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You are here: BAILII >> Databases >> The Law Commission >> TOWARDS A COMPULSORY PURCHASE CODE: 2 PROCEDURE (A Consultative Report) [2002] EWLC 169(10) (18 November 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/169(10).html Cite as: [2002] EWLC 169(10) |
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Part X
Proposals and consultation ISSUES
(1) Subject to (2) service of notices required under the legislation shall be effected in accordance with “standard service”, defined to include:
(a) Personal service;
(b) Delivery, or posting by registered letter or recorded delivery, to the “proper address”;[1] and
(c) Service on a company or other body (including an unincorporated body) by service on an appropriate officer or member, at the registered or principal office.
(2) In relation to categories of interest and circumstances prescribed by regulations, and in other cases where the names and addresses cannot reasonably be ascertained, service may be effected by “special service”, defined to require fixing of notices on or near the land, and such other steps as may be prescribed by the regulations.
[See Part III, paras 3.15-3.26]
Consultation issue (A) – Service of documents
(1) Do consultees agree that the Government’s proposals relating to service can be given effect by adapting the service rules of the Acquisition Act as applied by the 1965 Act?
(2) If so, do consultees feel that the detail of “special service” should be governed by secondary rather than primary legislation?
(3) Are there practical issues not covered by our formulation?
[See Part III, paras 3.15-3.26]
Consultation issue (B) – Entry for survey
Do consultees agree with our provisional proposal to retain the effect of section 11(3) of the 1965 Act unchanged, leaving in place any wider powers under the 1976 Act or other statutes?
[See Part III, paras 3.27-3.30]
Does the distinction drawn in the Acquisition Act between the procedures, respectively, for ministerial and non-ministerial orders serve any practical purpose?
[See Part IV, paras 4.3-4.5]
[See Part IV, paras 4.6-4.8]
[See Part IV, paras 4.9-4.15]
(1) The statutory procedure for challenging the validity of an order (and the statutory immunity from challenge in other proceedings) should apply to the decision of the confirming authority to confirm or refuse to confirm the order, and not to earlier stages (which would be subject to judicial review).
(2) The court should have power to quash simply the decision of the confirming authority, or make such order as is appropriate.
[See Part IV, paras 4.16-4.24]
[See Part IV, paras 4.16-4.24]
[See Part V, paras 5.4-5.5]
[See Part V, paras 5.4-5.5]
(1) A compulsory purchase order will cease to have effect at the end of the period of 18 months from the operative date, other than in relation to any land in respect of which the order has been implemented.
(2) For this purpose, an order is implemented in respect of any land, if notice to treat has been served or a vesting declaration has been executed in respect of that land.
(3) A notice to treat shall cease to have effect at the end of the period of 18 months beginning with the date on which it is served, other than in relation to any land in respect of which:
(a) compensation has been agreed or awarded or has been paid or paid into court;
(b) a vesting declaration has been executed;
(c) the acquiring authority have served notice of entry; or
(d) the question of compensation has been referred to the Lands Tribunal.
(4) A notice of entry shall be expressed to take effect at the end of two months from the date of service, and shall state that, if the authority has not taken possession within one month of the expiry of the two-month period so specified, the notice will cease to have effect and the authority will not be able to serve a further notice of entry.
(5) These time limits may be extended by agreement between the parties or on application to the confirming authority.
[See Part V, paras 5.6-5.15]
Consultation issue (G) – Time limits
Do consultees agree with the above proposals (including in particular those discussed in paragraph 5.14(1)-(5))?
[See Part V, paras 5.6-5.15]
[See Part V, paras 5.16-5.22]
(1) Is the definition of those on whom notice to treat is required to be served (s 5 of the 1965 Act) sufficiently clear? If not, what problems arise?
(2) Should the authority have a discretion to serve notice to treat on owners of interests or occupiers outside the defined categories?
