Appropriation of land for planning purposes

There has, in the context of the ongoing housing crisis, been much talk recently of sites with the benefit of planning permission not being built out. So-called "land banking". 

And politicians of all persuasions have weighed into the debate about the best way to deal with this. Indeed, the Mayor of London, Boris Johnson, and the Leader of the Opposition, Ed Milliband, have both suggested that landowners of such land which did not use the planning permission should lose it together with the land itself and that the land and permission could be given to a developer who would do so. 

This would of course require  specific powers of acquisition to address just such circumstances. But there are many other powers open to a local planning authority to appropriate land for planning purposes. 

Background 

If a local authority acquires land for a statutory purpose, it must hold the land for that purpose until it either appropriates or disposes of the land in accordance with its statutory powers. "Land appropriation" in this context means transferring the use of land from one purpose to another. 

When it comes to planning, a local authority may:

• Appropriate land for planning purposes under s.122 Local Government Act 1972 (LGA’72) ,
• Develop land held for planning purposes under s.235 Town and Country Planning Act 1990 (TCPA’90),  
• Dispose of land held for planning purposes under s.233 TCPA’90, 
• Override easements and rights in land appropriated for planning purposes under ss.237 to 242 TCPA’90, and 
• Acquire and allocate land for specific purposes, including for the purposes of planning e.g. purchase or lease land for public recreation (s.164 Public Health Act 1875), acquisition of land for the construction of housing (s.17 (1) (a) Housing Act 1985), acquisition of land for the construction of highway (s.239 Highways Act 1980).

A general power to appropriate land is by s.122 LGA’72 conferred on principal councils (defined in s.270 LGA’72 as including a non-metropolitan county council, a district council, a London borough, or in relation to Wales a county or county borough). Where land belonging to a principal council is no longer required for the purpose for which it is held, the council may appropriate it for any other purpose for which it is authorised by statute to acquire land.

An example of such an authorisation is s.227 TCPA’90, which authorises a principal council to acquire land by agreement for "planning purposes" which has no statutory definition. Instead, s.246 (1) TCPA’90 states that reference to the appropriation of land for planning purposes means reference to any purpose for which land can be acquired under one of the following:

• S.226 TCPA’90 (power to compulsorily acquire land for development and other planning purposes).
• S.227 TCPA’90 (corresponding power to acquire land by agreement for the purposes set out in s.226 TCPA’90).
• S.52 Planning (Listed Buildings and Conservation Areas) Act 1990 (power to acquire a listed building of special architectural or historic interest and any land adjacent to the building that is required for its preservation or for access).

A principal council can only appropriate land under s.122 (1) LGA’72 if the land is no longer required for the purpose for which it is currently held. In reaching this decision, the council must consider the public need within the area for the existing use. The council's decision cannot be challenged unless it was made in bad faith or if it was a decision that no reasonable authority could possibly have taken (see, for example, Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) [1973] 2 All ER 491 where the court held that the local authority was the sole judge of whether land used as a municipal aerodrome was no longer needed and should be appropriated for housing).

Special categories of land

The general power to appropriate land under s.122 LGA’72 does not apply to common land, fuel and field garden allotments (allotment land) over a certain size. 

By virtue of s.336 (1) TCPA’90: 

• Common land is land that is required to be enclosed under the Inclosure Acts 1845 to 1882 and any town or village green.
• A fuel allotment is an area set out under the Inclosure Act 1845 with the object of providing fuel in the form of peat or turf. 
• A field garden allotment is a plot of land set out as a field garden under s.31 of the Inclosure Act 1845.

Under s.122 (2) LGA’72, a principal council can only appropriate common or allotment land if both of the following conditions are fulfilled namely that the total area of the land appropriated does not exceed 250 square yards (209 square metres) and the council advertises its intention to appropriate such land for two consecutive weeks in a newspaper circulating in the local area, and considers any objections to the proposed appropriation.

The appropriation of any larger area of common or allotment land is regulated by s.229 TCPA’90, which requires a local authority to make an order appropriating the common or allotment land and to submit the order to the Secretary of State for confirmation.

Confirmation of an appropriation order made under s.229 TCPA’90 will be subject to special parliamentary procedure unless the Secretary of State certifies, under s.19 Acquisition of Land Act 1981 (ALA’81), that either equally advantageous land of at least the same size will be provided in exchange for the appropriated land; that the land is being appropriated to secure its preservation or improve its management; or that the land does not exceed 250 square yards (209 square metres) in area or is required for the widening and/or drainage of an existing highway, and that it is unnecessary to give other land in exchange.

