The Law Commission

PART 2

AUTHORISATION OF COMPULSORY PURCHASE

INTRODUCTION

2.1     Compulsory purchase orders are made under statutory powers contained in a large number of general Acts that give effect to the functions of public authorities and utilities. The body making the order is the "acquiring authority". The order must be in prescribed form, detailing the subject land (by reference to a map) and stating the purpose for which the land is being acquired. Publicity for the order must be provided by notice, both in local newspapers and on site, and individually served on owners, occupiers and those otherwise affected. Those served, or entitled to be served, may object or make representations within the time period specified by the notice.^[1] A public inquiry or hearing must be held by an inspector at which relevant objections by statutory objectors are heard, but is otherwise discretionary. Public inquiries and hearings have recently been supplemented by a written representations procedure, available where objectors consent. Once the objections and representations have been considered, together with any report of the inspector, the order may be confirmed by the "confirming authority", ordinarily the relevant Secretary of State, with or without modifications. Notice of confirmation must then be published and served. There is a statutory right to challenge the compulsory purchase order within six weeks of publication of the notice of confirmation. Once that period has elapsed the order is immune from challenge. 2.2     The law relating to authorisation of the majority of compulsory purchase orders is to be found in the Acquisition of Land Act 1981. In this Part we review the authorisation process from the making of the order, through the objection stages to its confirmation, and finally we consider the means available to challenge the order. We also consider the powers of acquiring authorities to secure entry to the subject land in order to carry out a proper survey. It is not, however, part of our terms of reference to review the powers pursuant to which acquiring authorities make compulsory purchase orders.^[2]

(1) ORDERS

2.3     Two separate statutory procedures exist for the authorisation of orders. Where the order is being made by a non-ministerial body (such as a local authority), the procedure to be followed is that set out in Part II of the Acquisition of Land Act 1981. Where the order is being made (or, to give the accurate terminology, is being "prepared in draft") by a government department, the procedure is that set out in Schedule 1 to the same Act. We have undertaken the task of reviewing whether the distinction in procedures serves any practical purpose.

Existing law

2.4     Authorisation of a compulsory purchase is conferred by a "compulsory purchase order",^[3] referred to by practitioners as a "CPO". In our Consultative Report on Procedure^[4] we drew attention to the differences between the two possible forms of order. 2.5     Orders made by acquiring authorities which are not part of central government (variously referred to in the Acquisition of Land Act 1981 as "an authority other than a Minister"^[5] and "local and other authorities"^[6]) are first "made" by the authority and then submitted to be "confirmed" by the "confirming authority".^[7] Confirmation may be "with or without modifications".^[8] The power to refuse confirmation (for example because an objection is upheld or because of procedural irregularity) is not spelt out in the legislation, although it is implicit. 2.6     By contrast, where the acquiring authority is a minister (acting through his or her department), orders are first "prepared in draft" and then are "made" by the minister.^[9] The making of the order may be "with or without modifications".^[10] The minister is also free to decide not to make the order at all. 2.7     Section 102 of the Planning and Compulsory Purchase Act 2004 amends the Acquisition of Land Act 1981 by inserting a new section 14A which makes provision for confirmation of a compulsory purchase order by the acquiring authority itself. This procedure is only available where "the notice requirements" have been complied with,^[11] no objection has been made in relation to the proposed confirmation^[12] and the order is capable of being confirmed without modification.^[13] 2.8     The impact of section 14A is comparatively limited:

(1) The two-stage authorisation process is retained;

(2) The power to determine confirmation is delegated on a case-by-case basis to the acquiring authority by the confirming authority only where the conditions precedent have been met;

(3) The power only operates in respect of orders made by non-ministerial bodies (and not by ministers);

(4) It applies only where there is no live objection to an order; and

(5) Confirmation is in respect of a whole order. It does not operate in relation to part only of an order, and it does not permit modifications.

Deficiencies

2.9     In the Consultative Report on Procedure, we stated our view that little purpose seemed to be served by having two distinct procedures both for authorisation and for inquiries, and that it would be tidier and simpler for the same procedure to be applied to both. We acknowledged that there is one major difference between the procedures; Schedule 1 to the Acquisition of Land Act 1981 includes provision, in highways acquisitions, for joint consideration of objections by the Secretaries of State having responsibility for highways and for planning matters. While accepting that this was not a priority issue, we emphasised the desirability of a rationalisation of the terminology of confirmation procedures, subject to the retention of a special provision for highway acquisitions.^[14] We did not make any provisional proposal as such in relation to this subject.

Consultation

2.10     Consultees who responded to our suggestion agreed that the current distinction was unnecessary. Their comments followed two strands of argument. 2.11     First, some simply considered the terminology used in the procedures and intimated which they considered was preferable. Some favoured use of "draft" followed by "made"; others seemed to favour the non-ministerial "made" and "confirmed". Government did not express a view on this issue. We believe that it would be valuable to adopt consistent terminology, and we recommend the usage of "making" and "confirmation" for the two stages of the process, as we consider that this usage would be easier for those not acquainted with the technical detail of compulsory purchase law to understand. Once an order has been "made", there is an order in existence. Once an order has been "confirmed", then the authority can take steps to implement it. 2.12     Secondly, two respondents contended that, in order to ensure compliance with the Human Rights Act 1998, it would be preferable if a minister were not both promoting and confirming authority in relation to the same project. A minister, it was said, could not be sufficiently independent and impartial when it comes to confirming orders initiated by his or her own department. This concern raises an important matter of substance. 2.13     The relevance of Article 6 of the European Convention on Human Rights ("ECHR") to the role of the minister in planning applications has already been extensively considered by the House of Lords in R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions.^[15] In the words of Lord Slynn of Hadley:

It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness and natural justice requires - the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control. ^[16]

