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CONFUSION IN THE PLANNING AND COMPULSORY PURCHASE ACT 2004

AN ARTICLE by Peter Scrafton FIRRV, FCIArb, MRSA(Hon) Solicitor (Non-Practising)

May 2008.

This article - the final one in the present series - deals with some very important procedural problems which arise from the 2004 Act in relation to the preparation of Schedules to CPOs.  These problems are of immediate and obvious importance to those drafting Schedules which, as they form part of the legal notice to be served upon affected parties, could give rise to a successful legal challenge if such Schedules are incorrectly completed because of a technical error.  There are two problems, namely the separation of the terms “Lessee” and “Tenant”, and the manner in which Table 2 is to be completed (particularly the right hand section of Table 2 which is sometimes referred to as “Table 2 Part 2”).

  Prior to the 2004 Act there were three columns required in a schedule to identify affected parties - owner, lessee and occupier.  Some affected persons were not entered in the Schedule, principally tenants for less than a month, and mortgagees who were not in possession.  The (laudable) intention of the 2004 Act was to ensure that tenants for a month or less should receive notices, although licensees were still excluded.

  To achieve this the Prescribed Forms Regulations 2004 (SI 2004/2595) introduce a “Tenants” column to the Schedule and by way of explanation explain that tenants who are lessees with leases of three years or more should be listed in the Lessees sub-column rather than in the Tenants sub-column.  This in itself may not be too confusing; but the lack of any other definition makes one wonder whether it is implicit that a lessee for less than three years should be in the “Tenants” column.  The heading of the Tenants column in the Schedule, however, specifically excludes lessees - yet there is no difference in law between the two terms…..

  The CPA suggests that the regulations should be amended to define the terminology used and that they should prescribe a return to three columns with the former “lessee” column amended to be entitled “lessees or tenants or reputed lessees or reputed tenants”.  It is submitted that the correction of this drafting error could be effected, readily and without taking parliamentary time.

  The issues over Table 2, however, have caused problems because there seem to be conflicts between the respective wordings of the Act, the regulations, the prescribed form (when read with its explanations) and the Compulsory Purchase Procedures Manual.  Unpicking this one takes a bit more thought - but again the solution may not be that difficult.

  Starting with the 2004 Act, two classes of person are required to be recorded as having the right to receive notice to treat with the status of “qualifying person”.  These are, respectively, a person whom the acquiring authority would (if proceeding under s5(1) of the Compulsory Purchase Act 1965) be required to serve with a notice to treat; or a person whom the Authority thinks is likely to be entitled to make a relevant claim if the order is confirmed and the acquisition takes place, so far as he is known to the authority after making diligent inquiry.

  So far so good.  The regulations then try to give effect to this in Table 2 which is set out in three columns with Columns 2 and 3 each sub-divided into two.  Column 1 defines the number on the Map and therefore relates to the appropriate description of the land in Table 1.  Easy:  no problem.  Column 2 with its two sub-columns incorporates the information required to identify the first category of “qualifying person” identified above.  Anyone who would be entitled to a notice but is not recorded in Table 1 is to be mentioned here.  So much is clear from the headings to the column.  The confusion arises, however, in two respects when one reads the explanation.

  First, the explanation refers to Column 2 of Table 1 which is the description of the order land.  This is misleading as the interest held by the person to be identified in Table 2 also relates to that property.

  Second, the example given is misleading:  the most likely entrant in Table 2 Column 2 is a mortgagee not in possession who is a person excluded from Table 1 by other statutory provisions but entitled to a notice to treat under the Acquisition of Land Act 1981.

  Column 3 with its two sub-columns purports to deal with the second of the given categories of “qualifying person”, but at this point the potential for confusion degenerates into a legislative dogfight.  I will try to explain this as CPA sees it.

  The Compulsory Purchase Procedure Manual example for Table 2 is wrong (see current edition Appendix 3).  First, the column headings do not accord with the regulations.  Second, Column 3 is not a continuation of Column 2 as the example implies - it relates to a person who is likely to have a s10 claim.  This is totally separate from entitlement to a notice to treat which is the subject of Column 2.  Such a person is a “qualifying person” entitled to a notice to treat in respect of the making of a CPO so that he has standing in relation to any objection he may wish to make to the CPO itself.  Such a person, however, is not entitled to a notice to treat!

