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Question: Discuss the third-party rights that can exist over land and the implications these can have for future land owners who wish to develop their land.

04 Oct 2022,3:53 PM

 

Mr Johnson, an elected councillor and member of a local authority’s Planning Committee, agreed to sell a large plot of land he owned within the local authority’s administrative area to a local development company who agreed to purchase the land only if it received planning permission for 1000 houses. The company subsequently submitted an outline planning application for the site. This included an ownership certificate that stated that the company owned the land although, at the time the application was submitted, it still belonged to Mr Johnson.
Property prices in the local authority area are high and housing affordability is a growing issue. Nevertheless, in the Authority’s local plan, which was adopted around two years earlier, the land which was the subject of the planning application is designated as being within the green belt and not allocated for development. However, political control of the local authority changed at the last local government elections (some six months earlier), and the leaders of the new controlling group are in favour of new housing development, especially to meet the needs of elderly local people.
Mr Johnson attended the subsequent planning committee meeting which determined the application, although he didn’t speak and abstained from voting. The members of the new controlling political party had been threatened with disciplinary action from the party if they failed to support the application. The subsequent decision was not unanimous but there was a small majority in favour of granting planning permission, subject to a condition reducing the overall number of houses to 800 and a section 106 agreement making provision for:
(a) off-site highway works, including construction of a nearby new dual carriageway road (which would not directly link to the proposed site) to be paid for by the developers as the existing roads in the area were already fairly congested;
(b) the sale of 200 of the new dwellings to people over the age of 60 at a discount of 50 percent of the normal market price;
(c) a one-off payment of an additional £500,000 towards the provision of sheltered accommodation for elderly people elsewhere within the council's area.
The application was not advertised as a departure and the development company indicated that they would be prepared to accept these provisions which would be in addition to the local authority’s usual charges under their approved Community Infrastructure Levy (CIL). However, a nearby land-owner considered the outcome of this planning application to be unfair and inconsistent as she had previously owned the land in question but her application for a similar housing development on the site had been refused some 18 months earlier on the grounds that no departures from the local plan could be permitted. She had subsequently sold her land, at agricultural land value, to Mr Johnson.

With reference to relevant legislation, regulations and associated case law, discuss the potential legal issues raised by this planning application process and evaluate whether the nearby land owner has any grounds for legally challenging the outcome of the planning application.

 

QUESTIONS 2-6 
2. With reference to relevant case law, discuss how the definition of development has been interpreted by the Courts in respect of either operational development or material changes of use.

3. Discuss the role of the statutory development plan when determining a planning application and whether this has changed since the publication of the National Planning Policy Framework (NPPF) in 2012 and its subsequent revisions.

4. Outline the advantages and disadvantages of the different procedural methods that a planning appeal, under section 78 of the Town and Country Planning Act 1990, might be determined. Then, with reference to relevant case law, discuss how the Courts have applied the concept of natural justice when determining legal challenges to planning appeal decisions.

5. Outline the powers available to local planning authorities to remedy breaches of planning control and the circumstances under which an interested party can appeal against an enforcement notice. Discuss whether you consider these powers to be adequate.

6. Discuss the third-party rights that can exist over land and the implications these can have for future land owners who wish to develop their land.

 

Expert answer

 

There are a number of different third-party rights that can exist over land, which can have implications for future owners who wish to develop the land. These rights can include things such as easements, covenants, and other restrictions on the use of the land.

 

Easements are perhaps the most common type of third-party right that can exist over land. An easement is a right of way that allows someone to use another person's land for a specific purpose. For example, an easement might allow a utility company to run power lines across a piece of property.

 

Covenants are another type of third-party right that can exist over land. A covenant is a legally binding agreement between two parties that restricts the use of the land in some way. For example, a covenant might restrict the height of a building that can be constructed on a piece of land.

 

 

Other restrictions on the use of land can also exist, such as zoning regulations imposed by a municipality. These types of restrictions can have a significant impact on the development potential of a piece of land.

 

When considering purchasing land, it is important to be aware of any third-party rights that exist over the property. These rights can limit what can be done with the land, and should be taken into account when making any decision about whether or not to purchase it.

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