Compulsory Purchase

Head of Planning Amanda Beresford tells us more about this subject.

What is compulsory purchase?

The law gives powers to a number of public bodies to compulsorily purchase land to carry out a function which Parliament has decided is in the public interest. Compulsory purchase powers are quite draconian and can force a landowner to sell their land against their wishes.

Who has compulsory purchase powers?

Public bodies which have compulsory purchase powers include Local Planning Authorities (LPAs), local highway authorities and the Highways Agency. Many utilities such as water or electricity companies also have compulsory purchase powers and those seeking to provide infrastructure can be given compulsory purchase powers.

How does a public body use their powers?

Usually the promoting public body will resolve to use their compulsory purchase powers and then send a “Request for Information” to landowners who may be affected. Landowners must respond to this request by providing details of interests in the land. The public body will then usually make a compulsory purchase order (a short written document) which will be accompanied by a plan showing the land concerned and a statement of reasons saying why the compulsory purchase is necessary. The compulsory purchase order once made, will be served on landowners and there is then a period within which objections to the order can be made. If objections are made, then unless they are withdrawn, a public inquiry will usually be held after which a decision will be issued as to whether or not to confirm the order. Once the order is confirmed it can be used by the public body to acquire the land covered via two alternative procedures known as Notice to Treat and General Vesting Declaration.

Am I able to object to a CPO?

Yes. The notice of the making of the CPO will normally specify the time within which objections should be lodged. This must be at least 21 days from the date the notice is posted or served.

What are the grounds of objection?

Grounds might include:

  • That the order was not made within the promoting public body’s statutory authority;
  • That it is not necessary to acquire the site or part of it by compulsory purchase;
  • That the public benefit which the compulsory purchase order is seeking to achieve does not outweigh the harm to the interests of the individual landowners of the land proposed to be acquired.

Can land still be acquired by agreement even if a compulsory purchase order has been made?

Yes. Usually the acquiring authority will continue to negotiate with landowners and if agreement is reached will acquire the land by private treaty.

Once a compulsory purchase order is confirmed following a public inquiry, can it be challenged further?

Yes. The validity of a compulsory purchase order can be challenged in proceedings in the High Court within 6 weeks following the first newspaper publication of the Notice of Confirmation of the CPO. In general terms, a challenge can be made on one or more of three grounds as follows:

i. That the powers used are “ultra vires”. That means they go beyond the powers granted by the authorising Act of Parliament;

ii. That the procedural rules have not been followed correctly;

iii. That the Minister, or the Inspector, has not acted properly in reaching a decision – for example, there was no evidence to support the decision, or that irrelevant considerations were taken into account or relevant ones ignored.

If a legal challenge is successful, the Court can quash the CPO or any part of it.

What if the Secretary of State decided not to confirm a CPO, can this be challenged?

Yes. A promoting authority may be able to apply for a judicial review of the decision not to confirm the order.

What is a Blight Notice?

A Blight Notice can be served by an owner of land affected by Compulsory Purchase in certain circumstances. The procedure is a process by which it may be possible to bring forward the acquisition of property if it has become “blighted” as defined in planning law. The affected landowner must have a qualifying interest. It should be noted that blight has a legal restricted meaning which is not as wide as in common usage. The circumstances in which a blight notice may be served is set out Schedule 13 to the Town and Country Planning Act 1990.

Am I entitled to compensation?

Yes. Compensation may also be available where no land is taken if for example, if there is a reduction in the value of your land caused by the execution or subsequent use of public works.

How is compensation calculated?

The calculation of the amount of compensation is complicated. Generally it is calculated by reference to the compensation code, which is a collective term for the principles, derived from Acts of Parliament and case law, relating to compensation for compulsory acquisition. The payment is designed to ensure that a landowner should be no worse off in financial terms after the acquisition than it was before. Likewise, the landowner should not be any better off.

What is the valuation date for the assessment of compensation?

It is the earliest the following:

  • ­The date the acquiring authority enters and takes possession of the land; or the land vests (if the general vesting declaration procedure is followed);
  • ­The date values are agreed;
  • ­The date of the Lands Tribunal Decision.

It is important to note that disputes over compensation do not constitute grounds for objection to a compulsory purchase order. Disputes over compensation are dealt with separately from objections to the order by a different body.

So, what sort of things might be claimed as compensation?

These could include the value of the land taken, the depreciation in the value of land where part only of the land holding is acquired, disturbance and reasonable surveyors and solicitors fees. There also may be an entitlement to a loss payment which is a prescribed sum of money to compensate a landowner for the fact that the land is being acquired at a time not of the landowners own choosing.

What happens if compensation is not agreed? Can the local authority still take possession of the property?

Yes. In these circumstances, the landowner may be entitled to an advance payment of compensation of at least 90% of either the agreed compensation or where there is no agreement, the acquiring authority’s estimate.

Our team

Amanda Beresford

Partner

Head of Planning

Direct Line +44 (0)113 297 8070

Lyn Dario

Partner

Head of Environmental & Regulatory

Direct Line +44 (0)113 297 3779

Stuart Lumb

Solicitor

Planning

Direct Line +44 (0)113 297 3781