The Law Commission

PART 7

DIVIDED LAND

7.1     Where part of land, which may or may not include buildings, is subject to compulsory purchase, the owner may in certain circumstances compel the acquiring authority to take the whole. In this Part, we consider the existing statutory provisions, setting out the proposals for reform made by CPPRAG in its Final Report,^[1] and the response of Government to those proposals. We then explain our own provisional proposals and the reception accorded to them in the consultation process. Finally, we make recommendations for reform of the law.

Existing Law

7.2     The present law is to be found in several statutes, according to the subject matter of the acquisition (for example, whether the land includes buildings, and whether it is agricultural) and to the method of acquisition (notice to treat or vesting declaration) employed. Coverage is not comprehensive: there are certain circumstances falling entirely outside the statutory provisions. 7.3     These sources can be summarised as follows:

(1) Division of buildings by notice to treat: section 8(1) of the Compulsory Purchase Act 1965.

(2) Division of buildings by vesting declaration: section 12 of, and Schedule 1 to, the Compulsory Purchase (Vesting Declarations) Act 1981.

(3) Division of land appurtenant to a building by notice to treat: section 8(1) of the Compulsory Purchase Act 1965.

(4) Division of land appurtenant to a building by vesting declaration: section 12 of, and Schedule 1 to, the Compulsory Purchase (Vesting Declarations) Act 1981.

(5) Division of agricultural land by notice to treat: sections 53 to 57 of the Land Compensation Act 1973.

(6) Division of agricultural land by vesting declaration: section 53(5) of the Land Compensation Act 1973 and section 7 of the Compulsory Purchase (Vesting Declarations) Act 1981.

(7) Division of other land (being non-appurtenant and non-agricultural) by notice to treat: limited provision in section 8(2) of the Compulsory Purchase Act 1965.

(8) Division of other land (being non-appurtenant and non-agricultural) by vesting declaration: no statutory provision.

7.4     In our Consultative Report on Procedure we included an outline of the existing law on how buildings and other land are treated when divided under both the notice to treat and the vesting declaration procedures.^[2] In particular, we drew attention to two important differences between the two procedures.^[3] Unlike the Compulsory Purchase Act 1965 (dealing with notices to treat), the Compulsory Purchase (Vesting Declarations) Act 1981:

(1) gives the Lands Tribunal power to consider the extent of the owner's land that the authority should acquire, and to substitute for the whole of the land a smaller area, including the portion which was proposed to be severed;^[4]

(2) provides a normal limit for service of the owner's notice (28 days from the notice of the declaration^[5]), and a limit of three months within which the authority must respond by withdrawing, agreeing or referring the matter to the Lands Tribunal.^[6]

7.5     The division of agricultural land is governed by sections 53 to 57 of the Land Compensation Act 1973. These provisions apply to acquisitions by notice to treat or by vesting declaration.^[7] We made clear in our Consultative Report on Procedure that we believed that these provisions, although complex, comprise a relatively modern procedure and that there was not an obvious case for altering it.^[8] Our view on these provisions remains unchanged.

Deficiencies

7.6     We consider the principal criticisms of the current law to be as follows:

(1) Three separate and different statutory procedures operate today, distinguished by the type of landholding and by the form of acquisition.

(2) Not only is the language archaic, but it is employed inconsistently across the procedures. It should, we believe, distinguish simply between acquisition of part of a building (or its attached land) and acquisition of part of any other land.

(3) Although there is provision for counter-notice in all circumstances where a claimant wishes the authority to acquire the whole and not part of the land, it is not spelt out that counter-notice should be in writing.

(4) There is no consistent set of time limits for service of counter-notice.

(5) Under each of the existing three procedures, the claimant is defined differently. There should be a single definition of the class of those entitled to claim.

