Local authorities are coming under increasing pressure to deliver more regeneration projects. In our experience, some local authority regeneration projects have struggled to get off the ground because, for example:
- the land is allocated for a specific statutory purpose; or
- redevelopment use is a breach of restrictive covenant(s); or
- easements over the land prevent redevelopment.
The DWF Public Sector Real Estate Team have helped public sector clients overcome such issues to deliver successful regeneration projects. Appropriation is a key tool in the local authority tool box. We have prepared two articles to take the stress out of appropriation.
Part I is an overview of local authority statutory powers and the benefits of appropriation to redevelopment. Part 2, in next month's newsletter, will focus on Development & Disposal.
What is appropriation?
In its simplest terms, appropriation occurs when land with a specified purpose is changed from one purpose to another.
The two most common forms of appropriation are:
- General Power
Section 122 of the Local Government Act 1972 provides principal councils with a general right to appropriate land. The council can only appropriate if its owns the land and the land is no longer required for the purpose by which it is currently held. The council must consider the public need. The council's decision can be challenged if the decision is made in bad faith or if it was a decision that no reasonable council would have taken. There are no statutory requirements to advertise or consult unless the land is designated as special category land, for example allotment land. - Appropriation of Land for Planning Purposes
Section 226 of the Town and Country Planning Act 1990 permits a local authority to acquire land within their area compulsorily for planning purposes.
What does planning purposes mean?
There is no statutory definition for the term and instead the local authority should consider whether the acquisition or appropriation will lead to the development, re-development or improvement of land which is likely to align with the local authorities economic, social and environmental wellbeing of the area, OR the acquisition or appropriation is in the interest of the proper planning of an area.
Benefits of Appropriation: Unlocking land for development
If a local authority has validly appropriated land for planning purposes, a local authority can override land rights subject to the restrictions set out below. The power is set out in Section 203 of the Housing and Planning Act 2016 (HPA2016). The power to override extends to any person deriving title under the local authority following a disposal.
Section 203 HPA2016 permits local authorities to erect, construct, or carry out or maintain any building or work on land that has been acquired or appropriated by it for planning purposes, or use such land (provided there is planning permission), even if that work or use involves overriding an easement or breach of restrictive covenant.
To ensure there are checks and balances in place for local authorities using appropriation, the following restrictions on appropriation apply:
- planning permission must have been obtained for the works or use of the land;
- the works or use of the land is for the purposes for which the land was appropriated;
- if the local authority doesn't own the land, the local authority could acquire the land in question compulsorily for the relevant works or use the land permitted by the relevant planning permission
Please note the owner of the dominant land with the benefit of the right will have a claim for compensation.
