CPO Masterclass - EM LawShareemlawshare.co.uk/wp-content/uploads/2019/02/CPO-Masterclass.pdf · Tip...
Transcript of CPO Masterclass - EM LawShareemlawshare.co.uk/wp-content/uploads/2019/02/CPO-Masterclass.pdf · Tip...
CPO Masterclass
Stephen Coult, Browne Jacobson
Nathan Holden, Freeths LLP
Overview of the CPO
Process
Nathan Holden
www.emlawshare.co.uk
Overview of the CPO process
• Obtaining approval for the process
• Making the CPO
• Confirmation
• Implementation
• Compensation
• Appropriation
• Neighbourhood Planning Bill
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Obtaining approval (1)
• Powers – e.g. s.226 TCPA 1990?
• Guidance “Guidance on the Compulsory
purchase process and The Crichel Down Rules
for the disposal of surplus land acquired by, or
under the threat of, compulsion” (October 2015)
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Obtaining approval (2)
• Key principles (1) :
– “Compelling case in the public interest ”
– “The minister confirming the order has to be able to take a
balanced view between the intentions of the acquiring and the
concerns of those with an interest in the land that it is
proposing to acquire compulsorily and the wider public
interest. The more comprehensive the justification which the
acquiring authority can present, the stronger its case is likely
to be.”
– “acquiring authority should be sure that the purposes for
which the compulsory purchase order is made justify
interfering with the human rights of those with an interest in
the land affected ”
– More than just planning permission!
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Obtaining approval (3)
• Key principles (2) :
– “If an acquiring authority does not
• have a clear idea of how it intends to use the land which it is
proposing to acquire; and
• cannot show that all the necessary resources are likely to be
available to achieve that end within a reasonable time-scale
– It will be difficult to show conclusively that the compulsory
acquisition of the land included in the order is justified in the
public interest, at any rate at the time of its making”
– Sources and timing of funding
“.....need to show that the scheme is unlikely to be blocked by
any physical or legal impediments to implementation.”
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Obtaining approval (4)
– These include:
• the programming of any infrastructure
accommodation works or remedial work
which may be required; and
• any need for planning permission or other
consent or licence
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Obtaining approval (5)
• Key principles (3) :
o Equality Impacts – public sector equality duty
Following the Inspector’s and the Secretary of
State’s decision in the recent Southwark case
this has become more important and may arise
irrespective of whether the issue is raised by a
qualifying objector
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Making the Order (1) – documentation
• Prepare the Order (statutory power to acquire
land and new rights e.g. s.13 Local Government
(Misc Provisions) Act 1976
• Prepare a schedule of interests (identify qualifying
persons, all those with an interest in the land)
• Prepare a plan (1:1250 scale) – where land is be
acquired shown in pink where rights only to be
acquired coloured blue – rights include rights to
carryout works to party wall or over sailing land
with the jib of a crane
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Making the Order (2) – service
• Notice of making (served individually)
• Newspaper notice (2 successive weeks)
• Site notices
• All objections to be sent to the SoS (21 days) –
have to be valid to count
• Statement of Reasons
• Place documents on deposit/website
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Making the Order (3)
• Send paperwork to the SoS – e.g. PCU for
planning CPOs
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Making the Order (4)
• No “qualifying objections” - SoS approves the Council
confirming its own CPO
• “Qualifying objections” - CPO inquiry (option for
written process)
– CPO inquiry presided over by an Inspector
– Prepare evidence
– CPO local public inquiry
– CPO writes report and sends it to the SoS
– SoS decides whether to confirm the CPO (this is
the current position but in future may a change)
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SoS decisions and thereafter
• SoS confirms CPO (6 week challenge period
triggered by notice of confirmation and press
notice)
• SoS does not confirm (LA seeks leave for JR)
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Implementing the CPO (1)
• General Vesting Declaration Process (recently
amended by the Housing and Planning Act 2016) –
Notice of confirmation and intention to vest in same
notice
• GVD made at any time, but cannot come into effect for
3 months –date it comes into effect the land
automatically vests in the acquiring authority
• Notice to Treat/Notice of Entry – minimum of 3 months
notice to obtain statutory occupation (not ownership)
• 3 year time period to activate CPO or it lapses –
extendable by up to a year where a CPO has been
judicially challenged
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Implementing the CPO (2)
• Entitlement to compulsory purchase compensation
triggered by vesting or occupation obtained by use of the
notice to treat and notice of entry procedure
• Principles (Land Compensation Act 1961)
• CPO of part
– Market value of land taken (“no scheme world”)
– Affect on land not taken arising from loss of land
– Impact on value of land not taken by works on land
taken
• CPO of whole
– Business occupier – disturbance/ extinguishment?
