Overriding easements and other rights
Overriding easements and other rights

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Overriding easements and other rights
  • Introduction
  • What does section 203 enable?
  • Who can benefit from section 203?
  • What conditions apply to the exercise of section 203?
  • Procedure for overriding rights
  • Indemnity/legal costs
  • Identifying overridden rights in property transactions
  • Options for owners of overridden rights
  • Tactical use of power to aid development
  • more

Introduction

Section 203 of the Housing and Planning Act 2016 (HPA 2016) confers powers to override easements and other rights benefitting adjoining land in connection with development. HPA 2016, s 203 came into effect on 13 July 2016 and extended and replaced the powers set out in section 237 of the Town and Country Planning Act 1990 (TCPA 1990). It applies to England and Wales.

HPA 2016, s 203 (and its predecessor, TCPA 1990, s 237) has in recent years been relied on in high-profile developments to overcome rights of light and other easements or restrictive covenants threatening to prevent projects from progressing. In practice, where a particular development programme is at risk due to the inability to agree the release of certain rights, developers have requested that the local authority intervenes by using its powers to appropriate or acquire the development site (or part of it) to then trigger the power in HPA 2016, s 203. Once the site (or part of it) has been appropriated or acquired, engaging section 203, the local authority can transfer the site back to the developer with the benefit of section 203 (although they should note the requirements to obtain best consideration or fall within the general disposal consent—see Practice Note: Achieving best consideration on disposal and General Disposal Consent 2003). The developer