CPO MASTERCLASS
Bob Pritchard Weightmans LLP
www.emlawshare.co.uk
What Will Be Covered
• Recent Case law
• Recent changes to legislation
• Appropriation/interference with rights
• 10 Top Tips for successful CPO
• Housing Act CPOs
• Scenario discussion and questions
www.emlawshare.co.uk
CPO – Recent Renaissance
• Increased use of CPO
– brownfield sites/ town centre schemes –
fragmented and often uncertain ownerships
– Infrastructure schemes – linear CPOs
– Garden communities
• CPO “means to an end” – scheme delivery rather
than simply site assembly (see later)
www.emlawshare.co.uk
Recent Case Law
www.emlawshare.co.uk
BARKER) v (1) SECRETARY OF STATE FOR
HOUSING, COMMUNITIES & LOCAL GOVERNMENT
(2) LONDON BOROUGH OF BARNET (2018)
www.emlawshare.co.uk
BXC Case
• Challenge to BXC CPOs No.1 and No.2
• Claimants owned plot 19 in CPO2 area
• Full and final offer to purchase the claimants' land
for £4.2 million – made on day 1 of inquiry
• Claimants rejected that offer, insisting that they
wanted a much larger sum
www.emlawshare.co.uk
BXC Case
• Claimants argued:-
– Barnet had failed to enter into meaningful
negotiations with them to acquire their
premises
– Barnet had not provided adequate evidence to
demonstrate that it had taken reasonable
steps to acquire the premises by agreement.
– Decision that there was a compelling case was
disproportionate
www.emlawshare.co.uk
BXC Case
• Decision:
– CPO guidance should be followed
– guidance requires acquiring authority to
demonstrate that it had taken reasonable
steps to acquire all of the land and rights
included in the CPO by agreement.
– acquiring authorities were expected to provide
evidence that meaningful attempts at
negotiation had been pursued or at least
genuinely attempted
www.emlawshare.co.uk
BXC Case
• Meaningful negotiations - clear that the
Claimants’ property was for sale and they were
prepared to accept a sum of money for it - but
only one which was far in excess of that which
had been offered by Barnet
• The sums offered were equivalent to the amount
which would be awarded in relation to a CPO.
www.emlawshare.co.uk
BXC Case
• The amount of money demanded by the
claimants was wholly at odds with the
appropriate amount, given the land's market
value.
• Clear that there had been attempts to sell by
agreement, that those attempts had been
rebuffed by a wholly unrealistic approach to the
valuation of the property, and that reasonable
attempts at meaningful negotiations had been
made
www.emlawshare.co.uk
R (on the application of DANIEL CHARLESWORTH)
(Claimant) v CROSSRAIL LTD (Defendant) &
BERKELEY FIFTY-FIVE LTD (Interested party) (2018)
www.emlawshare.co.uk
Crossrail
• JR of Crossrail’s decision to dispose of land on
the open market and to treat B55 as the holder
of a qualifying interest.
• Crossrail subsidiary of TfL and acts on its behalf
on land acquisition
• Claimant held a lease of business premises in
Woolwich - freeholder was the LDA
• The premises were CPOd under the Crossrail
Act 2008 and demolished in order for the railway
to be built.
www.emlawshare.co.uk
Crossrail
• Land was to be disposed of - Crichel Down
applied
• Para.10 - former owners were to be given a first
opportunity to repurchase the land they had
previously owned unless its character had
materially changed.
www.emlawshare.co.uk
Crossrail
• Crichel Down Rules supplemented by C10 Land
Disposal policy:-
– Applies where land has materially changed in
character and requirement to offer back would
be otherwise excluded under para 10
– Holders of Qualifying Interests will be given
opportunity to acquire at market value
before offered to general market
www.emlawshare.co.uk
Crossrail
• Railway and station at Woolwich constructed –
surface of site no longer required for railway
purposes
• Material change in character of land in course of
construction – so Rule 10 applied.
• C10 then applied – Crossrail opted to dispose of
land as one large site including separate plots.
www.emlawshare.co.uk
Crossrail
• Crossrail considered that B55 had a QI as it had
bought the freehold from the LDA prior to the
acquisition of the land for the Crossrail project
and sold it to TfL a few days later.
• When both the Claimant and B55 expressed an
interest, Crossrail offered the site for sale on
the open market.
www.emlawshare.co.uk
Crossrail
• The claimant challenged that decision on the
ground that he had been deprived of his rights
as a dispossessed property owner.