(6) The rules relating to treatment of small parcels of remaining land, and the provision of accommodation works,^[9] set out in subsections 8(2) and (3) of the Compulsory Purchase Act 1965, should be repealed or at least updated.^[10]

Provisional proposals

7.7     Our central proposal in the Consultative Report on Procedure was to rationalise and simplify the existing legislation. In particular, we proposed a single unified procedure whether the compulsory purchase was being implemented by notice to treat or vesting declaration. That procedure would be modelled upon the provisions of the more modern Compulsory Purchase (Vesting Declarations) Act 1981.^[11] 7.8     We proposed that the archaic terminology (such as "house, building or manufactory") should be replaced, and that the procedure be made available whenever part of any building, or of any land attached to and used with a building, is being compulsorily acquired. The procedure would provide for service of a written counter-notice (which we termed a "divided property notice") within a prescribed time limit. Appeal would lie to the Lands Tribunal. 7.9     We considered, and provisionally rejected, the proposal contained in the Government's Policy Statement to remove any restriction on the type of landowner able to demand the compulsory purchase by the authority of their remaining land and to require only that the claimant prove that the part acquisition would have a materially detrimental effect on the value of that remaining land. Our provisional view was that such a provision would be too wide.^[12] 7.10     We proposed that the Lands Tribunal should be empowered to determine (on a reference by the authority following the claimant's service of a counter-notice invoking the procedure):

(1) that in the case of a building, the part proposed to be acquired can be taken without material detriment to the building or its use; or

(2) in the case of land attached to a building, the part proposed to be acquired can be taken without seriously affecting the amenity or use of the building.

In the event of such a determination by the Lands Tribunal, the acquiring authority would not be obliged to acquire the remainder of the claimant's land.

7.11     We took the provisional view that the "material detriment" test should be preserved insofar as it related to buildings and land held with buildings. These holdings are in a special category because of the direct impact the taking would have on the activities of the owner. Although CPPRAG in its Final Report had criticised the material detriment test for its subjectivity,^[13] we indicated that we believed that it should stand for two reasons:

(1) It would be difficult to define more precise criteria without unduly limiting the scope of the protection;^[14] and

(2) Subjective issues do have some part to play in the final decision as to valuation.^[15]

7.12     Government, in its Policy Statement, adopted a line that did not seem to run counter to that approach. It said that it could:

see no reason for any restriction on the type of landowner able to require an acquiring authority to acquire the whole of his landholding so long as he can demonstrate that taking only a part would have a materially detrimental effect on the value of the remainder.^[16]

By "value" DTLR meant that the retained land would be less useful in some significant degree. The Department said that this approach:

would also reinforce the need to establish objective criteria for determining whether or not taking only part of the landholding would be detrimental. This would be necessary both in order to ensure that the provision could be applied fairly between different acquiring authorities and to minimise the number of referrals to the Lands Tribunal.^[17]

We agree.

7.13     We did feel, however, that holdings that are not linked to buildings - ordinary open land and agricultural land - should not be subject to the same test because that would place an undue burden on an acquiring authority to have to acquire land which it does not need. Any "material detriment" can adequately be redressed by compensation for injurious affection.^[18] Non-agricultural open land is presently not catered for in legislation, but there is no obvious public policy reason why it should be omitted. We felt that there would be logic in adopting (and adapting) the "not reasonably capable of being farmed" formula, substituting "used" for "farmed". As with the Land Compensation Act 1973, which preserves the special provision for agricultural occupiers with lesser interests,^[19] there would be a similar provision limiting the right to those who hold at least a "minor tenancy".^[20] The net result would be that all forms of open land would then be subject to the "not reasonably capable" test. This would perpetuate and consolidate the distinction Parliament saw appropriate to draw in 1973. 7.14     The broader policy question that flowed from this was the extent to which the right to serve counter-notice and to invoke the procedure should be limited to those with relatively substantial interests in the land. We asked therefore, in general terms, whether the right to serve a divided property notice should apply to all categories of land in cases where the owner's retained land (or any part of it) is no longer reasonably capable of being used for the purpose for which he was using it at the time of the notice of acquisition.^[21] 7.15     The remaining issue was how to deal with particularly small parcels of remaining land. These are currently governed by subsections 8(2) and (3) of the Compulsory Purchase Act 1965. We proposed, subject to the views of consultees, that these provisions should simply be repealed.^[22]