(3) Do consultees agrees (a) that there should be a prescribed form of notice to treat, and (b) that the reference to compensation should be updated as proposed?
[See Part V, paras 5.16-5.22]
Subject to the proposals for amended time limits (paras 5.16–5.22 above), are there any other practical problems in the operation of the rules for notice of entry? If so, how should they be remedied?
[See Part V, paras 5.23-5.28]
[See Part V, paras 5.29-5.33]
(1) If after compensation in respect of any land or interest in land has been agreed or determined, the person entitled:
(a) refuses to accept the compensation;
(b) fails to make out title to the satisfaction of the acquiring authority; or
(c) refuses to convey or release the land as directed by the acquiring authority;
the authority may proceed by “deed poll procedure” as described in this proposal.
(2) The acquiring authority may pay into court the compensation payable in respect of the relevant land, or interest, accompanied by a description of the person or persons entitled (so far as known to the authority). The compensation so paid into court shall, subject to the provisions of this Act, be placed to the credit of those persons.
(3) On payment into court as above, the acquiring authority may execute a deed poll describing the relevant land, and the circumstances of the payment, and giving the names of the persons to whose credit the compensation is paid.
(4) On execution of the deed poll, all the interests in respect of which the compensation was so paid shall vest absolutely in the acquiring authority together with the right to immediate possession as respects those interests.
(5) On the application of any person claiming any part of the money paid into court, or any interest in any part of the land in respect of which it was paid into court, the High Court may order its distribution according to the respective interests of the claimants,[3] or make such other order as it thinks fit.
(6) The incidental provisions of section 28 of the 1965 Act (sealing of deed polls, stamp duty etc) should be incorporated.[4]
[See Part V, paras 5.34-37]
Consultation issue (K) – Deed poll procedure
(1) Do consultees agree that it would be desirable to re-state the deed poll procedure in modern form? If so, do they have any comments on the detail of the above proposal?
(2) In particular, do they agree that the detailed provisions (referred to in para 5.35) are unnecessary, so long as the Court has a general power to make such orders as it thinks fit?
(3) Consultees are asked to indicate the extent of use of the present deed poll procedure, and any practical problems to which it gives rise.
[See Part V, paras 5.34-5.37]
(1) Where either:[5]
(a) the owner of any interest in the subject land cannot, after reasonable inquiry, be found by the authority; or
(b) the owner has been found, but it appears to the authority that he is prevented from dealing, or is unwilling to deal, with them, by reason of illness, absence or any other circumstance;
the authority may proceed under this proposal.
(2)The authority may apply to the Lands Tribunal for the compensation to be paid in respect of the interest to be fixed by a valuation of a surveyor selected from the members of the Lands Tribunal in accordance with section 3 of the Lands Tribunal Act 1949.
(3) The acquiring authority shall hold the valuation and produce it on demand, to the owner of the interest to which the valuation relates, or any other persons interested in the land.
(4) All the expenses of and incidental to the valuation shall be borne by the acquiring authority.
(5) Following the determination of compensation, subject to (6) below, the authority may proceed under the deed poll procedure, and the same consequences shall apply.
(6) Where any person claiming to be entitled to compensation paid into court under this proposal, wishes to challenge the amount of compensation as fixed under (2):
(a) He may, before applying to the High Court for payment, by notice in writing to the acquiring authority require the submission of the issue to the Lands Tribunal;
(b) Pending the decision of the Tribunal, the High Court may make such orders for interim payment as it thinks fit; and
(c) If the Lands Tribunal awards a further sum, the acquiring authority shall pay over or pay into court, as the case may require, that further sum within fourteen days of the making of the award.[6]
[See Part V, paras 5.38-5.41]
Consultation issue (L) – Owners untraced, or unable or unwilling to act
(1) Do consultees agree with our provisional view that the missing interests procedure should be re-stated in modern terms?
