The Law Commission

PART 3

IMPLEMENTATION OF COMPULSORY PURCHASE

INTRODUCTION

3.1     Following confirmation of the compulsory purchase order, there are two alternative means by which the order may be implemented so as to pass title from the landowner to the acquiring authority: by notice to treat and by vesting declaration.^[1]

The notice to treat procedure

3.2     The notice to treat procedure involves service of a statutory notice on each affected landowner to initiate the process of agreeing or determining compensation. Title does not pass to the authority until compensation has been settled, but the authority may take possession in the meantime by serving notice of entry. The land is valued at the date of entry (or the date of determination of compensation if earlier) and interest runs from that date. 3.3     The purpose of service of notice to treat is threefold:

(a) to inform interested persons that the acquiring authority intends to proceed to exercise its powers of compulsory purchase for the subject land;

(b) to obtain particulars of the recipients' interests in the land and of the compensation to be claimed; and

(c) to tell the relevant parties that the authority is willing to negotiate on the compensation "to be made for the damage which may be sustained by reason of the execution of the works."^[2]

3.4     The notice to treat route encompasses two separate steps. The purpose of notice of entry as the second step (served after, or at the same time as, notice to treat) is:

(a) to give notice to the owner, lessee and occupier of subject land that the authority will be entering that land;

(b) to validate such entry at the end of the prescribed period, notwithstanding non-payment of compensation at that juncture; and

(c) to act as a preliminary step to enforcing entry by warrant if entry is then denied.^[3]

The vesting declaration procedure

3.5     The more recent vesting declaration procedure enables the authority, after confirmation, to make a declaration, vesting in itself title and authorisation to enter after expiry of a defined period (not less than 28 days) from the service of a notice on those affected. Title passes on the date so fixed, whether or not compensation has been settled. 3.6     The purpose of a vesting declaration is to short-circuit the lengthier process of notice to treat followed by notice of entry. Execution of a general vesting declaration is (after preliminary notice) a single-step process which vests title to subject land automatically in the acquiring authority without need for formal conveyance or investigation of title. The acquired interests convert into compensation rights, and right of entry is immediate against all interest holders except those with minor tenancies. We are given to understand that today the procedure is used extensively by acquiring authorities. It has the added advantage that it effects transfer of title where identifying ownership of land would otherwise be problematic.^[4] 3.7     In this Part we review these two processes of implementation. We do so in the light of the acceptance by Government that both notice to treat and vesting declaration should be retained as alternatives. The DTLR Policy Statement explained this decision:

There have also been suggestions that it is unnecessary to retain both the notice to treat and the general vesting declaration procedures. The latter replaces both the notice to treat (which is deemed to have been served) and the conveyance with one procedure… It is therefore useful to acquiring authorities where it has not been possible to identify the owners of all the affected land. It also offers a greater degree of certainty for those affected, including fixing the date of vesting as the date to which the valuation of their property will relate. However, its disadvantages include the fact that the power to withdraw the notice to treat no longer applies once the declaration has been executed… We therefore see sense in retaining the flexibility afforded by keeping both the notice to treat and general vesting declaration procedures.^[5]

3.8     We commence our review of implementation by dealing with what technically remains a third possible route: the rather obscure statutory procedure for obtaining right of entry contained in Schedule 3 to the Compulsory Purchase Act 1965. We then deal with the notice to treat procedure, including how entry upon the subject land is secured by notice of entry, and the consequences of non-compliance, where the entry by the acquiring authority has not been authorised or where the entry has been refused by owners or occupiers of the subject land. We consider the law of distress as an enforcement mechanism. We then review in outline the vesting declaration procedure as an alternative to notice to treat. Finally, we consider the desirability of registering steps in the compulsory purchase process in the register of local land charges.

(1) PROCEDURE UNDER COMPULSORY PURCHASE ACT 1965,

SCHEDULE 3

The existing law

3.9     The procedure contained in Schedule 3 to the Compulsory Purchase Act 1965 (given effect by section 11(2) of the same Act) has changed little since 1845. It follows quite closely that which appeared in sections 85 to 87 of the Lands Clauses Consolidation Act of that year. It involves the authority paying into court as "security" a sum of money reflecting the amount of compensation being claimed or a sum determined as equal to the value of the interest being acquired by an "able practical surveyor" who has been appointed in writing by two justices of the peace. Simultaneously, the authority must tender a bond to the landowner for the sum in question, underwritten by two sureties. When compensation under the bond has been paid in full, the court will release the secured moneys to the acquiring authority.

Deficiencies

3.10     This procedure has the following defects:

(1) It is cumbersome and expensive, involving appointment of a surveyor, procuring of a bond and application to the High Court;

(2) It is cast in archaic and ambiguous terms (it is not clear from the wording whether service of notice to treat is a prerequisite to its invocation);^[6] and

(3) It appears to offer no benefit not already provided for under the two more modern procedures.

Provisional proposals

3.11     In our Consultative Report on Procedure we indicated our provisional view that while retention of the two parallel procedures of notice to treat and vesting declaration was merited, section 11(2) and the procedure under Schedule 3 to the Compulsory Purchase Act 1965 was obsolete and should be repealed.^[7]

Consultation

3.12     In our consultation process we asked whether consultees agreed that these provisions should be repealed. 3.13     Of the 15 consultees who responded to us on this topic, all but one agreed with our provisional proposal. Both the Law Society and the RICS told us that the procedure is no longer needed; the RICS specifically said that the procedure is obsolete and is never used in practice today. The only dissenting voice was ODPM. The Department indicated that it was not persuaded on the evidence then available that Schedule 3 is obsolete, or that the reason why the provision had been preserved in the 1965 Act has now been rendered otiose.

Recommendation for reform

3.14     In the light of our consultation we believe that Schedule 3 no longer provides a useful procedure for securing entry to land. We have been unable to discern any reason for the retention of Schedule 3. On that basis, we recommend repeal of the relevant provisions.

Recommendation (4) – Procedures for implementation

(1) Implementation of a compulsory purchase order, once it has been confirmed by the confirming authority, should be effected only by notice to treat or by vesting declaration.

(2) The implementation procedure contained in section 11(2) of, and Schedule 3 to, the Compulsory Purchase Act 1965 should be repealed without replacement.

(2) NOTICE TO TREAT

The existing law

3.15     Implementation by notice to treat is now governed by section 5 of the Compulsory Purchase Act 1965.^[8] Much of the language in the original provision derives from section 18 of the Lands Clauses Consolidation Act 1845, and is in need of modernisation. 3.16     There are four main legal requirements:^[9]

(1) The compulsory purchase order must have become "operative";^[10]

(2) The acquiring authority must "require to purchase" the land specified in the notice for the authorised (and not a collateral) purpose, and it may include only part of that encompassed in the order as confirmed;

(3) Notice must be given to "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"; and

(4) Notice must give particulars of the land, demand particulars of the recipient's "estate and interest" and state that the authority is willing to treat both for purchase of the land and for compensation payable for "the damage which may be sustained by reason of the execution of the works."^[11]

3.17     Although section 5 requires notice to treat to be served on all persons with interests in the land, it has been held that such service is not necessary in relation to those holding "short tenancies" as defined by section 20 of the 1965 Act.^[12] We consider the problems caused by such tenancies in Part 8.^[13] 3.18     We deal with time limits in detail below.^[14] The Compulsory Purchase Act 1965 provides that an authority's power of compulsory purchase "shall not be exercised after the expiration of three years from the date on which the compulsory purchase order becomes operative."^[15] Service of notice to treat is sufficient "exercise" of the powers for this purpose.^[16] Once notice to treat has been served it is valid for a further three years, unless one of several specified events has occurred.^[17]

Deficiencies

3.19     In our Consultative Report on Procedure we set out the main deficiencies of this procedure:^[18]

(1) Section 5(1) provides for the service of notice on "all the persons interested in, or having power to sell and convey or release, the land", but fails to define within the statute which interests qualify for service. In particular, there is no reference within section 5 to the exclusion of certain "short tenancies" from the requirement to serve notice to treat.

(2) Section 5(2)(c) provides for the authority to express willingness to treat both for the purchase of the subject land and "as to the compensation to be made for the damage which may be sustained by reason of the execution of the works." Reference to "execution" is too narrow because it fails to embrace compensation for use of the works. In general, the provision contains an incomplete description of the various heads of compensation payable.^[19]

(3) There is no prescribed form of notice to treat. This may lead to inconsistency of approach and the inadequate provision of necessary supporting information to affected parties.

