cpo masterclass - em lawshareemlawshare.co.uk/wp-content/uploads/2019/02/cpo-masterclass.pdf · tip...

CPO Masterclass

Stephen Coult, Browne Jacobson

Nathan Holden, Freeths LLP

Overview of the CPO

Process

Nathan Holden

www.emlawshare.co.uk

Overview of the CPO process

• Obtaining approval for the process

• Making the CPO

• Confirmation

• Implementation

• Compensation

• Appropriation

• Neighbourhood Planning Bill

Obtaining approval (1)

• Powers – e.g. s.226 TCPA 1990?

• Guidance “Guidance on the Compulsory

purchase process and The Crichel Down Rules

for the disposal of surplus land acquired by, or

under the threat of, compulsion” (October 2015)

• Key principles (1) :

– “Compelling case in the public interest ”

– “The minister confirming the order has to be able to take a

balanced view between the intentions of the acquiring and the

concerns of those with an interest in the land that it is

proposing to acquire compulsorily and the wider public

interest. The more comprehensive the justification which the

acquiring authority can present, the stronger its case is likely

to be.”

– “acquiring authority should be sure that the purposes for

which the compulsory purchase order is made justify

interfering with the human rights of those with an interest in

the land affected ”

– More than just planning permission!

– “If an acquiring authority does not

• have a clear idea of how it intends to use the land which it is

proposing to acquire; and

• cannot show that all the necessary resources are likely to be

available to achieve that end within a reasonable time-scale

– It will be difficult to show conclusively that the compulsory

acquisition of the land included in the order is justified in the

public interest, at any rate at the time of its making”

– Sources and timing of funding

“.....need to show that the scheme is unlikely to be blocked by

any physical or legal impediments to implementation.”

– These include:

• the programming of any infrastructure

accommodation works or remedial work

which may be required; and

• any need for planning permission or other

consent or licence

o Equality Impacts – public sector equality duty

Following the Inspector’s and the Secretary of

State’s decision in the recent Southwark case

this has become more important and may arise

irrespective of whether the issue is raised by a

qualifying objector

Making the Order (1) – documentation

• Prepare the Order (statutory power to acquire

land and new rights e.g. s.13 Local Government

(Misc Provisions) Act 1976

• Prepare a schedule of interests (identify qualifying

persons, all those with an interest in the land)

• Prepare a plan (1:1250 scale) – where land is be

acquired shown in pink where rights only to be

acquired coloured blue – rights include rights to

carryout works to party wall or over sailing land

with the jib of a crane

Making the Order (2) – service

• Notice of making (served individually)

• Newspaper notice (2 successive weeks)

• Site notices

• All objections to be sent to the SoS (21 days) –

have to be valid to count

• Statement of Reasons

• Place documents on deposit/website

Making the Order (3)

• Send paperwork to the SoS – e.g. PCU for

planning CPOs

Making the Order (4)

• No “qualifying objections” - SoS approves the Council

confirming its own CPO

• “Qualifying objections” - CPO inquiry (option for

written process)

– CPO inquiry presided over by an Inspector

– Prepare evidence

– CPO local public inquiry

– CPO writes report and sends it to the SoS

– SoS decides whether to confirm the CPO (this is

the current position but in future may a change)

SoS decisions and thereafter

• SoS confirms CPO (6 week challenge period

triggered by notice of confirmation and press

notice)

• SoS does not confirm (LA seeks leave for JR)

Implementing the CPO (1)

• General Vesting Declaration Process (recently

amended by the Housing and Planning Act 2016) –

Notice of confirmation and intention to vest in same

notice

• GVD made at any time, but cannot come into effect for

3 months –date it comes into effect the land

automatically vests in the acquiring authority

• Notice to Treat/Notice of Entry – minimum of 3 months

notice to obtain statutory occupation (not ownership)

• 3 year time period to activate CPO or it lapses –

extendable by up to a year where a CPO has been

judicially challenged

Implementing the CPO (2)

• Entitlement to compulsory purchase compensation

triggered by vesting or occupation obtained by use of the

notice to treat and notice of entry procedure

• Principles (Land Compensation Act 1961)

• CPO of part

– Market value of land taken (“no scheme world”)

– Affect on land not taken arising from loss of land

– Impact on value of land not taken by works on land

• CPO of whole

– Business occupier – disturbance/ extinguishment?

Contested compensation claims

• Upper Tribunal (Lands Chamber)

• 6 year time limit for bringing claims

Appropriation

• Local authorities powers of appropriation (section

122 Local Government Act 1972)

– no longer required

– new use a use land could have been acquired

• Appropriation by implication?

• Effect of appropriation where land is transferred to

be held for a planning purpose (s.203 Housing

and Planning Act 2016)

• Compensation

Changes to the CPO process in progress

(Neighbourhood Planning Bill)

• Temporary possession of land

• Codification of the “no-scheme world” principle

• Part 4 and Schedule 3 Land Compensation Act

1961 repealed

• Six week time period following confirmation to

advertise and serve notice of confirmation

• Tenants and licensees on the same

compensation footing

Cost Management in

Compulsory Purchase

Steve Coult

Content

• Overview of costs

• Series of practical tips to address cost control.

Overview of costs

• Each CPO situation is unique.

• The need for cost control increases with the

number of interests to be acquired.

• Because CPO tends to be contentious predicting

costs is difficult.

• The reliability of acquisition cost forecasts will

vary depending upon the type of property.

Uniqueness

• Internal or external project?

• Referencing at the heart of determining what is

being acquired.

• Land registration a significant help.

• However:-

– What is on the ground - other occupiers

– Any obvious easements or other rights

• Predictability will come with detailed investigation.