2.14     Compliance with Article 6 does not, however, require that disputes concerning civil rights are submitted, at every stage, to a tribunal satisfying the requirements of independence and impartiality. The entire process of decision making, including the guarantees offered by any court or tribunal before which challenge may be made, must be assessed. If the maker of the initial decision does not itself satisfy the terms of Article 6, but "full jurisdiction" is nevertheless conferred on the court or tribunal to which appeal or review is submitted, the process will be compliant. 2.15     The key question is therefore whether the process by which an administrative decision may be challenged, in this case judicial review, is sufficiently broad as to confer full jurisdiction. Full jurisdiction "does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires."^[17] The requirements of full jurisdiction are to be assessed having "regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal."^[18] 2.16     We consider that judicial review confers full jurisdiction over the administrative decisions made by both acquiring authorities and confirming authorities in the process of compulsory purchase. ^[19] As long as the procedural aspects of the decision-making process are capable of judicial review, we believe that the procedure complies with Article 6 and provides for an effective remedy for the purposes of Article 13 of the ECHR, and that it therefore complies with the Human Rights Act 1998. 2.17     Our view of Alconbury is consistent with the approach taken by the English courts in the recent decisions in Begum,^[20] McLellan^[21] and Adlard^[22] in which Alconbury was applied, and by the ECtHR in Bryan v UK,^[23] Holding and Barnes v UK^[24] and Kingsley v UK.^[25]

Recommendations for reform

2.18     We are therefore of the view that the separate "ministerial" and "non-ministerial" procedures leading to the authorisation of compulsory purchase orders should be amalgamated. The resulting unitary procedure should continue to be in two stages. The order should first be "made" (by the acquiring authority), and should then be "confirmed" (by the confirming authority). Special provision would continue to be necessary to deal with highway acquisitions.

Recommendation (1) – Ministerial, and Non-ministerial body, orders

(1) The separate procedures for the authorisation of compulsory purchase orders, contained in section 2 of and Schedule 1 to the Acquisition of Land Act 1981, relating to orders made by Ministers and orders made by other bodies, should be amalgamated.

(2) The new unitary procedure should encompass two stages:

(a) "making" by the acquiring authority, and

(b) "confirmation" by the confirming authority (which will include delegated confirmation).

(3) The new unitary procedure should make special provision, in highway acquisitions, for joint consideration by the Ministers responsible for highways and for planning respectively.

(2) SURVEYS

2.19     Before making a compulsory purchase order an acquiring authority will ordinarily need to enter on the subject land for the purpose of inspection, assessment, measuring and site surveying. In its supporting statement of reasons (which accompanies notice of making) an authority should describe the land and "its location, topographical features and present use" and identify "any special considerations affecting the order site" such as the presence of ancient monuments, listed buildings or consecrated land.^[26] In order to prepare such a statement, it is obvious that some form of survey must first be conducted.

Existing law

2.20     Entry for surveying purposes will often be achieved by agreement following negotiation with the landowner affected. In the absence of agreement, however, the authority may resort to compulsion derived from various sources:

(1) Section 11(3) of the Compulsory Purchase Act 1965 confers power of entry (on not less than three nor more than 14 days' notice) for the purpose of "surveying and taking levels" of the subject land, and "probing or boring to ascertain the nature of the soil and of setting out the line of the works". This power may be exercised by any acquiring authority, but it cannot, rather curiously, operate until confirmation of the compulsory purchase order, because until then the authority is not "authorised by the compulsory purchase order to purchase the land".^[27] Compensation is payable to the landowner or any occupier for "any damage thereby occasioned".

(2) Local authorities have additional powers. By section 15 of the Local Government (Miscellaneous Provisions) Act 1976, a person authorised by such an authority may enter both on the subject land and on "any other land" in order to survey (from the ground or from the air) in connection with a "proposal by the authority to acquire compulsorily" either an interest in, or a right over, the subject land.^[28] This power, which may be exercised before a compulsory purchase order is made, enables the authority:

(a) "to search and bore on and in the land for the purpose of ascertaining the nature of the subsoil or whether minerals are present in the subsoil" (as part of the power to survey);

(b) "to place and leave, on or in the land, apparatus for use in connection with the survey", and to remove that apparatus (as part of the power to enter).^[29]

The authority may take on to the land such number of persons and such equipment as are necessary for the survey.^[30] In certain circumstances 14 days' notice must be given.^[31] If the land is unoccupied or the owner is absent, the authorised person must ensure that he leaves it "as effectively secured against trespassers as he found it."^[32] Compensation is payable for any damage suffered in exercise of the power.^[33] If an authorised person wrongfully discloses any trade secret relating to land that he has entered, he commits an offence.^[34] Obstruction of an acquiring authority exercising its right of entry under the 1976 Act may comprise a summary offence.^[35]

(3) Additional specific powers to survey (similar to those in the 1976 Act) are contained in section 289(1) of the Highways Act 1980, section 324(6) of the Town and Country Planning Act 1990, and section 88(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990. Where these statutory powers are available to a local authority, the powers in the 1976 Act cease to apply.^[36]

2.21     The powers in the 1976 Act are more extensive than those in the 1965 Act in the following respects. Under the 1976 Act (but not under the 1965 Act) the authority may:

(1) enter land for surveying purposes prior to an order being made and confirmed;

(2) take apparatus (such as measuring or recording equipment) on to land;

(3) conduct an aerial survey in the airspace above land; and

(4) enforce the right of entry by utilising obstruction powers.

Deficiencies

2.22     In our Consultative Report on Procedure we drew attention to the fact that acquiring authorities' powers under section 11 of the 1965 Act are fairly limited, and that they could be usefully widened by extending to all authorities the powers contained in section 15 of the 1976 Act.^[37] We made no specific provisional proposal to this effect as we felt that it might be thought that the power to enter in connection with what is no more than a "proposal" to purchase compulsorily should be confined to clearly defined public authorities.

Consultation

2.23     In our consultation question^[38] we asked whether it would be right to leave unchanged the narrow effect of section 11(3) of the Compulsory Purchase Act 1965 Act (as it applies to all acquiring authorities post-confirmation), and to leave in place any wider powers under the Local Government (Miscellaneous Provisions) Act 1976 or other statutes. 2.24     The consultation responses reflected three widely different views. Some supported our provisional proposal to retain the existing law. Some felt that the powers in the 1965 Act do not go far enough. Others felt that the 1976 Act powers go too far and do not incorporate sufficient safeguards for affected landowners. It was however generally recognised that powers to survey are of importance. The Welsh Development Agency, for example, indicated to us that power to survey is essential if an acquiring authority is to compile a full financial appraisal for a prospective CPO project and to measure the possible problems of relocation. That appraisal enables an authority to evaluate, at an early stage, the benefits of phased acquisition and to narrow down its options.

No change

2.25     Several consultees endorsed our provisional proposal that the effect of section 11(3) of the 1965 Act (as extended by the 1976 Act for local authorities alone) should remain unchanged. 2.26     The Law Society considered that it would be inappropriate to extend the powers of acquiring authorities which are not public bodies. The NFU argued similarly against extending power to privatised utility companies, for two reasons. First, they fear that those bodies may use the power for speculative surveys for proposals which have no real prospect of implementation by CPO and secondly, they are not aware that absence of the power is causing demonstrable harm.