(4) The language used in section 5 of the Compulsory Purchase Act 1965 is in need of modernisation.

Provisional proposals

3.20     In our Consultative Report on Procedure we made two provisional proposals to address these deficiencies: ^[20]

(1) There should be a prescribed form of notice to treat to ensure consistency of practice (to be accompanied by standard notes to recipients explaining their rights).

(2) The reference to compensation in section 5(2)(c) of the 1965 Act should be broadened to substitute reference to compensation to be paid in respect of the taking of the interest in accordance with the Compensation Code.^[21]

3.21     We also invited the views of consultees on whether the definition of "interests" qualifying for service of notice to treat creates any practical problems.^[22]

Consultation

3.22     All of those who responded to our provisional proposals supported them. The Highways Agency pointed out that the prescribed forms may need to embrace several versions so as to cater for the different types of interest being acquired (for example, where land is subject to a mortgage). We accept that this may be necessary. We envisage that new primary legislation would simply confer a regulation-making power, leaving the drafting of the forms to the appropriate Government department. 3.23     More difficult, and complicated, is the definition of the categories of interest-holder who will be entitled to service of notice to treat. While a number of respondents believed that the present definition (augmented by the case law) was adequate, a majority of those who responded on this issue expressed concern. 3.24     The need for a clear definition of persons entitled to service was strongly pressed, as was the desirability that the same definition should apply whether the acquisition was being implemented by notice to treat or by vesting declaration. It was felt that it was unsatisfactory to have to rely on case law to achieve a comprehensive list of those entitled. 3.25     In our consultation we also asked whether an authority should have discretion to serve notice to treat on owners of interests or occupiers outside the defined categories. Almost unanimously those who responded on this issue endorsed this approach. It was thought that no authority should seek to appropriate without prior notice to those persons affected, and that to do so would be likely to contravene the Human Rights Act 1998.^[23] As we explain in Part 8, notice to treat must be served on those holding "short tenancies" if the acquiring authority decides to exercise its rights under compulsory purchase rather than allowing the tenancy to expire by effluxion of time or terminating the tenancy by notice to quit.^[24] 3.26     The Planning and Environment Bar Association went a step further, putting the case for mandatory service on all identified interest-holders, together with all persons entitled to compensation even though they may not have an interest in the land.^[25] This would incidentally render the vesting of a discretion in acquiring authorities otiose. We believe, however, that it would be undesirable to require authorities to acquire interests for which they have no need. It would remove the flexibility currently enjoyed by acquiring authorities, and would risk a disproportionate increase in the compensation payable out of public funds for compulsory purchase. On the other hand, we do believe that those who have interests in land which may be affected by a compulsory purchase order should be informed of the acquiring authority's intentions so that they can act accordingly. 3.27     One consultee proposed that the extent to which notice may be served on agents should be clarified. We are of the view that clarification is not necessary. Service is governed by relatively modern legislation that provides a self-contained code.^[26] Although these provisions do not allow for service on agents,^[27] they do permit service by leaving a copy of the notice "on or near" the subject land. The same formula is used in the recent amendment to the provisions concerning service of notices of making and of confirmation.^[28] This, in our view, is adequate: it avoids the need to spend time and resources in identifying those authorised to act as agents and in investigating the extent of any agent's authority. Service at the site should be sufficient as a long-stop measure.

Recommendations for reform

3.28     We recommend that there should be a prescribed form, or prescribed forms, of notice to treat. Legislation should confer power on the relevant government department to make regulations prescribing the forms in question. 3.29     We accept that it would be highly advantageous to provide a clear statutory definition of those interests entitled to service. We also accept that the same definition should be applied whether implementation is by notice to treat or by vesting declaration. 3.30     It is important to emphasise the function of notice to treat. It is to inform those who have interests in, or who occupy, the land subject to compulsory purchase, of the authority's intentions to proceed to acquisition, and to invite them to negotiate for compensation for the loss of their rights in the land. If the authority does not intend to acquire a particular interest in the land there is no requirement to serve notice to treat. 3.31     Consistency between the notice to treat and vesting declaration procedures has been, by and large, achieved as a result of section 7(1)(ii) of the Compulsory Purchase (Vesting Declarations) Act 1981 which, on execution of a vesting declaration, deems service of "constructive notice to treat" on every person who could have actually been served with notice to treat under section 5 of the Compulsory Purchase Act 1965. Exception is, however, made for persons "entitled to a minor tenancy or a long tenancy which is about to expire." This exception is not on all fours with the exception for those holding short tenancies contained in section 20 of the 1965 Act. It is self-evidently desirable that these exceptions are made compatible. Section 5 of the 1965 Act should, therefore, exclude expiring tenancies from the requirement to serve notice to treat, and section 20 of the same Act should be amended to cater for such tenancies, providing compensation entitlement for the lost value of any unexpired term. We make recommendations to this effect in Part 8 below.^[29] 3.32     The other important distinction between the two statutes concerns the requirement to serve occupiers of the subject land. Where the authority proceeds by vesting declaration, every occupier of the land (save where there subsists a minor or expiring tenancy^[30]) and every potential claimant who has supplied their details to the authority^[31] is entitled to be served with notice of execution. By contrast, occupiers are not required to be served with notice to treat under the 1965 Act. We believe that this inconsistency should be rectified so that (subject to the exclusion relating to short or expiring tenancies) occupiers are entitled to be served whichever implementation procedure is adopted.^[32] 3.33     Mortgagees are entitled to be served with notice to treat.^[33] In the event of a failure to serve, they are not bound by any determination of compensation nor are they obliged, pending the mortgage being paid off, to accept any loss to their security.^[34] It would be beneficial to encapsulate this principle in primary legislation. 3.34     Although the case was made to us in the process of consultation that special provision should be made for agricultural tenancies held from year to year, we do not consider that they should be treated differently from other minor tenancies. 3.35     It is essential that all those who are likely to have a viable claim for compensation should be aware of the authority's actions, and be invited to negotiate with the authority for the amicable compromise of their claims. At the same time, it is important that the authority is subject to an obligation that is realistic and achievable. The persons on the list should be readily ascertainable to the authority by serving a requisition for information on those whom it knows have an interest in the subject land, by carrying out a search at the Land Registry (or, where still relevant, the Land Charges Registry), or by visiting the site itself. 3.36     In our view, and subject to exceptions detailed in paragraph 3.37 below, the persons required to be served with notice to treat should comprise:

(1) Owners of a freehold interest in the land;

(2) Owners of a leasehold interest in the land;

(3) Mortgagees, legal and equitable;

(4) Those entitled to the benefit of an enforceable contract to create a freehold or a leasehold interest in the land, including those with the benefit of an option to purchase or of a right of pre-emption; and

(5) All persons in lawful occupation of the land.

This list corresponds to those who we believe are required to be served under the current law.

3.37     It should not, however, be necessary for the authority to serve notice to treat on those holding "minor tenancies" or those with the benefit of an incorporeal hereditament (typically an easement or profit à prendre) or those entitled to enforce a restrictive covenant. These are special cases. The authority may in the exercise of its discretion decide to acquire these interests and invoke the notice to treat procedure to this end, but it is not obliged to do so, and there are other courses of action open to it.^[35] Nonetheless, we do believe, in order to promote transparency, that acquiring authorities should provide information as to their intentions to holders of such interests.

Recommendation (5) – Notice to treat

(1) An acquiring authority should be required to serve notice to treat in prescribed form on any owner of a freehold or leasehold interest in the land, any mortgagee (whether legal or equitable), any person entitled to the benefit of a contract to create a freehold or leasehold interest, and any lawful occupier of the subject land.

(2) It should not, however, be required to serve notice to treat on those holding "minor tenancies", those with the benefit of an easement or profit à prendre over the subject land, or those entitled to enforce a restrictive covenant over the subject land.

(3) An acquiring authority should be entitled, in the exercise of its discretion, to serve notice to treat in prescribed form on any person (other than those set out in (1) above) who owns an interest in, or occupies, the subject land.