Consultation

Unified procedure

7.16     We asked whether it would be right to apply a unified procedure to both notice to treat and vesting declarations and, if so, whether the mechanism of the Compulsory Purchase (Vesting Declarations) Act 1981 might be taken as the model. 7.17     There was unanimity amongst those consultees who responded on this issue that there should be a single unified procedure, and that the separate provisions should be rationalised. There was slight dissent^[23] about using the Vesting Declarations Act as the model. For example, it was suggested that the "notice of objection to severance" mechanism^[24] can have the effect of delaying the operation of the whole declaration (where it encompasses several parcels of land) and not merely the part subject to the notice. It does not seem to us, however, that this is necessarily the case. Indeed the 1981 Act provides that the interest in respect of which a properly served notice of objection to severance is served shall not vest in the acquiring authority, and the acquiring authority shall not be entitled to possession, until the notice is disposed of.^[25] This indicates that despite service of the notice of objection, the remainder of the land being acquired does vest, and possession can accordingly be taken.^[26] 7.18     The suggestion was also made by one consultee that the further procedure contained in the Transport and Works (Model Clauses for Railways and Tramways) Order^[27] should be included in the unification exercise. We have not considered this in detail because the Transport and Works Act 1992 fell outside our original terms of reference.^[28]

Material detriment

7.19     The proposal to widen the range of interest-holders who could serve counter-notice where buildings are not affected similarly produced a significant measure of consensus amongst consultees. In the Consultative Report on Procedure we indicated that complete removal of any restriction on the type of landowner able to require an acquiring authority to acquire the whole of his landholding in these circumstances, subject only to an "impact on value" test (as suggested by Government^[29]), was undesirable. In many cases, we said, an undue burden would be placed on an authority by requiring it to acquire land it does not need. Instead, compensation for injurious affection should be sufficient to redress any material detriment. 7.20     We provisionally proposed that, for land not used with buildings, service of a notice should be limited to "the owner of any interest in the subject land (greater than a tenancy from year to year)" and that it should be available only where the retained land (or part of that land) is "no longer reasonably capable of being used for the purpose for which [the owner] was using it at the time of the notice of acquisition."^[30] 7.21     Two interesting suggestions were advanced by consultees. First, that a statutory test should be incorporated into the "reasonable capability" formula, such as whether the duration and physical effect of the construction works would adversely affect use, or whether costs associated with carrying on the business on the retained land only (such as non-diminishing overheads) would cease to make it viable. Without some qualification, it was said, the formula could be too open-ended. It would benefit from clarification. Secondly, and as a substantive matter, it was suggested that the formula should relate to the value of the retained land and not to its use. 7.22     In the Consultative Report on Procedure we drew attention to the Lands Tribunal decision in Johnson v North Yorkshire CC^[31] on the factors to be taken into account when determining the issue of "not reasonably capable of being farmed ... as a separate agricultural unit". There, the Lands Tribunal held that the nature and effect of the acquiring authority's proposed use on the remaining land are relevant, but that a claimant's financial arrangements (such as the impact of proposed usage on land value and adequacy of security for a mortgage) are not. The Lands Tribunal indicated that, up to that point, there appeared to be no judicial decision which threw any light on the meaning of the phrase.^[32] That still appears to be the case. Although we have no evidence of this decision causing practical difficulty to practitioners or to claimants, we are concerned that just as (in the context of compensation) all true losses suffered by a claimant should be recoverable, so too all true adverse effects should be taken into account in assessing whether an authority should be to acquire the whole of the landholding. 7.23     We should emphasise that our simple objective is to give expression to principles designed to inform new legislation, not to draft the detail of that legislation. We do not believe that the formula we have proposed needs to be constrained, nor that its focus should be different from that presently used in the context of section 53 of the Land Compensation Act 1973 (agricultural land). The present provisions speak of the land being "farmed" (in other words, the current use of the land and not its value) and they do not seek to lay down criteria for deciding whether reasonable capability has been shown, other than that the test is an objective one. We see no reason to depart from this approach. As we have stated above, we do not intend that the existing arrangements relating to agricultural land (and agricultural tenancies) should be altered. We believe there is benefit in consistency of approach.

