Decision

Appropriation of Priory Fields is required
under the statue to facilitate the change of use from its current
open space designation. Statute provides local authorities with a
variety of powers to promote and facilitate development in their
area, and central government encourages proactive use of these
powers to facilitate regeneration and development. Advertisement
(from 15 January 2025 to 13th February 2025) of the intended
appropriation has not resulted in any objections and the
significant public benefits to be derived from the proposed
redevelopment of Priory Fields is of sufficient magnitude to
justify the appropriation of the property under S122 LGA 1972 and
the subsequent use of the powers under Section 203 – 206 HPA
2016 to override third party rights and pay statutory compensation
in respect thereof.

Reasons for the decision

Council Plan Priority: Warfield has been
underserved in terms of community centre facilities compared to
other parts of the borough. The council has not provided a
community centre in Warfield; the community has been served by
Brownlow Memorial Hall, which is owned by Warfield church, however
it is not large enough to meet the needs of this growing community.
The hub will support community engagement, cohesion, and wellbeing;
it aligns with the Council Plan 2023-27 priority to ensure
‘community development and spaces encourage a cohesive and
engaged community’.
To ensure that the Warfield Community Hub development can be
delivered, its benefits be released and that the Council can meet
its obligations under the planning masterplan and the Partnership
Agreement that it has entered into with Warfield Parish Council ,
appropriation must be undertaken to allow the change of use.
Appropriation of the Property will enable the development to
proceed without the risk of adjoining and neighbouring landowners
claiming an injunction on the basis that it will facilitate both
the change of use of the Property’s current designated
purpose as public open space and the ability to override third
party rights (including restrictive covenants) that would be
interfered with by the development using the powers under s203
Housing and Planning Act 2016.
Other options to achieve the objective must be considered before a
decision to appropriate is made, and an assessment made on whether
a change of use is required or if a third party right could be
released in any other way. There is no mechanism for a change of
use from Open Space to a Community Hub other than through
appropriation. The Property is subject to three Restrictive
Covenants. The Council has reached an agreement to vary two of the
covenants so as to accommodate the development of the Property with
one third party beneficiary, however, there is a second third party
beneficiary with whom no agreement has been reached despite initial
indication in 2023 in showing their willingness to do so and it is
therefore considered that other viable legal routes have been
exhausted.
Council Plan Priorities
The hub will support the council’s work on an emerging
communities’ strategy. It will benefit all age groups and
people from all backgrounds including children, young people,
families, working age and older people. The hub will enable people
to meet others; building relationships and strengthening
communities. The activities hosted at the Warfield Community Hub
will enable people to participate, improve their health and
wellbeing, reduce isolation and learn new skills. The Warfield
Community Hub will be designed and managed to be welcoming and
inclusive for all. The Warfield Community Hub is intended to be
open throughout the day, seven days a week. The project will also
deliver a green and sustainable environment through a reduction in
carbon emissions.
Planning Policy
The Site Allocations Local Plan (SALP) allocated land in Policy SA9
for a mixed-use residential-led development at Warfield for the
provision of 2,200 residential dwellings. As part of this, Policy
SA9 includes the requirement to deliver a range of supporting
infrastructure, including a multi-functional community hub as part
of a new neighbourhood centre.
Restrictive Covenants
There are covenants affecting the Property, which was originally
transferred to the Council for use as public open space. These
covenants restrict any development of a residential and commercial
nature on the Property, other than the erection of buildings or
structures incidental to its use as public open space and/or use as
public open space only. The Council has engaged with the known
beneficiaries of the covenants. Two of the three covenants have
been varied. The intention is to similarly vary the third
restrictive covenant, for a nominal sum, and payment of the third
party beneficiaries legal fees. However, as noted above one of the
beneficiaries in the recent months has not progressed this matter.
The Council’s Legal team continue to chase the third
party’s lawyer to progress the variation.
Appropriation Process
Appropriation for planning purposes provides a way for local
authorities to develop land if the land is no longer required for
the purposes for which it is currently held. In reaching this
decision, a local authority must consider the public need within
the area for the existing use, and they must be satisfied that the
land is not now required for that existing use. It may be that the
development interferes with third party rights, such as a right to
light or other forms of easement, or restrictive covenants. Those
factors, together with any objections that may be put forward
either now or at the planning stage, should inform whether it is
indeed proper for a local authority to utilise the appropriation
route.
The appropriation of the Property (which is currently designated as
public open space and used as playing fields) once planning
permission has been obtained for the Warfield Community Hub is
necessary and in the public interest to secure the benefits of
redevelopment of the Property into a community hub including the
access road and a roundabout.