(4) In section 5(2)(c) of the Compulsory Purchase Act 1965, there should be substituted reference to compensation being paid for loss incurred in accordance with the four compensation heads (as exist currently or as proposed).

(5) In section 20 of the Compulsory Purchase Act 1965, the right to compensation (and allied procedure) afforded to a minor tenant should be extended to any person holding a long tenancy which is about to expire (as defined in section 2(2) of the Compulsory Purchase (Vesting Declarations) Act 1981).

(3) NOTICE OF ENTRY

The existing law

3.38     By section 11(1) of the Compulsory Purchase Act 1965:

If the acquiring authority have served notice to treat in respect of any of the land and have served on the owner, lessee and occupier of that land not less than fourteen days notice, the acquiring authority may enter on and take possession of that land, or of such part of that land as is specified in the notice.

3.39     The acquiring authority is therefore entitled to serve notice of entry in respect of either the whole or part of the subject land, and then to take possession of the whole or "of such part of that land as is specified in the notice". This means that it may serve different notices for different parts of the land at different times, or serve notice for the whole and in either case may take possession in stages. If it serves notice in respect of the whole, but opts to take possession in stages, once it has entered upon the first plot of land it is deemed (for the purpose of assessing compensation) to have taken possession of the whole.^[36] 3.40     In order to prevent the premature expiry of the CPO, the authority must serve notice to treat within three years of its becoming operative,^[37] and then (following service of notice of entry) must enter on and take possession of the subject land within three years of service of notice to treat.^[38] This latter time limit may be extended by agreement between the parties.^[39] No provision is currently made for expiry of a notice of entry once served. 3.41     Service of notice of entry does not commit the authority to taking possession at the end of the period specified in the notice, nor does it result in a notional taking of possession at that time.^[40] What constitutes actual entry will be a question of fact.

Deficiencies

3.42     We highlighted in our Consultative Report on Procedure the not infrequent practice of delaying entry beyond the date specified in the notice (sometimes for a significant period) and, in passing, we questioned whether that practice actually complies with the wording of section 11(1) of the Compulsory Purchase Act 1965, which seems to envisage the specifying of the period with some precision. There is, however, no prescribed form, or form of words, for notice of entry. The legislation is also silent as to the power of an acquiring authority to withdraw notice of entry once served. 3.43     Failure to specify a date when (or a finite period within which) possession will be taken may give rise to serious uncertainty and disruption for occupiers. In turn, this can lead to the payment of compensation from public funds for avoidable losses. If a landowner does not know precisely when they must vacate (particularly as no further notice need be served once the original has expired, so after a period of delay they might be expelled without warning and with no right of appeal) that may very well comprise a breach of their rights under the Human Rights Act 1998.^[41] 3.44     The Government has already signalled its concern that the time limits set out in the present legislation are too generous to acquiring authorities and, in the interests of speed and fairness, should be abridged.^[42]

Provisional proposals

3.45     In our Consultative Report on Procedure we made no proposal for substantive reform of the arrangements relating to notice of entry, other than indicating that the obsolete procedure contained in Schedule 3 to the Compulsory Purchase Act 1965 should be repealed. We have now made a formal recommendation to this effect.^[43] We noted the Government's proposals for adjusting the time limits, replacing the minimum period of 14 days with a maximum of three months.^[44]

Consultation

3.46     We asked consultees whether, in their view, other practical problems flowed from operation of the rules for notice of entry and if so how they should be remedied.^[45]

Taking of entry

3.47     The consensus was that the legislative controls on entry on land and the taking of possession should be more rigorous. The taking of possession by the acquiring authority entitles the affected owner to statutory interest^[46] and to make application for an advance payment.^[47] Yet service of notice of entry does not provide adequate information as to precisely when possession will actually be taken. A longer period of notice would be preferable, together with effective sanctions for failure to take possession at the expiry of the period. There would also be advantages in flexibility, allowing parties to agree extensions of time between themselves. 3.48     One respondent suggested that an obligation could be imposed on the authority to take possession within a defined period of the notice of entry becoming operative.^[48] It was also suggested, for transparency, that service of notice of entry should be registrable on the local land charges register.^[49] Some respondents felt that in general a "telescoping" of the CPO implementation timetable would contribute to a more orderly handling of entry, and would help to remove the uncertainties which can flow from delay.

Passing of title

3.49     Presently title only passes when compensation has been paid to the owner (or into court) and a formal transfer of title (or deed poll) has been executed.^[50] It was contended by English Partnerships that this may cause practical problems, especially where compulsory purchase of particular land is an integral part of a public/private joint venture with a commercial developer. In such a situation the acquiring body may need to demonstrate good title for financing purposes. It was therefore proposed that provision should be made for the automatic vesting of title when an authority takes possession under the notice to treat route. 3.50     This approach, it was argued, would not cause hardship to landowners because:

(1) The recipient of the notice would remain entitled to compensation;

(2) The recipient of the notice would not be expelled any earlier from their property than they would under the current rules;

(3) Notice to treat could still be withdrawn within the statutory time-frame;^[51]

(4) The flexibility of the notice to treat procedure would be preserved.

Notification of entry

3.51     The Country Land and Business Association expressed concern that acquiring authorities sometimes fail to serve notice of entry on all the correct parties. Under section 11(1) of the 1965 Act it is mandatory to serve "the owner, lessee and occupier" of the subject land. Omitting one of these parties can give rise to confusion, distress and injustice. It was therefore suggested that the acquiring authority should be required to certify to the confirming authority proper compliance with this requirement. 3.52     The Planning and Environment Bar Association were concerned that the purpose (and authority) for entry were sometimes unclear. In the context of highway schemes, for example, where land is only temporarily required for landscaping or ground modelling, land is included in a CPO as a precautionary measure. It is not always clear whether entry in such circumstances purports to be effected under notice of entry or by some form of temporary licence (which may not be documented). In the view of the Planning and Environmental Bar Association, the acquiring authority should be required to certify in writing that entry has been effected (and on what date), whether that entry was in whole or in part, and whether entry was effected under notice of entry or under some other form of instrument or agreement (detailing the latter).

Recommendations for reform

Taking of entry

3.53     Government has already indicated its desire to see a measure of reform relating to the notice of entry procedure. As we indicate above, Government is minded to replace the current minimum period of 14 days with a fixed period of two months, allowing one further month thereafter for taking possession. If this were to be given legislative force, we believe that it would meet satisfactorily the concerns expressed to us about lack of certainty.

Passing of title

3.54     There would be serious practical difficulties should title be deemed to pass with possession where the authority has proceeded by notice to treat. Unlike general vesting declarations, where possession follows transfer of title in the whole, possession by notice of entry can be taken piecemeal. In our view, it would not be practicable to devise an arrangement where either title passes in stages or where it is deemed to pass as a whole on service of the first notice of entry. 3.55     We are of the view that if early passing of title is needed in a given situation, an acquiring authority would be better advised to invoke the vesting declaration procedure. This has the benefit of ensuring that title passes automatically on the vesting date without need for execution of any form of conveyance or transfer.^[52] It is open to an authority to make separate vesting declarations in relation to separate plots of land and thereby to proceed incrementally with the transfer of title. Payment of compensation (and interest) runs from formal vesting rather than the date of taking possession.^[53]

Notification of entry

3.56     We believe that certification of proper service will achieve little. A confirming authority has no right to intervene in the implementation stage: indeed it is functus officio once confirmation has been given or refused. The mischief complained of relates to the adequacy of notice to all persons who are liable to be affected. That could be overcome by extending the site notice arrangements that now apply to notices of making and of confirmation.^[54] We consider further in Part 6 below the provisions concerning service of notices in general, but here specifically recommend reform in this respect. 3.57     We think that the Planning and Environment Bar Association's point can more properly be addressed by the standard notes supporting the prescribed form of notice to treat which we have recommended above.^[55] Section 11(4) of the 1965 Act already makes it clear that entry (prior to payment of compensation) is prohibited except by way of notice of entry or "with the consent of the owners and occupiers". If that proviso is drawn to the attention of owners and occupiers at the notice to treat stage, they will be on notice to ask the authority – in the absence of notice of entry – for proof of a licence permitting entry. If that is not forthcoming, and entry is effected, the interest holder may have recourse to the courts for trespass.

