This report sets out the public interest benefits and justification for appropriation in relation to the new Hexagon Studio Theatre.

The Committee considered a report setting out the legal basis upon which the development of the new Hexagon Studio Theatre was proposed to proceed, including in so far as necessary appropriation of land for planning purposes in relation to the new Studio Theatre.  The following documents were attached to the report:

·         Appendix 1 - Studio Land Plan

·         Appendix 2 - Planning Purposes

·         Appendix 3 - Impact assessment for the use of rights

·         Appendix 4 - Point 2 Rights of Light Survey (Exempt from publication)

·         Appendix 5 - Legal, Financial and Risk Annex (Exempt from publication)

The report noted that the Council proposed to build a new Studio Theatre on the Land shown on the plan attached to the report at Appendix 1 and which currently formed the backstage area of the Hexagon Theatre, ancillary areas and parking (the Studio Land).  Planning Permission for the development of the Studio Theatre had been granted at the meeting of Planning Applications Committee held on 27 March 2024 (Minute 111 refers).

The report explained that the Council had carried out comprehensive redevelopment of the area in the 1970s and had acquired properties in the 1950s and 1960s in order to deliver the development at that time.  Some of the properties had been acquired on a voluntary basis and some with the use of Compulsory Purchase powers under the Town and Country Planning Act 1962 and the Housing Act 1957.  Properties acquired voluntarily and compulsorily under the Housing Act were, based on the circumstances at the time and following extensive research, judged to have been appropriated for planning purposes and there was no evidence to show that they had since been appropriated to any other purpose.  Owing to missing records it was, however, not possible to state conclusively that all of the Studio Land had been appropriated for planning purposes at the time.  As a result, there remained a slight possibility that not all of the Studio Land had been appropriated for planning purposes.

The report therefore recommended that, in an abundance of caution, the Council appropriate the Studio Land if and in so far as necessary, to ensure that there was documentary evidence of appropriation of the whole of the Studio Land and enable the development of the new Studio Theatre to proceed without being impeded by private law rights.  Following appropriation, the Council would be able to trigger and rely on s.203 of the Housing and Planning Act 2016 (s.203).  The report recommended that use of s.203 be delegated to Officers to allow the Council to negotiate with affected landowners in the first instance. 

The report noted that the effect of s.203 would be to enable the Council carry out the development even though it interfered with private law rights.  The law recognised that regeneration schemes for the public benefit and in the public interest had often been held up by private rights over land whether it was by rights of way, easements or rights of light.  In order to ensure that appropriate development could be delivered, the legislation allowed the Council to override those private rights.  The report confirmed that rights would not be infringed unless the building was constructed, and that the Council would negotiate with the affected owners in good faith to agree the settlements payable to affected landowners.  Should it become necessary to trigger s.203, the law provided for the owners with affected private law rights to be compensated.

Attached to the report at Appendix 3 was an Impact on Human Rights and Public Interest Assessment for appropriation and use of s.203 Housing and Planning Act 2016.  The assessment set out the public and general interests and benefits and took into consideration the Department of Levelling Up Housing and Communities guidance - “Guidance on Compulsory Purchase and The Crichel Down Rules 2019”.  It carried out an evaluation and balancing of the rights of the affected owners against the public and general interests in proceeding with the development of the Studio Theatre and use of s.203.  It recognised and considered that the use of s.203 would infringe Article 1 of Human Rights Act 1998 – the right to peaceful enjoyment of property.  It also took into consideration the Rights of Light (ROL) survey conducted by the Council’s ROL consultant Point2 which was attached to the report as Exempt Appendix 4.

The report and the assessment at Appendix 3 concluded that it was necessary and proportionate in the public interest for the Studio Land to be appropriated for planning purposes and if necessary for s.203 of the Housing and Planning Act to be triggered for the proposed development.  It was considered that:

(a)      there was a strong public need for, and public interest in, the delivery of the new Studio Theatre in line with the consented scheme and design that had been the subject of planning permission, as set out in Appendix 3 to the report;

(b)      the timing of delivery and/or the ability to enter build contracts with confidence, significantly outweighed the limited impact on private law rights;

(c)      it was only appropriate to enter into build contracts if and when the Council had confidence that it could build out in the agreed time frame without the risk of the development being hindered by private law rights;

(d)      the development objectives of the Studio Theatre were concluded to be legitimate aims;

(e)      the loss to amenity caused by the development was compensable under the statutory scheme set by Parliament, which struck the appropriate balance between the need to override such rights in the public interest and compensating landowners for the loss of those rights. 

At the meeting the Committee were informed that additional correspondence between representatives of the neighbouring landowner and the Council should be taken into account in making a decision on the report.  The correspondence was exempt information and would therefore need to be considered following exclusion of the press and public (see Minute 4 below).

Resolved –

            That the report and recommendations be considered, with the additional information to be tabled at the meeting, in closed session.