Need to restrict power

2.27     The Country Land and Business Association ("CLA") were concerned that, because the existing powers to enter on privately-owned land for surveying purposes are already wide, any extension of these powers cannot be to the benefit of a landowner. In this context they cite the range of powers contained in planning and highways legislation which are designed to facilitate a local authority acting in its regulatory capacity (for example, in determining a planning application or requiring discontinuance of a non-conforming use).^[39] The CLA argued for the placing of some constraint on powers of entry, the use of which should be exceptional rather than the norm. They proposed that, before entry is effected, an acquiring authority should be required either to obtain a court order, or to give at least 28 days' notice of its intention to enter. In either event, compensation for any disturbance caused by entry on to the land should also be payable.^[40]

Need to widen power

2.28     Both LT Property (involved in the London Cross-rail project) and British Waterways favoured extension of the 1976 Act powers to a wider range of bodies with CPO powers. Presently, survey work depends on the goodwill and co-operation of affected landowners, but the downside of this is that it takes time to negotiate agreement. LT Property argued that it is important to speed up the process of scheme design, to ensure by early survey that need for disruptive design change is eliminated – or at least minimised – and to facilitate more swift delivery of the government's transportation objectives. The Royal Institute of Chartered Surveyors ("RICS") and City of London Law Society took a similar approach. They argued for the extension of powers to both public and private sector acquirers, and asserted that site survey early in the acquisition process benefits all affected parties. However, they were concerned that wider powers should be offset by legislative safeguards designed to avert the potential for abuse of power. Presently section 15 of the 1976 Act speaks of "a proposal" by the authority to acquire compulsorily an interest which should (it is argued) be more strictly defined so as to prevent authorities surveying land on a speculative basis only.

Recommendations for reform

2.29     We believe, having carefully considered the responses of consultees, that section 11(3) of the Compulsory Purchase Act 1965 is unduly narrow in its scope, in particular in denying the acquiring authority power to survey the land until the order has been confirmed. Indeed we find it quite illogical that the kind of appraisal that is required to decide whether an acquisition should be phased, or whether design issues need revisiting, or whether there are other financial or practical implications (such as how a business essential to the wider economy of an area is to be relocated), must await the post-confirmation implementation stage. In order to prepare its supporting statement of reasons, an acquiring authority must describe topographical features on the subject land and its use, and must provide to the confirming authority details of "any special considerations affecting the order site", together with proposals for re-housing of residents or relocation of businesses.^[41] To do this job properly an authority may well have first to go on site. 2.30     We therefore recommend that the powers contained in section 15 of the 1976 Act should be extended to all authorities, public or private, who require to make compulsory purchase orders. Those bodies will be bound to compensate for any physical damage caused by the entry and surveying operations, and will be bound by the obligation (underpinned by penalty) not to disclose, without proper cause, confidential information relating to commercial activities. In this context, it is important to emphasise the requirement contained in section 15(1) that there be a "proposal by the authority to acquire compulsorily" the subject land. This indicates, in our view, that while it may not be necessary for a resolution to have been passed by the acquiring authority, it must have a distinct project of real substance genuinely requiring the survey of the land in question. The authority cannot act on a mere whim. We consider that it may be of assistance for future legislation building upon section 15(1) to clarify the threshold for entry for surveying purposes in this particular regard. 2.31     We acknowledge the concerns expressed about the potential for abuse of a widened power of entry for surveying purposes. At the same time, we consider that it is important that both public and private sector bodies should have such wider powers. We believe that a balance can be achieved by conferring such powers on all acquiring authorities but at the same time enabling landowners to apply to the county court for an order restraining entry on the basis that the necessary criteria are not satisfied. The court should have a broad jurisdiction to make orders not only restraining unlawful action by the authority but also (where the unlawfulness relates to the manner of entry) requiring the authority to comply with such conditions as it thinks fit.

Recommendation (2) – Entry for surveying purposes

(1) An acquiring authority should be entitled to enter upon land in order to carry out necessary surveys prior to the compulsory purchase order being made provided that it is considering a distinct project of real substance genuinely requiring such entry upon the land.

(2) Section 15 of the Local Government (Miscellaneous Provisions) Act 1976 should be extended to apply to all authorities which have compulsory purchase powers.

(3) The county court should have jurisdiction to control the unlawful exercise by acquiring authorities of their powers of entry for surveying purposes by restraining entry or by making entry subject to such conditions as it specifies.

(4) Section 11(3) of the Compulsory Purchase Act 1965 should be repealed and replaced by a modern provision based on, or incorporated within, section 15 of the Local Government (Miscellaneous Provisions) Act 1976.

(3) OBJECTIONS

2.32     Part II of the Acquisition of Land Act 1981, together with delegated legislation, prescribes the procedure to be followed by a local authority (and many other non-ministerial acquiring authorities) once the compulsory purchase order has been made. Schedule 1 to the same Act regulates the procedure applicable where the acquiring authority is a minister of a government department. In brief, certain persons must be notified of the making of the order and publicity (in the form of notices in local newspapers) given so that objections can be made prior to confirmation of the order.

Existing law

2.33     The Acquisition of Land Act 1981 provides that, with one exception, all owners, lessees and occupiers are entitled to notice stating the effect of the order, stating that it is about to be submitted for confirmation, and specifying the time within which,^[42] and the manner in which, objections may be made.^[43] The single statutory exclusion from the requirement of notice were "tenants for a month or any period less than a month" thereby denying such persons who had a direct occupational interest in the land a right to object to their enjoyment of the property being disrupted.^[44] In the Consultative Report on Procedure we noted with approval that the Government was proposing to extend the right to notice of the making of the order to all those with any form of interest or right to occupy.^[45]

Deficiencies and provisional proposals

2.34     Although the term is not used in any primary legislation, the person entitled to notice (and to object) is traditionally referred to as a "statutory objector". A definition is to be found in the Inquiries Procedure Rules.^[46] We provisionally proposed in the Consultative Report on Procedure that this term should be adopted, and applied, in primary legislation.^[47]

Consultation

2.35     A number of consultees supported our proposal that the term "statutory objector" should be defined in primary legislation. Consultees also indicated their concern that the expression should not be limited to those entitled to receive notice; it should embrace any person who has some form of interest in the land being acquired. The Welsh Development Agency suggested that the interest should be defined as one held before the first notice date^[48] (so as to prevent the late acquisition of interests in order to obtain statutory objector status).