Recommendation (6) – Notice of entry

Section 11(1) of the Compulsory Purchase Act 1965 should be amended so that notice of entry (in addition to service on every owner, lessee and occupier of subject land or part of that land) shall also be affixed to a conspicuous object or objects on or near the land and the display maintained, so far as is reasonably practicable, for its period of validity.

(4) UNAUTHORISED ENTRY

3.58     The Compulsory Purchase Act 1965 penalises acquiring authorities which enter and take possession without obtaining the requisite prior authority. In our Consultative Report on Procedure we provisionally proposed the repeal of the relevant provision.

Existing law

3.59     By section 11(4) of the Compulsory Purchase Act 1965:

Except as provided by the foregoing provisions of this section, the acquiring authority shall not, except with the consent of the owners and occupiers, enter on any of the land subject to compulsory purchase until the compensation payable for the respective interests in that land has been agreed or awarded, and has been paid to the persons having those interests or has been paid into court in accordance with this Act.

3.60     Section 12 of the Compulsory Purchase Act 1965 provides that where an acquiring authority, or one of its contractors, "wilfully"^[56] enters on and takes possession of any of the subject land in contravention of section 11(4) the authority "shall forfeit to the person in possession of that land the sum of £10 in addition to the amount of any damage done to the land by entering and taking possession".^[57] A daily penalty of £25 lies where an authority remains in unlawful possession after a sum has been adjudged to be forfeited under section 12. If the authority has paid compensation (to the owner or into court) "in good faith and without collusion" in the reasonable belief that the person receiving the money (or for whose benefit it was paid) was entitled to it, then no penalty shall lie.^[58]

Deficiencies and provisional proposal

3.61     In our Consultative Report we indicated our view that the penalty contained in section 12 of the Compulsory Purchase Act 1965 appears to serve no useful purpose in modern circumstances.^[59] We considered that the amount of the "forfeit" was derisory and that, where damage is suffered, there seems no reason why a claim should not be brought in the ordinary way, by civil action. We therefore provisionally proposed its repeal without replacement.

Consultation and recommendation for reform

3.62     In the main, respondents agreed that section 12 should be repealed. Only the CLA and CAAV favoured retaining a form of penalty or forfeit, presumably as an incentive to authorities to carry out sufficient checks and enquiries.^[60] In general, however, it was felt that claims for damages in trespass provided a more effective and more substantial remedy in the event of default by the acquiring authority. We agree with this, and confirm our provisional proposal.

Recommendation (7) - Unauthorised entry

Section 12 of the Compulsory Purchase Act 1965 should be repealed without replacement.

(5) REFUSAL OF ENTRY

3.63     In the event of force being necessary to effect entry, the authority should issue a warrant to the sheriff who is then authorised to use such force as is requisite to enable possession to be taken. Provision is made for the costs of enforcement to be deducted from the compensation payable, or to be levied by distress. We consider here the enforcement procedures available to acquiring authorities where they are refused entry upon the subject land.

Existing law

3.64     By section 13(1) of the Compulsory Purchase Act 1965:

If the acquiring authority are under this Act authorised to enter on and take possession of any land, and the owner or occupier of any of that land, or any other person, refuses to give up possession of it, or hinders the acquiring authority from entering on or taking possession of it, the acquiring authority may issue their warrant to the sheriff to deliver possession of it to the person appointed in the warrant to receive it.

3.65     No application to court for a warrant of possession is therefore required. On receipt of the warrant by the sheriff, he or she "shall deliver possession of any such land accordingly".^[61] Provision is made for the deduction of the costs of the warrant from the compensation payable to the claimant.^[62] If the costs exceed the compensation, the authority may levy distress.^[63] 3.66     We noted in the Consultative Report on Procedure the review then being conducted by Government into civil enforcement procedures generally.^[64] The result of that review has been the enactment of certain provisions contained in the Courts Act 2003 changing the procedure for enforcement of High Court writs and replacing sheriffs with High Court "enforcement officers" for those purposes.^[65] 3.67     Section 13 of the Compulsory Purchase Act 1965 is not, however, replaced or amended by the Courts Act 2003. Warrants issued by acquiring authorities must therefore, for the time being, be addressed to sheriffs and not to enforcement officers.

Deficiencies

3.68     In our Consultative Report on Procedure we considered that the enforcement machinery contained in section 13 was still regarded as useful, and we propounded the view that it satisfied the requirements of the Human Rights Act 1998.^[66] Our concern about the enforcement procedure was the apparent lack of control over the costs incurred by the sheriff and ultimately recoverable (at least in theory) from the owner of the subject land.^[67] 3.69     The question now arises, following enactment of the Courts Act 2003, whether section 13 of the Compulsory Purchase Act 1965 should be amended so as to achieve conformity with the new legislative regime: in particular whether the employment of sheriffs to enforce entry upon land subject to compulsory purchase should be replaced by that of High Court enforcement officers.

Provisional proposals

3.70     In our Consultative Report on Procedure we provisionally proposed that the acquiring authority should bear the sheriff's costs, and have the right to deduct them from any compensation payable, but that this should be subject to review by the Lands Tribunal of the reasonableness of the costs being claimed.^[68] 3.71     We provisionally proposed retention of the section 13 procedure whereby the acquiring authority may issue a sheriff's warrant.^[69] However, it has since become clear that the procedure needs modernisation in order to bring it into line with the mechanism for enforcement of other warrants.

Consultation

3.72     First, we asked consultees whether they agreed that the warrant-based enforcement procedure should be re-stated in modern form.^[70] All consultees who responded on this issue agreed that such a procedure should be retained. 3.73     The Department for Constitutional Affairs strongly supported the need for a modern re-statement of the enforcement procedure, following the model of the Courts Act 2003 and its attendant secondary legislation. They stressed the real practical difficulties consequential upon concurrent powers being vested in sheriffs and enforcement officers. For example, money claims against land (fi fa orders) are now to be enforced by the High Court enforcement officers, whereas compulsory purchase orders would continue to be enforced by sheriffs on the initiative of the acquiring authority. ODPM also suggested that the impact of the Courts Act 2003 should be considered on the statutory enforcement powers. 3.74     Secondly, we asked consultees whether the enforcement procedure gave rise to any practical problems. The Highways Agency stated that they were not aware of any specific practical problems although they considered that the process could be time-consuming if possession is required urgently. They did raise some concerns about the process in the light of our provisional proposal that possession should be taken within one month of the date specified in the notice of entry, and suggested that further consideration be given to this issue. 3.75     RICS noted the practical problems that may arise regarding the timing of taking possession of the interests of investors (landlords) and occupiers (tenants). They suggested that the legal position of each should be clarified in the legislation. They also noted practical problems that can arise when only a part of the land is being taken into possession, with more to be taken at a later date. They stated that when such a situation exists two sets of the appropriate notices should be issued, one for each section of the land, rather than attempting to deal with both under one notice or procedure. 3.76     Thirdly, we asked consultees whether they agreed that the sheriff's costs should be borne in the first instance by the acquiring authority. 3.77     All consultees who expressed a view on this issue agreed with this provisional proposal. The Highways Agency stated that their current practice is to bear the sheriff's costs in the first instance and then deduct them from the claimant's compensation. The City of London Law Society agreed on the basis that such costs (which can be considerable) are made expressly deductible from compensation and recoverable as an ordinary civil debt in the event of the costs exceeding the compensation payable. DCA made the same point as to enforcement of the costs payable in the event of the compensation being insufficient to cover the costs in full. The Estates and Wayleaves Forum, emphasising that the enforcement procedure is being invoked primarily as a result of the landowner's intransigence, requested that statute clarify that the ultimate liability to pay the sheriff's costs lies with the landowner. 3.78     Some concern was expressed about the appropriate machinery for the assessment of costs. While it was generally agreed that the landowner should only be liable to pay such costs as are reasonable, several consultees felt that the Lands Tribunal is not the appropriate forum to assess reasonableness. Both CLA and the Central Association of Agricultural Valuers ("CAAV") argued that the courts' "taxation regime" would be a better method of establishing the reasonableness of the amount. The Welsh Development Agency agreed with the view that it should be the courts that deal with costs. DCA, however, agreed with us that assessment of costs should be a matter for the Lands Tribunal, rather than the courts. 3.79     The Bar Council also supported the proposal that the Lands Tribunal should determine the question of reasonableness. They wished to emphasise, however, that the function of the Tribunal in this respect should not be restricted to "review" on Wednesbury principles, setting aside only those costs which no reasonable authority would have incurred or which were otherwise incurred unlawfully. The Tribunal should simply be empowered to decide, on request by the claimant or by the authority, what costs should have been incurred, and to order payment of that amount, provided it does not exceed the sum actually incurred.