Small parcels of land

7.24     We suggested in the Consultative Report on Procedure that the provisions of subsections 8(2), (3) of the Compulsory Purchase Act 1965 relating to small parcels of separated land could be dispensed with. The Highways Agency agreed with us that section 8(2) could be repealed because it is now covered by sections 53 to 57 of the Land Compensation Act 1973, although the time limits in our proposal and those in the 1973 Act may need to be brought into line. The Agency was not, however, comfortable with repeal of section 8(3) because the provision protects an acquiring authority in instances where the cost of provision of access or accommodation works would exceed the cost of acquiring the separated land. 7.25     We accept that section 8(3) of the Compulsory Purchase Act 1965 can provide benefit to the public purse in such circumstances and we now recommend that it should be retained. We believe, however, that its terminology could be usefully modernised.

Default mechanism

7.26     In framing our proposal for divided land, we constructed a default mechanism whereby (following service of a counter-notice) failure to withdraw notice to treat, or to serve notice to acquire the whole or to refer the matter to the Lands Tribunal within the prescribed period would lead automatically to deemed withdrawal of the notice to treat (or deemed notice to treat where a vesting declaration had been executed).^[33] We based this approach on the present arrangements in section 12 of and Schedule 1, paragraph 4 to the Compulsory Purchase (Vesting Declarations) Act 1981. 7.27     We are conscious that, in the same proposal, we then sought to provide that where reference to the Lands Tribunal did not occur within the prescribed period, the whole of the property would be deemed to be included in the notice to treat or declaration. That second provision was inconsistent. We have now concluded that it would be preferable, and would more effectively focus an acquiring authority's mind if, in the event of such default, the authority is deemed to have served notice of intention to acquire the whole. We provide for this in our recommendations.

Recommendations for reform

Simple procedure

7.28     We recommend that there should be a single procedure, applicable irrespective of whether the compulsory purchase is implemented by notice to treat or by vesting declaration, whereby an affected landowner can require the acquiring authority to purchase land which does not form part of that described in the compulsory purchase order (the "subject land").

Land with building

7.29     Where the subject land forms part only of any building, or of any land attached to and used with a building, the owner of an interest (being greater than a minor tenancy^[34]) in that land should be entitled to require the authority to take the whole. The procedure should be invoked by service of a notice (a "divided property notice") by the claimant on the acquiring authority within a specified time of the notice of acquisition.^[35] 7.30     If the claimant fails to prove to the satisfaction of the Lands Tribunal that the part proposed to be acquired can be taken:

(1) in the case of a building, without material detriment to the building or its use; or

(2) in the case of land attached to a building, without seriously affecting the amenity or use of the building;

the claimant will not be entitled to require the taking of the whole.^[36]

Land without building

7.31     Where the authority seeks to acquire land which (a) does not comprise part of a building (and is not attached to and used with a building), and (b) is not agricultural land, and the land being acquired is held with other land,^[37] then the owner of an interest in that land (being greater than a minor tenancy^[38]) should be entitled to require the authority to take the whole (using the "divided property notice" procedure). 7.32     If the claimant fails to prove that taking the part proposed to be acquired will render the retained land not reasonably capable of being used for its current purpose, the claimant will not be able to require the taking of the whole.^[39]

Mechanics of a divided property notice

form of notice

7.33     We have already provisionally proposed that it should be made clear that the divided property notice should be in writing. It seems to us, on further consideration, that the form of the notice should be prescribed. This would ensure consistency of practice, and it would enable the ODPM, or whichever government department has responsibility for compulsory purchase at the relevant time, to police the effective operation of the divided land procedure. It would, for instance, be extremely sensible for rules to require that the claimant specified in sufficient detail the additional land which he or she claimed should be acquired pursuant to the procedure.

time limit

7.34     Presently the law is ambivalent about time limits for service of a counter-notice by a landowner. Section 8(1) of the Compulsory Purchase Act 1965 prescribes no time limit (nor even provides for written notice); Schedule 1, paragraph 2, to the Compulsory Purchase (Vesting Declarations) Act 1981 stipulates that in ordinary circumstances notice of objection to severance must be served within 28 days of service of the notice of execution;^[40] and section 53(1) of the Land Compensation Act 1973 requires service within two months of notice to treat. In our Consultative Report on Procedure we suggested that a time limit of 28 days should be given for service of a divided property notice, and that the authority should have three months within which to respond.^[41] 7.35     Given that we are not minded to recommend amendment of the provisions in the Land Compensation Act 1973, we believe that there should either be a 28 days' time limit for service, or power conferred on the Secretary of State to prescribe a time limit in regulations.^[42] In any event, regulations should prescribe the information to be given to potential claimants, when the notice of acquisition is served, concerning the effect of such notice and the options available to the claimant. We deal below with the issue of response time.

