Housing and Planning Bill Update
Debate in House of Commons Public Bill Committee - 8 December 2015
The compulsory purchase clauses of the Housing and Planning Bill (the Bill) were debated by the House of Commons Public Bill Committee on 8 December 2015. A number of government amendments were considered. A summary of the outcomes of the debate is set out below.
The Committee continues to monitor progress with the Bill and has engaged with Government and the Opposition in relation to the Bill's content.
Right to enter and survey land
The draft Bill provides, for all acquiring authorities, provision of a general power of entry prior to a compulsory purchase order being made; to introduce a standard warrant provision in relation to the proposed new power of entry for survey; and to introduce a standard notice period of 14 days for entry for survey purposes.
The Government proposed a number of amendments to ensure that the right of entry may be exercised to value land as well as to survey it. Further, that the right of entry can be exercised where land is being acquired by agreement as well as by compulsion.
Government amendments also sought to clarify how the new right of entry will interact with a number of existing powers of entry. Where the new general power covers all the purposes of an existing power of entry, for the existing power will be repealed. Where the existing power is wider than that of the new general power, the Government will amend the existing power so that it no longer applies to the specific purposes for which the general power can be used. The amendments were agreed.
Crown land and surveys
The new power of entry will be available in relation to Crown land (any land in which there is a Crown or a duchy interest, for example), but permission of the appropriate Crown authority must first be obtained.
Confirmation by Inspectors
Draft clause 119 would allow a confirming authority to appoint an Inspector to act instead of it in relation to the confirmation of a compulsory purchase order to which section 13A of the Acquisition of Land Act 1981 applies (confirmation of order: remaining objections).
The intended effect of the Government amendment would be that an inspector’s decision whether or not to confirm the whole or part of a compulsory purchase order would be treated as a decision of the confirming authority. The amendment was agreed.
The Government's formal response to the Technical Consultation acknowledged the reservations expressed by some respondents (including CPA) about the criteria for the delegation of decisions to Inspectors. It confirmed that the Government will consider further what criteria would be appropriate. In the debate the parliamentary under-secretary of state again confirmed that:
"The Government intend to publish a policy on which orders are suitable for confirmation by an inspector after further engagement with stakeholders. The provision is, however, likely to be useful in cases that do not raise issues of more than local importance. In such cases, the Secretary of State often fully agrees with the inspector’s reasoning and decides the order in accordance with the inspector’s recommendation. Removing this double handling could shorten the process by up to 12 weeks."
The Bill contains enabling provisions for the Secretary of State to develop targets and clear timetables for the confirmation stage of the CPO process.
Draft clause 120 clarifies that notices to treat and general vesting declarations may not be served more than three years after confirmation of the compulsory purchase order.
This would clarify that a general vesting declaration may not be made after the end of the period of 3 years beginning with the day on which the compulsory purchase order becomes operative. This will be a generally welcome clarification after the uncertainty on the issue created by case law.
The Government amendments would have the effect of amending references to a general vesting declaration so that they are consistent with the terminology of section 4 of the Compulsory Purchase (Vesting Declarations) Act 1981 by substituting the word "executed" for the word "made".
Power to override easements and other rights
Draft clause 137 would introduce a new power which would extend the existing powers to override easements and restrictive covenants under the Town and Country Planning Act 1990 (TCPA) and other legislation to all acquiring authorities, such as statutory undertakers, which do not already have those powers.
The Bill's current draft clause 137(2)(b) does not provide for appropriation of land. The Government amendments are intended to ensure that land already held for other purposes will benefit from clause 137 in the same way that land newly acquired for the same purpose after commencement will be able to.
The effect of schedule 11 to the Bill will be to remove the existing powers of those bodies which already have the power to override easements and other rights. The new government amendments will ensure that the new powers in clause 137 will be extended to land that is or has been owned by those bodies whose existing powers are removed.
Draft clause 137(4)(c) stated that the power to override easements applies to the use of land where the authority could have purchased the land compulsorily to construct or erect any building for that use. The amendment extends that provision so that it refers to the carrying out of any works for the use in question to allow it to apply to certain uses which may not require a building to be constructed, e.g. a carpark or landscaping.
The amendments also split clause 137 into clauses; 137A and 137B, because the clause was judged to have become too unwieldy. A number of the amendments introduce references to a local authority’s planning purposes so there were consequential amendments to the definition of local authority in the provisions.
Material detriment claims
Draft clause 134 it is stated is intended to harmonise (as far as possible) the approach to the treatment of material detriment under the procedures for taking possession. The Bill would also allow the acquiring authority to enter and take possession in advance of any dispute about material detriment having been determined by the Upper Tribunal.
Draft clause 134 was debated but not amended. The parliamentary under-secretary of state sought to explain clause 134 and the schedules 9 and 10 which the clause introduces and which contain a dispute resolution procedure where material detriment has been alleged. The parliamentary under-secretary of stated:
"Among the procedural details are three important points. First, the acquiring authority is permitted to enter the land that it wants and to get on with its scheme where the counter-notice has been referred to the tribunal. That is set out in paragraph 11 of new schedule 2A, referred to in paragraph 5(b).Secondly, if the acquiring authority does that, there is no going back, as it will be compelled to take the remainder of the land if the tribunal finds in favour of the claimant. That is the effect of paragraph 21(1)(c) of the new schedule 2A, which allows the acquiring authority to withdraw its notice to treat only if it has not yet entered on and taken possession of the land.Thirdly, if the tribunal requires all or some more of the remaining land to be taken, the claimant will be compensated for any losses caused by the temporary severance of the land where the authority has already entered part of it. For example, if part of a claimant’s business premises is taken, he or she may incur trading losses over and above those that would have occurred had the land been taken in the first instance. That is provided for in paragraph 26(5) of new schedule 2A."
Paragraph 9 inserts a new section 2A into the Acquisition of Land Act 1981 that will allow acquiring authorities to disapply the material detriment provisions for land that is 9 metres or more below the surface. .
There were no amendments to the proposed provisions on harmonising time periods, reform of advance payments of compensation, high court orders, and challenges to orders.