Recommendations for reform

3.80     Although the primary question in our consultation concerned the issue of costs, we now recommend that section 13 of the 1965 Act be amended to achieve compatibility with the Courts Act 2003.^[71] Not only will this promote procedural consistency, it should also have a positive impact in reducing the costs incurred in relation to enforcement. We understand that both DCA and ODPM support this reform. 3.81     It is clear in our view that the costs of enforcement (whether they be the costs of the sheriff, as under the current process, or the costs of enforcement officers, as recommended) should be borne initially by the acquiring authority, subject to recoupment from the landowner against whom enforcement has been necessary. The landowner should only be liable to meet such costs as are reasonable in the circumstances. 3.82     Despite the concerns expressed in the consultation process, we have formed the view that determination of the reasonableness of the costs should be within the jurisdiction of the Lands Tribunal. We consider that the Lands Tribunal, given its expertise in determining issues of compensation and other issues in relation to compulsory acquisition, is the most cost-effective, speedy and proportionate forum for the resolution of such disputes. It should be possible for the Lands Tribunal expeditiously to develop transparent procedure and practice for the determination of such costs.

Recommendation (8) – Refusal of Entry

(1) While the procedure enabling the acquiring authority to issue a warrant for possession (under section 13 of the Compulsory Purchase Act 1965) should be retained, the warrant should be issued to High Court enforcement officers rather than to the sheriff.

(2) The costs of the warrant should be borne initially by the acquiring authority subject to recoupment from the person refusing entry. The acquiring authority should be entitled to deduct such costs from any compensation payable to that person. Where costs exceed the level of compensation payable, they should be recoverable as a civil debt.

(3) The Lands Tribunal should have jurisdiction to decide whether the sum claimed by the acquiring authority as costs of enforcement is reasonable in all the circumstances of the case.

(6) DISTRESS

Introduction

3.83     The Compulsory Purchase Act 1965 contains a single specific provision dealing with distress as a means of enforcement of payment by parties involved in the compulsory purchase process. We have provisionally proposed its repeal, and we now confirm that as a final recommendation.

Existing law

3.84     By section 29(1) of the Compulsory Purchase Act 1965:

No distress levied under this Act shall be deemed unlawful, nor shall the person making the distress be deemed a trespasser on account of any defect or want of form in the warrant of distress or other proceedings relating to the distress; and the person making the distress shall not be deemed a trespasser ab initio on account of any irregularity afterwards committed by him so, however, that any person aggrieved by any defect or irregularity may recover full satisfaction for the special damage in civil proceedings.

3.85     The corresponding provisions under sections 138 and 141 of the Lands Clauses Consolidation Act 1845 were repealed by section 1 of, and Schedule 1 Part XIV to, the Statute Law (Repeals) Act 1993.

Deficiencies and provisional proposal

3.86     In our Consultative Report we stated that we saw no reason for this special provision for levying distress in the modern law, and we provisionally proposed its repeal on the ground that it served no useful purpose.^[72]

Consultation

3.87     A substantial majority of consultees supported our provisional proposal. Few gave reasons, but the Highways Agency indicated that there was already adequate provision for the award of special damages in civil proceedings. CLA and CAAV both agreed that there was no justification for levying distress in this situation or any useful purpose to it. 3.88     DCA replied more substantively on the effects of the new enforcement procedures now contained in the Courts Act 2003, explaining that if the enforcement costs are borne by the acquiring authority, who will then recover them either through deductions from compensation payable or through the courts, there is no need for special provision enabling the High Court enforcement officer to levy distress. In that respect at least, section 29 would no longer serve any useful purpose. 3.89     There were two expressions of concern. The Law Society, while admitting that distress was not in general use, contended that it could be helpful in cases where little or no compensation is payable but enforcement costs are high. Richard Rattle gave some support for this, citing experience of circumstances where the costs of using a sheriff exceeded compensation payable and where section 29 had been a useful "lever" to assist in the recovery of the excess.

Recommendations for reform

3.90     On balance, we consider that the case for repeal of section 29(1) of the 1965 Act^[73] is strong, and we recommend accordingly. We also believe that, in the light of our recommendation above^[74] that the costs of issuing a possession warrant should in future be recoverable as a civil debt (and not by levying distress), section 13(4),(5) of the 1965 Act should also be repealed, and we so recommend.

Recommendation (9) – Distress

(1) Section 13(4) and (5) of the Compulsory Purchase Act 1965 should be repealed without replacement.

(2) Section 29 of the Compulsory Purchase Act 1965 should be repealed without replacement.

(7) VESTING DECLARATION PROCEDURE

3.91     The vesting declaration is a relatively recent innovation, having been introduced by the Land Commission Act 1967, and presents few practical difficulties. In our Consultative Report on Procedure we expounded the view that there was no reason to amend the main features of the vesting declaration procedure. Indeed, the procedure would form an adequate basis for a future consolidation.^[75] There are, however, three respects in which improvement can be made. First, some clarification of the effect of a vesting declaration on existing rights is desirable. Secondly, it is difficult to identify what step in the vesting declaration procedure amounts to the "exercise" of compulsory purchase powers under section 4 of the Compulsory Purchase Act 1965 (an important point for the definition of time limits). Thirdly, some adjustment of the divided land procedure as it applies to vesting declarations would be beneficial. 3.92     In the course of this Report, we make recommendations for the reform of the vesting declaration procedure in its application to these discrete areas. These recommendations are to be found in other Parts of the Report where the particular issues are discussed in their proper place. We include an explanation of the vesting declaration procedure here, as it forms an essential component in understanding the current processes for implementing compulsory acquisition, but at this stage we do no more than sketch the difficulties we have identified.

Existing law

3.93     The Compulsory Purchase (Vesting Declarations) Act 1981 applies the same implementation procedure irrespective of the status of the acquiring authority (that is, whether or not the authority is a ministerial body).^[76]

Declaration procedure

3.94     Before a general vesting declaration may take effect, three steps must be taken. First, the authority must give "preliminary notice" of its intent to make a general vesting declaration, by including particulars in either the statutory notice of confirmation of the order,^[77] or a subsequent notice (published and served in the same manner as the notice of confirmation).^[78] The preliminary notice must be given before service of any notice to treat in respect of the land which is to be the subject of a declaration.^[79] The notice will invite potential claimants of compensation to provide their details. 3.95     Secondly, the general vesting declaration must be executed in prescribed form.^[80] The declaration:

(1) must not be executed before the CPO comes into operation;^[81]

(2) must not be executed before the end of the period of two months from first publication of the preliminary notice (or any longer period specified in the notice), unless "every occupier of the land specified in the declaration" gives written consent to earlier execution;^[82]

(3) vests the subject land in the acquiring authority on the expiry of the period to be specified in the declaration (which period must be not less than 28 days following service of notice of execution of the declaration).^[83] The "vesting date" is the first day following expiry of the specified period.^[84]

3.96     Thirdly, notice of execution of the vesting declaration (in prescribed form) must be served on "every occupier of any of the land" (except land in which there subsists a minor or expiring tenancy)^[85] specified in the declaration, and on every person who has supplied information in response to the preliminary notice.^[86]

Effect of declaration

3.97     On the vesting date, the provisions of the Land Compensation Act 1961 and the Compulsory Purchase Act 1965 are deemed to apply as if (on the date of execution) notice to treat had been served on every person on whom such notice could have been served, except those persons who have already been served with actual (rather than constructive) notice to treat or who are entitled only to a minor or expiring tenancy.^[87] 3.98     Title to the specified land "and all interests therein", and the right to take possession, are deemed to vest in the acquiring authority from the vesting date as if the authority was empowered to, and did, execute a deed poll under the Compulsory Purchase Act 1965.^[88] 3.99     If there subsists in land, specified in a vesting declaration, a "minor tenancy or a long tenancy which is about to expire",^[89] possession may only be taken after (i) serving notice to treat in respect of the tenancy; (ii) serving notice of entry (specifying a minimum of 14 days) on "every occupier of any of the land in which the tenancy subsists"; and (iii) awaiting expiry of the specified period.^[90] 3.100     The Compulsory Purchase (Vesting Declarations) Act 1981 makes special provision for the vesting of divided land.^[91]

