Local government — Power to appropriate land — Overriding of restrictive covenants — Whether land appropriated so that restrictive covenant overridden under what is now section 237 of the Town and Country Planning Act 1990
The plaintiffs
were the freehold owners of a piece of land comprising 1.5 acres at Kenley,
Surrey. On it stands Malvern House. The land and house had been purchased in
1950 by Surrey County Council for use as a children’s home. Following the London
Government Act 1963, the plaintiffs became the children’s authority for the
area served by the home, which consequently became vested in the plaintiffs,
although it was physically situated in the adjoining London Borough of Croydon.
The 1950 conveyance was expressed to be subject to restrictive covenants
contained in a conveyance of December 21 1882. One of the covenants provided
that not more than one residence should be erected on each acre of the land
conveyed. The defendants were, for the purposes of the proceedings, treated as
entitled to the benefit of the covenant. In 1981 the plaintiffs decided to
discontinue the use of the house as a children’s home and sell the property. In
1984 outline planning permission was obtained for the property, from Croydon
London Borough Council, for its redevelopment by the erection of 10 detached
two-storey houses. Following the claim by the defendants to the benefit of the
restrictive covenants, the plaintiffs passed a resolution ‘that, pursuant to
section 122 of the Local Government Act 1972, the site of Malvern House . . .
be appropriated from social services to planning purposes’. The plaintiffs
hoped that in this way they would obtain the benefit of section 127 of the Town
and Country Planning Act 1971 (now section 237 of the Town and Country Planning
Act 1990), which provides for the overriding of easements and other rights on
land which have been appropriated by a local authority for planning purposes.
The plaintiffs sought a determination as to whether the site of Malvern House
had, for the purposes of section 127 of the 1971 Act and section 237 of the
1990 Act, been validly appropriated for planning purposes. On behalf of the
defendants it was contended that the plaintiffs had to show that they had
acquired or appropriated the land for some purpose connected with their
planning functions. The land need not necessarily be in the plaintiffs’ area,
but there had to be some nexus between the interest of their inhabitants and
the acquisition of the land other than purely financial.
122 of the Local Government Act 1972 provides that a council may appropriate
for any purpose for which they have power to acquire land by agreement. The
plaintiffs could acquire land by agreement for planning purposes; at the time
of the 1988 resolution, the power was found in section 119 of the 1971 Act.
There was power to acquire by agreement land even though it is not in a
council’s area. The land could not have been acquired by agreement for the
purposes for which the plaintiffs were proposing to use it, namely to sell for
redevelopment. Under section 112 of the 1971 Act, which is referred to by the
relevant power to acquire by agreement in section 119 of the Act, it is
necessary to show that the land is required ‘to secure the carrying out of one
or more of the following activities, namely, development re-development and
improvement’ or ‘for a purpose which it is necessary to achieve in the
interests of proper planning of an area in which the land is situated’.
Sections 112 and 119 occur in a part of the Act devoted to positive planning,
not merely control and enforcement of planning. It enables an authority to take
positive steps to go about the development of their area and not merely to
control the activities of others. The proposed sale of the land for development
pursuant to the planning permission granted by Croydon London Borough Council
is not an acquisition or appropriation of land for planning purposes of either
Sutton or Croydon.
No cases are
referred to in this report.
This was an
application by way of originating summons for the determination of the validity
of a resolution passed by Sutton London Borough Council appropriating land for
planning purposes.
Peter Rawson
(instructed by the solicitor to Sutton London Borough Council) appeared for the
plaintiffs; Andrew Tait (instructed by Cumberland Ellis Piers) represented the
defendants.
Giving
judgment, JUDGE BAKER said: The plaintiffs, Sutton London Borough
Council (which I will call ‘Sutton’), are the freehold owners of a piece of
land comprising about 1.5 acres, which fronts on Little Roke Road and Foxley
Road, Kenley, Surrey. There is a substantial house on it known as Malvern
House. The land and the house had been purchased in 1950 by Surrey County
Council for use as a children’s home. Following the reorganisation of local
government, brought about by the London Government Act 1963, Sutton became the
children’s authority for the area served by the home which consequently became
vested in Sutton although it was physically situated in the adjoining London
Borough of Croydon.
