Compulsory Purchase Guidance Consultation – a guide to the changes

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Summary: As part of the Budget the government published a consultation on updating the guidance on the Compulsory Purchase process. The government felt that the existing guidance was in need of updating to reflect legislative changes and case law since 2004. The government believe that using a web-based approach Compulsory Purchase guidance, modelled on the new approach of planning guidance would also better help people to access the information. In the main the guidance is the same as the current guidance but we explain where changes have been made in this briefing.

If you are an acquiring authority considering the promotion of the Compulsory Purchase Order, or a practitioner in the field of Compulsory Purchase, this article will help you understand the proposed changes.

Why has the new guidance been published for consultation now?

In the Autumn Statement the Government indicated that it believed the Compulsory Purchase regime would benefit from streamlining and updating.  It is indicated that proposals would be published for consultation at the budget to make processes clearer, faster and fairer, with the aim of bringing forward more brownfield land for development.

The Government is committed to the development of brownfield sites and large sites are more likely to require the use of compulsory purchase powers to assemble the Site for redevelopment.

What is the consultation period?

The updated guidance is part of a range of proposals aimed at making the compulsory purchase regime clearer, faster and fairer and the consultation period runs from 18 March 2015 until 9 June 2015.

Has the Guidance changed?

In the main the guidance replicates the previous CPO circular simply redrafting it into a question and answer format and explaining the requirements of the legislation rather than simply cross-referring to it.  There has also been some firming up of the guidance, in that previously there were various references to “the Secretary of State normally requiring” etc which suggests that there is an element of discretion.  Use of normally has been removed with instead references to “the Secretary of State will require” or “will consider”.

Since 2004 there have also been policy changes with the introduction of the NPPF and legislative changes and these are reflected in the guidance.

Are there any changes in emphasis in the guidance?

Paragraph 1 of the 2004 circular included a statement that bodies possessing compulsory purchase powers – whether at local, regional or national level – are encouraged to consider using them proactively wherever appropriate to ensure real gains are brought to residents and the business community without delay.

This statement has been removed and the guidance simply states that acquiring authorities should use compulsory purchase powers where expedient.  Question 3 which asks “when should compulsory purchase powers be used?” also includes a statement that compulsory purchase is intended as a last resort.  Arguably there seems, therefore, to be less encouragement of the use of CPO powers then there has been in the past although this maybe because acquiring authorities are more confident in the use of the powers.  The guidance still acknowledges that if an acquiring authority waits for negotiations to break down before embarking on the CPO process valuable time will be lost and, therefore, depending on when the land is required it may be sensible to initiate that process alongside negotiations.

Is CPO still subject to a public interest test?

Yes this test remains as do the other principles that a confirming minister should consider when deciding whether or not to confirm a CPO.

Are the requirements in relation to demonstrating that there is no impediment to the scheme going ahead still the same?

Yes these are but in relation to resource implications the proposed text begins that acquiring authorities should provide substantive information as to the sources of funding available, previously it was as much information as possible.  It is also stated that funding should generally be available now or early in the process. Failing that the confirming minister would expect funding to be available to complete the compulsory acquisition within the statutory period following confirmation and only in exceptional circumstances, would it be reasonable to apply land with little prospect of the scheme being implemented for a number of years.

What other changes are there?

The guidance now includes an explanation of how the public sector equality duty as set out in section 149 of the Equality Act 2010 should be taken into account in compulsory purchase.  The duty aims to make sure public authorities think about things like discrimination and the needs of people who are disadvantaged or suffer inequality, when they make decisions about how they provide their services and implement policies. The guidance confirms that in exercising compulsory purchase powers public sector acquiring authorities must have regard to the effect of any differential impacts on groups with protected characteristics.

The guidance acknowledges that an important use of compulsory purchase powers is to help regenerate run down areas. Although low income is not a protected characteristic it is not uncommon for people from ethnic minorities, the elderly or people with a disability to be over-represented in low income groups. As part of the Public Sector Equality Duty, acquiring authorities must have due regard to the need to promote equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. This means that the acquiring authority may need to devise a process which promotes equality of opportunity by addressing particular problems that people with certain protected characteristics might have (e.g. making sure that documents are accessible for people with sight problems or learning difficulties and that people have access to advocates or advice). Alternatively, it can mean that the acquiring authority must demonstrate that they considered making the compulsory purchase order in another area where the impact would not be so detrimental but, on balance, decided this was the most appropriate location.  While not stated in the guidance importantly acquiring authorities will, however, need to show how impacts have been mitigated.

Has the guidance on confirming a CPO in stages changed?

The guidance reconfirms at Question 42 that the power to confirm an order in stages may be used when the minister is satisfied that an order should be confirmed for part of the land covered, by the order but is not yet able to decide whether the order should be confirmed in relation to other parts of the order land.  The guidance cites, however, an example of where further investigations are required to establish the extent, if any, of alleged contaminated land.  This is an odd example given the relevance of CPO to brownfield developments.  Previously the guidance talked about impediments rather than providing specific examples.  Assessment of the full extent of contamination is normally the subject of planning condition, recognising that it can be hard to assess the extent of contamination until buildings and hardstanding areas are cleared and the land is under control in terms of ownership.  All sites are, however, capable of being cleaned up as was demonstrated with the site for the Olympic Games which was heavily contaminated and included unexploded ordnance.

What is interesting is the fact that this section suggests that where objections relate to just part of the CPO boundary it might be possible to confirm part of an order in stages where there are no objections in relation to that remaining part.

Is there are any change in the guidance in implementing a Compulsory Purchase Order?

The guidance is largely the same but explains the legislative and procedural requirements without the reader having to return to the legislation.  The guidance does include recognition that a Notice to Treat can only be withdrawn in limited circumstances, a recognition which is often overlooked.

Are there any changes in the guidance on the assessment or payment of compensation?

There are no changes only that under the section on advanced payments (Question 56).  It is noted that it is in the interests of claimants to provide information to the authority to ensure that a Local Authority’s estimate of compensation is robust as possible.  Such information should normally include a statement of the amounts claimed as described to the recognised heads of compensation in the compensation code, an explanation of how the amounts are calculated, and a summary of the reasons why entitlement to compensation arises.

It is also noted on the question of whether professional fees can be recovered, that it is well established in case law that reasonable fees necessarily and properly incurred by claimants in obtaining professional help to prepare a statement of claim for compensation are recoverable as part of compensation. The previous guidance was out-dated and said that it was for the parties to agree a reasonable basis for payment of professional fees.

Is there anything else I need to be aware of?

The guidance includes new sections covering advice on local authorities general power of CPO under Section 121 of the Local Government Act 1972; as well as guidance on where authorities receive requests from community or local bodies to acquire community assets that are in danger of being lost where the owner of the asset is unwilling to sell, or vacant commercial properties are detracting from the vitality of an area.

Are the rules relating to Crichel Down changed in any way?

No, there are no changes to the Crichel Down rules.

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