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Contested compensation claims
• Upper Tribunal (Lands Chamber)
• 6 year time limit for bringing claims
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Appropriation
• Local authorities powers of appropriation (section
122 Local Government Act 1972)
– no longer required
– new use a use land could have been acquired
for
• Appropriation by implication?
• Effect of appropriation where land is transferred to
be held for a planning purpose (s.203 Housing
and Planning Act 2016)
• Compensation
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Changes to the CPO process in progress
(Neighbourhood Planning Bill)
• Temporary possession of land
• Codification of the “no-scheme world” principle
• Part 4 and Schedule 3 Land Compensation Act
1961 repealed
• Six week time period following confirmation to
advertise and serve notice of confirmation
• Tenants and licensees on the same
compensation footing
Cost Management in
Compulsory Purchase
Steve Coult
www.emlawshare.co.uk
Content
• Overview of costs
• Series of practical tips to address cost control.
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Overview of costs
• Each CPO situation is unique.
• The need for cost control increases with the
number of interests to be acquired.
• Because CPO tends to be contentious predicting
costs is difficult.
• The reliability of acquisition cost forecasts will
vary depending upon the type of property.
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Uniqueness
• Internal or external project?
• Referencing at the heart of determining what is
being acquired.
• Land registration a significant help.
• However:-
– What is on the ground - other occupiers
– Any obvious easements or other rights
• Predictability will come with detailed investigation.
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Scale
• Scale of project will determine
– Resources to be put into referencing
– Whether to outsource to specialists
– Brief for referencing.
– General management approach – degree of
project management
– Acquisition strategy
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Contentiousness
• Your costs are dependent upon the actions of
others.
• 2 formal forums
– The Public Inquiry – must prepare for but may
not happen
– The Upper Tribunal (Lands Chamber) – again
must budget for disputes
• Possible use of mediation to reach settlement –
lower cost option.
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Compensation forecasting
• Duty of acquiring authority to pay the right
compensation.
• Claimants inflate claims
• High risk areas are:-
– Disturbance claims from large complex
business
– Development values and particular the
application of the “No Scheme World” rules
– Ransom
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Tip 1 - Indemnity
• NEVER embark on CPO for the benefit of private
landowning interests without an Indemnity
Agreement being in place.
• Indemnity should not only cover costs but should
set out respective roles in relation to various
activities.
• Acquiring Authority should maintain ultimate
control over Public Inquiry and references to the
Tribunal
• Guarantees
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Tip 2 – Project Management
• Any complex CPO should be controlled through
Project Management
– Appoint a Project Board with sufficient senior
staff
– Appoint a Project Manager to set milestones
and keep the project on track.
– Appoint a lead for land acquisition
• Follow the approach set out in the CPO Manual
• Where acting on behalf of a developer they may
sit on the Project Board.
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Tip 3 Approve a Land
Acquisition Strategy • Get the Project Board to approve a Land
Acquisition Strategy dealing with:-
– Approach to referencing
– Overall acquisition budget including public
inquiry
– Advance purchases
– Blight
• Ensure Project Board has sufficient delegated
authority to bind Council
• Implement strategy!