Legislative reform

2.36     Section 100 of the Planning and Compulsory Purchase Act 2004 has now amended Part II of the Acquisition of Land Act 1981. Section 12 of the 1981 Act, listing the persons on whom notice of the making of the order must be served, no longer excludes tenants for a month or any period less than a month. It requires that service be effected on every "qualifying person" in relation to land comprised in the order. A person is a "qualifying person" if he is "an owner, lessee, tenant (whatever the tenancy period) or occupier of the land" or if he falls within section 12(2A). A person falls within section 12(2A) if he is a person to whom the acquiring authority would be required to give notice to treat^[49] or if he is a person the authority thinks is likely to be entitled to make a claim for compensation for injurious affection^[50] in the event of the order being confirmed and the purchase taking place.^[51] 2.37     This new provision extends the range of persons entitled to be notified of the making of the compulsory purchase order, and we welcome its enactment. We believe that it deals incidentally with the problem raised by the Welsh Development Agency. The use of the present tense indicates that notices must be served on those persons who are currently, that is at the date of service, holding an interest in or occupying the subject land. 2.38     We are a little disappointed that the new provision does not address the confusion inherent in the use of the "statutory objector" terminology in the secondary legislation.^[52] It would be useful, in our view, to effect rationalisation should the opportunity arise. We do believe, however, that on the major points of substance an important enhancement of the rights of those affected by compulsory purchase has been effected and we see no immediate need to make any further substantive recommendations in this area.

(4) LEGAL CHALLENGE

2.39     Part IV of the Acquisition of Land Act 1981 sets out a procedure for statutory review whereby compulsory purchase orders can be challenged in the High Court. We reviewed this procedure in our Consultative Report on Procedure.^[53] While we did not propose any fundamental changes, we did address certain points of substance and made provisional proposals accordingly.

Existing Law

2.40     Statutory review under Part IV of the Acquisition of Land Act 1981 is a self-contained process. Application may be made to the High Court by "any person aggrieved" by a compulsory purchase order who desires to question its validity or the validity of any of its provisions. Challenge may be made on the following grounds:^[54]

(1) that the authorisation is "not empowered to be granted"^[55] (a challenge based on vires);

(2) that "any relevant requirement" has not been complied with^[56] (a procedural challenge^[57]).

2.41     Application must be made promptly. By section 23(4) of the 1981 Act, application must be made to the High Court within six weeks from the date on which notice of the confirmation of the order is first published.^[58] On an application to the High Court, the court may:

(1) by interim order, suspend the operation of the compulsory purchase order (or any provision within it) "either generally or in so far as it affects any property of the applicant", pending final determination of the proceedings;

(2) by final order, quash the compulsory purchase order (or any provision within it) "either generally or in so far as it affects any property of the applicant", if satisfied that the authorisation is not intra vires, or that the applicant's interests have been "substantially prejudiced" by the failure to comply with "any relevant requirement".^[59]

2.42     Where an order is neither suspended nor quashed, it becomes operative on the date when statutory notice of confirmation is first published.^[60] 2.43     Section 25 of the 1981 Act provides that:

Subject to the preceding provisions of this Part of this Act, a compulsory purchase order, or a certificate under Part III of, or Schedule 3 to, this Act, shall not, either before or after it has been confirmed, made or given, be questioned in any legal proceedings whatsoever.

2.44     This "ouster" provision applies to compulsory purchase orders "made" by non-ministerial bodies (such as local authorities), to compulsory purchase orders "prepared in draft" by government departments, and to certificates under Part III of (and Schedule 3 to) the 1981 Act. Its effect is to prevent challenge (save by the Part IV procedure) to the validity of an order from the date the order is "made" or "prepared in draft".^[61] Section 25 is not, however, engaged until a compulsory purchase order is in existence, and challenge by judicial review is therefore tenable up to the moment when the order is made (that is, sealed by the acquiring authority).^[62] 2.45     Once the compulsory purchase order has been made by the acquiring authority, section 25 will operate to prevent challenge by judicial review save in highly unusual circumstances.^[63] This ouster will continue to apply up to and after confirmation.^[64] There is no requirement in the Part IV procedure akin to that pertinent to judicial review that the court give permission to apply, and accordingly there is no mechanism for the judicial filtering out of weak or unmeritorious cases.^[65]

Deficiencies

2.46     In our Consultative Report on Procedure, we drew attention to several deficiencies in the current procedure. 2.47     First, we considered the test for standing.^[66] We felt that although the "sufficient interest" test had become standard for judicial review,^[67] the wider "person aggrieved" test should be retained at present for statutory appeals relating to CPOs. That would reflect the existing statutory appeal arrangements under planning and housing provisions. While a single test would be helpful in the context of judicial review and statutory appeals, it was not appropriate to reform the law incrementally. A global approach to reform across statutory appeals in general was called for. 2.48     Secondly, we considered the subject matter of the legal challenge under Part IV of the 1981 Act.^[68] The appeal procedure is directed towards the question of the "validity" of a compulsory purchase order, or any provision contained in it.^[69] It therefore applies not only to challenging confirmation of an order, but also to questioning those earlier stages of the compulsory purchase process from making to confirmation. It does not apply, however, to challenging refusals to confirm either in part or in whole.^[70] While judicial review becomes available once the statutory procedure is unavailable, the demarcation between the two remedies is far from clear. In general, the jurisdictional boundaries between the statutory appeal process, statutory immunity from challenge and the availability of judicial review are insufficiently defined. 2.49     Thirdly, section 24(2) of the Acquisition of Land Act 1981 is unduly restrictive.^[71] Where the court is satisfied that the grounds of review are made out, it may simply "quash the compulsory purchase order or any provision contained therein... either generally or in so far as it affects any property of the applicant." If an order is quashed and the acquiring authority still desires to proceed, it has then to go back to the beginning and "re-make" the whole order. We felt that this was "unnecessarily draconian".^[72] The remedy as presently framed fails to allow a court to distinguish successive stages in the making and confirmation process. More particularly, it fails to give the court power to strike down a later decision (for example, the confirmation, which may be procedurally flawed) and at the same time to preserve earlier stages in the process (such as passing the resolution and sealing the order).