authority's response

7.36     On receipt of a divided property notice, the authority may take one of three routes.^[43] Where it opts to withdraw the notice of acquisition, we believe that the claimant should have the right to claim compensation for abortive losses and expenses incurred^[44] and the authority should forfeit the right (except with agreement of the claimant) to serve a further notice if the time limit contained in section 4 of the Compulsory Purchase Act 1965 is still running. 7.37     Where an authority serves notice of intention to acquire the whole, specific provision will need to be made for the notice to treat to be varied accordingly.^[45]

withdrawal

7.38     Unlike the Land Compensation Act 1973,^[46] section 8 of the Compulsory Purchase Act 1965 and Schedule 1 to the Compulsory Purchase (Vesting Declarations) Act 1981 are silent as to the power of a claimant to withdraw the counter-notice. We believe this should be rectified. Any notice to treat deemed to have been served in consequence of the counter-notice will then be deemed withdrawn. It may be that the six weeks' limit for withdrawal (from compensation determination) in the 1973 Act could usefully be replicated in the unified procedure.

default

7.39     The Compulsory Purchase (Vesting Declarations) Act 1981 provides a default mechanism. If an authority fails to take one of the steps set out in Schedule 1 paragraph 4 to that Act within the statutory period, at the end of that period it is deemed to have served notice withdrawing the deemed notice to treat.^[47] The Compulsory Purchase Act 1965 contains nothing on these lines. We believe the deemed consequence is a useful default mechanism that should be incorporated in a new unified procedure. However, we consider that an authority would be better encouraged to act if it were at risk of being deemed to have served notice to take the whole (and to pay compensation on that basis). We recommend this approach. 7.40     The default time limit in the Compulsory Purchase (Vesting Declarations) Act 1981 is three months. That is longer than the two months in the Land Compensation Act 1973. In the interests of expedition and greater consistency, we recommend the shorter time limit here.

Eligibility of claimant

7.41     As we indicate above, consultees favoured our proposal to widen the range of interest-holders who could serve counter-notice. 7.42     In our Consultative Report on Procedure we suggested that it might be appropriate to limit the general right to those who have more than a "minor tenancy" (being a tenancy for a year or from year-to–year or a lesser interest), but it would be necessary to preserve the special provision in section 55 of the Land Compensation Act 1973 Act for agricultural occupiers with lesser interests. 7.43     Presently section 9(1) of the Compulsory Purchase (Vesting Declarations) Act 1981 makes special provision for land in which "there subsists a minor tenancy or a long tenancy which is about to expire". Both "minor tenancy" and "long tenancy which is about to expire" are defined in subsections 2(1) and (2). The right to enter only operates where notice to treat has been served on the tenant, and notice of entry has been served on "every occupier of any of the land in which the tenancy subsists". 7.44     Our recommendation would perpetuate the distinction between minor and more substantial interests, irrespective of whether the acquisition is by notice to treat or by vesting declaration, and of whether it involves built-upon or undeveloped land. This would have the effect of repeating the arrangement in the Compulsory Purchase (Vesting Declarations) Act 1981 and the Compulsory Purchase Act 1965 so that notice to treat would not be given automatically to minor tenants, but would be given to such tenants before entry could be effected.^[48] Notice of entry would then be given to all occupiers. 7.45     In Newham LBC v Benjamin two judges in the Court of Appeal indicated that service of notice to treat in the case of "short tenancies", although not a necessity, was a useful practice,^[49] and that there was no incongruity between service of notice to treat and the procedure under section 20 of the 1965 Act (which is a proviso mechanism).^[50] Our recommendation does not seek to elevate this practice into a legislative requirement for the reasons discussed in relation to minor tenancies in Part 8 below.^[51]

Lands Tribunal

7.46     The Lands Tribunal should continue to have jurisdiction to determine, on a reference by the acquiring authority, whether there has been material detriment, serious effect on amenity or use and lack of reasonable capability of use for previous purpose. 7.47     Under our recommendation different tests will be applied by the Lands Tribunal when determining the validity of a "divided property notice".^[52] Those tests would turn on whether:

(1) a building is to be divided, or

(2) land attached to and used with a building is to be divided; or

(3) other land (not being used as agricultural land) is to be divided.

