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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(3) (18 November 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/169(3).html Cite as: [2002] EWLC 169(3) |
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Part III
(RC 24.10.02)
General issues
(1) Application of procedural statutes;
(2) Basic definitions:
(a) Acquiring and confirming authorities; and
(b) Land;
(3) Service of documents; and
(4) Entry for survey.
… where by or under any statute (whether passed before or after the passing of this Act) land is authorised to be acquired compulsorily…[1]
3.4 By contrast the Acquisition Act is on its face more limited in scope. (The 1965 Act has the same scope as the Acquisition Act.[2]) It applies to any compulsory purchase “to which this Act applies by virtue of any other enactment, whether or not passed or made before this Act”, or one under an enactment specified in the following subsection.[3] However, in practice, as a result of consequential amendments made by the Act itself,[4] or by later statutes, the Acquisition Act appears to cover all the main categories of compulsory purchase.[5] The policy reasons for any exclusions are not apparent from the Act.
3.5 We acknowledge that there may be categories of compulsory purchase which, because of the nature of the subject matter or for other reasons, justify different treatment. One significant category is that of orders made under the 1992 Act, under which powers, including powers of compulsory acquisition, may be obtained for transport and other infrastructure works. Under the scheme of that Act, there is no compulsory purchase order as such, but the power of compulsory purchase is one of the powers conferred by an order under the Act, and the procedure for implementation is set out in the order.[6] If the current proposals are enacted, we would expect them to be reflected in the model clauses for future orders under the 1992 Act. However, that would be a matter for subsequent consideration.
3.6 As we have explained above, we are not seeking at this stage to attempt a consolidation of all the existing procedural statutes.[7] Accordingly, it is unnecessary to consider how the different provisions in relation to application should be reconciled. However, if the ultimate goal is a comprehensive code, it should, in our provisional view, extend to all compulsory purchases initiated[8] after its commencement, under statutes (whenever passed) conferring power to acquire by compulsory purchase order. If there are to be exceptions, they should be identified and justified as such.
… means the Minister, local authority or other person who may be authorised to purchase the land compulsorily
“Person”, by virtue of the Interpretation Act 1978, (“the 1978 Act”), includes “a body of persons corporate or unincorporate”.[9] Thus, given that compulsory purchase powers are exclusively statutory, the definition extends to any body on which compulsory powers are conferred by statute. We propose to adopt this terminology in this report.
3.8 “Confirming authority” is defined as “the Minister having power to authorise the acquiring authority to purchase the land compulsorily”. It does not apply to a Ministerial order, which is not “confirmed” as such; instead such an order is first “prepared in draft”, and then “made” by the Minister, at what would be the confirmation stage.[10] As noted below, there are Government proposals for the acquiring authority to be able to confirm its own orders in certain cases, where there are no objections.[11] We do not think this requires any change to the basic definition, since this proposal will be covered by a separate provision.
(1) The word “lands” shall extend to messuages, lands, tenements and hereditaments, of any tenure;[12]
(2) “Land” means any corporeal hereditament, including a building as defined by this section, and includes any interest or right in or over land and any right to water;[13]
(3) “Land” includes anything falling within any definition of that expression in the enactment under which the purchase is authorised;[14] and
(4)
“Land” – (a) includes
messuages, tenements and hereditaments, and
(b) in relation to compulsory purchase under any enactment, includes anything
falling within any definition of the expression in that enactment. [15]
… buildings and other structures, land covered with water, and any estate, interest, easement, servitude, or right in or over land.
3.12 It should also be noted that the definition of “land” needs to be capable of extending to the acquisition of new rights over land not being compulsorily acquired (as opposed to existing interests), where the enabling statute makes this possible.[16] In the absence of express provision, compulsory powers do not entitle the authority to create new easements or other rights.[17] Many modern Acts confer such power, notably the 1976 Act, which does so in respect of compulsory acquisitions by local authorities.[18] In such cases, procedure and assessment of compensation follow the ordinary rules for acquisition of land, except so far as modified by the statute conferring the power. Whether such powers should be extended to other categories of acquiring authority is a matter of policy, outside the scope of the present reference.
