Part IV          

Authorisation of compulsory purchase

Introduction

                    4.1             The procedure for making and authorisation of compulsory purchase orders is well established, and stated in clear and modern language in the Acquisition Act. It can therefore be incorporated in any new Code without substantial change, except so far as necessary to give effect to reforms proposed by the Policy Statement.

                    4.2             In this Part we examine three linked topics:

                                            (1)             Ministerial and non-Ministerial orders;

                                            (2)             Making and confirming; and

                                            (3)             Legal challenge.

(1) Ministerial and non-Ministerial orders

                    4.3             In relation to procedure, the Acquisition Act distinguishes between compulsory purchase orders made by Ministers, and those made by other agencies. In each case there is a two stage procedure, involving initial publication, followed by consideration of objections by a Minister (if necessary, after an inquiry). However, Ministerial orders are first “prepared in draft” and then “made” after the objection stage;[1] non-Ministerial orders are made by the acquiring authority and then “confirmed” by a “confirming authority”.[2]

                    4.4             There seems little purpose in this dichotomy, which results in needless duplication in the Act[3] and the rules.[4] There seems no reason why the Minister should not be treated as the confirming authority in relation to an order made by his own Department. It would seem tidier and simpler for the same procedure to be applied to both.[5] The importance given, under the current Government proposals, to the date of the first notice of the making of the order (“the first notice date”) underlines the desirability, in the interests of clarity, of using the same terminology for all types of orders.

                    4.5             This is not a priority issue, and could no doubt be left for a future consolidation. For present purposes, it is sufficient to bear in mind that references to the “making” or “confirmation” of an order are to be taken as including, respectively, the “preparation” or “making” of Ministerial orders.  However, we invite views of consultees on the issue.

Consultation issue (C) – Ministerial and non-Ministerial orders

Does the distinction drawn in the Acquisition Act between the procedures, respectively, for ministerial and non-ministerial orders serve any practical purpose?

(2) Making and confirming

Existing law

                    4.6             The main  features of the procedure are:

                                            (1)             Authorisation of compulsory purchase is conferred by a compulsory purchase order;[6]

                                            (2)             The form of the order is prescribed by regulations; among other requirements, it must describe by reference to a map the land to which it applies and the purpose for which the land is required;[7]

                                            (3)             Notice of the making of the order:

                                                                   (a)              Notices must be in prescribed form, stating the effect of the order, and its purpose, and specifying the time within which, and the manner in which objections can be made;[8]

                                                                   (b)              Notices must be:

                                                                                             (i)             Published in local newspapers;[9] and

                                                                                           (ii)             Served[10] on “owners and occupiers”;[11] and

(c) The date on which the notice is first published is to be defined as “the first notice date”;[12]

                                            (4)             Making and consideration of objections:[13]

                                                                   (a)              All those served with, or entitled to service of, notice of making of the order have a right to object within the time specified by the notice; those who so object are referred to as “statutory objectors”;[14]

                                                                   (b)              Any other person may make an objection or representations, within the time specified in the notice, but without acquiring the status of statutory objector;

                                                                   (c)              The confirming authority may:

                                                                                             (i)             require any objector to state in writing the grounds of objection; and

                                                                                           (ii)             may disregard any objection if satisfied that it relates exclusively to issues of compensation;[15]

                                                                   (d)              If there are no objections by statutory objectors, or they are all withdrawn, the order may be confirmed (following consideration of any other objections or representations) without any hearing or public inquiry;[16]

                                                                   (e)              If there are outstanding objections by statutory objectors, the confirming authority must arrange a public inquiry or hearing to consider those objections, and any other objections which it appears “expedient” to consider on the same occasion.[17] Procedure at inquiries or hearings is governed by inquiries procedure rules;[18]

                                                                    (f)              Following consideration of all objections and representations, and the report of the inquiry or hearing, the confirming authority may confirm the order; and

                                                                   (g)              The order may be confirmed (under (d) or (f)) with or without modifications, save that the area of the subject land may not be increased without the consent of all “persons interested”;[19] and

                                            (5)             Post confirmation procedure:

                                                                   (a)              Notices of confirmation of the order, in prescribed form,[20] must be published and served in the same way as notices of making of the order (under (3) above);[21] and

                                                                   (b)              Subject to the power of the court to suspend operation of an order pending resolution of a legal challenge (see below), an order will become operative on the date when notice of confirmation is first published (“the operative date”).[22]

Government proposals

Extension of statutory objector status

                    4.7             As noted in the previous Part, the Government proposes to extend the right to notice of the making of the order, and “statutory objector status”[23] to all those with any form of interest or right to occupy, including owners of rights:

