Unlocking development sites: land appropriation explained

What is appropriation?

Appropriation is the formal process by which a local authority changes the statutory purpose for which it holds a piece of land. Unlike privately owned land, which is mainly controlled by planning permission, local authorities must hold land for a specific statutory purpose. Appropriation allows them to switch that purpose to another authorised use.

Why does it matter?

There is increasing use of appropriation by local authorities and developers to unlock sites for development. Its main commercial benefit arises once land is appropriated for planning purposes. This unlocks the powers in Section 203 of the Housing and Planning Act 2016, which allow building works and the subsequent use of the land to proceed even if they interfere with many private third-party rights.

This includes overriding easements (such as rights of light, rights of way, or support), restrictive covenants, and certain contractual restrictions. The original rights are not extinguished but affected parties lose the ability to obtain an injunction to stop the development. Instead, they are entitled to compensation, assessed on similar principles to compulsory purchase.

Section 203 is particularly valuable for unlocking stalled or difficult sites where negotiation with rights holders has failed.

How the sections work together

Section 122 of the Local Government Act 1972 is the main power used to appropriate land from its current purpose (e.g. open space or education) to planning purposes. Once this is done, Section 203 powers become available. Section 232 of the Town and Country Planning Act 1990 is used for any further re-appropriation where the land is already held for planning purposes. The three sections are therefore complementary rather than alternatives.

The statutory framework

• Section 122 LGA 1972: Allows appropriation of land that is “no longer required” for its existing purpose to a new statutory purpose.
• Section 232 TCPA 1990: Used where land is already held for planning purposes and needs to be moved to a different statutory function.

Legal requirements

For an appropriation under s.122 LGA 1972 to be valid, three core conditions must be satisfied:

1. The authority must own the land.
2. The land must no longer be required for its existing statutory purpose (this is a matter for the authority’s reasonable judgement, provided the decision is properly evidenced).
3. The new purpose must be one for which the authority has statutory power.

Special cases

Where the land is open space, common land or certain allotments, the authority must usually advertise its intention in a local newspaper for two consecutive weeks and consider any objections before proceeding.

Best practice to reduce risk

Appropriation decisions are administrative and can be challenged by judicial review. To minimise risk and create a strong audit trail:

• Prepare a cabinet or committee report clearly explaining why the land is surplus to current requirements, the new statutory purpose, and the intention to rely on s.203 powers.
• Ensure the decision is formally minuted.
• Record the appropriation by memorandum placed with the title deeds.

A well-documented process significantly strengthens the decision against legal challenge and gives developers greater certainty.

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Our Planning & Infrastructure team at VWV regularly advises local authorities and developers on land appropriation strategies and the use of s.203 powers to deliver viable schemes. If you are dealing with a site affected by private rights, please contact David Bird or Alex Gillott for an initial discussion.