
Expedite a CPO with s203 powers
July 31, 2021by Askival Director Tony Draper MCIH
As a CPO project manager, I often recommend that councils grant approval to engage their s203 powers at the same time as seeking a CPO resolution. This is because s203 of the Housing and Planning Act 2016 gives a council the power to legally override property rights such as rights to light, easements, covenants and rights of way, and so remove significant obstacles to the delivery of the project.
It is important to understand, however, that while these rights are overridden, they do not disappear but are instead converted from a potential right to injunct to a potential right to compensation. As a result, while the scheme may yet have many difficulties to overcome it will no longer be subject to the risk of injuction.
The implementation of s203 powers can be a much faster process than that of a CPO when properly used and brings the benefit of allowing works to commence more quickly if the scheme does not require any land acquisition.
The requirements for engaging s203 are as follows:
- planning consent has been granted for the building or maintenance work
- the land would need to be appropriated by a local authority for planning purposes
- the authority could acquire the land compulsorily for the purposes of the building or maintenance work, and
- the building or maintenance work relates to the purposes for which the land was vested, acquired or appropriated.
For non-local authority schemes, to facilitate this approach there would need to be a transfer of land where the local authority acquires the land owned by the registered provider/developer, utilises its powers under s203 and immediately transfers the land back to the original party to undertake the development. Clearly, many issues are associated with such transactions, SDLT being not the least of them, and professional advice is essential in each case.
However, sometimes the arrangements are comparatively straightforward, such as in phased schemes where vacant possession has been successfully secured and the CPO process would not have to be used to deal with any remaining property rights. Instead, the CPO can be replaced with s203 powers with confidence that the scheme can proceed without the risk of challenge.
To support this process, a right to light (RtL) study is carried out on the impacts arising from the scheme and arrangements made for settlement negotiations to cover compensatable impacts. Land referencing identifies any other affected land interests. To be eligible for compensation, the affected party must demonstrate a diminution in the value of their property interests (s204 HAPA). While there is a tried and tested methodology for doing this for RtL claims, the position is far less clear in relation to easements, rights of way etc., with a counter-argument being available that the development scheme will largely add value to neighbouring properties once complete.
For more information, or to discuss other issues relating to CPOs or s203, please contact Tony Draper:
07878 160306