Provisional proposals

2.50     In our Consultative Report we set out two proposals:^[73]

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

(2) The court should have power under the Part IV procedure simply to quash the decision of the confirming authority (to confirm or to refuse to confirm) or to make such order as is appropriate.

Consultation

Judicial review and the statutory procedure

2.51     A substantial majority of those who responded to the proposal to rationalise the respective functions of the Part IV procedure and judicial review gave it their support. The Law Society considered that it was sensible to confine the statutory procedure to the decision to confirm and to allow challenge to earlier stages of the process by judicial review. There was general satisfaction with the requirement that the statutory procedure be invoked within six weeks of the confirmation decision. 2.52     Judicial review was seen as performing an important role. Indeed, one consultee (the Country Land and Business Association) believed that judicial review should be the universal remedy, although they made no substantive complaint about the way the statutory appeal route operates. A small number of consultees (including ODPM) felt that the statutory procedure was the preferable route for challenge of both making the order and the granting of confirmation. They felt however that refusal of confirmation was better suited to challenge by judicial review, as in the event of the application succeeding the order (having been "made") would survive, enabling the issue of confirmation to be remitted to the minister for re-consideration, possibly after further inquiry or hearing.

Relief under the statutory procedure

2.53     The majority of consultees who replied on this issue supported the proposal. They favoured giving the court power to keep the underlying project alive and thereby to prevent it being stifled by a partial challenge. It was felt that this might also provide scope for saving public expenditure. Similarly, the conferment on the court of a supplemental power to make "such other order as is appropriate" would provide more flexibility on a case-by-case basis. 2.54     However reservations were expressed by certain consultees. The Planning and Environment Bar Association thought that although partial quashing might have the benefit of saving public money, in practice it could be difficult to identify and separate the part of a CPO which is erroneous in law (or the property to which that part relates) from the remaining valid part or parts. ODPM felt that to quash only the ministerial confirmation would have the effect of leaving the order itself "in limbo". They considered that unnecessary complications could thereby be caused. In particular, it would be unclear what the next step should be. It may be that the inquiry should be re-opened. 2.55     The RICS suggested that, as with planning applications, an acquiring authority should be given power to "twin-track" compulsory purchase orders, so that if the original order is refused by the Secretary of State there would still be an opportunity to submit a second for approval.^[74] It would be advantageous to vest power in the Secretary of State to re-consider a refused application within a fixed period. At present, the minister becomes functus officio (that is to say, he or she loses the right to intervene) on refusal. 2.56     The Department for Constitutional Affairs were concerned that the proposal was seeking to provide the court with power to substitute its own decision for that of the minister, thereby greatly extending the remit of judicial intervention and limiting the primacy of the executive in administrative affairs. The Department felt that any extension of power here should be limited to that contained in section 31(5) of the Supreme Court Act 1981 whereby the court may remit a decision to the appropriate decision-making body for reconsideration "in accordance with the findings of the court". As we shall explain below, we did not intend the court to have as wide a power as envisaged by the Department, and in our recommendation for reform we gratefully adopt the analogy of section 31.^[75]

Standing

2.57     Our conclusion relating to the issue of standing (that it would be neither practicable nor advisable to implement change from the "person aggrieved" test on a piecemeal basis) met with some resistance. Lord Justice Brooke felt that standardisation in this field was justified, as well as being consistent with the Law Commission's previous recommendations in its 1994 Report,^[76] and that statutory intervention to start that process is preferable to development of legal principle by judicial decision. Both the CLA and the RICS expressed concern that the present test appears too narrow. For example, a neighbour, who may be adversely affected by potential loss of amenity, would be precluded from a right to challenge. Clarification would be timely, it was said, and the statutory appeal test should be brought into line with that for judicial review. 2.58     The point was made compellingly by Lord Justice Brooke that the High Court may not be the appropriate forum for statutory appeals, which may be better suited to a specialist tribunal (with power to remedy procedural mishaps), with appeal lying on important points of principle and practice to the Court of Appeal. 2.59     The Government is presently involved in considering reform of the tribunals system in England and Wales. That work involves a review of arrangements for handling appeals from tribunals within the proposed unified Tribunals Service. Following the Leggatt Report,^[77] the Law Commission undertook work in connection with land, property and housing tribunals with a view to finding ways to remove jurisdictional overlaps and scope for 'forum shopping'. Our Report was published in September 2003.^[78] We recommended that the existing Lands Tribunal should be retained, with some extensions to its jurisdiction. A reformed Lands Tribunal (under our proposals) would be analogous to the High Court in having both original jurisdiction for first instance cases and an appellate jurisdiction (from a new Property and Valuation Tribunal). In that report we did not consider the possibility of transferring statutory review jurisdiction relating to ministerial decisions across from the High Court to the Lands Tribunal.^[79] 2.60     The issue of extending the Lands Tribunal's jurisdiction to deal with CPO confirmation decisions falls outside our terms of reference for the present project. Our only recommendation relating to the Lands Tribunal was limited to the issue of concurrent determination of claims (common law or statutory) arising from damage to land or to use of land.^[80] It is not appropriate for us to make any further recommendation at this juncture.

Recommendations for reform

Extent of ouster provision

2.61     In our 1994 Report on Administrative Law: Judicial Review and Statutory Appeals,^[81] we indicated that, although statutory review (such as the Part IV procedure) and judicial review are conceptually distinct, there can be circumstances where the appropriate route of challenge is less than clear. We did not, ten years ago, recommend the enactment of a single co-ordinated provision covering all applications to quash, but we did recommend "that future statutory provisions are drafted so as to indicate clearly the extent of the exclusivity [of review] thereby conferred."^[82] We also recommended a model clause for statutory review^[83] which provided for the quashing of an "act or decision either generally or in so far as it affects the applicant." 2.62     We believe that, in time and through appropriate administration of justice legislation, the statutory review process should embody the flexibility that is inherent in judicial review. Judicial review allows for different tests of standing;^[84] it provides for the filtering out of inappropriate or unmeritorious applications; and it puts in place mechanisms for discovery and for interim relief. A number of these elements are currently missing from statutory review.^[85] 2.63     For the present, however, we take the view that any reform of the statutory review procedure should be focussed on the special circumstances of compulsory purchase. We said in our Administrative Law Report that the great diversity of statutory provisions creating the right to appeal or to apply to the High Court was "one factor which made it difficult to treat statutory appeals as a single coherent subject for which to propose general reforms."^[86] That remains the position today. As we have explained, a substantial majority of consultees supported our provisional proposal to the effect that the making of a compulsory purchase order should be subject to challenge by judicial review, and that the confirmation stage should be subject to the statutory review procedure. We accordingly make a recommendation to this effect.

