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July Newsletter

Compulsory Purchase Association
Published by · 12 July 2019
Good morning,

I have pleasure in sharing the July Newsletter. Apologies that I’m still not in the habit of sending them more regularly, and I’m still failing in achieving economy of expression…

Annual Conference
I’m delighted to confirm that we had another record attendance at this year’s conference, with 313 delegates having attended. We were treated to presentations from 15 excellent speakers, of which highlights included;

  • A powerful keynote speech from Martin Rodger QC setting out what the Tribunal is doing to ensure it is accessible for all and there is no obstacle to justice, and reminding us all of the cost capping provisions that are available. I don’t think Martin left anybody in any doubt that he considers brevity to be preferable when it comes to Tribunal submissions: we should all heed the statement that ‘completeness is not a virtue, it’s a very serious vice’! (apologies that I have failed to apply that very effectively with this newsletter);
  • An excellent case study about best practice use of CP powers by David Beale of Leicester City Council;
  • An insight in to the world of land referencing delivered by Tony Pratt of Terraquest, explaining ways that technology is being used in that field. Roger Messenger then set out how Automated Valuation Models may be beneficial in preparing property cost estimates and for other purposes;
  • A fantastic great double act by Michael Eckett of HS2 and David Baker of Baker Rose, which highlighted the potential mental health implications of compulsory purchase, as well as covering various other issues associated with the HS2 project;
  • An interesting discussion on Certificates of Appropriate Alternative Development presented by Greg Dickson of Barton Willmore and Sarah Collins of Highways England;
  • A view from Charles Clarke on the use of the CPA’s Compensation Claims Protocol;
  • An update from Scotland delivered by Karen Hamilton of Brodies, and an update from Wales delivered by Gary Soloman of Burges Salmon;
  • A look back at reform successes presented by last year’s Chair, Vicky Fowler, and a look to the CPA’s future challenges and activity presented by vice Chair Rebecca Clutten; and
  • The return of the case law update, with a presentation on decisions pertaining to costs delivered by Melissa Murphy of FTB, and a full update on recent decisions presented by Peter Village QC of 39 Essex Chambers.

We also introduced new technology in the form of Sli.do for questions. That seemed to be very well received, with over 100 questions submitted during the course of the day. There were also well in excess of 100 tweets using the #CPA2019 hashtag.

Finally on the conference, a big thank you to Dalcour Maclaren for sponsoring the refreshments.

Annual Conference 2020
Next year we’ve decided to take the conference on the road for the first time. Given the increasing numbers of CP practitioners outside of London, and following the success of last year’s AGM, I’m delighted that we’ve selected Birmingham for 2020. More details on that in due course.
  
International Right of Way Association (IRWA) and CPA/IRWA International conference – 24/25 March 2020
The CPA has had a fantastic and mutually beneficial relationship with the IRWA for several years. A key benefit of the relationship is the exchange of skills, lessons learned and best practice; in many ways our reform agenda has been shaped by our learnings from IRWA conferences. We have been privileged that IRWA members have spoken at a number of our events and worked with us in presenting reform to civil servants. They have also shown great generosity in allowing us some free passes for their annual Education Conference, which I was honoured to attend in Portland, Oregon, last month, together with past CPA Chairmen Meyric Lewis and Richard Asher.

I found it a hugely rewarding experience, and I know Meyric and Richard did also. Our hosts were incredibly welcoming, and the opportunity to learn from people undertaking similar work to ourselves in countries as diverse as Mexico, Nigeria, Australia, Canada, Saudi Arabia and the US was hugely beneficial. The following quote (borrowed from Delta Airways’ in-flight entertainment) certainly resonated with me as I took to the air back to the UK:

‘We’re more alike than we are different. Somewhere along the way we start to believe that the more distant we are from each other, the more different we must be from each other. It’s only when we venture out in to the world that we realise all the things we share’.

I’m delighted that the IRWA and the CPA are partnering with CPT Events to host an International Land Assembly Summit in London in March 2020. The event will be hosted in Southwark (thanks to EY and Gowling WLG), and will also take in a drinks reception at the House of Lords. More information is available here, and if you have ideas for speakers or topics please contact mbarlow@cptevents.co.uk
  
Board Nominations
Nominations are open for 6 board members, Chair and Vice Chair for the coming year. For details click here. Closing date for completed nomination forms to be returned to the office is 1 August 17.00. It’s important that the CPA’s Board is diverse in terms of experience and the disciplines represented, and I can only speak from my own experience of how rewarding it is to be a Board member, so I would encourage as many nominations as possible.