Deficiencies

3.101     In our Consultative Report on Procedure we highlighted three possible deficiencies in the way in which the Compulsory Purchase (Vesting Declarations) Act 1981 works. 3.102     We noted the difficulties of its relationship with section 4 of the Compulsory Purchase Act 1965. In particular, it is doubtful what amounts to the "exercise" of compulsory purchase powers in the context of the vesting declaration procedure.^[92] This is an important question as powers have to be exercised within three years of the first notice date in order to keep a compulsory purchase order alive. We deal with this issue at Part 4(1) below and recommend that the defining moment should be the date of execution of the vesting declaration.^[93] 3.103     We drew attention to the differences between the notice to treat and vesting declaration procedures where acquisition of divided land was concerned, and provisionally proposed the adoption of a unified process.^[94] We discuss this at Part 7 below and recommend that there should be a single unified procedure applicable in such cases. ^[95] 3.104     We observed that it was not clear whether easements and other rights (such as restrictive covenants) are automatically extinguished or are merely overridden when the vesting declaration procedure is invoked.^[96] This is a complicated issue. Under the notice to treat procedure easements and other rights affecting the subject land are not automatically extinguished, but may be overridden when necessary on payment of compensation. We discuss this more fully at Part 8(1) below and recommend that, whether rights are interfered with by notice to treat or by vesting declaration, the effect should be the same.^[97] Rights should be presumed overridden unless, and until, the acquiring authority elects to extinguish. ^[98]

Consultation

3.105     We invited views of consultees on two issues: whether the vesting declaration procedure operates satisfactorily in practice and whether our original analysis of the operation of the procedure was correct in relation to easements and other rights over subject land.

Problems with the procedure

3.106     A number of respondents told us that they had not encountered any major problems with the vesting declaration procedure in practice. Interestingly, one respondent (the Highways Agency, which has significant experience of compulsory acquisition for road schemes) told us that they do not use the procedure because of its inflexibility. By reason of its "blanket" effect it may lead to unnecessary acquisition of title to temporary licence and dedication plots, and subsequently to the need to dispose of unwanted tranches of land. 3.107     A number of practical problems were raised by the respondents, which fall under two heads; delay and compensation.

Delay

3.108     The Law Society suggested that the divided land procedure (incorporating "notice of objection to severance") can have the effect of delaying the operation of the entire vesting declaration, and not simply the land that is the subject of the objection notice. RICS were concerned that difficulties can arise where there is delay between the authority taking possession and occupiers physically vacating and particularly concerning the question of where responsibility for effecting fire damage insurance cover lies.

Compensation

3.109     Although the vesting declaration route ensures swift and clean transfer of title to an acquiring authority (so that the authority can then deal with it as its own), there is no accelerated means of identifying compensation claimants. The absence of the option to pay into court may lead the acquiring authority unnecessarily to incur liability for interest from the deemed date of possession until payment to the correct claimant.

Interference with rights

3.110     Respondents accepted that the vesting declaration procedure is less than clear on this issue. All who responded on the point agreed that statutory clarification is warranted. We deal with these concerns in Part 8 below.

Recommendations for reform

3.111     We believe three reforms should be made:

(1) It should be made clear that execution of a vesting declaration (rather than service of a preliminary notice) is required to keep a compulsory purchase order alive within the three years' time limit for exercise of powers;^[99]

(2) The procedure applicable to divided land should be amalgamated;^[100] and

(3) New legislation should clarify the effect of vesting on existing rights in the subject land (under section 8 of the Compulsory Purchase (Vesting Declarations) Act 1981).^[101]

As we have already explained, our specific recommendations on these issues can be found elsewhere in this Report.

(8) LOCAL LAND CHARGE REGISTRATION

3.112     A potential purchaser, or any other person dealing with land (such as a mortgagee), has a justifiable interest in discovering whether the land in question is threatened by proposals for its compulsory acquisition. In our Consultative Report on Procedure we discussed the desirability of making certain steps in the process of compulsory purchase registrable on the register of local land charges. We consider here the reception accorded to our provisional proposals on this issue, and make recommendations accordingly.

Existing law

3.113     Registers of local land charges are maintained by "registering authorities".^[102] Responsibility for applying to register falls on the "originating authority", in most cases the authority by whom the charge is brought into existence or by whom it is enforceable.^[103] Where a registered charge is varied, or ceases to have effect, the register must be amended accordingly.^[104] 3.114     Certain stages in the process of compulsory purchase are registrable:

(1) Preliminary notice of a general vesting declaration;^[105]

(2) The right to claim compensation for injurious affection where no land is taken;^[106] and

(3) The liability to make an advance payment of compensation.^[107]

3.115     In addition, certain categories of CPO are required to be registered.^[108] There is, however, no statutory requirement to register the making or confirmation of a CPO, or any subsequent steps in the procedure other than those listed above. 3.116     Registration is generally deemed to constitute actual notice to all persons and for all purposes connected with the land affected, as from the date of registration. It does not follow that a failure to register affects the enforceability of the matter in question. Persons who, having carried out a personal or official search of the register, purchase land affected by an unregistered local land charge, may, however, claim compensation for consequential loss.^[109] 3.117     We explained in the Consultative Report on Procedure that acquiring authorities often, as a matter of good practice, informally note the making of a CPO, and the service of notice to treat and notice of entry, on the register. DLTR's Procedure Manual reads:

The making of the order should be registered as a local land charge, although this is not a statutory requirement. Registration should ensure that the existence of the compulsory purchase order is revealed to those making enquiries.^[110]

Deficiencies

3.118     In response to CPPRAG^[111], Government indicated that they thought this state of affairs inadequate and that, in the interests of improved openness, mandatory registration should apply to the "making, withdrawal, confirmation/decision to refuse to confirm or cancellation of an order."^[112] In our Consultative Report on Procedure we endorsed that view.^[113]

Provisional proposals

3.119     We considered that the key stages requiring registration in order to protect the potential purchaser were the making of the CPO and the commencement of its implementation, whether by service of notice to treat or by service of the preliminary notice of a vesting declaration.^[114] We therefore provisionally proposed that the making of the order and the service of notice of treat should become registrable as local land charges and that the service of the preliminary notice of a vesting declaration should remain so registrable.^[115] 3.120     We did not consider it necessary to make express provision for withdrawal or lapse of orders or notices, as the rules already deal with cancellation or variation of the local land charges register.^[116] Nor did we consider that any information other than the bare fact of the order being made, or the notice being served, should be the subject of registration.^[117] The function of registration is to alert the potential purchaser. Once that is done, he or she can pursue whatever enquiries are necessary to obtain the information required.

Consultation

3.121     A significant majority of consultees agreed with our view that the scope of local land charges registration should include additional stages in the process of compulsory purchase. The main reservation was how a balance could be achieved in practice between injecting greater certainty and not causing excessive delay (by making the steps dependant upon registration, or by making the process too cumbersome and costly). It was suggested that expansion of the local land charges regime should not be countenanced if it would have a deleterious effect on the operation of title registration (and more particularly electronic registration under the Land Registration Act 2002). 3.122     We have had fruitful discussions with HM Land Registry on this topic. They have helpfully indicated to us their view that the local land charges register is the appropriate machinery to achieve our objective of publicising the processes of compulsory purchase to any potential purchasers. In their view no advantage would be gained by requiring registration on the land register under the Land Registration Act 2002. 3.123     First, the Local Land Charges Rules place a continuing obligation on the relevant registrar to keep the register up-to-date. Secondly, the Land Registration Act 2002 provides that certain interests including local land charges will continue to bind the land and be protected, even though they are not reflected in the land register.^[118] Thirdly, if a notice had specifically to be entered on the land register, the authority would have to identify, and then apply against, all the separate titles affected (and possibly pay additional fees). Fourthly, some form of protection would be necessary for those cases where title to the subject land is not registered. 3.124     We are grateful for, and we accept, this advice. We have framed our recommendation to encompass the consequences of non-registration as a local land charge. We have also confirmed our earlier proposal that informal notes might be used so that interested persons may discover the current status of orders on search of the register.