Extent of remedy

2.64     In the light of our consultation we believe that our proposal on power to quash should be refined. We consider that two changes to the existing law would be useful:

(1) That the court should have the power to quash the decision of the confirming authority as an alternative to quashing the compulsory purchase order from its very inception;

(2) That the court should have the power to remit a decision to the appropriate authority to reconsider, in accordance with the findings of the court.

2.65     We accept that, in the context of statutory review, the role of the court is (and should remain) supervisory. The purpose of review is to afford a vehicle for correcting illegality or significant procedural irregularity causing invalidity. It is not designed to afford the courts an opportunity to second-guess an administrative decision. That power is only granted where Parliament specifically provides a right to appeal to a tribunal on the facts as well as the law. 2.66     Within these boundaries we envisage that the court should have power to quash a defective decision, to stipulate the tests or procedures to be applied by the decision-making body and, where appropriate, to direct whether or not a previous inquiry or hearing should be reopened. We consider that the court should have some flexibility in this regard. In deciding whether to quash the compulsory purchase order itself, or whether merely to quash the decision to confirm, it would be exercising a discretion and would be expected to take account of all the circumstances.

Standing

2.67     Although in our 1994 Report we reported that there was support from consultees at that time for the use of a single term to describe eligible standing, to replace the concept of "person aggrieved", the Commission made no recommendation for reform.^[87] We were concerned that, unless an expression could be found which was entirely appropriate, there was a risk that the test of standing might be widened beyond that which was originally envisaged by the legislature. 2.68     For this reason, and in order to meet the need to promote consistency of approach across the statutory provisions relating to review, we are not minded to make a recommendation in the context of compulsory purchase alone. We are conscious, moreover, that at the time of preparing this Report, the Department for Constitutional Affairs has in train a separate review on Statutory Appeals and Statutory Review: Proposals for Rationalising Procedures.^[88] We believe that the fruits of that work should be available before further consideration is given to change.

Recommendation (3) – Legal challenge

(1) Any challenge to the validity of a decision to confirm (or to refuse to confirm) a compulsory purchase order should be made pursuant to the statutory review procedure contained in Part IV of the Acquisition of Land Act 1981, and no such challenge shall be made by way of judicial review.

(2) Any challenge to earlier stages of the compulsory purchase process (such as making the compulsory purchase order) should be by way of judicial review.

(3) Under the statutory review procedure, the High Court should be entitled in the exercise of its discretion to quash the determination of the confirming authority to confirm the compulsory purchase order as an alternative to quashing the whole order. Where the High Court makes such an order that a determination be quashed, it should be entitled to remit that determination to the appropriate authority with a direction that the authority re-consider its determination in accordance with the findings of the court.

Note 1    Objections by “qualifying persons” (see Acquisition of Land Act 1981, s 12 as now amended by the Planning and Compulsory Purchase Act 2004, s 100(5)) are sent to the confirming authority: see the Compulsory Purchase of Land (Prescribed Forms)(Ministers) Regulations 2004 (SI 2004 No 2595), reg 3(c) and Schedule, Form 7 note (k) relating to the form of newspaper and site notice concerning a made order about to be submitted for confirmation.    [Back]

Note 2    Law Com CP No 169, para 2.5.    [Back]

Note 3    Acquisition of Land Act 1981, s 2(1). The form of order is prescribed in the Compulsory Purchase of Land (Prescribed Forms)(Ministers) Regulations 2004, Schedule, Forms 1-6.    [Back]

Note 4    Law Com CP No 169, para 4.3.    [Back]

Note 5    Acquisition of Land Act 1981, s 2(2).    [Back]

Note 6    See heading to the Acquisition of Land Act 1981, Part II. In the relevant Inquiries Procedure Rules (SI 1990 No 512) these authorities are referred to as “Non-Ministerial Acquiring Authorities”.    [Back]

Note 7    Acquisition of Land Act 1981, s 2(2). The procedure is laid down in Pt II ss 10-15 and s 26 (date of operation).     [Back]

Note 8    Acquisition of Land Act 1981, ss 13(1), (2) (as now substituted by the Planning and Compulsory Purchase Act 2004, s 100(6)).    [Back]

Note 9    Acquisition of Land Act 1981, s 2(3). The procedure is laid down in Schedule1 to the Act.     [Back]

Note 10    Acquisition of Land Act 1981, Schedule 1, para 4.    [Back]

Note 11    These are the requirements to publish, affix and serve notices in connection with the compulsory purchase order: Acquisition of Land Act 1981, s 13(5), amended by the Planning and Compulsory Purchase Act 2004, s 100(6).    [Back]

Note 12    Or all objections have been withdrawn.    [Back]

Note 13    Acquisition of Land Act 1981, s 14A(3). The procedure does not apply in relation to orders in respect of certain land: s 14A(2).    [Back]

Note 14    Law Com CP No 169, para 4.4.    [Back]

Note 15    [2003] 2 AC 295 (HL).    [Back]

Note 16    [2003] 2 AC 295, para 50.    [Back]

Note 17    [2003] 2 AC 295, para 87, per Lord Hoffmann.    [Back]

Note 18    Bryan v UK (1996) 21 EHRR 342, para 45 (ECtHR).    [Back]

Note 19    It is also noteworthy that in Alconbury (paras 53-55) Lord Slynn refers to the availability of judicial review on grounds of error of fact. This is consistent with the ambit of judicial review under common law rules and the court’s duty under the Human Rights Act 1998, s 6 to act in a manner compatible with Convention rights. Therefore, in cases of judicial review, the court has a statutory obligation to conduct its review to a standard that will secure compliance with Article 6.    [Back]

Note 20    Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 (HL) affirming Runa Begum v Tower Hamlets LBC [2002] 1 WLR 2491 (CA). The issue before the House of Lords was whether the homelessness scheme under Part VII of the Housing Act 1996, which provides for an appeal against decisions of local housing authorities on a point of law only, was compatible with Article 6.    [Back]

Note 21    R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129. The case concerned introductory tenancies and review proceedings under the Housing Act 1996, s 129 and considered whether the remedy of judicial review was compliant with Article 6.    [Back]

