UK: CPO: The Who, How And Why Of Objections

Last Updated: 19 June 2013
Article by John Bowman

John Bowman and Emily Murray explain how to handle objections to compulsory purchases.

As explored in our first article of this series of two (Estates Gazette 4 May 2013), compulsory purchase powers allow certain bodies that need to acquire land (or rights over it) to do so without the consent of the owner. Such powers are prescribed by Acts of Parliament for the purposes of enabling functions that are deemed to be in the public interest. The implementation of this utilitarian idea of interference in individual rights for the benefit of society is one that will inevitably, on occasion, be met with resistance.

This second article looks at what happens when objections are received to the making of a compulsory purchase order (CPO) and how to deal with individuals or action groups who are obstructing the process.

Who

It is not only the landowner directly affected by the CPO who is in a position to be obstructive. As explained in our first article, a CPO is widely publicised, not only through newspaper advertisements, but also by notices affixed on the land and served on qualifying persons at several stages of the process.

A qualifying person, for this purpose, includes not just owners, lessees, tenants and occupiers, but may also include:

  • English Heritage in the case of a scheduled ancient monument;
  • The county archaeologist in the case of an unscheduled ancient monument;
  • The national park authority where land is included in a national park;
  • Natural England where land falls within a designated area of outstanding natural beauty or a site of special scientific interest; and
  • The relevant regional office of Sport England for land being used for physical recreation.

Site notices and newspaper adverts are effective means of alerting interest groups to the CPO. Local area interest groups may be watchful for site notices. Groups such as the Open Spaces Society and the Ramblers routinely search newspapers for planning notices. These larger organisations are often familiar with the intricacies of compulsory purchase procedure and can be well versed in how to stop or slow the process, should they so desire.

How and when

Objections

The notices of the making of the CPO invite submissions to the confirming authority. An objection must be made in writing within the period stipulated in the notice (at least 21 days from the date of the notice). On the expiry of the period, the confirming authority is required to hold a public inquiry, to arrange a hearing or, in certain circumstances, to use the written representations procedure. Private hearings are very rarely used in practice.

Objectors who are owners, lessees, tenants, occupiers or others who would have been entitled to receive a notice to treat or claim compensation are known as "statutory objectors". The remainder (for example, those who are opposed to the environmental or social consequences of the proposed project) are known as "third–party" or "non–statutory" objectors.

Where there are only non–statutory objectors, the confirming authority is not bound to hold an inquiry to hear their objections, though if there are a great many non–statutory objections a public inquiry is often held in the interests of transparency. A public inquiry resembles a trial in its set–up: there will usually be two sides; evidence is given in–chief and is usually cross–examined; counsel are often used. However, the outcome of a public inquiry is not a judgment. The "judge", an inspector appointed by the minister, will report to the minister at the conclusion of the inquiry and the minister will make his decision based on that report.

The written representations procedure is a less costly option than a full public inquiry. Submissions are made in writing; these are then reviewed by an appointed inspector who may undertake a site visit. The inspector's report is, as with a public inquiry, issued to the minister. This procedure is not available where the order is subject to special parliamentary procedure (for example, where the order affects common land) and can only be used where land belongs to a statutory undertaker if a minister grants a certificate. Further, the procedure can only be used where every statutory objector consents.

The Lands Chamber

The confirming authority is entitled to disregard objections where it is satisfied that the objection relates exclusively to matters that can be dealt with by the Upper Tribunal (Lands Chamber), by whom the compensation is to be assessed. The issue of compensation in compulsory acquisition is in itself complicated; it is however one which is considered separately from the question as to whether or not land should be acquired by the acquiring authority.

The Lands Chamber also deals with disputes as to whether part only of a property can be compulsorily acquired and the apportionment of rent between parts acquired and parts retained.

High Court challenge

Once the minister has confirmed a CPO, notices are placed in the newspaper, affixed to land, and served on qualifying persons. There is a six–week period from the date that the notice is first published within which an aggrieved person may question its validity in the High Court.

This can be done on the grounds that (a) there is no power in the Acquisition of Land Act 1981, or the enabling Act, to authorise the order, or (b) the requirements (mainly procedural) of the appropriate Acts and regulations have not been complied with and the interests of the person applying to the High Court have been substantially prejudiced. A person "aggrieved" is not likely to include a third party or an interest group, but rather occupiers and owners of the land who are directly affected by the order.