Before issuing a certificate under s.19 of the ALA’81, the Secretary of State must direct the local authority to give public notice of his intention to issue a certificate; consider any objections made in response to the notice; and arrange for a public local inquiry in any case where it appears to him to be expedient to do so, having regard to any representations or objections made in response to the notice, and consider the report of the inspector appointed to such inquiry.

If a local authority proposes to make an order to appropriate common or allotment land under s.229 (1) TCPA’90 and to submit an application for a certificate under s.19 ALA’81, it should simultaneously submit the draft appropriation order to the National Planning Casework Unit (NPCU) which is responsible for confirming orders under s.229 TCPA’90 on behalf of the Secretary of State; and submit an application for a certificate under s.19 ALA’81 to the Common Land Casework Team at the Planning Inspectorate which is responsible for processing applications for a certificate on behalf of the Secretary of State.

In the event that an appropriation order under s.229 (1) TCPA’90 is subject to special parliamentary procedure, any confirmation of the order by the Secretary of State would be made subject to the Statutory Orders (Special Procedure) Acts 1945 and 1965. In summary, special parliamentary procedure means that following the Secretary of State's decision to confirm the appropriation order, the order is laid before Parliament, after giving three days' notice in the London Gazette; if a petition of general objection or amendment is lodged within a 21 day period, it will be referred to a joint committee of both the House of Commons and the House of Lords to consider and report to Parliament about whether to approve; and if no petition is lodged, the confirmation is usually approved without such referral.

A principal council can appropriate land consisting or forming part of an open space under s.122 (2A) LGA’72. There is no limit on the size of the open space area that can be so appropriated. Open space is defined in s.336 (1) TCPA’90 as any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground. 

Before appropriating open space land, a council must by virtue of s.122 (2A) LGA’72 advertise its intention to appropriate open space land for two consecutive weeks in a newspaper circulating in the local area; and consider any objections to the proposed appropriation.

If a principal council appropriates open space land under s.122 (2A) LGA’72, it is released from any trust for the enjoyment of the public imposed by s.164 Public Health Act 1875 or s.10 Open Spaces Act 1906 (s.122 (2B), LGA’72).

Appropriation for Planning Purposes

S.226 TCPA’90 authorises a local authority to acquire compulsorily any land in their area for planning purposes. 

This acquisition can take place if the local authority thinks that the acquisition will facilitate the carrying out of development, redevelopment or improvement on or in relation to the land or the proposed development, redevelopment or improvement is likely to contribute to achieving the promotion or improvement of the economic, social or environmental well-being of the whole, or any part, of their area in the interests of the proper planning of an area in which the land is situated.

A decision to appropriate land for planning purposes under s.226(1) TCPA’90 must indicate which of the two alternative purposes is being exercised (DCLG: Circular 06/04: Compulsory Purchase and The Crichel Down Rules (October 2004), Appendix A, paragraph 4).

The use of the words "on, or in relation to" in s.226 (1) (a) means that the scheme of development, redevelopment or improvement for which the land needs to be acquired does not have to take place on the appropriated land so long as its appropriation can be shown to be related to the successful implementation of the scheme (see Appendix A, paragraph 5).

The well-being benefits in s.226 (1A) encompass cultural well-being and the promotion or improvement of the health of local authority's residents, or visitors to the area (see DCLG: Power to promote well-being of the area: statutory guidance for councils (February 2009)) and there must be a connection between the well-being benefits derived under s.226 (1A) and the permitted development, redevelopment or improvement (see R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20).

An authority may appropriate land under s.226 (1) (b) only where it is "required" for a specified purpose. The High Court has upheld the use of the s.226 (1) (b) power where the purpose was to prevent inappropriate development (unauthorised development by travellers) on land that, in the opinion of the local planning authority, should not be left in a derelict or neglected state but put to a suitable use (see Sharkey v Secretary of State for the Environment [1990] 2 EGLR 191). The court accepted the Secretary of State's view that this aim was in the interests of the proper planning of the area. When the Court of Appeal heard the same case, it held that the word "required" in s.226 (1) (b) means more than "convenient" and less than "indispensable"; it means "necessary in the circumstances of the case" (see Sharkey v Secretary of State for the Environment [1992] 63 P and CR 332). 

Under s.226 (3) TCPA’90, a local authority may also acquire compulsorily (and therefore appropriate) any adjoining land which is required for the purpose of executing works for facilitating the development or use of the primary land or land to be given in exchange for any of the primary land which is common land to be appropriated under s.229 TCPA’90; open space land; or fuel or field garden allotment land.