7.48     The criteria for (1) and (2) reflect those presently used in section 8(1) of the Compulsory Purchase Act 1965, although we think it sensible to add reference to "use" in (2). The test for (3) will reflect the approach used in the Land Compensation Act 1973, again employing the concept of the "use" of the land. 7.49     CAAV suggested that the formula should make clear that the "use" of the land or building refers to use by the claimant: in other words, a subjective rather than an objective use. It was said to us that the test should follow that which we have suggested for compensation for replacement buildings on severance.^[53] We believe that our recommendation (below) relating to "other" non-agricultural land is framed in such a way that the "use" will reflect the use being made of the particular piece of land. 7.50     When applying each of the different tests, the Lands Tribunal should be required to take into account:

(1) the effect of the taking of part;

(2) the use to be made of the part proposed to be acquired; and

(3) in a case where the part is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use to be made of the other land.

This approach (which we incorporate in our recommendation) mirrors subsection 58 (1) of the 1973 Act, which applied to subsection 8(1) of the 1965 Act, and to Schedule 1, paragraph 8(2) to the Compulsory Purchase (Vesting Declarations) Act 1981.

Unexpired tenancies

7.51     Where part only of land comprised in a lease or tenancy "for a term of years unexpired" is acquired, rent is apportioned between the acquired land and the retained land. That apportionment may be effected by agreement or by determination of the Lands Tribunal.^[54][55] 7.52     In the Consultative Report on Procedure we proposed that these provisions would continue to apply without need for substantive amendment. No consultee suggested that this was wrong.

Agricultural land

7.53     The provisions in sections 53 to 57 of the Land Compensation Act 1973 would continue to apply.

Small parcels of land

7.54     The provisions in section 8(3) of the Compulsory Purchase Act 1965 would continue to apply subject to necessary updating. Section 8(2) of the 1965 Act should be repealed.

Recommendation (21) – Divided land (unified procedure)

(1) There should be a single procedure whereby a person holding an interest in land which is subject to compulsory purchase by an acquiring authority can require the authority to take other land held by him which does not form the subject of the compulsory purchase. This "divided land procedure" is as described in this recommendation.

(2) If the land specified in a "notice of acquisition" (the subject land) comprises part: (a) of any building, (b) of any land attached to and used with a building, or (c) of any other land (not being agricultural land), any person who owns an interest in the land (being greater than as tenant for a year or from year-to-year and not being a long tenancy about to expire), may serve on the acquiring authority a "divided property notice" requiring the authority to purchase his interest in the whole.

(3) A divided property notice, which shall be in writing and in prescribed form, shall specify the land that the claimant requires to be purchased by the acquiring authority and shall be served by a claimant within 28 days of service of the notice of acquisition.

(4) Where a divided property notice has been served, the authority may, within two months of service:

(a) serve notice of withdrawal of the notice of acquisition;

(b) serve notice to acquire the whole of the land; or

(c) refer the matter to the Lands Tribunal for determination.

(5) If the authority fails to take any such action within two months of service, it shall be deemed to have served notice to acquire the whole of the land.

(6) A claimant who has served a divided property notice may withdraw that notice at any time before compensation under it has been agreed or determined.

(7) The Lands Tribunal, on a reference, shall determine whether:

(a) in the case of a building, the part proposed to be acquired can or cannot be taken without material detriment to the building or its use;

(b) in the case of land attached to a building, the part proposed to be acquired can or cannot be taken without seriously affecting the amenity or use of the building;

(c) in the case of other land (not being agricultural land), the part proposed to be acquired can or cannot be taken without the retained land, or any part of it, being made not reasonably capable of use for the purpose for which it was used at the time of service of the notice of acquisition.

The burden of proof shall lie with the person serving the divided property notice.

