The Levelling Up and Regeneration Bill proposes changes to the compulsory purchase regime. The principal reason given by the government for the changes is to make regeneration, including regeneration by compulsory purchase, easier and more flexible. The changes sit alongside other provisions for regeneration or ‘levelling up’ of communities including a power for Councils to require landlords to participate in rental auctions for unoccupied properties in high streets and options for even more devolution of powers from central government.
First up are the changes to an objector’s automatic right to a public inquiry as a mode of determining whether or not a compulsory purchase order (“CPO”) should be confirmed and the introduction of conditional confirmation of CPOs. CPOs are frequently made by local authorities, described as acquiring authorities (AAs), under various statutory powers including planning, highways or housing legislation. If a CPO attracts a ‘relevant objection’, which often boils down to an objection by someone with an interest in the land or right being acquired and other statutory criteria, the order must be confirmed by the Secretary of State or his inspector in their role as confirming authorities (CAs), before it becomes operational.
Under current legislation, the objector has an automatic right for that confirmation process to take place by public inquiry although they can agree to a written representations procedure. The Bill proposes to remove that right. The Inspector will decide whether or not the confirmation warrants a public inquiry and this will depend on the scale and complexity of what is proposed by the CPO (not necessarily the issues raised by the parties although you would expect some significant overlap in these 2 areas). The objector will still retain a right to be heard by informal hearing if the Inspector does not think the matter justifies a public inquiry but unlike now where the right to a public inquiry is automatic, the objector will have to expressly elect to be heard.
The right to be heard is important for a number of reasons. Oral argument and discussion are frequently more persuasive and informative than submissions by documents. It is important that, during the confirmation process, the Inspector or Secretary of State sufficiently understands and takes into account the impact of the CPO on the individual - as well as the public benefit in the underlying scheme - in deciding whether the AA has demonstrated a compelling case in the public interest for the CPO.
An informal hearing can, in my view, sufficiently safeguard the objector’s rights as long as all parties, including the CA, continue to appreciate how serious a CPO is, for an individual owner/occupier and in terms of human rights. Practitioners and interest groups will no doubt monitor how these changes work and what practical effect they have, not only on the success of CPOs but on the right of individuals to effectively make representations.
The Bill also introduces the concept of conditional confirmation of CPOs whereby the Inspector has the power to confirm a CPO on the basis that it will not become effective until he or she is satisfied that certain conditions have been performed. The current options are to confirm the CPO in whole or part or not to confirm. If a CPO is confirmed on a condition basis, the AA will apply for further confirmation that the conditions have been performed using a fulfilment notice. The objector will have a right to be notified of this process and can make representations or objections to the prospect of a CPO becoming unconditional.
The proposals have the potential to add another period of uncertainty regarding the CPO to individual owners and occupiers. The practical effect of any uncertainty regarding CPO can be to lengthen the period of time, starting with the first time they found out that the Council intends to demolish their house, within which an objector feels that their life is at a bit of a standstill. On the other hand, it can enable a well-advised and resourced objector to continue to deal further blows to the CPO process. On the positive side, it can provide some certainty to the AA that they have demonstrated that they have a compelling case in the public interest for the CPO and enable them to deal with any parts of the CPO that require resolution to the benefit of all parties.
Another provision in aid of flexibility are powers firstly for CAs to extend the time, currently three years, within which a CPO must be implemented. Also within the Bill is the power for the AA to agree, further to the service of a notice to treat/enter or a general vesting declaration, an extended time period with the owner/occupier before the property has to be vacated and transferred to the AA. At the moment, the time period can be as short as 3 months.
Changes will be made to the process of notification for CPOs. AAs will be required to publish certain information on their websites as well as carry out the current notification procedures by newspapers and personal service. The notices will be required to be clearer about the last date for objections. Notices frequently state that objections to the CPO must be submitted before a certain date and there can be some confusion as to whether that date is the last date for objections or whether it is the day before - which can be stressful given the tight deadlines and considering what is at stake for objectors!
CAs will have the power to permit AAs to forego the requirement that maps and notices must be available for inspection at their offices if the CA is of the view that there are special circumstances which mean that this requirement is impracticable. This may relate to events like the pandemic (hopefully not recurring) or lack of staff at certain locations.
The Bill proposes a clarification by specifically adding the word ‘regeneration’ to the purposes for which a CPO can be made under section 226 of the Town and Country Planning Act which currently states that CPOs can be made to ‘facilitate the carrying out of development/re-development or improvement on or in relation to the land] or (b) [which] is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated’. The amendment follows through to the definition of a ‘scheme’ in legislation which sets out the rules for compensation. Included in those rules is the fact that compensation is paid on a ‘no scheme’ basis, meaning that it cannot take account of any improvement or depreciation of the value of the property or right which is attributable to the scheme.
A scheme will be expressly defined as including the regeneration as well as the development or improvement scheme and any enabling transportation scheme. Widening the definition of scheme can have the effect of reducing compensation since schemes are usually improving and will bring land values up. However, this amendment is probably largely reflective of current practices and assists in clarifying the position. Finally, there is a new power for the Secretary of State to set out data standards for CPOs. As an example, the explanatory note states:
“Data standards may, for example, be applied to the order and map that an acquiring authority produces for a CPO to ensure they are provided in standard digital format, accessible and searchable.”
The government’s commentary on the Bill states that it is in favour of making CPOs easier in order to regenerate land. This could potentially help objectors, as well as AAs, as a quicker process could enable them to move on from the CPO sooner. However, with the ambition to make regeneration easier, the government and all stakeholders must retain a sense of understanding of how draconian the CPO process is for any occupier or owner who is at the receiving end of an order which seeks to take their property away, forces them to spend time and money considering and objecting to the CPO and results in radical changes to their local area.