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Tip 4 Utilise “in house” skills
• CPO public inquiry has considerable similarities to
planning inquiries.
– What witnesses are “in house”?
– Can advocacy be conducted “in house” for
smaller inquiries?
• But careful that staff are not being diverted from
other important work. CPO inquiry work time
consuming
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Tip 5 - Settle
• Do deals
– Conditional agreements on CPO being
confirmed
– Conditional agreements leaving compensation
to be settled and with a right of reference to the
Tribunal.
– Utilise loss payments
– Pay above market rate when in public interest
to avoid other costs.
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Tip 6 Always settle on the
basis of threat of CPO • Important to “cleanse” land
• Brings in effect of S237 TCPA 1990
• Ensures those with overriding interests cannot
hold acquiring authority to ransom.
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Tip 7 Vesting v Treating
• Cost implications are:-
– Vesting is a one way ticket – acquiring
authority cannot back out.
– Notice to Treat only in same position once land
occupied by acquiring authority
– Therefore if there is some flexibility in whether
to acquire a property Notice to Treat can
provide that flexibilty
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Tip 8- Tribunal References
• Note four procedures for Tribunal to determine
references.
– Special Procedure
– Standard Procedure
– Simplified Procedure
– Written Procedure
• Pick the right procedure for the case.
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Tip 9 Business Claims
• Disturbance costs can be the big ticket item.
• If at Tribunal forensic accountants now tend to
provide expert advice (as opposed to surveyors)
• Very expensive
• Seek evidence from claimant and try and settle as
much as possible reducing area of dispute
• Try and get high level view of appropriate
multiplier from accountants – likely to be the main
driver of quantum.
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Tip 10 Counsel and the
Tribunal • Use appropriate grade of Counsel
– Juniors with experience for matters essentially
about evidence
– Seniors where points of law may be involved
• But – hope to avoid matters were there are points
of law – this is a large driver of cost.
CPO Workshop
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The Background (1)
• South East Coalville (shown as Location A in
Document 1) was identified as a potential broad
location for development as the North West
Leicestershire DC worked on its Core Strategy.
• It was not the first time the site had been a preferred
location as it was an allocated site H4g in the North
West Leicestershire Local Plan (See Document 2)
• However critical to its development was the provision
of the Bardon Coalville Link road marked T2a(i) on the
local plan map.
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Document 1
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Document 2
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The Background (2)
• There had been early attempts to deliver the road
(see Document 3), a David Wilson scheme from the
1990’s but the road became particularly complex at its
eastern end (see railway crossing and houses
affected in Document 4)
• Nevertheless the published Core Strategy
emphasised that up to 3500 dwellings could emerge
from the site (See Document 5) over an extensive
greenfield area (see Document 6 aerial view and
Document 7 redline area.
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Document 3
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Document 4
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Document 5
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Document 6
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Document 7
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Background (3)
• This in particular encouraged Bloor to make an
application for partial development of the site (see
layout plan at Document 8) but note that they were not
proposing to deliver the Link Road arguing that it was
not necessary for the scale of development proposed
on their part of the site.
• At the same time other parties were working on the
wider masterplan proposals (see Site Masterplan at
Document 9) which includes Link Road.
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Document 8
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Document 9
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Background 4
• However the problem of fragmented ownership to
deliver the road and determine who was going to pay
for it dogged the situation (see Sim drawings
Documents 10 and 11).
• Various builders had secured agreements over parts
of the site but there was great difficulty in arranging
any cooperation between them. Informally they
invited NWLDC to use its CPO powers to secure the
land for the link.
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Document 10
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Document 11
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The Task
• Form yourselves into groups of 6-8 people.
• Consider the options facing the Council and advise
how you would take this forwards. In particular in
advising the Council
– What would you do about the Bloors application.
– What would you do about the emerging Core
Strategy
– What would you do about the request to the
Council to use its CPO powers?
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Check out the website …
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