First printed in Estates Gazette on 1 June 2013
John Bowman and Emily Murray explain how to handle objections to compulsory purchases
As explored in our first article of this series of two (Estates Gazette 4 May 2013), compulsory purchase powers allow certain bodies that need to acquire land (or rights over it) to do so without the consent of the owner. Such powers are prescribed by Acts of Parliament for the purposes of enabling functions that are deemed to be in the public interest. The implementation of this utilitarian idea of interference in individual rights for the benefit of society is one that will inevitably, on occasion, be met with resistance.
This second article looks at what happens when objections are received to the making of a compulsory purchase order (CPO) and how to deal with individuals or action groups who are obstructing the process.
It is not only the landowner directly affected by the CPO who is in a position to be obstructive. As explained in our first article, a CPO is widely publicised, not only through newspaper advertisements, but also by notices affixed on the land and served on qualifying persons at several stages of the process.
A qualifying person, for this purpose, includes not just owners, lessees, tenants and occupiers, but may also include:
- English Heritage in the case of a scheduled ancient monument;
- The county archaeologist in the case of an unscheduled ancient monument;
- The national park authority where land is included in a national park;
- Natural England where land falls within a designated area of outstanding natural beauty or a site of special scientific interest; and
- The relevant regional office of Sport England for land being used for physical recreation.
Site notices and newspaper adverts are effective means of alerting interest groups to the CPO. Local area interest groups may be watchful for site notices. Groups such as the Open Spaces Society and the Ramblers routinely search newspapers for planning notices. These larger organisations are often familiar with the intricacies of compulsory purchase procedure and can be well versed in how to stop or slow the process, should they so desire.
How and when
The notices of the making of the CPO invite submissions to the confirming authority. An objection must be made in writing within the period stipulated in the notice (at least 21 days from the date of the notice). On the expiry of the period, the confirming authority is required to hold a public inquiry, to arrange a hearing or, in certain circumstances, to use the written representations procedure. Private hearings are very rarely used in practice.
Objectors who are owners, lessees, tenants, occupiers or others who would have been entitled to receive a notice to treat or claim compensation are known as "statutory objectors". The remainder (for example, those who are opposed to the environmental or social consequences of the proposed project) are known as "third–party" or "non–statutory" objectors.
Where there are only non–statutory objectors, the confirming authority is not bound to hold an inquiry to hear their objections, though if there are a great many non–statutory objections a public inquiry is often held in the interests of transparency. A public inquiry resembles a trial in its set–up: there will usually be two sides; evidence is given in–chief and is usually cross–examined; counsel are often used. However, the outcome of a public inquiry is not a judgment. The "judge", an inspector appointed by the minister, will report to the minister at the conclusion of the inquiry and the minister will make his decision based on that report.
The written representations procedure is a less costly option than a full public inquiry. Submissions are made in writing; these are then reviewed by an appointed inspector who may undertake a site visit. The inspector's report is, as with a public inquiry, issued to the minister. This procedure is not available where the order is subject to special parliamentary procedure (for example, where the order affects common land) and can only be used where land belongs to a statutory undertaker if a minister grants a certificate. Further, the procedure can only be used where every statutory objector consents.
The Lands Chamber
The confirming authority is entitled to disregard objections where it is satisfied that the objection relates exclusively to matters that can be dealt with by the Upper Tribunal (Lands Chamber), by whom the compensation is to be assessed. The issue of compensation in compulsory acquisition is in itself complicated; it is however one which is considered separately from the question as to whether or not land should be acquired by the acquiring authority.
The Lands Chamber also deals with disputes as to whether part only of a property can be compulsorily acquired and the apportionment of rent between parts acquired and parts retained.
High Court challenge
Once the minister has confirmed a CPO, notices are placed in the newspaper, affixed to land, and served on qualifying persons. There is a six–week period from the date that the notice is first published within which an aggrieved person may question its validity in the High Court.
This can be done on the grounds that (a) there is no power in the Acquisition of Land Act 1981, or the enabling Act, to authorise the order, or (b) the requirements (mainly procedural) of the appropriate Acts and regulations have not been complied with and the interests of the person applying to the High Court have been substantially prejudiced. A person "aggrieved" is not likely to include a third party or an interest group, but rather occupiers and owners of the land who are directly affected by the order.