• Claimant also disputed B55’S eligibility to hold a
QI, claiming that TfL had not acquired the land "by
or under threat of compulsion" so that para.7 of
the Rules did not apply.
www.emlawshare.co.uk
Crossrail
• HELD:
• Para.10 Crichel Down applied because there had
been a material change in the character of the
land in the course of the Crossrail construction
works.
• Crossrail correctly concluded that the C10 Policy
applied to the land in issue and had been entitled
to dispose of it as a single site.
www.emlawshare.co.uk
Crossrail
• B55 QI?
– land in issue fell within the compulsory
acquisition powers of the Act and was needed
for Crossrail
– TfL had the power to CPO the land and would
have had to exercise those powers in order to
build the station if an agreement had not been
reached with relevant landowners – including
B55.
www.emlawshare.co.uk
Crossrail
– The transfer to TfL had been negotiated on the
basis that those CPO powers existed
– clear from para.7 of the Rules that the fact that
land was acquired voluntarily did not mean
that it was not acquired under the threat of
compulsory purchase powers.
www.emlawshare.co.uk
Crossrail
– The exception in para.7, where land was
offered for sale before the negotiations for
acquisition, did not apply because compulsory
acquisition was imminent at the time of the
transfer to TfL.
– Accordingly, Crossrail had lawfully applied the
Policy to the land in issue
www.emlawshare.co.uk
Recent Legislative Reforms
• Housing and Planning Act 2016
• Neighbourhood Planning Act 2017
• September 2017 and April 2018
www.emlawshare.co.uk
Confirmation of CPOs
• From 6 April 2018 Secretary of State has had to
publish a timetable(s) in relation to steps to be
taken when confirming a compulsory purchase
order.
• The targets mean that acquiring authorities must
be notified within 10 days of the close of the
public inquiry into the CPO of the expected date
of the Secretary of State’s decision.
www.emlawshare.co.uk
Confirmation of CPOs
• Target dates for confirmation of CPOs are also
included in the updated guidance.
• Target that 80% of cases should be decided
within 20 weeks of the close of the public inquiry
– with the remaining cases decided within 24
weeks.
www.emlawshare.co.uk
Advance payments of CPO compensation
• If requested, amount payable is:-
– 90% of the agreed sum for compensation or
– 90% of the acquiring authority’s estimate of the
compensation due, if possession is taken
before compensation has been agreed.
• Prior to 6 April 2018 advance payments had to
be made within three months from the date of
request or when possession is taken (if later).
www.emlawshare.co.uk
Advance payments of CPO compensation
• Post 6 April 2018 acquiring authority must, within
28 days of receiving a request for an advance
payment, decide whether or not it has enough
information to estimate the amount of
compensation payable. If the acquiring authority
needs more information, it must then require the
claimant to provide it.
www.emlawshare.co.uk
Advance payments of CPO compensation
• Payment must be made:-
– by the date of service of a notice of entry or
GVD
– or within two months of a request from a
claimant (if later).
www.emlawshare.co.uk
Removal of second-bite compensation
• Claimants are no longer entitled to claim
additional compensation where, within 10 years
of the completion of the compulsory purchase by
the acquiring authority, a planning decision is
made granting consent for additional
development on the land.
www.emlawshare.co.uk
Time period for confirmation notices
• Must serve and publish a confirmation notice
within six weeks of a CPO being confirmed
(unless a longer period is agreed between the
acquiring and confirming authorities).
• CPO becomes operative on the date of the
confirmation notice.
www.emlawshare.co.uk
Compensation for disturbance
• Disturbance compensation for business tenants
and lessees with a break clause reformed
• Previously It was assumed that the landlord would
terminate the tenant’s interest at the first
available opportunity (Bishopsgate Space
Management v London Underground (2004)).
• Under the new provisions, the prospect of
continuation or renewal of the tenancy is to be
taken into account.
www.emlawshare.co.uk
No Scheme World
• Towards A Compulsory Purchase Code: (1)
Compensation (Law Commission 2003)
• “the most difficult subject we have had to
address in this project: the complex and
intractable problems arising from the so called
Pointe Gourde (or “no-scheme”) rule.”
www.emlawshare.co.uk
Bloor – Supreme Court
www.emlawshare.co.uk
Bloor – Supreme Court 2017
• “ The Upper Tribunal’s decision in the present case is
a powerful illustration of the potential complexities
generated by the 1961 Act in its unamended form. It is
to be hoped that the amendments currently before
Parliament will be approved, and that taken with the
2011 amendments they will have their desired effect
of simplifying the exercise for the future. It is no
criticism of the tribunal if parts of their reasoning may
appear obscure at first sight and require some
unpicking. ......”
www.emlawshare.co.uk
Concept of “no-scheme world”.
