Cab /6.1

Transcription

1 BARNSLEY METROPOLITAN BOROUGH COUNCIL Cab /6.1 This matter is not a Key Decision within the Council's definition and has not been included in the relevant Forward Plan Report of the Director of Finance, Property & Information Services ADpropriation of Land for Planning Purposes - Land at Rotherham Road Lundwood 1. Purpose of Report 1. 1 The purpose of this report is for the Council to formally appropriate its land for planning purposes pursuant to section 122 Local Government Act 1972 to facilitate the development of land which is currently unmaintained open scrub land. 1.2 The effect of appropriating the site for planning purposes is that any third party interest that may exist, become the subject of compensation only and prevent any injunctions being sought that could prevent or further delay the sale of the sites or the redevelopment of the sites. 2. Recommendation 2. 1 That Cabinet approve the appropriation for planning purposes pursuant to section 122 Local Government Act 1972 to facilitate the development of land which land which is currently un maintained open scrub land. 2.2 That the Service Director (Designate) Assets be authorised to appropriate the site from Children Young People & Families and Finance Directorates to the Development Directorate for planning purposes in accordance with the provisions of Section 122 of the Local Government Act That the Director of Legal & Governance be authorised to take all reasonable steps to secure the removal by agreement if possible of any existing rights which could prevent the sites from being developed in the future 3. Introduction 3. 1 The Council acquires and holds property for various statutory purposes in order to perform its functions. The process of changing that purpose without changing the ownership is described as appropriation.

2 3. 2 The Council has the power to acquire and hold property for various statutory purposes to perform its functions. In order to use land for a purpose other than the one for which it was acquired the land must be "appropriated" for a different use. Appropriation is a statutory process, which allows the Council to transfer property within its ownership from one use to another Section 122 of the Local Government Act 1972 enables the Council to appropriate land for any statutory purpose for which it is authorised to acquire land. The Council must, therefore, determine that the land is no longer needed for the original purpose for which it was acquired and appropriate it for planning purposes. 3.4 Appropriation of the land for planning purposes requires the Council to consider the following factors: a) That the appropriation will facilitate the carrying out of development including highway construction, re-development or improvement on or in relation to the land or is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated; b) It will contribute to the promotion of the economic, social and / or environmental wellbeing of the area; c) The provisions of the development plan, whether planning permission is in force and any other considerations that would be material to the determination of a planning application for development of the land; d) That the land is no longer required for the original purpose for which it was acquired 3. 5 Where land is appropriated for planning purposes, it is then held by the Council under the statutoiy provisions of the Town and Country Planning Act The practical consequence of Section 237 of the Town and Country Planning Act 1990 is that the erection, construction or carrying out of any maintenance of any building or work on the land and subsequent use of the land is authorised under those planning powers, if the works are done in accordance with planning permission, even if they interfere with third party rights 3.6 The purpose of Section 237 of the Town and Country Planning Act 1990 is to ensure that where land has been appropriated for planning purposes, then existing third party rights, which could prevent the development of that land from proceeding In accordance with the planning permission, can be overndden. 3.7 The rights are over-ridden whether the Local Authority undertakes the development or whether the land is sold to a third party for them to undertake the development.

