Ward Hadaway Guest WiFi Email: guest@wardhadaway.com Password: F1rew0rk$ Public Sector property update Tuesday 3 rd July 2018 Newcastle | Leeds | Manchester
2 Housekeeping Ward Hadaway Guest WiFi Email: guest@wardhadaway.com Password: F1rew0rk$ Newcastle | Leeds | Manchester
Compulsory Purchase Update – reform agenda and case law Frank Orr, Consultant Newcastle | Leeds | Manchester
Compulsory Purchase Update 4 » Ongoing reform of system » Boland – living in a no-scheme world. A brief case study: what does the cancellation assumption mean? » Case Law Update » Khan » Bishop » Why » Sharp » Cronin Newcastle | Leeds | Manchester
Compulsory Purchase Overview 5 » Compulsory acquisition of land or rights over land by Acquiring Authority » Sources of law » Enabling statutes contain powers to acquire for specific purpose » Compensation Code » Statute (LCA 1961, CPA 1965, LCA 1973, ALA 1981, TWA 1992) » Case Law » Guidance on Compulsory Purchase and Crichel Downs Rules (October 2015) » Process/procedure – prescribed forms and process » Challenge to confirmation - S 23 ALA 1981 » Implementation » Compensation – Upper Tribunal Lands Chamber Newcastle | Leeds | Manchester
Reform agenda changes effective from September 2017 6 Neighbourhood Planning Act 2017 ("NPA") » Statutory basis for "no-scheme" rule » Second-bite compensation » Disturbance compensation » Model compensation form Changes re "no-scheme" principle and disturbance apply to all CPOs confirmed on or after that date. Statutory footing for Pointe Gourde or no-scheme assumption. More to follow re Boland case and the no-scheme world Newcastle | Leeds | Manchester
Reform agenda changes effective from September 2017 7 Second bite compensation » Repeal of Part 4 LCA 1961. Claimants no longer entitled to additional compensation where planning permission approved within 10 years of compulsory acquisition. » Prospects of obtaining planning permission should have already been taken into account when assessing compensation as part of the application. » Disturbance compensation » Previously odd situation in that parties with a minor interest in land (eg licence) Licensees potentially entitled to more compensation than one with tenancy since it was assumed tenant's interest would immediately be terminated. » Now prospect of continuation or renewal must be taken into account. Newcastle | Leeds | Manchester
Reform agenda changes effective from September 2017 8 Model claim form and guidance » AAs advised to send form to potential claimants at earliest opportunity » Claimants advised to complete and return asap » Not final statement – can be updated, supplemented or amended » Costs implications if accurate information not provided in timely manner » Practical effect Newcastle | Leeds | Manchester
Reform agenda – changes effective from 6 April 2018 9 Housing and Planning Act 2016 ("HPA") Timetable for confirmation of CPOs New s14B ALA – requires Secretary of State to publish timetable in relation to steps to be taken when confirming a CPO Guidance updated to include target timescales Confirmation by Inspector – changes apply to any CPOs submitted on or after 6 April 2018 Claims for compensation Allows further regulations to be made in relation to the specific information that must be provided by a claimant when giving notice of a claim for compensation Newcastle | Leeds | Manchester
Reform agenda – changes effective from 6 April 2018 10 10 Advance payments of compensation Previously AA had to make payment within 3 months but no penalty for non-payment. Now AA must within 28 days of request decide if it has sufficient information to estimate compensation payable. If not, must request it. Advance payments must be made by the date of service of a notice of entry or GVD – or within two months of a request from a claimant if later. That is, payment more quickly and before possession is taken. If possession not taken – repayable. Potential for introduction of penalty rate of interest to be applied to any late payment Newcastle | Leeds | Manchester
Yet to be introduced 11 11 Temporary possession of land » Powers provided in NPA 2017 but yet to be introduced » Presently arranged by agreement with landowner » Or permanently acquired land returned » Already in force for DCOs » Practical benefits Newcastle | Leeds | Manchester
No-scheme world 12 12 » Simple hypothesis : compensation for land or interests compulsorily acquired cannot include an increase (or indeed decrease) in value which is entirely due to the scheme underlying the acquisition. » That is, assess compensation on the assumed "state of affairs which would have existed, if there had been no scheme of acquisition" » Pointe Gourde Rule » Law Commission report in 2003 : "the most difficult subject we have had to address in this project; the complex and intractable problems arising from the so called Pointe Gourde (or no scheme) rule" Newcastle | Leeds | Manchester
Section 6 Land Compensation Act 1961 13 13 » Waters case: Section 6 "fraught with complexity and obscurity" » Law Commission: » "section 6 (with the First Schedule) has been subject to particular criticism: the convoluted wording was difficult to interpret; the section applied to "other land", but made no equivalent provision for the subject land; and the statute failed to indicate whether or not the new rules were intended as a complete no-scheme code, or simply as a supplement to the judicial rule" Newcastle | Leeds | Manchester
No-scheme principle 14 14 » Amendments to LCA 1961 inserted by NPA 2017 » S6A(2) - the no-scheme-principle is that » (a) any increase in the value of land caused by the scheme for which the authority acquires the land, or by the prospect of that scheme, is to be disregarded, and » (b) any decrease in the value of land caused by that scheme or the prospect of that scheme is to be disregarded » S6A(4): Rule 1: it is to be assumed that the scheme was cancelled on the relevant valuation date (ie usually the date of entry per S5A) » The cancellation assumption is therefore now in statute. Boland case determined on previous statutory basis but still on cancellation assumption. Newcastle | Leeds | Manchester
Boland v Bridgend CBC 2017 RVR 243 15 15 » Mr and Mrs Boland owned land at Pen-y-fai near Bridgend. » In 1991 Mr Boland merited a mention in Hansard when the local MP criticised his actions – " right up to the very edge of the law" – which had caused widespread anger in the local community. This involved using p.d rights to build agricultural roads that were "so extensive that it looked as though a motorway was under construction" » When in 2005 Bridgend CBC made a CPO to acquire 6,500 sq metres of pasture land belonging to the Bolands for the purpose of a new primary school, unsurprisingly Mr and Mrs Boland objected and thus began a legal saga that lasted 12 years. Newcastle | Leeds | Manchester
Boland v Bridgend CBC 2017 RVR 243 16 16 » In fact there were two CPOs : » (Order A) School site itself » (Order B) the School's drainage and traffic access needs » Order B amended when it was appreciated that the right to lay pipes did not carry with it the right to discharge into a watercourse. » Public inquiries at which Bolands argued there was a more suitable site from both traffic and flooding perspective. » The CPO was confirmed in August 2010 by the Welsh Ministers. » Judicial Review sought. Newcastle | Leeds | Manchester
Judicial Review 17 17 » Judicial Review on following grounds: » Wednesbury irrationality » Failure to take into account material considerations/taking into account irrelevant material » Failure to comply with requirements of natural justice » Failure to give reasons » Making decision on factual matter at odds with findings of Inspector » All rejected Newcastle | Leeds | Manchester
Boland 18 18 » North Wales Daily Post » 21 June 2012 » A LONG and bitter fight for a new fit-for-purpose primary school in Penyfai ended in triumph last week. » Children at Penyfai Church in Wales Primary School have been learning in dilapidated 50-year-old portable cabins due to the crumbling state of their school building while the council have been locked in an ill-tempered legal wrangle for almost 10 years over the compulsory purchase of adjacent land needed to build the new facility. Newcastle | Leeds | Manchester
Boland v Bridgend CBC 2017 RVR 243 Compensation 19 19 » Boland decided on law as it stood prior both to Localism Act 2010 and Neighbourhood Planning Act 2017 but nonetheless instructive. » Bridgend Council argued that, absent the school scheme, the land had only agricultural value. » Bolands argued that there was an expectation that planning permission would be obtainable and valuation should be on that basis. » S5 LCA 1961 : open market value subject to the various disregards of actual or prospective development (S6 and schedule 1). Newcastle | Leeds | Manchester
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