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Compulsory Purchase and compensation claims in the Upper Tribunal

Compulsory Purchase is the formal process by which the state (government, or local government or a specifically authorised body) takes land or rights from an individual, because of an overriding public need for the land. Usually the authorisation for the acquisition is contained in a general statutory power (for example the Highways Act for roads, or the Housing Acts for regeneration projects); but sometimes the procedure is through an Act of Parliament specifically authorising the acquisition (such as the powers for the High Speed rail lines).

Acquisitions under direct legislation are covered by Parliamentary procedures, in which we can advise and assist. There are also Development Consent Orders through which authority is given, in a ‘one stop shop’ for a large scale infrastructure project; again we can advise and assist in the objection process. 

The vast majority of CPO work is dealt with under a process in which the authority will find out what it can about ownership of land in which it is interested and will then publish a draft order and serve it on the reputed owners. It is very important for a land owner or a party with rights over affected land to engage in the process at the earliest opportunity, so that they are then served with the draft order, and to take legal advice as soon as possible, because objections to the draft will have to be lodged within a short fixed period.

The objection needs to be prepared with care because whilst the authority will explain its reasons for acquiring the land, it is effectively for the owner to demonstrate something to persuade the relevant Secretary of State that it is not in the public interest to confirm the Order. This process may involve written procedures or a hearing or public inquiry, at which we can represent you. 

A recurrent problem caused by late engagement is that by the time of a CPO inquiry, it may be more difficult to change the terms of the Order than it would have been at the outset. However we have fought CPOs for clients in the past in which Orders have been changed sometimes through undertakings by the authority. Great care is needed to ensure that the changes are enforceable.

If the CPO is confirmed then it may be necessary to challenge the confirmation of the CPO in the High Court on legal grounds, under special statutory provisions, which our Team are able to pursue on your behalf.  

But in general once a CPO is confirmed the next stage will be to assess compensation for the land being taken. The rules governing compensation are well known to be complex. Essentially the authority will have to pay the market value for the land, but ignoring the effects of the scheme under which the land is acquired, together with a sum to reflect the disturbance of the owner from the land. On the face of it, the amount will be for an experienced surveyor to assess, but the rules are so complicated that it is often very important to take legal advice before a valuation basis can be settled. We can also help advise on the kind of records that should be kept as to business disturbance, so as to minimise the potential for challenges down the line. 

A particular area of work that we are frequently engaged to advise on is as to what kind of development might have been allowed on a site if it had not been for the CPO scheme. This is an area which has seen some very difficult cases, including the leading case of Fletcher (House of Lords) which adopted the scheme cancellation approach which was later embodied into statutory amendments. We have also represented many land owners in applications for Certificates of Appropriate Alternative Development and in appeals (which are now handled by the Upper Tribunal); these are akin to planning appeals but consider issues on a hypothetical basis.

If compensation is not agreed through negotiation then it is settled by the Upper Tribunal (Lands Chamber). We have worked on many references to the Tribunal, including fully contested cases such as Eron Park and Eron Park No.2 (disturbance to include loss of potential profit); Partridge (multi layered assessment of compensation); Matthews (Council’s intended use of without prejudice material blocked); Smith (Compensation following withdrawal of PD rights). 

In some situations it may be appropriate to try to force an authority into a ‘reverse’ CPO through a purchase notice (where there is no reasonably beneficial use of land available after a planning decision) or a blight notice (where land can be acquired in advance of a formal CPO if it is earmarked for public use). We are able to advise on whether these procedures are of use in particular situations.

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