Section 203 As A Regeneration Tool

It has now been two years since s203 of the Housing and Planning Act 2016 became operative, replacing s237 of the Town and Country Planning Act 1990 (TCPA). While s203 does not entirely resemble its predecessor, this does not appear to have dampened or affected the development industry's confidence on the benefits of using the provision, and it continues to be utilised as part of the development process.

Section 203 is a useful tool for de-risking development. Its purpose and effect is to allow third-party rights in or over land to be lawfully interfered with. It enables development to take place, free from a threat of injunction, where it would otherwise stall pending negotiations and resolution being reached with a third party.

The main differences introduced by s203 (when replacing s237) include:

extending the scope of bodies capable of engaging section 203 powers to not only local authorities, but to other bodies with compulsory purchase powers, such as the GLA and certain statutory undertakers in relation to land; and expressly permitting the use of s203 where a breach of a restriction or interference with a right arises by either the building works associated with the development or its actual use. The benefits of s203 as a regeneration tool are widely accepted. However, guidance on the administrative process to be followed when utilising it is distinctly lacking.

This is all the more unhelpful when its use is akin to the use of compulsory purchase order (CPO) powers given its purpose is to permit interference with individual property rights. Secondary legislation (Compulsory Purchase of Land (Prescribed Forms) (Ministers) Regulations 2004) sets out the administrative process to be followed when making a CPO, the purpose being to ensure that anyone with a property interest is formally alerted to the interference and has the right to object to the use of a CPO. Similarly, detailed guidance ('Compulsory Purchase process and the Crichel Down Rules: guidance') has been issued by the government to be adhered to when using CPO powers. A raft of other public law requirements should also be assessed when utilising CPO powers, such as the Public Sector Equalities Duty, consideration of human rights impact and the need for there to be a compelling case in the public interest for interfering with or acquiring third-party interests.

No such guidance exists for the use of section 203 powers. As a consequence, there is a lack of consistency between public bodies when seeking to utilise s203, albeit a more formalised approach is evolving through practise.

Scope

Section 203 authorises interference with rights as long as they are 'annexed to land' and/or 'adversely affecting other land' (ie a dominant and servient tenement relationship). Section 203 powers are usually...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT