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You are here: BAILII >> Databases >> The Law Commission >> Towards a Compulsory Purchase Code: 2 Procedure (Report) [2004] EWLC 291(6) (16 December 2004) URL: http://www.bailii.org/ew/other/EWLC/2004/291(6).html Cite as: [2004] EWLC 291(6) |
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6.1 In our Consultative Report on Procedure we discussed, and made a provisional proposal relating to, the physical means whereby statutory notices should be served.[1] Presently a variety of different statutes make provision for service. We indicated that, in our view, these could usefully be rationalised.SERVICE OF NOTICES
6.2 The law presently creates disparities relating to notices in three ways:Existing Law
(1) The two procedures for implementation of orders (notice to treat and vesting declaration) have different rules for service;
(2) Physical service is not defined consistently in the various legislative provisions; and
(3) The persons entitled to be served with different notices are likewise inconsistently defined.
6.3 Notices must be served at the following stages:Notice to treat procedure
(1) Notice of making the order, before the order is submitted for confirmation[2] (which notice must be served on "every qualifying person"[3]);
(2) Notice of confirmation of the order (which must be served on each person on whom notice of making was required to be served);[4]
(3) Notice to treat (which 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");[5] and
6.4 As we indicated in our Consultative Report on Procedure, although some forms of notice are served on occupiers as well as owners, notices to treat are required to be served only on "persons interested", which excludes persons who merely occupy. We have discussed this anomaly above.[7] Likewise, notice to treat does not presently have to be served where an authority seeks only to override, and not to extinguish, an existing right over land (such as an easement or restrictive covenant).[8](4) Notice of entry (which must be served on the "owner, lessee and occupier" of the subject land where notice to treat has already been served).[6]
6.5 Notices must be served at the following stages:Vesting declaration procedure
(1) Notice of making the order (as with notice to treat, above);
(2) Notice of confirmation of the order (as with notice to treat, above);
(3) Preliminary notice, prior to execution of a general vesting declaration, inviting potential claimants to identify themselves and the land in which they have an interest[9] (which notice must be served on every person entitled to receive the "statutory notice of confirmation"[10]); and
6.6 As with notice to treat,[13] there is no express provision requiring notices to be served on those entitled only to rights over land.(4) Notice of execution of a vesting declaration, which must be served on "every occupier of any of the land specified in the declaration (other than land in which there subsists a minor tenancy or a long tenancy which is about to expire[11])" and on "every other person" who has provided information in response to a preliminary notice invitation.[12] There is no requirement that owners and tenants of the land who do not occupy should be served with notice of execution, although as a matter of good practice acquiring authorities will serve all those persons interested of whom they are aware.
6.7 Several statutes contain provisions relating to service of notices. Many have common features, but there are differences of detail.[14] The provisions are:Statutory provisions relating to service
(1) Section 38 of the Land Compensation Act 1961 (relating to service of notices required under Parts III or IV of that Act);
(2) Section 30 of the Compulsory Purchase Act 1965 as amended (applying section 6 of the Acquisition of Land Act 1981 to service of notices under the 1965 Act);
(3) Section 233 of the Local Government Act 1972 (preserved by section 329(4) of the Town and Country Planning Act 1990);
(4) Section 6 of the Compulsory Purchase (Vesting Declarations) Act 1981 (applying what is now section 329 of the 1990 Act to service of notices of execution);[15]
(5) Section 6 of the Acquisition of Land Act 1981, as amended by section 100(2) of the Planning and Compulsory Purchase Act 2004 (relating to service of notices under the Acquisition of Land Act); [16] and
(6) Section 329 of the Town and Country Planning Act 1990 (relating to service of notices under that Act).