  Pausing there, this little “goody” gives rise to a further question, namely, if a “qualifying person” employs professional advisers but never becomes entitled to make a s10 claim, should the costs incurred be the subject of compensation payable by the relevant acquiring authority?  Inevitably, authorities would say:  “No”: but it should be borne in mind that by serving notice upon the qualifying person it is implicit that action being taken by the authority will or may affect the person concerned and his property.

  The Act itself also contributes to the unsatisfactory nature of the situation at this point by providing for notice to a person identified as one to whom:  “,,,the acquiring authority thinks [...] likely to be entitled ...” (my italics – JPS) to a s10 claim.  As already canvassed in an earlier article, s10 claims are their own wonderful nightmare - but in identifying a person in accordance with the 2004 Act, one might wonder whether the authority is in effect indicating that such a person will have a prime facie right to such compensation?  The wording certainly implies that the authority has given the matter some thought and concluded that such entitlement:  “... is likely ...”.

  If that is right, then many authorities may simply decide that they do not take that view and will therefore exclude from the Schedule such persons who otherwise might have been included.  CPA suggests that it can hardly have been the intention of Parliament that an authority should make such a unilateral decision and effectively defeat the intention of Parliament by excluding this category of person from the CPO.

  Do you like this so far?  I am thinking of asking the Editor to include it in “Benefits” as one of that faculty’s sudokus! 

  Enter now the regulations, which demand at the head of the column that the acquiring authority should state:  “Description of the land for which the person in the adjoining column is likely to make a claim”.  To which land does this refer, pray tell?  Surely not the relevant parcel within the CPO because such land is already described on the Map and in Table 2 Column 1?

  Could it relate perchance to land held by the named party which might suffer injurious affection?  This seems a better bet; but there ought to be an identification of the manner in which the injurious affection may occur (i.e. possible obstruction of rights of access).

  In fact, the explanation given in the regulations makes no reference to how to describe the land or the injury likely to be suffered but instead asks for a description of the interest despite no reference to this being made in the column heading.

  Resolving these problems ought to be matters of practicality.  The example in the Manual, for example, should be rewritten.

  The Act requires the authority to make a judgment as to who should be included in the Schedule, and the manner in which this is to be done in any particular case cannot easily be identified, questioned or challenged.  This problem needs to be the subject of amending legislation or at the very minimum tackled by advice given in a Ministerial Circular.  If the latter course is taken, the advice should remind authorities of the human rights of affected parties and that authorities should not prejudge the position.  If an authority considers it necessary to protect its own position it should provide an explanation in the Statement of Reasons, which in effect should make the entry in the Schedule on an “E & OE” basis.

  The format of Table 2 in the regulations should be reviewed, particularly the heading of the final column.  A person receiving a notice needs identification of the property likely to be affected and the manner in which it may be affected.  The explanations to the Table should be reviewed accordingly.

  Inevitably, there are some consequential concerns.  Brevity is normally the soul of wit; but in the case of a CPO the exclusion of multiple references to parties raises a potential problem if amendments are made to an order either by an inspector or a minister.  The removal of a property from the order inadvertently may imply the removal from that order of the ability of the acquiring authority to override rights.  This is possible if, for example, a person named in the order owns more than one property in an area, one of which is included in Table 1 and one which would normally be included in Table 2 but is not ultimately there stated as the “exclusion” applies, or where a property included in Table 1 also has access rights over other areas within the order lands.  These circumstances are not unusual, for example in shopping centres where traders can have a number of retail outlets or have rights over common areas within the shopping centre concerned.

  Previously this may not have mattered; but now an acquiring authority needs to ensure that the amended order will state the revised situation in Table 2 Part 2 so that notices of confirmation of the order in its final form correctly inform all affected parties. 

  This may not have been what was intended, however.  So it is likely to be necessary for an authority to seek to anticipate a decision of the inspector or minister and to argue at the public inquiry that if the objector’s case is upheld in respect of the one property, then the order should also be amended so as to preserve the ability to override rights.  Inevitably, this would give scope to everyone to argue at the inquiry about this also - and it is another matter which should be considered for action by way of Ministerial Circular.

  Procedural matters can be very tedious, but I hope that I have shown that they can also have great importance, whether as to identifying order land and appropriate (to use a neutral term) parties, preventing unmeritorious challenges or otherwise focusing legitimate debate upon the right issues and thereby containing cost and saving time.

  Again, it is the Committee of CPA as a whole which has had wet towels round its head preparing the paper on which this article is based.  As before, though, the reportage is entirely my own.

©J.P. Scrafton, 2008

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