• Scale of project will determine

– Resources to be put into referencing

– Whether to outsource to specialists

– Brief for referencing.

– General management approach – degree of

project management

– Acquisition strategy

Contentiousness

• Your costs are dependent upon the actions of

others.

• 2 formal forums

– The Public Inquiry – must prepare for but may

not happen

– The Upper Tribunal (Lands Chamber) – again

must budget for disputes

• Possible use of mediation to reach settlement –

lower cost option.

Compensation forecasting

• Duty of acquiring authority to pay the right

compensation.

• Claimants inflate claims

• High risk areas are:-

– Disturbance claims from large complex

business

– Development values and particular the

application of the “No Scheme World” rules

– Ransom

Tip 1 - Indemnity

• NEVER embark on CPO for the benefit of private

landowning interests without an Indemnity

Agreement being in place.

• Indemnity should not only cover costs but should

set out respective roles in relation to various

activities.

• Acquiring Authority should maintain ultimate

control over Public Inquiry and references to the

Tribunal

• Guarantees

Tip 2 – Project Management

• Any complex CPO should be controlled through

Project Management

– Appoint a Project Board with sufficient senior

– Appoint a Project Manager to set milestones

and keep the project on track.

– Appoint a lead for land acquisition

• Follow the approach set out in the CPO Manual

• Where acting on behalf of a developer they may

sit on the Project Board.

Tip 3 Approve a Land

Acquisition Strategy • Get the Project Board to approve a Land

Acquisition Strategy dealing with:-

– Approach to referencing

– Overall acquisition budget including public

inquiry

– Advance purchases

– Blight

• Ensure Project Board has sufficient delegated

authority to bind Council

• Implement strategy!

Tip 4 Utilise “in house” skills

• CPO public inquiry has considerable similarities to

planning inquiries.

– What witnesses are “in house”?

– Can advocacy be conducted “in house” for

smaller inquiries?

• But careful that staff are not being diverted from

other important work. CPO inquiry work time

consuming

Tip 5 - Settle

• Do deals

– Conditional agreements on CPO being

confirmed

– Conditional agreements leaving compensation

to be settled and with a right of reference to the

Tribunal.

– Utilise loss payments

– Pay above market rate when in public interest

to avoid other costs.

Tip 6 Always settle on the

basis of threat of CPO • Important to “cleanse” land

• Brings in effect of S237 TCPA 1990

• Ensures those with overriding interests cannot

hold acquiring authority to ransom.

Tip 7 Vesting v Treating

• Cost implications are:-

– Vesting is a one way ticket – acquiring

authority cannot back out.

– Notice to Treat only in same position once land

occupied by acquiring authority

– Therefore if there is some flexibility in whether

to acquire a property Notice to Treat can

provide that flexibilty

Tip 8- Tribunal References

• Note four procedures for Tribunal to determine

references.

– Special Procedure

– Standard Procedure

– Simplified Procedure

– Written Procedure

• Pick the right procedure for the case.

Tip 9 Business Claims

• Disturbance costs can be the big ticket item.

• If at Tribunal forensic accountants now tend to

provide expert advice (as opposed to surveyors)

• Very expensive

• Seek evidence from claimant and try and settle as

much as possible reducing area of dispute

• Try and get high level view of appropriate

multiplier from accountants – likely to be the main

driver of quantum.

Tip 10 Counsel and the

Tribunal • Use appropriate grade of Counsel

– Juniors with experience for matters essentially

about evidence

– Seniors where points of law may be involved

• But – hope to avoid matters were there are points

of law – this is a large driver of cost.

CPO Workshop

The Background (1)

• South East Coalville (shown as Location A in

Document 1) was identified as a potential broad

location for development as the North West

Leicestershire DC worked on its Core Strategy.

• It was not the first time the site had been a preferred

location as it was an allocated site H4g in the North

West Leicestershire Local Plan (See Document 2)

• However critical to its development was the provision

of the Bardon Coalville Link road marked T2a(i) on the

local plan map.

Document 1

Document 2

The Background (2)

• There had been early attempts to deliver the road

(see Document 3), a David Wilson scheme from the

1990’s but the road became particularly complex at its

eastern end (see railway crossing and houses

affected in Document 4)

• Nevertheless the published Core Strategy

emphasised that up to 3500 dwellings could emerge

from the site (See Document 5) over an extensive

greenfield area (see Document 6 aerial view and

Document 7 redline area.

Document 3

Document 4

Document 5

Document 6

Document 7

Background (3)

• This in particular encouraged Bloor to make an

application for partial development of the site (see

layout plan at Document 8) but note that they were not

proposing to deliver the Link Road arguing that it was

not necessary for the scale of development proposed

on their part of the site.

• At the same time other parties were working on the

wider masterplan proposals (see Site Masterplan at

Document 9) which includes Link Road.

Document 8

Document 9

Background 4

• However the problem of fragmented ownership to

deliver the road and determine who was going to pay

for it dogged the situation (see Sim drawings

Documents 10 and 11).

• Various builders had secured agreements over parts

of the site but there was great difficulty in arranging

any cooperation between them. Informally they

invited NWLDC to use its CPO powers to secure the

land for the link.

Document 10

Document 11

The Task

• Form yourselves into groups of 6-8 people.

• Consider the options facing the Council and advise

how you would take this forwards. In particular in

advising the Council

– What would you do about the Bloors application.

– What would you do about the emerging Core

Strategy

– What would you do about the request to the

Council to use its CPO powers?

Check out the website …

cpo masterclass - em lawshareemlawshare.co.uk/wp-content/uploads/2019/02/cpo-masterclass.pdf · tip...

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