• Assumes that the scheme underlying the compulsory
purchase was cancelled on the valuation date (the
date of entry and taking possession of the land – if not
agreed earlier).
• Compensation for interests in land is its open market
value in the “no-scheme world”, disregarding both
any increase or decrease in the value of the land
which is solely attributable to the particular purpose
for which it is acquired, and the acquiring authority’s
need for the land for that purpose.
www.emlawshare.co.uk
September 2017 Reforms
• The new sections (s6A-6E inserted into the LCA
1961) articulate the no-scheme principle and set
out the parameters of how the “scheme” is to be
approached.
• Subsections (2) to (5) provide for special cases
including under s. 6D(3) and (4) where “land is
acquired for regeneration or redevelopment which
is facilitated or made possible by a relevant
transport project”
www.emlawshare.co.uk
September 2017 Reforms
• Relevant transport project - a transport
project carried out in the exercise of a
statutory function or by the exercise of
compulsory purchase powers (regardless of
whether it is carried out before, after or at the
same time as the regeneration or
redevelopment)
www.emlawshare.co.uk
Land Value Capture? – HCLG committee
Report 10 September 2018
• “…..we believe that the Land Compensation Act 1961 requires
reform so that local authorities have the power to compulsorily
purchase land at a fairer price. The present right of landowners to
receive ‘hope value’—a value reflective of speculative future
planning permissions—serves to distort land prices, encourage
land speculation, and reduce revenues for affordable housing,
infrastructure and local services. We do not believe that such an
approach would be incompatible with human rights legislation, as
there would be a clear public interest and proportionality case to
make this change.”
www.emlawshare.co.uk
Overriding and Appropriation
www.emlawshare.co.uk
Overriding and Appropriation
• Overriding – powers conferred on LAs and other
bodies authorising infringements of private rights in
relation to land (e.g. easements and rights to light)
when carrying out or maintaining works or
subsequently using land
• Appropriation – decision by a LA to appropriate land
it holds for one statutory purpose to some other
statutory purpose - often to take advantage of powers
to override rights
www.emlawshare.co.uk
s.203 HPA 2016
• Replaced powers to override rights acquired or
appropriated for planning purposes previously in
s.237 TCPA
• Although the powers under s.203 are broadly the
same as those under s.237, there is a new
requirement that the power will apply where the
LPA “could acquire the land compulsorily” for
the purposes of the development.
• Development must have planning permission
www.emlawshare.co.uk
S203 HPA 2016
• Could land have been CPOd for planning
purposes?
• Would facilitation of development justify an
interference with the rights of third parties?
• Is there a compelling case in the public interest?
www.emlawshare.co.uk
Spurs Tests
• Consideration 1: The use of statutory powers is
required in that:
– (i) The infringements cannot reasonably be
avoided;
– (ii) The easements to be interfered with cannot
reasonably be released by agreement with
affected owners;
– (iii) The development is prejudiced due to the
risk of injunction and adequate attempts have
been made to remove the injunction risks.
www.emlawshare.co.uk
Spurs Tests
• Consideration 2: The use of statutory powers will
facilitate the carrying out of the Development;
• Consideration 3: The Development will
contribute to the promotion and improvement of
the economic, social, or environmental well-being
of the area and therefore be in the public interest;
• Consideration 4: The benefits of the
Development could not be achieved without
giving rise to the infringements of the identified
rights ;
www.emlawshare.co.uk
Spurs Tests
• Consideration 5: Is it in the public interest that
the development is carried out?
• Consideration 6: Is the public interest to be
achieved proportionate to the private rights being
infringed by the action of Section 203?
www.emlawshare.co.uk
Compensation
• Compensation for interference with rights or
breach of restrictive covenant - the diminution
in value of the claimant's land as a
consequence of the interference or breach of
covenant
• n.b. claimant will not be able to pursue an
injunction to prevent the interference from
taking place - remedy is a claim for
compensation.
www.emlawshare.co.uk
Appropriation - Open Space
• Before appropriating open space must:-
– advertise intention to appropriate for two
consecutive weeks in a newspaper
circulating in the local area;
– consider any objections to the proposed
appropriation
• “Open Space” – land laid out as a public
garden, or used for the purposes of public
recreation, or land which is a disused burial
ground.
www.emlawshare.co.uk
N.B. Appropriation of Commons
etc.