6.8 We have already highlighted the major disparities that result from these provisions. We should also note here the absence of express statutory provision for the service of notices on those entitled to rights over land (considered later in this Report).[17] 6.9 In the Consultative Report on Procedure, we referred to the absence of any general power for those acquiring authorities which are not local authorities to obtain information as to interests in the subject land.[18] We recognised the difficulty of conferring general powers to compel the provision of information in view of the wide range of other bodies exercising compulsory purchase powers. We note, however, that the information powers available to local authorities have now been extended to all acquiring authorities.[19] 6.10 We envisaged that many of the deficiencies relating to service could be remedied by adapting the present rules in the Acquisition of Land Act 1981 (as applied also to the Compulsory Purchase Act 1965).[20] We also felt that site notices could be usefully employed in connection with interference with easements and other rights.[21] We accordingly proposed that there should be two forms of physical service:[22]Deficiencies and provisional proposals
(1) standard service: that is, personal service, on an individual by registered letter or recorded delivery to their proper address, and 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
(2) special service: involving the fixing of notices on or near land ("site notices"). This would apply where names and addresses of the persons to be served cannot reasonably be ascertained, and in relation to those categories of interest or right where it is considered unreasonable to require the authority to effect standard service.
Consultation
6.11 In our consultation we asked whether the Government's existing proposals to widen service, including by site notice, could be given effect by adapting the rules for service contained in the Acquisition of Land Act 1981.[23] Consultees in the main agreed that this would be an appropriate route. 6.12 One local authority observed that recorded delivery has an in-built deficiency: if the notice is not delivered to (and signed for) by the addressee at the premises, and is not collected from the post office by the addressee, it will be returned to sender and good service will not be presumed.[24] It was contended that this leaves a loophole for the less scrupulous landowner who wishes to evade service. Instead, service should be deemed adequate by first class ordinary mail. 6.13 While we understand the difficulty posed, we do not believe that ordinary posting is sufficient where a landowner's property rights (and human rights) are at stake. Every day a significant proportion of ordinary mail is either misdirected or goes undelivered, through no fault of the sender or addressee.[25] It would not be fair, we believe, to place a reverse burden of proof on a landowner to rebut a presumption of good service where no postal records can be accessed.[26] 6.14 Another consultee wondered whether the display of site notices could be disproportionately onerous, particularly where the land to be taken comprises small sub-divided plots. We are aware that the notice being displayed may run to several pages.[27] Site notices are, however, intended as an alternative to standard service, providing a means whereby those whom the authority may find difficult to trace are alerted to the compulsory purchase being effected. While it may on occasion put authorities to considerable expense and inconvenience to display site notices, it is in our view an essential protection of the rights of those whose land is being affected, and we do not consider that the burden can fairly be described as disproportionate.Notice requirements
6.15 We asked consultees whether, if there were to be "special service" provisions, they should be governed by secondary rather than primary legislation.[28] 6.16 ODPM expressed concern that creating a "special service" mechanism may cause procedural complications, particularly if it is necessary to prescribe categories of interest and circumstances by secondary legislation. They took the view that the changes being effected in the Planning and Compulsory Purchase Act 2004, involving the mandatory display of site notices in all cases, should be sufficient to deal with possible unidentified interests. 6.17 Some consultees felt that secondary legislation might give more flexibility for the future, but others (such as the Planning and Environment Bar Association and the Law Society) were more guarded and felt that the circumstances of special service should be laid down in primary legislation.Primary or secondary legislation
