The Overriding Power currently contained in Section 203 of the Housing and Planning Act 2016 overrides easements and covenants and allows development of encumbered land to proceed without risk of an injunction. It has a similar effect to compulsory purchase powers, as it interferes with individuals’ rights, but is not subject to the same rules and central government control as compulsory purchase powers. Lack of knowledge in this area leads to potentially unfair decision-making processes. This paper aims to respond to this situation by examining the use of Overriding Power Schemes (“OPSs”) in England. An OPS involves a local authority entering a purchase and sale or leaseback arrangement with private landowners to engage the Overriding Power and was described by one rightsholder affected by an OPS as a “devious and risible device”.
To understand how local authorities use OPSs, the author undertook a literature review, doctrinal research, a survey of local authorities and developed two case studies based on documentary analysis.
The case law analysis and the case studies highlighted difficulties with the current regime. In particular, the absence of an obligation on local authorities to consult with rightsholders, a lack of central government guidance, the use of a land transaction to engage a statutory power and a questionable set of rules relating to compensation.
This work is the first known comprehensive analysis of OPSs in England. The research is significant because it looks beyond the reported case law to examine the circumstances in which local authorities are willing to use these powers. In doing so, the research exposes an inconsistent approach to the decision-making process and the need for greater clarity about when OPSs should be used.