(2) In particular, do they agree that it should not be restricted to persons absent from the UK or who are untraceable, but should also include persons who are unwilling or unable to deal with the authority for whatever reason?
(3) Further, do consultees have any comments on the effect and continuing relevance of section 28(3) of the 1965 Act and the reference therein to section 7(4) of the Law of Property Act 1925? Can section 28(3) be safely repealed?
(4) Consultees are asked to indicate the extent of use of the present deed poll procedure, and any practical problems to which it gives rise.
[See Part V, paras 5.38-5.41]
Do consultees agree that Schedule 1 to the 1965 Act can be repealed without replacement?
[See Part V, paras 5.42-5.46]
(2) In particular, do consultees agree with our analysis of the operation of the vesting declaration procedure in relation to easements and other rights over subject land?
[See Part V, paras 5.47-5.51]
[See Part VI, paras 6.3-6.8]
(2) Should section 20 of the 1965 Act be restated in modern form as proposed above?
[See Part VI, paras 6.3-6.8]
(1) Where the subject land is or may be subject to easements or other rights,[8] such rights may be overridden in accordance with (3) below, save to the extent that the authority elects to proceed by extinguishment of the rights, or any of them, over all or part of the land.
(2) Where the authority elects to proceed by extinguishment, it shall proceed as though the rights in question were interests entitling the owners to notice to treat; and, on completion of the purchase or on prior taking of possession by the authority, all rights or easements in the land to which the election relates shall be extinguished.[9]
(3) In other cases, the rights may be “overridden”: that is, the erection, maintenance or use of any building or other work, whether done by the local authority or by a person deriving title under them, is authorised if done in accordance with planning permission, notwithstanding interference with interests or rights over the land.[10]
(4) Subject to (5), any person who suffers loss by the extinguishment of, or overriding of, any right, is entitled to compensation to be determined under and in accordance with the Compensation Code.
(5) Where a claim is made for compensation for rights which have been overridden under (3), either party may elect for compensation to be paid on the basis of extinguishment or partial extinguishment of the right; on payment of compensation on that basis, the right shall to that extent be treated as extinguished or partially extinguished for all purposes.
[See Part VI, paras 6.9-6.25]
Consultation issue (P) – Easements and other rights
(1) Where there is to be interference with (and not acquisition of) existing rights, do consultees agree that the position should be clarified in legislation?
(2) If consultees agree with (1), do they consider that the acquiring authority should elect to extinguish or to override and that the status of the interference should be clear from the outset? In the event that rights are to be extinguished, do they agree that those rights should be the subject of notice to treat?
(3) Where rights are simply to be overridden, do consultees agree
(a) that statutory immunity should apply both to erection and to use of any building or other work;
(b) that either party should be able to elect for extinguishment or partial extinguishment?
[See Part VI, paras 6.9-6.25]
(A) Divided property notice
(1) If the land specified in a notice of acquisition comprises part only:
(a) of any building; or
(b) of any land attached to and used with a building.
any person who is able to sell the whole of the land, may by notice (“a divided property notice”) served on the acquiring authority require them to purchase his interest in the whole.
[(1A) A divided property notice may also be served by the owner of any interest in the subject land (greater than a tenancy from year to year) if, as a result of the acquisition, his retained land[12] or any part of it, is no longer reasonably capable of being used for the purpose for which he was using it at the time of the notice of acquisition.]
(2) In this proposal “notice of acquisition” means, as the case may be, a notice to treat or a preliminary notice of a vesting declaration; and the “relevant property” means the building or land to which the divided property notice relates.
(3) Except as provided by regulations under this section, a divided property notice shall be served within 28 days of the notice of acquisition.
(4) Where a divided property notice has been served, the authority may, within 3 months of the notice:
(a) serve notice withdrawing the notice to treat (or deemed notice to treat);
(b) serve notice to acquire the whole, or
(c) refer the matter to the Lands Tribunal.