Note 22    R (on the application of Adlard) v Secretary of State for Transport, Local Government and the Regions [2002] 1 WLR 2515. This decision concerned the power of the Secretary of State to “call-in” planning decisions, and the adequacy of judicial review for the purposes of Article 6. See also J Finlay and S Bird, “Alconbury a year on: Article 6 challenges face stiff uphill struggle after Court of Appeal in Begum and Adlard adopt a schematic approach” [2002] JPL 1045; and, generally, P Craig, “The Human Rights Act, Article 6 and Procedural Rights” [2003] PL 753.    [Back]

Note 23    (1995) 21 EHRR 342.    [Back]

Note 24    Application No. 2352/02, 12 March 2002 (Unreported).    [Back]

Note 25    (2000) 33 EHRR 13; (2002) 35 EHRR 177.    [Back]

Note 26    See ODPM Circular 06/2004, App R.    [Back]

Note 27    Compulsory Purchase Act 1965, s 11(3) speaks of the “acquiring authority” having power, but “acquiring authority” is given a narrow definition in section 1(3) of that Act. Authorisation to purchase flows only on publication of the notice of confirmation under Acquisition of Land Act 1981, s 15. The Acquisition of Land Act 1981 seems to extend the definition of “acquiring authority” in that Act to any body “who may be authorised to purchase the land compulsorily”: see ibid, s 7(1).    [Back]

Note 28    Local Government (Miscellaneous Provisions) Act 1976, s 15.    [Back]

Note 29    Ibid, s 15(2).    [Back]

Note 30    Ibid, s 15(3)(b).    [Back]

Note 31    Where the land is occupied, or before leaving or removing apparatus, or (where the land is held by statutory undertakers) in order to search or bore on the land: Ibid, s 15(3)(c), (e), (f).    [Back]

Note 32    Ibid, s 15(3)(d).    [Back]

Note 33    Ibid, s 15(5).    [Back]

Note 34    Ibid, s 15(8).    [Back]

Note 35    Ibid, s 15(7).    [Back]

Note 36    Ibid, s 15(9).    [Back]

Note 37    Law Com CP No 169, paras 3.25-3.28.    [Back]

Note 38    Law Com CP No 169, para 3.28, Consultation issue (B).    [Back]

Note 39    Town and Country Planning Act 1990, ss 324, 325; Planning (Listed Buildings and Conservation Areas) Act 1990, ss 88, 88A, 88B; Highways Act 1980, s 289.    [Back]

Note 40    Local Government (Miscellaneous Provisions) Act 1976, ss 15(5), 15(6) provide a compensation remedy for physical damage suffered. Compulsory Purchase Act 1965, s 11(3) provides a similar remedy. Disputed compensation is determined by the Lands Tribunal.    [Back]

Note 41    See ODPM Circular 06/2004, Apps R and U.    [Back]

Note 42    Not less than 21 days from the service of the notice.    [Back]

Note 43    Acquisition of Land Act 1981, s 12.    [Back]

Note 44    Policy Statement (DTLR, Dec 2001), App, para 2.12, quoted in Law Com No 169, para 4.7.    [Back]

Note 45    Law Com CP No 169, para 4.7.    [Back]

Note 46    “Any objector to whom the Secretary of State is obliged by virtue of [Acquisition of Land Act 1981,] s 13(2) to afford an opportunity to be heard”: Compulsory Purchase by Non-Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990, r 2 (SI 1990 No 512). These rules will require up-dating as a result of the Planning and Compulsory Purchase Act 2004. In practice, it is a matter for the discretion of the inspector as to which persons they are prepared to hear at an inquiry.     [Back]

Note 47    Law Com CP No 169, para 4.8, Proposal 2.    [Back]

Note 48    The date of the first notice of making of the order, whether that is by newspaper publication or (now) by affixing the notice to the land (under the Planning and Compulsory Purchase Act 2004, s 100(4), amending the Acquisition of Land Act 1981, s 11).    [Back]

Note 49    If proceeding under the Compulsory Purchase Act 1965, s 5(1).    [Back]

Note 50    That is, a claim under the Compulsory Purchase Act 1965, s 10.    [Back]

Note 51    So far as the person is known to the acquiring authority after making diligent enquiry.    [Back]

Note 52    The Compulsory Purchase of Land (Written Representations Procedure)(Ministers) Regulations 2004 (SI 2004 No 2594) now introduce the term “remaining objector”, meaning a person who has a “remaining objection” under Acquisition of Land Act 1981, s 13A.    [Back]

Note 53    Law Com CP No 169, paras 4.16-4.24. The statutory appeal procedure is not available where an order is confirmed by Act of Parliament under the Statutory Orders (Special Procedure) Act 1945, s 6: Acquisition of Land Act 1981, s 27.    [Back]

Note 54    Acquisition of Land Act 1981, s 23(1)-(3).    [Back]

Note 55    That is under the Acquisition of Land Act 1981 itself or under any enactment mentioned in section 1(1) thereof. Section 1(1) refers to a compulsory purchase to which the 1981 Act applies by virtue of any other enactment (whenever passed or made) and a compulsory purchase under an enactment specified in section 1(2). In turn, section 1(2) refers to the Metropolitan Police Act 1886, s 2; the Military Lands Act 1892, s 1(3); the Small Holdings and Allotments Acts 1908, ss 25(1), 39(1) and 1926, s 4; the Development and Road Improvement Funds Act 1909, ss 5(1), 7(1); and the Education Act 1996, s 530(1).    [Back]

Note 56    “Relevant requirement” is defined as any requirement of the Acquisition of Land Act 1981, or of any regulation made under section 7(2) of that Act, or any requirement of the Tribunals and Inquiries Act 1992 (or rules made thereunder): Acquisition of Land Act 1981, s 23(3).    [Back]

Note 57    A procedural challenge can also be made to a certificate under Part III of, or Schedule 3 to, the Acquisition of Land Act 1981. (Where certain kinds of land with special protection are to be the subject of compulsory purchase, confirmation of a CPO will either be denied (eg land owned by a statutory undertaker: s 16) or made subject to special parliamentary procedure (eg common land: s 19), unless the appropriate minister has issued a Part III certificate to the effect that the acquisition will not cause serious detriment or that its effects have been mitigated. Similarly, under s 28 and Schedule 3 the compulsory purchase of rights over special kinds of land vested in certain statutory bodies by the creation of new rights may only proceed after ministerial certification).    [Back]