(1) Notice of making of the order must be served on “every owner,[19] lessee and occupier (except tenants for a month or any period less than a month) of any land comprised in the order ...”;[20]
(2) Notice of confirmation of the order must be served on any person on whom notice of making was required to be served; [21]
(3) Notice to treat must be served on “all the persons interested in, or having power to sell and convey or release, the land, so far as known to the acquiring authority after making diligent inquiry;” [22] and
(4) Notice of entry must be served on “the owner, lessee and occupier” of the land in respect of which notice to treat has been served.[23]
3.14 Thus, whereas some forms of notice are served on “occupiers” as well as owners, notices to treat are limited to “persons interested”.[24]
3.15 Special considerations apply to rights (such as easements or restrictive covenants) affecting the subject land.[25] The compulsory purchase order does not of itself result in the acquisition or extinguishment of such rights.[26] Instead, the authority has the right to interfere with such rights to the extent necessary to achieve the purpose of the order, and compensation is payable as and when such interference occurs.[27] There is no express provision for any notice to be given before such interference takes place. The owner of such a right is not treated as an owner or occupier of the subject land, so as to be entitled to notice of the making or confirmation of the order,[28] or (for the same reason) to notice of entry. Nor is he a “person interested” under the notice to treat provision.[29]
3.16 Under the Vesting Declaration procedure, the same steps apply up to confirmation of the compulsory purchase. The effect of the declaration is to vest in the authority “all the land and all the interests therein”,[30] with the exception of “minor tenancies and tenancies about to expire” for which there is special procedure, involving notice to treat and notice of entry.[31]
3.17 The Vesting Declarations Act provides for two forms of notice:
(1) Preliminary notice, inviting information from potential claimants, which has to be served on the persons entitled to notice of confirmation;[32] and
(2) Notice of execution, which must be served on every occupier of the land specified in the declaration (other than land subject to a minor tenancy or a long tenancy about to expire); and every other person who has given information in response to the preliminary notice.[33]
Again there is no express provision for notices to be served on those entitled to rights over the land, such as easements or restrictive covenants.
3.18 A related issue is the extent of the authority’s obligation to identify those with interests in the land, for the purpose of service. Local authorities have wide powers to obtain information as to interests in the land, for the purposes of their functions.[34] There are no equivalent general powers for other bodies exercising compulsory purchase powers. In view of the wide variety of such bodies, it would probably be inappropriate to confer any general powers to obtain information by compulsion. The Government proposes to extend the powers available to planning authorities to Regional Development Agencies, which currently lack any such power.[35]
(1) 1961 Act, s 38;
(2) Acquisition Act , s 6 (also applied by the 1965 Act, s 30);
(3) 1990 Act, s 329 (applied by Vesting Declarations Act, s 6(2)); and
(4) the 1972 Act, s 233 (preserved by the 1990 Act, s 329(4)).
3.20 A comparison of these sections shows that they have many common features, but some differences of detail. For example, most require postal service to be by registered letter or recorded delivery,[36] but the 1972 Act allows simple service by post.[37] A common feature of all sections is provision for cases where following “reasonable inquiry” it is “not practicable” to ascertain the name or address of a person entitled to be served. The details of what is then required to effect good service vary between the provisions; for example, it may be sufficient to deliver the notice to someone on the land, or to “leave a copy on or near the land”;[38] or to have it “affixed conspicuously to some object on those premises”.[39]
3.21 As noted in the next Part,[40] the Government proposes to extend the right to notice of the making of the order, and with it “statutory objector status”,[41] to all those with any form of interest or right to occupy, including owners of rights. It is proposed that notices should be served on "all known owners, lessees (including tenants) and occupiers”, who would then have the right to be “statutory objectors”. The Government recognises that it would be “impracticable to expect the authority to ascertain details of all those with other rights”. It proposes therefore that service should be effected by posting notices on the land, and that if an objection is received from a person with a right over the land (such as the benefit of a right of way) then that person should be treated as a statutory objector.