(8) In determining any such reference, the Lands Tribunal shall:

(a) take into account not only the effect of the taking of part but also the use to be made of that part and, in a case where the part is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use to be made of the other land; and

(b) determine the area of the property which the acquiring authority ought to be required to take (and the notice to treat or vesting declaration shall be construed accordingly).

(9) Sections 53 to 57 of the Land Compensation Act 1973 (agricultural land) should continue to apply insofar as they are not affected by the above provisions.

(10) Sections 8(3) (small parcels) and 19 (apportionment of rent) of the Compulsory Purchase Act 1965 should continue to apply in updated form.

(11) Section 8(2) of the Compulsory Purchase Act 1965 should be repealed.

Note 1    See Fundamental review of the laws and procedures relating to compulsory purchase and compensation Final Report (DETR, July 2000).    [Back]

Note 2       [Back]

Note 3    See Law Com CP No 169, Part VI(2) paras 6.28-6.41.    [Back]

Note 4    See Law Com CP No 169, para 6.34.    [Back]

Note 5    Compulsory Purchase (Vesting Declarations) Act, s 12 and Sched 1, para 9.    [Back]

Note 6    Ibid, Sched 1, para 2. There is provision for extension of time if notice of the declaration was not received: para 10.    [Back]

Note 7    Ibid, Sched 1, para 4. If the authority fails to respond within three months they are treated as having withdrawn from the purchase: para 5.    [Back]

Note 8    Land Compensation Act 1973, s 53(1), (5).    [Back]

Note 9    Law Com CP No 169, Part VI, para 6.53.    [Back]

Note 10    For example, the provision of a bridge or crossing or culvert such that the severed portion of land can be afforded reasonable access.    [Back]

Note 11    These provisions are derived from the Lands Clauses Consolidation Act 1845, ss 93, 94.    [Back]

Note 12    Law Com CP No 169, para 6.49.    [Back]

Note 13    Ibid, para 6.54.    [Back]

Note 14    See CPPRAG Final Report (DETR, July 2000), para 133.    [Back]

Note 15    See Law Com CP No 169, para 6.50.    [Back]

Note 16    See also Policy Statement (DTLR, December 2001), App, para 3.43.    [Back]

Note 17    DTLR Policy Statement, App, para 3.42.    [Back]

Note 18    DTLR Policy Statement, App, para 3.42.    [Back]

Note 19    See our recommendations relating to compensation for injury to retained land in Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286, paras 3.13-3.35 and Compensation Code Rule 4.    [Back]

Note 20    Land Compensation Act 1973, s 55: “a person having no greater interest therein than as tenant for a year or from year to year”. These persons are excluded from the right under the Land Compensation Act 1973, s 53(1).    [Back]

Note 21    See also the Compulsory Purchase (Vesting Declarations) Act 1981, s 2(1).    [Back]

Note 22    Law Com CP No 169, para 6.56, Consultation issue (Q)(2).    [Back]

Note 23    Ibid, paras 6.51, 6.52.    [Back]

Note 24    In the response from the Law Society.    [Back]

Note 25    Compulsory Purchase (Vesting Declarations) Act 1981, Sched 1, Part I.    [Back]

Note 26    Ibid, Sched 1, para 3.    [Back]

Note 27    The notice to treat procedure operates in the same way.    [Back]

Note 28    SI 1992 No 3270.    [Back]

Note 29    Sched 1 (model clauses for railways) art 24 and Sched 2 (for tramways) art 31 provide a mechanism akin to (but more detailed than) the 1965 Act, s 8 for the acquisition of part of certain properties. The time limit for service of counter-notice is 21 days; there is no time limit for the authority to respond, although in default of agreement the matter stands referred to the Lands Tribunal for determination and the authority is permitted to withdraw a varied notice to treat within six weeks following determination (subject to paying compensation for any loss or expense occasioned). We understand from ODPM that a separate review of the procedures is in hand, and it may well be that that review will want to address this aspect: see Law Com CP No 169, paras 1.32, 1.33.    [Back]

Note 30    DTLR Policy Statement, App, para 3.42 (referred to in Law Com CP No 169, paras 6.45 and 6.54).    [Back]

Note 31    See Law Com CP No 169, para 6.56, Proposal 11(A), (1A).    [Back]

Note 32    (1992) 65 P&CR 65 (LT): see Law Com CP No 169, para 6.37.    [Back]

