use s203) to differing degrees.  The City of London, for instance, will consider its use on a case by case basis and has used it in a few high profile cases e.g. to enable the development of the building now known as the Walkie Talkie building at 20 Fenchurch Street.  It appears, however, that neighbouring Tower Hamlets used the section for the first time in January 2014 to enable the City Point and Island Point development.

Some people have expressed concern that use of this statutory right might breach human rights (in that private rights are overridden by the acquiring local authority).  However, the right can only be exercised for planning purposes which might be said to be for everyone’s benefit.  Time will tell, no doubt.