[2024] UKUT 370 (LC)

The Tribunal’s powers to award costs are set out in rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (‘the Rules’) which were last updated on 1 May 2024. So far as relevant, rule 10 states that:

Section 203, 2016 Act is headed “Power to override easements and other rights”. It provides:

The work to which this power applies is described in section 203(2). It is work for which there is planning consent, and which is carried out by a public authority for the purposes for which the planning permission was granted, on land which the authority could acquire compulsorily. A relevant right or interest is defined in section 205(1) and means any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land (including any natural right to support). The effect of section 203 is therefore, as the heading indicates, to enable local authorities to override easements and similar rights, including restrictive covenants (as these are restrictions as to the user of land arising by virtue of a contract, and therefore fall within section 203(1)(b)(i) above).

The policy that underlies section 203, 2016 Act is the same as the policy behind section 237, Town and Country Planning Act 1990, which was identified by Dyson J in R v. City of London Corporation & Royal Mutual Insurance Society ex p Mystery of the Barbers [1997] 95 LGR 459 at p.464:

“The statutory objective which underlies section 237 of the 1990 Act is that, provided the work is done in accordance with planning permission, and subject to payment of compensation, the local authority should be permitted to develop its land in the manner in which it, acting bona fide, considers will best serve the public interest. To that end, it is recognised that a local authority should be permitted to interfere with third-party rights. A balance has to be struck between giving local authorities freedom to develop land help for planning purposes, and the need to protect the interests of third parties whose rights are interfered with by local authority development. Section 237(1) is the result of the balancing exercise. Parliament has decided to give local authorities the right to develop their land and interfere with their party rights, but on the basis that work is done in accordance with planning permission (with the protection inherited in the planning process), and that third parties affected our entitled to compensation under section 237(4).”

Section 204(1), 2016 Act concerns ‘compensation for overridden easements etc’. It provides for the payment of compensation for any interference with a relevant right or interest or breach of a restriction that is authorised by section 203(1). The compensation is to be calculated on the same basis as compensation payable under sections 7 and 10 of the Compulsory Purchase Act 1965 (section 204(2)), and any dispute about the compensation payable is to be determined by the Upper Tribunal (section 204(5)).