6.18 Finally, we asked consultees whether there were other practical issues that we had not addressed in our provisional proposal.[29] 6.19 The Country Land and Business Association suggested that provision should be made for service of statutory notices on appointed agents in order to clarify the effect of Fagan v Knowsley MBC.[30] This issue was also raised in the context of service of notice to treat.[31] 6.20 Our view is that service is governed by relatively modern legislation[32] which makes no provision for service on agents. As Fagan made clear, Parliament enacted a "complete code for the service of notices" in section 30 of the Compulsory Purchase Act 1965 which did not (in the absence of some form of estoppel) include service on an agent. We do not believe that the principle established in Fagan requires further clarification. 6.21 The Country Land and Business Association also argued for tightening of the rules relating to identification of interests. It claimed that a large number of authorities only make cursory checks (usually limited to a Land Registry search) before resorting to alternative means of service. The expression used in the legislation to describe the obligation is "diligent inquiry".[33] The High Court has held this to mean using "some reasonable diligence", which falls short of the need to make "very great inquiry".[34] What is reasonable in each case will be a matter of fact and degree. 6.22 We do not think that it is appropriate for primary legislation to be employed to spell out the steps which should constitute an adequate inquiry. This is better left to Departmental guidance.[35] 6.23 In connection with site notices, one consultee highlighted the problem of notices disappearing from sites shortly after they are posted: whether deliberately (by vandals or aggrieved landowners) or accidentally (by adverse weather conditions). We shall return to this concern below.Other issues
6.24 Events have moved on since we published our Consultative Report on Procedure. Section 11 of the Acquisition of Land Act 1981 has been amended by the Planning and Compulsory Purchase Act 2004.[36] As well as publishing notice of making the CPO in one or more local newspapers for two successive weeks, the authority must affix a notice, in prescribed form, to a conspicuous object or objects on or near the land comprised in the order. The notice, which must be addressed to persons occupying or having an interest in the land, must (in similar terms to the newspaper notice):Legislative reform
(1) State that the order has been made and is about to be submitted for confirmation;
(2) Describe the land and state the purpose for which it is required;
(3) Name a place in the locality where a copy of the order and of the map referred to therein may be inspected; and
6.25 We can see the force of the criticism that there is no obligation imposed on the authority, once it has affixed the site notice, to take reasonable steps to ensure that it remains in place for the objection period. On a strictly literal interpretation of the provision, the acquiring authority has complied with its statutory obligation by affixing the notice. On a purposive interpretation, which we would hope the courts would adopt, the notice must remain so affixed (in such condition as those to whom it is addressed can read its contents) for the period during which objections may be made. If the legislative opportunity arises, there would be advantage in imposing an additional, express, obligation, to display the notice for the objection period. 6.26 We do, however, welcome the acceptance of site notices as a means of publicising the compulsory purchase orders. We doubt that much by way of further legislative reform is now called for, although we do believe that in due course opportunity should be taken to rationalise the variants of formula used across the legislation for service where it is not practicable to identify (with name and address) persons entitled to be served.(4) Specify the time (not less than 21 days from the notice being first affixed) within which, and the manner in which, objections can be made.
Recommendation (20) – Service of notices and publicity
(1) The present rules relating to service of notices should remain in primary legislation, supplemented where necessary by departmental guidance, subject to the following.
(2) The different statutory formulations relating to service by site notice should be made consistent.
(3) Section 11(3) of the Acquisition of Land Act 1981 should be amended to place an obligation on acquiring authorities both to display a site notice and, so far as reasonably practicable, to keep it in place for the requisite period.