3.23 The new provision would provide for alternative methods of service covering:
(1) Personal service;
(2) Service on the “proper address” by registered letter or recorded delivery;
(3) 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; and
(4) “Special service”, involving fixing of notices on or near the land. This will apply both (as now) to cases where the names and addresses cannot reasonably be ascertained, and also to those categories of interest or right (such as easements) where it is considered unreasonable to require the authority to effect standard service.
(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”;[42] 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.
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?
3.25 Powers to enter the land for surveying and preliminary works are given by section 11(3) of the 1965 Act, [43] and, in the case of local authorities, supplemented by wider powers in section 15 of the 1976 Act.[44]
3.26 Section 11(3) applies to any land “subject to compulsory purchase”, and therefore only applies once the order is operative.[45] It provides that the acquiring authority, after giving not less than three nor more than fourteen days’ notice to the owners or occupiers, may enter on the land:
for the purpose of surveying and taking levels of any of the land subject to compulsory purchase, of probing or boring to ascertain the nature of the soil and of setting out the line of the works.
The authority must pay compensation for any damage thereby occasioned to the owners or occupiers of the land, and any question of disputed compensation under this subsection shall be referred to the Lands Tribunal.
3.27 Local authorities also have powers, under section 15 of the 1976 Act, to authorise entry for survey in connection with a proposal by the authority for compulsory purchase. The provisions are more detailed than section 11(3), and contain more extensive and detailed provisions for enabling local authorities to authorise entry for the purpose of survey. Explicitly the power is framed to include aerial survey, ascertaining of whether minerals are present, and the leaving on land of survey apparatus.[46] There are detailed provisions dealing with the procedures for entry, compensation for any damage, and protection of trade secrets; wilful obstruction of the exercise of the power is an offence.[47]
Do consultees agree with our provisional proposal to retain the effect of section 11(3) unchanged, leaving in place any wider powers under the 1976 Act or other statutes?
[1] 1961 Act, s 1. See also, ibid, s 5 (rules for determining compensation) which applies “in respect of any compulsory acquisition…”
[2] 1965 Act, s 1.
[3] Acquisition Act, ss 1(1), (2).
[4]Ibid, Schedule 4.
[5] See Halsbury’s Laws, vol 8(1), (4th ed re-issue), para 33, where some of the exceptions are noted.
[6]Model clauses may be prescribed by the Secretary of State: see Transport and Works (Model Clauses for Railways and Tramways) Order 1992 SI 1992 No 3270.
[7]Part I, para 1.17 above.
[8]By “initiation” we mean the publication of notice of the making of the order (“the first notice date”).
[9]Interpretation Act 1978, Sched 1.
[10]See Acquisition of Land Act, Sched 1 paras 1(2), 4. We comment below on the distinction made in the 1981 Act between the language used for Ministerial and non-Ministerial orders, respectively, and question whether it serves any practical purpose: Part IV, para 4.3ff below.
[11]See Part IV, paras 4.12-13 below.
[12] 1845 Act, s 3. This definition gave rise to uncertainty as to whether it included incorporeal hereditaments such as easements.
[13] 1961 Act, s 39(1).
[14] 1965 Act, s 1(3), unless the context otherwise requires.
[15] Acquisition Act, s 7(1).
[16]Cf 1976 Act, s 13(2), where the 1965 Act is modified to extend to the acquisition of new rights under the 1976 Act, and references to “land” are treated as including references “to the rights or to land over which the rights are or are to be exercisable” according to the context.
[17]Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144.