If a local authority appropriates land for planning purposes, it can by virtue of s.235 (1) TCPA’90 in relation to that land erect, construct or carry out any building or work unless an alternative statutory power exists for such work under another statute; repair, maintain and insure any buildings or works on such land; and generally deal with such land in a proper course of management.

It is not a precondition to the appropriation of land for planning purposes that the local authority undertakes any subsequent development of the land themselves (see s.226 (4) TCPA’90). Land may also be appropriated for the purpose of being sold or leased to the private sector under s.233 TCPA’90.

I do not propose dealing in this piece with compulsory acquisition under the Development Consent regime contained in the Planning Act 2008 which deals with nationally significant infrastructure projects.

Disposals

Under s.233 (1) TCPA’90, a local authority can dispose of land appropriated for planning purposes to such person, in such manner and subject to such conditions as appear to the local authority to be expedient to secure either: the best use of that or other land and any buildings or works which have been, or are to be, erected, constructed or carried out on it (whether by the authority or by any other person); or the erection, construction or carrying out on it of any buildings or works appearing to the authority to be needed for the proper planning of its area. 

A disposal of land under s.233 TCPA’90 includes a sale of the freehold interest, granting a lease, assigning any unexpired term of a lease or the granting of easements.

A local authority must, by virtue of s.233 (3) TCPA’90, dispose of the land for the best consideration it reasonably can obtain, unless the Secretary of State consents to the disposal although disposals by way of a short tenancy are exempted from this rule. Consideration in the context of a disposal of land under s.233 TCPA’90 means the price payable for the land. 

The Secretary of State cannot give a general consent for the disposal of land held for planning purposes at less than best consideration under s.233 TCPA’90, so local authorities must apply to the Secretary of State each time this consent is required. 

However, in England only, the Secretary of State can, by virtue of s.233 (3A), TCPA’90, as inserted by the Growth and Infrastructure Act 2013 (GIA’13), give consent, either unconditionally or subject to conditions, in relation to particular disposals or a particular class of disposals; or local authorities generally or local authorities of a particular class. A local authority should apply for consent to the NPCU, who will review the application on behalf of the Secretary of State.

The consent of the Secretary of State is also required to the disposal of land which is or was common land and which is held or managed under a local act. A local authority should apply for consent under s.233 (2) TCPA’90 to the NPCU, who will review the application on behalf of the Secretary of State. This application could be submitted alongside an application for confirmation of an appropriation order under s.229 of the TCPA’90, where the intention is to appropriate common land for planning purposes and then sell or lease such land to a developer.

Before disposing of any land consisting of, or forming part of, an open space, a local authority must under s.233 (4) TCPA’90 both: advertise its intention to dispose of the open space land for at least two consecutive weeks in a newspaper circulating in the local area; and consider any objections to the proposed disposal.

Where the intention is to appropriate open space land for planning purposes and then to sell or lease such land to a developer, a local authority could run advertisements required under s.122 (2A) LGA’72 and s.233 (4) TCPA’90. 

If the local authority has appropriated land for planning purposes for a reason mentioned in s.226(1) (a) or (3) TCPA’90, the power of disposal set out in s.233 TCPA’90 must be exercised to provide the occupiers of this land, "so far as may be practicable", the opportunity to relocate on such land if the occupier:

• Was living or carrying on business or other activities on the land.
• Desires to obtain accommodation on such land.
• Is willing to accept the authority's requirements as to the land's development and use.

The High Court has construed the term "so far as may be practicable" narrowly, holding that the words mean that it is for the local authority to decide whether or not it is practicable (see A Crabtree and Co v Minister of Housing and Local Government (1965) 17 P and CR 232).

Easements

A local authority can override easements and other rights in land that has been appropriated for planning purposes under s.237 of the TCPA’90.

The local authority is authorised 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 either of the following:

• An interference with an easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.
• A breach of a contractual restriction on the use of the land.

This power to override rights extends not only to the local authority, but also to any person deriving title under them following a disposal under s.233 TCPA’90. The owner of any such third party right will have a claim for compensation, which will be assessed on the basis of the loss in value of the claimant's land as a consequence of the interference or breach. If a person deriving title under an appropriating authority fails to pay compensation due under s.237 (4) TCPA’90, the liability can be enforced against the appropriating authority. 

The power to override easements and other rights in land appropriated for planning purposes is subject to s.237 (3) of the TCPA’90. This prohibits interference with any right of way, or right of laying down, erecting, continuing or maintaining apparatus on, under or over land which is one of the below:

• A right vested in, or belonging to, statutory undertakers for the purpose of the carrying on of their undertaking.
• A right conferred by, or in accordance with, the electronic communications code, or the operator of an electronic communications code network.