Recommendation (10) – Local land charge registration

(1) The following should become registrable as local land charges for the purposes of the Local Land Charges Act 1975:

(a) making of the compulsory purchase order; and

(b) service of notice to treat in respect of any land under section 5 of the Compulsory Purchase Act 1965.

(2) Amendment of the register, to reflect withdrawal or lapse of the compulsory purchase order or of notices being varied or ceasing to have effect, should be governed by the Local Land Charges Rules.

(3) Failure to register as a local land charge should not invalidate the order or notice, but any person adversely affected by such failure should be entitled to claim compensation for consequential loss suffered in accordance with section 10 of the Local Land Charges Act 1975.

(4) To achieve consistency of approach, ODPM should provide authorities with guidance on the desirability of attaching informal notes to the register on the current status of an order and its state of implementation.

Note 1    The following explanation is taken from Law Com CP No 169, para 2.11.    [Back]

Note 2    Compulsory Purchase Act 1965, s 5(2)(c).    [Back]

Note 3    Law Com CP No 169, para 2.11(1).    [Back]

Note 4    Law Com CP No 169, para 2.11(2).    [Back]

Note 5    Policy Statement, App, para 2.28. The Department proposes to issue a circular to authorities containing “advice about when each [procedure] may provide the best course of action”: para 3.11.    [Back]

Note 6    See differing views in Tiverton, etc Rly v Loosemore (1884) 9 App Cas 480, 501 and in GWR v Swindon Rly (1884) 9 App Cas 787, 805 and 810 (under the corresponding provision in Lands Clauses Consolidation Act 1845, s 85).    [Back]

Note 7    See Law Com CP No 169, paras 5.4, 5.5.    [Back]

Note 8    As amended by the Planning and Compensation Act 1991, s 67.    [Back]

Note 9    See Law Com CP No 169, para 5.17.    [Back]

Note 10    An order will become operative on the date when notice of confirmation is first published (“the operative date”), subject to the power of the court to suspend operation pending resolution of a legal challenge: Acquisition of Land Act 1981, ss 24(1), 26(1).    [Back]

Note 11    Compulsory Purchase Act 1965, s 5(2)(c). This, as we pointed out, is a very incomplete description of the different heads of compensation available under the present code. For the various heads see our Final Report Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286, paras 2.9-2.21 and proposed Rule 2 (Basis of compensation).    [Back]

Note 12    Newham LBC v Benjamin [1968] 1 WLR 694.     [Back]

Note 13    See Part 8(2) on minor tenancies.    [Back]

Note 14    Part 4(1). We also deal with ODPM’s proposals for change which are, as yet, unimplemented.    [Back]

Note 15    Compulsory Purchase Act 1965, s 4.     [Back]

Note 16    Grice v Dudley Corporation [1958] Ch 329.    [Back]

Note 17    Compulsory Purchase Act 1965, s 5(2A). The events are agreement or payment of compensation, or referral of compensation to the Lands Tribunal for determination; execution of a general vesting declaration; or the authority taking possession of the subject land. The three-year period may also be extended by agreement between the parties: Compulsory Purchase Act 1965, s 5(2B), and see generally para 4.7 below.    [Back]

Note 18    Law Com CP No 169, paras 5.19-5.21.    [Back]

Note 19    Under the existing law those heads are: market value, severance and/or injurious affection, disturbance, equivalent reinstatement. Under our recommendations, the basis of compensation becomes: market value, injury to retained land (off-setting any betterment), consequential loss and equivalent reinstatement: see further Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286, para 2.21 (and proposed Rule 2) and Parts III and IV where the heads are described.    [Back]

Note 20    Law Com CP No 169, para 5.22, Proposal 6.    [Back]

Note 21    See now Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286, Part XII Rule 2 (basis of compensation).    [Back]

Note 22    Law Com CP No 169, para 5.20.    [Back]

Note 23    See ECHR, Articles 6 and 8, and Article 1 of the First Protocol.    [Back]

Note 24    See paras 8.44-8.46 below.    [Back]

Note 25    For example, those entitled to disturbance payments under the Land Compensation Act 1973, s 37.    [Back]

Note 26    See Compulsory Purchase Act 1965, s 30 (as substituted by the Acquisition of Land Act 1981, s 34(1), Sched 4) and the Acquisition of Land Act 1981, s 6 (as amended by the Planning and Compensation Act 1991, s 70, Sched 15, para 8 and by the Planning and Compulsory Purchase Act 2004, s 100(2)).    [Back]

Note 27    See Fagan v Knowsley MBC (1985) 50 P&CR 363, CA (brother as agent); R (Staley-Brookes) v Newark & Sherwood DC [2002] EWHC 1583 (Admin) (fax to solicitors).     [Back]

Note 28    Planning and Compulsory Purchase Act 2004, s 100.    [Back]

Note 29    See Part 8(2).    [Back]

Note 30    We discuss minor and expiring tenancies in more detail in Part 8(2) below.    [Back]

Note 31    Under the Compulsory Purchase (Vesting Declarations) Act 1981, s 3.    [Back]

Note 32    We understand that current practice of most acquiring authorities is to serve occupiers known to them.    [Back]

Note 33    See further, for procedures for dealing with mortgages and rentcharges, Part 8(3) below.    [Back]

Note 34    See Cooke v LCC [1911] 1 Ch 604.    [Back]

Note 35    These are explained in Part 8 below.    [Back]

Note 36    See Chilton v Telford Development Corpn [1987] 1 WLR 872 (CA) (where the salient provisions in the New Towns Act 1981, Sched 6, para 4 mirrored those which it replaced in the Compulsory Purchase Act 1965, s 11(1)). Purchas LJ said, at 879, “I adopt the construction which is favourable to the owner and the occupier of the land, because these sections, although incidentally dealing with calculation of compensation and interest, were primarily enacted for the protection of such a person.”    [Back]

Note 37    See Part 4(1), below, on time limits for validity: Compulsory Purchase Act 1965, s 4; Acquisition of Land Act 1981, s 26.     [Back]

Note 38    Compulsory Purchase Act 1965, s 5(2A)(c), unless compensation has been agreed or paid or referred to the Lands Tribunal, or a vesting declaration has been executed, within that second period.    [Back]

Note 39    Compulsory Purchase Act 1965, s 5(2B).    [Back]

Note 40    Burson v Wantage RDC (1974) 27 P&CR 556 (LT).    [Back]

Note 41    Interference with right of due process (Article 6), right to privacy (Article 8), and right to peaceful enjoyment of possessions (First Protocol, Article 1).     [Back]

Note 42    See Policy Response Document (ODPM, July 2002), para 12(iii), and Part 4(1), paras 4.10-4.13 on time limits below.    [Back]

Note 43    Para 3.14 above; Recommendation 4(2).    [Back]

Note 44    We adopted the Government’s time limit proposals elsewhere in our Report: see Law Com CP No 169 paras 5.14, 5.15 and Proposal 5. Government is minded to increase certainty in the process for affected parties by increasing the period from notice of entry to taking possession from the current minimum of fourteen days to a fixed period of two months, with an absolute requirement that if the authority has not taken possession within one month of the expiry date, the notice will cease to have effect (and will not be capable of re-service): see Policy Response Document (ODPM, July 2002), para 12(iii).    [Back]

Note 45    Law Com CP No 169, para 5.28, Consultation issue (I).    [Back]

Note 46    Compulsory Purchase Act 1965, s 11(1), Land Compensation Act 1961, s 32.    [Back]

Note 47    Land Compensation Act 1973, s 52, as amended by Planning and Compulsory Purchase Act 2004, s 104.    [Back]

Note 48    In Law Com CP No 169 at Proposal 5(4) (time limits) we suggested that notice of entry would become effective two months after service and then remain valid for a further month during which possession could be taken (failing which, it would expire for good).    [Back]

Note 49    We consider this issue in Part 3(8) below. Our conclusion is that it is not currently necessary to register notice of entry.     [Back]

Note 50    We discuss the obligation to complete purchase in Part 5(2) below.    [Back]

Note 51    Six weeks: see Land Compensation Act 1961, s 31(1). This would have to be made subject to the proviso, though, that possession could not already have been taken (reversing R v Northumbrian Water Ltd, ex p Able UK Ltd (1996) 72 P&CR 95: see Part 9, para 9.22 below).    [Back]