The proposed roundabout on Newell Green and the proposed access
road to be built by the developer of neighbouring land north of the
Property will partly be situated on the Property owned by the
Council and subject to the Restrictive Covenants (referred to
above). Hence, this portion of the Property will also need to be
appropriated for change of use from open space to use for
highways.
Appropriation is required before third party rights can be
overridden using s203 of the Housing and Planning Act 2016. As
such, the Appropriation exercise and subsequent overriding of third
party interests will remove the risk of injunction in relation to
the relevant restrictive covenants burdening the Land (see below),
however, it should be noted that the Council has varied the
covenant with one of the two main beneficiaries and is pursuing
this course of action with the other beneficiary, who are so far
agreeable to releasing the covenants to the extent that allows
development of the Warfield Community Hub to proceed.
In the case of land which is used as open space the Council cannot
Appropriate the land to a different purpose unless it advertises
its intention to do so in a local newspaper for two consecutive
weeks (which public notice must specify the land in question) and
consider any objections, followed by a 28-calendar days objection
period. Part of the Property will function as roundabout, access,
parking and the new Warfield Community Hub. The majority of the
Property will remain in open space use including some ancillary
functions within the community hub and parking. If representations
are made to the Council in response to these notices it is
necessary for the Council to fully consider these representations
and to take them into account in deciding whether to proceed with
the appropriation.
The Council also wrote to the beneficiaries of the restrictive
covenants in mid-January 2025 informing them of the public notice.
No objections or comments were received in relation to the
appropriation notice from any party.
The use of appropriation powers will deliver economic, social or
environmental benefits through the proposed development at the
Property. The principles of the Warfield Community Hub are
to:
•Provide an open and welcoming place thereby providing a great
customer experience and it will offer a wide range of activities
and opportunities.
•To deliver the best facility in partnership with WPC, that is
to a high specification and meets a wide range of needs and
interests.
•To deliver a hub that is a landmark in Warfield
•To support the creation of an inclusive community.
•Warfield Community Hub to be a beacon for sustainable
delivery, combining BREEAM Excellent with Operational Net Zero and
10% Biodiversity Net Gain.
•The site to retain grassland, existing vegetation and deliver
improved playing fields.
The Legal Framework and the Council’s Statutory Powers:
The Council can only hold land for a purpose which it is permitted
to do so by statute. The current purpose for which the Council
holds the Property is for open space. Appropriation can be used
where the Council considers that the land is no longer required for
the purpose for which it is currently held, and the Council would
(in principle) have the power to acquire land for the 'new'
planning purpose – here, the development of the Warfield
Community Hub is a planning purpose because it is a purpose for
which the land could be acquired under sections 226 and 227 of the
Town and Country Planning Act 1990 (TCPA 1990). Once appropriated,
local authorities can develop land even if the development
interferes with third party rights, such as a right to light or
restrictive covenants. Thus, Local Authorities can appropriate land
(subject to being satisfied as to the statutory tests), and, and
then invoke the provisions of the Housing and Planning Act 2016
which enables the interference with property rights to be offset by
the payment of fair compensation.
Accordingly, for the Property to be appropriated for planning
purposes the Council must:
a.be satisfied that the land is not required to be used as open
space
b.have the statutory power to acquire land for planning purposes
(by agreement or compulsion under the TCPA 1990)
c.decide that it would be fitting to make the proposed
appropriation, paying particular regard to any issues raised by
objections and the interference with private rights which will be
consequent upon the appropriation.
Thus appropriation of the Property as provided for under Section
122 of the Local Government Act 1972, permits the Council to engage
Sections 203 and 204 of the Housing and Planning Act 2016, the
effect of which is to prevent injunctions from being sought in
respect of third party rights from benefitting neighbouring
landowners, which might delay or obstruct development. Neighbouring
landowners instead have a right to compensation in accordance with
s204 of the Housing and Planning Act 2016 (and assessed in
accordance with ss7 and 7 of the Compulsory Acquisition Act 1965)
when the development commences. This power to override rights
extends not only to the local authority, but also to any person
deriving title under them following a disposal (which here would
include Warfield Parish Council) whilst the planning purpose
subsists.
It should be stressed that the issues under consideration in this
report are simply whether the proposed appropriation of land and
consequent actions should proceed subject to the grant of planning
consent for the Warfield Community Hub, and the representations (if
any) need to be carefully considered within that context. The
issues surrounding the grant of a planning consent or resolution of
the Planning Committee to grant consent for the development of the
Warfield Community Hub will be fully considered under a separate
statutory process. Currently, planning permission decision is
targeted for January 2026 committee.
