The Overriding Power

Williams, Rachel (2018) The Overriding Power. Journal of Planning and Environmental Law, 3. pp. 244-250. ISSN 0307-4870

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Abstract

Easements and restrictive covenants on land can complicate the design of schemes and cause delay in their implementation. Local planning authorities and agencies with regeneration powers have statutory powers to override these rights when undertaking development (subject to the payment of compensation). 1

The powers referred to above were originally contained in the Town and Country Planning Act 1971 s.127 then re-enacted as the Town and Country Planning Act 1990 s.237, which has been replaced by the Housing and Planning Act 2016 s.203. These legislative provisions will be referred to collectively as "the Overriding Power".

When a local authority exercises the Overriding Power then the owners of the land, which has the benefit of the easement or covenant, are no longer able to enforce their rights by obtaining an injunction but they are entitled to compensation. The rationale for the Overriding Power is explained by Dyson J in R. v City of London Corp Ex p. Mystery of the Barbers of London:2

"… the statutory objective … is that, provided that work is done in accordance with planning permission, and subject to payment of compensation, a local authority should be permitted to develop their land in the manner in which they, acting bona fide, consider will best serve the public interest. To that end, it is recognised that a local authority should be permitted to interfere with third party rights."

The Overriding Power has been under the spotlight recently in a couple of high profile schemes in the City of London; No.22 Bishopsgate (site of the Pinnacle scheme)3 and No.21 Moorfields.4 The key difference between these schemes and the scenario envisaged by Dyson J above is that in these schemes, the land was in private ownership and the developers approached the local authority requesting that the authority purchase the land (which would activate the Overriding Power) and then sell or lease it back to the private developer.

The purpose of this article is to explore the nature of the Overriding Power and the impact of recent reforms. First, it will consider the changes to the Overriding Power, then explore the compensation rules before comparing the regulation of the Overriding Power to the compulsory purchase regime and considering to what extent it stands up to scrutiny.*J.P.L. 245

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