The conveyance
of 1950 was expressed to be subject to restrictive covenants contained in a
conveyance of December 21 1882. One of the covenants provides that not more
than one residence should be erected on each acre of the land conveyed. That
land had an area of 4 acres and 2 roods and included the land now owned by
Sutton. The defendants are arguably, if not certainly, entitled to the benefit
of the covenant. At all events they are to be treated as so entitled for the
purposes of these proceedings.
In 1981 Sutton
decided to discontinue the use of the house as a children’s home and sell the
property. In 1984 outline planning permission was obtained in respect of the
property from the local planning authority, Croydon London Borough Council, for
the redevelopment of the property by the erection of 10 detached two-storey
houses, with garages and a new access drive. Following the claim by the
defendants to the benefit of the restrictive covenants which would, if
enforceable, preclude the proposed development, Sutton resolved ‘that, pursuant
to section 122 of the Local Government Act 1972, the site of Malvern House . .
. be appropriated
Sutton could obtain the benefit of section 127 of the Town and Country Planning
Act 1971. Section 127 of the 1971 Act has since been replaced by section 237 of
the Town and Country Planning Act 1990 without any material change.
Section 237 is
headed (although that is not part of the section itself, of course) ‘Power to
override easements and other rights’ and it provides as follows in subsection
(1):
Subject to
subsection (3), the erection, construction or carrying out or maintenance of
any building or work on land which has been acquired or appropriated by a local
authority for planning purposes (whether done by the local authority or by a
person deriving title under them) is authorised by virtue of this section if it
is done in accordance with planning permission, notwithstanding it involves —
(a) interference with an interest or right to
which this section applies, or
— and this is
the important one for this case —
(b) a breach of a restriction as to the user of
land arising by virtue of a contract.
I need not
read the rest of this section save only to notice that compensation may be
claimed in respect of any interference or breach. I must, however, refer to
section 246, which is headed ‘Interpretation of this Part’. That part is Part
IX of the Act of 1990. It is headed ‘Acquisition and Appropriation of Land for
Planning Purposes, Etc’ and comprises sections 226-246. The importance of
section 246 is the light it throws on the meaning of planning purposes. I read
subsection (1):
In this Part —
(a) any reference to the acquisition of land for
planning purposes is a reference to the acquisition of it under section 226 or
227 of this Act
that of course
is the 1990 Act —
or section 52
of the Planning (Listed Buildings and Conservation Areas) Act 1990 (or, as the
case may be, under section 112 or 119 of the 1971 Act or section 68 or 71 of
the 1962 Act); and
(b) any reference to the appropriation of land
for planning purposes is a reference to the appropriation of it for purposes
for which land can be (or, as the case may be, could have been) acquired under
those sections.
The question
raised by the originating summons is whether the site of Malvern House was, for
the purpose of section 127 of the 1971 Act and section 237 of the 1990 Act,
validly appropriated for planning purposes by the resolution passed in 1988.
The resolution
refers to section 122 of the Local Government Act 1972 as the section under
which the appropriation was made. That reads:
(1) Subject to the following provisions of this
section, a principal council [which includes Sutton] may appropriate for any
purpose for which the council are authorised by this or any other enactment to
acquire land by agreement any land which belongs to the council and is no
longer required for the purpose for which it is held immediately before the
appropriation; but the appropriation of land by a council by virtue of this
subsection shall be subject to the rights of other persons in, over or in
respect of the land concerned.
The following
subsections of section 122 contain nothing material to this case. By the
resolution Sutton appropriated the land for ‘planning purposes’. This has
always been a purpose for which the council could acquire land by agreement.
The power is to be found in a succession of Town and Country Planning Acts. In
1988, when the resolution was passed, the power was to be found in section 119
of the Town and Country Planning Act 1971, as amended by the Local Government,
Planning and Land Act 1980. That section, as we have seen, is referred to in
section 246 of the 1990 Act.
Turning to
section 119 of the Town and Country Planning Act 1971, a section designated as
‘Acquisition of land by agreement’, I read subsection (1):
The council of
any county, county borough, London borough or county district may acquire by
agreement —
(a) any land which they require for any purpose
for which a local authority may be authorised to acquire land under section 112
of the Act;
(b) any building appearing to them to be of
special architectural or historic interest; and
(c) any land comprising or contiguous or
adjacent to such a building which appears to the Secretary of State to be
required for preserving the building or its amenities, or for affording access
to it, or for its proper control or management.