Obligation ‘(a)’ – ‘be satisfied that the
land is not required to be used as open space’:
In respect of the first of the obligations of the Council noted
above at ‘(a)’, when contemplating appropriation, a
local authority must give specific consideration to the question of
whether the land continues to be required for its existing purpose
and in doing so, it must consider the comparative needs in the
public interest for the existing use and the proposed new use. It
is not necessary that the land should be surplus or unused. The
Land will provide new access and parking that will serve the open
space, and the Hub will provide facilities such as changing rooms,
toilets and storage facilities that will be ancillary to, and
improve the functionality of, the open space. Further to this,
there would be limited reduction of usable pitch space as a result
of works (a key project objective), and works would include
drainage improvement works where necessary which should improve
playing pitch capacity. Access improvement works would also be
provided by means of a section of the strategic east-west greenway
through the site; facilitating and formalising safer access for
walkers, cyclists and horse riders from the east and west of the
site that would encourage open space and Hub usage.
Obligation ‘(b)’ – ‘have the statutory
power to acquire land for planning purposes (by agreement or
compulsion under the TCPA 1990)’:
In respect of the second requirement (‘(b)’ above) for
the application of section 122 the Council has power to acquire
land by agreement for planning purposes under section 227 of the
Town and Country Planning Act 1990 to facilitate redevelopment if
it is satisfied that the redevelopment would contribute to the
achievement of the promotion of economic, social and/or
environmental well-being of its area. The well-being benefits of
the redevelopment are described as follows:
•Provide an open and welcoming place thereby providing a great
customer experience and it will offer a wide range of activities
and opportunities.
•To deliver the best facility in partnership with WPC, that is
to a high specification and meets a wide range of needs and
interests.
•To deliver a Hub that is a landmark in Warfield
•To support the creation of an inclusive community.
•Hub to be a beacon for sustainable delivery, combining BREEAM
Excellent with Operational Net Zero and 10% Biodiversity Net
Gain.
•The site to retain grassland, existing vegetation and deliver
improved playing fields.
Obligation ‘(c)’ – ‘decide that it would be
fitting to make the proposed appropriation, paying particular
regard to any issues raised by objections and the interference with
private rights which will be consequent upon the
appropriation’:
With regards to the requirement at ‘(c)’ above, the
third-party owner of a property right, restrictive covenant or
easement is entitled to statutory compensation under s203 Housing
and Planning Act 2016 which is calculated as the reduction, or
diminution, of market value of their benefitting property due to
the overriding of their right or interest. In the context of the
development of the Property, those third parties are chiefly those
beneficiaries of the Restrictive Covenants and open space. There is
a risk of judicial review (if persons with a sufficient interest
were to challenge) for a three-month period from the date of the
decision to appropriate, which has been factored into the project
plan. If a judicial review process is triggered, then as a rough
estimate of time, it could take approximately 6 to 12 months to
undertake this exercise, which will have an adverse impact on the
project delivery. As above, a variation has been entered into
between the Council and one of the two known beneficiaries of the
Restrictive Covenants. If a variation is not agreed by the other
beneficiary then that beneficiary would have a compensation claim
following appropriation and exercise of s203 powers. The Council
appointed a specialist surveyor to undertake a valuation of the
beneficiary’s interest and in their view the beneficiary
would have difficulty in demonstrating a depreciation in the value
of their interest on account of this development. As such, the
level of compensation assessed in accordance with the legislation
in relation to the identified interests is likely to be nil.
Consideration must be given to the interference with rights
protected by the Human Rights Act 1998. In this case, a decision to
override restrictive covenants and other rights represents an
interference with rights protected under Article 1 of the Protocol
to the European Convention on Human Rights. (the right to peaceful
enjoyment of possessions) and Article 8 of the European Convention
on Human Rights (right to respect for private and family life, home
and correspondence). Any decision to interfere with such rights
must strike a fair balance between the public interest associated
with the development proposals referred to above and the
interference with private rights.
Specialist valuation advice has been sought, and such advice has
been considered by the Council. Given the clear public benefit
associated with the development proposals referred to in the body
of the report, the fact that there is no feasible alternative means
of achieving that public benefit, and a compelling case in the
public interest for the use of the powers to override rights and
the availability of compensation to those whose rights are
overridden calculated on a diminution in value basis, it is
considered that subject to any strong objections received with the
appropriation process, that the interference with the private
rights of those affected may be lawful, justified and
proportionate.