EY Survey
The annual EY CPO survey is currently open. I would encourage as many people to respond as possible; click here to take part

CPA Events

Past
  • CPA Future held an event titled ‘Lessons Learned from the Olympics CPOs’ in March, and a reception with George Bartlett QC that focused on his experiences as President of the Lands Tribunal in June. Both events were very well attended.
  • Our annual Law Reform Lecture was introduced by Rebecca Clutten and delivered by Mary Cook of Town legal. It was another event with a record attendance and the lecture focused on whether there is a need to reform the law of blight. Mary delivered a hugely interesting paper that included an overview of discretionary schemes that have been introduced by various project promoters, and considered whether there is a need for legislation to deliver greater fairness for indirectly affected property owners and occupiers. Mary’s paper is available here and the slides from the event are available here.
  • We held our inaugural event on the new Electronic Communications Code last month. It raised the simple question: ‘Is it working?’. We had a stellar line up of speakers, and whilst it would be easy to answer a simple question with a simple answer of ‘no’, the speakers and panel participants got stuck in to the detail of the Code, and how things are playing out in practice. It’s a very interesting and active field, and looks set to remain that way until a ‘new normal’ is eventually accepted by operators and site providers. A number of Tribunal decisions have begun to inform that, but there will be plenty more before all parties get comfortable (and it’s worth noting that Martin Rodger QC confirmed at conference that 77 references have been made to the Tribunal thus far).

Forthcoming
  • We have the annual CPA Future Summer Social event on 25th September; details here. It shares the same date as CPT’s Annual CPO Convention (details here), and the 2 events can be booked together.
  • Date for Diary - CPA Annual Dinner 2020 - Thursday 13th February - further details to follow. If you interested in sponsoring this event, please email us here.

Details of our AGM and Tony Johnson Memorial Lecture will be released shortly. That event will return to London this year.
 
A case of note and a cautionary tale
Whilst it’s not a compulsory purchase case, it’s worth highlighting the recent case of Cornerstone Telecommunications Infrastructure Limited v (1) Central Saint Giles General Partner Limited and (2) Clarion Housing Association Limited. Whilst this case related to telecoms, it is the Tribunal’s decision on costs which is of particular noteworthiness. The aforementioned Martin Rodger QC was about as damning about the parties’ behaviours as I can recall reading in a decision.

The principle point of dispute had actually been settled by the time of the hearing, leaving costs as the only issue outstanding. In the second paragraph of the decision Mr Rodger set out his stall, stating: ‘I also wish to emphasise the importance the Tribunal places on discouraging senseless disputes of this sort, and to put down a marker that the conduct which this case illustrates, over-reaching on one side and obstruction on the other, is disproportionate, inappropriate, and unacceptable’. Between them, the parties had racked up over £100,000 in fees. Having had regard to the history and subject of the dispute, and the agreement reached between the parties, the Tribunal concluded that the successful parties were the first and second respondents. Those parties sought recovery of all of their costs, but the Mr Rodger ruled as follows;

‘In my judgement the respondents are the successful parties in the reference and in principle are entitled to their costs. On the other hand, they have conceded the principle which they disputed at length in their pleadings and skeleton arguments. Additionally, the manner in which the proceedings have been conducted on all sides has been wholly disproportionate to the dispute. Responsibility for that falls on both the claimant and the respondents. While I am therefore going to make an order that both respondents’
costs of the reference should be paid by the claimant, they should not have the whole of their costs. The first respondent raised issues which were completely unnecessary, and which have not been pursued. The second respondent has hitched itself to the arguments of the first respondent and must take the consequences.

I have considered the detailed statements of costs provided by all three parties. Having done so I am satisfied that the appropriate order in this case is that the claimant should pay £5,000 towards the costs of each of the respondents…… I appreciate that it is very much less than either of the respondents has incurred in this reference. But they need not have incurred nearly as much as they have’.

I would suggest that readers heed this cautionary tale. The Tribunal is clearly (and quite rightly) losing patience with having to hear unnecessary disputes where disproportionate costs have been racked up by the parties. A move towards a ‘polluter pays’ approach is to be welcomed from my personal perspective, and this case seems to be a step in that direction.

Thanks very much for reading, and well done if you’ve made it to the end! Thanks again to those of you who attended last week’s conference, and hopefully I’ll see you all soon.

Best wishes,
Jonathan Stott
CPA Chair



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