S.271 of the TCPA’90 provides a procedure for resolving conflicts between statutory undertakers and an appropriating authority, where the undertaker has apparatus on, or rights relating to, land that has been appropriated for planning purposes. 

Under s.271 (2) of the TCPA’90, if the appropriating authority is satisfied that the extinguishment of the right or the removal of the apparatus is necessary for the purpose of carrying out any development of the appropriated land, the authority can serve notice on the statutory undertaker either:

• Stating that at the end of the relevant period, the right will be extinguished (s.271 (2)(a)).
• Requiring that before the end of the relevant period, the apparatus must be removed (s.271 (2)(b)).

“Relevant period” in this context means the period of 28 days from the date of service of the notice, or any longer period as may be specified in it, for that right or apparatus.

If the statutory undertaker objects to the notice, the appropriating authority can apply to the Secretary of State and the appropriate minister, for an order confirming the provisions of the notice, with or without modification.  The appropriate minister will be either the Secretary of State for Transport, the Secretary of State for Trade and Industry or the Secretary of State for Communities and Local Government, depending on the nature of the undertaking.

A statutory undertaker is entitled to be compensated for the extinguishment of any rights or the imposition of any requirements under s.271 of the TCPA’90. The amount of compensation may include: costs reasonably incurred in acquiring the land and carrying out any necessary works pursuant to the requirements (s.280 (2) (a), TCPA’90); loss of profits (s.280 (2) (b), TCPA’90); and expenditure reasonably incurred by the statutory undertaker in removing apparatus (s.280 (2) (c), TCPA’90). A statutory undertaker can also choose to instead take compensation on the basis of a reduction of the value of the interest in the land, in accordance with the normal land compensation rules (s.281, TCPA’90).

Consecrated land 

Consecrated land (other than a burial ground) can be appropriated for planning purposes under s.122 of the LGA’72 but restrictions are imposed on its subsequent use by ecclesiastical law.

Any restrictions imposed by ecclesiastical law on the use of such land can be overridden by any person under s.238 of the TCPA’90, if both of the following apply that is to say the land is put to use by that person in accordance with planning permission; and the prescribed requirements have been complied with.

The prescribed requirements are contained in the Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950 (the Regulations), which provide that:

• No consecrated land may be used for any purpose by the appropriating authority, so long as any church or other building previously used for religious worship (or any part of such building) remains on the land, without the consent of the bishop of the diocese (regulation 3(1)).
• The use of the land may be restricted (regulation 3(a)).An opportunity must be provided for the removal of fittings and fixtures (regulation 4). 
• The church registers must be forwarded to the Registrar General (regulation 5).
• Requirements must be observed in the removal and re-interment of human remains and the disposal of monuments and tombstones (regulations 7 to 17).

Burial grounds

Restrictions are also imposed by ecclesiastical law on the use of burial grounds. These restrictions can be overridden by any person under s.239 of the TCPA’90, subject to both; the requirement that the land is put to use by that person in accordance with planning permission; and the requirements contained in the Regulations as to the removal and re-interment of human remains and the disposal of monuments are met.

Common land, open space and allotment land

S.241 (1) of the TCPA’90 provides that any common land, open space land, or fuel or field garden allotment appropriated by a local authority for planning purposes may be used by any person in any manner in accordance with planning permission, notwithstanding any provision contained in any other statute.

The expression "use" is widely defined under s.246 (3) of the TCPA’90 for the purposes of this section so as to include building and maintenance works.

This provision overrides the protection given to land registered as a town or village green under the Commons Act 2006 (see BDW Trading Ltd (t/a Barratt Homes) v Spooner representing the Merton Green Action Group and another [2011] EWHC 37 (QB)).

Rights of possession

Under s.242 of the TCPA’90, a local authority can override the provisions conferring security of tenure on residential occupiers under the Rent Act 1977 or Part 1 of the Housing Act 1988. However the appropriating authority: may be liable to make a home loss payment (s.29 Land Compensation Act 1973 (LCA’73)); to make a disturbance payment (s.37 LCA’73); and / or to rehouse displaced occupiers where suitable alternative residential accommodation on reasonable terms is not otherwise available to them (s.39 LCA’73.).

Challenges

A decision of a local authority relating to the appropriation of land or its subsequent disposal can be challenged if the local authority has acted ultra vires that is to say beyond or outwith its statutory powers, or has not carried out the correct legal procedures in making the order. A claim should be made by judicial review (under Part 54 of the Civil Procedural Rules) no later than six weeks from the date on which the grounds for the claim first arose.