Issue details

As well as having powers to control development, the Council also has powers to help enable development to go ahead. Sometimes schemes which are acceptable or desirable in planning terms cannot be implemented because of private land ownership rights. The Council has powers, for example, to use compulsory purchase powers to help with site assembly.

Sometimes, approved development cannot be implemented because of restrictive covenants. The Council, as planning authority, has statutory powers to override restrictive covenants to enable development to go ahead, subject to payment of compensation. Where land affected by covenants is owned by the Council itself, it does this by “appropriating” the land to planning purposes. This means a decision to change the stated purpose for which the Council owns and holds the land.

The Council has given planning permission for development of land near Dunmow. The permission is for development of up to 790 dwellings on a 53.2 ha site to the west of Woodside Way.  The development includes the provision of a primary school, a community building, sports pitches and pavilions. The development will help to provide housing in Uttlesford and will also lead to the provision of valuable community facilities.

The planning consent and the associated s106 agreement (“the Section 106 Agreement”) contemplate access across Council land to the highway on Woodside Way and dedication for highway purposes. However, covenants in an earlier agreement between the Council and a neighbouring landowner (Wickford Development Company Limited - “Wickford”) would prevent any such dedication or use of that land for the purposes of a road giving access to Woodside Way. Wickford has brought High Court proceedings against the Council and is seeking an injunction to prevent the Council granting full access across its land and to prevent the Council dedicating the access road as public highway. In the alternative it is seeking damages against the Council.

This report recommends that the Council uses its statutory powers under section 122 Local Government Act 1972 to appropriate the land needed for the access (“the Subject Site”) from open space purposes to planning purposes. The effect of this, in short, will be to override the restrictive covenants by virtue of section 203 Housing and Planning Act 2016. This will allow the development to go ahead as permitted. Wickford would no longer be able to seek to stop the access and public highway dedication of the Subject Site but would still be entitled to claim compensation for any loss suffered.

The Subject Site is currently held for open space purposes as part of a larger area of land (“the Council’s Land”) and therefore special protection applies. There is a two-stage process for appropriating open space land to another purpose. The first is to make a decision “in principle”, to advertise this and to invite objections. The second stage is to give proper consideration to any objections received and then to decide whether or not to go ahead with the appropriation.

The Cabinet is being asked to make the first stage “in principle” decision to appropriate the Subject Site. It will need to consider at a future meeting any representations made before making a final decision.