Many authorities have powers to compulsorily acquire land, in connection with development projects that are being brought forward in the public interest. Those "acquiring authorities" can use their powers to permanently acquire land, but can also acquire rights over land and rights to occupy and use land temporarily. For landowners, understanding the implications of such powers and how and when to respond is essential.
Understanding DCOs and CPOs
Generally, a developer wishing to bring forward a project would need to obtain planning permission from the local planning authority under the Town & Country Planning Act 1990 (TCPA). If the developer also needs to acquire land in the ownership of a third party, then a separate compulsory purchase order (CPO) may be necessary. The local planning or other relevant authority may make a CPO where certain tests are met (including as to the public interest).
Where a project meets certain criteria in the Planning Act 2008 (2008 Act) relating to "Nationally Significant" infrastructure projects (NSIPs), then the developer would instead apply to the Secretary of State for a development consent order (DCO). The DCO may include planning permission, compulsory acquisition rights and other matters which would typically require a separate consent(s).
Some infrastructure projects are brought forward through separate pieces of legislation (e.g. HS2) or other types of orders, both of which may include compulsory acquisition provisions.
Steps to Take if Your Land is Affected
If you are notified that your land is affected by compulsory acquisition (whether through a CPO, DCO or other order), it is advisable to engage with the relevant processes and the relevant authority and developer to preserve your position and obtain the best outcome in relation to your land.
Draft CPOs and DCO applications including compulsory acquisition powers must be accompanied by or include:
- land plans, showing the land (mapped out in plots) proposed to be subject to compulsory purchase and whether the acquisition is permanent or temporary or affects land or rights;
- a book of reference which sets out for each plot the known parties to be affected; and
- a statement of reasons which sets out the applicant's reasons for seeking compulsory acquisition powers, in accordance with the statutory tests.
The above documents should be checked carefully to understand how your land might be affected.
If you are affected by compulsory acquisition, you will be given notice of the making of the CPO or the application for the DCO and have the right to participate in the process. DCOs will be subject to examination led by an examining authority, who report to the Secretary of State (who has the final decision). You will have the right to make representations and to be represented or participate at the examination. The programme for the examination will be set out by the examining authority and it will be important to comply with deadlines set. The examination will normally include at least one hearing where compulsory acquisition is discussed at which you or your representative can speak.
CPOs also involve a two stage process – the CPO must be made (by the acquiring authority such as the local planning authority) and then confirmed. Where a CPO is made, the acquiring authority must serve notice on owners and publish notices locally – if you are affected, you will have at least 21 days to make representations. If objections are received and not withdrawn, the CPO may need to be confirmed by a third party, often the Secretary of State. A public hearing or local inquiry will often be held, or objections may be considered through a written representations procedure.
In both cases, applicants are encouraged to engage with and undertake negotiations with affected parties in parallel to the formal process to try and reach agreement and avoid the need for formal compulsory acquisition.
If you are aggrieved by the grant of a DCO or CPO, the order can be challenged through the High Court typically by submitting an application within six weeks of the date of the order. The challenge must be on legal or procedural grounds; it is not an opportunity to relitigate the merits of the application.
Compensation
If your land is compulsorily acquired, you are entitled to compensation to be determined in accordance with the "compensation code" (being a body of legislation, case law, and established practices that govern compensation). This takes into account various heads of loss, such as the market value of the land, any compensation due as your occupation of the land is disturbed (such as relocation fees) and professional fees. Where the parties cannot agree on the appropriate compensation amount, this will be determined by the Upper Tribunal (Lands Chamber).
Conclusion
Facing a DCO or CPO can be daunting, and it is important to seek professional advice as quickly as possible. You or your agent should review all notices received, consider and comply with any timetable for making representations and keep under review the need to attend any inquiries or hearings. If the order is confirmed, you will need to engage to ensure you receive fair compensation. Crucially, as infrastructure projects continue to shape the future of urban landscapes, being informed and proactive remains your best defence.
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.