• General power – s. 122 LGA 1972
• BUT appropriation of common, fuel or field
garden allotment above a 250 square yard
threshold can only be carried out pursuant to
s.229 TCPA 1990 - subject to procedural
requirements including submitting the order to
the Secretary of State for confirmation.
www.emlawshare.co.uk
Test For Appropriation
• 2 separate conclusions required:-
– land is no longer required for the purpose for
which it is held
– needed for the new purpose.
• whether the land is no longer required for the
current purpose is solely for the LA acting in
good faith
• In reaching this decision the LA must consider
the public need within the locality for the
existing use
www.emlawshare.co.uk
Western Power Case (2013)
• Cardiff Council held the relevant land as
public space.
• 1976 - fenced off
• Part of the land was used for allotments - the
other (disputed) part as a car park and a
grassed strip ancillary to the allotments.
• No documentation showing that it had been
appropriated in accordance with s.122 of the
1972 Act
• Council sought ‘official’ appropriation.
www.emlawshare.co.uk
Western Power
• Western Power grounds of challenge
– Council had not performed its statutory duty
under s122
– Council had placed excessive emphasis on
the current use of the land,
– Council had taken into account incorrect and
therefore irrelevant factors including that
current information showed that there was
actually a deficit of open space compared
with requirements
www.emlawshare.co.uk
Western Power
• The Court decided:-
– Council had made it clear that its decision
would be whether the land was no longer
needed as public trust land.
– It was entitled to take into account the
submissions of, and use of the land by, the
Allotments Society – even though this was
facilitated by the unlawful exclusion of the
public.
www.emlawshare.co.uk
Western Power
• BUT
– incorrect and inadequate information was put
before the Council e.g. - couldn’t reach a
decision on need in the locality for a public
space when the material deficiency in space
in 3 relevant wards was not disclosed or was
misrepresented
• Council’s decision to appropriate the land was
quashed.
www.emlawshare.co.uk
Moore Case (2014)
• SoS decision to confirm appropriation of
allotment land challenged
• SoS decision had been on basis of 600-650
dwellings
• Day after that decision the number increased to
750
• Increase could have affected decision to
confirm - so it was quashed
www.emlawshare.co.uk
10 Key Issues for Successful CPOs
www.emlawshare.co.uk
Key Issue 1 – The Compelling Case In the
Public Interest
• Essential question – will the public benefit associated
with the proposals outweigh the interference with private
rights?
• Applies to any CPO action
• Clays Lane case – compelling case was given status as
legal test for CPO
www.emlawshare.co.uk
Key Issue 2 - Don’t Forget The Scheme!
• CPO is essentially about scheme delivery
• Identify the scheme at the outset – level of detail will
vary but need to have a clear idea of what the end
product should be
• Regeneration CPO issues
– Escape velocity
– Viability v. step change
– Phasing
www.emlawshare.co.uk
Key Issue 3. – Reports
• Often have an initial “In Principle” Report
• This can assist with negotiations and reduce level of
objections
• Whilst CPO action will not follow immediately care
needed in drafting
– Can be referred to at inquiry
– Need to draft it to avoid the accusations that
authority had predetermined the use of CPO with
regard to a particular landowner
www.emlawshare.co.uk
Key Issue 3. – Reports
• ‘Final’ Report
• Should aim to be in a position to make CPO without delay
• Matters to cover:-
– “Compelling case in the public interest” – members should have sufficient information before them to allow them to come to an informed decision
– Refer to powers and how the statutory tests are met (see later)
– Planning
– Funding
– Delivery mechanism – e.g key aspects of DA
– Human rights (eg A8, A1 First Protocol)
www.emlawshare.co.uk
Key Issue 3. – Reports
• ‘Final’ Report
– Make sure delegations are dealt with
– If authority is needed to continue with voluntary
acquisitions recite powers.
– Draft Statement of Reasons should be
appended if at all possible
– Accurate CPO plan is important – if in doubt
about extent of boundary, put land in
www.emlawshare.co.uk
Key Issue 3. – Reports
• ‘Final’ Report
• Consequences of getting it wrong
– Possible challenge
– But more likely difficulties at Inquiry
www.emlawshare.co.uk
Key Issue 4. – CPO Powers
• Section 226(1)(a) TCPA 1990 as amended - key
regeneration power (including housing based
regeneration)
• If there is a specific power should use this rather
than opting for general LGA power
www.emlawshare.co.uk
Key Issue 4. – CPO Powers
• Whilst planning permission is not a pre-requisite,
still necessary to establish a robust planning basis
for a CPO under Section 226(1)(a)
• Significant advantages if a planning permission
is obtained for the underlying scheme before the
Order is made and especially before the CPO
Inquiry (see later)
www.emlawshare.co.uk
Key Issue 5. – Planning Backing
• CPO Guidance - no planning or other barriers to
proceeding with scheme
• Guidance suggests that planning permission need
not be in place (different emphasis for highway
schemes) BUT
– Needs to be a good reason why not!