3 3. 8 The power contained in Section - d( or me l own and Country Planning Act 1990 does not remove the legitimate rights of owners or occupiers as to compensation which may arise from the interference with such rights, but it does remove the potential for excessive claims and it also removes the potential for such owners or occupiers to frustrate the development by obtaining an injunction to prevent interference with their rights The application of Section 237 of the Town & Country Planning Act 1990 also therefore mitigates the risk of unknown interests existing The land to be appropriated is land at Rotherham Road, Lundwood, which is currently un maintained open scrub land and is shown edged black and hatched on the attached plan The site is currently held by Children Young People & Families and Finance & Property Directorates but is a site which is currently unmaintained open scrub land. The site is not fulfilling any particular purpose at present In accordance with the Asset Management Plan - 3 Year Investment & Disposal Programme (Cabinet / 8. 1) and subsequent site specific reports, the adjacent site has been offered for sale on an informal tender basis and terms have been agreed with a developer Appropriation for planning purposes of this site will facilitate the carrying out of a development on an adjacent which will contribute to the economic, social and environmental wetlbeing of the Borough In preparing the site for market, the adjacent site has been found to be the subject of restrictive covenants. These covenants and any other easements or rights that exist could hamper the sale of the adjacent site and prevent development from taking place. 4. Consideration Of Alternative ApDroaches 4. 1 There is no prescribed procedure for appropriations except insofar as the intention to appropriate public open space land must be advertised. The procedure tends to be a matter of local protocol at Councils and has not tended to be subject to scrutiny Although open and unbuilt upon, this site is not a formal open space and is publicalty inaccessible scrub land In the current risk adverse environment developers are keen to see clean title to sites and this process helps in achieving this position. 4.3 The use of appropriations is to achieve the proper planning of the sites in question. To achieve this they need to be developed or redeveloped and the appropriations will remove uncertainty in this process and bring it forward. 4.4 Based on the above there is no other option but to appropriate this site for planning purposes.

4 5. Proposal and Justification 5. 1 It is therefore proposed that the site be appropriated for planning purposes to permit the sale and redevelopment of the adjacent land. 5.2 Once appropriated, the Council has the power pursuant to Section 237 of the Town and Country Planning Act 1990 to override easements and other rights (including restrictive covenants as mentioned above) 5. 3 Notwithstanding that this constitutes an interference with a third party's interest in land. The owner of such overridden rights then has a right to compensation only, rather than the ability to enforce (by injunction if necessary) the right in question. 6. Implications for local people / service users 6. 1 The sale and redevelopment of these types of sites will deliver new homes and facilities across the Borough and lead to currently vacant / derelict sites being reused 6.2 Corporate priorities will also be met by improving the environment, enhancing satisfaction and quality of life for the local residents. It will also help kick start much needed investment in the Borough. 7. Financial implications 7. 1 The appropriation does not involve any expenditure. If the proposed appropriation does not proceed this will have financial ramificattons to the Council as set out in paragraph 11 below. 7.2 The appropriations should not give rise to any additional revenue or capital costs, but there may be a residual financial risk to the Council associated with the payment of compensation claims if the appropriate indemnity insurances are not entered into. 7.3 There are no undue VAT implications for the Council as a result of this report. 8. Employee implications 8. 1 There are no implications arising from this report. 9. Communications implications 9. 1 There are no communications implications arising from this report.

5 10. Consultations (a) Financial Implications The Financial Services Manager and the Insurance and Taxation Manager on behalf of the Director of Finance, Property & Information Services have been consulted and details are shown in item 7 of the report. (b) Local Members Local ward members are aware of and have been consulted on the Asset Disposal & Investment Programme and fully support the disposal and redevelopment of these sites. (c) Property Implications Asset Management officers will continue to work with the Director of Legal & Governance to appropriate the sites to the Development Directorate for planning purposes (d) Implications for Other Services 11. Risk Management Issues 11.1 It is not known whether any parties having the benefit of the restrictive covenants under the conveyances or any rights or easements across the sites will surface and seek compensation under the Compulsory Purchase Act This risk is considered to be quite low because the parties have not been in contact at any time throughout the marketing of the adjacent site. The adjacent site has been heavily advertised and has been the subject of public planning consultation If this risk is considered to be too great, it would be open to the Council to obtain restrictive covenant Indemnity insurance by way of mitigation If the approphation is not made, the only option available to the Council to satisfy the title condition would be to obtain restrictive covenant indemnity insurance or open discussions with the beneficiaries of the covenant. 12. List of appendices None

6 13. Background papers Correspondence regarding this matter is held on the files in Asset Management - not available for inspection, contains exempt information. Financial Implications/Consultations _.g(/0«4- Office Contact: Jeremy Sykes Telephone No: Date: 6th October

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