Decision details

Proposed decision:

To exercise the Council’s powers granted by s203 of the Housing and Planning Act 2016 to override restrictive covenants relating to Land on the South Side of Seal Road (TT47148) and adjacent site occupied by Trinity School and Tunbridge Wells Grammar School (K971987) as necessary to facilitate the implementation of planning permission ref KCC/SE/0045/2021:

“New external sports facilities - comprising of two multi-use games areas and two all-weather floodlit pitches on the existing school playing fields, and change of use of an area of land to the east of the school site to grass playing field, together with associated landscaping and access works”

To delegate authority to the Director of Infrastructure, in consultation with the Cabinet Member for Finance, Corporate and Traded services, to formalise terms and authorise the execution of any necessary or desirable legal documentation to give effect to the above decision.

To delegate authority to the Director of Infrastructure, in consultation with the Cabinet Member for Finance, Corporate and Traded services, to finalise the terms of any compensation agreement in relation to Kent County Council exercising its statutory powers to override the restrictive covenants in relation to the implementation of the planning permission.

Reason for decision:

A decision is required to exercise the Council’s statutory powers under s203 of the Housing and Planning Act 2016 to override restrictive covenants and remove the the risk of injunctive relief in relation to the implementation of planning permission KCC/SE/0045/2021:

“New external sports facilities – comprising of two multi-use games areas and two all-weather floodlit pitches on the existing school playing fields, and change of use of an area of land to the east of the school site to grass playing field, together with associated landscaping and access works”

Background:

The Council acquired the land registered under title TT47148 in 2019.

Planning consent was granted in December 2021 for the following scheme:

“New external sports facilities - comprising of two multi-use games areas and two all-weather floodlit pitches on the existing school playing fields, and change of use of an area of land to the east of the school site to grass playing field, together with associated landscaping and access works”

This planning consent covers the land acquired under title TT47148 and land already owned by the Council under title K971987 (collectively the “Land”).

Options (other options considered but discarded):

Option 1 - Kent County Council not to exercise powers granted by the 2016 Housing and Planning Act. This would result in a perpetual risk that injunctive relief could be sought to prevent the Council implementing the planning consent and using the Land for the stated purposes in the planning permission including the delivery of sporting facilities for educational use. If injunctive relief was sought, and obtained, the Council would be compelled to cease use of the Land for the stated purpose; this would have an unacceptable impact on the Council’s delivery of its statutory education functions.

Option 2 - Kent County Council to enter individual legal negotiations with all identified beneficiaries of the covenants with a view to coming to discrete agreements, removing the risk of injunctive relief without exercising s203 powers. Due to the number of potential beneficiaries identified (c.283) this is not considered viable. The Council’s powers granted in the 2016 Act provide for a clearly documented and transparent legal route for dealing with the covenant matter.

As Deputy Leader and Cabinet Member for Finance, Corporate and Traded services, I agree to:

1. Exercise the Council’s powers granted by section 203 of the Housing and Planning Act 2016 (“Section 203”) to override restrictive covenants relating to Land on the South Side of Seal Road (TT47148) and adjacent site occupied by Trinity School and Tunbridge Wells Grammar School (K971987) as necessary to facilitate the implementation of planning permission ref KCC/SE/0045/2021: “New external sports facilities - comprising of two multi-use games areas and two all-weather floodlit pitches on the existing school playing fields, and change of use of an area of land to the east of the school site to grass playing field, together with associated landscaping and access works”

2. To delegate authority to the Director of Infrastructure, in consultation with the Deputy Leader and Cabinet Member for Finance, Corporate and Traded services, to formalise terms and authorise the execution of any necessary or desirable legal documentation to give effect to the above decision.

3. To delegate authority to the Director of Infrastructure, in consultation with the Deputy Leader and Cabinet Member for Finance, Corporate and Traded services, to finalise the terms of any compensation agreement in relation to Kent County Council exercising its statutory powers to override the restrictive covenants in relation to the implementation of the planning permission.