Note 1 Law Com CP No 169, Part III(3) and Proposal 1. See also discussion in Part IV(2) paras 4.9-4.11. [Back] Note 2 Acquisition of Land Act 1981, ss 10(3), 12(1). [Back] Note 3 Acquisition of Land Act 1981, s 12(1), as amended by the Planning and Compulsory Purchase Act 2004, s 100(5). [Back] Note 4 Acquisition of Land Act 1981, s 15, as substituted by the Planning and Compulsory Purchase Act 2004, s 100(7). The confirmation notice must also be affixed to a conspicuous object or objects on or near the land comprised in the order, and published in one or more local newspapers. [Back] Note 5 Compulsory Purchase Act 1965, s 5(1). [Back] Note 6 Compulsory Purchase Act 1965, s 11(1). “Owner” is defined as in the Acquisition of Land Act 1981, s 7(1). [Back] Note 7 See Part 3(2) above, and also previous discussion in Law Com CP No 169, paras 5.20, 5.21. [Back] Note 8 The effect of compulsory purchase on existing rights is discussed in Part 8 below. [Back] Note 9 Compulsory Purchase (Vesting Declarations) Act 1981, s 3(1), (3). [Back] Note 10 In other words, the notice of confirmation required to be published or served under the Acquisition of Land Act 1981, s 15: Compulsory Purchase (Vesting Declarations) Act 1981, s 3(5). [Back] Note 11 Each form of tenancy is defined in the Compulsory Purchase (Vesting Declarations) Act 1981, s 2. For these types of tenancy a further notice procedure exists: ibid, s 9. [Back] Note 12 Compulsory Purchase (Vesting Declarations) Act 1981, s 6(1). [Back] Note 13 See para 6.4 above. [Back] Note 14 See our discussion in Law Com CP No 169, paras 3.19, 3.20. [Back] Note 15 The reference in s 6(2) as enacted was to Town and Country Planning Act 1971, s 283. This reference was amended by Planning (Consequential Provisions) Act 1990, s 4, Sched 2, para 52. [Back] Note 16 Inserting “tenant” into the list of persons to whom the document should be addressed under s 6(4). [Back] Note 17 See Part 8 below. [Back] Note 18 Law Com CP No 169, para 3.18. Local authorities already have this power under Local Government (Miscellaneous Provisions) Act 1976, s 16. [Back] Note 19 Planning and Compulsory Purchase Act 2004, s 105, inserting sections 5A and 5B into the Acquisition of Land Act 1981. [Back] Note 20 Law Com CP No 169, para 3.22. The 1981 rules are applied by the Compulsory Purchase Act 1965, s 30, as substituted by the Acquisition of Land Act 1981, Sched 4, para 14(4). [Back] Note 21 See Law Com CP No 169, paras 3.22-3.24. [Back] Note 22 Law Com CP No 169, paras 3.23, 3.24, Proposal 1. [Back] Note 23 Law Com CP No 169, para 3.24, Consultation issue (A)(1). [Back] Note 24 See Interpretation Act 1978, s 7. [Back] Note 25 See “Millions of letters are lost in post” The Times 3 May 2004, “Millions of letters are wrongly delivered” Sunday Times 2 May 2004 and a number of other recent articles. [Back] Note 26 The Local Government Act 1972, s 233 makes provision for simple service by post, but is out of step with other legislation. The Royal Mail offers a web-based facility for checking delivery where recorded delivery or registered post has been utilised. [Back] Note 27 For example, where it is in respect of both confirmation of the order and preliminary notice of the making of a general vesting declaration. [Back] Note 28 Law Com CP No 169, para 3.24, Consultation issue (A)(2). [Back] Note 29 Law Com CP No 169, para 3.24, Consultation issue (A)(3). [Back] Note 30 (1985) 50 P&CR 363 (CA). The owner of property subject to a CPO emigrated to Australia, leaving his brother to manage it. The acquiring authority assumed (wrongly) that the brother was the owner, and served him with notice to treat. The Court of Appeal held that, even if the brother were an authorised agent, section 30 of the Compulsory Purchase Act 1965 does not confer authority to serve an agent so as to bind the principal. [Back] Note 31 See para 3.27 above. [Back] Note 32 Compulsory Purchase Act 1965, s 30; Acquisition of Land Act 1981, s 6 (as amended by the Planning and Compulsory Purchase Act 2004, s 100(2)). [Back] Note 33 See the Compulsory Purchase Act 1965, s 5(1), and the Acquisition of Land Act 1981, s 12(2A) as substituted by the Planning and Compulsory Purchase Act 2004, s 100(5)(b). [Back] Note 34 R v Secretary of State for Transport, ex p Blackett [1992] JPL 1041, 1043 per Popplewell J. In this case the requesting of Office Copy entries from the Land Registry was sufficient because changes to the title were still pending first registration, and it was known that the landowners had deliberately split the land into small parcels and transferred them on in an attempt to frustrate implementation of the order. [Back] Note 35 ODPM Circular 06/2004 deals with this only briefly (see App U para 16(p)). [Back]