If it fails to act within 3 months, it is deemed to have served a notice under (a).[13]
(5) The Lands Tribunal (on an application, as under (4)(c) above, made in accordance with regulations under this proposal) may determine that:
(a) in the case of a building, the part proposed to be acquired can be taken without material detriment to the building or its use;
(b) in the case of land attached to a building, the part proposed to be acquired can be taken without seriously affecting the amenity or use of the building; or
(c) [in the case of other land, the part proposed to be acquired can be taken without the effect mentioned in (1A)].
(6) In determining any such reference, the Tribunal:
(a) shall take into account not only the effect of the severance but also the use to be made of the part proposed to be acquired and, in a case where the part is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use to be made of the other land; and
(b) may determine the area of the relevant property which the acquiring authority ought to be required to take.
(7) If the authority does not so refer the notice to the Tribunal within 3 months, or if, following a reference, the Tribunal determines it against the authority, the notice to treat or (as the case may be) the declaration shall be treated as having effect as though the whole of the relevant property (or the part determined under (6)(b)) were included.
(B) Agricultural land
The provisions of 1973 Act ss 53-57[14] will continue to apply [so far as not superseded by (1A)]].
(C) Unexpired tenancies
1965 Act, section 19 (apportionment of rent) will continue to apply.[15]
[See Part VI, paras 6.26-6.56]
[See Part VI, paras 6.26-6.56]
[See Part VI, paras 6.57-6.71]
Can consultees comment on how frequently the Acquisition Act procedure is used in practice, and whether it gives rise to any practical difficulty?
[See Part VI, paras 6.72-6.77]
(1) In respect of compensation for compulsory purchase, there should be time limits for reference to the Lands Tribunal, which should apply equally to the notice to treat and vesting declaration procedures.
The appropriate limits should be:
(i)(under the present law) 6 years from the date when the claimant knew or ought reasonably to have known of the taking of possession or vesting; or
(ii)(if the Law Commission’s recommendations are adopted) in accordance with the “core regime”: that is, 3 years from the date when the claimant knew or ought reasonably to have known of the taking of possession or vesting, with a “long-stop” period of 10 years.
(2) The time limit for an action to recover compensation following determination by the Tribunal or agreement of compensation will be 12 years (or 10 years under the Law Commission’s recommendations).
(3) Following payment-in, the authority may apply after 12 years (or 10 years under the Law Commission’s recommendations) for repayment, subject to the power of the court subsequently to order such payment to the claimant as may be just, if the court is satisfied that there are good reasons for application not having been made within 12 years (or 10 years), or other exceptional circumstances.
[See Part VII, paras 7.2-7.17]
Consultation issue (T) – Limitation periods
Do consultees agree
(1) That there should be time limits for reference to the Lands Tribunal of disputes in relation to compensation for compulsory purchase? If not, why not?
(2) That the time limits should be the same under both procedures (notice to treat and vesting declaration), and should be as proposed above? If not, what rules should apply?
[See Part VII, paras 7.2-7.17]
[See Part VII, paras 7.18-7.26]
(1) If the acquiring authority are authorised to enter or take possession of any land, and the owner or occupier of any of that land, or any other person, refuses to give up possession of it, or hinders the acquiring authority from entering on or taking possession of it, the acquiring authority may issue their warrant to the sheriff to deliver possession of it to the person appointed in the warrant to receive it.
(2) The sheriff’s costs shall be paid by the authority, which (subject to (3)) may recover them from the person refusing to give possession, and may deduct them from the compensation, if any, payable to that person.
(3) A person liable to pay such costs may (subject to procedural rules) require the reasonableness of the amount to be reviewed by the Lands Tribunal.
