Many of the reforms to the compulsory purchase system that were first consulted on back in 2015 are finally being implemented. However, the introduction of these measures has been complicated by the fact that they are split between the Housing and Planning Act 2016 which was enacted back in May 2016 and the Neighbourhood Planning Bill which commenced its line by line examination at the Committee Stage in the House of Lords on 31 January 2017. The implementation process is further complicated as the result of some of the provisions not applying to CPOs in Wales or to Development Consent Orders under the Planning Act 2008.p>
First of all there are measures which alter the timescales for taking possession of land following confirmation of orders and make other alterations to the process to be followed. The changes are as follows:-
- A preliminary notice of intention is no longer required to be published 2 months before a general vesting declaration (GVD) may be executed. Instead, a prescribed statement about the effect of Parts 2 and 3 of the Compulsory Purchase (Vesting Declarations) Act 1981 must be included in the notice of confirmation of the order. The notice must also include an invitation to any person who would be entitled to claim compensation if a GVD were made to give the acquiring authority information about the person’s name, address and interest.
- The vesting period for acquiring land and taking possession of it under the GVD procedure is instead extended to a minimum of 3 months, from the current minimum of 28 days.
- The notice period for taking possession under the notice to treat / notice of entry procedure is extended to a minimum of 3 months, from the current minimum of 14 days.
- Acquiring authorities are prohibited from executing a GVD if they have already served a notice to treat in respect of that land or interest in land (and not withdrawn it). This however does not apply to deemed notices to treat that may, for example, arise from a blight notice or purchase notice.
- In circumstances where a notice of entry has been served but possession of the land has yet to be taken and the acquiring authority becomes aware of a party who should have been given a notice to treat, any notices of entry already served remain valid. However, the authority may not enter and take possession unless they serve notice to treat and notice of entry on the newly identified person. Where that person is not an occupier, or the authority had been unaware of the position because they received misleading information in response to their enquiries, a shorter minimum notice period will apply. That period will be a minimum of 14 days, or until the end of the period specified in the last notice of entry, whichever is the longer.
- Where an acquiring authority has served a notice of entry an occupier with an interest in the land can serve a counter-notice requiring the acquiring authority to take possession of the land on a specified date. This date must not be less than 28 days after the date on which the counter notice is served and must not be before the end of the period specified in the notice of entry or any extended period that the person has agreed with the acquiring authority.
- In certain circumstances a counter-notice requiring possession to be taken will have no effect. This can be because the notice to treat has been withdrawn or ceases to have effect; or the acquiring authority is prohibited from taking possession for other reasons prescribed by CPO legislation. In the latter case, the occupier may serve a further counter-notice once the prohibition ceases.
The second main reforms concern the process of objecting to the division of land as a result of compulsory acquisition. To recap, the acquisition of part of a landowners’ property may result in material detriment to the claimant's retained land where this is rendered less useful or less valuable to some significant degree. Where claimants wish to challenge the proposal to take only part of their land, because of the material detriment that will be suffered to their retained land, they can serve a counter-notice seeking the purchase of the entire property. The acquiring authority can either withdraw, decide to take all the land or dispute the matter by referring it to the Upper Tribunal (Lands Chamber) for a ruling. The complication has been that the procedure for claiming material detriment has differed depending on whether an acquiring authority has gone down the notice to treat or GVD route. In the case of a GVD there is a statutory procedure for serving a counter-notice and a reference to the Upper Tribunal has prevented entry onto land being taken until the issue of material detriment has been resolved. In the case of a notice to treat there is no statutory procedure for serving a counter-notice – in the absence of this a process has been established by case law. So the intention of the reforms is to harmonise the treatment of material detriment under the two procedures and to allow the acquiring authority to enter and take possession of the relevant land before any dispute about material detriment has been determined by the Upper Tribunal.
Against that backdrop the changes are as follows:-
- In the case of notices to treat, a process is established for serving counter-notices requiring the purchase of land which is not included in the notice to treat (apart from where blighted land is involved).This includes detailed provisions in relation to when a counter-notice can be served, the effect of the counter-notice on the notice of entry, the options available to the acquiring authority to respond to the counter-notice and the effects of accepting a counter-notice or referring it to the Upper Tribunal. A counter-notice can be served after receipt of a notice to treat, so the procedure can be engaged before the service of a notice to enter. In circumstances where an acquiring authority has served a notice to treat but not taken possession of the land before any counter-notice is served and an owner serves a counter-notice, any notice of entry served on him in respect of the land proposed to be acquired ceases to have effect. Where the acquiring authority accepts a counter-notice or decides to refer it to the Upper Tribunal, it may serve a new notice of entry on the owner. If the authority have already served a notice of entry in respect of the land proposed to be acquired, the normal minimum three month notice period does not apply to the new notice of entry relating to that land. Instead the period specified in any new notice of entry must be a period that ends no earlier than the end of the period in the last notice of entry. This enables the acquiring authority to enter the land proposed to be acquired without further delay. The normal three month minimum notice period will, however, apply in respect of "the additional land" (where the counter-notice is accepted). li>
- In the event that the acquiring authority has taken possession of part of the claimant’s land without having first served a notice to treat or executing a GVD, a different procedure is to be followed.
- In the case of GVDs, where the acquiring authority refers the counter-notice to the Upper Tribunal and the counter-notice was served before the original vesting date the authority can serve notice on the owner specifying a new vesting date for the land proposed to be acquired. This enables the land to vest in the authority and for possession to be taken of it before the Upper Tribunal has made a determination.
The regulations include a raft of transitional provisions which bring the above reforms into force only for orders authorising the compulsory purchase of land made or confirmed (as the case may be) on or after 3rd February 2017. This adds to what is a complicated legal landscape surrounding compulsory acquisition. It is also worth noting that other reforms to the CPO process contained in Part 7 of the Housing and Planning Act 2016 are still to be brought into force, notably the provisions relating to advance payments and the timetable for confirmation of CPOs – so watch this space!