Note 52    Compulsory Purchase (Vesting Declarations) Act 1981, s 8.    [Back]

Note 53    Ibid, s 10.    [Back]

Note 54    Acquisition of Land Act 1981, s 11(3), as substituted by Planning and Compulsory Purchase Act 2004, s 100(4); Acquisition of Land Act 1981, s15(1), (2), as substituted by Planning and Compulsory Purchase Act 2004, s 100(7).    [Back]

Note 55    Para 3.28, Recommendation 5(1) above.    [Back]

Note 56    That is with a lack of honest belief that the conditions precedent have been fulfilled: Steele v Midland Railway (1869) 21 LT 387.    [Back]

Note 57    That sum, plus the amount of any damage, is recoverable “summarily as a civil debt” in the magistrates’ court (with appeal against forfeiture to the Crown Court).    [Back]

Note 58    Compulsory Purchase Act 1965, s 12(6).    [Back]

Note 59    See Law Com CP No 169, para 7.22.    [Back]

Note 60    They suggested that the figure should be uprated to £1,000.    [Back]

Note 61    Compulsory Purchase Act 1965, s 13(2).    [Back]

Note 62    Compulsory Purchase Act 1965, s 13(3).    [Back]

Note 63    Compulsory Purchase Act 1965, s 13(4).    [Back]

Note 64    Law Com CP No 169, para 7.29. The Government’s proposals were set out in their Green Paper “Towards effective enforcement” (LCD, July 2001); and then in the Responses to Consultation document (April 2002).    [Back]

Note 65    Courts Act 2003, s 99, Sched 7. The provisions came into force on 15 March 2004.    [Back]

Note 66    Law Com CP No 169, para 7.28, referring to R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295.    [Back]

Note 67    Law Com CP No 169, para 7.28.    [Back]

Note 68    Law Com CP No 169, para 7.28, Proposal 13(2), (3).    [Back]

Note 69    Law Com CP No 169, para 7.28, Proposal 13(1).    [Back]

Note 70    Law Com CP No 169, Consultation issue (V)(1).    [Back]

Note 71    We also recommend below, in Recommendation 9, that Compulsory Purchase Act 1965, s 13(4),(5) should be repealed.    [Back]

Note 72    Law Com CP No 169, para 7.31, Proposal 14, Consultation issue (W).    [Back]

Note 73    Section 29(2) of the 1965 Act, the only other subsection, has already been repealed by the Statute Law (Repeals) Act 1974.    [Back]

Note 74    See Recommendation 8(2) above.    [Back]

Note 75    Law Com CP No 169, paras 5.47-5.51.    [Back]

Note 76    Compulsory Purchase (Vesting Declarations) Act 1981, s 1.    [Back]

Note 77    Published or served under the Acquisition of Land Act 1981, s 15 (as now substituted by the Planning and Compulsory Purchase Act 2004, s 100(7)): see Compulsory Purchase (Vesting Declarations) Act 1981, s 3(5).    [Back]

Note 78    Compulsory Purchase (Vesting Declarations) Act 1981, s 3. The preliminary notice must include the prescribed particulars: ibid, s3(1), (3), and see the Compulsory Purchase of Land (Vesting Declarations) Regulations 1990 (the “1990 Regulations”), reg 3(b) and Sched, Form 2 Pt 1 (statement of effect of the Compulsory Purchase (Vesting Declarations) Act 1981, Parts II and III).    [Back]

Note 79    Compulsory Purchase (Vesting Declarations) Act 1981, s 3(2).    [Back]

Note 80    Compulsory Purchase (Vesting Declarations) Act 1981, s 4(1), and see the 1990 Regulations, reg 3(a) and Sched, Form 1 (form of general vesting declaration).    [Back]

Note 81    Compulsory Purchase (Vesting Declarations) Act 1981, s 5(2). See para 3.16(1) above.    [Back]

Note 82    Compulsory Purchase (Vesting Declarations) Act 1981, s 5(1).    [Back]

Note 83    Compulsory Purchase (Vesting Declarations) Act 1981, s 8. Notice of execution is served under the Compulsory Purchase (Vesting Declarations) Act 1981, s 6.     [Back]

Note 84    Compulsory Purchase (Vesting Declarations) Act 1981, ss 2(1), 4(3).    [Back]

Note 85    We discuss minor and expiring tenancies in Part 8(2) below.     [Back]

Note 86    Compulsory Purchase (Vesting Declarations) Act 1981, s 6 and see 1990 Regulations, reg 3(c) and Sched, Form 3 (notice specifying land and stating effect of vesting declaration).    [Back]

Note 87    Compulsory Purchase (Vesting Declarations) Act 1981, s 7(1). It shall be assumed that the acquiring authority required to take the whole of the land specified in the declaration, and that it had knowledge of all the parties referred to in Compulsory Purchase Act 1965, s 5: ibid., s 7(2).    [Back]

Note 88    Compulsory Purchase (Vesting Declarations) Act 1981, s 8(1),(2). Deed polls are executable under the Compulsory Purchase Act 1965, s 9 and Sched 2, in accordance with s 28.    [Back]

Note 89    “Minor tenancy” is defined in the Compulsory Purchase (Vesting Declarations) Act 1981, s 2(1), and “long tenancy which is about to expire” is defined in s 2(1),(2). See Part 8(2) below.    [Back]

Note 90    Compulsory Purchase (Vesting Declarations) Act 1981, s 9.    [Back]

Note 91    Compulsory Purchase (Vesting Declarations) Act 1981, s 12, Sched 1. We discuss these provisions in Part 7 below.    [Back]

Note 92    Law Com CP No 169, paras 5.9-5.11.    [Back]

Note 93    See para 4.35, Recommendation 11(4).    [Back]

Note 94    Law Com CP No 169, paras 6.34, 6.49.    [Back]

Note 95    See para 7.28, Recommendation 21(1).    [Back]

Note 96    Law Com CP No 169, para 5.50.    [Back]

Note 97    See para 8.30 below. Recommendation 22 is designed to be a unified procedure.    [Back]

Note 98    See para 8.35, Recommendation 22(1).    [Back]

Note 99    Compulsory Purchase Act 1965, s 4. See our discussion below on time limits for validity in Part 4(1) and, more particularly on vesting declarations, paras 4.6, 4.16 and 4.35 and Recommendation 11(3).    [Back]

Note 100    See below at para 7.28 and Recommendation 21 relating to a unified procedure for divided land.    [Back]

Note 101    See below at paras 8.8, 8.30 and Recommendation 22 relating to interference with existing private rights.    [Back]

Note 102    Local Land Charges Act 1975, s 3.    [Back]

Note 103    Local Land Charges Act 1975, s 5.    [Back]

Note 104    Local Land Charges Rules 1977, r 8.    [Back]

Note 105    Compulsory Purchase (Vesting Declarations) Act 1981, s 3(4). Execution of the vesting declaration is not, however, registrable.    [Back]

Note 106    Land Compensation Act 1973, s 8(4), (4A).    [Back]

Note 107    Land Compensation Act 1973, s 52(8), (8A).     [Back]

Note 108    See the Opencast Coal Act 1958, s 11; the New Towns Act 1981, s 12.    [Back]

Note 109    Local Land Charges Act 1975, s 10(1). Compensation is payable by the registering authority, but may be recoverable from the originating authority.    [Back]

Note 110    DTLR Compulsory Purchase Procedure Manual (TSO, November 2001) Part V, Section B (Drafting and Making the Order), para 57.    [Back]

Note 111    See “Fundamental review of the laws and procedures relating to compulsory purchase and compensation” (DETR, July 2000).    [Back]

Note 112    See DTLR Policy Statement, para 3.9 and App, para 2.23.    [Back]

Note 113    Law Com CP No 169, para 7.52.    [Back]

Note 114    Law Com CP No 169, paras 7.52-7.54.    [Back]

Note 115    Law Com CP No 169, Proposal 17.    [Back]

Note 116    Law Com CP No 169, para 7.52.    [Back]

Note 117    Law Com CP No 169, para 7.53.    [Back]

Note 118    Land Registration Act 2002, ss 11, 12, 29, 30 and Scheds 1 and 3.    [Back]