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16th November, 2016

Housing and Planning Act 2016 – Compulsory Purchase Reforms

On 12th May 2016 the Housing and Planning Act received Royal Assent.

The Act is bringing about major changes to the English Planning regime and Part 7 does so to the compulsory purchase and compensation regime in England and Wales.  The changes affect Acquiring Authorities and claimants by bringing clearer timetables and targets to the confirmation stage of the CPO process.

Rights to enter and survey land

All Acquiring Authorities now have the power to enter and survey land on the issuing of a 14-day notice on landowners and occupiers.  Any person obstructing entry commits an offence and on being found guilty, fined, and a person divulging confidential information obtained as a result of entering land could be fined, imprisoned, or both.

The reasons an Authority requires entry unto land will be to establish whether there are any underground structures or the land is contaminated as those may impact on the proposed scheme for which a CPO is to be made.

Statutory undertakers’ land can be entered and surveyed though they can object on grounds that entry will be seriously detrimental to their undertaking.

Compensation is payable to land owners for entering the land and carrying out the survey.

Timetable for confirmation of a CPO

The Secretary of State is required to publish timetables for the confirmation of CPOs and different timetables may be published for different Confirming Authorities and types of Orders.

The Secretary of State is required to lay before Parliament an annual Report on how Acquiring Authorities have met the timetables, and similar provisions apply to the Welsh Ministers who have to lay their report before the Welsh Assembly.

Confirmation by Inspectors

Confirming Authorities to have the power to appoint Inspectors to act in their stead in confirming a CPO, which appointment can be revoked at any time.

Time Limits for Notice to Treat or General Vesting Declaration

A time limit of three years now applies from the date when an Order becomes operative, after which a Notice to Treat cannot be served or a General Vesting Declaration (GVD) executed.

Vesting Declarations

The period for when a GVD can be executed and land vested in the Acquiring Authority is to change from the current 28 days to three months following service of the GVD on the occupier.

A GVD cannot be executed following the service of a Notice to Treat not subsequently withdrawn.

Possession following Notice to Treat

Acquiring Authorities are only required to give occupiers a very short period of time to permanently vacate their property which under a Notice of Entry is 14 days and that period is to be extended to a minimum period of three months.

Occupiers with an interest in a property who have received a Notice of Entry can serve a counter-notice specifying a date by which they require the Acquiring Authority to take possession and that period can be extended by agreement between the parties.

The ability to serve a counter-notice enables occupiers to plan their relocation with greater confidence.

Where a GVD is made the overall period for a person to vacate their property remains unchanged though the new system now gives certainty for the full three month period that the property will be acquired.

Making a request for advance payment of compensation

The Secretary of State and Welsh Ministers will be able to require further information from a claimant in the Notice for Compensation, and the date when a Notice has to be served on the Acquiring Authority.

Section 52 of the Land Compensation Act 1973 provides a right to advance payment of compensation amounting to 90% of the Acquiring Authority’s initial estimate of compensation, and the Authority has to make such payment within three months of receiving the formal request or by the date of possession, whichever happens the latest.

Unfortunately claimants have no way of enforcing payment, and landowners and occupiers can be left in a position whereby the property has been acquired, but they have to carry the full burden of relocation costs until compensation is agreed.

The change requires an Acquiring Authority to notify the claimant within 28 days of receipt of a claim as to whether or not it has sufficient information to estimate the amount of compensation.

If payment is not then made the Acquiring Authority will have to pay interest on the unpaid amount at a level sufficient to penalise those Authorities failing to meet the new time frame.

Any excess payment of compensation once the value of the property has been finally determined has to be repaid by the claimant.

Objection to division of land

Where land to be acquired under a CPO cuts across a person’s land ownership that can result in a “material detriment” to the claimant’s retained land by making it less valuable.

An owner can challenge such a division of land by serving a counter-notice on the Acquiring Authority requesting it to purchase the whole of the Claimant’s land.  The Authority can then decide whether or not to withdraw the property from the Order, acquire the entire site or refer the matter to the Upper Tribunal for determination.

Legal Challenge

Owners aggrieved at the confirmation of an Order can legally challenge the decision within 6 weeks of the date of the publication of its confirmation.  The High Court can now quash the decision rather than the Order and therefore it will be the decision to confirm the CPO that has to be retaken without the Authority having to make a new CPO and undergo the full Inquiry process.

Where a CPO is subject to a failed legal challenge the three year time limit to serve Notices will be extended by the same length of time as it took to deal with the challenge up to a maximum of one year.

Power to Override Easements and Other Rights

The power to override easements and rights such as a right to light and restrictive covenants to facilitate the implementation and delivery of development were previously contained in the Town and Country Planning Act 1990.  The power under that Act has now been repealed and the new power broadens the categories of Authorities to whom the ability to override easements and other rights can be exercised.

In order to exercise the power, planning permission is required to have been obtained for the scheme and the Authority is able to acquire the land compulsorily for the related works and relevant use.

The power to override easements and other rights is not available in respect of a right vested in a statutory undertaker or a right conferred by the electronic communications code and protection from interference extends to rights or interests belonging to the National Trust.

Compensation is payable to anyone whose rights are overruled.

This article follows on from David’s first article on Housing and Planning Act 2016 – What next for Planning in England? published in October 2016. If you would like to read this please click here

David-DelaneyDavid Delaney

Partner & Head of Planning Law

Direct Dial: 01244 405538

Email: [email protected]

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