– Can it be available pre – inquiry?
– If not in place, robust planning policy backing
even more important.
www.emlawshare.co.uk
Key Issue 5. – Planning Backing
• Planning Policy
– Helps to support scheme authority are
promoting
– Can help to resist rival schemes
www.emlawshare.co.uk
Key Issue 5. – Planning Backing
• Policy Includes:-
– Development Plan
– SPD – including development briefs
• Possibility of non – statutory policy backing to be
adopted at a later stage – (BUT risk area – see
Skipton Properties)
• NB links to other policy docs e.g.
– Regeneration policies
– Transport policy
– Economic policy
www.emlawshare.co.uk
Key Issue 6. - Deliverability
• Scheme must be acceptable from a planning
policy perspective and also from a
viability/deliverability point of view – the two
should overlap under local plan system
• Proposals should have a reasonable prospect of
being achieved within a reasonable timescale
www.emlawshare.co.uk
Key Issue 6. - Deliverability
• Funding may be:-
– Wholly private sector
– Wholly public sector – increasingly rare !
– Combination – regeneration CPOs will
commonly fall in this category
www.emlawshare.co.uk
Key Issue 6. - Deliverability
• Negotiations - start early and keep on throughout
process – deals often done in run up to and
sometimes during the inquiry!
• Avoid impression that CPO is first rather than
last resort
• Need to ensure consistency with deals –
particularly where there are a large number of
similar properties
• Identify “problem plots” early on and build into
strategy
www.emlawshare.co.uk
Key Issue 7. – Partnership Working
• Developer procurement
– When? – ideally pre CPO but it depends on
circumstances
– Partnership approach crucial – input into
planning process can be very helpful
www.emlawshare.co.uk
Key Issue 7. – Partnership Working
• CPO anchored projects often involve a number of
disciplines and partners
• Assemble team early on
• Need to have:-
– Clear roles and responsibilities;
– Strong and clear leadership;
– Appropriate and flexible decision making
arrangements;
– Core team and others to call on;
– Clear project plan
www.emlawshare.co.uk
Key Issue 8. – Human Rights
• CPO will interfere with individual rights.
• Key point will public benefit outweigh the interference?
• Article 1 First Protocol – property rights
• Article 8 – right to home private and family life
• Address at all stages of process including:-
– Board/Cabinet/Council report requesting authority to make CPO;
– Statement of Reasons;
– Statement of Case;
– Evidence
www.emlawshare.co.uk
Key Issue 9. - Relocation
• Aim to demonstrate that interference with individual
rights is proportionate by employing a relocation
strategy that minimises interference with individual
rights.
• Residential - relocation strategy essential, -
Inspectors at CPO inquiries have considered
individual re-housing issues
• Commercial - continuity of provision (eg retail) –
consider economic impact of CPO action and need to
minimise it
www.emlawshare.co.uk
Key Issue 10. – Anticipate Objections
• Common ones:-
– Need to protect private rights should outweigh
public interest
– Viability not established
– Scheme can be delivered without CPO
– Land can be excluded – particularly land on
CPO boundary
www.emlawshare.co.uk
Housing Act CPOs
www.emlawshare.co.uk
Housing Act CPOs
• Section 17 HA 1985 empowers local housing
authorities to acquire land, houses or other
properties by compulsion for the provision of
housing accommodation.
• Acquisition must achieve a quantitative or
qualitative housing gain.
www.emlawshare.co.uk
Empty Properties
• Last resort in situations where there appears to
be no other prospect of a suitable property being
brought back into residential use.
– How long has property has been vacant?
– What steps has the authority taken to
encourage the owner to bring it into acceptable
use and the outcome; and
– What works have been carried out by the
owner towards its reuse for housing purposes?
www.emlawshare.co.uk
Housing v Planning Powers
www.emlawshare.co.uk
Scenario and Discussion
www.emlawshare.co.uk
Check out the website …
www.emlawshare.co.uk
Top Related