Note 33    (1992) 65 P&CR 65, 72 (LT).    [Back]

Note 34    See Law Com CP No 169, Proposal 11(A)(4).    [Back]

Note 35    “Minor tenancy” includes tenancies from year to year or any lesser interest and long tenancies which are about to expire, as defined in the Compulsory Purchase (Vesting Declarations) Act 1981, s 2. See, further, Part 8(2) and Recommendation 23 below.    [Back]

Note 36    Namely, notice to treat or notice of execution of a general vesting declaration.    [Back]

Note 37    Presently the Compulsory Purchase Act 1965, s 8 fails to make clear on whom the onus of proof lies.    [Back]

Note 38    See our discussion of compensation for injury to “retained land” in Law Com No 286, paras 3.13 and 3.32, where we endorsed use of the expression “held with”.    [Back]

Note 39    See n 35 above.    [Back]

Note 40    This follows the Land Compensation Act 1973, s 53(1). The onus of proof appears, under this Act, to be on the claimant who must “justify” it: see s 54(1).    [Back]

Note 41    Compulsory Purchase (Vesting Declarations) Act 1981, s 6.    [Back]

Note 42    This is based upon the Compulsory Purchase (Vesting Declarations) Act 1981, Sched 1, para 4. This contrasts to the period of two months to serve counter-notice and two months to respond set down in Land Compensation Act 1973, ss 53(1), 54(1) (plus a further two months to refer to the Lands Tribunal). The 1973 Act does not provide an automatic default mechanism; instead, either party “may” refer the issue to the Tribunal.     [Back]

Note 43    CAAV argued strongly against imposition of a 28-day limit on the ground that its shortness would impact particularly harshly on “sole trader” farmers who will need to take professional advice and who may be short-handed at times of harvest, crop establishment or silage-making.    [Back]

Note 44    It may (1) serve notice withdrawing the notice of acquisition; (2) serve notice of intention to acquire the whole; or (3) refer the matter to the Lands Tribunal to determine the appropriate course.    [Back]

Note 45    See our proposal in this regard in Part 9 below on Abortive Orders. The Transport and Works Model Clauses Order (see above) already makes limited provision for compensation.    [Back]

Note 46    Compulsory Purchase (Vesting Declarations) Act 1981, Sched 1, para 7 and Land Compensation Act 1973, s 54(2) already make provision for deemed variation.     [Back]

Note 47    Section 54(3).    [Back]

Note 48    Compulsory Purchase (Vesting Declarations) Act 1981, Sched 1, para 5.    [Back]

Note 49    See procedure in Compulsory Purchase (Vesting Declarations) Act 1981, s 9(2) and Compulsory Purchase Act 1965, s 20. The latter provision needs recasting in order to clarify the procedural arrangements: see Part 8(2), paras 8.61, 8.62 and Recommendation 23(2) below.    [Back]

Note 50    See [1968] 1 WLR 694, 701 per Danckwerts LJ, and at p 702, per Widgery LJ. Danckwerts LJ said “It seems to me that the notice to treat can well perform a useful function in announcing to persons concerned the desire of the acquiring authority to acquire the interests in the property. It also has the useful effect of demanding particulars of the interests of the various persons concerned, which... may well not be known to the acquiring authority.”    [Back]

Note 51    The Newham case actually turned on Lands Clauses Consolidation Act 1845, s 121, the predecessor to the 1965 Act, s 20.    [Back]

Note 52    See Part 8(2), para 8.59 below.    [Back]

Note 53    See Law Com CP 169, para 6.56, Proposal 11(A)(8).    [Back]

Note 54    Towards a Compulsory Purchase Code: (1) Compensation (2003) Law Com No 286 provides, in suggested Rule 5(3)(b) (on Consequential loss), for compensation for costs “reasonably incurred” in replacing buildings which are “required to enable the business to be continued”, so long as the inclusion of such costs is not “unreasonable in all the circumstances”.     [Back]

Note 55    Section 19 of the Compulsory Purchase Act 1965 (for acquisition by notice to treat) and Schedule 1, paragraph 12 to the Compulsory Purchase (Vesting Declarations) Act 1981 (for acquisition by vesting declaration).    [Back]