The costs associated with any proposed settlement of compensation
payments for the part of the Property affected by the highways and
associated fees will be met in whole or in part by the third-party
developer delivering those access/roundabout works.
Considerations
The powers contained within the Local Government Act 1972 and the
Housing and Planning Act 2016 are very useful in allowing
beneficial development and regeneration to proceed, but it is
recognised that use of the powers will have an impact on the
private rights of third parties. It is therefore necessary to
ensure that proper consideration and justification is undertaken
prior to the decision to appropriate and to override third party
rights. As part of this, the Council needs to consider a number of
matters and to comply with best practice and government guidance.
The following considerations have been reviewed in respect of the
proposed appropriation of the Property:
a)Is the use of powers required?
The use of powers is required. Adopted development plan policy SA9
‘Land at Warfield’ requires the development of a
community hub and open space enhancements to support the strategic
housing allocation; for use by local residents, businesses and
visitors. A new roundabout and access road also needs to be built,
primarily for the use of the community hub and wider neighbourhood
centre. It is important to note that within the new hub will
contain facilities ancillary to open space, such as storage,
toilets, café and function space; and open space will
largely be retained in the form of playing fields, car park, LEAP,
terrace, landscaping, greenway and bridleway.
b)Will the use of powers facilitate carrying out of
development?
The use of these powers will facilitate the carrying out of the
planned development of Warfield Community Hub and the supporting
road network. This will provide a new community hub which will
benefit the local community as well as meet the planning
policy.
c)Will the use of these powers deliver economic, social or
environmental wellbeing benefits?
The MHCLG 2019 guidance on use of compulsory purchase and the
Crichel Down rules provides useful guidance. Officers are satisfied
that the use of these powers will deliver economic, social or
environmental wellbeing benefits as set out in paragraph 1.18
below.
d)Is it possible to achieve the benefits without
infringement?
It is not possible to redevelop Priory Fields into a community hub
without infringing the Restrictive Covenants and as the Property is
open space it must be appropriated from this use to another
e)Is it in the public Interest for the underlying development to
proceed?
Officers have carefully considered whether it is in the public
interest for the underlying development to proceed, and are
satisfied that it is, due to the planning obligations for providing
a community centre including a roundabout and access road as well
as making the best and most efficient use of publicly owned land to
support the local community.
f)Do the public benefits outweigh on private rights of the affected
third party?
Officers consider that the public benefits are substantial and
outweigh the impact on beneficiaries of the interference with their
private rights.
Social value will be delivered at the Property through the
development of the Community Hub by the use of the appropriation
powers along with economic and environmental benefits. The
principles of the Warfield Community Hub are to:
•Provide an open and welcoming place thereby providing a great
customer experience and it will offer a wide range of activities
and opportunities.
•To deliver the best facility in partnership with WPC, that is
to a high specification and meets a wide range of needs and
interests.
•To deliver a Hub that is a landmark in Warfield
•To support the creation of an inclusive community.
•Hub to be a beacon for sustainable delivery, combining BREEAM
Excellent with Operational Net Zero and 10% Biodiversity Net
Gain.
•The site to retain grassland, existing vegetation and deliver
improved playing fields.
It is therefore recommended that the significant public benefits to
be derived from the proposed redevelopment of the Property is of
sufficient magnitude to justify the appropriation of the site under
S122 Local Government Act 1972 and the subsequent use of the powers
under S203 Housing and Planning Act 2016 to override those
third-party rights affecting the Property that would interfere with
the proposed development.

Alternative options considered

A do-nothing option has been discounted as
there is a planning policy obligation. The council would need to
provide a hub. The project was approved by Cabinet in October
2024.
Not to approve that the Property be appropriated for planning
purposes. However, the consequence would be that the Property would
continue to be used as open space and the development does not take
place which would prejudice the delivery of SALP Policy SA9.
The Council will continue its dialogue with the other main
beneficiary to vary the Restrictive Covenant for Property. However,
discussions to date have highlighted that whilst they appeared to
be willing to vary the covenant, they have not taken any action to
do so despite regular reminders by the Council’s Legal
department. Hence, it is unlikely that it will be possible to
release the Restrictive Covenant by agreement, and within the
timescales for development. Therefore, in addition to appropriation
for change of use, it is also the best route to achieving the
timescales and realising the benefits of the scheme once a planning
permission has been obtained for the development by ensuring that
their interest has been legally addressed.