… the current definition of “statutory objector” excludes some of the categories of person who might have a direct interest in the land being acquired and who could therefore be seen as being deprived of a right of objection to the disruption of their enjoyment of the property. To remedy this, we are proposing that the new legislation should grant statutory objector status to all persons who have any private interest in any of the land included in the relevant compulsory purchase order, or have (apart from the order) a right to occupy any of that land, or are entitled to any right restrictive of the use of any of that land.[24] (emphasis added)

                    4.8               We agree. We further propose that the status of “statutory objector”should be defined in the statute, rather than left (as now) to the inquiries procedure rules.[25]

Proposal 2 – Statutory objector

Section 7 of the Acquisition Act should be amended to include a definition of “statutory objector”, as a person who is entitled under the Act to notice of the making of the order,[26] and who lodges an objection in accordance with the notice.

Service of notices

                    4.9               The Government in its Policy Statement proposed that notices should be served on all known owners, lessees (including tenants) and occupiers (App. Para 2.13).

                4.10             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. This point was recently reinforced in response to consultation:

Some concern has been expressed by respondents that it would be unreasonable to expect an acquiring authority to track-down and notify all persons who may have any interest in the land. However, that was never our intention. As we said in the consultation paper, we consider that it should be sufficient to supplement the current newspaper advertising arrangements with a requirement to post site notices.[27]

                4.11             The date of the notice of the making of the order has special significance under the Government’s proposals, since it is the trigger for the right to compensation for disturbance, and for compensation if the order is subsequently abandoned. In the Compensation Report we have defined this as “the first notice date”. [28] We have made proposals for amended rules for service in the previous Part.[29]

Confirmation of unopposed orders

                4.12             A significant change, proposed in the Policy Statement, was that acquiring authorities should be given “powers to confirm orders themselves in cases where there are no unresolved statutory objections.” It was recognised that:

…there will need to be safeguards… the legislation introducing the power should also require the relevant acquiring authority to notify the Secretary of State of their intention to confirm an uncontested order, certifying that they have issued all the necessary notices and carried out the procedures properly. Such notices will need to include one announcing their intention to confirm the order and setting a time limit within which any aggrieved person could make representations to the Secretary of State, - who would then have a statutorily defined period of time in which to decide whether it was appropriate for him to call the order in for his own confirmation. [30]

                4.13             More recently, the proposal has been modified, to provide for “transfer” of the decision to the acquiring authority, where there are no statutory or non-statutory objections:

We have concluded that this might best be achieved by giving the confirming authority the discretion to transfer the right to confirm (without modification) any particular compulsory purchase order to which the confirming authority has not received any statutory or non-statutory objections during the statutory objection period. The decision would then be made by the acquiring authority and would not be a delegation to make the decision on behalf of the confirming authority.[31]

Confirmation in stages

                4.14             The Policy Statement proposed that there should be a general power to confirm orders in stages. Where, for example, objections relate to only one part of the land included in the order, it may help the authority and reduce the uncertainty for other owners and occupiers, if the order can be confirmed in relation to the remainder. There is such a provision in the 1990 Act. Section 245(2) provides:

Where a compulsory purchase order authorising the acquisition of any land under section 226 is submitted to the Secretary of State in accordance with Part II of the Acquisition of Land Act 1981, then if the Secretary of State-

(a) is satisfied that the order ought to be confirmed so far as it relates to part of the land comprised in it; but

(b) he has not for the time being determined whether it ought to be confirmed so far as it relates to any other such land,

he may confirm the order so far as it relates to the land mentioned in paragraph (a), and give directions postponing consideration of the order, so far as it relates to any other land specified in the directions, until such time as may be so specified.

It is proposed that a similar provision should apply generally to confirmation of compulsory purchase orders.[32]

Conclusion on authorisation procedure

                4.15             We are not aware of any major problems in the operation of the present procedures, other than those addressed in the Government’s own proposals. Accordingly, apart from the proposed amendment in relation to the definition of “statutory objector” (see above)[33], we make no further specific proposals of our own, but invite comments on the following issue.

Consultation issue (D) – Making and confirming

Do consultees consider that the present arrangements for making and confirmation work well in practice? If not, what practical problems are there (other than those already highlighted in the Government’s proposals) and how should they be addressed?