A six–week period may seem to be prejudicially short; an aggrieved person who is for whatever reason unaware of the confirmed order could quite easily miss their chance of a right to challenge. However, the acquiring authority requires certainty that their entering onto land and undertaking works is lawful.

Judicial review

A decision by a minister not to confirm an order, a decision by an acquiring authority to make an order, or a decision by an acquiring authority to act on a confirmed order by transferring title (by way of a general vesting declaration or a notice to treat) can be challenged in the High Court by way of judicial review. An applicant for judicial review must have locus standi, ie a sufficient interest in the matter to which the application relates. This is said to be a higher standard in practice than that of a person aggrieved.

Why and how to deal

At the root of most objections to CPOs, one will find anxious interested parties. Notices will have alerted them to the tight timetable within which they have a chance to challenge the CPO. As such, any residual query or niggling doubt could compel them to submit an objection purely to slow the process and protect their position.

This highlights the importance of the early stages of a CPO. Early contact with those directly affected should be made and clear explanation of the project and the rights or land sought is essential. Appropriate avenues of communication should be offered to avoid negative communication being made solely through legal channels. This will allow any fears to be quelled before they are escalated.

Similarly, the drafting of the order and associated documentation should be exact and in plain language. While it may not be apparent at the time, any ambiguity in the drafting could cause considerable delay and additional cost. It is these documents that interested parties will rightly scrutinise.

Where it is suspected that an order could attract the attention of interest groups and other obstructive third parties, efforts should be made to publicise the project and disseminate information more widely via local media channels.

If an order has yet to be confirmed, obstructive parties could be placated, where possible, by suggested modifications to the order. The confirming authority could then be asked to confirm the modified order. While this is not ideal, it can be useful where an obstructive party has taken issue with an otherwise insignificant point.

Any issues with compensation will usually arise where a voluntary agreement for the transfer of land is being negotiated. The acquiring authority should be mindful of being firm but fair in its negotiations. It should ensure that the relevant parties understand the basis on which offers are being made and the likelihood of less compensation being found to be payable if the matter were to escalate to the Lands Chamber.

Providing good information and guidance is a process that in itself requires additional resources, and the resulting expense. Nevertheless, it is an essential part of a CPO project and can give good indications as to obstructions that are likely to arise at a later stage. While the process can be scaled to appropriately meet the requirements of any project, some form of communication will always be necessary no matter its complexity. To neglect it may cost the acquiring authority dearly.

Why this matters

Compulsory purchase is a controversial power which puts the purported interests of wider society ahead of those of the individual. People are attached to land and local people can be suspicious of any supposed advances and opposed to changes in their community. If left to their own devices, speculation can escalate and misinformation spread quickly. The local press may pick up on this and is more likely than not to be biased towards what will be seen as the community's interests and against those of the outsider, the statutory body.

An acquiring authority carrying through any project will want to take all reasonable steps to manage interest in their project and ensure that accurate information and guidance is given on what is intended, how and why. This is especially the case as regards those parties who are directly affected. If they are not convinced as to the necessity of a project or are unclear as to the extent of their rights that will be extinguished, they have the scope to interfere with its progression.

As explained in the previous article, the path to acquisition of land by way of the exercise of compulsory powers is rarely a smooth one; there are many variables and potential pitfalls along the way. This is the case even where there are no obstructive parties resisting a proposed CPO; the process is still a lengthy and expensive one. With the addition of obstructive parties, the project can very quickly go off track.

It is therefore imperative that an acquiring authority takes what opportunities it can to reduce the risk to the project. Reaching an agreement with the landowner is usually the simpler, faster and cheaper option. Where this is not possible, an acquiring authority will want to reduce the number of hurdles to overcome in a CPO process by expending resources and efforts early on and ensuring that communication channels are open and information on the project and process is clear.

Further reading

Encyclopedia of Compulsory Purchase and Compensation, edited by CM Brand, Sweet & Maxwell

The Law of Compulsory Purchase, Guy Roots QC, Michael Humphries QC, Robert Fookes and James Pereira, (2nd ed), Bloomsbury Professional

Originally published in Estates Gazette on 1 June 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.