I should also
read subsection (2), although it had ceased to have effect at the time of the
resolution:
(2) The powers conferred by subsection (1) of
this section shall not be exercisable by a council except with the consent of
the Secretary of State, unless the land which is to be acquired either —
(a) is immediately required by the council for
the purpose for which it is to be acquired; or
(b) if it is not so required, is land within the
area of the council.
It will be
seen from this subsection that land outside the council’s area could be
acquired by agreement, although the consent of the Secretary of State had to be
obtained if the land was not immediately required for planning purposes. It has
been submitted to me that the repeal of this provision by the Local Government,
Planning and Land Act 1980, schedule 23, para 8, does not affect the
construction of subsection (1). I was referred to Craies on Statute Law
7th ed 1971 at p414. I accept the submission. Land may be acquired by agreement
even though not in the council’s area. This is to be contrasted with the
compulsory power for planning purposes to which I now come.
It will be
recalled that section 119 referred to land which the local authority may be
authorised to acquire under section 112 as the main purpose, in effect, for
which land may be acquired by agreement, the others being buildings of historic
interest and land connected with them. Section 112(1) has to be read in the
revised form substituted by section 91 of the Local Government, Planning and
Land Act 1980. That was the subsection in force at the time of the resolution.
The substituted subsection reads:
(1) A local authority to whom this section
applies shall, on being authorised to do so by the Secretary of State, have
power to acquire compulsorily —
(a) any land which is in their area and which is
suitable for and is required in order to secure the carrying out of one or more
of the following activities, namely, development, re-development and
improvement;
(b) any land which is in their area and which is
required for a purpose which it is necessary to achieve in the interests of
proper planning of an area in which the land is situated.
Those are the
compulsory powers and they, it will be noted, are confined to land in the area
of the acquiring authority but, as I have indicated, the power to acquire land
by agreement for planning purposes is not so confined.
Mr Rawson, in
his careful submissions for Sutton, took his stand on the interpretation
provision in section 246(1)(b) of the 1990 Act. He had to accept that the
appropriation must be for the purposes for which land could be acquired under
one or other of the sections referred to in subpara (a), but he said it is not
necessary that the land in question could have been acquired by Sutton for
planning purposes. The definition refers simply to ‘land’, not ‘the land’ or
‘that land’. Mr Tait, for the defendants, submitted that, before a local
authority could avail themselves of the power to override easements or
restrictive covenants under section 237, they had to show that they had
acquired or appropriated the land for some purpose connected with the planning
functions of the council. The land need not necessarily be in the council’s
area, but there had to be some nexus between the interest of their inhabitants
and the acquisition of the land other than purely financial. If this were not
so, he said, it would be possible for a local authority in Sussex to acquire
land in Northumberland. In reply Mr Rawson was unable to suggest that it was
appropriated to facilitate the exercise by Sutton of their own planning
purposes. But he said it was sufficient that the purpose of the appropriation
was to enable a local authority (Sutton) to secure development in accordance
with planning permission granted by another (Croydon).
I am unable to
accept Mr Rawson’s submissions. I start from this. The power to appropriate
land already owned for a specific purpose is no greater than the power to
acquire land by agreement for the same purpose. That seems clear from the terms
of section 122 of the Local Government Act 1972 which Sutton invoked in this
case. I cannot regard the definition in section 246 of the Town and Country
Planning Act 1990 as enlarging in some way the power of appropriation. So the
question is, could the land have been acquired by agreement for the purposes
for which Sutton are proposing to use it?
The answer must be no. The relevant power to acquire by agreement is in
section 119 of the Town and Country Planning Act 1971 (now section 227 of the
1990 Act). That refers to the compulsory powers under section 112 of the 1971
Act. Under section 112 it is necessary to show that the land is required ‘to
secure the carrying out of one or more of the following activities, namely
development re-development and improvement’ or ‘for a purpose which it is
necessary to achieve in the interests of the proper planning of an area in
which the land is situated’.
Sections 112
and 119 occur in a part of the Act devoted to positive planning, not merely
control and enforcement of planning. It enables an authority to take positive
steps to bring about the development of their area and not merely control the
activities of others. Hence, as I see it, the proposed sale of the land for
development pursuant to the planning permission granted by Croydon London
Borough Council is not an acquisition or appropriation of land for planning
purposes of either Sutton or Croydon.
I am therefore
unable to declare that the land in question has been validly appropriated for
planning purposes and accordingly dismiss the summons. In these circumstances
it would not seem necessary to make a representation order.
Originating
summons dismissed. By consent no order as to costs.