[See Part VII, paras 7.27-7.29]
[See Part VII, paras 7.27-7.29]
[See Part VII, paras 7.30-7.31]
[See Part VII, paras 7.30-7.31]
Sections 25 and 26 of the 1965 Act should be replaced by a simple provision (a) giving the court power, subject to rules of court, to make orders, in relation to money paid into court under the Act, for the distribution of the money in accordance with the respective interests of the claimants (and to make such incidental orders as it thinks fit); and (b) providing that costs incurred in connection with such payments-in shall be paid by the authority, save as the court otherwise orders.[16]
[See Part VII, paras 7.32-7.40]
(1) Are consultees aware of any practical problems arising from the provisions of the 1965 Act for payments into and out of court? If so, how should they be addressed?
(2) Do they agree that sections 25 and 26 should be replaced by a simpler provision as proposed above?
[See Part VII, paras 7.32-7.40]
Section 23 should be replaced by a provision that the acquiring authority should pay to those interested all reasonable costs (as assessed by the Costs judge) incurred in connection with the completion of the compulsory purchase (so far as not covered by any other provisions).
[See Part VII, paras 7.41-7.43]
Consultation issue (Y) – Costs of completion
(a) Do consultees agree with this proposal? If not, what practical purpose is served by the detailed rules of section 23 of the 1965 Act?
(b) Should the assessment of such costs be transferred to the Lands Tribunal?
[See Part VII, paras 7.41-7.43]
(1) The following will be registrable as local land charges for the purpose of the Local Land Charges Act 1975:
(a) Making of the order (or preparation in draft of a ministerial order);
(b) Service of notice to treat in respect of any land under section 5 of the 1965 Act;
(c) Service of a preliminary notice under section 3 of the Vesting Declarations Act (as now).
(2) Amendment of the register, to reflect the order or notices being varied or ceasing to have effect, will be governed by the Local Land Charges rules (as now).
(3) If necessary, Departmental guidance should be given as to informal notes (relating to the status of the order at any time or other matters) to supplement the statutory requirements.
(4) Failure to register will not invalidate the order or notice, but any person adversely affected by that failure will be entitled to claim compensation for consequential loss suffered in accordance with the Local Land Charges Act 1975, section 10 (as now).
[See Part VII, paras 7.44-7.56]
(1) Do consultees agree that the definition of local land charges should include the stages in the CPO process set out above?
(2) Do they have any other comments on the above proposal?
[See Part VII, paras 7.44-7.56]
(1) An order will be treated as having become abortive in respect of the subject land or any part of it or interest in it:
(a) if it is withdrawn by the acquiring authority under paragraph (2) below, or
(b) in the circumstances set out in paragraph (3) below.
(2) Withdrawal of orders and notices:
(a) At any time before implementation (by service of a notice to treat or execution of a vesting order) in respect of the subject land or any part of it, the acquiring authority may formally withdraw the order in respect of the land or that part by serving notice of withdrawal in the same manner, and on the same persons, as would apply to notice of making of the order;
(b) After implementation (as above), the authority may withdraw from the purchase (with the effect that the order itself becomes abortive to the extent of the interests affected) by notice served on all those entitled to service of the relevant notice to treat or vesting declaration, in the following circumstances (and no other):
(i) by agreement;
(ii) under any special statutory provision permitting withdrawal;
(iii) as permitted by the divided interest procedures; or
(iv) (in the case of a notice to treat) within 6 weeks of a proper[17] claim for compensation, or, in default of a proper claim, within 6 weeks of determination of compensation.[18]
(3) The compulsory purchase order shall also be treated as becoming abortive in the following circumstances:
(a) Where confirmation is refused by the Secretary of State;
(b) Where the order is quashed by the High Court;
(c) Where, after the “operative date”, the authority fails to implement it in respect of that interest or right (by notice to treat or vesting declaration) within the statutory time limit; or
(d) Where, following notice to treat, the authority fails to take possession within the statutory time limit.
(4) Where an order becomes abortive under the paragraph (3), the authority shall forthwith give notice of that fact and of the right to compensation under this Proposal, to all the persons entitled to be served with individual notice of making.
