At long last the government has decided to grasp the nettle and tackle the difficult issue , the concept of the “no scheme world”. It proposes to do this by introducing the concept of the “ statutory project”, which is the terminology used by the Law Commission in its report in 2003. It is to be assumed that the statutory project, or the scheme, to use more familiar terminology, will be the area covered by the cpo unless this is made clear by the acquiring authority at the outset. This is usually done in the statement of reasons and the purposes set out in the order. To date the secretary of state has taken the view that he has limited powers to amend the purposes of a cpo and if they are defective the cpo will not be confirmed. The extent of the scheme as contemplated in a cpo may be extremely important to a landowner when it comes to assessing compensation. However, it is well accepted that issues relating to compensation are not matters to be determined by the secretary of state when deciding whether or not to confirm a cpo.

The Law Commission proposals contemplate any dispute about the scheme being determined by the Upper Tribunal ( Lands Chamber). It is not clear as to the weight which the Tribunal would give to a confirmed CPO which “defined” the extent of the scheme in its purposes and/or statement of reasons and whether this would be determinative. Alternatively what would be the consequences if the Tribunal, when hearing a compensation case, presumably well after the cpo had been confirmed and implemented, ( on grounds that inter alia the scheme was viable based perhaps in part on anticipated land acquisition costs) determined that the scheme was not the greater area promoted by the acquiring authority but a smaller area. This could have the effect of increasing compensation significantly if infrastructure recently constructed outside the now reduced scheme has had the effect of significantly increasing the value of land within the scheme.

We wish the government good luck in dipping its foot in this murky pond. We think there are no easy solutions but as a starting point there may be a need for a more flexible approach to dealing with the scheme at a public inquiry. However, our experience is that planning inspectors, who are the people who normally hear cases at public inquiry will be looking forward to dealing with arguments about the scheme like a hole in the head. The Civil Servant selected to write the circular advice on the application of the new rules should certainly be seeking a bonus if he/she is able to come up with clear guidance on the approach to be adopted.