(3) Legal challenge

                4.16             The Acquisition Act, like a number of other statutes in the planning field, contains a special procedure, subject to a strict 6 week time limit, for challenging orders in Court.[34] No other form of legal challenge is permitted, and after the expiry of the time limit the order becomes immune from challenge.[35] The grounds for challenge, as stated in the Act, are that the authorisation “was not empowered to be granted” or that the applicant has been “substantially prejudiced” by failure to comply with “relevant requirements”.[36] In practice, the grounds are not treated as materially different from those applying in judicial review,[37] and they may now include grounds based on the Human Rights Act 1998.[38]

                4.17             Although there have been criticisms of this form of procedure, there are no immediate proposals to change it;[39] and there are particular advantages in providing a clear termination date for any possibility of challenge. We do not, therefore, propose any fundamental change to the statutory procedure. There are, however, certain points of substance which could usefully be addressed.

Who may make the challenge?

                4.18             The procedure is available to “any person aggrieved” by the order. This test for standing, used in many different statutory appeal contexts, originally required an applicant’s legal rights to be directly affected[40] and was derived from the restrictive approach to standing in cases of certiorari and prohibition.[41] However, this test has gradually been given a wider interpretation by the courts.[42]

                4.19             Since the introduction of the “sufficient interest” test for standing for judicial review in 1981,[43] which redefined the general approach to standing, the ‘‘person aggrieved’’ test has received a wider interpretation by the courts.[44] In practice, the courts are recognising that the statutory procedures for “persons aggrieved” are “doing little more than giving a statutory right to judicial review”.[45]

                4.20             However, ‘person aggrieved’ remains the test for standing in many different statutory appeals including those under planning and housing provisions.[46] Although it may seem appropriate to adopt a “sufficient interest” test in a modern statute, a global approach would be needed to adjust the various statutory provisions which retain the ‘person aggrieved’ test. Whilst a single test would be helpful in the context of judicial review and statutory appeals as a whole, it would be difficult to justify replacing the ‘person aggrieved’ test in the context of compulsory purchase alone.

What can be challenged?

                4.21             The special procedure applies where it is sought to question “the validity of a compulsory purchase order”. No other form of legal challenge of the order is permitted “either before or after it has been confirmed, made or given”.[47] Thus, the procedure applies not merely to a challenge to confirmation of the order, but also at earlier stages following making of the order by the acquiring authority. Conversely, it does not apply to a decision of the confirming authority to refuse confirmation.[48] Where the statutory procedure is not available, the remedy is by way of judicial review, but the boundaries may not always be clear.[49]

                4.22             In principle, it would seem better to confine the statutory procedure for challenge (and immunity from challenge in other proceedings) to decisions of the confirming authority to grant or refuse confirmation of the order.[50] A rigid time limit is appropriate at that stage, at least in relation to confirmation. That approach would also accord with the position under, for example, the 1990 Act, where the corresponding procedure applies to decisions by the Secretary of State on appeal, but not to decisions of planning authorities.[51] Furthermore, the statutory procedure is particularly suitable to decisions which are the subject of a fully reasoned decision letter, as are those at the confirmation stage. Challenges at earlier stages are more likely to depend on other forms of evidence for which judicial review provides more flexible procedures. In practice, as a matter of discretion, the court would be unlikely to intervene before confirmation, other than in exceptional cases, where for example it is alleged that the inquiry is proceeding on a false basis. [52]

Powers of the Court

                4.23             On such an application, the court may 

                                            (1)             by interim order suspend, until final determination, the operation of the order or any provision in it;[53] and

                                            (2)             if satisfied that the grounds of challenge are made out, quash the order or any part of it, either generally, or so far as it affects any property of the applicant.[54]

                4.24             The latter provision may be unnecessarily draconian in many cases. It apparently forces the court to quash the whole order from its inception, even where the grounds of challenge relate only to the process of confirmation, or even simply to the Secretary of State’s reasoning. We propose that the court should have power, as an alternative to quashing the order, to quash the decision of the confirming authority (whether to approve or reject the order), or to make such other order as is appropriate having regard to the grounds of the challenge.

Proposal 3 – Legal challenge

(1)   The statutory procedure for challenging the validity of an order (and the statutory immunity from challenge in other proceedings) should apply to the decision of the confirming authority to confirm or refuse to confirm the order, and not to earlier stages (which would be subject to judicial review).

(2)   The court should have power to quash simply the decision of the confirming authority, or make such order as is appropriate.

Consultation issue (E) – Legal challenge

(1) Do consultees agree with our provisional view that challenge by the statutory route should be restricted to the decision of the confirming authority (and that judicial review will suffice for challenge of the making of an order)?

(2) Do consultees agree with our provisional view that the courts should have the ability to quash the confirmation (or refusal of confirmation) of an order, as an alternative to quashing the whole order (or to make such other orders as may be appropriate)?