A six–week period may seem to be prejudicially short; an aggrieved person who is for whatever reason unaware of the confirmed order could quite easily miss their chance of a right to challenge. However, the acquiring authority requires certainty that their entering onto land and undertaking works is lawful.
A decision by a minister not to confirm an order, a decision by an acquiring authority to make an order, or a decision by an acquiring authority to act on a confirmed order by transferring title (by way of a general vesting declaration or a notice to treat) can be challenged in the High Court by way of judicial review. An applicant for judicial review must have locus standi, ie a sufficient interest in the matter to which the application relates. This is said to be a higher standard in practice than that of a person aggrieved.
Why and how to deal
At the root of most objections to CPOs, one will find anxious interested parties. Notices will have alerted them to the tight timetable within which they have a chance to challenge the CPO. As such, any residual query or niggling doubt could compel them to submit an objection purely to slow the process and protect their position.
This highlights the importance of the early stages of a CPO. Early contact with those directly affected should be made and clear explanation of the project and the rights or land sought is essential. Appropriate avenues of communication should be offered to avoid negative communication being made solely through legal channels. This will allow any fears to be quelled before they are escalated.
Similarly, the drafting of the order and associated documentation should be exact and in plain language. While it may not be apparent at the time, any ambiguity in the drafting could cause considerable delay and additional cost. It is these documents that interested parties will rightly scrutinise.
Where it is suspected that an order could attract the attention of interest groups and other obstructive third parties, efforts should be made to publicise the project and disseminate information more widely via local media channels.
If an order has yet to be confirmed, obstructive parties could be placated, where possible, by suggested modifications to the order. The confirming authority could then be asked to confirm the modified order. While this is not ideal, it can be useful where an obstructive party has taken issue with an otherwise insignificant point.
Any issues with compensation will usually arise where a voluntary agreement for the transfer of land is being negotiated. The acquiring authority should be mindful of being firm but fair in its negotiations. It should ensure that the relevant parties understand the basis on which offers are being made and the likelihood of less compensation being found to be payable if the matter were to escalate to the Lands Chamber.
Providing good information and guidance is a process that in itself requires additional resources, and the resulting expense. Nevertheless, it is an essential part of a CPO project and can give good indications as to obstructions that are likely to arise at a later stage. While the process can be scaled to appropriately meet the requirements of any project, some form of communication will always be necessary no matter its complexity. To neglect it may cost the acquiring authority dearly.
Why this matters
Compulsory purchase is a controversial power which puts the purported interests of wider society ahead of those of the individual. People are attached to land and local people can be suspicious of any supposed advances and opposed to changes in their community. If left to their own devices, speculation can escalate and misinformation spread quickly. The local press may pick up on this and is more likely than not to be biased towards what will be seen as the community's interests and against those of the outsider, the statutory body.
An acquiring authority carrying through any project will want to take all reasonable steps to manage interest in their project and ensure that accurate information and guidance is given on what is intended, how and why. This is especially the case as regards those parties who are directly affected. If they are not convinced as to the necessity of a project or are unclear as to the extent of their rights that will be extinguished, they have the scope to interfere with its progression.
As explained in the previous article, the path to acquisition of land by way of the exercise of compulsory powers is rarely a smooth one; there are many variables and potential pitfalls along the way. This is the case even where there are no obstructive parties resisting a proposed CPO; the process is still a lengthy and expensive one. With the addition of obstructive parties, the project can very quickly go off track.
It is therefore imperative that an acquiring authority takes what opportunities it can to reduce the risk to the project. Reaching an agreement with the landowner is usually the simpler, faster and cheaper option. Where this is not possible, an acquiring authority will want to reduce the number of hurdles to overcome in a CPO process by expending resources and efforts early on and ensuring that communication channels are open and information on the project and process is clear.
Encyclopedia of Compulsory Purchase and Compensation, edited by CM Brand, Sweet & Maxwell
The Law of Compulsory Purchase, Guy Roots QC, Michael Humphries QC, Robert Fookes and James Pereira, (2nd ed), Bloomsbury Professional
John Bowman is a partner and Emily Murray is a paralegal in the planning, environment, energy and infrastructure teams at Field Fisher Waterhouse LLP
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