(5) Where an order becomes abortive under this Proposal, any person who was entitled to be served with individual[19] notice of making of the order, or any person served with a notice which is later withdrawn, may claim from the acquiring authority compensation for any loss or expenses occasioned to him by the making of the order and its becoming abortive, or by the withdrawal of the notice.
(6) There shall be no right to compensation under this proposal where:
(a) an order is withdrawn by the authority, if the authority certified in the order that it was made wholly or mainly for the purpose of securing the improvement, maintenance or management of existing property;
(b) where, following the service of a blight notice under the 1990 Act, s150, notice to treat is deemed to have been withdrawn under section 156(2) of that Act.[20]
(7) Where notice is given that an order has become abortive or that an order or notice has been withdrawn, the acquiring authority shall, at the same time as giving the notice, cause the register of local land charges to be amended accordingly.[21]
[See Part VIII, paras 8.1-8.53]
(1) Do consultees agree that a right to compensation should arise in the circumstances defined in this proposal?
(2) In particular, do they agree:
(a) that the right to compensation should be defined by reference to those entitled to individual notice of the making of the order? If not, how should the right be limited, or defined?
(b) that there be an exception, as proposed, for cases where the authority certifies that the order is made for the purpose of securing the improvement, maintenance or management of existing property? If so, should the Tribunal be able to disallow the exemption where the authority has acted unreasonably?
(c) that there should be no right to compensation under this provision,[22] arising simply out of delay in completing the compulsory purchase procedures? (If consultees disagree, it would be helpful to have examples of cases where such a right might have been appropriate, and an indication as to how it could be defined.)
(d) Do consultees have any other comments on the detail of this proposal?
[See Part VIII, paras 8.1-8.53]
[See Part XI, paras 11.1-11.15]
[1]See e.g. 1972 Act, s 233(4), which defines “proper address” of any person as “his last known address”.
[2]See Part III, para 3.23 above.
[3]See 1965 Act, s 9.
[4]Although we question the need to retain sub-section (3): see Part V, para 5.36 above.
[5]We assume this is not needed for vesting declarations, where the authority can proceed regardless of any outstanding interests.
[6]Sched 2, para 4(3) also contains provision for the costs of the reference, which are to be in the discretion of the Tribunal if it determines that the compensation paid into court was sufficient; but payable by the authority if it was too low. However, we think this can be left to the general discretion of the Tribunal under 1949 Act, s 3(5).
[7]See Part VI, para 6.3 and n 17 above.
[8]Defined as in 1990 Act, s 237(2) (see Part VI, para 6.20, n 37 above).
[9]Cf Housing Act 1985, s 295(1). There would need to be exceptions for special categories, such as right of statutory undertakers.
[10]Cf 1990 Act, s 237(1).
[11]This procedure will apply under both notice to treat and vesting declaration procedures.
[12]“Retained land” would be defined as in relation to the rules for compensation for injurious affection: see Compensation Report Part V, para 5.35, Part XI, para 11.2 (A) General Definitions.
[13]See Vesting Declarations Act, Sched 1, para 4, on which this part of the proposal is based.
[14]Where the test is that the separated land is “not reasonably capable of being farmed, either by itself or in conjunction with other relevant land, as a separate agricultural unit”.
[15]See Part VI, para 6.53 above.
[16]These provisions would form part of Proposal 7 (deed poll procedure); see Part V, paras5.34-5.37 above.
[17]i.e. a claim complying with 1961 Act, s 4: see para 8.11above.
[18]i.e. to the extent permitted by 1961 Act, s 31 (or any replacement of that section).
[19]See para 8.37above.
[20]This reproduces the effect of 1990 Act, s 156(4).
[21]See Part VII, paras 7.51-7.56 and Proposal 17 for our proposals in respect of registration.
[22]As noted above, in some circumstances there may be a right to relief under the Human Rights Act 1998: Part VIII, para 8.19 above.