[18]s 13. Other examples are Local Government, Planning and Land Act 1980 (“the 1980 Act”), s 142(4) and Sched 28, Pt IV; Highways Act 1980, s 250; Housing Act 1988, s 77 (and others listed in Butterworths, para D 1608, n 4). These provisions provide for amendment to the procedure in both the 1965 Act and the Vesting Declarations Act as appropriate.
[19]“Owner” means “a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of the land, whether in possession or in reversion, and includes also a person holding or entitled to the rents and profits of the land under a lease or agreement, the unexpired term whereof exceeds three years and a person who would have power to sell and convey or release the land to the acquiring authority if a compulsory purchase order were operative.” (Acquisition Act, s 7(1)).
[20]Acquisition Act, s12(1). An occupying statutory tenant under the Rent Act 1977 or the Rent (Agriculture) Act 1976 or a licensee under an assured agricultural occupancy (Housing Act 1988, Pt I) is deemed to be a tenant for a period less than a month and therefore excluded: s12(2). There is also a requirement to publish notices in local newspapers: s 11.
[21]Acquisition Act, s 15. Local newspaper notices must also be published.
[22]1965 Act, s 5.
[23]1965 Act, s 11(1). “Owner” has the meaning given by section 7(1) of the Acquisition Act (see note 19 above).
[24]See Part V, para 5.17(3) below.
[25]See Part VI, para 6.9ff below.
[26]Certain compulsory powers expressly provide either for extinguishment of existing adverse interests in or rights over land or for limited immunity for subsequent owners from such rights: see Housing Act 1985, s 295; the 1990 Act, s 237; Channel Tunnel Rail Link Act 1996, s 7: See Part VI below.
[27]See Part VI, para 6.11ff below.
[28]See Grimley v Minister of Housing [1971] 2 QB 96.
[29]Clark v School Board for London (1874) 9 Ch App 120. See Part V, para 5.17(3) below.
[30]Vesting Declarations Act, s 8(1).
[31]Ibid s 9. See further Part VI, para 6.18 below.
[32]Vesting Declarations Act 1981, s3(1) In practice therefore the requirements are the same as under the Acquisition Act, s 12 (see above).
[33]Vesting Declarations Act, s 6(1).
[34]See 1976 Act, s 16; and (in relation to planning powers) 1990 Act, s 330. They are set out in Appendix 2.
[35]Policy Response Document, para 15(iii): “As it is the Regional Development Agencies who are mainly hampered by the lack of such statutory powers, we intend to seek an appropriate amendment to section 20 of the Regional Development Agencies Act 1998”.
[36]Cf 1978 Act, s 7, which provides that unless the contrary intention appears, service by post is effected “by properly addressing, pre-paying and posting a letter containing the document”; service is deemed to have been effected, unless the contrary is proved, at the time when the letter would have been received “in the ordinary course of post”.
[37]The 1972 Act also appears to be alone in making specific provision for service on partnerships, as well as companies: 1972 Act, s 233(3)(b). By contrast the Acquisition Act, s 6(2) refers only to service on “any incorporated company or body”.
[38]See e.g. Acquisition Act, s 6(4).
[39]1961 Act, s 38(2)(b).
[40]Part IV, para 4.7 below
[41]See Part II, para 2.9(2) above.
[42]See e.g. 1972 Act, s 233(4), which defines “proper address” of any person as “his last known address”.
[43]1845 Act, s 84: “for the purpose merely of surveying and taking levels of such lands, and of probing or boring to ascertain the nature of the soil, and of setting out the line of the works”.
[44]Other statutes may contain similar powers. Specific powers of entry for surveying are contained in Highways Act 1980, s 289, 1990 Act, s 324, Planning (Listed Buildings and Conservation Areas) Act 1990, s88. The 1976 Act powers are not available in those cases: 1976 Act, s 15(9).
[45]1965 Act, s 1(3).
[46]1976 Act, s 15(2).
[47]Ibid, s 15(3) – (8).
