Part III        (RC 24.10.02)

General issues

Introduction

                    3.1             In this Part we discuss certain general issues, before outlining the procedures for arriving at a confirmed compulsory purchase order.

                    3.2             The general issues are:

                    3.3             In our Compensation Report, we envisaged that the new Compensation Code should in principle be of universal application following compulsory purchase under any statute. Such an approach would largely follow that of the 1961 Act. Section 1 of that Act, which provides for disputed compensation to be referred to the Lands Tribunal, applies:

… where by or under any statute (whether passed before or after the passing of this Act) land is authorised to be acquired compulsorily…[1]

                    3.4             By contrast the Acquisition Act is on its face more limited in scope. (The 1965 Act has the same scope as the Acquisition Act.[2])  It applies to any compulsory purchase “to which this Act applies by virtue of any other enactment, whether or not passed or made before this Act”, or one under an enactment specified in the following subsection.[3] However, in practice, as a result of consequential amendments made by the Act itself,[4] or by later statutes, the Acquisition Act appears to cover all the main categories of compulsory purchase.[5] The policy reasons for any exclusions are not apparent from the Act.

                    3.5             We acknowledge that there may be categories of compulsory purchase which, because of the nature of the subject matter or for other reasons, justify different treatment. One significant category is that of orders made under the 1992 Act, under which powers, including powers of compulsory acquisition, may be obtained for transport and other infrastructure works. Under the scheme of that Act, there is no compulsory purchase order as such, but the power of compulsory purchase is one of the powers conferred by an order under the Act, and the procedure for implementation is set out in the order.[6] If the current proposals are enacted, we would expect them to be reflected in the model clauses for future orders under the 1992 Act. However, that would be a matter for subsequent consideration.

                    3.6             As we have explained above, we are not seeking at this stage to attempt a consolidation of all the existing procedural statutes.[7] Accordingly, it is unnecessary to consider how the different provisions in relation to application should be reconciled. However, if the ultimate goal is a comprehensive code, it should, in our provisional view, extend to all compulsory purchases initiated[8] after its commencement, under statutes (whenever passed) conferring power to acquire by compulsory purchase order. If there are to be exceptions, they should be identified and justified as such.

(2) Basic definitions

Acquiring and confirming authorities

                    3.7             Compulsory purchase orders may be made by a wide variety of agencies, public and private. The Acquisition Act adopts a wide definition of “acquiring authority”, which, in relation to a compulsory purchase order:

“Person”, by virtue of the Interpretation Act 1978, (“the 1978 Act”), includes “a body of persons corporate or unincorporate”.[9] Thus, given that compulsory purchase powers are exclusively statutory, the definition extends to any body on which compulsory powers are conferred by statute. We propose to adopt this terminology in this report.

                    3.8             “Confirming authority” is defined as “the Minister having power to authorise the acquiring authority to purchase the land compulsorily”. It does not apply to a Ministerial order, which is not “confirmed” as such; instead such an order is first “prepared in draft”, and then “made” by the Minister, at what would be the confirmation stage.[10] As noted below, there are Government proposals for the acquiring authority to be able to confirm its own orders in certain cases, where there are no objections.[11] We do not think this requires any change to the basic definition, since this proposal will be covered by a separate provision.

Definition of Land

Generally

                    3.9              Another basic definition is that of “land”, for which one finds a confusing variety of definitions in the different statutes:

                                            (1)             The word “lands” shall extend to messuages, lands, tenements and hereditaments, of any tenure;[12]

                                            (2)             “Land” means any corporeal hereditament, including a building as defined by this section, and includes any interest or right in or over land and any right to water;[13]

                                            (3)             “Land” includes anything falling within any definition of that expression in the enactment under which the purchase is authorised;[14] and

                                            (4)             “Land” – (a) includes messuages, tenements and hereditaments, and
(b) in relation to compulsory purchase under any enactment, includes anything falling within any definition of the expression in that enactment. [15]

                3.10             The differences seem to be more historical than substantial. As general definitions, they do not appear to add anything to the definition in the 1978 Act, by which “land” includes:

                3.11             This would provide an adequate basis for a comprehensive code, although it would need to be modified to recognise (as in (3) and (4) above) any special meaning given to “land” by the enabling statute.  Again this is not a priority task, and we are not aware of any practical difficulties caused by the present definitions.