Note 58    Section 23(4) provides for a time limit of six weeks from the date of first publication of notice of the confirmation or making of the order. The italicised words refer to orders by ministerial bodies only. In the case of an order to which the Statutory Orders (Special Procedure) Act 1945 applies, the time limit is six weeks from the date on which the order becomes operative. In the case of a certificate, it is six weeks from the date on which notice of the giving of the certificate is first published.    [Back]

Note 59    Acquisition of Land Act 1981, s 24. The function vested in the court is restricted: it is one of supervision of a particular administrative process, not one of broad review or appeal. See for example the analogous Northern Ireland decision in Cowan v Department of Enterprise, Trade and Investment [2000] NILR 122, 133 per Girvan J.    [Back]

Note 60    Acquisition of Land Act 1981, s 26. This does not apply to orders to which the Statutory Orders (Special Procedure) Act 1945 applies.    [Back]

Note 61    In Swick Securities Ltd v Chelsea Borough Council, (Unreported) May 1 1964 (CA) (Court of Appeal Transcript 1964, No 134), the Court of Appeal, construing the predecessor to section 25, accepted the concession of counsel that “confirmed” referred to compulsory purchase by non-ministerial bodies, “made” referred to compulsory purchase by government departments, and “given” referred to certificates under Part III of, or Schedule 3 to, the 1981 Act. This construction was adopted in R v Camden LBC, ex parte Comyn Ching & Co (London) Ltd (1984) 47 P & CR 417, 424, per Woolf J.    [Back]

Note 62    R v Camden LBC, ex parte Comyn Ching & Co (London) Ltd (1984) 47 P & CR 417. This decision concerned an application for judicial review of a local authority’s resolution to make a compulsory purchase order. Woolf J held that section 25 did not deprive the court of jurisdiction to hear and determine the application. He accepted, however, (at 425) that it was a matter for the discretion of the court whether to hear such an application, and was of the view that “in the majority of cases, notwithstanding my interpretation of section 25, it would be wrong for the court to hear an application of this nature. In the normal situation it would be preferable for the court to defer any application to the court until after the matter has gone before the Secretary of State.” See also Simpsons Motor Sales (London) Ltd v Hendon Corporation [1964] AC 1088, 1127, per Lord Evershed.    [Back]

Note 63    Judicial review has been successfully invoked to challenge the decision of a local inquiry inspector to exclude the evidence (of harassment and threats by the landlord) on which the acquiring authority’s attempt to seek confirmation of a compulsory purchase order was substantially based: R v Secretary of State, ex parte Kensington & Chelsea RBC (1987) 19 HLR 191.    [Back]

Note 64    For a similar approach in the context of challenging orders modifying the definitive map of public rights of way (pursuant to Wildlife and Countryside Act 1981, Sched 15, para 12) see R v Cornwall County Council, ex parte Huntington [1994] 1 All ER 694, 700, where the Court of Appeal held that the High Court could only intervene by way of judicial review when the relevant formal processes of making and confirmation of the modification order had been completed.     [Back]

Note 65    Government has it in mind to rectify this omission across the statutory appeal canvas: see Consultation Paper Statutory Appeals and Statutory Review: Proposals for Rationalising Procedures (Department for Constitutional Affairs, February 2004).    [Back]

Note 66    Law Com CP No 169, paras 4.18-4.20.    [Back]

Note 67    Supreme Court Act 1981, s 31(3).    [Back]

Note 68    Law Com CP No 169, paras 4.21-4.22.    [Back]

Note 69    Acquisition of Land Act 1981, s 23(1).    [Back]

Note 70    Islington LBC v Secretary of State for the Environment (1982) 43 P &CR 300.    [Back]

Note 71    Law Com CP No 169, para 4.24.    [Back]

Note 72    Ibid.    [Back]

Note 73    Ibid, para 4.24, Proposal 3.    [Back]

Note 74    Since the RICS submitted their response to the Consultative Report, it has ceased to be possible to “twin-track” planning applications: see Planning and Compulsory Purchase Act 2004, s 43.    [Back]

Note 75    Supreme Court Act 1981, s 31(5) provides: “If, on an application for judicial review seeking [a quashing order], the High Court quashes the decision to which the application relates, the High Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.” See also Civil Procedure Rules, r 54.19.     [Back]

Note 76    Administrative Law: Judicial Review and Statutory Appeals (1994) Law Com No 226.    [Back]

Note 77    Report of the Review of Tribunals by Sir Andrew Leggatt: Tribunals for Users - One System, One Service (August 2001).    [Back]

Note 78    Land, Valuation and Housing Tribunals: the Future (2003) Law Com No 281.    [Back]

Note 79    The jurisdictions of the reformed Lands Tribunal are dealt with in Land, Valuation and Housing Tribunals: the Future (2003) Law Com No 281, paras 4.38-4.49.     [Back]

Note 80    See our Final Report Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286, paras 10.10, 10.11 and proposed Rule 20.     [Back]

Note 81    Administrative Law: Judicial Review and Statutory Appeals (1994) Law Com No 226, Pt XII.    [Back]

Note 82    Ibid, para 12.13.    [Back]

Note 83    Ibid, App E (with explanatory notes).    [Back]

Note 84    When judicial review engages a potential human rights violation (Human Rights Act 1998, s 7(3)), the wider “sufficient interest” standing narrows to that of “victim”.    [Back]

Note 85    The Department for Constitutional Affairs presently has in train a review of statutory appeals and reviews, with a view to rationalising the underpinning procedures (see below).     [Back]

Note 86    Administrative Law: Judicial Review and Statutory Appeals (1994) Law Com No 226, para 12.1. In our Consultation Paper on the subject (Administrative Law: Judicial Review and Statutory Appeals (1993) Law Com No 126), we stated that “It is often said that the statutory provisions which regulate the manner in which administrative and adjudicatory decisions are taken are necessarily very specific to the context for which they were designed, and this is a factor which must be borne in mind in considering the extent to which simplification and harmonisation is possible” (Part B, para 16.1).    [Back]

Note 87    Our reasoning is set out in Administrative Law: Judicial Review and Statutory Appeals (1994) Law Com No 226, paras 12.17, 12.18. We recommended the use of “person adversely affected” for judicial review, but felt that would be too narrow for statutory review.    [Back]

Note 88    DCA Consultation Paper (February 2004). This paper builds on Administrative Law: Judicial Review and Statutory Appeals (1994) Law Com No 226, Lord Woolf’s Report on Access to Justice (1996) and Sir Jeffrey Bowman’s Report on Review of the Crown Office List (March 2000).     [Back]