                3.12             It should also be noted that the definition of “land” needs to be capable of extending to the acquisition of new rights over land not being compulsorily acquired (as opposed to existing interests), where the enabling statute makes this possible.[16] In the absence of express provision, compulsory powers do not entitle the authority to create new easements or other rights.[17] Many modern Acts confer such power, notably the 1976 Act, which does so in respect of compulsory acquisitions by local authorities.[18] In such cases, procedure and assessment of compensation follow the ordinary rules for acquisition of land, except so far as modified by the statute conferring the power. Whether such powers should be extended to other categories of acquiring authority is a matter of policy, outside the scope of the present reference.

(3) Service of documents

Notice requirements

                3.13             The present legislation requires service of notices on interested parties at various stages of the order-making and implementation process. The following are the main stages (under the notice to treat procedure):

                                            (1)             Notice of making of the order must be served on “every owner,[19] lessee and occupier (except tenants for a month or any period less than a month) of any land comprised in the order ...”;[20]

                                            (2)             Notice of confirmation of the order must be served on any person on whom notice of making was required to be served; [21]

                                            (3)             Notice to treat 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;” [22] and

                                            (4)             Notice of entry must be served on “the owner, lessee and occupier” of the land in respect of which notice to treat has been served.[23]

                3.14             Thus, whereas some forms of notice are served on “occupiers” as well as owners, notices to treat are limited to “persons interested”.[24]

                3.15             Special considerations apply to rights (such as easements or restrictive covenants) affecting the subject land.[25] The compulsory purchase order does not of itself result in the acquisition or extinguishment of such rights.[26] Instead, the authority has the right to interfere with such rights to the extent necessary to achieve the purpose of the order, and compensation is payable as and when such interference occurs.[27] There is no express provision for any notice to be given before such interference takes place. The owner of such a right is not treated as an owner or occupier of the subject land, so as to be entitled to notice of the making or confirmation of the order,[28] or (for the same reason) to notice of entry. Nor is he a “person interested” under the notice to treat provision.[29]

                3.16             Under the Vesting Declaration procedure, the same steps apply up to confirmation of the compulsory purchase. The effect of the declaration is to vest in the authority “all the land and all the interests therein”,[30] with the exception of “minor tenancies and tenancies about to expire” for which there is special procedure, involving notice to treat and notice of entry.[31]

                3.17             The Vesting Declarations Act provides for two forms of notice:

                                            (1)             Preliminary notice, inviting information from potential claimants, which has to be served on the persons entitled to notice of confirmation;[32] and

                                            (2)             Notice of execution, which must be served on every occupier of the land specified in the declaration (other than land subject to a minor tenancy or a long tenancy about to expire); and every other person who has given information in response to the preliminary notice.[33]

Again there is no express provision for notices to be served on those entitled to rights over the land, such as easements or restrictive covenants. 

Identification of interests

                3.18             A related issue is the extent of the authority’s obligation to identify those with interests in the land, for the purpose of service. Local authorities have wide powers to obtain information as to interests in the land, for the purposes of their functions.[34] There are no equivalent general powers for other bodies exercising compulsory purchase powers. In view of the wide variety of such bodies, it would probably be inappropriate to confer any general powers to obtain information by compulsion. The Government proposes to extend the powers available to planning authorities to Regional Development Agencies, which currently lack any such power.[35]

Provisions relating to service

                3.19             There is a surprising variety of statutory provisions relating to service, which could usefully be rationalised. The following provisions have relevance to compulsory purchase:

                3.20             A comparison of these sections shows that they have many common features, but some differences of detail. For example, most require postal service to be by registered letter or recorded delivery,[36] but the 1972 Act allows simple service by post.[37] A common feature of all sections is provision for cases where following “reasonable inquiry” it is “not practicable” to ascertain the name or address of a person entitled to be served. The details of what is then required to effect good service vary between the provisions; for example, it may be sufficient to deliver the notice to someone on the land, or to “leave a copy on or near the land”;[38] or to have it “affixed conspicuously to some object on those premises”.[39]

Extension of statutory objector status

                3.21             As noted in the next Part,[40] the Government proposes to extend the right to notice of the making of the order, and with it “statutory objector status”,[41] to all those with any form of interest or right to occupy, including owners of rights. It is proposed that notices should be served on "all known owners, lessees (including tenants) and occupiers”, who would then have the right to be “statutory objectors”. The Government recognises that it would be “impracticable to expect the authority to ascertain details of all those with other rights”. It proposes therefore that service should be effected by posting notices on the land, and that if an objection is received from a person with a right over the land (such as the benefit of a right of way) then that person should be treated as a statutory objector.

Proposal

                3.22             The Government’s proposal can be given effect by adapting the service rules of the 1981 Act, as applied by the 1965 Act. The provision for service by notice on the site will apply, not simply to cases where the owner of an interest is unknown, but also to cases where there are easements or other rights over the land.

                3.23             The new provision would provide for alternative methods of service covering:

                3.24             The detail of these provisions can be left for consideration at the drafting stage, having regard to the most suitable modern precedents. The categories of interest for which “special service” will be permitted at any stage may be defined in the regulations.

                                                                   (b)              Delivery, or posting by registered letter or recorded delivery, to the “proper address”;[42] and

                                                                   (c)              Service on a company or other body (including an unincorporated body) by service on an appropriate officer or member, at the registered or principal office.

                                           (2)             In relation to categories of interest and circumstances prescribed by regulations, and in other cases where the names and addresses cannot reasonably be ascertained, service may be effected by “special service”, defined to require fixing of notices on or near the land, and such other steps as may be prescribed by the regulations.

Consultation issue (A) – Service of documents

(1) Do consultees agree that the Government’s proposals relating to service can be given effect by adapting the service rules of the Acquisition Act as applied by the 1965 Act?

(2) If so, do consultees feel that the detail of “special service” should be governed by secondary rather than primary legislation?

(3) Are there practical issues not covered by our formulation?

(4) Entry for survey

Entry for survey

                3.25             Powers to enter the land for surveying and preliminary works are given by section 11(3) of the 1965 Act, [43] and, in the case of local authorities, supplemented by wider powers in section 15 of the 1976 Act.[44]

                3.26             Section 11(3) applies to any land “subject to compulsory purchase”, and therefore only applies once the order is operative.[45] It provides that the acquiring authority, after giving not less than three nor more than fourteen days’ notice to the owners or occupiers, may enter on the land:

for the purpose of surveying and taking levels of any of the land subject to compulsory purchase, of probing or boring to ascertain the nature of the soil and of setting out the line of the works.

The authority must pay compensation for any damage thereby occasioned to the owners or occupiers of the land, and any question of disputed compensation under this subsection shall be referred to the Lands Tribunal.

                3.27             Local authorities also have powers, under section 15 of the 1976 Act, to authorise entry for survey in connection with a proposal by the authority for compulsory purchase. The provisions are more detailed than section 11(3), and contain more extensive and detailed provisions for enabling local authorities to authorise entry for the purpose of survey. Explicitly the power is framed to include aerial survey, ascertaining of whether minerals are present, and the leaving on land of survey apparatus.[46] There are detailed provisions dealing with the procedures for entry, compensation for any damage, and protection of trade secrets; wilful obstruction of the exercise of the power is an offence.[47]

                3.28             It would be possible to extend these wider powers to all acquiring authorities under new legislation. However, it may be thought that the power to enter in connection with what is no more than a “proposal” should be confined to specific public authorities. Accordingly, we ask: